And, with the evolution of medical specialties in response to new technologies, requests for consultations will only increase. As history shows, the expansion of medical technologies is often coupled with the need for advanced division of labor and tools to implement the new body of knowledge, resulting in further sub-specialization of the medical profession. With advanced specialization comes the understanding that medical professionals may consult with other providers, especially when faced with a situation beyond the scope of his or her expertise. Seeking informal advice about patient care or an answer to an academic question from a colleague with a particularly relevant experience, improves patient care and the practice of medicine.
Yet medical professional liability (MPL) associated with such consultations has traditionally been viewed as a minimal—if not nonexistent—risk, based on the general understanding that no duty was owed to a patient unless care was provided in the context of a physician-patient relationship. Although the Minnesota Supreme Court recently deter- mined in Warren v. Dinter that a physician-patient relationship was not necessary to commence a medical negligence action under Minnesota law, that change is unlikely to result in an uptick in MPL claims—and certainly should not increase the number of viable claims against providers.
In August 2014, plaintiff Susan M. Warren saw nurse practitioner Sherry Simon at the Essentia Health Hibbing Clinic with complaints of fevers, chills, worsening abdominal pain, and a cough that she attributed to inhalation of welding fumes. Simon performed a multitude of lab tests, which returned several abnormal results, including a blood glucose level of 422 mg/dL and white blood cell count of 20,000. Simon initially sent Warren home, but later asked her to return for a urinalysis.
The parties dispute the time at which Simon spoke to Dr. Richard Dinter, but, at some point before or after urine testing was ordered, she called Fairview Range Medical Center (Hibbing Hospital) and was randomly assigned
to Dinter, one of the three hospitalists employed by Fairview Range Medical Center to help manage hospitalized patients. The Essentia Health Hibbing Clinic is a completely separate corporation and medical system with no formal contracts between the clinic and hospital. If, however, a doctor or nurse practitioner at Essentia Health Hibbing Clinic wanted to admit a patient to the hospital, he or she could call the hospital and speak to the hospitalist randomly assigned to the call.
In this case, Dinter did not note his phone conversation with Simon, although Simon documented that she discussed lab results with him and that he did not believe the patient needed to be hospitalized. Rather, Simon noted that Dinter thought she should treat the patient for diabetes and ask the patient to return for follow-up care. Both medical providers agreed that Simon never asked Dinter to admit the patient and that, had she asked him to do so, Dinter stated that he would have completed the formal process. Dinter was not provided with any written information, did not have access to the Essentia medical records system, and did not meet with or examine the patient. Neither Dinter nor the hospital billed—or were compensated—for services, and the defendants made no entry in Warren’s medical chart regarding that conversation.
After speaking to Dinter, Simon contact- ed another physician employed by Essentia because she was concerned about the patient’s elevated white cell blood count. In response to questioning from Simon, that physician also told her that an elevated white count could be caused by diabetes and agreed that hospitalization was not necessary. After that conversation, Simon sent the patient home without further testing. Warren died the following day as a result of an overwhelming staph infection.
The lawsuit
The next of kin initially sued Simon and Essentia Health and, after settling that action, brought a lawsuit against Dinter and Fairview Health Services. The plaintiff ’s primary argument for the existence of a patient-physician relationship was the claim that Dinter had acted as a “gatekeeper” for the hospital. The plaintiff also argued that Dinter would have entered into a physician-patient relationship if he had provided direct care to Warren or acted as a consultant to other treating medical providers at the hospital.
Here, the district court explained that a physician is liable for MPL when a physician-patient relationship exists, which typically arises in one of three circumstances. First, a physician-patient relationship may arise— even in the absence of direct contact with the patient—when other medical providers con- tract with a third-party physician to perform services on behalf of the patient. For example, examination of a tissue slide by a pathologist as part of the patient’s course of treatment creates a physician-patient relationship. Second, a physician-patient relationship may be created when it is reasonably foreseeable that a patient would be injured if the provider negligently provided advice. And third, a physician-patient relationship may arise when a contract between a physician and medical provider requires the physician to provide direct care, guidance, and direction to other medical providers.
