Day on Torts
Do you remember Kelley v. Middle Tennessee Emergency Physicians, P.C., 133 S.W.3d 587 (Tenn. 2004), when the defendant tried to claim that he owed no duty to the plaintiff because he was not the plaintiff’s regular doctor? The defendant was called by the emergency room doctor and gave the doctor advice that allegedly turned out to be wrong. The defendant said his advise was a "curbside opinion" and did not give rise to a duty of care to the patient. The Tennessee Supreme Court respectfully disagreed and said an issue of fact existed on the subject. (Note: the Court also made it quite clear that they thought the defendant’s argument that there was a mere "curbside consultation" based on the "undisputed facts" was a stretch – see text accompanying fn. 17 in the opinion).
Well, the nice folks in Mississippi just had a "sidewalk opinion" case. The defendant doctor there said he did not owe a duty to the patient to give the patient’s treating physician the right advice when the treating physician called and sought and opinion before referring the patient to the defendant for treatment. In Scafide v. Bazzone, NO. 2004-CA-01658-COA (Miss.Ct. App. 9/12/06) the Court held that the defendant did not have a duty.
The key language from the opinion:
"[W]e now turn to whether a duty arose when [defendant] Dr. Bazzone discussed his reaction over the telephone to the medical information orally discussed with him by [treating physician] Dr. Ross on March 14. Described was an unidentified patient who had an aggressive tumor that showed signs of being cancerous. Dr. Bazzone did not render an opinion concerning whether the tumor was cancerous or diagnose the illness during the conversation with Dr. Ross. Dr. Bazzone accepted the diagnosis given by Dr. Ross and agreed with the treatment approach. He also stated that based on what he was told, he would proceed without surgery that would gain tissue for a biopsy. The conversation between Dr. Ross and Dr. Bazzone could in some ways be compared to the situation of Dr. Ross’s consulting a medical treatise or manual on the treatment for a glioblastoma. Without seeing a patient or having any other personal knowledge, Dr. Bazzone gave an opinion that serves the public policy purpose to encourage and not discourage such conversations. The followup to the conversation was to be an examination by Dr. Bazzone. That exam never occurred because [decedent] Ms. Goss declined. No duty by Dr. Bazzone arose from this informal consultation."
So, does the fact that Mississippi reached this result in a "sidewalk opinion" case mean that our justices erred in our alleged "curbside consultation" case?
No. In the Tennessee case, a key fact was that the defendant was the on-call physician for the plaintiff’s regular doctor. When the emergency room tried to call the regular doctor for input, he got the on-call doctor. The patient-physician relationship arguably existed by reason of the on-call relationship (within the same group) and therefore it is only fair that a duty should be found to exist. That relationship was not present in the Mississippi case.
My criticism of the Tennessee case is that the Court should have held that a physician-patient relationship existed as a matter of law.