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Liability of physicians who fail to fulfill on-call responsibilities to the ED
by Robert A. Bitterman, MD, JD, FACEP, Contributing Editor
The diminishing availability of on-call specialists willing to provide emergency services has been well documented.1-4 Emergency physicians (EPs) are particularly, painfully, and acutely aware of the problem since countless precious hours are spent seeking care or arranging transfers for patients needing specialty intervention. Two recent cases address the liability of neurosurgeons (NSG) who agreed to be on-call but failed to be available when needed or outright refused to come to the emergency department (ED) to treat an emergency patient when called.
Brown v. Greg Bailey, MD 5
A 69-year-old woman was admitted via the ED to Forest Park Hospital in Missouri with pneumonia. Shortly after admission, she tried to get out of bed but became tangled in the IV tubing. She fell and struck her head, lacerating an eyebrow. An intern sutured the laceration, and because the patient appeared confused the intern returned every 15-30 minutes to reexamine the patient. About an hour after the fall, out of concern for the patient's mental status (and the fact that she was taking the blood thinner Coumadin [warfarin-sodium]), the intern ordered a head CT scan. After another 2 hours, the CT scan interpretation revealed an epidural hematoma and some subarachnoid blood. The intern discussed the case with the supervising resident; then called the patient's attending ("to get permission to call a neurosurgeon"); and finally paged Dr. Bailey, the NSG on-call for the hospital.
Dr. Bailey had arranged for one of his partners, Dr. Wetherington, to cover call for him. However, he failed to inform the hospital of the change, despite that the on-call schedule required him to notify the medical staff office of any changes. More problematic though, and known to Dr. Bailey, was that Dr. Wetherington did not have privileges to practice NSG at that hospital. Thus, the physician actually on-call lacked privileges to treat neurosurgical cases there.
Fortunately, Dr. Wetherington answered the page for Dr. Bailey. Unfortunately, he informed the intern of his inability to treat patients there and instructed the intern to transfer the patient to a hospital where he did have privileges or to the nearby university hospital. Five hours passed between the time the CT results were known and the patient was actually received in transfer at the university, during which time the court pointedly noted the patient "continued to bleed on her brain while awaiting transfer" and ultimately died.
Subsequently, the family filed a wrongful death action against Dr. Bailey, the intern, the resident, the patient's admitting physician, Dr. Wetherington, and the hospital. The hospital settled the case and the doctors in training were dismissed. The family proceeded to trial against the remaining defendants and the jury awarded damages in the amount of $400,800, assessing 50% of the fault to Dr. Bailey.5
Dr. Bailey appealed, arguing that he could not be held liable for damages to the patient because he had no duty to the patient, since no physician-patient relationship had ever been established.5
The plaintiffs countered that: 1) Dr. Bailey did owe the patient a duty of care, by virtue of being on-call for the hospital; 2) Dr. Bailey had a duty to provide reasonable notice to the hospital that he would be unavailable to respond to calls; and 3) he had a duty to refrain from delegating his on-call duties to a NSG without the requisite privileges to treat patients at that hospital.5
The Appellate Court's Decision. The court agreed that no physician-patient relationship between Dr. Bailey and the patient ever existed; therefore, the plaintiffs could not sue the neurosurgeon for medical negligence.5,6 Under Missouri law, a physician's duty of care to a patient is derived from the physician-patient relationship.6,7 No relationship means no duty and no viable malpractice claim. (Remarkably, plaintiff's counsel never argued that federal law [EMTALA] may impose a duty upon an on-call physician to come in to treat patients with emergency conditions.)
However, the court distinguished a claim for damages against a physician based on "medical" negligence from a claim based on "general" negligence. First, under medical negligence a physician's negligent acts or omissions involve a matter of medical science, whereas in a claim for general negligence they do not. Second, in a medical negligence claim the source of the physician's duty to the patient is the existence of a physician-patient relationship; for a claim on general negligence a physician's duty may exist as a matter of public policy, without the requirement of a physician-patient relationship.
In determining whether public policy supported imposing a legal duty on Dr. Bailey, the court applied three factors:8 1)the economic burden upon the physician and the community; 2) the prevention of future harm; and 3) the foreseeability of harm.
The court quoted its own precedent from a famous on-call case of the late 1990s, Millard v. Corrado.6 For the first factor, the court stated that "imposing a duty on 'on-call' physicians to notify appropriate hospital personnel of their unavailability does not place an unreasonable burden on the medical profession." Pertaining to the second factor, the court held that "if such a duty is imposed on 'on-call' physicians, there would be a reduced chance that similar incidents would occur in the future." Finally, with respect to the third factor, the court found that the risk of harm to which a patient was exposed due to Dr. Bailey's failure to notify the hospital of his unavailability was reasonably foreseeable.
