Malpractice Consult

What's your duty to inform?

By Lee J. Johnson, JD

•  Keep copies of any medical excuse letters.

• Never tell a third party about a patient's condition without his permission.

• Remind patients of the dangers of some physical activities.

Q: I recently diagnosed a boy with hemophilia. Obviously, I recommended restrictions on certain physical activities, and advised the child and his parents about the need for follow-up care. Do I have an obligation to notify the boy's school about his restrictions?

A: As a rule, No. You can probably leave it up to the parents to notify the school. When you talk to them about the risks associated with the child's condition, though, explain how and why the school should be informed. Also offer to provide the necessary medical excuse letter.

A recent New York case speaks to the issue: An appeals court held that a physician had no duty to advise a school to restrict a minor patient's activities because of the inherited condition that made him susceptible to injury. The physician was held to have a duty to render post-treatment advice, but that duty was not extended to notification of third parties.

The patient was a 13-year-old boy with a diagnosis of osteogenesis imperfecta. He was seen by an orthopedic surgeon, who instructed him not to participate in gym or sports activities. The surgeon provided a note that the parents delivered to the school.

The boy continued to be seen by the surgeon over a three-year period for treatment of different injuries. Toward the end of that period, the boy was treated for a fracture. The doctor didn't provide any additional notes or otherwise notify the school. Shortly after treatment was completed, the boy participated in a wrestling match and suffered multiple injuries.

An expert witness testified for the plaintiff that the orthopedist had a duty to restrict the patient's activities not only during the initial treatment but afterwards. Defense experts testified that the obligation to warn a patient about restricting activities ended on the last date of treatment.

The court acknowledged that the doctor might have an obligation to render advice on post-treatment precautions and to warn about the risk of future injury. But the court stopped short of requiring that the doctor notify third parties. The rationale was partly related to the privileged nature of the communication and the doctor's risk of violating patient confidentiality. The decision also acknowledged that the parents should bear some responsibility.

Good risk management requires that physicians in similar situations conduct repeated discussions with the family, reiterate the message about restrictions, and schedule follow-up visits. Do this at least annually if the child's condition could continue from one grade to another, and impress on the parents the need to keep the school informed. Try to include the child in the conversation to help him understand the dangers of the forbidden activity. Have your staff follow up on any missed appointments.

Document these discussions with the parents. If you give them a note to send to the child's school, keep a copy for your records. If the parents ask you to notify the school directly, protect yourself from a breach of confidentiality suit by having the parents waive doctor-patient privilege. Ask them to sign a pre-printed form of the type used for release of records, or you can enter the waiver information in the progress notes.

Lee Johnson. Malpractice Consult: What's your duty to inform?

Medical Economics

Oct. 10, 2003;80:112.