JULY 2008

Could my Dirty Harry routine land me a lawsuit?

Dear Lonny,
Patients are getting pushier all the time. One recently came to see me with shoulder pain and insisted he needed an MRI. Since his shoulder pain was not longstanding, I didn't feel an MRI was indicated at that time. I explained this to the patient and he threatened to complain to the College. My colleagues say that I should've said "Go ahead, make my day," but a complaint is the last thing I need. I'm also worried that I could be sued if the patient's pain gets worse and he later does need an MRI. Should I call the patient back and offer to order the test to avoid this complaint?

Signed, Trepidatious Tough Guy

Dear Trepidatious,
You can be sued if you fail to order a test that the standard of care required and this results in harm to the patient. But you must base your decisions on your medical judgement and not on a patient's threats. By no means should you change your medical management as a result of this patient's attempt to bully you. If you need further justification for your decision, consider that it could also be a breach of the standard of care to order an unnecessary test. Then there's the provincial insurer to worry about. In Ontario at least, the new OHIP audit provisions allow OHIP to make the referring physician repay the cost of tests not deemed medically necessary.

Next time a patient pulls this stunt, simply advise them that you could be held to account for a referral that you can't justify medically, and this is just such a referral. Never ask a patient not to lodge a complaint to the College, but I also don't recommend you pull a Dirty Harry and dare them to do so, as your colleagues advise. Believe me, having the College come in and scrutinize your records will not make your day.


Each month Lonny J Rosen, a partner in the Health Law Group at Gardiner Roberts LLP, will answer your burning medical-legal questions. Got a question for Lonny? Send it by email to [email protected] or by fax to 514-397-0228

This column is intended to convey brief and general information and does not constitute legal advice. Readers are encouraged to speak with legal counsel to understand how the general issues discussed in this column apply to their particular circumstances.




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