Medical Malpractice Liability in the Information Age – the Evolution of the Physician-Patient Relationship on the New Healthcare Frontier

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I. Introduction:
The healthcare frontier has changed in the information age. From the advent and increasing use of telemedicine and cybermedicine, to the use of other medical informatic advances such as medical monitoring, electronic health records and national health information networks, access to cutting edge healthcare is now available to all, even those in rural and underserved areas. The geographic, temporal and economic barriers to providing healthcare have been virtually eliminated through information technology and the ease of travel for locum tenens physicians to provide temporary physician services. As these barriers and boundaries have eroded, so too have the boundaries of the traditional physician-patient relationship.

Increasingly, New Hampshire hospitals are turning to telemedicine, medical informatics and locum tenens physicians to provide medical services to New Hampshire patients. This is reportedly due, in part, to the rising costs of health care and the difficulty in hiring full time providers in certain specialties in rural areas. Only rarely now do patients have longstanding relationships with their treating physicians. By outsourcing the medical services they are providing to remote radiology or other medical specialty groups and locum tenens providers, hospitals now routinely disclaim liability for the services provided by these “independent contractors” when malpractice occurs. At the same time, the remote contracting consultant disclaims liability by denying the existence of a physician-patient relationship because he or she has never formally met the patient to provide traditional medical care or treatment. When this happens, the patient who is the victim of malpractice can be left catastrophically injured, with no recompense for his or her injuries.b
Individual medical malpractice defendants now routinely argue that electronic or telephonic medical consultations can never give rise to a duty of care owed by a physician because the physician never personally meets the patient or actively participates in the patient’s care so no duty can arise. If this argument is taken to its full extent, however, no physician consulting on a patient’s case without personally meeting a patient can ever owe a duty to a patient. This would mean that there is no duty owed by a radiologist interpreting films, by a pathologist interpreting slides from accession numbers, by a laboratory worker testing blood, or by any physician providing a telephonic consultation on a patient’s case, regardless of the nature of that consultation or the patient’s outcome. This theory would absolve all potential medical malpractice defendants providing specialty medical services from ever being sued by a victim of malpractice.
This is not the law in New Hampshire and it is inconsistent with the nationwide trend that is shifting away from the traditional view of physician-patient relationships based on personal interaction, by recognizing the evolving nature of how health care is provided in the United States and by conducting a qualitative analysis of the facts and circumstances surrounding how the patient receives medical care. The nationwide trend is that electronic, telephonic and remote medical consultations, as well as any other consultations such as radiology, pathology or other specialized services, will create a physician-patient relationship and give rise to a duty owed by a physician if the consultation or service provided involves the medical management and treatment of a patient, because it is the medical treatment provided (or not provided) that dictates the patient’s outcome.
II. The Framework of the New Healthcare Frontier:
For purposes of this article, medical informatics, cybermedicine and telemedicine all fall within the spectrum of telemedicine. Broadly defined, telemedicine involves any exchange of healthcare information from one site to another through an electronic medium to provide clinical services or consultations to a patient or to otherwise improve or monitor a patient’s health status. Telemedicine includes telephonic, video or internet consultations on a patient’s case. It includes the provision of specialty referral services through the electronic transmission of still or digital images of radiology studies, pathology studies, or other diagnostic tests for interpretation. It also includes remote patient monitoring of vital signs or other lab values. Finally, telemedicine can incorporate patient education and health information access.
The New Hampshire legislature has recognized at least one form of telemedicine by defining teleradiology as “the evaluation, interpretation, or consultation by the electronic transmission of radiologic images from one location to another.” Indeed, any physician who provides radiology services such as “diagnostic evaluations or interpretations for New Hampshire patients by means of teleradiology” is considered to be practicing medicine. Based on this definition, presumably, the New Hampshire legislature and judicial branch would agree that any evaluation, interpretation or consultation on a New Hampshire patient’s medical care via telephonic or electronic means would encompass the practice of medicine as well.
