Professionals Beware

Is a physician-patient relationship a necessary predicate to a medical malpractice action?

No, according to the Minnesota Supreme Court, which reversed the grant of summary judgment against a medical provider that did not admit the patient despite her nurse practitioner’s recommendation.

This case arises out of an interaction between employees of two Minnesota health systems. A nurse practitioner in one system sought to have a patient admitted to the hospital of the other system. Admission was allegedly denied by a hospitalist. Three days later, the patient died.

She died of a staph infection. 

To be sure, most medical malpractice cases involve an express physician-patient relationship. And a physician-patient relationship is a necessary element of malpractice claims in many states.

But we have never held that such a relationship is necessary to maintain a malpractice action under Minnesota law. To the contrary: when there is no express physician-patient relationship, we have turned to the traditional inquiry of whether a tort duty has been created by foreseeability of harm.

A legal ethics chestnut from the distant past is a case that I teach in class one

We have applied the same principle to legal professionals. In Togstad v. Vesely, Otto, Miller & Keefe, Joan Togstad met with an attorney to discuss a potential medical malpractice claim on behalf of her husband, John. 291 N.W.2d 686, 689–90 (Minn. 1980) (per curiam). The attorney took notes and asked questions as Togstad told her story, and then said “he did not think [she] had a legal case.” Id. at 690. Relying on this statement, the Togstads did not pursue the claim for some time. Id. When Joan Togstad decided to investigate the claim again, she learned that the statute of limitations had run. Id. In response to a legal malpractice claim, the attorney and his firm argued that there was no attorney-client relationship between Togstad and the attorney and, therefore, that he and the firm owed her no duty of care.

We held that there was a duty, based on foreseeability of harm. The duty attached, we said, when legal advice was given “under circumstances which made it reasonably foreseeable to [the attorney] that Mrs. Togstad would be injured if the advice were negligently given.” Id. at 693.

In other words, although there was not an explicit attorney-client relationship, the attorney still owed Togstad a duty “derived from the professional relationship.” Molloy II, 679 N.W.2d at 717. It was reasonable for Togstad and her husband to rely on the attorney’s professional advice and foreseeable that both would be harmed if the advice was negligent. Id. at 718.

…for 100 years in Minnesota, a physician has had a legal duty of care based on the foreseeability of harm. Although ours is the minority rule, it is by no means unique. This rule has served Minnesota sufficiently well, and we have no compelling reason to overrule our precedent.

Justice Anderson dissented

At issue here is whether Dr. Richard Dinter owed Nurse Practitioner Sherry Simon’s patient Susan Warren a duty of care. Because it was not reasonably foreseeable that Warren, who never met or talked to Dinter, would rely on Dinter’s decision, reached in a single phone call between Dinter and Warren’s actual treating professional, Simon, there is no legal duty here. I therefore respectfully dissent.

In my view, no duty existed here. Dinter could not have reasonably foreseen based on this single conversation that Simon, who did owe a duty to Warren, would fail to make reasonable treatment decisions regarding her patient, including further infection-related testing of her patient or electing to move her patient to emergency care. Even viewing the evidence in the light most favorable to Warren, the record contains no evidence from which we can infer that it was reasonably foreseeable to Dinter that Simon’s single phone call and limited disclosure of information regarding her patient would be determinative in preventing further care for Warren, including hospitalization, if that is what the professional who was actually treating Warren—Simon—deemed necessary for her patient. Concluding that Dinter owed a duty to Warren under these facts stretches foreseeability too far.

The case might be called Palsgraf for doctors

By concluding that a duty exists in these circumstances, the court introduces confusion into the law governing tort claims based on professional relationships. The court acknowledges that although Simon worked in a healthcare system that provided for “collaborative management,” see Minn. Stat. § 148.171, subds. 3, 6, 11, 13 (2012), Simon’s collaborating physician was not her supervisor, and Simon had her own “authority, based on [her] training and licensing, to provide . . . direct care” to patients. These points are difficult to reconcile with the court’s conclusion that Dinter should have foreseen that his discussion with Simon about her patient’s condition—a discussion far less formal than the collaborative relationship between Simon and Baldwin—would be relied on by Simon, and derivatively, by her patient.

The fact that Dinter interacted with another medical professional, who then interacted with the party asserting that a duty was owed, is the critical distinction from the cases cited by the court. None of our previous decisions on which the court relies imposed a duty on a professional in the absence of an actual interaction between that professional and the party that claimed the duty was owed…

Skillings, Togstad, and Molloy show that reliance by persons who seek out the advice of professionals may be reasonably foreseeable even in the absence of an express contractual relationship between those persons. These cases do not, however, address reliance by professionals on the advice of other professionals, the circumstances that prevail here, and for good reason.

As the court of appeals observed, the most immediate result of the court’s expansive holding is that hospitalists who wish to avoid liability must “refuse to take calls from other professionals to discuss potential hospitalization of those professionals’ patients.” Warren v. Dinter, No. A17-0555, 2018 WL 414333, at *4 (Minn. App. Jan. 16, 2018). This new rule is unlikely to serve Minnesotans well, particularly those who may have access to primary health care but lack access to a deep network of medical specialists.

Parade of horribles

Today’s expansion of duty also has a broader impact. The informal conversation that occurred between Simon and Dinter is not unique to the medical profession. Lawyers, accountants, architects, engineers, and other professionals often engage in similar conversations with their colleagues—brief conversations, by telephone, on complicated topics, without formal transfer of paperwork, and without follow-up, that serve as a reasonable means of evaluating professional decisions and judgment calls. Often, the subject of these conversations—the client, the patient, or the customer—is unaware of the exchange. And, just like in this case, the professional that seeks the input of colleagues will take that input into consideration in making final decisions, such as Simon did here in turning to Baldwin and in deciding to discharge Warren without further consideration of hospitalization.

But if these kinds of conversations create a duty, and thus potential liability, then no prudent professional will share insight, ideas, and recommendations with a colleague “without a promise of indemnification,” Ford v. Applegate, No. B159756, 2003 WL 22000379, at *7 (Cal. Ct. App. Aug. 25, 2003), as amici persuasively argue.

Chief Justice Gildea joined the dissent.

Update: there is a problem with the link. The case is Justin Warren v. Richard Dinter, et al., Respondents, decided April 17, 2019.  (Mike Frisch)