Evidence supporting the court's conclusion that the harm to an emergency patient, such as a member of the Brown family, was particularly foreseeable included:
1. Dr. Bailey knew the hospital would not have NSG coverage in his absence.
2. Dr. Bailey knew that delegation of his on-call responsibilities was "conclusively ineffective" because Dr. Wetherington did not have privileges to perform NSG surgery at that hospital;
3. Dr. Bailey was also aware that, as a result of his actions, the hospital would have to transfer any patient with a neurosurgical emergency regardless of the patient's physical condition or the delay associated with the transfer; and
4. Dr. Bailey's failure to notify the hospital of his unavailability created a false sense of security that a neurosurgeon would be available on-call to care for emergency patients within a reasonable time.5
Therefore, the court concluded, as it had done in Millard v Corrado,6 that under a general negligence claim:
The appellate court affirmed the damages award against Dr. Bailey.
Seeber v. John Ebeling, MD 9
After sustaining injuries in a motor vehicle crash, Mr. Seeber was taken from the scene via helicopter to the St. Francis Regional Medical Center ED in Topeka, Kansas. The EP diagnosed a C7 fracture with an incomplete spinal cord injury and then contacted the NSG on-call, Dr. Ebeling, around 8 p.m. to come to the ED to examine and treat Mr. Seeber. Dr. Ebeling twice refused to come to the ED, claiming he was "very fatigued." He told the EP to transfer the patient to the University of Kansas Medical Center, about 65 miles away. The patient eventually was transferred and underwent surgery the next day; the patient's end result was complete paraplegia.
Mr. Seeber sued Dr. Ebeling for negligence. The trial judge, however, dismissed the case. The judge held as a matter of law that because Dr. Ebeling refused to accept Mr. Seeber as a patient no physician-patient relationship was created between Ebeling and Seeber; therefore, Mr. Seeber was unable to establish the duty element of his negligence claim necessary to proceed to a jury trial.9
Under settled Kansas law, just like in Missouri and other states, a duty of care (which is required to sue a physician for medical negligence) is premised on the existence of a physician-patient relationship.10
Mr. Seeber appealed, presenting essentially the same arguments as the plaintiffs in Brown v. Bailey.5,9 First, he noted that being the NSG on-call for the ED creates a duty of care to a patient who presents with a neurosurgical emergency. Second, he argued that independent of the duty that flows from a physician-patient relationship, and again based on "public policy" or "general" negligence considerations, there should be a duty on the part of an on-call physician to notify appropriate hospital personnel whenever he or she is unavailable to treat patients with emergency conditions.9,11
The Appellate Court's Opinion. The court rejected Mr. Seeber's first contention, stating that a physician-patient relationship is consensual and the mere fact that a physician has agreed to be on-call does not establish a consensual relationship. Instead, the physician must expressly agree to accept a patient or take some affirmative action to advise or treat the patient for the relationship to be established.9,12
In this case, it was undisputed that Dr. Ebeling refused to accept Mr. Seeber as his patient and that Dr. Ebeling never offered any medical advice or directed the course of the patient's treatment in the ED. Instead, he immediately told the EP he was too tired and refused to treat Mr. Seeber.
According to Dr. Ebeling, he made a "judgment call that Mr. Seeber would be better off at a trauma center that had a trauma team and a fresher surgeon."9 (The court never explored whether the trauma center really did have a "fresher" surgeon or exactly how Dr. Ebeling knew if that was true at 8 p.m. on the night in question.) He testified that he was "feeling run-down because he had been an on-call physician every third night for more than 10 years."9 It was the only time Dr. Ebeling could remember being too fatigued to attend to a patient when he was on-call (which was confirmed by the EP).
Dr. Ebeling testified that "on-call" meant that he was available for consultation, not that he was required to come to the hospital and treat a patient with a neurosurgical emergency.9 Curiously, no evidence concerning medical staff or hospital rules delineating the duties or responsibilities of the hospital's on-call physicians was presented in the appeal. Dr. Ebeling asserted that it was just "customary" that he would take call every third day and be available to consult with physicians in the EDs at St. Francis and the other hospital in town concerning patients with neurosurgical conditions. (There were only three neurosurgeons in Topeka available to take call.)
The court held since Dr. Ebeling was available for consultation on the evening in question, responded within a reasonable time, and provided "consultation," the uncontroverted evidence established that Dr. Ebeling fulfilled his on-call duties.
