Although physician-patient relationship traditionally is established through an office visit or examination, which is necessary for diagnosis and treatment, some courts have found that despite their inherent limitations, tele­phone calls can be a means of establishing or extending a physician-patient relationship. Others, however, have ruled that a phone call is not sufficient for creating or prolonging that relationship.

"If it were, then I should say that it would behoove that doctor or any professional man to not answer the phone or have the prospective patient write, or even to answer the phone through a receptionist, if that were to create a contractual relationship," a New York trial court held in one such case. J. McCarthy, Supreme Court, Suffolk County, Trial Record of Dehn v. Kaplan , 131 A.D.2d 535 (1987).

In Dehn, the infant-plaintiff was born with a heart defect, allegedly caused by the drug Tridione that the mother had taken since childhood. The mother claimed the obstetrician, who had not prescribed the drug, should have advised her to discon­tinue using it during pregnancy. This drug, however, would have damaged the infant's heart only if taken in the very early stages of pregnancy -before the date of the mother's first visit with the obstetrician.

The plaintiffs therefore amended their complaint, alleging physician lia­bility based on a phone call the mother said she had made to the doctor's office for an appointment. She claimed she informed someone on the telephone that she was taking Tridione, but that she was given an appointment for about one month later and was not told to discontinue use of the drug.

The defense was successful in excluding all testimony relating to the phone conversation because of a lack of evidence that the call had occurred, and probably because the call too "conveniently" addressed the problem of establishing an earlier patient-physician relationship. The complaint subsequently was dismissed, since the plaintiffs' attorney conceded that without such testimony, the plaintiff had no case.

Even with sufficient evidence, other courts have held that a telephone call is insufficient contact to establish a physician-patient relationship. In Fabian v. Matzko, 236 Pa. Super. 267, 344 A.2d 569 (1975), the Superior Court of Pennsylvania held that a telephone call in which a doctor merely informed a potential patient of the hospital's policies did not constitute an undertaking to render services and, thus, was not subject to liability.

The plaintiff in Fabian was examined by her personal physician, who diagnosed her condition as a viral infection. The medications he prescribed produced no observable improvement later that day, so her husband telephoned the hospital and spoke with one of the physicians. In the conversation, he told the physician his wife had developed a sudden severe headache and was vomiting and complaining about a stiffness in the back of her neck and soreness in her leg. He stated he wanted his wife admitted to the hospital for a checkup. In accordance with the hospital's standard procedure, the physician asked the husband what the family doctor's diagnosis had been.

The hospital physician told the husband his wife could not be admitted unless the arrangements were made by his wife's physician. The husband attempted to contact their personal physician, but was unable to do so. He again telephoned the hospital, but was told the physician with whom he had spoken had left for the day.

The wife's condition seemed to improve over the next few days, but she then suffered another attack and was admitted to the hospital through arrangements made by her personal physician. She sustained a cerebral hemorrhage, resulting in permanent brain damage, loss of speech, partial paralysis, loss of hearing and vision and aphasia. The ensuing malpractice action alleged in part that the hospital and its physician were negligent in failing to admit the wife for treatment and in failing to render proper medical assistance to her after the first call.

The court held that the hospital physician never undertook to render medical services in this case. The sole contact with the physician was a telephone call in which the doctor informed the husband of the hospital's policies, the court noted, so no physician-patient relationship ever arose. The court stated it could "find no -case in which a telephone call such as the one here was held to be an undertaking." (See, also, Hamil v. Bashline, 224 Pa. Super. 407, 307 A.2d 57 (1973); rev'd 243 Pa. Super. 227, 354 A.2d (1978).)

In Clanton v. Von Haam, 177 Ga. App. 694, 340 S.E. 2d 627 (1986), the Georgia Court of Appeals held no physician -patient relationship was created by a telephone call. In the case, the plaintiff had had a telephone conversation with her physician, the defendant, late in the evening. She had been a regular patient of his. During this conversation, she complained of back pains and numbness. Her physician advised her to continue taking medication prescribed to her by another doctor and to see him in the morning. The defendant-physician admitted such a telephone conversation occurred.

After the call, the plaintiff's condition continued to deteriorate and she later became paralyzed. She alleged her physician knew or should have known her condition was critical and, in the absence of medical action, would result in paraplegia.