The acceptance of telemedicine and its associated technologies as part of routine medical care will certainly increase access to healthcare for New Hampshire residents and may control some health care costs for New Hampshire medical providers. It cannot, however, be allowed to decrease the quality of care provided to New Hampshire patients and physicians providing telephonic or electronic medical care or consultations must be held to the same standards as those who meet patients in their offices.
The difficulty with telemedicine is that it can transcend the conventional limitations of time and place that are clear in a traditional clinical interaction between physician and patient. The scenarios where telemedicine can be used are varied and can include: (1) remote communication between a patient and a doctor; (2) remote communications between two doctors; (3) remote communication between a patient, a local doctor and a remote consultant; and (4) remote communication between a nurse or medical technologist and a doctor. These varied scenarios give rise to many legal issues that will have to be addressed by New Hampshire courts, such as when the remote consultant owes a duty of care to the patient and when the healthcare institution or technology provider owes a duty of care to the patient if the technology fails to work and a patient is harmed. Many other administrative issues also arise, such as licensing, credentialing and liability of remote providers; use and access concerns such as privacy and confidentiality; and economic issues such as payment, reimbursement, and cost effectiveness. This article focuses on the issues surrounding the evolving physician-patient relationship and when a remote consultant owes a duty of care to the patient who received the benefit of the consultation.
III. The Law
Medical malpractice developed as a theory of liability distinct from common law negligence, and it is based on principles of both contract and tort. It is premised on the existence of a physician-patient relationship, which is grounded in contract principles, express or implied, that the physician will treat the patient with the proper skill and care. The duty for physicians to refrain from injuring patients, however, is based on traditional negligence law and requires no prior contractual relationship. Thus, cases analyzing the duties owed by remote or invisible physician consultants look at many issues including whether injury to the patient is foreseeable; whether the asking physician would rely on the consultant’s advice and subordinate his or her judgment to provide patient care; whether the consultant is required by contract to provide consulting services to patients; and the level of involvement the consulting physician has in the diagnosis, management or treatment of a patient.
A. Legal Duty of Care
Whether or not a physician-patient relationship exists, a consultant, remote or otherwise, owes a legal duty of care to all patients for whom he or she provides medical advice on their management and treatment plan to another physician to provide that advice reasonably, because those patients can be foreseeably harmed by negligent medical advice. This is true whether the physician provides that medical advice or consultation directly to the patient, to another physician or even to a nurse or medical technologist who transmitted tests or studies to the consultant on a patient’s behalf.
In New Hampshire, whether a duty exists in a particular case is a legal question. Duties, however, are exceedingly artificial concepts. They can be imposed by law or they can be voluntarily assumed. Indeed, “one who gratuitously or contractually provides services may be liable to third parties for a foreseeable harm resulting from a breach of a duty of care.” The New Hampshire Supreme Court has recognized that a professional person acting in the course of his or her employment may even owe a duties of care to third parties in certain circumstances. Such duties have been found to be owed by attorneys to third-party beneficiaries of wills; by investigators to the subjects of their investigation; by accountants to the third parties who rely on their work; and by banks to beneficiaries of accounts with survivorship features. The theme common to all of these cases in imposing a duty is the foreseeability of injury to a third party or beneficiary of the professional services being provided. At least one physician has acknowledged that forseeability can give rise to a duty of care by a physician in electronic consultations by noting that “a physician-patient relationship is established when[ever] a physician exercises independent medical judgment on a patient’s behalf, whether implicitly or explicitly.” The key is whether a patient or consulting physician or health care provider on a patient’s behalf reasonably relied on the consultant’s independent judgment.
