Legal pearl

An On-Call Clinician’s “Duty of Care”

Ann W. Latner, JD

  • A patient presented to the emergency department with her husband where they reported that earlier in the evening she had suffered stroke-like symptoms for about a minute. The treating physician concluded that the patient had a complex migraine—since she had a history of migraines—and complex migraines can have symptoms mimicking a stroke.

    But the treating physician decided to call the on-call physician, who is a neurologist, to confirm this conclusion. After a phone conversation that lasted several minutes, the neurologist agreed with the treating physician’s assessment and diagnosis. The patient was released without having a CT scan that would have differentiated between migraine and stroke.

    After returning home, the patient suffered a severe stroke leaving her with permanent disabilities. She sued both physicians and the hospital. The neurologist moved to have the case against him dismissed since he’d never met or talked to the patient, and thus had no doctor-patient relationship and owed no duty of care. Although a district provided a summary judgment in favor of the neurologist, an appeal was made.

    Was the on-call neurologist in a doctor-patient relationship?

    (Answer and discussion on the next page)