Department Administrator Interference in the Doctor-Patient Relationship

The CEO of the University of Tennessee Medical Center (UTMC) in Knoxville posted an open letter to the community in which he claims -we are totally committed to providing excellent patient-centered care and outstanding customer service to you-our patients-and your families. . . . But in this complex maze of medicine, we also want to provide a human touch-one filled with caring and compassion.- Recent events have occurred that prove the exact opposite is true.

I contacted a resident doctor at UT Medical Center and asked if he would be interested in becoming my primary care physician (PCP). My note briefly described my background in health outcomes research and two of my prescription drugs. He wrote back that he would be honored to be my PCP, and came across as professional, humble, and sincere. A new doctor-patient relationship was formed, and I contacted my existing doctor's office to arrange for my medical records to be transferred, which immediately informed that office that I must be dissatisfied and going to a new doctor. I also shared with the resident doctor confidential information from my medical records and a copy of one of my professional presentations at a health care conference.


The Director of the Residents Program in the UTMC Dept. of Medicine then contacted me concerning my registration as a new patient with the Internal Medicine Residents clinic. Initially, her message indicated -Most patients are approved to come in this clinic unless I think we will be a potential for drug abuse since this had been major problem in the past. I do not have the staff to manage a pain clinic.- I advised her that would be no problem, as I do not take pain medications, nor have I in the past.

The next day -after careful consideration,- the Director advised me that she would not allow me to see my new PCP at the clinic. -Our residents are not available every day of the week for clinic and are not even here when they do their ICU rotation. While I have confidence in the residents (sic) abilities it is not our protocol to allow prescribing of drugs for off label uses. Also, it is important for residents to develop their skills in disease/health management, including ordering and interpreting testing.-

Apparently the Director did not spend enough -careful consideration- to get her facts straight. I do not need to see my PCP daily or even monthly. My track record shows I saw my existing doctor once in a calendar year, and the prior doctor before him I saw once in a 15-month period. So the Director based her decision on her own ignorance of the facts.

She also misstated facts concerning off-label prescriptions for drugs by UT resident doctors. One of the drugs we are talking about is Clomiphene. Both a resident doctor and an attending faculty physician within the UTMC Dept. of Family Medicine advised me that they would be willing to write me (off-label) prescriptions for this drug, and the attending physician did indeed phone in a prescription for one of the drugs at my request. Similarly, the UTMC Dept. of Obstetrics and Gynecology (OB-GYN) advises me that their doctors, both resident and attending, have prescribed Clomiphene to patients. Therefore, residents in Family Medicine and OB-GYN (both primary care departments) can write prescriptions for Clomiphene, but -protocol- prevents residents in Internal Medicine (also primary care) from writing off-label prescriptions. What kind of a cockamamie rule is that? What, the residents in Internal Medicine are too dumb or too naive to understand off-label benefits of medicines?

Finally, I had planned for my resident PCP to order and interpret blood tests each time I visited him. The Director could have learned that fact if she had bothered to call or write me before jumping to conclusions and interfering in my doctor-patient relationship. I strongly reject the Director's paternalistic view of medicine in which she feels she has to protect resident doctors from patients who order or interpret their own blood tests. These resident doctors are young professionals who have completed their medical degrees; they don't need paternalistic oversight from a department administrator telling them who they can and cannot invite to be patients.

Apparently, an overwhelming number of patients who visit UT Health System doctors want to be told what to do and how to feel. I am the exact opposite; I take personal responsibility for and manage my own health, which is strongly advocated under health care reform. Having a more equal, collaborative relationship with my PCP works for me, and that seems to be the true reason for the Director's interference. Studies show that medical malpractice rates drop with a non-paternalistic model of health care services. That fact of reducing litigation risks is pushing more health care systems across the country to migrate to a non-paternalistic model.

I want to do my part to spur the UT Health System to adopt health care reforms and abandon these paternalistic, interfering practices. Accordingly, I am offering free legal assistance to anyone in east Tennessee who believes administrators within the UT Health System tortiously interfered in his or her doctor-patient relationship. You can find my law firm's website by searching for my name on the Internet.

The Dean of the Graduate School of Medicine and the CEO of UTMC were provided copies of this editorial and chose to take no action. If the CEO sincerely wanted to navigate the -maze of medicine- with a personal touch - -one filled with caring and compassion,- he would have told administrators in the UTMC Department of Medicine to back off from interfering with resident doctors' ability to form doctor-patient relationships. Instead UTMC appears to be an institution riddled with obsequious adherence to departmental rules over providing optimal health care for patients.

Michael A. S. Guth, Ph.D., J.D. Attorney at Law Oak Ridge, TN

LEGAL ANALYSIS

I. Formation of Doctor-Patient Relationship

The first question to address is whether, based on this fact pattern, a doctor-patient relationship was formed. When I gave the UTMC Internal Medicine resident doctor confidential information on two off-label drugs that I take, that act would be analogous to a prospective client approaching a lawyer with facts about his case to see if the lawyer will assist him. Contacting a lawyer this way does not create an attorney-client relationship. However, the lawyer is under an ethical duty to protect the confidentiality of the information shared by the prospective client. Similarly, the resident doctor was under an ethical duty to keep the information I shared with him confidential.

When a lawyer responds to a prospective client, -I agree to take your case,- or -I will be your lawyer,- or words to that effect, then an attorney-client relationship is created, and the protection afforded to the client's information rises to the level of constitutionally protected attorney-client privilege. In this case, when the resident doctor responded that he would be honored to be my PCP, we have offer and acceptance forming a contract. The offer-acceptance could be construed as my offering to be his patient, which he accepted, or his offer to be my PCP, which I accepted.

But offer and acceptance are only two of the three required elements to form a contract. The third essential element is exchange of consideration, expressed in Latin as the quid pro quo. In this case, there were several separate exchanges of consideration that complete the formation of a contract and thereby render it enforceable in a court of law. Consideration is defined as some act or some transfer of an item from one party to the other, for which the receiving party had no legal right to otherwise obtain that consideration. There is no requirement that the consideration have intrisinc value. For example, the transfer of a scrap piece of paper can constitute valid consideration that renders a contract binding and enforceable.

The initial disclosure of confidential information from my health history amounts to sufficient consideration. Second, the fact that both I and the doctor each began pursuing scheduling an appointment for me to see him is also consideration: neither of us had a prior legal right entitling us to that action by the other person. Third, when we continued to correspond after offer and acceptance, with additional information being shared back and forth, further consideration was exchanged. My sending the resident doctor a copy of one of my professional presentations was a fourth example of consideration. Finally, my request that my medical records be transferred to the resident doctor's clinic constituted an obvious legal detriment based on reliance rendering the contract enforceable.

