Under Georgia law, you can only bring a medical malpractice claim against someone you were in a “doctor-patient relationship” with. This does not necessarily mean the doctor must physically examine you. A doctor-patient relationship can exist whenever a physician participates in someone’s diagnosis or treatment, or where the patient seeks and receives assistance of any kind from the physician.
Tomeh v. Bohannon
The Georgia Court of Appeals recently issued two decisions regarding the scope of the doctor-patient relationship. The first case involved the death of a premature newborn. A pregnant mother was taken to an Atlanta-area hospital, where her baby was delivered by Cesarean section and died shortly thereafter. The mother subsequently sued the hospital and several medical providers involved with her son’s delivery.
One of the defendants was the hospital’s on-call pediatrician. The pediatrician never examined or saw the mother or her baby. He did not participate in the delivery or postnatal care. He was not even at the hospital. But because the mother had not selected a pediatrician for the baby, the hospital’s computer automatically designated its on-call pediatrician as the “admitting and attending physician” for record-keeping purposes only. Under hospital protocol, a pediatrician must be designated for the baby even if he dies on the operating room table, as was the case here.
But did that create a patient-physician relationship for purposes of the mother’s lawsuit? No, according to the Court of Appeals. The pediatrician testified in court he never examined or treated the plaintiff or her son. The computer records did not rebut this fact. That was enough for the Court of Appeals, which said, “A plaintiff has to show more than that a doctor was the on-call physician at the time of the patient’s injury.”
Smith v. Rodillo
In the second case, a man went to an emergency room in Elbert County complaining of bladder pain and swelling. The emergency room physician attempted to treat the man and contacted a urologist. The urologist suggested a course of treatment. The man’s own physician later advised he should be admitted to the hospital and examined by a specialist. The physician then contacted the same urologist and reported his findings. The urologist did not examine the patient but did advise the physician on further treatment. The patient ultimately developed serious complications, which led him to file a malpractice lawsuit against the urologist.
A trial judge granted the urologist’s motion for a directed verdict, finding there was no evidence a doctor-patient relationship existed between him and the plaintiff. The Court of Appeals disagreed. Based on the available evidence, the appeals court said, a jury could conclude the urologist entered into a doctor-patient relationship when he gave advice to the emergency room staff and the patient’s regular physician. The urologist may not have personally examined the plaintiff, but the evidence suggests he did participate in the man’s treatment and diagnosis.
Of course, that does not mean the urologist was negligent or liable for malpractice. That is a factual issue for a jury to decide. The Court of Appeals limited its discussion to whether or not the urologist could be sued under this set of facts.