Understanding duty and liability when you are on-call: Avoiding minefields

We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

The following questions came from a hand surgeon. They address situations that might arise when he is on-call at his local community hospital. These questions encapsulate issues that may affect anyone who consults to emergency rooms.

Let’s have a look:

1. I am on-call for hand surgery. A patient comes to the ER for a hand issue that the ER either treats or stabilizes. The ER physician gives them my name for follow-up, but no appointment is made. No contact is made from the ER to me. What are my duties to the patient and my potential liabilities?

Unless your contract with the hospital states that you agree to accept any patient referred to you by the ER, no relationship between you and the patient adheres in this setting. So you have no duty to the patient.

2. I am on-call for hand surgery. A patient comes to the ER for a hand issue that the ER either treats or stabilizes. The ER physician gives them my name for follow-up but no appointment is made. After the patient is discharged, the ER physician calls me just to tell me that the patient may be coming to see me. What are my duties to the patient and my potential liabilities?

There is no difference here from the first situation even though the ER physician has now told you that the patient may be making an appointment with you.

A mere “heads up” that the patient might come to see you creates no relationship with the patient.

3. I am on-call for hand surgery. A patient comes to the ER for a hand issue that the ER either treats or stabilizes. While the patient is waiting, the ER physician calls me to ask if I’ll be in the office on the day the patient needs follow-up. I say “Yes” and that the patient can make an appointment. The patient does not do so at that time. There is no further conversation with the ER physician. What are my duties to the patient and my potential liabilities?

Same as #2.  No actual consultation about the patient’s emergency care was sought from which a duty regarding that care might be extrapolated. You also did not actually accept the patient, so no relationship formed that would underpin an ongoing duty to them after they are discharged.

4. I am on-call for hand surgery. A patient comes to the ER for a hand issue that the ER either treats or stabilizes. The ER physician gives them my name for follow-up but no appointment is made. The ER physician calls me to tell me about the case and the referral after the patient has been discharged. What are my duties to the patient and my potential liabilities?

In this case the ER physician also told you about how the patient was managed and this element of the communication has triggered a duty that can carry liability even though you not only never saw the patient but was not even asked about their care.

Your contractual duty to the hospital as the on-call physician for hand surgery makes you, in essence, the supervisor of the ER physician on hand cases. The reason – you are on-call for that specialty because of your greater expertise in it. Courts have generally held that in situations in which the on-call physician is in a supervisory role, a physician-patient relationship exists as far as the emergency care the patient is receiving, even if the supervising physician never has contact with the patient.

What does this mean? You now have a duty to speak up if you do not agree with the case management or the discharge – and must also initiate a recall.

If, however, you do agree with how the case was handled, then your duty to the patient as far as their emergency care is fully discharged by you stating that agreement to the ER physician. A duty to the patient for follow-up will only begin if they actually do come to see you in your office

If your agreement or disagreement as to the emergency care is itself negligent, it may be actionable.

A related question is what you are obligated to do in situations such as in #2 and #3, where the ER physician has contacted you but not about clinical matters. Do you have to inquire about clinical issues that were not spontaneously raised?

The answer there is based on the usual requirement of reasonability. If the ER physician mentions a minor problem that is typically uncomplicated and one that the ER deals with routinely, such as a boxer’s fracture, it can be entirely reasonable to not request additional details. On the other hand, if the ER physician describes a more complex injury, then a reasonable on-call physician would be expected to inquire further. To fail to do so could be actionable negligence.

5. I am on-call for hand surgery. A patient comes to the ER for a hand issue. The ER physician stabilizes the patient and then calls me, as the on-call physician, for advice about the appropriate follow-up in this case.  He gives me pertinent clinical facts and answers my questions about the patient.  My advice is that the patient may be discharged and then be seen as an outpatient in a week. What are my duties to the patient and my potential liabilities?

This is where the relationship with the patient forms directly through your own action rather than in an implied fashion and the duty of care to the patient adheres through that even though you have never met them.

Generic advice is a “curbside” (“Outpatient follow-up in 7 days is generally sufficient in such cases.”). This, however, is intrinsically not a “curbside” because (1) you are on-call to provide case-specific advice; (2) you exercised your independent medical judgment and intervened in the care of the patient through providing case-specific advice that will determine the patient’s treatment; and (3) you did so knowing that the ER physician would rely on that advice.  That last issue is one that courts will particularly look to in determining that a relationship with the patient has formed under which an actionable duty of care applies.

Situations like this, or those in which you independently widen the scope of the consult, are why you should consider keeping a separate on-call record of the facts of the case, whom you spoke to and what you advised. That can be evidence in a later lawsuit because it is maintained in the ordinary course of business.

