by Caroline Gardner and Jason B. Nichols,
Cook, Yancey, King & Galloway, APLC

Advertising as “Medical Director” may imply patient-physician relationship

In Banister v. Day, the plaintiff brought suit against a physician acting as the “medical director” of a clinic, specializing in homeopathic treatment and other forms of alternative medicine. Plaintiff had been treating at clinic for hyperthyroidism.  Two other primary employees administered intravenous therapies to the patient, neither of whom was licensed as a nurse or physician in Louisiana.  Plaintiff was introduced to the doctor on her first visit to the clinic, when she was informed that he was the “medical director” and thus assumed that he would be monitoring her treatments going forward.  The doctor did not actually administer any treatments to this patient, nor did he ever examine her.  In its assessment of whether an implied patient-physician relationship existed, the Court of Appeal for the Fifth Circuit reviewed a 1999 Texas case, in which such a relationship was found to exist due to the physician’s status as medical director of a hospice.  The Texas court relied heavily on the procedures manual of the hospice in finding that the position constituted a solid basis for the patient to believe such a relationship existed.

In Banister, the clinic had never had an employee manual and the doctor stated that he never actually became the medical director.  Furthermore, he stated that the term “medical director” had no legal significance to him.  However, the clinic had created an advertisement welcoming the doctor as the new medical director of the clinic, and he was introduced, at least to this patient, as such.  Although the doctor ultimately prevailed due to plaintiff’s failure to prove causation, the Louisiana appellate court found that there was a genuine issue of material fact, which would be sufficient to preclude the doctor’s motion for summary judgment, as to whether an implied physician-patient relationship existed based upon his stated position as “medical director.”

Informed Consent requirement leaves no room for error.

In Maybrier v. Louisiana Medical Mutual Insurance Company, the patient sued the doctor who performed his hemorrhoidectomy, alleging that the doctor also performed a colonoscopy without informed consent, which resulted in a perforated bowel requiring additional surgery.  The consent form showed “hemorrhoidectomy,” in typed letters, with a description of the procedure and beside that, “colonoscopy,” hand-written.  It is undisputed that the consent form failed to list known, material risks associated with a colonoscopy, which include perforated bowel.  Further, the patient stated that he never consented to a colonoscopy on that date.  The medical review panel found that the doctor did not breach the standard of care.  Although the panel did not address the issue of consent in their findings, one member concluded the consent form failed to meet the applicable standard of care for informed consent. 

The plaintiff in an informed consent case bears the burden of proof and must show: (1) the existence of a material risk which the physician must disclose; (2) the failure of the physician to inform the patient of a material risk; (3) the realization of the material risk; and (4) a causal connection between the failure to inform the patient and realization of the risk.  This patient presented with a history of hemorrhoids and agreed to undergo the hemorrhoidectomy.  Once the doctor successfully completed that procedure, he determined that the plaintiff might benefit from a colonoscopy due to a family history of colon cancer.  It was thus undisputed that the colonoscopy was not essential to remedying plaintiff’s problem with hemorrhoids.

In finding that plaintiff was entitled to his day in court and denying the doctor’s motion for summary judgment, the court found it relevant that the colonoscopy was not an emergency procedure, no written consent listing the material risks was obtained, patient was not adequately informed, and the doctor made a unilateral decision to perform the procedure.