No Specialist Available? Protect Yourself Legally

Not surprisingly, if a consultant is unavailable and a bad outcome occurs, the emergency physician (EP) is potentially a defendant in any subsequent medical malpractice lawsuit, says Damian D. Capozzola, JD, an attorney with Crowell & Moring, LLP, in Los Angeles, CA. “If an outcome goes bad, you can’t stop somebody from paying the filing fee, filing a complaint, and initiating a lawsuit naming essentially every provider who interacted with that patient concerning the problem leading to the bad outcome,” he says.

Capozzola says that the main factor determining whether such a lawsuit would actually succeed, however, is whether the EP acted “reasonably, under the totality of the circumstances that existed as of the time the patient presented to the ED.”

The EP should consider carefully documenting his or her familiarity with, and compliance with, the facility protocol for contacting on-call physicians, which may require a number of escalating steps in the event the scheduled on-call physician is unavailable, advises Capozzola. “The EP should also consider, and document, ordering additional tests and evaluating results from the perspective of the missing on-call physician if he or she remains unavailable,” he adds.

If the ED patient is presenting with circumstances requiring decisions immediately in areas where the consultant would have been valuable, but the consultant is not there, Capozzola says the EP simply needs to act as he or she deems best for the patient. This might involve a transfer to a different facility.

“At least one reported opinion illustrates an EP apparently escaping liability in large part because a transfer was ordered in the absence of a qualified on-call physician with privileges at the facility,” he notes.1

Capozzola acknowledges that it is generally the on-call physician’s duty to reasonably notify a hospital that he or she will not be able to fulfill the on-call duties. However, in an emergency scenario with an unstable and/or declining patient, failing to act and allowing the patient’s symptoms to worsen while trying to track down a wayward consultant could expose the EP and the facility to liability.

“But where the patient can be stabilized, and there is no material risk of a problem worsening while the consultant — or another consultant — is located, then it is riskier for the EP to stick his or her neck out and take charge in what may not be an area of relative expertise,” he says. “If the patient is stable, there’s little reason not to wait for a specialist to consult.”

On-call Refusals

Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney, says that the reason for transfer is often the legal basis for lawsuits involving transfer to another facility.

“These cases often involve refusal of the on-call physician to come in to see the patient, and the decision of the EP to transfer the patient without challenging the refusal through the hospital chain of command or securing alternate coverage for the necessary specialist,” he says.

In one such case, a motor vehicle accident patient presented by ambulance to a rural ED, where a resident diagnosed a vascular surgical condition and arranged transfer. “The helicopter arrived, but in the meantime, the first hospital cancelled acceptance and the other hospital’s on-call refused the patient,” says Frew. “The resident requested the on-call surgeon to come in and help stabilize the patient while he searched for an accepting hospital, but the on-call refused to get involved.” More than four hours later, an accepting physician was located and the patient was transferred, but the patient died during surgery.

“The on-call surgeon at the initial hospital was cited, along with the other hospitals and their on-calls,” says Frew. “There was a massive undisclosed settlement.”

Did the on-call specialist refuse to come to the ED or fail to respond to call, as opposed to legitimately being unavailable in surgery or because of circumstances beyond his or her control?

If so, says Frew, the EP “has an affirmative duty under [the Emergency Medical Treatment and Labor Act] to list the name and address of the refusing or non-responding physician in the transfer documentation.”


1. Brown v. Bailey, 210 S.W.3d 397 (Mo. App., 2006)


For more information, contact:

Damian D. Capozzola, JD, Crowell & Moring, LLP, Los Angeles, CA. Phone: (213) 443-5503. E-mail:

Stephen A. Frew, JD, Loves Park, IL. Phone: (608) 658-5035. E-mail: