What Triggers a Doctor-Patient Relationship in Utah?

As every physician knows, the existence of a doctor-patient relationship triggers a duty of care. Where there is no duty, a medical malpractice claim fails as a matter of law. This article explores whether a doctor-patient relationship exists in the context of:

• • an independent medical examination (IME) or
    
    
  • reviewing a prospective patient’s medical records to evaluate whether to accept the patient.

Do IME Doctors Owe a Duty of Care to the Examinee?

Does a physician performing an independent medical examination on behalf of a third-party have a doctor-patient relationship with the individual being examined? In Utah, the answer is no. 

Utah Court of Appeals: Joseph v. McCann

In 2006, the Utah Court of Appeals addressed this issue in Joseph v. McCann¹. In that case, the plaintiff, Robert Joseph (“Joseph”) was employed by Salt Lake City (“City”) as a police officer. While on duty, Joseph shot and injured a motorist. As a result of this shooting, Joseph was subsequently suspended, and he ultimately terminated his employment. Several months later, the City reinstated Joseph on the condition that he submit to an independent medical examination (“IME”). The purpose of the IME was to investigate Joseph’s psychiatric fitness for duty. Joseph agreed and the City subsequently retained Dr. David McCann (“Dr. McCann”), a psychiatrist, to conduct the IME.

Dr. McCann conducted a psychiatric-focused IME, which consisted of evaluating Joseph’s personnel records, psychiatric testing, and a psychiatric interview. At the time of the interview, Dr. McCann required Joseph to sign a written statement, which included an acknowledgment by Joseph that Dr. McCann's role in performing the evaluation was only to provide an assessment to the City and not to offer treatment to Joseph.

Following completion of the IME, Dr. McCann prepared a report and provided it to the City. The report included Dr. McCann’s opinion that Joseph was not psychologically fit to perform the duties of a police officer. Based in part on Dr. McCann's report, the City terminated Joseph's employment.

Joseph subsequently commenced a medical malpractice lawsuit against Dr. McCann, alleging that Dr. McCann breached his duty of care to Joseph by not performing a complete and competent evaluation. In response, Dr. McCann argued that because he was acting as an independent medical examiner, he did not have a doctor-patient relationship with Joseph and, therefore, owed him no duty.

The case went up to the Utah Court of Appeals in 2009. The issue before the Court was whether IME doctors have a doctor-patient relationship with the examinee, such that a duty of care is triggered. In deciding that question, the Court of Appeals examined the following definitions of “patient” and “health care” in the Utah Health Care Malpractice Act (the “Act”):

• • ‘Patient’ is defined as "a person who is under the care of a health care provider, under a contract, express or implied."²
    
    
  • ‘Health care’ is defined as "any act or treatment performed or furnished . . . by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement."³

Based on these definitions, the Court reasoned that Joseph did not seek treatment from Dr. McCann and Dr. McCann did not provide treatment to Joseph, nor was Dr. McCann under an express or implied contract to provide health care to Joseph. Therefore, no doctor-patient relationship existed.

Utah Supreme Court: Kirk v. Anderson

More recently, the Utah Supreme Court addressed the same issue in Kirk v. Anderson⁴ and echoed the reasoning of the Utah Court of Appeals in the Joseph case. The Kirk case involved the following facts:

• • The plaintiff, Jeremy Kirk (“Kirk”), sustained injuries from a motorcycle accident while on the job as a plumber.
    
    
  • Kirk subsequently filed a claim for workers' compensation benefits through his employer.
    
    
  • The workers’ compensation insurance carrier arranged for an IME with Dr. Mark Anderson (“Dr. Anderson”).

Dr. Anderson submitted a report to the insurance carrier after reviewing Kirk’s medical records and meeting with him. Dr. Anderson's report concluded that the accident caused Kirk to suffer a transient cervical strain and that all other symptoms that Kirk complained of were secondary to pre-existing conditions. Dr. Anderson further concluded that Kirk achieved maximum medical improvement, did not qualify for an impairment rating, and could return to work. Importantly, Dr. Anderson's report noted that he had informed Kirk that he was performing an independent medical evaluation and, as such, they were not establishing a doctor-patient relationship.

Kirk subsequently brought a medical malpractice lawsuit against Dr. Anderson. The Utah Supreme Court ultimately concluded that a doctor-patient relationship did not exist between Dr. Anderson and Kirk. The Court based its decision on policy considerations. First, the Court held that independent medical examinations are generally not performed for purposes of providing treatment, but rather to provide independent information that either corroborates or calls into question the injuries claimed. The Court further held that in addition to furnished treatment, there must be an express or implied contract to provide health care, where the patient specifically seeks treatment and the physician agrees and provide that treatment. No such agreement existed in either Joseph or Kirk. In fact, the IME doctors in both cases provided disclaimers that unambiguously denied the existence of a doctor-patient relationship.

