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. 2022:72:42.

UNLIMITED MEDICAL LIABILITY?

Jessica L Roberts  1 , Leah R Fowler  1 , Paul S Appelbaum  2
Affiliations

UNLIMITED MEDICAL LIABILITY?

Jessica L Roberts et al. Emory Law J Online. 2022.

Abstract

Pursuant to the standard account of the law, physicians only owe special legal duties within the confines of an established treatment relationship. However, this well- accepted adage of black letter medical malpractice law does not, in fact, reflect reality. Indeed, the physician-patient relationship is rarely well-defined, and-perhaps more troublingly-courts have been willing to find liability outside of its boundaries. This Essay scrutinizes the notion that doctors have heightened legal obligations solely to their current patients. It concludes that physicians may be liable for far more conduct than the conventional account implies. It ends by suggesting ways to cabin this potentially unlimited liability.

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References

    1. See, e.g., HALL MARKA, ORENTLICHER DAVID, BOBINSKI MARYANNE, BAGLEY NICHOLAS & COHEN IGLENN, HEALTH CARE LAW AND ETHICS 59 (9th ed. 2018) (“A physician is under no obligation to engage in practice or to accept professional employment, but when the professional services of a physician are accepted by another person for the purposes of medical or surgical treatment, the relation of physician and patient is created. The relation is a consensual one wherein the patient knowingly seeks the assistance of a physician and the physician knowingly accepts him as patient. The relationship between a physician and patient may result from an express or implied contract, either general or special, and the rights and liabilities of the parties thereto are governed by the general law of contract.” (quoting Oliver v. Brock, 342 So. 2d 1, 3 (Ala. 1976))); LAWRENCE
    2. GOSTIN & LINDSAY F WILEY, PUBLIC HEALTH LAW 231 (3d ed. 2016) (“A party does have an affirmative duty to protect another from external threats and can thus be liable for nonfeasance if—by custom, sentiment, and public policy—they share a ‘special relationship,’ particularly where the plaintiff is in some way dependent on the defendant. Among other examples, … doctors owe special duties to their patients”).
    1. We refer to this relationship as the treatment relationship or the physician-patient relationship interchangeably throughout.
    1. Findlay v. Bd. of Supervisors of Mohave Cnty., 230 P.2d 526, 531 (Ariz. 1951); Agnew v. Parks, 343 P.2d 118, 123 (Cal. Ct. App. 1959); Hankerson v. Thomas, 148 A.2d 583, 584 (D.C. 1959); Newmyer v. Sidwell Friends Sch., 128 A.3d 1023, 1034 (D.C. 2015).
    1. See, e.g., Eddingfield Hurley v., 59 N.E. 1058, 1058 (Ind. 1901).
    1. The major exceptions to this general rule are the Emergency Medical Treatment and Active Labor Act, which requires certain facilities to screen and stabilize people seeking emergency care, and various antidiscrimination protections that prevent providers from rejecting patients based on attributes like race, sex, age, or disability. See 42 U.S.C. § 18116.

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