When a Doctor/Patient Relationship Exists
Several doctors interviewed for this article said that they were unconcerned about the potential legal risks of dispensing informal medical advice because a formal doctor/patient relationship had not been established.
However, none of these doctors are lawyers, and lawyers who specialize in medical malpractice risk have a different perspective on what constitutes a doctor/patient relationship that many doctors may find surprising.
"The somewhat troubling scenario of being asked for off-the-cuff advice at social gatherings happens to all doctors," concedes Lee Johnson. "You are at a dinner party or a community meeting, and someone who is reminded of a medical problem they are experiencing thinks it might be nice to get your opinion. You wonder if you should give the advice. And if you do, could you have liability if the advice is wrong?"
"Yes, you could have liability," Johnson says. "A doctor/patient relationship is established by informal advice at a gathering or on the phone just as it is in your office. A duty is established, and that duty is the first element of a malpractice case. The duty is what makes you a potential defendant."
"The second element in a malpractice case is departure from the standard of care of the reasonable physician," Johnson explains. "You might think the standard or care would be lessened because the advice is informal or free. But you would be wrong. The standard of care is the same for informal advice as formal; for billed care, as for free care."
Johnson continued, "The only exception in which the standard of care is more lax is the Good Samaritan rule, which applies only in an emergency and usually when the person is not capable of consent. So free or casual treatment is still held to the same standard of care and you must act as a 'reasonable physician in your specialty.'"
Even with informal advice, if something goes wrong, you could have liability, Johnson told Medscape. If you miss a diagnosis or recommend the wrong treatment, the patient who followed your advice can sue. In fact, she says, your malpractice liability may be exaggerated when the patient has unrealistic expectations, asks for advice outside of your specialty, or fails to take your treatment seriously.
All of these elements may be more prevalent when treatment is by a friend. You may think your friend would never sue you, Johnson cautions. But friends can become estranged, and then it could be a different story.
"There's a lot of confusion about the physician/patient relationship," agrees Robin Diamond, MSN, JD, RN, senior vice president of patient safety and risk management at The Doctors Company, a medical malpractice insurer in Napa, California. "Some physicians assume that if there's no formalized contractual agreement, they don't have to be worried about being sued. That's not true."
Even though there isn't a formal relationship, "the patient can still say, 'Oh yes there was, because I talked to the doctor about all of these things. I spent 20 minutes with him. He looked at this lesion on my arm. He agreed that I didn't need to do anything.' The fact that you weren't in the office doesn't mean that a patient won't go to court and allege that a physician/patient relationship existed."
Even if you ultimately win the case, it can be a hellish experience, Diamond says.
When dispensing informal advice to family and friends, she offers this advice:
Realize that you may have a "blind spot," and that your personal feelings could interfere with your professional judgment.
Be able to say, "This requires a closer look." Then suggest that the person either come to your office or see their own physician.
Consider the motivation of the person requesting your advice. Is this individual unhappy with their current treatment? Are they seeking another professional opinion? Don't get drawn into this. Explain that you can't render an opinion about another physician's care.
Use the following disclaimers, as appropriate:
"Without being able to do a history and physical, or having access to my office tools, my advice is very limited and you should not totally rely on it."
"I think you should see your personal physician to find out what steps you need to take."
"I am your (son, daughter, aunt, uncle) who happens to be a physician, but I really want you to see your personal physician. I would be happy to talk with him or her, if you'd like."
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Any views expressed above are the author's own and do not necessarily reflect the views of WebMD or Medscape.
Cite this: Neil Chesanow. When Friends and Family Ambush You for Free Medical Advice - Medscape - Jul 26, 2017.