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

attendant duties. When they exercise independent medical judgment, they enter into a
physician–patient relationship with their invisible clientele. [Bovara v. St. Francis
Hosp., 700 N.E.2d 143 (Ill. App. 1 Dist. 1998)] Because these specialists usually
perform their work at the request of a primary treating physician, they often see their
duty as flowing to the physician rather than to the patient—a concept that creates
risks for the patient and both physicians.
Most of the work of radiologists and pathologists does not involve directly dealing
with the patient. Nonetheless, they have a relationship with the patient to the extent
that they interpret tests or otherwise exercise medical judgment on the patient’s
behalf. In these cases, the courts consider the physician who ordered the test as the
patient’s agent who creates a physician–patient relationship with the consultant on
the patient’s behalf. 3 If the test is negligently interpreted, the consultant will be liable
for whatever damages the patient suffers.
Generally the courts find that passing the information about abnormal test results on
to the ordering physician satisfies the consultant’s duty to the patient. [Townsend v.
Turk, 218 Cal. App. 3d 278, 266 Cal. Rptr. 821 (Cal. App. 4 Dist. 1990).] The
problems arise in how this is done in situations where the consultant finds a
condition that requires urgent treatment, but has reason to know that the ordering
physician is unaware of the urgency. This will usually involve either ancillary
findings, or unanticipated findings. Although there has been little litigation on the
point, at least one court has found that there can be a duty to directly contact the
ordering physician or the patient. [Phillips v. Good Samaritan Hosp., 416 N.E.2d 646
(Ohio App. 2 Dist. 1979).] In another case, the report the radiologist sent never
reached the ordering physician. The court found the radiologist could be liable for
any injuries occasioned by delay or improper treatment due to the
miscommunication. [Merriman v. Toothaker, 515 P.2d 509 (Wash. App. Div. 2
1973).]
This is an area where managed care and its weakening of the relationship between
the patient and the treating physician can be expected to increase liability. The legal
opinions on duty to inform patients of test results make it clear that the remedy lies
against the treating physician if that physician has been properly informed by the
consultant, but against the consultant if there has not been a proper warning. To the
extent that the consultant cannot reasonably expect that reports will be promptly
acted on by the receiving physician, or that the reports may not reach the treating
physician at all, the courts will probably be willing to find that there is a duty to
inform the patient directly. A report addressed to a clinic, or to the physician of the
day, may not be seen by a jury as properly discharging the duty to inform the patient.
a) Radiology
The usual system for providing radiology services in a hospital is a contract
between the hospital and an individual physician or a practice group. The group
agrees to supervise technical personnel and to read and interpret all tests. The
hospital gives the group an exclusive contract to provide these services and
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