See, e.g., Oliver v. Brock, 342 So. 2d 1, 3-4 (Ala. 1976) (quoting 61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers 96 and stating, "'the voluntary acceptance of the physician-patient relationship by the affected parties creates a prima facie presumption of a contractual relationship between them. A physician may accept a patient and thereby incur the consequent duties although his services are performed gratuitously or at the solicitation and on the guaranty of a third person. . . .'"); Bovara v. St. Francis Hosp., 298 Ill. App. 3d 1025, 700 N.E.2d 143, 146, 233 Ill. Dec. 42 (Ill. App. Ct. 1998) (stating, "A consensual relationship can be found to exist where a physician contacts another physician on behalf of the patient or where a physician accepts a referral of a patient; the reasoning is that the consent of the patient to the service provided by the second physician is implied." (internal citations omitted)); Walters v. Rinker, 520 N.E.2d 468, 472 (Ind. Ct. App. 1988) (stating, "The important fact in determining whether the relationship is a consensual one, however, is not who contracted for the service but whether it was contracted for with the express or implied consent of the patient or for his benefit. . . . Where . . . healthcare services are rendered on behalf of the patient, and are done for the patient's benefit, a consensual physician-patient relationship exists for the purposes of medical malpractice."); Irvin v. Smith, 272 Kan. 112, 31 P.3d 934, 941 (Kan. 2001) ("A physician's indirect contact with a patient . . . does not preclude the finding of a physician-patient relationship. A physician-patient relationship may be found where a physician is contacted by someone on behalf of the patient. Indeed, an implied physician-patient relationship may be found where the physician gives advice to a patient by communicating the advice through another health care professional." (internal citations omitted)); Sterling v. Johns Hopkins Hosp., 145 Md. App. 161, 802 A.2d 440, 455 (Md. Ct. Spec. App. 2002), cert. denied 371 Md. 264, 808 A.2d 808 (Md. 2002) (stating, "In the final analysis, we take it as well-settled that a physician-patient relationship may arise by implication where the doctor takes affirmative action to participate in the care and treatment of a patient."); Oja v. Kin, 229 Mich. App. 184, 581 N.W.2d 739, 743 (Mich. Ct. App. 1998) (stating that "merely listening to another physician's description of a patient's problem and offering a professional opinion regarding the proper course of treatment is not enough" to create a physician-patient relationship, but a doctor who "receives a description of a patient's condition and then essentially directs the course of that patient's treatment, has consented to a physician-patient relationship."); Corbet v. McKinney, 980 S.W.2d 166, 169 (Mo. Ct. App. 1998) (stating, "The liability of a physician who is consulted on a case by a patient's treating or family physician generally depends on whether the physician undertakes to examine, diagnose, or treat the patient, or merely undertakes to advise the patient's treating physician as to general patient care. Thus, where the question is whether a physician-patient relationship has arisen between another doctor's patient and a physician consulted on the case, we look for these indicia of consent as well as other evidence of a consensual relation." (internal citation omitted)); Flynn v. Bausch, 238 Neb. 61, 469 N.W.2d 125, 128 (Neb. 1991) (stating, "While the relationship is often described as contractual in nature, based upon the express or implied consent of both physician and patient, we have held that absent fraud or misrepresentation, consent to medical treatment is presumed." (internal citations omitted)); Cogswell by Cogswell v. Chapman, 249 A.D.2d 865, 672 N.Y.S.2d 460, 462 (N.Y. App. Div. 1998) (stating, "a doctor-patient relationship can be established by a telephone call when such a call 'affirmatively advises a prospective patient as to a course of treatment' and it is foreseeable that the patient would rely on the advice." (internal citation omitted)); Lownsbury v. VanBuren, 94 Ohio St. 3d 231, 2002 Ohio 646, 762 N.E.2d 354, 360 (Ohio 2002) (stating, "The basic underlying concept in these cases is that a physician-patient relationship, and thus a duty of care, may arise from whatever circumstances evince the physician's consent to act for the patient's medical benefit."); St. John v. Pope, 901 S.W.2d 420, 424, 38 Tex. Sup. Ct. J. 723 (Tex. 1995) ("Creation of the physician-patient relationship does not require the formalities of a contract. The fact that a physician does not deal directly with a patient does not necessarily preclude the existence of a physician-patient relationship.").

As to the law in Tennessee, our state supreme court last spoke on this subject in 2004 when it summarized the few Tennessee cases discussing the subject, "the [physician-patient] relationship is generally characterized as a contractual one in which the patient knowingly and voluntarily seeks the professional assistance of the physician, and the physician knowingly agrees to treat the patient." Church, 39 S.W.3d at 164 (citing Jennings v. Case, 10 S.W.3d 625, 628 (Tenn. Ct. App. 1999) and Osborne, 425 S.W.2d at 771). The relationship may either be express or implied. Jennings, 10 S.W.3d at 628. A face-to-face meeting between the physician and patient is not required, and a physician-patient relationship therefore "may arise out of a consultation by the patient's primary physician with another physician when that consultation is for the treatment of the patient." Bass, 671 S.W.2d at 487. Kelley v. Middle Tenn. Emergency Physicians, P.C., 133 S.W.3d 587, 593 (Tenn. 2004)

If a lawsuit were filed for enforcement of this contract, I am confident that I would overcome any attempt to dismiss the lawsuit by UTMC's attorneys based on the absence of a contract. UTMC might attempt to argue that no contract could be formed, because the resident doctor is not licensed. According to the website somekeyword, a -resident physician is a graduate and licensed physician receiving training in a specialty, usually in a hospital.- The resident's licensing status would not prevent the formation of an enforceable contract, as we have in this fact pattern, for treatment in the supervised residents' clinic at UTMC.

