[MUSIC] Welcome back. In this session we'll explore the basic formation of the medical treatment relationship. How and when a treatment relationship is formed is a key question on which a lot of other health law topics hinge on. Because as we've seen in prior sessions, and as we'll see throughout the course, lots of special duties of care, duties of confidentiality hinge on the existence of this treatment relationship. So we're going to take some time in this session and explore what are the steps that both parties have to take to form this relationship. As we've seen from other sessions both parties, both the medical provider, especially an individual physician or nurse, and the individual patient, has a high degree of autonomy in the beginning about whether they're going to form a treatment relationship. So cases like Hurley versus Eddingfield stand for the principle that in the background rules, a physician has no duty to treat a patient, even one who's in dire need. Likewise, all the topics involving informed consent that we've studied and other sessions deal with the fact that patients have a high degree of baseline autonomy to refuse treatment altogether or to dictate the terms of the treatment relationship. So we need to explore then the converse today. What has to happen from both parties in orders to form this all important relationship which then carries duties along with it. And the bottom line is the formation of a treatment relationship is a variation of the much broader category of law known as contract law, which stands for the principle that both parties have to agree. And there has something called the meeting of the minds that both parties agree that this is a relationship that they want to enter into. From the patient's prospective this means some type of affirmative or implied assent to treatment. From the provider's perspective this means likewise some kind of affirmative indication that he or she is undertaking a treatment plan or a treatment relationship with the patient. So to say it's contractual on both sides, one important thing to note that lawyers and non lawyers alike when we talk about contracts in our minds, we often have big pieces of paper maybe with seals or notorizations that we have to sign at a very formal ceremony. And to be sure, there are some very important contracts that are like that. For most of us, and still as a matter of law, most real estate transactions, leases, buying or selling a house, actually require written contracts of a certain form. So that's what we think of when we think of contracts. But the legal conception, particularly in healthcare, is much broader than that. All we're looking for is some indication through words or even through conduct that the parties agree that this treatment relationship ought to happen. So the formation of a treatment relationship in medical law does not have to be in writing. It could be just a simple interaction in a physician's office where I as the patient say, doctor, would you treat me for this condition? And the doctor says, yes, and here's what I advise. That right there is enough to form the treatment relationship, at least for that spell of illness. Even there are cases where words themselves are not required. So if I walk into a doctor's office, collapse on the floor with some ailment and the doctors or nurses proceed to treat me, that treatment again for that particular illness that I've suffered, they've entered into the treatment relationship through their conduct. Through the laying on of hands, through the attempting to treat my symptom. So words or conduct can give rise to a treatment relationship just as surely as a fancy written document. In terms of what kinds of words, what kinds of interactions are sufficient to create a relationship, here we get more complicated, more nuanced. And the best way to kind of illustrate the way this consensual relationship plays out is with reference to specific cases. Again, the core idea is we want some objective indication that both parties reasonably think that a treatment relationship is formed. So for instance, courts have held that calling a doctor's office and asking for an appointment the following day, without more, without talking more about medical symptoms or conditions just saying, can Dr. Smith see me tomorrow, is not enough by itself to create a treatment relationship. But conversely, a phone call to the physician, or his or her receptionist where I give my specific medical condition and say, can the doctor see me for this illness tomorrow? And I have an appointment scheduled for treatment for that or at least diagnosis for that treatment, that is enough to create a treatment relationship around that particular ailment. So that's how thinly sliced the law in this area is. As those hypotheticals describe, treatment relationships can be formed by third party agents of the medical provider. A receptionist, a nurse, a technician, who is authorized to take input to create relationships with patients can form a treatment relationship with the physician just as surely as the if the physician did himself or herself provided the appropriate understandings about treatment arise. Another point to to review from an earlier session is this notion of spell of illness rule. So I could be seeing a doctor regularly every six months or so for regular check ups. There's no treatment relationship, provided I'm healthy when I leave the check up, the next time I see the doctors. So even though I think a doctor might be my ongoing physician, the way the law treats ii is a treatment relationship is formed for the treatment of specific conditions, whereas in an antiquated legal term, the spell of illness rule. So as soon as the doctor has finished his or her treatment for my specific condition, the treatment relationship dissolves. Even if I have a relationship with the doctor and might go back to her again, that spell of illness rule from a legal perspective kind of breaks up the treatment relationship