The appeals court held that no physician-patient relationship existed as a matter of law, despite the fact that the doctor had returned the plaintiff's telephone call, spoke directly with her, listened to her symptoms and advised her to see him in the morning. The court stated a crucial issue was whether there was a consensual transaction whereby the plaintiff became the physician's patient for treatment of her then-existing condition.

From the plaintiff's late-night solicitation of medical assistance, one might well conclude she had been accepted as a patient by the physician and that she would follow his advice, to her ultimate detriment, and suspend further efforts to secure medical treatment elsewhere, the court noted. However, it found that the plaintiff herself had interpreted the conversation as a total refusal of medical services. Therefore, the plaintiff never relied on any medical advice whatsoever from the physician, the court ruled, since several hours later she was admitted to the hospital for treatment by another physician. She was in no way dissuaded from seeking medical attention elsewhere.

"She ultimately seeks to recover, not on the basis that [the physician] actually afforded her negligent treatment, which she then followed to her injury, but solely on the basis that [the physician] refused to initiate non-negligent treatment by which she might have avoided injury," the court ruled. It said the evidence showed a consensual transaction never existed; the plaintiff understood the doctor was not going to treat her; and no rule of law requires a physician to undertake the treatment of every patient who applies to him.

It also has been claimed that a telephone call extended the physician-patient relationship for the purposes of the statute of limitations. The Minnesota Supreme Court has determined that telephone consultations may constitute proof of a continuing physician-patient relationship and evidence that the physician is attending and examining the patient. Grondahl v. Bulluck , 318 N.W.2d 240 (1982).

In Grondahl, the physician treated a patient with multiple sclerosis for four years. After the last office visit, the patient had several phone conversations with the doctor over the following year and a half, during which time her condition worsened. In the last conversation, the patient complained about a balance problem. She claimed the physician told her to forget her problem and it would go away.

The court ruled a jury might reasonably conclude that the physician-patient relationship did not cease until the last telephone conversation, thereby bringing the suit within the applicable statute of limitations. The Minnesota court relied on a New York case, Miller v. Wells, 58 A.D.2d 954 (1977).

The plaintiff in Miller claimed she was negligently prescribed the drug Methatrexate for her psoriasis. She contended she had a phone conversation with her doctor about four months after her last office visit, during which she told him she wanted to continue treatment for psoriasis but had been advised by another doctor not to continue using Methatrexate. In the conversation, the defendant-doctor allegedly stated he would discontinue treating the plaintiff if she refused to stay on the drug. This call was the last contact between plaintiff and defendant until the malpractice action was commenced.

The court held that if the trier of facts believed the conversation had occurred, it could reasonably conclude the physician did not stop rendering medical services until the date of the call and the statute of limitations did not begin to run until the date of the call (as opposed to the date of her last visit).

By contrast, a Minnesota appeals court has held that a patient's phone call to a physician requesting a release letter and involving no medical advice does not constitute part of the continuing physician-patient relationship. Giles v. Sanford Memorial Hospital and Nursing Home , 371 N.W.2d 635 (1985). Perhaps if the physician had asked the patient about his health, which in turn generated a discussion and advice by the physician, the court would have held otherwise.

It would seem, therefore, that a physician-patient relationship is not readily commenced by a phone call the scheduling of an appointment. Something more is needed. Generally, the relationship cannot be commenced until the physician has met with and had an opportunity to examine that patient. If the physician, especially one who has never treated the patient, is unable to see the patient within a reasonable time, then it must be the duty y of either the referring physician, consulting physician or the patient himself to seek timely medical treatment.

There must be some showing that the physician affirmatively treated or advised the patient and that the patient relied on that advice to his detriment. There must be a breach of duty that had been undertaken by the physician. The physician-patient relationship is contractual. It is not solely the physician's intent that is relevant, but also the patient's perception, usually evidenced by his reliance on the physician's advice.

As to when the relationship ceases and whether a phone call at the end of treatment constitutes continuing treatment, the action and intent of the parties still have to be examined. Additionally, whether something more needs to be done in relation to the illness being treated must be looked at. When the contact at the beginning or end of the relationship is a phone call, plaintiffs may have a greater burden in characterizing the relationship at the time of the telephone conversation.