Does Reviewing Potential Patients' Medical Records Create Legal Duties?

As a general rule, physicians are under no obligation to treat a patient unless they choose to (so long as the refusal to treat is not discriminatory). However, medical practices are increasingly requesting that potential patients provide baseline information so the practice can decide whether to accept an individual as a new patient. Screening questions may include reason(s) for changing providers; name of health insurer; whether the patient is taking controlled substances; and/or whether the patient is willing to have an annual physical examination.

In some circumstances, practices may ask to review patients’ prior medical records as part of the screening process. This article addresses whether review of a prospective patient’s medical records may create a legal duty and, therefore, risk to the physician.

What Does Arizona Law Say About When a Physician Owes a Duty to a Potential Patient?

A physician-patient relationship is generally formed when the physician affirmatively acts on a patient’s behalf by examining, treating, and diagnosing. However, in Arizona over the past two decades, courts have progressively expanded the legal duty that physicians owe to patients (and potential patients). The following cases are illustrative:

In Diggs v. Arizona Cardiologists, Ltd.,¹ the Arizona Court of Appeals held that an express physician-patient relationship need not exist before a physician owes a duty of care to an individual. In Diggs, a cardiologist who had not seen the patient was held to owe a duty to the patient when he provided medical advice to an emergency physician regarding the patient’s care.

In Stanley v. McCarver,² the Arizona Supreme Court expanded a physician’s duty further by finding that a physician-patient relationship existed even though the physician was retained by the patient’s employer for a pre-employment chest x-ray.

In Estate of Maudsley v. Meta Services, Inc.,³ the Arizona Court of Appeals found that a mental health services provider owed a duty of care to a person who was dropped off for a mental health evaluation and who ultimately was hit by a car, and died ten months later following complications.

When May a Physician Owe a Legal Duty of Care Even Though No Traditional Physician-Patient Relationship Exists?

Arizona courts demonstrate that there are a wide variety of situations where physicians may owe a legal duty of care to patients and others seeking “non-treatment” medical expertise. These situations may include the following:

• Circumstances where physicians provide pre-employment medical screenings;
  
  
• Screenings in connection with applications for Social Security Disability Insurance, life insurance, admission to educational institutions, workers compensation and other social programs;
  
  
• Physicians who perform “utilization management” for managed care organizations; and
  
  
• Mental health providers who examine individuals’ medical records as part of a custody evaluation.

What Factors Do Courts Consider in Determining Whether a Physician-Potential Patient Relationship is Sufficient to Create a Legal Duty of Care?

A common theme underlying a court’s finding that a duty is owed is that the more information a provider learns about an individual and his or her medical condition, the more likely a duty will be imposed. This may be particularly true where the physician has unique knowledge or expertise that is germane to the individual’s condition. Thus, courts have determined that a “sufficient relationship” triggers the physician’s duty to act reasonably and prudently to protect the patient from harm.

A case to the contrary, Woolbright v. Prince⁴ provides a good example of an insufficient relationship whereby no duty can be imposed. Plaintiff Woolbright sued Dr. Prince and his practice, alleging medical malpractice, arising out of Dr. Prince’s involvement as a witness in Woolbright’s divorce and custody proceedings. As part of the divorce proceedings and custody evaluation, Woolbright’s ex-wife asked Dr. Prince to interview the couple’s four children on a few occasions and submit his findings to the court. During the litigation, Woolbright conceded that he did not have a doctor-patient relationship with Dr. Prince. However, Woolbright argued that Dr. Prince owed Woolbright a duty by virtue of Dr. Prince’s custody evaluation which contributed to Woolbright’s marriage dissolution.

The Arizona Court of Appeals, relying on Stanley v. McCarver and Ritchie v. Krasner,⁵ explained that a physician may have a duty to individuals, even in the absence of a formal relationship. The Court rejected Woolbright’s arguments that Dr. Prince owed a duty to him, however. Instead, the Court found that while Dr. Prince’s examination may have created a duty to Woolbright’s children, Woolbright could not credibly argue that Dr. Prince’s actions created a duty to Woolbright or his ex-wife.

Screening a Patient via Medical Records Review Likely Creates a Duty to the Patient

Arizona case law has generally expanded the physician’s legal duty to patients and those in “non-treatment” relationships with providers. Therefore, it is likely that a court would find that a physician who reviews a patient’s medical records as part of a screening process establishes a “sufficient relationship” to trigger a duty of care.

Managing Risk

Whenever a duty of care exits, there is medical professional liability risk for physicians and practices. To manage the risk associated with reviewing individuals’ medical records before agreeing to provide care, consider two options:

• • Do not use records review as a screening tool. Wait until you agree to provide care to review records. Screening without records review, using only routine questions such as those listed above, is unlikely to create a sufficient relationship that could trigger a duty.
    
    
  • If records are used for screening, review carefully! If the records contain significant information that a reasonable physician would inform a patient of, the physician should communicate with the individual to protect the individual from harm regardless of whether the physician agrees to provide care. In this situation, it is prudent for the physician to either call or see the potential patient in person to discuss the concerning information. Follow up by documenting the discussion in a letter to the patient (if the physician has decided to refuse to treat) and a medical chart entry. 

In summary, reviewing medical records as part of a screening assessment for new patients is likely to create a duty to the patient, which could expose the reviewer to potential liability. This could occur where the reviewer misses or fails to recognize significant information that should have been communicated appropriately to the patient to prevent harm.

^{[1] 198 Ariz. 198 (App. 2000).}

^{[2] 208 Ariz. 219 (2004).}

^{[3] 227 Ariz. 430 (App. 2011).}

^{[4] Woolbright v. Prince, No. 1 CA-CV 14-0544, 2016 WL 1211720 *2 (Ariz. Ct. App. Mar. 29, 2016).}

^{[5] 221 Ariz. 288 (App. 2009)}