Mr. Seeber's second argument, that the public policy of Kansas should recognize an independent duty on the part of an on-call physician to notify appropriate hospital personnel of his unavailability, also failed in this case.9,10 To support his assertion, Mr. Seeber presented the same arguments as the plaintiff's in Brown, and also cited as support the Millard v. Corrado case.6 However, the court rejected all of Mr. Seeber's arguments, citing case precedent in Kansas,13-15 and distinguished Dr. Ebeling's case from the Millard case6 for the following reasons:
1. Dr. Ebeling did not sign up to be on-call. Rather, his on-call status arose by "custom" because he was one of only three neurosurgeons in Topeka. Also, when Dr. Ebeling was on-call, he was also on-call for two hospitals in Topeka. Furthermore, Dr. Ebeling actually responded to the EPs call within a reasonable time, discussed the case, and then informed the EP of his fatigue. In Millard, the on-call physician was out of town and could not possibly come to the hospital to treat a patient.
2. There was no evidence that when on-call Dr. Ebeling was required to come to the hospital and treat a patient; rather, being on-call meant that Dr. Ebeling had a duty to be available for consultation only. Dr. Ebeling did not have a contract regarding call with the hospital.
3. When Mr. Seeber suggested that Dr. Ebeling had a duty to inform the hospital that he was too fatigued to come in to the hospital that evening, the court accepted Dr. Ebeling's counter argument that it is not reasonably foreseeable for a surgeon to know whether he or she will want to or be able to accept a patient without first learning about the patient's condition. For example, there is an enormous difference between treating a person with a peripheral nerve injury as opposed to treating the type of injuries sustained by Mr. Seeber.
4. Missouri's legislature passed a law — two years after the Millard incident — which required on-call EPs to arrive at the hospital within 30 minutes of being contacted.16 The Seeber court stated that this regulation supports a public policy recognition of a duty in Missouri because it "evidences a social consensus to ensure that emergency room physicians attend to their patients within a reasonable time." The Kansas court found no such "social consensus" existed in Kansas.
5. The court noted another important distinction between Millard and Mr. Seeber's public policy assertions: Seeber had not pointed to any regulation, law, or policy which would establish such a "social consensus" in Kansas that on-call physicians must actually come to the hospital to treat patients with emergencies. The court said to impose such a duty upon a physician who is on-call "would have a chilling effect on the profession. Physicians would not want to volunteer to receive calls from hospitals if a physician could be required to come into the hospital and treat a patient even though the physician did not feel competent to handle a particular case."9
In the end, the Mr. Seeber's "public policy" argument failed when the court rejected the logical rationale put forth in the Millard case. The Kansas appellate court held that Dr. Ebeling was not liable for failing to inform the ED of his unavailability to handle NSG emergencies and no liability for refusing to come to the ED when called.9
The court's peculiar opinion in Seeber v. Ebeling transposes the reader back to the late 1970s and early 1980s, before Congress passed EMTALA precisely to remedy the problem of hospital EDs not knowing, prospectively, whether they did or did not have particular on-call specialty coverage on any given night.
It is certainly understandable that neurosurgeons fatigue and occasionally simply can't take on another case. They are too short in numbers but critically needed, and work ungodly hours. However, it is wholly unacceptable when they fail to inform the ED of their unavailability.
First, EMS may be diverted so that critically injured neurosurgical patients can be taken directly to a facility with the capability to handle the emergency instead of wasting time (to the patient's detriment) reaching, negotiating, cajoling, begging, or otherwise engaging the NSG on-call and then losing still more time arranging transfers. In Seeber, the patient was airlifted from the scene and could have been diverted directly to the University hospital had the EP known his NSG was incapacitated.9 But for a simple considerate phone call, the patient lost 5-6 hours in reaching definitive care. Such delay doesn't always make a difference. It probably did not in this case, but certainly sometimes it really makes a life or death difference.
Second, even if a patient with a neurosurgical emergency presents directly to the ED without involvement of EMS, if the EP knows the NSG is unavailable he can immediately initiate the transfer instead of processing through the time-wasting phone calls/negotiating dance with the allegedly on-call NSG. Similarly, accepting hospitals are much more reticent to accept patients if the hospital has a NSG listed as "available" on its call schedule. This is particularly true if the listed on-call NSG declines to come in and care for the patient for whatever reason, but especially for vague "fatigue" reasons. The transfer is much easier to effect if the EP can forthrightly say, in advance of the patient's presentation, that his NSG informed him he was unavailable.
