Liability of an Off-Duty Doctor or Physician

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 What is a Fiduciary Duty?

Fiduciary duties come from a legal relationship that is formed between at least two parties. The fiduciary is the party upon whom the duty is imposed.

The principal is the party to whom the duty is owed. Although many individuals think of financial responsibilities when they think of fiduciary duties, there are other types of fiduciary duties that doctors owe to their patients.

What Are the Different Fiduciary Duties?

There are several fiduciary duties that doctors owe their patients, including:

  • A duty of care;
  • A duty of competence;
  • A duty of good faith and fair dealing;
  • A duty of loyalty;
  • A duty to avoid conflicts of interest.

A physician owes a duty of care to their patient in that they are legally required to be informed and educated regarding the laws that govern the surgeries and procedures they are administering as well as the conditions they are treating. Physicians must critically process medical information and have a sound method of evaluating the credibility of the information they receive.

A doctor is required to exercise a duty of competence which includes:

  • Receiving the state and federally mandated education for their role;
  • Staying up to date on their licensing; and
  • Staying current on new forms of treatment and medications.

A physician typically has a duty to at least have a baseline of competency to serve their patients. Competency can be assessed by measuring what other similarly situated professionals would do in the same or similar situations. The locality rule may also apply which requires a doctor to be judged by what other doctors in the same area do related to specific treatments and procedures.

A doctor must exercise good faith and fair dealing and not attempt to cheat a patient in any way. This includes charging fair market prices as well as not ordering procedures which are unnecessary in order to increase their insurance billing.

The duty of loyalty in the medical field may mean that a doctor does not prescribe any procedures or medications which are not in the best interest of the patient. A doctor is not permitted to receive any financial or professional incentives to prescribe a particular medication or to order a specific surgery.

A conflict of interest between a doctor and a patient may vary widely and should be assessed with caution. If a doctor develops a technique which is not marketed and sold, it is a conflict of interest for the doctor to prescribe that technique to a patient and to receive a royalty if it is done systematically and not in the best interest of the patient.

Is Confidentiality a Fiduciary Duty?

Yes, doctor-patient confidentiality is an important fiduciary duty. This duty encourages patients to disclose facts which may assist in their diagnosis or treatment but may be embarrassing or harmful to the patient if released to other individuals.

This duty includes a duty not to disclose any medical information which is received in connection with the patient’s treatment. If medical information is disclosed without the prior approval of the patient, typically in the form of a waiver, the client may bring a lawsuit against the doctor for breaching their duty of loyalty.

Can a Doctor or Physician be held Liable for Giving Medical Treatment While Off-Duty?

It is important to note that prior to being held liable for providing medical treatment while off-duty, a doctor or physician must owe a duty to the patient. In the United States, doctors have no affirmative duty to provide medical assistance to injured individuals if they have not established a special relationship with that individual.

For example, if a doctor is off-duty and having a meal in a restaurant and an individual is injured, they have no duty to actually assist that individual. If the doctor continues to eat their meal and does not assist, the injured individual does not have a medical malpractice claim against the doctor, even if they are harmed.

This is because no special relationship has been formed between the injured individual and the doctor. If, on the other hand, an off-duty doctor willingly and knowingly volunteers to assist the injured individual, a doctor-patient relationship has been formed. The doctor may then become liable if their medical assistance causes further injuries to the patient, for example, if they were negligent when providing treatment.

A doctor may also become liable if they volunteer assistance and then abandon the treatment later.

How is a Doctor’s Off-Duty Medical Treatment Evaluated?

Once an off-duty doctor has formed a doctor-patient relationship with an injured individual, they owe that patient a certain duty of care in the treatment which they render. Because the off-duty doctor is not providing medical treatment in a hospital setting, it may be difficult to determine how the medical treatment should be legally evaluated.

Generally, an off-duty doctor is expected to provide the same degree of care, diligence, and skill as would be reasonably expected of a competent physician in similar circumstances. Similar circumstances may include:

  • The area of medicine that the doctor practices in, as well as their degree of certification and/or specialty;
  • The accepted or customary practices of other doctors in the same geographic area, or the locality rule; and
  • The quality and types of medical equipment and facilities which are available in the immediate area.

A general physician cannot be held to the same standards of care as a specialist, such as a heart specialist or a brain surgeon. They may, however, be liable if they volunteer to perform treatment for which they have not been properly trained.

It is important to note that emergency situations are different as a doctor may not have all of the necessary equipment or assistance available in an off-duty setting. Therefore, expert testimony may be required in order to establish the liability of a doctor who volunteers their assistance while they are off-duty.

Can a Hospital be Liable for the Actions of an Off-duty Doctor or Physician?

Whether a hospital can be held liable for the actions of an off-duty doctor or physician will depend on the circumstances of the case. In order for a hospital to be held liable, the rules of vicarious liability must apply.

The hospital must have directed and controlled the actions of the off-duty doctor in order to be liable. Off-duty doctors are usually acting on their own voluntary initiative, independent from the hospital.

Therefore, a hospital is rarely held liable for medical treatment that is provided by an off-duty physician. Some doctors, on the other hand, may be members of private medical practice associations, such as limited partnerships.

In these cases, the medical organization that the off-duty doctor is a member of may have its own rules which address the actions of an off-duty physician and the subsequent liability of the organization as a whole.

The off-duty doctor may also be liable for the actions of an assistant whom they instructed during the off-duty treatment.

Do I Need a Lawyer for Injuries Caused by the Treatment of an Off-Duty Doctor?

If you have been injured due to medical treatment from an off-duty doctor, you may have a claim against them. It may be helpful to consult with a personal injury lawyer for advice regarding your situation who can review your case and can help you gather the necessary evidence to prove your claim in court.

If you are a physician who is being sued based on your actions while you were off-duty, it is important to have the assistance of a lawyer to defend you. Your lawyer can help protect your interests as well as your medical license.


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