Warren v. Dinter and the end of curbside medicine
Jacob M. Appel, M.D., J.D.
Every first-year law student is likely aware of the venerable legal maxim, popularized by Supreme Court Justice Oliver Wendell Holmes in Northern Securities Co. v. United States, that “hard cases make bad law.” In other words, a particularly disturbing set of facts or events may lead well-intentioned judges to make rulings that achieve justice in heartrending cases, but also create binding precedents that are then applied in future cases with less desirable results. The Minnesota Supreme Court’s decision in Warren v. Dinter (2019)1 is shaping up to be such a problematic and far-reaching decision.
The facts of the case are tragic, but far from extraordinary. Fifty-four-year-old Susan Warren presented to an Essentia Health clinic in Hibbing, Minnesota, on August 8, 2014, suffering from fever, chills and abdominal pain. The nurse practitioner on duty. Sherry Simon phoned the nearest hospital, Fairview Medical Center, where she discussed the case with a hospitalist, Richard Dinter. Dinter’s alleged curbside advice—per Simon—was that Warren did not require admission; Simon then called the attending physician at Essentia who, following Dinter’s reported guidance, cleared the patient for discharge. Three days later, Ms. Warren was found dead from sepsis and her son sued, among others, Dinter for his supposed advice. The American Medical Association’s Litigation Center, the Minnesota Medical Association and the Minnesota Hospital Association all filed amicus briefs in the case on behalf of Dinter. However, much to the surprise of the medical community, the Minnesota Supreme Court ruled against Dr. Dinter on the question of whether he could be sued for his conduct.
It must be noted that Dr. Dinter had never met or spoken to Ms. Warren; he had not even reviewed her chart. He was not her attending physician, he was not credentialed at Essentia, he was not paid for his advice, and he was not a formal consultant on her care. Rather, he’d simply offered informal guidance that Simon and her supervisor followed. None of the elements traditionally required to establish a physician-patient relationship were present. Nevertheless, writing for the court’s 5-2 majority, Associate Justice David Lillehaug found that the relevant question was not whether a physician-patient relationship existed between Dinter and Warren, but whether the decision to rely upon his advice was foreseeable. Needless to say, the implications of such an approach to malpractice claims is unsettling.
Curbside consults are part of the fabric of modern medical practice. One JAMA study reported that the average primary care physician is consulted informally as often as 3.2 times weekly, with higher numbers for specialists.2 Such consults—in which providers offer guidance “off the record,” so to speak—save time and health care resources; they are particularly useful in establishing whether a more formal consult is actually in order. Until recently, most curbside consultants could be confident that their wisdom would not open them up to liability, as they had not entered into any physician-patient relationship. But a foreseeability standard is a game-changer. Since the whole point of such curbside guidance is to shape care, a decision by the physician seeking advice to follow such suggestions would nearly always appear to be foreseeable.
At the time, the Minnesota case appeared to be a one-off: maybe a product of “Minnesota Nice” or the cold weather addling the justices’ brains. But then in January 2023, an Illinois appeals court appeared to apply similar reasoning in the case of Blagden v. McMillin.3 In that case, Dennis Blagden presented to the emergency room at Graham Hospital in Peoria County, Illinois, where he was evaluated by an ER attending, Dr. Matthew McMillin. McMillin then allegedly discussed the case via telephone with a second physician, Kenneth Krock, who had admitting authority at the hospital. After the conversation, McMillin discharged Blagden, who later died of hypercapnic respiratory failure and sepsis. The Illinois Court ruled that even though Dr. Krock had never interacted with the patient directly, he could still be sued for negligence. Whether the ruling is upheld on appeal remains to be seen.
Cases like Warren v. Dinter and Blagden v. McMillin mark a sweeping shift in the duties of physicians to third parties—a trend seen in other cases, such as the Washington State decision in Volk v. DeMeerleer4 (radically extending Tarasoff duties) and the New Jersey ruling in Safer v. Pack5 (expanding the obligation to warn third parties of genetic risks). Courts imposing these broad liability standards may be well-intentioned, but they likely do not fully understand the implications. Curbside guidance is not a compensated service. If physicians find themselves at risk for offering it, they will likely scale back their free advice. Instead, patients will see an increase in formal consults, which will drive up costs and delay care. After all, no physician wants to learn the hard way that the principles outlined in Warren v. Dinter have been applied to his own malpractice suits retroactively by his own state supreme court. Alas, like the negligence claimed in that case, the spread of its underlying principles seems to be all too foreseeable at present.
- Warren v. Dinter, 926 N.W.2d 370 (2019)
- Kuo D, Gifford DR, Stein MD. Curbside Consultation Practices and Attitudes Among Primary Care Physicians and Medical Subspecialists. JAMA. 1998;280(10):905–909.
- Blagden v. McMillin, 2023 IL App (4th) 220238 (2023)
- Volk v DeMeerleer, 187 Wn2d 241 (2016).
- Safer v. Pack, 677 A.2d 1188 (N.J. Super. A.D. 1996)