Action, Affiliation, and a Duty of Care: Physicians’ Liability in Nontraditional Settings

By Saniya Suri

As healthcare delivery options drastically expand and change, patients and physicians continue to interact in unique ways. These interactions have become more complex and unconventional, challenging courts to establish whether a duty of care exists between the physician and patient in these new situations. Courts that answer this duty question affirmatively do so either by applying a more capacious understanding of the traditional physician-patient relationship or by deeming foreseeability of harm and reliance sufficient under certain circumstances, even in the absence of an actual physician-patient relationship.

This Note investigates this unresolved duty question in two contexts: curbside consultations—when a physician is informally consulted by a peer physician to give advice on a case—and when on-call physicians make healthcare decisions without directly contacting the patient. This Note argues that in the context of curbside consultations, courts should find that providing advice alone is insufficient to create a duty of care unless there is an affirmative act associated with it. In the context of on-call physicians, a physician’s on-call status alone should be insufficient to create a duty of care unless there is a significant degree of affiliation between the on-call
physician and the patient’s case.