In New Hampshire, many hospitals outsource their specialty services to contracting providers or to locum tenens physicians. In doing so, those service providers, such as Nighthawk radiology services or locum tenens physicians, contract to provide consulting services to the hospital for all patients in need of those services during specific hours or on specific days. By contracting in this manner, the patients are the third-party beneficiaries of the hospital contracts to provide medical consultations and services because they will be foreseeably harmed if those medical services are provided in a negligent manner. By contracting to provide remote consultation services, remote physicians are required to answer all calls or interpret all films received from physicians or patients at the contracting hospital on each day he or she contracted to provide services and the physician is expected to answer all calls in a reasonable manner. This is because the remote medical advice or consultation provided will directly effect the course of care that the hospital patient receives, and it is directly foreseeable that the patient may suffer an injury from the course of care received. This duty owed to third party beneficiaries of telemedicine contracts creates a very limited class of potential plaintiffs, so it does not expose a remote consultant to unlimited liability. Having undertaken to provide remote medical advice to the physicians and patients at a given hospital, however, the consulting physician assumes a duty of care for those patients to provide that advice reasonably.
While case law addressing the duties created through internet or electronic consultations is limited, there is a substantial body of law involving telephonic consultations where other states have imposed liability on physicians based solely on a contract to provide on call medical services for patients. Generally, these cases agree that while physicians have no legal obligation to accept everyone seeking medical services as a patient, when a physician agrees in advance to accept all services, he has contracted away any discretion to decline to provide care. Thus, a physician patient relationship will arise. These contractual relationships have been found to exist through physician employment contracts that require them to be on call to hospital emergency rooms, they have been found to be created by hospital bylaws and medical staff regulations, and they have been found to exist through insurance contracts and other managed care agreements.
For example, in Hand v. Tavera, the Texas Appeals Court imposed liability on a physician who was on-call as part of a prepaid medical plan when that physician provided inappropriate discharge advice to an emergency room patient and that patient suffered a stroke. In Hand, the plaintiff presented to a local emergency room with complaints of a three-day history of a headache and a family history with risk factors for stroke. The emergency room physician observed the patient and decided he should be admitted, but did not have admitting privileges. The physician asked the front desk for the physician on call and was informed the defendant was the doctor on call for the patient’s health insurance plan. The defendant was consulted via telephone, briefed on the patient’s condition and informed the emergency room physician that the patient could be managed as an outpatient with medication and a follow up appointment. The emergency room physician sent the patient home, and the patient suffered a stroke. The Hand Court found that the contract requiring the physician to be on call brought the patient and physician together “just as surely as though they had met directly and entered into the physician patient relationship.” The Court noted that the patient paid the plan insurance premiums, the plan in turn paid physicians to be on call for its patients in need of services, thereby creating a contractual relationship and duty.
Likewise, in Lam v. Global Medical Systems, Inc., the Washington Appeals Court found that a medical group who contracted with a private seafood shipping company to provide remote medical advice to the ship’s medical officer when seamen fell ill had a duty to those seamen to provide reasonable medical services. In Lam, a seaman fell ill while on a ship in the Bering Sea. Because there was no physician on board, the ship contacted its contracted remote medical group for medical advice and treatment decisions. The medical officer on the ship called this group three times regarding the worsening condition of the patient, and the group each time provided treatment recommendations. The patient ultimately died from diabetic ketoacidosis, yet there were kits on the ship to test for this condition had the testing been ordered by the medical group. The Lam Court found that the medical group had a contract to provide medical instruction and advice, it gave specific medical advice and instruction to the detriment of the plaintiff. Under these facts, the Court found that “this undisputed activity is amply sufficient to create a duty of care.”
In other cases, courts have found that contracts to provide supervisory call services for residents at a teaching hospital can give rise to a duty of care to a patient being treated by those residents. In those cases, the defendant physician had no direct contact with the patient, but rather was telephonically available to provide medical advice to the residents treating the patients at the teaching institution. Those cases relied on the duties that the physician contracted for in their employment relationship. Specifically noting that physicians are free to limit the extent and scope of employment, these courts find that the defendant physicians undertook by contract to provide on call supervision or consultation for their residents.
