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White v. Harris

Citation. White v. Harris, 36 A.3d 203, 2011 VT 115, 190 Vt. 647, 2011)
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Brief Fact Summary.

As part of a telepsychiatry research study, Plaintiffs’ minor daughter was treated for a short time by a psychiatrist working for Fletcher Allen Health Care, Inc. (Defendant).  Following the end of the study, no further treatment or follow-up services were provided.  The Plaintiff’s daughter committed suicide, and Plaintiffs alleged the doctor (Defendant) breached his duty of care.

Synopsis of Rule of Law.

A doctor cannot limit his duty of care by contract.


After their fourteen-year-old daughter committed suicide, Plaintiff’s sued Fletcher Allen Health Care, Inc. (Defendant) whose psychiatrist was briefly involved with the case of the decedent through a telepsychiatry research study.  As part of the study, Plaintiffs and decedent completed pre-assessment documentation, participated in a ninety-minute videoconference session with the psychiatrist, and completed a questionnaire regarding their reaction to using telemedicine.  The psychiatrist later completed a consultation evaluation that described decedent and the history of her present illness.  The doctor also gave his diagnostic impression of decedent in the evaluation and presented recommendations for her initial treatment plan.  Specifically, the evaluation stated that, in accordance with the telepsychiatry research protocol, no follow-up services would be provided and no medication prescriptions would be directly provided by the doctor.  The report also explained that the recommended plan of treatment to possibly be implemented was to be considered by decedent’s treatment team, including her primary care physician.  After the psychiatrist sent his evaluation, he had no further contact with Plaintiffs, decedent, or any member of her treatment team.  Following her suicide, Plaintiffs sued alleging that the treatment of decedent by Defendant, among eight doctors and medical care providers, “fell below the standard of care required of reasonably skillful, careful, and prudent professionals,” and that she soon died as a result.  Defendant moved for summary judgment asserting that its doctor had no duty to decedent when she committed suicide because a doctor-patient relationship had not been established.  On the other hand, Defendant argued that any such relationship was formally terminated in writing after their one-time interaction.  The trial court agreed that no duty existed at the time of decedent’s death and granted summary judgment.  Plaintiffs appealed.


Can a doctor limit his duty of care by contract?


(Reiber, C.J.)  No.  A doctor cannot limit his duty of care by contact.  Plaintiffs argue that the court erred in finding that no duty was owed to the decedent by the doctor.  They maintain that the doctor had a duty to practice reasonable care to protect decedent from the danger she posed to herself, and that the doctor did not effectively terminate the doctor-patient relationship before decedent’s death.  This court is in agreement that a duty to the provided service applies.  The doctor had a duty of due care in his professional contact with decedent, which was not eliminated by the procedure followed to end their professional relationship.
  In assessing if a duty exists or not, the question is whether the relationship of the parties caused the defendant to be under an obligation to use some care to avoid or prevent injury to the plaintiff.  In determining if duty of care exists, courts consider relationship between parties, nature of the risk (including whether it was foreseeable), and public policy implications of imposing a duty on defendant to protect against the risk.  In the analysis of similar circumstances, other courts have considered the following factors:  (1) whether the doctor was in a unique position to prevent harm, the burden of preventing harm, (2) whether the plaintiff relied upon the doctor’s diagnosis or interpretation, (3) the closeness of the connection between the conduct of defendant and the injury suffered, (4) the degree of certainty that the plaintiff has or will suffer harm, (5) the skill or special reputation of the actors, and (6) public policy.
  The facts here reveal the consultation was of limited duration.  Decedent and her mother (Plaintiff) signed an informed consent form, and the doctor stated in writing that the scope of his services was limited.  At the same time, however, there is no argument that the doctor performed a psychiatric evaluation of decedent, which was followed by recommendations by the doctor for initial treatment for the decedent.  The record reveals the parties’ expectation that the doctor would aid in decedent’s treatment through his expertise, regardless of the instrument of doctor-patient contract.  In requesting a consultation with the doctor, decedent’s treatment team specifically sought recommendations about decedent’s medication, especially because of an increase in decedent’s angry and aggressive behavior and self-mutilation.
  The decedent’s medical records may not have been provided to the doctor, but the doctor was provided with a very recent medical evaluation of decedent performed by another doctor, which was supplemented by additional information about decedent from decedent’s treatment team.  This included information that decedent had a history of depressive behavior and had recently shown increasing angry, aggressive behavior, and more frequent cutting behavior.  This information together is relevant to the scope of the professional relationship from which Defendant’s duty arose and it helps to frame the applicable standard of care.  These facts sufficiently support the existence of a duty in this case.
  A professional consultation may arise in various circumstances.  Defendant’s involvement was limited in this case, but not non-existent.  It may be analogized to cases where a doctor is asked to perform an independent medical examination (IME) of a patient as part of a legal investigation or an insurance claim.  As in the current case, an IME doctor usually does not see the patient again or maintain an ongoing relationship with the patient, but instead the doctor performs a limited analysis of the patient’s condition that is provided to a third party.  Many courts addressing IME cases have concluded that an IME creates a doctor-patient relationship that “imposes fewer duties on the examining physician than does a traditional physician-patient relationship,” but “still requires that the examiner conduct the examination in such a way as to not cause harm.”
  In this case, the relationship between the doctor and patient was even more direct than with an IME doctor retained by a third-party.  The Defendant became involved on referral from the treatment team of decedent and reported his findings and recommendations to them after the evaluation.  In this case, the ninety-minute consultation performed created a doctor-patient relationship.  It is acknowledged that the telepsychiatry research study the doctor conducted provided no treatment component directly to the decedent, except for recommendations to her treatment team.  Through this consultation, however, a limited doctor-patient relationship was established and it is concluded that a duty of due care applies.  Through this consultation, Defendant assumed a duty to act in a manner in line with the applicable standard of care so there is no harm to decedent through the consultation services provided.
  Even if the doctor-patient contact had ended, the doctor still has a responsibility for the consequences of any lapses in his duty to provide services in line with the applicable standard of care for the consultation.  A doctor must exercise the degree of care ordinarily exercised by a prudent health care professional who is reasonably skillful and careful while engaging in a similar practice under the same or similar circumstances.  A doctor may be liable for malpractice if as a proximate result of the failure to exercise this degree of care the plaintiff suffered injuries that would not have occurred otherwise.  Whether or not a doctor has stopped treating a patient is not relevant to whether he or she may be held liable for injuries that resulted from a failure to exercise the proper degree of care while treating the patient.  It is the responsibility of the doctor for the services provided that is significant here, and not only the duration of the doctor-patient relationship itself.
  This lawsuit is in its formative stages.  Six months after the complaint was filed, the motion for summary judgment was filed and raised the single question of the duty of care of this consulting doctor.  The remaining elements of Plaintiffs’ claim have not been fully developed yet, and Defendant did not move for summary judgment on these elements.  Concluding that a duty exists, the trial court’s decision is reversed and remanded.


In a true test regarding the proper expectations of both the treating doctor and the patient (or patient’s parents), the court found that the doctor could not simply limit his duty of care by contract.  The multi-part test affirmed by the court shows that there are more professional responsibilities that cannot be fulfilled simply by agreement.  This is not to confuse the issue of the standard or quality of care, but rather if a doctor can conclusively withdraw from a patent without maintaining some measure of concern for the patient’s well-being.  Here, the threshold issue was resolved.  The doctor did not effectively end the doctor-patient relationship and may still be liable for the consequences of poor care.

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