I contacted a resident doctor in Internal Medicine at a teaching hospital and asked if he would be interested in becoming my primary care physician (PCP). My note briefly described my background in health outcomes research and two of my prescription drugs. He wrote back that he would be honored to be my PCP, and came across as professional, humble, and sincere. A new doctor-patient relationship was formed, and I contacted my existing doctor’s office to arrange for my medical records to be transferred, which immediately informed that office that I must be dissatisfied and going to a new doctor. I also shared with the resident doctor confidential information from my medical records and a copy of one of my professional presentations at a health care conference.
A department administrator then contacted me to say the resident doctors are not available every day of the week for clinic and are not even here when they do their ICU rotation. Also, the Internal Medicine department protocol would not allow the resident doctor to write me a drug prescription for off label use. Finally, she was concerned that in the past I have ordered and correctly interpreted my own blood tests. The administrator’s attitude reflects one of the chief complaints Americans have with the health care system: the system is coming at them and requiring them to get health services in some predefined structure to which the facility is accustomed but which eliminate any potential for individualized treatment according to individual patients’ needs.
Apparently the administrator did not spend enough “careful consideration” to get her facts straight. I do not need to see my PCP daily or even monthly. My track record shows I saw my existing doctor once in a calendar year, and the prior doctor before him I saw once in a 15-month period. So the administrator based her decision on her own ignorance of the facts.
She also misstated facts concerning off-label prescriptions for drugs by resident doctors. One of the drugs we are talking about is Clomiphene. Both a resident doctor and an attending faculty physician at the teaching hospital advised me that they would be willing to write me (off-label) prescriptions for this drug, and the attending physician did indeed phone in a prescription for one of the drugs at my request. Similarly, the Dept. of Obstetrics and Gynecology (OB-GYN) advised me that their doctors, both resident and attending, have prescribed Clomiphene to patients. Therefore, residents in Family Medicine and OB-GYN (both primary care departments) can write prescriptions for Clomiphene, but “protocol” prevents residents in Internal Medicine (also primary care) from writing off-label prescriptions. What kind of a cockamamie rule is that? What, the residents in Internal Medicine are too dumb or too naive to understand off-label benefits of medicines?
Finally, I had planned for my resident PCP to order and interpret blood tests each time I visited him. The administrator could have learned that fact if she had bothered to call or write me before jumping to conclusions and interfering in my doctor-patient relationship. I strongly reject the Director’s paternalistic view of medicine in which she feels she has to protect resident doctors from patients who order or interpret their own blood tests. These resident doctors are young professionals who have completed their medical degrees; they don’t need paternalistic oversight from a department administrator telling them who they can and cannot invite to be patients.
Apparently, an overwhelming number of patients who visit this teaching hospital’s doctors want to be told what to do and how to feel. I am the exact opposite; I take personal responsibility for and manage my own health, which is strongly advocated under health care reform. Having a more equal, collaborative relationship with my PCP works for me, and that seems to be the true reason for the administrator’s interference. Studies show that medical malpractice rates drop with a non-paternalistic model of health care services. That fact of reducing litigation risks is pushing more health care systems across the country to migrate to a non-paternalistic model.
I. Formation of Doctor-Patient Relationship
The first question to address is whether, based on this fact pattern, a doctor-patient relationship was formed. When I gave the Internal Medicine resident doctor confidential information on two off-label drugs that I take, that act would be analogous to a prospective client approaching a lawyer with facts about his case to see if the lawyer will assist him. Contacting a lawyer this way does not create an attorney-client relationship. However, the lawyer is under an ethical duty to protect the confidentiality of the information shared by the prospective client. Similarly, the resident doctor was under an ethical duty to keep the information I shared with him confidential.
When a lawyer responds to a prospective client, “I agree to take your case,” or “I will be your lawyer,” or words to that effect, then an attorney-client relationship is created, and the protection afforded to the client’s information rises to the level of constitutionally protected attorney-client privilege. In this case, when the resident doctor responded that he would be honored to be my PCP, we have offer and acceptance forming a contract. The offer-acceptance could be construed as my offering to be his patient, which he accepted, or his offer to be my PCP, which I accepted.
But offer and acceptance are only two of the three required elements to form a contract. The third essential element is exchange of consideration, expressed in Latin as the quid pro quo. In this case, there were several separate exchanges of consideration that complete the formation of a contract and thereby render it enforceable in a court of law. Consideration is defined as some act or some transfer of an item from one party to the other, for which the receiving party had no legal right to otherwise obtain that consideration. There is no requirement that the consideration have intrisinc value. For example, the transfer of a scrap piece of paper can constitute valid consideration that renders a contract binding and enforceable.
