Oklahoma: Consulting physician not liable for malpractice

A physician-patient relationship is an indispensable element of a medical malpractice claim and therefore a doctor who was consulted about a plaintiff’s pregnancy can’t be sued, the Oklahoma Supreme Court has ruled.

The plaintiffs filed a medical malpractice claim against a non-treating physician who had a conversation with the treating physician concerning the plaintiff’s history and complications.

The plaintiffs claimed that based on the non-treating physician’s advice, the treating physician caused their daughter to be delivered prematurely, resulting in serious injuries.

The non-treating physician said that although he gave the treating physician his “informal” opinion, he was never asked to co-manage the mother’s case.

The court held that the defendant could not be held liable because no physician-patient relationship existed.

“[The defendant] did not render medical advice to the plaintiffs; did not provide services to the treating physician on behalf of [the mother or baby]; did not receive a referral of [the mother or baby] for treatment or consultation; was not employed by [the treating physician] and had not been asked or contracted … to provide medical treatment to [the mother or daughter]; and had not reviewed any work, conducted any laboratory tests, reviewed any test reports, prepared any reports, or billed the plaintiffs. …

“Further, none of the plaintiffs agreed that [the defendant] could treat [the mother or baby]. Even though [the treating physician] chose to rely on [the defendant’s] opinion, [the treating physician] was free to exercise his independent judgment,” the court said.

It concluded: “The facts before us fail to show that [the defendant] agreed to treat the plaintiffs or undertook treatment of any of the plaintiffs. Thus, there was not the physician-patient relationship necessary for a medical malpractice action.”

The court cited similar rulings from other jurisdictions.

Oklahoma Supreme Court. Jennings v. Badgett, No. 105745.  Feb. 9, 2010.