Third, it is somewhat specious to argue that one needs to learn of the case before deciding if one is too fatigued to handle it. Anytime a NSG feels unable to handle the next major case through the door he should promptly inform the EP on duty. The two physicians can discuss the situation and mutually consider options, but at least this way the EP knows where the department stands before the next critically injured patient enters the system and can react accordingly.
Every hospital must have written policies and procedures defining exactly what it means to be "on-call" at that facility. Specifically:
1. Is the on-call physician available only to "consult," or expected to come to the ED when necessary to examine and stabilize patients with emergency conditions? (Under EMTALA, the hospital should contractually or through the medical staff by-laws require on-call physicians to present to the ED to help screen or stabilize emergency patients.)17
2. Is the on-call physician required to respond to in-house emergencies when requested by the patient's admitting physician, or is he only required to respond to emergencies presenting to the hospital's ED? (Dr. Bailey argued he was only on-call for the ED; therefore, he didn't have to respond emergencies that arose in in-patients. Under the hospital's practice, being on-call for the ED included in-house emergencies, so this defense failed. The case also occurred before the government ceased applying EMTALA to inpatients.)18 Everyone at the hospital needs to know the answer in advance.
3. The on-call physician must respond within a "reasonable time." Under federal law the hospital must place in writing the response time "in minutes."19 Using the word "reasonable" in the written medical staff rules and regulations is no longer acceptable.19 Some states, such as Missouri, do require the on-call physician to respond within a specified time frame, typically 30 minutes.16
4. Require the physicians to notify the hospital or the ED promptly if they become unable to respond when on-call for the hospital.
5. Create and implement a written plan defining the actions the ED should take if the on-call physician is unavailable or refuses to come to the ED when requested. What chain of command does the EP follow?
6. Monitor the on-call system and the response of the on-call physicians. Every hospital knows its problem players; the hospital should act to correct the physician's behavior before it costs a patient his or her life, and the hospital some bad publicity, a government investigation, and of course civil litigation.
Finally, the Missouri court's conclusion in both Brown and Millard sums up what EPs, hospitals, and the community at large justifiably expect of physicians on-call:
1. McConnell KJ, Johnson LA, Arab N, et al. The on-call crisis: a statewide assessment of the costs of providing on-call specialist coverage. Ann Emerg Med 2007;49:727-733.
2. American College of Emergency Physicians. On-Call Specialist Coverage in U.S. Emergency Departments. ACEP Survey of Emergency Department Directors, April 2006.
3. Rudkin SE, Oman J, Langdorf MI, et al. The state of ED on-call coverage in California. Am J Emerg Med 2004;22:575-581.
4. Bitterman RA (Editorial). Explaining the EMTALA paradox. Ann Emerg Med 2002;40:470-475.
5. Brown v. Bailey, ____ S.W.3d ____, No. ED86387 (Mo.App.E.D. 2006).
6. Millard v. Corrado, 14 S.W.3d 42 (Mo.App.E.D. 1999).
7. Whether a duty exists is a question of law for the court to decide. Hallquist v. Midden, 196 S.W.3d 601 (Mo.App.E.D. 2006).
8. Hoover's Dairy, Inc. v. Mid-America Dairymen, 700 S.W.2d 426 (Mo.banc 1985).
9. Seeber v. Ebeling, 141 P.3d 1180 (Kan. App. 2006).
10. Nold v. Binyon, 31 P.3d 274 (Kan. 2001); Irvin v. Smith, 31 P.3d 934 (Kan. 2001).
11. Based on The Restatement (Second) of Torts § 324A, which had been adopted by the Kansas Supreme Court.
12. Anderson v. Houser, 523 S.E.2d 342 (1999).
13. Estate of Beckner v. Jensen, 24 P.3d 169 (Kan. App. 2001).
14. E.g., Dawson v. Prager, 76 P.3d 1036 (Kan. 2003).
15. Citing Oja v. Kin, 581 N.W.2d 739 (Mich. App. 1998).
16. MO. 19 C.S.R.30-20.021.
17. 42 U.S.C. Section 1395cc(a)(1)(I): "in the case of a hospital or rural primary care hospital … (iii) to maintain a list of physicians who are on call for duty after the initial examination to provide treatment necessary to stabilize an individual with an emergency medical condition." Emphasis added.
18. 68 Fed. Reg. 53,221-53264 (Sept. 9, 2003) The EMTALA regulations effective Nov. 10, 2003.
19. HHS CMS/Survey and Certification Group. S&C-04-34, Revised Final EMTALA Interpretive Guidelines, May 13, 2004; available at: http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLetter04-34.pdf. Accessed on 6/12/07.