Emedinews:Insights on Medicolegal issues: Defeat a negligence claim by showing the absence of elements of medical negligence

• If a physician can show that no physician-patient relationship exists, this “no duty” defense may suffice to defeat the plaintiff’s action. Where there is no duty owed to the patient by the physician, a negligence claim generally fails.
• Doctors generally have no duty to treat new patients or patients of years past, with some exceptions. This may be true even where the physician is “on call”. In some cases, even though a physician treats or diagnoses a condition, a duty exists only between the physician and the patient’s employer.
• Courts rarely hold that the “no duty” defense applies and have even held that a simple telephone consultation between a physician and emergency department personnel may be sufficient to create a professional relationship between the physician and patient, with the attendant requirement to comply with such duty. Pre-certification review of a case may also create the potential for liability.
• Physician who wishes to withdraw from the care of certain patients, plans to relocate his or her practice, or simple retires must notify affected patients in a manner in which an ordinary and reasonably prudent physician would do so in the same circumstances. Such notice is best made in writing and mailed postage paid to the patient’s last known address.
• All patients receiving ongoing care for potentially serious ailments should be notified by certified mail, return receipt requested, at the last known address. Such patients should be informed that their physician will continue to see them for emergencies during a certain fixed and reasonable period of time. The physician may recommend a successor physician, provide a list of suitable physicians or offer to forward records or copies of records (at reasonable or no cost) to another physician chosen by the patient.

(Ref: American College of Legal Medicine, The Medical Malpractice Survival Handbook)