It is important in defending a medical malpractice action that we never forget to ask ourselves the threshold question: is there a duty of care? In order to impose liability for medical negligence, three essential elements must be proved: (1) the duty inherent in a professional-patient relationship; (2) breach of that duty by deviating from the appropriate standard of care; and (3) a showing that the failure to exercise the requisite degree of skill is the proximate cause of the injury sustained. Frequently, medical negligence claims in Georgia are brought against physicians that have had little or no contact with a patient. Examples of this include an on-duty physician in the emergency room that has never met a patient. Another example is when a physician interprets a patient’s x-ray but never actually treats the patient. There are many cases addressing the physician-patient relationship when a physician is consulted over the phone by another physician about a patient, but never actually treats the patient. It is essential, as defending counsel for physicians, that we take that first step in these types of cases and analyze whether or not a duty is even present, i.e., if there is even a physician-patient relationship present. Proper evaluation and showing to the court that a physician-patient does not exist can lead to a complete disruption of a medical negligence claim and an extremely positive result for the client.
How does Georgia Define the Physician-Patient Relationship?
Knowing whether or not a physician-patient relationship exists is important in determining how to terminate a physician-patient relationship and also whether or not a cause of action can be brought against a physician. There are no statutes in Georgia that define this duty and give parameters and guidance to physicians. Rather, the physician-patient relationship is defined by case law which varies from state to state. In Georgia, the law is clear that there can be no liability for medical negligence in the absence of a physician-patient relationship. Pham v. Black, 347 Ga.App. 585, 587 (2018). The Courts have consistently held for decades that physician-patient privity is essential because it is the relation which is a result of a consensual transaction that establishes the legal duty to conform to a standard of conduct. Id. How does Georgia law actually define the physician-patient relationship? A physician-patient relationship is considered consensual where the patient knowingly seeks the assistance of the physician, and the physician knowingly accepts him/her as a patient. Id. It is a contractual relationship which can be express or implied.
Overview of Georgia Case Law Interpreting the Physician-Patient Relationship
In 1986, the Georgia Court of Appeals explored the creation of the physician-patient relationship in Clanton v. Von Haam, 177 Ga.App. 694 (1986). In Clanton, Mrs. Clanton arrived at a hospital emergency room complaining of pain in her back. While in the emergency room she developed leg numbness. She was examined by a physician and released from the emergency room. As her pain worsened, Mrs. Clanton called the answering service of Dr. Von Haam whom had previously treated her for an unrelated condition. Dr. Von Haam returned her call, listened to a recital of her symptoms and told Mrs. Clanton she would have to wait to see him in the morning. Several hours later, Mrs. Clanton was admitted to the hospital, and, later, experienced paralysis. Id at 694.
Mrs. Clanton brought a medical negligence action against Dr. Von Haam alleging he owed her a duty of care. Dr. Von Haam moved for summary judgment arguing that there was an absence in physician-patient privity. The Court of Appeals agreed with Dr. Von Haam and held that Mrs. Clanton never relied upon any medical advice whatsoever from Dr. Von Haam and that she was in no way dissuaded from seeking medical attention elsewhere as a result of the conversation. Id. At 697. The Georgia Court of Appeals further reasoned that Mrs. Clanton ultimately sought to recover, not on the basis that Dr. Von Haam actually afforded her negligent treatment which she then followed to her injury, but solely on the basis that Dr. Von Haam refused to initiate non-negligent treatment by which she might have avoided injury. Id. The Clanton court reasoned that there was never a consensual transaction between Mrs. Clanton and Dr. Von Haam regarding her current physical condition, therefore no relation was created which gave rise to any professional duty. Id.
A few years later the Georgia Court of Appeals explored the creation of the physician-patient relationship again in Minster v. Pohl. Candler General Hospital, Inc. et al., 206 Ga.App. 617 (1992). In Minster, Mary Hattrich underwent surgery, and post-operatively a breathing tube and a nasogastric feeding tube were inserted. Ms. Hattrich pulled out the tubes, and the feeding tube was reinserted by Dr. Hines. Dr. Hines then asked Dr. Phol, the emergency room doctor on duty, to view an x-ray to verify placement of the tube. Dr. Phol interpreted the x-ray and determined that the tube was improperly placed in Hattrich’s right lung instead of her stomach. A pneumothorax was later discovered in the Ms. Hattrich’s right lung, which eventually led to her death. Id.
Plaintiff Minster brought a medical negligence action against Dr. Pohl alleging that Dr. Pohl was negligent in failing to recognize the development of the pneumothorax, which was visible on the x-ray. Id. at 618. Much like in Clanton, Dr. Phol moved for summary judgment arguing he owned Ms. Hattrich no duty of care due to an absence of a physician-patient relationship. The Georgia Court of Appeals agreed. In finding that there was no physician-patient relationship, the Court of Appeals reasoned that although Dr. Pohl unquestionably took action with respect to the Ms. Hattrich, viewing the x-ray and making a notation on her chart, nothing in the record showed that Dr. Pohl was acting as her doctor. Id. at 620.
The Georgia Court of Appeals explored the physician-patient relationship once more in Pham v. Black, 347 Ga.App. 585 (2018). In Pham, Mr. Black arrived at the emergency department by ambulance complaining of a racing heart rate. Dr. Pham was the only night-shift hospitalist on duty and had the ability to admit patients from the emergency department. The emergency department physician, Dr. Trinh, paged Dr. Pham and informed her that he had spoken with Dr. Abraham, the on-call cardiologist. A series of text messages and conversations between the physicians ensued while they discussed whether or not to admit Mr. Black. Dr. Pham never saw Mr. Black as a patient. Mr. Black eventually coded, was transferred to another hospital and died the next day. Id. at 586-587.
Dr. Pham was sued for medical negligence, and she moved for summary judgment in the basis that there was no physician-patient relationship that existed. The Georgia Court of Appeals pointed out in its reasoning that Dr. Pham never met Mr. Black and did not participate in his diagnosis or his treatment. Instead, Dr. Pham’s sole involvement with Mr. Black was consulting with his treating doctors regarding whether he should be admitted to the hospital and ultimately refusing to admit him. Id. at 588. The Court of Appeals held that Dr. Pham and Mr. Black did not have a doctor-patient relationship. Id.
The good news is that Georgia law is consistent in defining the parameters what creates a physician-patient relationship. For the past thirty years, the Georgia Court of Appeals has consistently found that the physician-patient relationship is one of a consensual transaction where the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient. Absent any treatment and/or direct contact with a physician, the Georgia courts have made it clear that no physician-patient relationship exists and are inclined to grant summary judgment on behalf of the defendant physician on the issue.