Public Health Law Map - Beta 5 - Medical and Public Health Law Site

must carry out these actions correctly—perhaps by calling the emergency room
later and inquiring after the patient.
A physician who listens to a patient’s complaints and then recommends no
treatment is implicitly telling the patient that he or she does not need immediate
medical services. Usually the physician does intend for the patient to assume that
he or she does not need further medical care. Occasionally, however, the physician
does not want to treat the patient personally; he or she does not intend to imply that
the patient does not need medical care. Once a physician has listened to the
patient’s complaints, he or she has assumed a limited duty to that patient. It is this
limited duty that creates the inference that not prescribing treatment is the same as
telling the patient that he or she does not need treatment. A physician who does not
want to accept responsibility for the patient must pass the patient on to another
physician. This must be done expeditiously to avoid responsibility for determining
that the patient is not in need of immediate care.
Prescribing medication is an exercise of independent medical judgment and creates
a physician–patient relationship. It does not matter whether the physician
recommends a prescription drug or an over-the-counter medication.
Recommending aspirin is just as much as an exercise of judgment as prescribing
digitalis. Telling the patient to “take two aspirin and call the office in the morning”
assumes that the physician has ruled out the presence of any serious conditions that
would require prompt attention. Recommending treatment over the telephone is
best reserved for patients with whom the physician already has a relationship. If the
physician has not seen the patient before, he or she does not have the necessary
context to judge the patient’s condition. Is a headache due to a cold or out-ofcontrol
blood pressure? When dealing with existing patients, the physician must
ensure that he or she has enough information to evaluate the patient’s condition
properly. If the physician has not seen the patient recently enough to remember him
or her accurately and does not have the patient’s chart available, the patient should
be seen or referred to an emergency room.
All telephone conversations that involve medical decision making should be
documented. If the call concerns an existing patient, the record of the call should be
added to the patient’s chart. If the call involves a person that the physician accepts
as a new patient, a preliminary record should be opened for that patient. If the call
involves a person whom the physician refers to another medical care provider,
including an emergency room, a referral record should be created. These records
have two purposes. For existing patients, recording telephone calls is necessary to
ensure that the patient’s medical chart is complete. For persons who are not
patients, the record of the call prevents later misunderstandings about what the
physician told the patient. The record should contain the time and date of the call,
the identity of the caller, how he or she came to call the physician (name out of the
telephone book, for example), the nature of the complaint, exactly what the
physician told the person, and where the patient was referred.
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