A patient's subjective perception is not controlling in determining whether a doctor/patient relationship exists; objective factors must be considered. See State v. Pitchford, 10 Kan. App. 2d 293, 697 P.2d 896, 900 (Kan.App. 1985) (applying the physician-patient privilege under K.S.A. 60-427). The question does not turn upon whether there has been voluntary consultation, but whether the encounter is "for purposes of treatment." Downey v. United States, 2000 U.S. Dist. LEXIS 19049 (D. Kan. Dec. 26, 2000)

In court, we would pose a series of questions: 1) Is the resident a graduate of a medical school? Yes! 2) Was our conversation focused on health care treatment? Yes! 3) Does the resident see other patients (whether supervised or unsupervised) in the resident clinic? Yes! 4) Are the resident's services billed to the U.S. government and to private insurers as the services of a doctor (not a student or a doctor's aide)? Yes! 5) Did we both use the term PCP in describing our relationship? Yes. 6) Did the resident undertake to assist me in obtaining a medical appointment to see him? Yes! With these answers, any court of law is going to recognize if it looks like a duck, swims like a duck, and quacks like a duck, then it is a duck. Therefore, UTMC's argument on licensing will be viewed as a red herring and will fail. In a similar vein, courts have noted -it is axiomatic that a doctor-patient relationship may arise from, briefly exist, and be limited by the unique circumstances presented in a transfer situation.- Sterling v. Johns Hopkins Hosp., 145 Md. App. 161 (Md. Ct. Spec. App. 2002). It does not matter how long the doctor has been seeing patients or how brief the contact with any given patient, a doctor-patient relationship can be formed.

In our society, the doctor-patient dialogue embodies a unique relationship of trust. The specialized nature of medical science and the emotional distress often attendant to health-related decisions requires that patients place their complete confidence, and often their very lives, in the hands of medical professionals. One seeks a physician's aid not only for medication or diagnosis, but also for guidance, professional judgment, and vital emotional support. Accordingly, each of us attaches profound importance and authority to the words of advice spoken by the physician. It is for this reason that we have guarded so jealously the doctor-patient dialogue from governmental intrusion. Rust v. Sullivan, 500 U.S. 173, 218 (U.S. 1991), Blackmun, J., dissenting.

Various cases arising in disparate legal situations speak of a zone of privacy in the patient physician-relationship and adumbrate, however peripherally, an individual autonomy interest in making decisions affecting the person's health, such as what prescription drugs he chooses to take off-label. See, e.g., Whalen v. Roe, 429 U.S. at 600(suggesting a constitutional interest in independent decision-making in "matters vital to the care of . . . health"); Andrews v. Ballard, 498 F. Supp. 1038 (S.D. Tex. 1980)(patients' constitutional privacy interests infringed by statute limiting who may practice acupuncture); England v. Louisiana State Bd. of Medical Examiners, 259 F.2d 626, 627 (5th Cir. 1958) (with respect to due process challenge to state restrictions on chiropractors, "the state cannot deny to any individual the right to exercise a reasonable choice in the method of treatment of his ills"); see also Doe v. Bolton, 410 U.S. 179, 219, 35 L. Ed. 2d 201, 93 S. Ct. 739 (1973) (Douglas, J., concurring) (speaking of "the right to care for one's health and person and to seek out a physician of one's own choice" as encompassed by the right of privacy).

Any cause of action filed against UTMC for enforcement of this contract based on a facial challenge to the department's -protocol- and to the authority vested in the Director of the Resident Program as interference in the doctor-patient relationship would sound in privacy. To the extent I would object to denial of access, I would allege violations of both due process or "liberty" rights as well as the right to privacy. In this case, due process required that I should have been afforded a fair hearing to challenge the Director's decision --- something UTMC CEO and Dean failed miserably to secure for me.

Selection of a PCP and other medical decisions are "core" private decisions. A fundamental tenet of privacy jurisprudence, as it has been applied to other types of personal matters, is that the individual most directly concerned is entitled to make and implement the protected decision autonomously and free from paternalistic government intrusion. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1978) (decision to marry); Moore v. East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (decision to live with extended family members); Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965)(reproductive choice). I would argue that the constitutional right to privacy also protects autonomy in selecting a PCP among a wide choice of available doctors, selecting which medications I want prescribed, and choosing what lab tests I want to order myself to monitor my health.

