In brief
- When you offer a clinical comment or opinion that you know or ought to know others will likely rely on to make decisions about a patient’s care, you might be found to owe that patient a duty of care—even if you never met the patient.
- An informal discussion between colleagues in the hallway, over the phone, electronically, or online can give rise to the risk of a legal action or College complaint for the consultant physician even if they do not directly assess the patient.
- Before you offer medical advice using any communication channel, assess whether you have enough relevant information about the patient and the clinical facts—ask questions, review additional documents, or offer to see the patient where appropriate and necessary to provide an opinion.
Case study: Child’s open fracture missed
An eleven-year-old patient arrives in the emergency department (ED) with a fractured radius and ulna with minimal displacement. They also have a small puncture wound on the forearm. The ED physician shows the X-rays to the on-call orthopaedic surgeon, who is in the department seeing another patient. The surgeon looks at the X-rays, but isn’t told and doesn’t ask about other pertinent details about the patient. They tell the ED physician the alignment seems acceptable, and advise dressing the wound, casting it, and arranging a clinic follow-up in one week. The surgeon’s misunderstanding is that the wound is only an abrasion. They do not see or assess the patient or any other parts of the patient’s record besides the X-rays.
The wound, in fact, is a significant finding. It is a result of a compound (open) fracture. The patient develops infection, compartment syndrome, and tissue necrosis. Their family launches a legal action. They also complain to the College about the ED physician and the surgeon.
The orthopaedic surgeon has difficulty accepting any responsibility for the care in this case since they had not actually seen the patient. However, the court found that they did indeed owe a duty of care to this patient since they had agreed to discuss the case with the ED physician, reviewed their X-rays, and provided an opinion on care that they knew or ought to have known would be relied on by the ED physician in treating the patient.
What the courts say about duty of care
The question of whether a duty of care is created can only be answered by the courts following consideration of the facts of each case. A duty of care is most often found to exist when there is a traditional doctor-patient relationship. However, a duty of care to provide appropriate advice in accordance with the relevant standard of care can arise in circumstances beyond this traditional relationship. At least one Canadian court (in Crawford v Penney) has suggested that a physician may owe a duty of care where the consultant physician does not see or interact directly with the patient, such as when giving advice to a colleague during an informal hallway discussion about a patient.
An important consideration in determining whether a duty of care is created is whether the consultant physician knew or ought to have known that their advice would be relied on to make clinical decisions regarding the patient’s care. In the scenario involving the young patient who fell, the court found that the orthopaedic surgeon owed the patient a duty of care, in part, because they knew, or ought to have known, that the ED physician would rely on the advice and recommendations in these circumstances.
If the court finds that the consultant physician owes a duty of care to the patient, the next consideration will be whether the physician met the applicable standard of care in providing advice about the patient’s care. The standard will be determined by the court based on accepted practices of the profession at the relevant time.
One of the questions that courts will consider in assessing whether a consultant physician acted in accordance with the standard of care is whether the physician had sufficient information to comment on a potential diagnosis. In the case of the young patient, the College found that despite reviewing the X-rays, the orthopaedic surgeon provided advice based on limited information. They did not review other clinically relevant information, such as the patient’s history, the details of the accident, or the presenting injuries.
Before offering an opinion that might be relied upon in treating a patient, it is important to ensure you have sufficient information to comment or provide a clinical opinion about the patient’s diagnosis or treatment options.
Documentation
Giving advice in “hallway” or “corridor” consultations is an important and necessary part of clinical practice and good patient care. But when providing such advice or consults, you need to consider that you may owe the patient a duty of care—even if you have not seen the patient in person.
If you do provide advice, make reasonable efforts to document any information and advice you have given. While in some cases you may be constrained by factors such as whether you know the patient’s name and whether you have access to the patient’s medical record, your hospital or institution may have policies or protocols for documentation in these circumstances.