that way. A few more modern kind of manifestations of our more complex healthcare system that are important to talk about is many of us are in insurance relationships, whether we're patients or whether we're providers that are larger networks. And that kind of give rights of treatment that might reside through a larger web of contracts than just talking face to face with a specific medical provider. So for instance, there are cases that have held that patients who sign up for an insurance plan that promises urgent care or on call physicians or the rights to see certain specialists. And then that insurance plan goes and then executes contracts with physician practices saying, you're obliged to see a certain number of patients or to be on call at certain times. Courts have held that those patients and those physicians, even though they've never met, have a treatment relationship by virtue of the overall contracting behavior that they've ventured into with this third party broker. The insurance network setting up the contracts. And we could vary that to apply to modern hospitals with on call physicians, or a lots of the treatment relationships where the patient develops a relationship with either an insurance company or an health care institution. And as part of that relationship, certain specialty care is promised, certain on call care is promised. If in turn their physicians who likewise promise to be available to those patients, the treatment relationship can exist even before the physician and patient have met on an individual basis. There's some limits to that principle. For instance, other cases have held that if a doctor is treating me, and he or she picks up the phone and calls another doctor on a consult, or an advice giving just kind of seeking somebody's expertise. Courts have held that that, call asking for advice is usually not enough to generate a treatment relationship, if I have no other connection with that third party expert specialist who's consulted. You can see why the cases would come out that way. Think about the opposite rule. If every single question or advice or consultation was enough to trigger a full fledged treatment relationship between the third party doctor and the original patient, that would reduce the amount of advice given in such interactions because it would be riskier. And it's an example of a legal rule trying to kind of incentivize the kind of medical consultation we want. So I think that's a line that the laws appropriately and those kind of cases. To add a few other kind of nuances, I've mentioned that this fundamental decision about entering a treatment relationship is contractual and both parties kind of have a right to decide. Normally, when we think about a contract the parties also have a right to negotiate over what the contract is, what the, what the caliber of medical care is. But there's been some important landmark cases that very clearly preclude hospitals or physicians from negotiating with patients over the quality of care when they enter into the relationship. So for instance, a case called Tunkl versus the university California Healthcare System, hospital giving care to injured in an individual's a worthy cause to be sure. And this was before I should note. Decided, well we can afford to do this only if the patients sign away and waive their right to sue us under ordinary malpractice. So they had a contract that said, you'll receive care but you can't sue under ordinary negligence principles. California Supreme Court struck that down, saying wait a minute the basic duty of care is to fundamental to healthcare that we're not going to allow people to bargain down the quality of care or at least the enforcement devices to maintain the quality of care. So that stands for the principle that although parties and healthcare transactions can negotiate some things, they can't negotiate kind of the basic duties of care. Courts have said that patients don't have enough barging power of sophistication to realistically know what they're waving away. Moreover, we want a uniform standard of care that doesn't rise or fall based on somebody's ability to pay or how they entered into the treatment relationship. So that's our kind of bedrock limit on the contracting behavior. As we look ahead, we can imagine some interesting problems driven by technology. For instance, doctors who consult with patients and give specific individualized advice through a kind of telemedicine type scenario. Maybe in certain rural areas, for instance, remote interaction with a specialist who's not available locally. Most states permit this now, but most states would say that even being apart from a patient, but if you're giving individualized advice to a specific patient for a specific treatment, you are practicing medicine. You've assented to a formation of relationship with that patient, even if you've never met the patient. The opposite would be all of this online material that is kind of generalized medical advice, perhaps about specific conditions, but not in interaction with a specific patient and how the specific patient presents. So all of these websites that present medical advice about conditions stops just short of engaging in the practice of medicine or in starting a treatment relationship with the people who visit these sites. Because they're giving advice that is generic without specific reference to specific patients or specific patient's condition. So that's kind of the line the law would draw on this. But one thing's for sure and I'll be very interesting to follow in the years ahead, as technology proceeds a pace as the way the doctors interact with patients proceed, the law is going to struggle to keep up in this area as in many areas of health law. And it'll be interesting to see how courts and legislatures struggle to map the traditional doctrines about forming and maintaining a treatment relationship with all of the different ways that medicine is and will be practiced in the years ahead. Thank you.