B. Physician-Patient Relationship
It is beyond dispute that when a physician-patient relationship is found to exist between a doctor and a patient, then a duty exists as a matter of law. Whether a physician-patient relationship exists, however, is a question of fact specific to each individual case. Increasingly, courts are doing in depth qualitative analyses into remote consultation scenarios to make this uniquely factual determination when the consultative relationship is nontraditional.
A physician-patient relationship can be expressly created by the parties or it can be implied by their conduct. Face to face meetings between physician and patient are no longer required to give rise to a physician-patient relationship. As described above, by contract “[a] physician may agree in advance with a hospital to the creation of a physician-patient relationship that leaves him no discretion to decline treatment of the hospital’s clients.” If no prior contractual relationship exists, a physician may establish a relationship with a patient by taking some affirmative action to treat the patient. As Dr. Neill noted in JAMA, “a physician-patient relationship is established when[ever] a physician exercises independent medical judgment on a patient’s behalf, whether implicitly or explicitly.” Indeed, “an on call physician to an emergency room consulted by telephone renders medical services by evaluating the information provided and making a medical decision.”
Other jurisdictions are in accord with this analysis and find that a physician-patient relationship can be implied between an emergency room patient and an on call physician they have never met when that physician actively participates in the diagnosis of the patient, actively participates in or prescribes the treatment plan for a patient, or owes a duty to the hospital or patient for whose benefit he is on call. Other jurisdictions have also looked at the extent to which the consultant exercised his independent professional judgment in a matter directly relating to the patient and the extent to which the consultant knows the exercise of his judgment will be relied upon and determine the ultimate course of care for the patient. In short, when a physician takes some affirmative act to participate in the care, evaluation, diagnosis or treatment of a patient, a physician-patient relationship will be found to exist. This is especially true when a physician listens to a description of a patient and then essentially directs the course of that patient’s treatment.
Clearly, telephonic consultations between emergency department physicians and on call specialists about the care and treatment of emergency room patients can establish a physician-patient relationship. For example, in Kelley v. Middle Tennessee Emergency Physicians, the plaintiff presented to an emergency room complaining of chest pain similar to that she had suffered from several months earlier when she had a heart attack. The emergency room physician tried to call the cardiologist who treated the plaintiff after her heart attack, but he was unavailable so the physician spoke with another cardiologist on call for the practice. That cardiologist listened to the presentation and history and told the emergency room physician that the plaintiff could be treated symptomatically with follow up care being provided by her primary care provider or cardiologist. The plaintiff was discharged and ultimately died from a cardiopulmonary arrest several days later. The Kelley Court found that there was sufficient evidence to show that this was more than an informal consultation because the call was made to the appropriate specialist, who was on call for the treating physician, and it was made specifically for direction in the management and care of the patient. The Court found that there were issues of material fact in dispute about the extent of affirmative involvement in the patient’s care by the on call physician, thereby precluding summary judgment.
Likewise, in Lection v. Dyll, the plaintiff presented to an emergency room with symptoms of hemiparesis, slurred speech, headache and dizziness. The emergency room physician ordered several tests and called the on call neurologist for guidance in whether additional treatment was warranted. The neurologist advised the emergency room physician that the patient was suffering from a hemiplegic migraine and no further treatment was warranted, so discharge would be proper with appropriate follow up and instructions. The Lection Court found that genuine issues of material fact as to whether a physician patient relationship existed were in dispute based on the neurologist’s affirmative participation in the diagnosis and treatment plan for this patient. Furthermore, the Lection Court found that a physician-patient relationship arose by contract because the neurologist was required under the hospital bylaws to take call from the emergency room.
In McKinney v. Schlatter, a patient presented to an emergency room with chest pain and, after ordering several tests, the emergency room physician called the cardiologist on call for assistance in the treatment plan for the patient. The emergency room physician described the patient and test results and the cardiologist told him that the complaints did not sound cardiac in nature and instructed the emergency room physician to do a few more tests, ultimately recommending discharge of the patient with follow up with the patient’s personal physician. The McKinney Court found that there were genuine issues of material fact in dispute as to the extent of the physician’s affirmative involvement in the diagnosis and treatment plan of the patient.
