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Cogan’s Corner – Physician-Patient Issues

The following Cogan’s Corner column appeared in the May 3, 2012 edition of the Chicago Daily Law Bulletin.

People must meet physician-patient issues head-on at the outset

Illinois courts have been carrying out the parameters of the hospital-physician-patient relationship for years. The 3rd District Appellate Court recently took a stab at this delicate issue holding that a 6-week-old baby who died of bacterial meningitis had no patient relationship with the hospital that gave her mom medical advice by telephone. The baby’s mother, unable to reach her pediatrician, called the hospital seeking medical advice for a high fever. The hospital representative commended that she was overreacting, advised her that her baby’s symptoms did not require immediate medical attention, prescribed Tylenol and told her to call her doctor in the morning. The baby died. The court held that the medical advice dispensed over the telephone did not create a physician-patient relationship because the hospital did not knowingly accept the baby as a patient.

Integral to the court’s decision was that the hospital informed the mother that it did not have the medical equipment or personnel to treat infants even though the child was born at that hospital a month before.

The panel also was swayed by public policy considerations, expressing concern that a contrary decision might impel hospitals to overreact to phone inquiries. Anytime a parent called and reported a child with a fever, the court reasoned the response would be: “Hang up and call 911 or drive your child to an emergency room.” Notwithstanding the likely benefits to the infants in this case from such advice, the panel believed that this result would benefit neither medical providers nor consumers. The court failed to contemplate the public policy implications of their ruling. Rather than encouraging hospitals to train telephone personnel to refer callers to a medical provider who can actually assist them, i.e. a physician on call at a local practice or a hospital that is equipped to treat such patients, the court unwittingly authorized the hospital to dispense flippant or untrained medical advice to callers with impunity. While this might stem emergency room crowds, it does nothing to advance the overriding public policy that hospitals provide high quality medical care to all citizens.

As plaintiff’s lawyers, we know that hospitals have a long tradition of attempting to sidestep their legal liabilities. Even after the promising seminal decision in Gilbert v. Sycamore Municipal Hospital, plaintiffs have struggled to prove a legal relationship between hospitals and physicians. To avoid liability, hospitals distance themselves from their doctors, effectively employing phantom physicians who occupy the operating rooms and emergency rooms but rarely perform medical acts in the name of the hospital. Physicians form separate legal entities or join hospital physicians’ foundations to promote the fiction that everything they do in the hospital is independent of it. While hospital marketing campaigns whitewash this issue. No hospital advertises that it has a skeleton staff of physicians who act independently of the institution. As a result, patients are left to negotiate the obstacle course that is apparent agency.

The case law that developed under Gilbert established two essential requirements for imposing vicarious liability on a hospital for the negligence of a physician, even if he or she is an independent contractor. A plaintiff must show that the hospital or its agent acted in a manner that would lead a reasonable person to conclude that the allegedly negligent physician was an employee/agent of the hospital. To satisfy this first prong, the plaintiff must further establish that the hospital had knowledge of, and acquiesced in, those acts of the physician that created the appearance of authority. Second, a plaintiff must have acted in reliance on the conduct of the hospital or its agent consistent with ordinary care. Conversely, if a patient knows, or should have known, that the physician was an independent contractor, the hospital escapes liability for his acts.

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If you have been injured in a personal injury or medical malpractice accident, do not hesitate to contact the Chicago accident and injury law firm of Cogan & Power at (312) 477-2500 to schedule a free case consultation, so that we can help you begin the process of recovery as soon as possible. If you cannot come to our offices in downtown Chicago, we will come to you. And because we take cases on a contingency basis, you will not pay any fee unless we get you compensation.