Minnesota Lowers the Malpractice Bar
“A physician-patient relationship is not a necessary element of a claim for professional negligence. 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’s acts and be harmed by a breach of the standard of care.”
— Minnesota Supreme Court, April 17, 2019
A recent case out of Minnesota has created a stir in the medical malpractice world, because the Minnesota Supreme Court said that a physician-patient relationship was NOT required as a prerequisite to the filing of a malpractice claim. Warren v. Dinter, A17-0555 (April 17, 2019). The Trust has received several inquiries about the impact of this decision.
The good news is that the Minnesota case is not binding in Virginia, and the law in Virginia still requires a physician-patient relationship to exist in order for a malpractice claim to be viable. The bad news is that under Virginia law the facts as they occurred in Minnesota likely would be construed to have established a physician-patient relationship in Virginia.
The Warren case centered around the actions of a hospitalist, who had been called by a patient’s NP, who wanted the hospitalist to admit the patient due in part to a high white blood cell count. Although there is a factual dispute as to what information was provided to the hospitalist and what the hospitalist said in response, there is agreement that the hospitalist refused to accept the patient. The patient subsequently died, and her estate filed suit against the hospitalist.
The hospitalist defended the suit by claiming that he had no legal duty to the patient, because his brief interaction with the NP did not establish a physician-patient relationship. He never spoke to the patient, never saw the patient and never offered any treatment advice for the patient. The trial court agreed and case against the hospitalist was dismissed. On appeal the Minnesota Supreme Court reversed the lower court and held that it was not necessary for a physician-patient relationship to exist in order for the hospitalist to have a duty to the patient. They held that the proper analysis is whether it was “reasonably foreseeable” there could be injury to the patient if the hospitalist’s decision not to accept her was incorrect. Thus the standard for a duty in Minnesota as to third parties is not whether a physician-patient relationship exists, but whether injury is foreseeable.
Virginia does not follow the “foreseeability” test and still requires a physician-patient relationship to exist before a physician can have a duty to a patient and be potentially liable in a malpractice action. “A physician’s duty arises only upon the creation of a physician-patient relationship; that relationship springs from a consensual transaction, a contract, express or implied, general or special.” Lyons v. Grether, 218 Va. 630, 643 (1977). The decision as to whether a physician patient relationship exists “is a question of fact, turning upon a determination whether the patient entrusted his treatment to the physician and the physician accepted the case.” Id. at 633.
Even though Virginia law requires the physician-patient relationship, application of the facts of the Minnesota case would likely lead a Virginia court to conclude a physician-patient relationship existed. As precedent, in the Virginia case of Prosise v. Foster, 544 S.E.2d 331 (2001) the plaintiff sued an attending ED physician, Dr. Foster, at VCU. The patient had been seen by residents in the ED but Dr. Foster was never told about or consulted about the patient, and the patient died three days later. The lower court dismissed Dr. Foster, and the Virginia Supreme Court upheld dismissal, because there were no facts indicating that the attending physician had been involved in the care of the patient. The court noted, “[Dr. Foster] did not treat [plaintiff], she did not participate in any treatment decisions regarding [plaintiff], and she was not consulted,” by the residents or any hospital staff. The clear implication is that had Dr. Foster been consulted, then she may have been held to have a physician-patient relationship. In the Minnesota case the fact of the consultation was unquestioned, and although Virginia would not apply the foreseeability test, the consultation alone may be enough to create a physician-patient relationship under Virginia law.
As Virginia providers you should be comfortable knowing that in Virginia you need to have a bona fide physician-patient relationship before you have a legal duty to a patient. However, whether such a relationship exists is a fact-specific determination and under the facts alleged in the Minnesota case, a Virginia court might find a duty to exist. This underscores the need to document calls, emails or other consultations, formal or informal, that you receive in order to put yourself in the best position to defend any potential medical malpractice claim.