Legal risks for giving free medical advice

A column analyzing the impact of recent court decisions on physicians

By — Posted March 13, 2006.

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How many times has a patient stopped you in the grocery store, a parking lot, or at the soccer field where your child is playing and asked for a medical diagnosis?

How many times have you been cornered at a social event -- a holiday party or neighborhood gathering -- by a relative, friend or acquaintance and asked to answer a medical question or offer some medical advice?

It's probably happened more times than you can count.

It's possible that you find these interruptions of your leisure time an inconvenience, perhaps even an annoyance. But if you don't already consider them a legal risk, you should.

Consulting with a patient outside the exam room in an informal setting in no way lessens your legal liability. And since one of the best ways to protect yourself from liability is through documentation, an undocumented, casual exchange between you and your patient could lead to trouble. The level of risk, of course, is higher if the person who has approached you is already your patient, because a physician-patient relationship has clearly been established.

It is that type of parking lot conversation between a physician and patient that is at the center of a medical malpractice lawsuit filed late last year against a New York cardiovascular specialist.

According to the complaint filed in the state Supreme Court in Riverhead, N.Y., in Suffolk County, 67-year-old Herbert O'Rourke died seven days after an undocumented consultation with his physician of 20 years, Hachiro Nakamura, MD.

Carol Schlitt, the N.Y. attorney representing O'Rourke's wife, Norma, said that O'Rourke, who was diabetic, went to see Dr. Nakamura at his North Shore Medical Group office on Nov. 7, 2003. Dr. Nakamura was not seeing patients that day, but O'Rourke ran into the physician in the parking lot and told him he was experiencing chest pain.

Dr. Nakamura prescribed Nitrostat (nitroglycerin) and scheduled a stress test for Nov. 23. But O'Rourke never made it to the stress test. He died from cardiorespiratory arrest before then.

The lawsuit alleges that Dr. Nakamura and the North Shore Medical Group "failed to appreciate the significance of the symptoms exhibited" by O'Rourke and prescribed him contraindicated medication without conducting the appropriate tests.

It also alleges that Dr. Nakamura certified a false statement on the death certificate when he indicated that the last date upon which he had seen O'Rourke alive was Oct. 21, the day O'Rourke had a routine checkup, instead of Nov. 7, the day of the parking lot encounter.

Neither Dr. Nakamura nor North Shore Medical Group could be reached for comment about the lawsuit. But, in court records, they have denied the allegations.

How to handle encounters

Schlitt noted that Dr. Nakamura had better options for treating O'Rourke, including sending him into the office to see another physician in the group or sending him to a hospital emergency department.

She says the physician deviated from the standard of care by doing neither. But, she said lawsuits that involve allegations similar to the ones in O'Rourke v. Nakamura, et al. are extremely unusual.

Devin O'Brien, senior counsel for The Doctors Company, a nationwide medical liability insurer, said lawsuits of this nature are very fact-specific and are usually only filed if there is a tragic outcome.

But when the cases are filed, they serve to remind physicians of the perils of evaluating patients outside the exam room, as well as giving medical opinions during casual conversations or prescribing medicine for friends and family.

The advice experts offer for handling each of these situations is a bit different, but all require caution on the physician's part.

If you are dealing with patients, the best course of action is to tell the patient to come to the office the next day or, if the situation seems serious, send the patient to the emergency department. And while experts strongly advise against writing a prescription, if you do, you must insist on seeing the patient in your office the next day. Also, it is very important to document the encounter in the patient's file, experts said.

Guidelines for handling nonpatients are quite specific. Jane Holeman, vice president of risk management for the Texas Medical Liability Trust, said that a certain amount of diplomacy is required because you probably don't want your family members or friends to think you believe they might sue you.

For example, she recommends a couple of possible responses for the proper way to handle a situation in which a person approaches you at a cocktail party and asks you to look at a mole: "It's really hard for me to see it well with the lighting in here, you should come by my office" or "it looks like something you ought to have checked out."

She said physicians should stay away from the worst-case scenario in which they say "it looks like nothing," and then it turns out to be melanoma.

Holeman said she recommends physicians be very cautious in these conversations because some courts have ruled the conversation can be enough to create a physician-patient relationship in which you can be held liable for a bad outcome.

O'Brien said that the test courts use for determining a physician-patient relationship in these instances is one of reasonableness. He said that it is unlikely, but not impossible, that ambushing a physician at a cocktail party would be deemed as establishing such a relationship.

Indeed, he said, the problem can be one of differing perceptions. Physicians, he said, often think that a physician-patient relationship cannot be established without some type of formality, but that isn't necessarily the case.

So, in a casual encounter, the physician is likely to walk away thinking "what a strange person that was" and not give it another thought, while the person walks away thinking he or she has gotten a medical opinion. And he said, if a lawsuit arises from the encounter, the people who are going to be determining whether a physician-patient relationship was formed are going to be the finders of fact -- a jury of non-peers.

His advice for a reply is similar to Holeman's: "Don't make a diagnosis."

"You need to see someone about that" is always an appropriate answer, he said.

Encounters are inevitable

While O'Brien and Holeman would prefer physicians stick to that script with all nonpatients, O'Brien acknowledged that when people have a physician in the family or as a close friend, they expect that on occasion they can get advice, diagnosis and even prescriptions.

It's unrealistic, he said, to think that a physician will always steer clear.

But, he said, you need to recognize that you are taking a risk. If your friend is a 40-year-old father of three who is experiencing chest pain but thinks he just pulled a muscle and you suggest he rest and take ibuprofen and he turns out to be having an MI, his wife may have no choice but to sue you.

He said that his company defends doctors all the time who were consulted in an informal way.

In the end, it is best to remember that you carry the responsibility and the liability of being a physician with you wherever you go. And it's probably best to practice saying "you really should have that looked at" so that it rolls off your tongue the next time someone asks for your opinion at a party.

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