EPs sometimes are faced with on-call consultants who are reluctant to come in to see the ED patient, exposing the EP, the consultant, and the hospital to liability. Some strategies:

  • Ensure that hospital bylaws reflect exactly what’s required by EMTALA.
  • Require consultants to defer to the EP’s judgment.
  • Inform consultants that the refusal is being documented.

In the face of push-back from an on-call consultant, EPs should consider both the Emergency Medical Treatment and Labor Act (EMTALA) and hospital bylaws, says John W. Miller II, principal at Sterling Risk Advisors in Atlanta.

EMTALA is clear that the on-call physician must defer to the medical judgment of the EP who has personally examined the patient, Miller notes.

“If you are making a judgment from afar, and the EP tells you, ‘I think you really need to see this patient and attend to their needs,’ you don’t want to be the consulting physician who refused,” Miller explains.

During medical malpractice litigation, the plaintiff attorney can put this question to the on-call physician: “Why didn’t you listen to your colleague who called you?”

“How are you going to explain yourself?” Miller asks. “That’s a really tough place to be.”

Miller advises hospitals to implement bylaws that reflect exactly what EMTALA requires, and no more. “To create a requirement over and above EMTALA raises the stakes in litigation,” he explains. “Why create a higher standard than is imposed on you by federal law?”

Miller says the safest course is to simply state that consultants should defer to the judgment of the EP, who has actually seen and evaluated the patient. “This is the prudent risk management technique for everyone involved — the EP, the consultant, and the hospital,” he adds.

In malpractice cases in which on-call physicians have refused to come to the ED, Miller adds, “there have been tremendous repercussions for the on-call physician.”

Ultimately, it’s the specialist’s decision whether to come to the ED to personally evaluate any patient he or she is called about. Catherine Vretta, MD, MPH, an EP at Ascension St. John Hospital in Detroit, says, “But the EP should definitely document any circumstance in which they requested the specialist to evaluate the patient, if the specialist refuses.”

One exception is if the on-call physician asks to see the patient in his or her office because diagnostic equipment is available that the hospital doesn’t have. “If you can make that case, there are some carve outs to EMTALA that allow the ED patient to be referred directly to the office,” Miller notes. “But those cases are few and far between.”

To avoid conflict, EPs don’t always insist the consultant come in. Some don’t do anything about the refusal, other than document it.

“This is a two-fold problem,” Miller says. “First, it doesn’t absolve the EP of their responsibility for the patient.”

The second problem is that it exposes the hospital to liability. “Documenting in the record, and then not following through with the escalation process, increases the likelihood that the hospital is brought into the litigation,” Miller explains.

The care episode would have otherwise involved only the two providers and their alleged negligence, Miller says. The fact that the hospital bylaws weren’t followed opens the door for the plaintiff to bring the hospital into the litigation.

Miller recommends that EPs inform the consultant that they’ll document the refusal, and that they will follow whatever protocols are in place to address the issue. “In the vast majority of cases, the consultant will come in. They don’t want to subject themselves to that,” Miller says.

This is, of course, likely to create some tension between the ED and on-call consultants. “But the appropriate place to work that out is at a medical staff meeting, not during a 2 a.m. phone call,” Miller says.

Document Conversation

Vretta says the EP should document clearly in the record the time the specialist initially was called and the time the specialist responded. “These may be vastly different,” she says. “In many hospitals, a paging system or electronic contact system can document these times.”

In addition, Vretta says the EP should document:

  • a description of the patient’s problem, as well as the patient’s condition at the time of the conversation;
  • any concerns the EP has;
  • exactly what the recommendations of the specialist were.

Documentation showing the EP’s frustration with the consultant’s responses is not helpful, according to Vretta. “It may imply the EP was more focused on their frustration than on the actual patient,” she says. “If multiple calls and repeated pages are documented, the chart will speak for itself.”

In Miller’s experience, the ED chart is usually more complete than what the on-call consultant has documented. The consultant might be taking the call at home in the middle of the night, whereas the EP is documenting concurrently during his or her shift.

“However, it’s always the one fact that the case turns on that inevitably is not documented by the EP,” Miller says. He likes to see as complete a record as possible of the conversation between the EP and the consultant.

“I have had some cases where I would have loved to have the actual record of the conversation, because it would have meant the successful defense of my EP who was following the consultant’s recommendations,” Miller says.

The EP should share the right level of data to allow the consulting physician to assist in the patient’s care. “EPs who have lived through litigation learn pretty quickly the appropriate level of information to convey,” Miller says. “Really, what we are talking about is appropriate communication between professionals.”

Clear documentation of what was said by both parties is not only good medicine, it is a good legal defense. “Just as you document conversations with patients, it is of equal importance to document conversations with your colleagues,” Miller advises.


  • John W. Miller II, Principal, Sterling Risk Advisors, Atlanta. Phone: (678) 424-6503. Fax: (678) 424-6523. Email: jmiller@sterlingra.com.
  • Catherine Vretta, MD, MPH, Ascension St. John Hospital, Detroit. Phone: (248) 760-1824. Email: Catherine.Vretta@ascension.org.