Our Record of Success

DBS Appellate Team Secures Affirmance of Directed Verdict for Neurologist in Medical Malpractice Case

The DBS appellate team of Karen Kies DeGrand and Connor Whitting recently defeated a medical malpractice plaintiff’s attempt to reverse a judgment entered on a directed verdict for a neurologist and his medical group.

The plaintiff’s decedent visited the ER with symptoms of headache, fatigue, and olfactory hallucinations.  The co-defendant ER physicians twice called DBS’ client, a neurologist, for an informal curbside consult. The neurologist first recommended the patient undergo testifying that could assist in determining the existence of inflammation and later recommended an MRI.  The neurologist did not examine the patient, review his medical records, or provide a diagnosis.  Further, the neurologist was not on-call, nor did he charge for the consulting conversations. The patient was later diagnosed with herpes simplex encephalitis, which the plaintiff alleged caused serious cognitive impairment.

The plaintiff sued the ER physicians who treated the patient and the neurologist and his group, claiming negligence for failing to diagnose the condition promptly.  The matter proceeded through discovery and a jury trial. The neurologist and his group sought a directed verdict after the plaintiff rested her case-in-chief, arguing they owed no duty to the patient because no physician-patient relationship existed.  The trial court agreed and directed a verdict for the neurologist and his group. The case proceeded to a defense verdict for the ER physicians.

On appeal, the neurology defendants argued that the trial court correctly directed the verdict, as the neurologist’s role was limited to informally answering colleagues’ inquiries, which, under Reynolds v. Decatur Memorial Hospital, 277 Ill. App. 3d 80 (4th Dist. 1996), and subsequent case law, did not establish a physician-patient relationship.  The defendants also distinguished precedent plaintiff cited in her briefing.

The appellate court, Second District, upheld the judgment entered on the directed verdict for the neurology defendants (as well as for the ER physicians).  The appellate court held that a consulting physician does not owe a legal duty to a patient when providing informal advice to the patient’s treating physicians without directly participating in the patient’s care, diagnosis, or treatment.  Finding no “special physician-patient relationship,” the appellate court cited the informal nature of the consultation, lack of compensation, absence of test orders or reviews and no involvement in the patient’s treatment.  The appellate court warned that finding a special relationship under these circumstances could discourage informal physician consultations, potentially harming patient care.