IMES and Doctor-Patient Relationships in Utah: Takeaways

A few general principles can be distilled from Joseph and Kirk:

• • First, an IME doctor, generally speaking, does not have a doctor-patient relationship with the subject examinee.
    
    
  • Second, a doctor-patient relationship exists where there is a contract (expressed or implied) between a patient seeking treatment and the doctor agreeing to provide treatment and an act that constitutes treatment.
    
    
  • Third, while a physician’s disclaimer of a doctor-patient relationship, standing alone, is not a dispositive factor, they are, nonetheless, considered by Utah courts.

Does Reviewing a Prospective Patient’s Medical Records Trigger a Legal Duty?

Utah courts have not yet gotten an opportunity to answer the question of whether a physician’s screening process (by way of reviewing a prospective patient’s medical records) triggers a legal duty. Given Utah’s disposition toward the broader issue of what constitutes a doctor-patient relationship, it is unlikely a court will find that reviewing a prospective patient’s medical records gives rise to a doctor-patient relationship.

In a case heard by Utah Court of Appeals in 1995, the Court stated:

“Medical providers must be given the freedom to determine when they are able to render proper medical assistance. Otherwise it would be impossible for a doctor to refer a patient to another medical provider or decline to take a case in an area about which he or she has no expertise without exposing himself or herself to a claim of abandonment.”⁵

While Utah courts have not determined the specific question of whether reviewing a prospective patient’s medical records triggers a legal duty, the answer to the broader question of when a legal duty arises suggests that reviewing medical records will not give rise to a doctor-patient relationship. 

Generally speaking, a doctor-patient relationship is created when a physician undertakes treatment of a patient or has agreed to accept a particular person as a patient. Whether any “treatment” has been furnished is a fact-intensive analysis that typically requires expert testimony.⁶ Once a physician has agreed to assume care of a patient, the physician has the right to withdraw from a case, but if the patient requires further medical or surgical attention, the physician must, before withdrawing from the case, give the patient sufficient notice.⁷ The moment a doctor-patient relationship is entered into, the physician owes a duty to the patient either to continue care or to properly terminate the relationship.

Ethical Considerations

In addition to the legal considerations on the issue of screening patients, there are also ethical principles that provide broader guidance. One of the most vexing—and perhaps controversial—issues in healthcare is whether doctors can “cherry-pick” their patients. The practice of “cherry-picking” involves selectively choosing patients based on various factors, such as the patient’s health, complexity, and insurance status.

According to the American Medical Association’s (AMA) most recent ethical guidelines, physicians have “ethical responsibilities not to discriminate against a prospective patient on the basis of race, gender, sexual orientation or gender identity, or other personal or social characteristics that are not clinically relevant to the individual’s care. Nor may physicians decline a patient based solely on the individual’s infectious disease status. Physicians should not decline patients for whom they have accepted a contractual obligation to provide care.” However, “physicians are not ethically required to accept all prospective patients. Physicians should be thoughtful in exercising their right to choose whom to serve.”

A physician may decline to establish a doctor-patient relationship with a prospective patient or provide specific care to an existing patient in certain limited circumstances, such as the practitioner’s lack of competence, the practitioner’s lack of resources, or abusive behavior on the part of the patient.⁸

This article is intended only to provide a cursory glance at the issues presented and is not meant to capture the nuance of the various considerations at play. While articles like this can provide valuable snapshots of the legal landscape, physicians faced with specific questions related to the existence and scope of their legal duties should consult a healthcare attorney.

_{[1] Joseph v. McCann, 147 P.3d 547, 2006 UT App 459.}

_{[2] Utah Code Ann. § 78-14-3(22).}

_{[3] Id. § 78-14-3(10).}

_{[4] Kirk v. Anderson, 496 P.3d 66, 2021 UT 41.}

_{[5] Sutton v. Young, 69 F.3d 548 (1995).}

_{[6] Newman v. Sonnenberg, 81 P.3d 808, 2003 UT App 401.}

_{[7] Ricks v. Budge, 91 Utah 307, 64 P.2d 208, 212 (1937).}

_{[8] Emergency medicine physicians cannot “cherry-pick” their patients and have a duty to anyone and everyone who presents to the emergency department. In 1986, the federal government enacted the Emergency Medical Treatment and Labor Act (EMTALA), also known as the “patient anti-dumping statute,” which provides that anyone who presents to the emergency department (and in certain circumstances, an urgent care center) is entitled to a medical screening, without regard to their insurance status, ability to pay, citizenship, or any other reason. The practical result of EMTALA is that the emergency room is the only forum within healthcare that is impervious to “cherry-picking.”}