The initial disclosure of confidential information from my health history amounts to sufficient consideration. Second, the fact that both I and the doctor each began pursuing scheduling an appointment for me to see him is also consideration: neither of us had a prior legal right entitling us to that action by the other person. Third, when we continued to correspond after offer and acceptance, with additional information being shared back and forth, further consideration was exchanged. My sending the resident doctor a copy of one of my professional presentations was a fourth example of consideration. Finally, my request that my medical records be transferred to the resident doctor’s clinic constituted an obvious legal detriment based on reliance rendering the contract enforceable.
If a lawsuit were filed for enforcement of this contract, I am confident that the plaintiff would overcome any attempt to dismiss the lawsuit by the teaching hospital’s attorneys based on the absence of a contract. Defendant might attempt to argue that no contract could be formed, because the resident doctor is not licensed. According to the website http://medical-dictionary.thefreedictionary.com/resident+physician, a “resident physician is a graduate and licensed physician receiving training in a specialty, usually in a hospital.” The resident’s licensing status would not prevent the formation of an enforceable contract, as we have in this fact pattern, for treatment in the supervised residents’ clinic.
In court, we would pose a series of questions: 1) Is the resident a graduate of a medical school? Yes! 2) Was our conversation focused on health care treatment? Yes! 3) Does the resident see other patients (whether supervised or unsupervised) in the resident clinic? Yes! 4) Are the resident’s services billed to the U.S. government and to private insurers as the services of a doctor (not a student or a doctor’s aide)? Yes! 5) Did we both use the term PCP in describing our relationship? Yes. 6) Did the resident undertake to assist me in obtaining a medical appointment to see him? Yes! With these answers, any court of law is going to recognize if it looks like a duck, swims like a duck, and quacks like a duck, then it is a duck. Therefore, the defendant’s argument on licensing will be viewed as a red herring and will fail. In a similar vein, courts have noted “it is axiomatic that a doctor-patient relationship may arise from, briefly exist, and be limited by the unique circumstances presented in a transfer situation.” Sterling v. Johns Hopkins Hosp., 145 Md. App. 161 (Md. Ct. Spec. App. 2002). It does not matter how long the doctor has been seeing patients or how brief the contact with any given patient, a doctor-patient relationship can be formed.
Selection of a PCP and other medical decisions are “core” private decisions. A fundamental tenet of privacy jurisprudence, as it has been applied to other types of personal matters, is that the individual most directly concerned is entitled to make and implement the protected decision autonomously and free from paternalistic government intrusion. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1978) (decision to marry); Moore v. East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (decision to live with extended family members); Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965)(reproductive choice). I would argue that the constitutional right to privacy also protects autonomy in selecting a PCP among a wide choice of available doctors, selecting which medications I want prescribed, and choosing what lab tests I want to order myself to monitor my health.
In 2005, the Supreme Court of Arkansas provided the best statement in American jurisprudence on the elevated status of the doctor-patient relationship. The court noted the relationship of doctor-patient is unique. “The loss of this relationship, even temporarily, causes irreparable damage to the doctor and the patient. There is no adequate remedy at law because the loss is a loss of a one-time opportunity.” Baptist Health v. Murphy, 362 Ark. 506 (Ark. 2005)
The court noted that the hospital had violated the Arkansas Department of Health rules and regulations for hospitals by failing to enforce policies that protected the doctor’s selection of patients and the patient’s choice of a physician. “We interpret this to mean that an otherwise qualified doctor must be granted access to his patient for the purpose of treating his patient, if that is what both the doctor and the patient want. Or, stated another way, a hospital cannot deny the services of a physician of the patient’s choice if the patient is already being seen by physicians at the hospital. Baptist Health v. Murphy, 362 Ark. 510-511 (Ark. 2005)
Based on reading Baptist Health, I will now forward a copy of this article to the state Department of Health to determine whether the teaching hospital violated any of my state’s regulations requiring Tennessee-licensed medical centers to have policies or bylaws that respect the patient’s right to select his own physician. If so, then the teaching hospital is violating those regulations.
II. Tennessee’s Tortious Interference Statute
Tenn. Code Ann. Â§ 47-50-109 is captioned, “Procurement of breach of contracts unlawful – Damages.” The administrator tortiously interfered in my doctor-patient relationship and prevented the resident doctor from performing his services under our contract. She therefore procured a breach of that contract. The administrator will argue that she was merely performing her duties, but that is no excuse for interfering in an existing doctor-patient relationship.
Although Tennessee jurisprudence does not have a case on point, courts across the country have taken a dim view and expressed disapproval of employer interference in the doctor-patient relationship. For example, the U.S. Supreme Court stated, “The ethical objection has been that intervention by employer… makes a tripartite matter of the doctor-patient relation. Since the contract doctor owes his employment and looks for his pay to the employer… rather than to the patient, he serves two masters with conflicting interests.” United States v. Oregon State Medical Soc., 343 U.S. 326, 329 (U.S. 1952).