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In the case of Pope V. St. John, a 1993 Texas Court of Appeals decision, the plaintiff presented at the emergency room of the Central Texas Medical Center, complaining of back pain and fever. The emergency Room physician examined Mr. Pope and then consulted over the telephone with Dr. Holland St. John. Dr. St. John is a board-certified internist who was "on call." The ER physician told Dr. St. John that he was evaluating a patient with fever, back pain and a history of recent back surgery and epidural injections. Dr. St. John's specialty was neither neurology nor neurosurgery, and the ER was not able to handle cases involving those specialties. He recommended that Mr. Pope be referred to a hospital with the proper facilities or to the physician who had performed the recent back surgery. Dr. St. John had no further involvement with the patient or his case.

The patient left the center against medical advice after an attempt to transfer him to a nearby hospital failed. The next day, Mr. Pope went to another hospital by ambulance. There, a lumbar puncture revealed that he suffered from meningitis. Mr. Pope eventually; brought suit against Dr. St. John as a proximate cause of his injuries. He claimed that the on-call physician should have considered an infectious process, and his the recommendation to move him to another hospital delayed the patient's treatment unnecessarily, causing permanent damage.

Dr. St. John moved for summary judgment on the grounds that he never diagnosed, cared for or treated the patient, and thus no doctor-patient relationship existed between them. Without such a relationship, Dr. St. John argued that he owed Mr. Pope no duty of care on which a claim for negligence could be based. The trial court dismissed the case and Mr. Pope appealed.

At the appellate court, Dr. St. John maintained that the scope of a physician's duty is limited to those with whom he contracts, expressly or implicitly, regarding treatment. He said he didn't contract with Mr. Pope, so there was no duty of care. The courthnoted, however, that "the law imposes upon all persons, physicians not excepted, a duty to act as a reasonably prudent person would act under the same or similar circumstances, considering any reasonably foreseeable risk." The court also held that a pre-existing legally-defined relationship was not the requirement that gave rise to the duty of ordinary care, but rather the circumstances involved. This duty arises when a person of ordinary common sense would recognize that his acts would place another in danger.

Therefore, when Dr. St. John identified Pope's ailment, based on the information supplied by the emergency room physician, he assumed a legal duty to act with ordinary care, including his diagnosis of the patient and his determination that he was not qualified to treat the ailment. This would be true, even if it were determined that the physician acted voluntarily, free of any contractual or common law obligations. Dr. St. John, as the internist "on-call", should have recognized that the ER physician and the patient would rely on his diagnosis and treatment recommendations. As a result, his failure to recognize the possibility of an infection in this case gave rise to the liability.

Doctors, therefore, need to realize that when they offer an opinion in a medical matter that can be reasonably calculated to be relied upon, they will be held to the professional standard of care, regardless of whether or not a typical doctor-patient relationship appears to exist. Once a doctor sets out to diagnose or render care --as in an "on-call" situation, he or she has assumed the duty to act as a reasonable doctor, and will be held to that heightened standard. This can happen anytime, anywhere. lf a doctor gives an opinion after listening to the history, and that opinion is subsequently relied upon by the other person to their detriment, the doctor may be found negligent.

Medical Consults with Another Physician

by Attorney Frank E. Reardon

November 1994