Patients claiming to have been injured due to physician negligence often try to sue not only the treating physician but other physicians who have been involved in the case, such as consultants. Courts struggle with whether to impose liability on these other physicians. In some circumstances, it is clear that the treating physician relied heavily on the advice of the consulted physician and, if that advice was careless, courts may feel that the consulted physician ought to bear some of the responsibility. On the other hand, judges realize that imposing liability on consulted physicians would discourage them from giving advice, thereby impairing treatment.

Recently, there have been several interesting cases that illustrate how the courts have tried to accommodate these conflicting objectives. They yield insights into how future cases might be decided and can provide guidance to physicians on how to respond to requests for advice from their colleagues.

The general rule is that physicians who are consulted by a treating physician are not liable for harm to patients that results from the treatment, even if the treating physician relied on the advice of the consulted physician and even if that advice was negligent. The consulted physician only becomes liable if he or she undertakes to treat the patient, for example, by accepting referral of the case, by agreeing to assume joint responsibility for the patient with the original treating physician, or by actually ordering or providing treatment. In other words, in general, you have to take an affirmative step beyond merely rendering advice to a treating physician before you will be liable for negligent patient harm.

A good illustration of this rule is found in a recent case from Michigan, NBD Bank v. Barry, No. 190428 (Mich. Ct. App. May 9, 1997). A treating physician asked a colleague, a member of the hospital's internal medicine department, to review a chart and give him advice on the patient's condition. The patient allegedly died as the result of the colleague's negligent advice. The court held that the consulted physician had no relationship with the patient that would render him liable for the patient's death.

Other cases illustrate how far the courts are prepared to go to protect consulted physicians. One court has held that a physician member of an OB/GYN group practice was not liable to a patient of the group's, whom he did not actually treat, even though he participated in weekly meetings at which the patient's care was discussed by the other two physicians in the group, and even if he gave negligent advice to his colleagues at the meetings that resulted in patient injury. Sawh v. Schoen, 627 N.Y.S.2d 7 (App. Div. 1995).

On a related subject, a physician was not liable for the negligence of another physician who covered for her every third weekend and whose actions negligently injured the patient and resulted in the infant's death. Dymburt v. Rao, 881 F.Supp. 942 (D.N.J. 1995). The court reasoned that the original physician would only be liable if she had negligently selected the covering physician -- i.e., she ought to have known that the covering physician was not competent.

In another case, a respiratory therapist paged the hospital's chief of staff after an attending physician failed to transfer a newborn with severe respiratory depression to another hospital that could maintain the child on mechanical ventilation. The chief of staff advised the attending physician to transfer the patient but the attending declined. The court held that the chief of staff was not liable for the child's resulting injuries. Dodd-Anderson v. Stevens, 905 F.Supp. 937 (D. Kan. 1995). The court stated that the chief of staff had not agreed to treat the patient but only to render an opinion.

This decision is troublesome since the chief of staff arguably has a duty to supervise attending physicians on staff, especially when the chief of staff is consulted about one of their patients. Several cases have held supervisory physicians liable for the negligence of physicians on their hospital staffs but, in most of these cases, the negligent physicians were residents and the supervisor was responsible for their training. In Hammonds v. Jewish Hosp. of St. Louis, 899 S.W.2d 527 (Mo. App. 1995), a supervising physician, who advised the chief resident on how to handle a patient, was liable for the chief resident's negligence. In Gilinksy v. Indelicate, No. 93-CV-893 (E.D. N.Y. July 28, 1995), a chiropractor's neurology mentor in a post-graduate course of study was liable for patient injury where the mentor had been in extensive telephone consultation with the chiropractor.

In contrast with Dodd-Anderson, an Ohio court recently ruled [McKinney v. Schlatter, No. CA96-05-100 (Ohio Ct. App. February 18, 1997)] that an on-call cardiologist, who negligently advised an emergency room physician that a patient's symptoms were gastrointestinal in nature, could be liable when the patient subsequently died from a dissecting aortal aneurysm. The court argued that the cardiologist could be liable if the plaintiff could prove that the cardiologist was required to be on-call by the hospital's staff rules.

So where do things stand? It still seems true that a physician who is merely consulted about a case will not be liable. But the physician may be liable if he or she is required to render advice, for example, by being the treating physician's faculty supervisor, or by being on-call. By the same token, a physician who intends for a subsequent physician to be responsible in whole or in part for the patient's care should make this clear, for example, by clearly transferring the case or by establishing, preferably in writing, a formal consultative or joint treatment relationship.

NOTE: As we state in the general disclaimer to these conferences, it is important to check the law in the jurisdiction in which you practice. After the McKinney case, for example, physicians in Ohio can expect to be more exposed to consultant liability than physicians in other states. Don't assume that, because a court in one state has ruled that a consulted physician is not liable, courts in other jurisdictions will reach the same conclusion. And remember that the outcome of a case often depends heavily on the facts of that specific case; just because a court decided a case one way doesn't mean that it will decide a case with different facts the same way.