Prosise v. Foster
In Prosise v. Foster, 261 Va. 417, 544 S.E.2d 331 (2001), the issue was "whether an on-call attending physician for a teaching hospital owed a duty of care to a patient based upon a physician-patient relationship in the absence of direct contact with or consultation concerning the patient." 261 Va. at 419, 544 S.E.2d at 331.
Dr. Foster, the on-call physician to the hospital emergency room, although not physically present, was available to answer questions from treating residents and interns.
The child was taken to the hospital with chicken pox lesions in her mouth. She was examined by two residents, who did not call Dr. Foster, and was treated for dehydration and released with instructions that she be taken to her pediatrician the following day. The next day, her pediatrician ordered the child returned to the hospital. Dr. Foster then saw the child for the first time, determined that she suffered from an infection due to a systemic effect of the chicken pox, and ordered IV anti-viral medication. This treatment was unsuccessful, and the child died.
In the resulting malpractice action, the trial court entered judgment in favor of the doctor, ruling that "there was no 'minimum contact' between Dr. Foster and the child and, therefore, no physician-patient relationship existed" when the doctor was "on call." The plaintiffs appealed, asserting that such a relationship did exist because Dr. Foster agreed to be on-call, thus accepting the child as her patient. The Virginia Supreme Court disagreed. The plaintiffs also asserted that a provision of the Virginia Code, which requires that medical students may work in hospitals only under supervision of a licensed physician, and that the "attending physician" retains the responsibility to assure the completion of a History and Physical by a licensed physician, created a statutory physician-patient relationship. Again, the Virginia Court disagreed. (261 Va. at 422, 544 S.E.2d at 333.)
The plaintiffs then urged the Virginia court to follow the decision by the North Carolina Supreme Court in Mozingo v. Pitt County Memorial Hospital, 331 N.C. 182, 415 S.E.2d 341 (1992).
That court held that an on-call attending physician had a common law duty to supervise residents who provided medical care, even though the supervision did not fit traditional notions of the physician-patient relationship. The defendant physician in Prosise, on the other hand, relied on this Court's decision in Rivera v. Prince George's County Health Dept., 102 Md. App. 456, 649 A.2d 1212 (1994), cert. denied, 338 Md. 117, 656 A.2d 772 (1995), which disagreed with the North Carolina Supreme Court, stating that it would impose no duty in the absence of proof that the doctor had accepted the patient, or had been summoned for consultation or treatment, "unless the 'on-call' agreement between a hospital and a physician provides otherwise." 102 Md. App. at 498, 649 A.2d at 1232.
In upholding the trial court, the Virginia Supreme Court agreed with this Court's analysis in Rivera, and determined that it must "look to the record to determine whether it contains any facts which indicate that Dr. Foster, by virtue of her actions or her status as the on-call attending physician for the hospital, agreed to accept responsibility for the care of the child." 261 Va. at 423, 544 S.E.2d at 334.
The Supreme Court concluded that the trial court did not err in holding that there was no physician-patient relationship "because the evidence failed to show a consensual relationship in which the patient's care was entrusted to the on-call physician and the physician accepted the case." Id. at 424, 544 S.E.2d at 334.
The Court noted that Dr. Foster did not participate in any treatment decisions, and had not been consulted by the treating physician or staff about the patient's condition.