In Burtman v. Brown, the First Department addressed whether the plaintiff’s primary care physician had a duty to supervise or override a course of treatment initiated by another physician actively treating the plaintiff. More specifically, at issue was the care provided by a primary care physician in possession of a radiology report that was ordered by the plaintiff's obstetrical practice showing two abdominal masses. The obstetrical group ordered the radiology report after discovering the masses during a pregnancy checkup. The report declared that the masses were "consistent with benign lipoma" and the obstetrical group decided to take a wait-and-watch approach. The plaintiff claimed that based on the radiology report in the primary care physician's possession, she should have discussed it with the plaintiff and sent her for a biopsy. The plaintiff, however, did not have a biopsy until more than a year later. According to the plaintiff, by then the biopsy results showed a potential malignancy requiring a wide radical excision.
The First Department held that "[i]n this case" the motion court erred in finding that the primary care physician had an independent duty to assess the plaintiff's condition and order diagnostic testing such as a biopsy. According to the Court, the question of a duty is a legal question for the court and is generally not an appropriate subject for expert opinion. In that regard, the Court held that there is "no legal authority for the view that a primary care physician has an independent duty to assess the course of treatment set and monitored by another physician." Thus, the defendant’s status as the plaintiff’s primary care physician is not dispositive as to whether a duty exists. Instead, the question turns on whether the primary care physician undertook to advise the plaintiff about her condition and whether the plaintiff relied on that advice. Since it was undisputed that the primary care physician was not involved in setting or monitoring the course of treatment for the plaintiff's abdominal masses, the Court held that there was no duty and granted summary judgment for the primary care physician.
In dissent, Judge Tom argued that primary care physicians, by their nature, should owe a duty with respect to the general health of their patients. Thus, according to Judge Tom, where a physician has undertaken to provide primary medical care, there is a duty to advise the patient of those conditions known to the physician that pose a threat to the patient's health so that the patient may make an informed decision whether to seek further treatment. Furthermore, as the physician primarily responsible for the patient's care, there is an additional duty to take such appropriate medical action as might be necessary to diagnose and treat the condition, either personally or by way of referral to a qualified practitioner. Judge Tom, therefore, would have affirmed finding that the primary care physician should have reviewed the radiology report with the plaintiff and sent her for a biopsy.