An essential element of any medical malpractice action is the existence of a physician-patient relationship (31). Absence of a professional relationship between the physician and the patient, the physician owes no legal duty to the patient or others (31). Because polysomnographic data are easily digitized, instantly transmitted, and clearly reproduced on a video monitor or a compact printer, the sleep specialist's interpretation of the test can occur anytime and at any place. Often the physician's diagnosis of OSA occurs without the physician examining or even speaking with the patient. Questions may arise whether the sleep study patient and the distant reading physician have established a physician-patient relationship for purposes of a malpractice action.
The trend in recent case law is for courts to imply the existence of a physician-patient relationship among physicians unknown to the patient if the physician affirmatively undertakes to diagnose and / or treat the patient (32). A Texas case, Dougherty v. Gifford (33), is instructive. There, the patient's specialist sent a biopsy to his contracted pathologist who practiced in the regional medical center in Paris, Texas. The pathologist diagnosed cancer and aggressive treatments ensued, only to be discontinued when the pathologist admitted to having misread the biopsy (34).
Like most distant readers of sleep tests, the pathologist in Paris never intended to create a professional relationship with the patient. The pathologist never met the patient, did not review the patient's records, and only reviewed the specimen provided. The pathologist communicated the results to the patient's treating physician, who retained primary responsibility for the patient's care (35).
Nonetheless, the court found on these facts that a physician-patient relationship was created by the acceptance of the pathology work, the conduction of the tests, the preparation of a lab report, and the acceptance of a fee for the services rendered. The court stated that there could be no doubt that the diagnostic services furnished on behalf of the patient constituted the practice of medicine (36). As stated by the Tennessee Supreme Court in a similar case:
In light of the increasing complexity of the health care system, in which patients routinely are diagnosed by pathologists or radiologists or other consulting physicians who might not ever see the patient face-to-face, it is simply unrealistic to apply a narrow definition of the physician-patient relationship in determining whether such a relationship exists for purposes of a medical malpractice case. Based upon the foregoing authorities, we hold that a physician-patient relationship may be implied when a physician affirmatively undertakes to diagnose and/or treat a person, or affirmatively participates in such diagnosis and/or treatment (37).
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