In Gilinsky v. Indelicato, the patient began suffering from neurologic symptoms while receiving chiropractic treatment. The chiropractor called a neurologist several times to discuss his patient’s symptoms and course of treatment. Over the course of seven phone calls, the neurologist never advised the chiropractor to get the patient emergent neurologic care. As a result, the patient suffered permanent deficits from a stroke. The Court found that a reasonable jury could find that the neurologist became a part of the physician-patient relationship with the patient and there were genuine issues of material fact in dispute, precluding summary judgment.
While most reported cases on this issue involve the remote consultation of physician specialty services to the emergency room, there are many cases involving other specialties consulting with treating physicians by test interpretation or providing the so-called invisible consulting services of pathology or radiology. For example, in Bovara v. St. Francis Hospital, a patient with existing heart disease consulted a cardiologist about receiving a corrective coronary angioplasty. The cardiologist was not qualified to read angiograms, so he sent them to two interventional cardiology colleagues to look at the films from the patient’s previous angiogram to see if the patient was a candidate for angioplasty. The consultants told the asking physician that the patient was a candidate, despite never meeting the patient or reviewing his medical records or history. The patient underwent the procedure and died from cardiac arrest during the angioplasty. In Bovara, the court found that the act of reviewing and interpreting test results might create a physician patient relationship and the issue must be decided by a jury. Some courts have gone as far as to rule as a matter of law that physicians providing invisible specialty services, such as pathology services, always create a physician-patient relationship when services are rendered on a patient’s behalf. This is because the patient has consented to testing, such as tissue removal, blood drawing, or radiology filming, for the specific purpose of evaluation, interpretation or diagnosis. The invisible specialist then evaluates and interprets the test and provides recommendations or diagnosis based on his or her independent judgment.
The thread common to all of these cases is that when a physician listens to the facts of a patient’s case, evaluates the facts as presented by another physician and makes an independent judgment or recommendation about the appropriate course of treatment for that patient, the physician has taken an affirmative action to be involved in a patient’s medical care.
In cases that have found no physician-patient relationship arising from a telephonic consultation, the courts still conduct an extensive inquiry into the amount of independent judgment exercised or affirmative action taken in consulting on a patient’s case. Indeed, in Mazjoub v. Appling, while the Court found there was no physician-patient relationship on the facts of that case, the Court recognized that a relationship could be established through an implied relationship with an on call physician. In Mazjoub, the emergency room physician called an on call otolaryngologist about a patient presenting to the emergency department with stridor. The on call physician discussed the case, made no recommendations for admission or discharge and told the emergency room physician he would come in the following day to see the patient. The Court found no affirmative action occurred because the on call physician did not participate in the diagnosis of the patient, nor did the physician make a medical decision regarding admission or discharge for the patient at the time of consultation. Rather, the on call physician agreed to see the patient the next day and took no other affirmative action to get involved.
In St. John v. Pope, a post-operative patient presented to the emergency department with back pain and neurologic symptoms. The patient requested transfer and the emergency room physician called an on call internist about the case. The internist told the emergency room doctor that the patient needed a neurosurgeon and should be transferred to a facility who could provide one. Ultimately, the transfer could not be accomplished and the patient suffered permanent injuries from meningitis. The Court found no physician-patient relationship in that case because the internist specifically told the emergency room physician that he was not qualified to treat the patient and the patient needed to be transferred to a facility with the appropriate specialty physicians. The Court found, however, that the outcome would be different if the internist had an express contract requiring him to provide treatment or if he had taken an affirmative act to be involved in the treatment.