The district court, finding that Dinter never saw Warren, did not offer treatment to her, and did not even know her name, but instead received only limited information about her from Simon, concluded that the conversation between Dinter and Simon did not create a physician-patient relationship. Instead, the court explained that Simon’s request for an informal opinion regarding Warren—in the absence of a formal consultation relation- ship—was in the nature of an informal conversation between medical colleagues. In arriving at that conclusion, the district court noted the strong public policy-based reasons for not discouraging such conversations.
The issue before the Minnesota Court of Appeals was whether a physician-patient relationship existed between Dinter and the decedent. The appellant argued that a physician- patient relationship existed between Dinter and Warren—even in the absence of a contractual agreement—because Dinter consented to be responsible for Essentia patients generally, and Warren specifically, by previously answering calls from medical providers at Essentia, evaluating patient symptoms, and admitting clinic patients to the hospital. The court of appeals disagreed and noted in a split decision that there was no case in Minnesota holding that a past practice or working relationship was sufficient to establish such a duty.
The court of appeals further rejected the appellant’s argument that Dinter’s role as one of the three physicians assigned to respond to such calls and make admissions-related deci- sions created a duty of care when making those decisions. The majority conceded that Dinter owed a duty of care to patients that he admitted to the hospital but confirmed that a prerequisite of the creation of that duty was the individual’s status as his patient. Indeed, the majority explained that cases in which consultation has given rise to a professional-client relationship have required one of two conditions: (1) clear consent on the part of the professional to take on responsibility for the client or, (2) in the absence of consent, a meeting during which the professional provides advice to the client. Consequently, the majority explained that calls alone are insufficient to give rise to a duty and affirmed the decision of the district court.
The Minnesota Supreme Court, however, clarified that it has never held that a physician- patient relationship was necessary to maintain a cause of action in Minnesota. Instead, where a physician-patient relationship does not exist, the question is whether a tort duty is created by foreseeability of harm—not whether a contractual relationship exists. In the absence of a physician-patient relationship, the state Supreme Court, therefore, explained that a legal duty arises only when the patient’s reliance and resulting harm are foreseeable. In essence, a physician’s duty always arises out of a physician-patient relationship but may also be created when the risk to another or others falls within the range of apprehension.
Viewing the record in the light most favorable to the petitioner, the state Supreme Court concluded, in a split decision, that it could not determine as a matter of law that Dinter could not have foreseen that Warren would rely on his opinion and sustain an injury as a result of Dinter’s departure from the standard of care. In arriving at that conclusion, the Supreme Court determined that Warren sought entry to Fairview’s hospital through Dinter, its gatekeeper, and that it is a reasonable inference that Dinter knew, or should have known, that a negligent decision not to admit Warren could cause her harm.
Yet the Minnesota Supreme Court noted that its holding must not be interpreted as applying to informal consultations between medical providers. The Supreme Court expressly stated that the interaction at issue did not constitute a curbside consultation or professional courtesy because Simon did not call to consult with a colleague regarding a possible diagnosis—she called pursuant to Fairview’s protocol for hospital admissions. Accordingly, the Supreme Court reached the narrow holding that hospitalists—when they make hospital- admission decisions—have a duty to adhere to the applicable standard of care.
Does this decision presage similar suits?
At first glance, the state Supreme Court’s holding appears alarming, and medical providers would feel justified in questioning how this decision might impact their practices, especially as medicine continues to subspecialize. But it is unlikely that this decision will open the floodgates resulting in an upsurge in medical negligence actions in the State of Minnesota. As a threshold matter, the Supreme Court’s holding should be narrowly construed, limiting its application to causes of action in which a plaintiff alleges his or her injury was the result of a hospitalist’s departure from the standard of care when making hospital- admission decisions. And as a practical matter, it is unlikely that the allegedly injured party would prevail at trial. In order to do so, members of the jury would need to determine that (1) the plaintiff had offered qualified expert testimony to establish the applicable standard of care, (2) the defendant had deviated from that standard as a result of his or her participation in a conversation with a colleague, and (3) the medical provider’s action or inaction during that conversation was a direct cause of the patient’s injury.
We are hopeful that members of the jury will refuse to assign negligence in circumstances in which providers have no contractual obligation to render services to the patient, no contact with the patient, are unable to access patient charts, do not charge the patient for the conversation, and do not even know the patient’s name.