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Inadvertent Patient-Doctor Relationship

I was drunk at a club with many friends a few years ago when I entered my first inadvertent patient-doctor relationship. My buddy’s GF asked me what I thought about a lump on her neck. I felt it, and it seemed to be an enlarged lymph node. I don’t even remember it in much detail, but I said that it’s probably something benign.

Of course, that lump ended up being a lymphoma. What else! I definitely entered into a  patient-doctor relationship even if I never consented to be her physician.

Lawyers and policymakers hijacked the term “patient-doctor relationship” long ago. It no longer refers to the bond between patient and doctor. Instead, it’s a legal definition that legally assigns a physician to a patient. This relationship dictates billing and malpractice. It’s necessary before any consent can be given, medication prescribed, or surgery performed.

The most important concept I’ll lead with is that anyone but you get to decide whether you’ve officially entered a patient-doctor relationship. You don’t get to decide, determine, or agree to enter a patient-doctor relationship; it’s something that’s teased out far after the interaction took place, usually in a courtroom. It’s up to a jury, up to a lawyer, and the judge – not you.

However, there are ways to protect yourself. And, just as important, there are ways to renegotiate the patient-doctor relationship which is why we went into medicine in the first place.

The Patient-Doctor Relationship

No law or regulation specifically outlines exactly what it takes for a patient-doctor relationship to be established. However, once established, you own that patient forever, even if you didn’t know you inadvertently entered that relationship.

You are responsible for that patient until you hand them off to someone else and clearly end the patient-doctor relationship with them.

How many patient-doctor relationships have you ended? Most of us haven’t. How many have you entered? More than you think.

Entering the Clinical Relationship

Even though there is no contract a physician and patient must sign before entering a patient-doctor relationship, certain aspects automatically marry the two of you. This holds even if you don’t consent to being that person’s physician.

A patient-physician relationship is almost certainly formed when a doctor engages with an individual through some or all of the following:

  1. offering a medical opinion
  2. being part of an insurance network
  3. performing an exam
  4. giving a diagnosis
  5. ordering a test – even by proxy
  6. providing treatment
  7. getting curb-sided
  8. failing to delineate the relationship
  9. claiming to be a physician

Patient Abandonment

Patient abandonment is a phrase I had never heard about until I got entangled with the medical boards.

Once you enter a patient-doctor relationship, knowingly or unknowingly, you are the mother of that infantilized individual. You’re on the hook for it if you do not see their care through.

A classic example is ordering a pelvic ultrasound for a suspected ovarian carcinoma. You can’t just order it and hope that the patient will perform the test. Even if the patient chooses not to do it, or they forget, end up in prison for a while, or go on a 2-month drinking binge, you are responsible for that patient getting the ultrasound.

Another example is when you have an appointment with a patient who is a no-show. The appointment was made – whether by you, the patient, a caregiver, your call center, or your staff. There was a medical reason for that visit, and if you don’t follow up with the patient and a delay of care can be established, it’s your medical license on the line.

The examples I’m providing have case precedences in various states. No state has any particular guidelines. There is no incentive to regulate such matters in a lucrative medical-legal system, such as the one in the US.

Some states will have precedence that your attorney can cite once you enter the lawsuit. Even then, as we know, just because there is legal precedence doesn’t mean it matches your legal situation.

This isn’t meant to scare a physician. It’s important to understand how the courts interpret these laws. After all, they were ratified to help protect the patient.

What can I learn from these laws? How can I protect myself? How can I protect my patients?

But Ethel is So Sweet!

Little old Ethel would never sue you, so you think. You’re right. She’s your neighbor and has a daughter your age who is a doctor in another state. She babysits your kiddos occasionally when you save lives at the hospital.

She happens to ask you about her fatigue and lack of appetite on her way out one day after babysitting for you. You look her over and tell her that it could be something viral that has been going around and that she should try to get some tea in her and go to bed early tonight.

She downs the tea, calls up her daughter to say good night, and praises her for giving her an opinion. She dies that night in her sleep and is later found to have had a major septic episode from a UTI.

It’s not Ethel who will sue you; it’s her daughter. You gave Ethel specific medical advice, “prescribed” tea and you “prescribed” sleep. Tea is no longer a tea when it’s recommended by a doctor, just like a refill isn’t a refill.

Avoiding the Inadvertent Patient-Doctor Relationship

The main purpose of this post is to teach you how to avoid the serendipitous patient-doctor relationship.

1. General Knowledge

I can share with a person my medical knowledge in a general and non-specific way. But I cannot give them my medical opinion regarding them.

“Patients with pain in one leg and slight swelling could have it due to fluid retention or a clot in the leg. We usually recommend that they have an ultrasound done to rule out a DVT.”

“But I don’t have any risk factors for a DVT. Could I still have a DVT?” 

