Know legal risks when consulting on-call specialists

ED physicians often "left holding the bag"

Do you believe that once your patient is evaluated by an on-call consultant in your ED, you are abdicated from any future liability? "ED physicians frequently believe this, but this is absolutely not true," says James Hubler, MD, JD, assistant clinical professor of emergency medicine at the University of Illinois College of Medicine at Peoria.

"Once the ED physician has evaluated the patient, there is the potential to be named in a lawsuit if there is an adverse outcome," says Hubler. "It is up to the ED physician to demonstrate that the standard of care has been met."

In a 2005 nationwide survey conducted by the American College of Emergency Physicians, 73% of 1,328 ED directors reported problems with inadequate on-call coverage by specialists, including neurosurgeons, orthopedic surgeons, and obstetrician/ gynecologists.

Despite the reason for the failure to secure a consultation from an on-call specialist, the ultimate responsibility for the patient rests with the ED physician, according to Edward Monico, MD, JD, assistant professor in the section of emergency medicine at Yale University School of Medicine in New Haven, CT.

"Consequently, if a bad outcome were to arise from the delay or failure in obtaining a consult, the ED physician would more likely than not be included as a defendant," says Monico. "Whether liability would attach to the physician would depend on the scenario and whether the ED physician's efforts fell within the standard of care for ED physicians similarly situated."

If there is a disagreement between the ED physician and the consultant regarding treatment or admission, the ED physician may have to call the primary physician or another consultant to admit the patient, says Hubler.

Always document the time you paged the on-call physician and the response time. If the specialist refuses to come in, document this and go up the chain of command to the head of their department and then the administrator on call, advises Hubler. While awaiting transfer or for another specialist to come in, be sure to continue to use all of the available treatments to begin stabilizing the patient, he adds.

Lawsuits involving on-call physicians typically name the ED physician as well. However, the physician may later be dropped from the lawsuit if it is determined through discovery that the ED physician did what would have been expected of a reasonable ED physician given the same circumstances. "The lawyers will want to name all physicians involved in the case, in order to avoid missing a potential defendant or missing the statute of limitations," says Hubler.

Be familiar with EMTALA risks

The Emergency Medical Treatment and Labor Act (EMTALA) impacts liability risks involving on-call physicians, because treating hospitals and physicians have an obligation to provide a medical screening examination that could invoke the use of ED resources, including specialized tests or consultations, says Monico.

"The use of specialty consultations must be included in this evaluation, if indicated and normally available in the ED," he says.

If the ED physician is unable to obtain a necessary consultation for whatever reason, the patient should be transferred to a hospital that is able to provide that consultation, says Monico. "ED physicians should document the time the consultation was requested, as well as any difficulty encountered in obtaining that consultation," he says.

More importantly, weighing the risks and benefits of transfer to obtain a consultation should be documented to reflect the physician's judgment in caring for the patient. "No doubt that ED physicians encountering such scenarios are caught between the Scylla of civil litigation and the Charybdis of federal regulation," says Monico.

Watch for high-risk areas

One such area involves injuries that should be cared for soon, but not immediately, such as a lacerated tendon of the hand that has to be repaired within a week or so, but not at 2:00 a.m., says Angela F. Gardner, MD, FACEP, assistant professor in the division of emergency medicine at University of Texas Medical Branch, Galveston, TX, and former director of risk management for Dallas-based EmCare. "Typically, the hand surgeon will say 'I'll see them in my office, just close the wound and put them in a splint,'" she says. "That seems perfectly reasonable, until the patient shows up and is asked for a $5000 deposit that he or she doesn't have. The indigent patient is left with very few choices. That's an all-around bad situation."

That patient could be left with permanent deformity and loss of function of the hand. "Some medical staffs require that their specialists provide at least one visit, but many don't. And some specialists don't feel obligated if the patient can't pay," says Gardner.

If the patient finds a lawyer to take his/her case, the ED physician likely would be named for not insisting that the specialist come in. "Even if you get testimony that this is commonly done, the jury is not going to think that way," says Gardner. "The hand surgeon will say, 'If I'd only known it was this bad I would have come in.' The ED doctor is left holding the bag."

To protect yourself against this scenario, document your conversation as completely as possible. "This is a fine line, though, because what you say in the medical record could cause another physician to be sued. It will always turn in to a he said/she said situation," says Gardner.

For example, an ED physician may evaluate a patient for abdominal pain and suspect appendicitis. When contacted, the family physician says he has known the patient for years, he has the same symptoms every week, it's not his appendix, and requests that the patient be seen in the morning. "The ED physician is unlikely to write on the chart, 'Family practitioner refuses to see patient because he is a chronic pain patient.' Instead, they will write 'The doctor will see the patient in the a.m.,'" says Gardner. "Then, if it is appendicitis and it ruptures with complications and the ED physician is sued, the family practitioner will blame the ED physician, who is stuck between a rock and a hard place."

Make your documentation as complete as possible, such as "Discussed this issue with family care provider. Said patient has had similar symptoms many times in the past, and feels that this is the same as in the past."

"Documentation won't keep you from being sued, but it will help you defend your position if it gets to that point," says Gardner. "Then it is really up to the ED physician to give adequate warning to the patient."

In this case, that means instructing the man to return to the ED if he has vomiting or increased pain. If you truly believe it's appendicitis, you should go ahead and call the surgeon, advises Gardner. "But that is very hard to do—if you are in a small hospital it will not go over well if it turns out not to be appendicitis," she says.

Another legally risky situation involves high-risk patients who need to be transferred from a community hospital because they don't have a specialist such as neurosurgery, pediatric orthopedics, or ophthalmology.

"A lot of smaller EDs don't have access to any kind of coverage, so they have to transfer that patient," says Gardner. "If the patient is not stable, either the patient may die because he can't be transferred, or he may die because of the transfer process itself. When that happens, everybody gets sued."

Lawsuits involving neurosurgery in particular are "horrible cases," says Gardner, because consequences can be devastating. "Communicate clearly with consultants and be very clear about your impression of the patient and what should be done," she says.


For more information, contact:

  • Angela F. Gardner, MD, FACEP, Assistant Professor, Division of Emergency Medicine, the University of Texas Medical Branch, 301 University Blvd., Galveston, TX 77555-0144. Phone: (409) 772-1425. Fax: (409) 772-9068. E-mail:
  • James R. Hubler, MD, JD, Assistant Clinical Professor of Emergency Medicine at University of Illinois College of Medicine at Peoria, One Illini Drive, Peoria, IL 61605. E-mail:
  • Edward Monico, MD, JD, Department of Surgery, Section of Emergency Medicine, Yale University School of Medicine, 464 Congress Ave., Suite 260, New Haven, CT 06519-1315. Phone: (203) 785-4710. E-mail: