Legal Background

The supreme court of the state was asked to decide whether a physician-patient relationship is a necessary element for a claim of medical malpractice. The court, reversing the lower courts, held that a physician owes a duty of care to a third party when the physician acts in a professional capacity and it is reasonably foreseeable that the third party will rely on the physician and be harmed by a breach of the standard of care. 

While a doctor-patient relationship automatically creates a duty of care, the court specified that such a duty can also be created by the reasonable foreseeability that the patient will rely on and potentially be harmed by, the physician’s advice. 

The court in this case stated that a duty existed between Dr D and Mrs W since it was foreseeable that she would rely on the advice given to Ms S that a hospitalization was unnecessary, and she was ultimately harmed by relying on such advice.

The supreme court reversed the lower court’s holding and remanded the case back to district court for a trial to determine whether all the elements of medical malpractice were met in this case. 

Protecting Yourself

The defense argued that the conversation between Ms S and Dr D was a “curbside consultation” and should not be the basis of liability. They (and the dissenting judges) warned that making doctors liable for curbside consultations would harm patients by chilling beneficial interaction among health professionals. Many states do exempt third-party doctors from malpractice liability when their colleagues engage them in curbside consultations to informally get opinions. But as this case shows, not all states do. Therefore, if you are giving advice, even casual advice, and even to another healthcare provider, it is essential that you treat it with the same gravity as if you were giving advice to your own patient – because you may be equally as liable. 

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