Similarly, in Irvin v. Smith, the on call physician was a private practitioner with no obligation to take call and he agreed to consult with the patient on the following day, but did not get involved of the day of the phone call. The Court ruled that without a contractual obligation or other affirmative act to participate in the treatment of a patient, a physician-patient relationship could not exist. In Corbet v. McKinney, the court also found no physician- patient relationship because the physician had no contractual obligation to provide advice and the physician did not affirmatively participate in the care or treatment of the patient. Finally, in Sterling v. Johns Hopkins Hospital, the Court found that a receiving facility for a patient does not have a physician-patient relationship with the patient until the transfer is completed and the patient is received. Mere agreement over the telephone to accept a patient in transfer does not establish a physician-patient relationship until the patient has been received at the facility.
While all of these cases differ, they all consistently agree that a physician-patient relationship between a consulting physician and an emergency room patient is a question of fact based on whether or not there is a contractual obligation to consult on the patient’s care and whether or not affirmative action is taken to participate in the diagnosis and treatment plan for a patient.
C. Curbside Consultations
Under traditional medical malpractice theories, liability would not be imposed for so-called “curbside consultations.” Curbside consultations are informal, generally hypothetical, consultations about patient care between physicians during routine conversation in a hallway or doctor’s lounge. Such consultations can also occur in social settings, in academic settings or on grand rounds. Generally, the patient does not know that the consultation has occurred nor does the consulting physician know of the actual existence of the patient. These consultations occur between physicians who regularly consult with one another and who use one another as a medical resource like a textbook or treatise. In those cases, the argument against imposing a duty based on a physician-patient relationship is that the imposition of a duty for such informal consultations would chill the exchange of medical information between medical professionals and do more harm than good for patients.
The difficulty is, with the increasing use of telemedicine and remote consultations, physicians will use the phone and email and internet websites to conduct these supposedly informal consultations with specialists world wide. The consultant then makes an evaluation and interprets hypothetical facts, providing medical advice without regard for the accuracy of the information provided by the asking physician and without knowing what the asking physician will do with the information provided. The increasing specialization and use of technology in medicine has caused courts to make a more searching inquiry into the nature of interactions when they are presented with scenarios involving alleged curbside consultations. In addition to focusing on the level of active participation in the consultation, courts also look at the level of expertise of the consultant and the reliance the asking physician placed on the consultant’s advice. When a consultant has a very specialized area of expertise and knows that the asking physician is likely to rely on that expertise in making a dispositive treatment decision, courts will impose liability on the consultant. This is because a specialty consultant asked by a generalist about an issue in his or her specialty is in a unique position to intervene and prevent harm to a patient.
IV. Conclusion
The physician-patient relationship is evolving with the increasing specialization of medicine and the use of new technologies and telemedicine techniques. The liability of consulting physicians who have never met the patient directly is expanding, and with the continuing advances in medical technology and specialties, the net of liability will only widen. Hospitals and health care facilities using new technologies have undertaken a duty to keep those technologies in working order and up to date to ensure they provide the services as advertised. Because duties can be voluntarily assumed, all physicians and health care facilities that undertake the practice of medicine in the information age and take advantage of the benefits of the new technologies are subject to potential exposure to medical malpractice. The future of the law in this area is just beginning.
Endnotes
See www.atmeda.org/news/definition.html
See id.
See RSA 329:1-b, I.
>See RSA 329:1-b, II.
Rigelhaupt, JL, Annotation, What Constitutes a Physician-Patient Relationship for Medical Malpractice Purposes, 17 A.L.R. 132 (2001).
Walls v. Oxford Management Co., 137 N.H. 653, 656 (1993).
See id.
See Carignan v. New Hampshire International Speedway, Inc., 151 N.H. 409, 413 (2004).
Id. (internal quotation marks and citation omitted).
