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Illinois Rules Telephone Consultation Created Physician-Patient Relationship

ABSTRACT: In a wrongful death lawsuit alleging medical malpractice, the Illinois Appellate Court for the Fourth District reversed the trial court’s entry of summary judgment in favor of several medical defendants and ruled a telephone consultation between an emergency medicine physician and an on-call physician concerning the decedent’s medical condition created a physician-patient relationship and duty of care.

In Blagden v. McMillin et. al., 2023 IL App (4th) 220238, the decedent came to the emergency department of a hospital in central Illinois in the summer of 2017 complaining of severe pain in his neck, upper back, and swelling in his right elbow that he related to a bug bite. The decedent further reported the onset of symptoms began the night before he came to the hospital and involved a bad headache, fever, and nausea.  The treating emergency medicine physician completed a physical exam, ordered lab work, and ultimately diagnosed decedent with a muscular condition of his shoulders and neck. 

Because the treating emergency medicine physician did not have admitting privileges, he contacted the on-call internal medicine physician via telephone and discussed the decedent’s course of treatment in the emergency department, as well as whether decedent should be admitted to the hospital.  The emergency medicine physician testified the on-call internal medicine physician told him he did not think decedent should be admitted. While the on-call internal medicine physician did not recall the specifics of the conversation, he confirmed that the decision of whether to admit a patient was a collaborative one that ultimately was his to make.  Following the telephone conversation, the decedent was released from the emergency department with instructions to follow-up with his personal physician the following day.  Decedent did not follow-up with his personal physician, but instead returned to the same emergency room three days later and ultimately died of sepsis caused by a spinal epidural abscess.  

After decedent’s wife filed a lawsuit, the on-call internal medicine physician and his practice group moved for summary judgment, arguing that the internal medicine physician owed no duty of professional care to the decedent based on the single phone call with the emergency medicine physician and the lack of directing any medical treatment of the decedent.  The trial court granted the defendants’ motion for summary judgment and the plaintiff appealed.   

The single question on appeal was whether the trial court properly concluded that the internal medicine physician owed no duty of professional care to the decedent because the single phone call with the emergency medicine physician did not create a physician-patient relationship with decedent.  

The Appellate Court noted that in medical malpractice cases, a physician’s duty to a patient arises in only two situations: (1) when a physician-patient relationship has been expressly established; or (2) there is a “special relationship” such as when one physician is asked by another physician to provide a service to the patient, conduct laboratory tests, or review test results. The Appellate Court noted that only the latter situation applied to the case and, thus, its inquiry was limited to whether a special relationship existed between the internal medicine physician and the decedent that gave rise to a physician-patient relationship and imposed a professional duty of care upon the internal medicine physician.

In analyzing the issue, the Appellate Court noted that a special relationship giving rise to a duty of care could exist without any meeting between the physician and the patient where the physician performs specific services for the benefit of the patient or when the physician takes some affirmative action to participate in the care, evaluation, diagnosis or treatment of a specific patient.  The appellate court concluded that the central inquiry is whether the physician has been asked to provide a specific service for the benefit of a specific patient, such as conducting laboratory tests, reviewing the patient’s test results, directing the treating physicians in their care of the patient, or otherwise knowingly accepting the patient as his or her patient – not merely dispending medical advice or offering a professional opinion in response to an inquiry from the treating physician.

After discussing numerous prior Illinois decisions addressing whether a physician-patient relationship is established when an on-call physician participates in a telephone conference with another physician about the proper management of a patient’s care, the Appellate Court found this case to be more analogous to the cases holding that a physician-patient relationship was established through the specific facts of the case, namely: (1) the on-call internal medicine physician was contractually obligated to consult with emergency department physicians at the hospital; (2) he was compensated for those consulting services; (3) he was consulted by decedent’s treating physician for the purpose of rendering medical advice regarding possible hospital admission; (4) he received specific information from the emergency department physician regarding decedent’s history, symptoms, and diagnostic test results; (5) he considered that information and collaborated on a medical opinion that decedent was not in immediate danger of infection; (6) he was ultimately responsible for making the decision on whether to admit the decedent; and (7) he decided the decedent did not need to be admitted. 

Of the seven facts cited by the Appellate Court, it took particular note that only the on-call internal medicine physician had admitting privileges and the decision of whether to admit decedent was ultimately his to make.  The Appellate Court held the facts justified imposition of the physician-patient relationship and its associated duty of care on the internal medicine physician and his practice group. 

In finding a duty based on the undisputed facts, the Appellate Court also rejected defendants’ public policy argument of a “chilling effect upon the practice of medicine” caused by a rule that phone conversations could create a physician-patient relationship.  While acknowledging the importance of the exchange of information and expertise among physicians in the practice of medicine, the Appellate Court noted the undisputed facts in this case demonstrated the conversation was not the “informal conference” addressed in those cases where no physician-patient relationship was created, but instead was a conference resulting from a contractual obligation on the internal medicine physician to provide admission decisions that directly affected decedent’s care.

As the Appellate Court in Blagden made clear, there is no bright line rule regarding whether telephone conferences between healthcare providers creates a physician-patient relationship.  Instead, the determination of whether a duty is created is fact-specific and takes into consideration the potential concern of a “chilling effect” on the free exchange of information and expertise between physicians.