2016 Liability for Mobile Health & Wearable Technologies 73
to form a physician-patient relationship, giving rise to a duty of care. 85 The court remanded for the lower court to permit discovery on the scope of the duty and whether the physician’s conduct satisfied the standard of care. 86 Another example, Bovara v. St. Francis Hospital, involved a malpractice claim against two physicians who reviewed a patient’s film from an angiogram and informed the treating physician that the plaintiff was a candidate for angioplasty. 87 The court found that the physicians, despite their lack of direct contact with the patient, could have formed a physician-patient relationship with him. 88 Because the question was one for the jury, the court reversed the granting of summary judgment in favor of the physicians. 89
2. Cases Suggesting No Liability
On the other hand, courts have sometimes declined to find that a treatment relationship exists in cases where the consulting physician did not have sufficient contact with the patient. 90 In Jennings v. Badgett for example, the parents of a prematurely delivered child sued, among others, Dr. Schlinke, who had consulted over the phone with the treating physician. 91 The parents contended that Schlinke was liable because his advice prompted the treating physician to deliver the baby prematurely. 92 The court found that no physician-patient relationship was formed and that “even though Dr. Badgett chose to rely on Dr. Schlinke’s opinion, Dr. Badgett was free to exercise his independent judgment.” 93 Similarly, in Hill by Burston v. Kokosky, the mother of a child born with cerebral palsy sued the physicians who had consulted with her treating physician about alternative birthing options. 94 The plaintiff alleged that the physicians provided substandard advice to the treating physician. 95 The court found that the consulting physicians could not be held liable based on a telephone call with the treating physician because neither of the consulting physicians had talked with the patient, examined her, or reviewed her chart. 96 The courts are divided as to whether a remote consultation with the
85. Id. at ¶ 10, 36 A.3d at 207. 86. Id. at ¶ 14-15, 36 A.3d at 208-09. 87. Bovara, 700 N.E.2d at 144. 88. Id. at 148. 89. Id. at 149-50. 90. See generally Hill ex rel. Burston v. Kokosky, 463 N. W.2d 265, 266-67 (Mich. Ct. App. 1990); see also Jennings v. Badgett, 2010 OK 7, ¶ 20, 230 P.3d 861, 867. 91. Jennings, 2010 OK 7, at ¶ 9, 230 P.3d at 864-65. 92. Id. at ¶ 7, 230 P.3d at 864. 93. Id. at ¶ 25, 230 P.3d at 868. 94. Kokosky, 463 N. W.2d at 265-266. 95. Id. at 266. 96. Id. at 267.