Have you ever wondered what happens if an on-call specialist says no? What if they refuse to accept a transfer, decide not to treat a patient, or perform a procedure? When an emergency physician consults with an on-call specialist about a patient, what legal duties arise?
It is not uncommon for physicians to routinely interact with patients whom they will never personally examine through on-call coverage, curbside consultations, transfer discussions, and interdisciplinary collaboration. In modern medicine, these interactions are essential but can cause confusion about legal responsibilities and the establishment of the physician-patient relationship.
A 2024 California Court of Appeal's decision, McCurry v. Singh, further reinforces the longstanding California law on this matter. In McCurry, the plaintiffs argued that an on-call interventional cardiologist owed a duty of care to a patient who died while awaiting transfer for a potential cardiac catheterization procedure. The patient had presented to an emergency department that lacked cardiac catheterization capabilities. The attending emergency physician had consulted with
an on-call cardiologist at another facility regarding the patient’s condition and the possibility of a transfer. After reviewing the information provided, the physician determined the patient was not a candidate for cardiac catheterization. He neither examined the patient nor issued any orders, and declined to accept the transfer.
The trial court granted summary judgment in favor of the cardiologist, and the Court of Appeal upheld the decision. The court concluded that no physician–patient relationship existed because the doctor never affirmatively undertook the patient’s care. His involvement was limited to providing consultation, and his refusal to accept the transfer did not create a duty of care.¹
McCurry confirms that on-call status and consultation alone do not establish duty.
How Is the Physician-Patient Relationship Formed?
Medical malpractice cases are formed on the grounds of professional negligence, which requires proof of duty, breach, causation, and damages.² Among these elements, we must first look at whether the physician owed a duty to the patient. If no duty exists, the case should fail as a matter of law before any further inquiry can be made into the physician’s clinical judgement or standard of care.
The physician-patient relationship is typically established through express or implied consent or agreement. Express agreement means that a physician affirmatively agrees to treat or diagnose a patient. Implied agreement arises when the physician examines the patient, writes orders, prescribes medication, and conducts other activities related to directing patient care.
| As a general rule, a physician–patient relationship is established when a physician conducts the initial history and physical examination.³ Some jurisdictions have held that a relationship exists when a physician gives a patient an appointment for a specific medical service,4 when a physician agrees by telephone to see a patient,5 or even based on a telephone call for consultation from another physician for their patient.6 In practice, however, California generally has not found that a mere telephone conversation is enough to establish a physician–patient relationship.1,7 |
In short, the physician-patient relationship is formed when the patient seeks medical care, and the physician knowingly accepts the responsibility to render care.
Courts have historically remained consistent when distinguishing between affirmative treatment and informal consultation. If every call from a colleague were enough to create a legal duty, physicians would be reluctant to provide informal guidance, participate in peer review, or provide second opinions. The Courts recognize that expanding physician duty in this manner would have a negative impact on the collaboration between physician specialties and ultimately lead to patient harm.8
Does Ethical Impact Mean Legal Duty?
Physicians often conflate ethical obligations with legal duties. While ethical standards may encourage or even expect physicians to assist, they do not always create a legally enforceable duty of care. The American Medical Association states that “a patient-physician relationship exists when a physician serves a patient’s medical needs.” They specifically emphasize patient welfare and professional cooperation. In some cases, ethical opinions have recognized a limited physician-patient relationship with or without express agreement (i.e., emergencies or court ordered care).9
Key Takeaways for Physicians
- A consultation alone does not create a physician–patient relationship or a duty of care. Legal duty arises from affirmative treatment, not merely from the foreseeability of harm.
- Clear documentation distinguishing consultation from treatment is critical.
- On-call and transfer policies should explicitly define when responsibility for patient care begins.
- Physicians should avoid issuing patient-specific orders unless they are prepared to assume duty.
Disclaimer: This content is for general informational purposes only and is not legal advice. You should not act or refrain from acting based on any content included here without seeking the appropriate legal counsel from a licensed attorney in your jurisdiction. The sender and author are not providing legal services or advice.
Christy Oganesyan, MBA-HM, is a Senior Risk Management and Patient Safety Specialist. Questions or comments related to this article should be directed to COganesyan@CAPphysicians.com
¹McCurry v. Singh, (2024) 104 Cal.App.4th 1170. https://law.justia.com/cases/california/court-of-appeal/2024/c098433.ht…;
²Rainer v. Grossman, (1973) 31 Cal.App.3d 539. https://law.justia.com/cases/california/court-of-appeal/3d/31/539.html&…;
³Kramer v. Policy Holders’ Life Insurance Assn., 5 Cal. App. 2d 380, 382 (Cal. Ct. App. 1935)
4Lyons v. Grether (Va. 1977) 239 S.E. 2d 103
5Bienz v. Cent. Suffolk Hosp. (N.Y. App. Div. 1990) 163 A.D. 2d 269
6Mead v. Legacy Health Sys (2012) 352 Ore. 267
7Barton v. Owen (1977) 71 Cal.App.3d 484
8Alexander v. Scripps Memorial Hosp. La Jolla, (2018) 23 Cal.App.5th 206, 235–236. https://law.justia.com/cases/california/court-of-appeal/2018/d071001.ht…;
9American Medical Association. Code of Medical Ethics, Opinion 1.1.1. https://code-medical-ethics.ama-assn.org/ethics-opinions/patient-physician-relationships