Sharing your knowledge is okay. You don’t even have the responsibility to tell that patient to see their doctor. You shouldn’t. Specific advice puts you in a bad place and could open the door for more specific questions.

As to their follow-up question, if you answer that the way a doctor would, you’ll have given that person a patient-specific medical opinion. Should a case against you arise, the patient’s counsel could prove that you entered a patient-doctor relationship.

This is how Health Coaches interact with their health clients.

2. Insurance Network

You just opened your practice and are in-network with xyz insurance. You have walk-in hours advertised on your website from 1-5 pm on Wednesdays.

A new patient to your practice with that particular insurance stops by to be seen for dizziness and weakness, and some chest tightness. Without evaluating the patient, you tell your nurse that they should probably be seen in the ER. The patient enters her car, leaves your parking lot, and plows into oncoming traffic. She was a new onset diabetic with a blood sugar of 37.

But you never saw the patient, all is good, right?

Wrong. You did see the patient as soon as you interacted with that individual, even by proxy of your nurse. You became her physician automatically because you were in-network, and she established a walk-in visit. Even if you were out-of-network, you made a clinical decision by sending that patient away. No bueno.

To avoid this, you must have strict policies in place, which must be repeated to the patient upon arrival, and the burden of proof is on you that you treat every patient the same in your practice; that you send every dizziness/weakness/CP patient to the ED.

And if you’re going to recommend that a patient go to the ED, then you are responsible for assessing their mode of transportation. And in some states, you might even be responsible for giving the ER a heads up in case they are on divert.

3. Examining the Patient

What constitutes an exam? Percussing the lungs is an exam. Winking back at the cervix is definitely an exam. What about reviewing a photo a person forwarded you of their rash? Or looking at your neighbor’s mole? Or looking over a person whom you comment to that appears pale.

A lawyer friend of mine showed a mole to her dermatologist friend who is in her volleyball league. The dermatologist didn’t find the lesion suspicious. 2 years later this mole turned out to be a melanoma on my 35-year-old lawyer friend’s neck.

There is no clear-cut rule when it comes to an exam. If it’s unique to that person, if it’s an observation one can make that’s individual, it’s an exam. Whether it will hold up in court is a different discussion.

If your friend shows you her Asian daughter’s mouth rash and tells you that she thinks it’s just Hand-Foot Mouth which has been going around at daycare. You look at the rash; whatever you say after that could determine whether you’ll have to show up to court when her daughter codes and dies in the ED the next day from complications of Kawasaki’s disease.

4. A Diagnosis

Only physicians or clinicians can give you a diagnosis. A nurse who sees appendicitis on the patient’s CT, even if it’s written in the radiology report, cannot give the patient the diagnosis.

“It’s probably a URI” is a diagnosis. “It’s probably benign” or “This could be cancer” is a diagnosis. These are medical opinions that are individualized and come from a physician’s mouth.

Not only do you need a full patient H&P along with proper documentation, but you would also be responsible for making sure the patient follows through within the medical system after getting a diagnosis from you.

Avoid giving your impression, which might be misconstrued as a diagnosis. You can make a general statement to avoid misunderstanding the relationship: “Usually when there is no high fever and just some cough and congestion, it’s often a viral infection, but I can’t tell you what you have or don’t have.”

5. Ordering a Test

Your nurse comes to you and says a patient in the waiting room could use an EKG before being seen. That way she can speed things up by the time you or another doctor are ready to see them. She needs an order from you to get the EKG started. You order it. The EKG gets done and placed on your desk while you’re suturing a toddler’s face.

The patient slumps over in the exam room and codes as your eardrums are rupturing in the exam room.

You ordered the test. The nurse knew what she was doing – trying to protect herself by not performing the EKG until you ordered it. Sure, in the courtroom, you can blame the nurse and say that she never gave you a full assessment of the patient, but she’s not the doctor, you are.

As we’ve learned from my personal medical board investigation case, you cannot order a test on someone unless you are willing to enter a patient-doctor relationship with them.

6. Providing a Treatment

Even if you recommend that a colleague try an herbal tea or vitamin D supplement for their particular complaint, you are in fact ‘prescribing’ that treatment. Aspirin is just an OTC product until a doctor recommends it. If you recommend it or even suggest it to someone, you are viewed as having prescribed it.

Once you are viewed as having prescribed something, you will have entered the patient-doctor relationship. The next question is whether you did an exam on that patient. Whether you documented the visit. Whether you reviewed their allergies and medication list with them.

You might get away with recommending that someone with diabetes eat a low-carb diet because it’s already public information. Other consumer groups such as, already advertise such information to patients. I still wouldn’t take that lightly. Avoid recommending anything to an individual, whether a specific diet or exercise or melatonin. Refer them to resources instead.

