Can a Physician Be Sued for Negligence by a Patient He Never Met?

On appeal, the court looked at a variety of cases to determine whether Dr K had a physician-patient relationship with Mr B based on the phone call between him and Dr M.

The answer seems straightforward. Can a doctor be sued for negligence by a patient he never saw or spoke with? The answer seems like it should be an automatic “no,” but that’s incorrect. The bottom line, as we will see in this month’s case, is that it depends.

Just the Facts

On the evening of July 26, 2017, the patient, Mr B, presented at the emergency department of his local hospital with complaints of severe pain to his right posterior neck and trapezius area, a bug bite to his right elbow, and right elbow swelling. The nurse’s notes indicated that Mr B’s symptoms began the night before with a bad headache, and he woke to pain in his neck. He reported being unable to move his head side-to-side or up-and-down, and that when he tried to move it, the pain increased. The notes indicated that he’d had a fever the night before, but none today, and that he had experienced some nausea, without vomiting, and he believed it was related to pain. The patient denied sustaining any injury. The notes stated that he had no current headache, no fever, no light sensitivity, and no generalized symptoms.

The attending physician that evening was Dr M. He reviewed the nursing records, performed his own physical examination, and ordered a complete blood count and comprehensive metabolic panel. He also ordered a sedimentation rate test. One of the physician’s early concerns was a possible infection. The test results showed an elevated white blood count, a normal distribution of neutrophils, and a slightly elevated sedimentation rate. He prescribed an anti-inflammatory pain reliever and a muscle relaxant but the patient continued to have pain in the area and some muscular spasms that were not controlled by the medication. At this point, Dr M diagnosed the patient with torticollis, a muscular condition of the shoulders and neck.

The patient was still having some symptoms, so Dr M decided to consult with the on-call internal medicine physician, Dr K. Dr K and other on-call physicians in the ED were provided by a physician staffing company that contracted with the hospital to provide on-call services for the emergency department. Dr M did not have admitting authority, and so admission orders were required to come from either the patient’s primary care provider, or the on-call physician. The purpose of Dr M calling Dr K was to discuss whether the patient should be hospitalized.

Dr M conveyed all relevant information to Dr K, including test results, complaints, and history. The two clinicians discussed the case and came up with a consensus. Following the phone call, the patient was released from the hospital with instructions to follow up with his primary care physician the next day. He was also told to return to the emergency department if symptoms worsened.

The patient did not follow up with his personal physician as instructed, and instead returned to the emergency department 3 days later with hypercapnic respiratory failure, sepsis, and an altered mental state. He was intubated by Dr M who was working again that night, and transferred via LifeFlight to a larger hospital with more services. There, an MRI revealed a spinal epidural abscess. The patient died a week later.

The patient’s widow, individually and as administrator of his estate, sued Dr M and the hospital for medical negligence. A few months later, she amended her complaint to add Dr K, the on-call physician, and the staffing company that employed him.

Dr K hired a defense attorney who made a motion for summary judgement, asking that the case be dismissed against him because he did not have a doctor-patient relationship with Mr B and therefore owed no duty of care. The plaintiff alleged that Dr K did owe Mr B a legal duty of care, and that he was negligent in 1) failing to rule out an infection, 2) failing to admit and monitor the patient, and 3) discharging the patient home when it was not safe to do so.