Malpractice Consult

By Lee J. Johnson, JD

The risk of treating friends and family

• You owe the same duty of care to relatives as you do to all patients.

• You're better off having a colleague treat your relatives.

• Friends and relatives may sue if there's a poor result.

Q: One of the partners in my rural family practice recently provided complete breast cancer screening care for his sister-in-law. Are there any special liability risks in treating family and friends?

A: While there are no legal prohibitions against it, most experts think that treating relatives and friends can lead to problems—not only for the doctor, but his partners, as well.

With friends and family, there's often a tendency to keep things less formal than with other patients. That represents a legal danger. You owe the same duty of care to a friend or relative who becomes a patient as you do to a stranger.

That duty also applies to informal social situations, where you're asked to provide off-the-cuff advice. Say a relative at a party says, "Oh, I don't want to come into the office. Just take a quick look at this and tell me if I need to worry about it." Such casual advice (even without payment) creates a doctor-patient relationship, and a duty and a liability on the part of the doctor. That duty must be met in a professional manner.

So whenever you treat a relative or friend, have the person make an appointment and see him or her in the office. Keep a full record of the encounter, with the same level of documentation you do with any other patient. Handle follow-up, informed consent, compliance issues, and referrals the same way.

Remember that most states require proper charting as a condition of licensure. Failure to keep such records could constitute professional misconduct. Most malpractice lawsuits also depend on the medical record as evidence for the doctor's defense. So you owe it to your partners—who might be held liable, too—to go by the book. Juries and regulators won't be impressed with the argument, "Well, I didn't write everything down because this is my aunt, and things were more casual."

The potential for liability increases when patients have unrealistic expectations, ask for advice outside the doctor's specialty, or don't take the treatment seriously. All of these elements are more likely when treatment is by a friend or relative. Does the person think he won't be billed, or will get a discount? Such misunderstandings can lead to bad feelings. Your own expectations also come into play. Don't assume that your uncle will excuse a poor result because you're his favorite nephew. There have been plenty of lawsuits involving patient-relatives suing their doctors.

Finally, treating relatives represents an increased legal risk to your partners, who share liability with you. It's best to develop a verbal policy that all friends and relatives be treated by other members of the partnership, in the same manner as other patients. This helps standardize things, so that the young doctor entering the practice isn't left on his own explaining to Aunt Tillie why he can't treat her. He can point to the existence of a partnership-wide policy.

I wouldn't put the policy in writing, though. That may create a legal document and standard that a doctor can be held to if, in fact, he does treat a relative, who later sues.

 

Lee Johnson. Malpractice Consult: The risk of treating friends and family. Medical Economics Dec. 19, 2003;80:72.