7. Curbsiding

Imagine that I ask my cardiology colleague how soon the patient’s Plavix should be resumed after surgery. He asks me a few questions about the patient and recommends that it be resumed on post-op day 3.

I resume Plavix on my patient and forgot to stop their Coumadin, and the patient also continues on their home aspirin regimen. Before discharging my patient, I told them they can resume their Plavix on day 3, which I ran by one of my cardiology colleagues.

You know where this one is going to go. If you’re a specialist or being asked for an opinion by a colleague, you shouldn’t offer advice based on that particular case. You can offer general guidance such as: “I usually want my patients to resume Plavix on day 3 post-op as long as there are no signs of bleeding.”

This is a risk issue for supervising doctors who have PAs and NPs come to them with questions. Don’t avoid being helpful to your colleagues; you can still be supportive and offer good advice but keep it general.

8. Delineating the Relationship

Sometimes a mere mortal engages you in a conversation about their health. They know that you have a private practice and they intend to transfer their care to you.

You wanted to show yourself as someone knowledgeable to recruit this client. The patient assumed they are sharing their information with you so that you know their case before coming to you. Neither of you took the time to set the patient-doctor boundaries.

The patient will have nothing to lose, and they can enter and exit a patient-doctor relationship at a whim. It’s on you to draw the line in the sand. Let this person know that you are not their doctor yet, and you’re happy to hear their story but are only doing so informally and won’t be giving any opinion or acting as their doctor.

9. Advertising Your Physician-ness

The state medical boards trademark the word physician. You must be licensed in that state if you claim to be a physician. Even if you mention that you have an MD, you are using a heavily defended trademark.

You might be giving a community talk. You might be advertising something for your other business. You might be writing a book. Or you might be helping a friend out in their dental practice.

Be very careful in what setting you are claiming to be a physician. You can safely say that you went to medical school. You can claim that you completed a residency in orthopedics. It’s the term “physician” or “MD” or “DO” which can drag you under the Medical Practice Act umbrella, governed by your state or whatever state you’re standing in.

Protecting Your Patient-Doctor Relationship

I love the individuals who are in my practice. Our patient-doctor relationship took many years to develop, and it certainly saw its ups and downs.

For all the negativity in this article, I suspect I’ve done many things wrong which weren’t punished by law. I was either forgiven, or the patient didn’t know they could have had a claim.

Physicians aren’t in the medical game for money, fame, or praise. The profession challenges us, we build clinical relationships, and we transform lives.

This kind of pleasure is sweeter when you can navigate the pitfalls of medicine. The knowledge may avoid burnout or a career disaster.

4 replies on “Inadvertent Patient-Doctor Relationship”

Based on the list above, wouldn’t answering questions on JustAnswer effectively create a patient-doctor relationship? Mainly point 1 and 4. I guess point 4 can be negated by offering general information but it’s hard to argue you are not providing your opinion when answering questions on that website

Based on my research you can give your medical opinion to anyone as outlined in #1 as long as it’s a general opinion and not medical advice geared towards a specific individual. I don’t even give a diagnosis when doing telemedicine which is why my prescribing rate is so low and to address point #4 further, JA hides the name and state and age and other identifiers of the clients who are going on their platform to obtain medical information. I avoid the questions where someone is looking for a specific diagnosis or wants a very specific medical question. The customers have already been told that there is no patient-doctor relationship and they are talking to medical experts but not physicians.
This falls into the realm of giving general medical advice on YouTube, for example, and even interacting in the chat area with commenters. The generality of your interactions also covers you when you give general recommendations on a topic when interacting on Figure1 or on Reddit where individuals ask medical questions and Quora.
I agree with you that if someone wanted to make the argument and bring a court case against a physician for offering medical advice on JA then they would, at the very least, have a case. The lawyer for that case could only petition the medical boards to punish the doctor – no malpractice case could arise from it because the site clearly outlines that the patient is not entering a patient-doctor relationship. The medical boards know that physicians act on behalf of the DMV and CDC and healthcare consulting clients to offer clinical expertise. As long a this is general and broad it’s a hard argument to make and I’m not sure it would be worth the medical board’s time – but, certainly possible. When I verified this with my lawyer I got the same answer and when I verified it with a malpractice insurer they, too, said that in no state would an anonymous and general interaction with a healthcare expert and client be viewed as a patient-doctor relationship, nor could they insure me for it. It would fall under an E&O policy which I’ve discussed before.
Now, if you are diagnosing people on JA, if you are giving very individualized advice to a person, or even suggesting to them to stop a medication, start a medication, take something over the counter then that’s more problematic. I don’t see a need for it, honestly. 99% of the clients on JA are asking general questions and even lead with “I know you can’t diagnose me and aren’t my doctor but….”

I enjoy so m uh reading your blog, I’m amazed at how clearly and funny you write. Is also great that you share your knowledge with other physicians, you are and educator. You should write a book

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