Physician/Patient Relationship: Legal Concerns

June 26, 2020 | Ambulatory Care Risk Management

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![](/_layouts/images/icpdf.png)The ​​Road to the Correct Diagnosis

Safe and effective medical care begins with and must be grounded in a satisfactory physician-patient relationship. Physicians owe various duties and obligations toward their patients, both legal and ethical. Understanding and fulfilling these duties is sometimes straightforward, other times complex, both legally and ethically, but building a solid physician-patient relationship will help ensure high-quality care for patients as well as help protect providers against malpractice claims.

To understand the basis of the physician/patient relationship, it may help to understand what can go wrong, based on the four elements that the plaintiff must show in order to bring a successful lawsuit for medical malpractice:

The physician's duty to act arises from the physician/patient relationship, which involves a mutual agreement: the physician agrees to treat the patient and the patient agrees to be treated by the physician. Whether a physician has a duty of care toward a person depends on whether he or she has established a relationship with that person as a patient. Establishment of a physician/patient relationship is usually straightforward, but complicated issues may arise in situations in which one physician asks another physician for advice in treating a particular patient (i.e., in consultations).

Ascertaining whether a relationship exists may also be complicated in the case of hospital medicine specialists, when the hospitalist does not have a prior relationship with the patient he or she is treating. Similarly, for physicians taking on-call shifts, and for physicians practicing telemedicine, exactly when a "physician/patient relationship" exists may be unclear (in the case of telemedicine, for instance, the existence of a "relationship" does not depend on the physician actually seeing the patient). ­

A physician/patient relationship must always be based on consent. Two basic forms of consent are general consent and informed consent. General consent can usually be addressed by having the patient sign a standard form at the inception of the relationship. Failing to obtain general consent may give rise to a claim for medical battery, although the damages for such a claim are often minimal.

Informed consent is required whenever the physician contemplates performing an invasive procedure or treatment that carries a material risk of harm and requires that the physician discuss the risks and benefits of, as well as the alternatives to, the proposed treatment. The requirement to obtain informed consent is a nondelegable duty of the provider who is going to perform the procedure. Informed consent is also required in...

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