Whether a health care provider owes any legal duty to a patient who voluntarily departs a hospital or treatment facility against medical advice?
Petitioner underwent gall bladder surgery at Raleigh General Hospital on July 14, 2009. On July 16, Petitioner returned to the hospital, at which time Respondent performed a follow-up procedure using temporary stents. Because the stents were temporary, it was necessary for them to be removed within a matter of months to prevent infection, occlusion, or other potentially life-threatening complications. Petitioner left the hospital on July 19 after completing and signing a form bearing the title “Leaving the Hospital Against Medical Advice.” Respondent did not, at any time, advise Petitioner that the stents he had used were temporary and, therefore, had to be removed at a future time.
On December 27, 2013, Petitioner presented at a Charleston hospital in acute distress and was diagnosed with an infection and other complications relating to the temporary stents. Thereafter, Petitioner sued Respondent alleging medical malpractice and the parties engaged in discovery. Petitioner produced an expert who was prepared to testify that, even if the Petitioner left against medical advice, the applicable standard of care still required Respondent to inform Petitioner that the temporary stents had to be removed to avoid serious and potential life-threatening complications.
Respondent moved for summary judgment, alleging that Petitioner’s departure from the hospital against medical advice terminated any duty he might otherwise have owed. Citing Kline v. HCA Health Services of Tennessee, 517 S.W.3d 84 (Tenn. App. 2016), the trial court concluded that “once a patient terminates treatment and decides to leave against medical advice, his or her status as a patient ceases along with the health care provider’s duty of care.” Accordingly, judgment was entered in Respondent’s favor. Petitioner now appeals that judgment.
First, Petitioner argues that the opinions expressed in her expert’s certificate of merit preclude summary judgment. According to Petitioner’s expert, the standard of care required Respondent to inform Petitioner that he had used temporary stents and that it was medically necessary to replace those stents in the future. In addition, the standard of care required Respondent to implement a system to follow patients, like Petitioner, who had received temporary stents. Petitioner distinguishes Collins, noting that the patient’s injuries in Collins were not caused by the medical procedure itself. Petitioner also contests the trial court’s finding that signing out against medical advise is a complete defense under the Medical Professional Liability Act, W.Va. Code 55-7B-1 et seq. At most, leaving against medical advice is a form of negligence which the jury, as factfinder, must weigh against the negligence of the health care provider.
Respondent argues that the trial court was correct: Once Petitioner left the hospital against medical advice, then, as a matter of law, “the physician/patient relationship was terminated and [Respondent] had no duty to provide follow-up treatment.” This rule is confirmed by Collins and by analogous cases from New York and Arkansas. Respondent also asserts that Petitioner’s expert did not testify and that the certificate of merit was, in any event, inadmissible for summary judgment purposes. Finally, Respondent rejects the argument that leaving against medical advice is a form of negligence that must be considered as part of the comparative negligence analysis. Instead, the issue is one of duty. Having voluntarily left the hospital, Petitioner terminated the physician/patient relationship and terminated any duty owed under that relationship.
This is an interesting question that will not only have an impact on medical malpractice cases, but tort cases generally. Duty is at the heart of tort law. Hopefully, this case will provide insight into determining when a tort duty arises and when a tort duty terminates. The Supreme Court may also discuss if, and when, a certificate of merit may be considered in connection with a summary judgment motion.