I was drunk at a club with a bunch of friends a few years ago. My buddy’s GF asks 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 something along the lines of that it’s probably something benign.
Of course, that fucking thing ended up being a lymphoma. What else! I definitely entered into a patient-doctor relationship even if I never consented to be her physician.
The term “patient-doctor relationship” got hijacked a long time ago by lawyers and policy makers. It no longer refers to the bond between patient and doctor. Instead, it’s a legal definition which legally assigns a physician to a patient. This relationship dictates billing and malpractice. It’s a necessity before any consent can be given, a medication prescribed, or a surgery performed.
The most important concept I’ll lead with is that anyone but you gets 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.
A good way to think about it, could someone else who isn’t a doctor say or do what you did? If not, then saying or doing it likely puts you in the role of a physician.
The Patient-Doctor Relationship
There is no law or regulation which 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. Meaning, 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 Relationship
Even though there is no contract a physician and patient have to sign before entering a patient-doctor relationship, certain aspects automatically marry the two of you. This holds true 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 by some or all of the following:
- offering a medical opinion
- being part of an insurance network
- performing an exam
- giving a diagnosis
- ordering a test – even by proxy
- providing treatment
- getting curb-sided
- failing to delineating the relationship
- proclaiming to be a physician
I’ll get into each of the above in a moment. But let me say a word about patient abandonment, 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. If you do not see their care all the way through, you’re on the hook for it.
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, or they end up in prison for a while, or they 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 and the patient 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.
All of these examples that I’m providing have case precedences in various states. No state has any particular guidelines. In a lucrative medical-legal system, such as the one in the US, there is no incentive to regulate such matters.
Some states will have a precedence which can be cited by your attorney once you enter the lawsuit. Even then, as we know, just because there is a legal precedence, it doesn’t mean that it matches your legal situation.
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 from time to time when you’re busy saving 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 which 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 and calls up her daughter just to say good night and sings your praises for giving her an opinion. She dies that night in her sleep and is later found to have had a major spetic episode from a UTI.
It’s not Ethel who will sue you, it’s her daughter. You gave Ethel specific medical advice and you “prescribed” a tea and you “prescribed” sleep. A tea is no longer a tea when it’s recommended by a doctor. Just like a refill isn’t a refill.
Avoiding the Patient-Doctor Relationship
The main purpose of this post is to teach you how to avoid the serendipitous patient-doctor relationship.
1. Medical Opinion
I can share with a person my medical knowledge in a general and non-specific way. But I cannot give them my medical opinion as it pertains to them.
“Patients who have pain in one leg and slight swelling could have it due to fluid retention or due to 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 go see their doctor. In fact, you shouldn’t. Specific advice puts you in a bad place and could open the door up 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.
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 to tell them that they should probably be seen in the ER. The patient gets in 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 to assess their mode of transportation. And in some states you might even be responsible to give 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 they appear 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 and 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 clearly sees an 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 which are individualized and comes from a physician’s mouth.
Not only do you need a full patient H&P along with proper documentation, you would be responsible to make 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 in order to avoid any misunderstanding regarding 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 that there is a patient in the waiting room who 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 your 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 just try an herbal tea or vitamin D supplements for their particular complaint, you are in fact ‘prescribing’ that treatment. Aspirin is just an OTC product until a doctor recommends it. One you recommend it or even suggest it to a person, 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 diabetes.org 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.
Imagine that I go to 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 forget to stop their Coumadin and the patient also continues on their home aspirin regimen. Before discharging my patient I mention to them that they can resume their Plavix on day 3 which I ran by one of my cardiology colleagues.
You know where this one is gonna go. If you’re a specialist or if you’re being asked for an opinion by a colleague then 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 PA’s and NP’s 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 their intention is to transfer their care to you.
You wanted to show yourself as someone knowledgeable to recruit this client. The patient assumed that 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 having 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 you are only doing so informally and won’t be giving any opinion or acting in any way as their doctor.
9. Advertising Your Physicianness
The word physician is trademarked by the state medical boards. If you claim to be a physician you must be licensed in that state. Even if you just mention that you have an MD, you are using a trademark which is heavily defended.
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.