Discussion 01.3: Creating a Duty of Care

HA4050D – Healthcare Law

Discussion 01.3: Creating a Duty of Care

Read the Discussion 01.3 Scenario. Refer to the scenario as you answer the questions below. 

1.Remember that, to state a negligence claim, we must have all four elements of the tort of negligence: 1. Duty, 2. Breach of duty, 3. Causation, AND 4. Damages. In this case, was there a sufficient doctor-patient relationship to create a duty of care on the part of the orthopedist? After all, the patient was never actually seen or treated by your physician. What advice would you give your supervisor?

2.Your boss asks for your thoughts on how we can prevent a situation like this from ever happening again. What else could the orthopedist have done to protect himself from any legal liability to a patient whom he had never actually seen or treated? What procedures might the hospital put in place to protect itself from future liability?

DISCUSSION 01.3: CREATING A DUTY OF CARE

SCENARIO (BASED ON A REAL ILLINOIS CASE)

You are a hospital administrator. Your supervisor comes to talk with you about the potential liability of

one of your physicians.

While on vacation in another state, a patient presented to a local emergency room and was examined

by a plastic surgeon. A review of an X-ray taken of the patient’s knee revealed a possible malignant

neoplasm. Consequently, the plastic surgeon referred the patient to an orthopedist at your facility, Dr.

Johnson, for further review when the patient returned home. The examining physician did not advise

the patient as to the purpose or nature of the referral.

After the patient did not keep any of the three appointments he scheduled with Dr. Johnson at your

facility, Dr. Johnson refused to reschedule him any further. The patient never sought treatment

elsewhere. Ultimately, the patient died of cancer due to this condition and his estate has sued both the

out-of-state physician and your facility. Obviously, there was no intent to harm this patient, but the

lawsuit is claiming that negligence was committed. Your boss has come to discuss with you whether

your facility actually committed all the elements of negligence.

(Note: If you would like to see the real case this scenario is based upon, check out Davis v. Weiskopf,

439 N.E.2d 60 (Ill.App. 1982). Be warned—the scenario has altered the facts from the original case. Do

not rely upon the real case opinion in formulating your answer to the fictional scenario in the discussion

question.)