See Hungerford v. Jones, 143 N.H. 208, 211 (1998) (listing cases) (finding psychiatrist owed duty to parent who suffers injury due to criminal charges arising from psychiatric treatment of child patient).
see Simpson v. Calivas, 139 N.H. 1, 5 (1994);
see Morvay v. Hanover Ins. Co., 127 N.H. 723, 724 (1986);
see Spherex, Inc. v. Alexander Grant & Co., 122 N.H. 898, 903 (1982);
see Robinson v. Colebrook Savings Bank, 109 N.H. 382, 385 (1969).
Neill, R., Doctor, you’ve got E-mail [Letter], JAMA 282 (8):730-31, August 1999.
Id.
864 S.W.2d 678 (Tex.App.-San Antonio 1993).
Hand, 864 S.W.2d at 679.
111 P.3d 1258 (Wash. App. Div. 2005).
See, e.g., Lownsbury v. VanBuren, 762 N.E.2d 354 (Ohio 2002) and Mozingo v. Pitt County Memorial Hospital, 415 S.E.2d 341 (N.C. 1992).
See Lownsbury, 762 N.E.2d at 362-63, Mozingo, 415 S.E.2d at 191-92.
See Smith v. Cote, 128 N.H. 231, 240 (1986); Mehigan v. Sheehan, 94 N.H. 274, 275 (1947).
See, e.g., Wilson v. Teng, 786 So.2d 485, 499 (Ala. 2000); Diggs v. Arizona Cardiologists, Ltd., 8 P.3d 386, 391 (Ariz. 2000); Millard v. Corrado, 14 S.W.3d 42, 52 (Mo.App. E.D. 1999); Cogswell v. Chapman, 249 A.D.2d 865, 866 (NY AD 3 Dept. 1998); Mozingo v. Pitt County Memorial Hospital, 415 S.E.2d 341, 346 (N.C. 1992); Lowensbury v. VanBuren, 762 N.E.2d 354, 364 (Ohio 2002); Kelley v. Middle Tennessee Emergency Physicians, 133 S.W.3d 587, 597 (Tenn. 2004) (collecting cases); Lection v. Dyll, 65 S.W.3d 696, 715 (Tex.App. – Dallas 2001).
See Kelley, 133 S.W.3d at 593.
See, e.g., Lection, 65 S.W.3d at 704
Id.
See id. at 705.
Neill, R., Doctor, you’ve got E-mail [Letter], JAMA 282 (8):730-31, August 1999.
Lection, 65 S.W.3d at 705.
See McKinney v. Schlatter, 692 N.E.2d 1045, 1050 (Ohio 1997).
See Gilinsky v. Indelicato, 894 F.Supp. 86, 92 (E.D.N.Y. 1995).
See Kelley, 133 S.W.3d at 594.
Id.
Kelley, 133 S.W.3d 587 (Tenn. 2004).
65 S.W.3d 696 (Tex.App. – Dallas 2001).
692 N.E.2d 1045 (Ohio 1997).
894 F.Supp. 86 (E.D.N.Y. 1995).
700 N.E.2d 143 (Ill. App. Ct. 1998)
Peterson v. St. Cloud Hospital, 460 N.W.2d 635 (Minn. Ct. App. 1990).
95 S.W.3d 432 (Tex.App.-Houston 2003).
901 S.W.2d 420 (Tex. 1995).
31 P.3d 934 (Kan. 2001).
980 S.W.2d 166 (Mo.App. E.D. 1998).
802 A.2d 440 (Md.App. 2002).
See Schroeder v. Albaghdadi, 728 N.W.2d 853 (Iowa App. 2007).
See Ranier v. Grossman, 107 Cal. Rptr. 469. 471 (Ct. App. 1973).
See Schroeder, 728 N.W.2d at 853; see also Diggs, 8 P.3d at 391.
See e.g., Cogswell v. Chapman, 672 N.Y.S.2d 460 (App. Div. 1998) (ophthalmology) and Campbell v. Haber, 710 N.Y.S.2d 495 (App. Div. 2000) (cardiology).
See id.; see also Diggs, 8 P.3d at 391.

Mark Abramson
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