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  • Taking Chances2:24

State courts in New York and Washington have ruled that physicians have a legal obligation. in addition to their moral and professional obligation, to tell the truth about a patient’s medical condition. In the New York case, a doctor tried to sidestep a court dispute between a patient and her health insurer by not being truthful about his medical judgment.

The case of Aufrichtig v. Lowell began in 1990, when the Hartford Insurance Company reduced coverage of skilled nursing care for Janet Aufrichtig from 24 hours a day to six hours day. Mrs. Aufrichtig suffered from multiple sclerosis, was bedridden, and at times unable to speak. The patient's husband sued the insurer, asking the court to reinstate the coverage to 24 hours per day.

During the discovery stage of the lawsuit, the physician gave the insurance company deposition and affidavit testimony that his patient needed skilled nursing care only 6 hours a day. He stated that during the remaining hours of the day, a home health aide would be appropriate. On the eve of the bench trial, however, the physician took an about face. He recanted his prior testimony, saying that it did not reflect his opinion. He stated that he initially went along with the insurance company's position hoping to avoid having to testify at the trial.

The plaintiffs claimed that the federal judge pressed them to settle the case, suggesting that the conflicting statements bad left them with no chance to win. After settling the case with the insurance company, the plaintiffs sued the doctor on the grounds that his false testimony cost them insurance coverage for full-time nursing care.

The trial court dismissed the claim. On appeal, however, the New York Court of Appeals concluded that liability against a physician "may arise where a duty obtains, if one speaks at all, to provide truthful information. “The rationale is that treating physicians hold fiduciary obligations to their patients. This court's decision builds on a physician's duty of confidentiality, well recognized in every state.

The New York ruling requires that physicians who are authorized to supply otherwise confidential medical information must be truthful Any physician in New York now who provides false information may not only be open themselves to professional misconduct charges but also to a claim for civil monetary damages by the patient.

In a second case, from the state of Washington, a physician face legal trouble when he contradicted what he told a patient.IN the case of Phillip Sly v. Linville, a physician was held liable for statements he made to a subsequent treating physician. The patient in this case had been unhappy with the medical treatment he received from his prior physician. When he asked the new physician what the thought about the quality of his prior treatment, the defendant told him that nothing out of the ordinary had happened. He told the patient not to worry because he decided not to sue the previous physician for malpractice.


Subsequently, the patient moved to another state and began seeing a third physician. The patient later discovered, however, that the second physician had written a letter to the most recent physician, criticizing the first doctor's care—contradicting what he had previously told the patient. The patient responded by suing the second physician for his prior misstatements. The plaintiff claimed that the misleading statement precluded him from suing his first physician. The patient was successful in this claim and recovered an undisclosed sum of money.

These cases illustrate the legal risks of not speaking truthfully and factually about a patient’s medical condition. In New York, the state’s highest court has ruled for the first time that physicians owe a duty to patients to provide truthful medical information about them. The Washington case underscores the duty to be truthful to the patient.

A physician may feel uncomfortable commenting about a prior physician’s treatment. This is understandable and it certainly is not required of a treating physician to use hindsight to critique the quality of another physician's care. However, one should not cross the line and tell an untruth, either.

If a patient asks for an opinion about the quality of a pervious doctor’s decision making, and you choose not to give such an opinion, a physician might say “I really would prefer not to offer an opinion because I wasn’t privy to what the doctor saw then, and the physiology and symptoms can change from one evaluation to a later one. I think the most useful thing would be to take the information we have before us now and move forward with your care from here.”

A physician might also refer the patient to a colleague more willing to perform an independent review of past and present medical records. Such an approach would help distinguish the role of the doctor as a treating physician as opposed to an expert witness.

When a patient does not prompt a physician to comment on the quality of a previous caregiver's treatment, it is not necessary to initiate such comments.. However, to assist in comparison of clinical change over time and across transitions from provider to provider, it is a valuable practice to objectively document the patient’s medical history and to state the patient’s condition at the time one assumes care. This can be accomplished with a detailed and factual summary of the patient’s clinical situation being placed in the medical record and should result in the patient receiving the appropriate medical care from that point forward.  

Duty to Tell the Truth

by Attorney Frank E. Reardon

November 1995