In 2005, the Supreme Court of Arkansas provided the best statement in American jurisprudence on the elevated status of the doctor-patient relationship. The court noted the relationship of doctor-patient is unique. -The loss of this relationship, even temporarily, causes irreparable damage to the doctor and the patient. There is no adequate remedy at law because the loss is a loss of a one-time opportunity.- Baptist Health v. Murphy, 362 Ark. 506 (Ark. 2005)

The court noted that the hospital had violated the Arkansas Department of Health rules and regulations for hospitals by failing to enforce policies that protected the doctor's selection of patients and the patient's choice of a physician. -We interpret this to mean that an otherwise qualified doctor must be granted access to his patient for the purpose of treating his patient, if that is what both the doctor and the patient want. Or, stated another way, a hospital cannot deny the services of a physician of the patient's choice if the patient is already being seen by physicians at the hospital. Baptist Health v. Murphy, 362 Ark. 510-511 (Ark. 2005)

Following this persuasive precedent, my resident doctor is -an otherwise qualified doctor- who must be granted access to me -if that is what the doctor and the patient want.- UTMC cannot deny me services of a physician of my choice from UTMC staff physicians, because UTMC has already accepted me as a clinic patient and billed my health insurance multiple times through the University Family Physicians. The Dept. of Medicine can try to claim I have not been accepted into that department, but the Dept. is not a legal entity apart from UTMC. Consequently, a judge would impose an order on UTMC, and the Dept. of Medicine would do whatever it was told to do by the CEO of UTMC to comply with the court's order.

Based on reading Baptist Health, I will now forward a copy of this article to the Tennessee Department of Health to determine whether UTMC violated any Tennessee regulations requiring Tennessee-licensed medical centers to have policies or bylaws that respect the patient's right to select his own physician. If so, then UTMC is violating those regulations.

The Arkansas Supreme Court noted that while both sides may have valid points, preventing -fracture of the doctor-patient relationship is paramount, and, therefore, the equities and public policy weigh in favor of maintaining the doctor-patient relationships.- Baptist Health v. Murphy, 362 Ark. 510-511 (Ark. 2005) The UTMC administrators are so grossly ignorant of the paramount importance of the doctor-patient relationship that they obsequiously adhere to department rules and -protocols- and permit them to block and interfere with doctor-patient relationships.

II. Tennessee's Tortious Interference Statute

Tenn. Code Ann. 47-50-109 is captioned, -Procurement of breach of contracts unlawful - Damages- and reads as follows:

It is unlawful for any person, by inducement, persuasion, misrepresentation, or other means, to induce or procure the breach or violation, refusal or failure to perform any lawful contract by any party thereto; and, in every case where a breach or violation of such contract is so procured, the person so procuring or inducing the same shall be liable in treble the amount of damages resulting from or incident to the breach of the contract. The party injured by such breach may bring suit for the breach and for such damages.

The Director of the Resident Program in the UTMC Department of Medicine tortiously interfered in my doctor-patient relationship and prevented the resident doctor from performing his services under our contract. She therefore procured a breach of that contract. The Director will argue that she was merely performing her duties, but that is no excuse for interfering in an existing doctor-patient relationship.

Although Tennessee jurisprudence does not have a case on point, courts across the country have taken a dim view and expressed disapproval of employer interference in the doctor-patient relationship. For example, the U.S. Supreme Court stated, -The ethical objection has been that intervention by employer . . . makes a tripartite matter of the doctor-patient relation. Since the contract doctor owes his employment and looks for his pay to the employer . . . rather than to the patient, he serves two masters with conflicting interests.- United States v. Oregon State Medical Soc., 343 U.S. 326, 329 (U.S. 1952).

The U.S. Court of Appeals for the Seventh Circuit stated, -[w]e emphasize that this is not a case where an employer at all interfered with an employee's doctor-patient relationship- and implied that the court's outcome would have been the opposite result if the employer had been found to interfere in a doctor-patient relationship. Fulk v. Illinois Cent. R.R., 22 F.3d 120, 125 (7th Cir. Ill. 1994). Similarly, state and federal courts reviewing Texas law have recognized the existence of claims for the tortious interference with the doctor-patient relationship. See Gillum, 778 S.W.2d at 565 (citing prospective patient referrals among contractual relations arguably subject to interference); see also Davis v. West Community Hosp., 755 F.2d 455, 466 (5th Cir. 1985) In addition, the supreme court of Kentucky has stated there is nothing more harmful to a good doctor-patient relationship than languishing in an overcrowded waiting room of a doctor who must be seen only because [a patient's employer] is preventing him from seeing his preferred choice of a doctor. Bowman v. Perkins, 135 S.W.3d 399, 405 (Ky. 2004).