Watch out for the curb

You are attending an all day course on adult interdisciplinary orthodontics. There are about 50 doctors in attendance. Five speakers are slated to speak on various topics. One of the lectures sounds really interesting. The presenter is going to discuss key differential diagnostic considerations in the treatment of the adult interdisciplinary patient. Part of what makes this particular lecture interesting is that all of the attendees were asked to bring the records of a difficult case to the meeting, a few selected attendees would then present the case to the audience after which the presenter would discuss the case, with audience participation expected. It is a unique format and one that hasn’t been tried at any of the meetings you usually attend. At any rate, you bring a case, you present it, and it gets batted around by the audience; the presenter then takes all of the comments, melds them together into a cogent analysis, and gives his opinion, which carries with it some insights and nuances you didn’t think of. All in all, it is a good lecture, you learn something, and you go home knowing that this time, the registration fee was well worth it.

A few days later, the patient whose case you presented comes to the office. You explain to her what you propose to do, which is based in large part on what the presenter at the seminar said. She accepts your treatment plan, and as Murphy’s law dictates, in the end, the treatment does not go well. During the give and take with the patient about the hows and whys of her winding up in the position she finds herself, you just happen to mention that you presented her case at a meeting with a number of colleagues (no you didn’t identify her), and you describe the consensus diagnosis and the treatment plan as outlined by the seminar presenter (you followed it to the “t”). The end result is that she sues you. After a lengthy trial, you win. As Paul Harvey used to say, “and now for the rest of the story.”

The plaintiff, still injured, still unrewarded, and still angry, now goes after the seminar presenter, claiming that as a noted authority on adult interdisciplinary care, and because of his participation in the diagnosis and treatment planning of her case, the seminar presenter was in essence serving as your consultant. She claims that his recommendations about her diagnosis and treatment were ill founded, done without proper examination, and were based on insufficient information. These are essentially the facts in Rainer v Grossman , 31 Cal. App. 3d 539 (1973), a case that is almost 40 years old and still cited today for its precedential value. The question is, can a consultant be found to be liable for offering diagnostic and/or treatment advice about a patient in a lecture setting? Most lecturers I know routinely get questions about a case from an audience participant and almost always respond with some type of advice or recommendation. Hmmm.

The court noted at the outset that it would not be blazing a new trail in its analysis of this case because the determination was straightforward. Straightforward for them, but good knowledge for us. The first element in any malpractice case is that any negligence had to be committed within the context of a doctor-patient relationship. If a doctor-patient relationship doesn’t exist, no duty to conform to any established standard of care can exist.

Since there was no doctor-patient relationship, could a different theory of imposed duty to care for another be ascertained? The court put it this way: the defendant used, as a teaching vehicle, cases presented to him by his pupils. The defendant rightfully conceded that he knew that his opinion would become part of the total information that the treating doctor would rely on in his ministrations to his patient. The court went on to state that virtually every professor in a professional school “hopes, expects or foresees that his students will absorb and apply in their own careers at least some of the information he imparts. Does he thereby assume a duty of care and potential liability to those persons who may ultimately become the clients or patients of those students? We think not.”

The court looked at this issue and decided that it was really a question of privity, which essentially means that there is a legally recognized relationship between the parties such that one can impute liability to the other. In our situation there is no question that privity existed between the doctor and his patient. The question is, was there privity between the lecturer and the patient and did that relationship rise to the level that liability could be imposed? The court in answering this question pointed to the decision in another case as the yardstick to be used to resolve questions of this nature. In that case, the court noted that to find privity is a matter of public policy and involves a balancing of numerous factors such as:

…the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm. (Cit. Omit.)

In addition, the court cited another case that added additional considerations that needed to be balanced into the equation, they were:

(1) the social utility of the activity causing the injury compared with the risks involved in its conduct; (2) the kind of a person with whom the actor is dealing; (3) the workability of a rule of care especially in terms of the parties’ relative ability to adopt practical means of preventing injury; (4) the prophylactic effect of a rule of liability. (Cit. Omit.)

The court fashioned its holding, using the above-noted factors, and stated that first, there was no claim made that the defendant’s conduct was morally blameworthy. To the contrary, there is tremendous social benefit to doctors seeking and obtaining continuing medical education from others within the ranks. The court also noted that the “case method” of instruction has been universally adopted as a teaching methodology and to require the teacher to personally examine and evaluate each and every patient to the extent that a physician-patient relationship is established would place a chilling effect on the ability of doctors to educate their peers. In addition, the lecturer was dealing with attendees who were not necessarily local practitioners, and there was never any contemplation that the attendees were in any way under the direction or control of the defendant. Also, the defendant was entitled to believe that the attendees would rely on their own ultimate opinions, fashioned from the constellation of findings, opinions, and experiences both firsthand and vicarious, as well as other collected information from whatever sources, in determining the manner in which they would ultimately treat their patients. Finally, imposing liability in this type of situation would be counterproductive in that it would stifle efforts at improving medical care rendered to the public at large.

The court ruled in favor of the defendant that since the defendant owed no duty to the patient and no privity existed, there could be no finding of liability.


Many doctors worry about offering professional opinions at parties, sporting events, and other out-of-office venues. If you are talking to a prospective patient or guardian of same, you should worry. In that situation you are talking to the patient or the parent of the patient. However, it is possible that if everything lines up just the wrong way, you could be liable. It would have to be different from our case in which one doctor is soliciting input from another about a patient who is located at some distance and whom the solicitee has never seen or examined. There was no fee charged. There was no contractual relationship, privity, between the patient and the party whose advice was being solicited.

Okay, but what about this? Your patient has some really unique aspects to her case. Frankly, they are considerations that you have not run across before. When you have your consult with the patient you tell her that her case is very unusual—no, better to say unique—and that you will be happy to see what the big mucky mucks in orthodontics would say. She asks you, “like who?” and you give her some names of colleagues whom you believe to be more expert than you are—you know, the guys who write the books and the articles and who run around the country giving lectures. The authorities, the gurus, the mavens. When she next meets with you she asks you what Dr. so-and-so said. You tell her about your in-depth conversation, how you went over her case in detail with this person, what he or she said, recommended, choices, so on and so forth. At this point, dear reader, the line should be becoming grayer, more blurred. I think I’ve made my point.

Curbside opinions are just that, colleagues asking each other for their opinions and advice. In that context, no harm, no foul. However, sometimes curbside opinions, when the circumstances are just a bit askew, tend to become much more, especially when we start to walk hand-in-hand around the block.

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Apr 13, 2017 | Posted by in Orthodontics | Comments Off on Watch out for the curb
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