6. I am on-call for hand surgery. A patient comes to the ER for a hand issue. The ER physician calls me to ask me about the case.  I review some x-rays remotely and recommend outpatient follow-up in a week. What are my duties to the patient and my potential liabilities?

Just as above. The ER physician is clearly relying on you.

Get the most information that you can because you will be bound by a full duty in this case.

Bear in mind, though, that the duty that accrues in #5 and #6 only extends to the emergency care that you are consulting on. Unless your contract with the hospital obligates ongoing care, your physician-patient relationship extends no further than the giving of the advice to the ER doctor until the patient establishes a relationship for ongoing care by coming to see you in your office.

What this means in terms of liability is that if the patient sues about the results of the care that they received in the ER, they can sue you, or the hospital can implead you, and you will stay in the case.  However, what the patient does on their own as far as recommended follow-up after they leave the ER cannot be laid at your doorstep absent a contractual obligation that extends your duty to the post-discharge period.

7. If I am not asked to come in to see the patient and I answer appropriately based on the information that I am given, am I liable for mistakes on the part of the ER?

For example:

(i) The ER physician calls about a lacerated finger.  They tell me that the finger is perfused but may have a cut tendon.  No request is made to come to see the patient but outpatient follow-up is requested.  I arrange to see the patient within 48 hours, which is within the Standard of Care for a possible tendon injury.  When I see the patient, the finger is dead.

You are not liable here. You may reasonably rely on the information that you are given by an appropriate source, which the ER physician who examined the patient certainly would be. The only way that you could be liable is if a physician in your specialty reasonably should have known, based on what you were told, that the ER physician was underestimating the problem and that this was actually something that you needed to intervene on immediately.

(ii) The ER physician calls about a hand laceration that they sewed up, again only seeking follow-up. No request is made for me to come in.  I see the patient in 48 hours as scheduled by the ER and see that the patient also has a forearm laceration and has developed compartment syndrome, which has now caused permanent damage.  No forearm laceration was ever mentioned in the call from the ER physician.

You are not liable here. The only way that you could be liable would be if two conditions are associated with each other sufficiently commonly that the presence of one should raise suspicion of the presence of the other. An example might include checking for a fracture after a dislocation is reduced. However, if two things are just incidentally present and you are not told about the second or given any clinical reason to suspect that it should be looked for, then the liability on that point is solely the ER physician’s.

These are both good examples of why, when you actually give consultative advice and so take on a full duty with full liability, you should keep a record of what you were told and what you said and then make sure to follow-up in the chart as soon as you reasonably can before a self-serving note is deposited by the person who actually dropped the ball.

8. In each of these scenarios, what are my duties and potential liabilities if the patient:

(i) Never calls and has a bad outcome.

If there is no physician-patient relationship formed for ongoing care (i.e.; past the ER consult), and therefore no duty, then you are out of the matter. The caveat is if the patient establishes a new relationship with you by coming to see you as an independent event. If they fail to follow up and they have a bad outcome, you have no liability because you never had a duty to them as far as their follow-up.

If, however, the duty for ongoing care developed through your contract with the hospital, it carries the responsibility to act reasonably under the circumstances.

In the case of the now non-emergency patient (i.e.; the ER dealt with the emergency and the patient just needs routine care now) you expected to see but who never called for an appointment: sending a follow-up letter or calling in advance of the time you need to see them, noting the importance of making a timely appointment, is reasonable. That discharges your duty to the patient and your obligations under your contract.

(ii) Calls and we offer him a timely appointment but then finds out that I don’t accept his specific insurance or insists on a time that we cannot accommodate and has a bad outcome.

As a general rule, in the case of the now non-emergency patient who wants to see you in your office, you should do what you normally do. Make an appointment that matches their clinical need and inform them in advance that you don’t take InsCo. This is what you would do with an established patient who has a new problem or whose insurance changes, or a new patient referred by a private physician. That this particular new patient came through a referral from the ER does not change that. After that, what the patient does is their choice.

However, that general rule can be altered through your contract with the hospital if it obligates you to see anyone referred to you through your on-call role for post-ER follow-up. In that situation, you may have to do the initial follow-up for free (basically chalking it up as the price you pay for your hospital privileges) if the patient cannot pay out-of-pocket. You do not, however, have to treat them for free in perpetuity because your contract bound you only for post-ER follow-up.

The only exception would be – as it would be for any patient – if the patient is too unstable to be discharged from your practice without alternative care already in place, as such would constitute abandonment.

If the patient is not in the midst of essential ongoing care, however, you would do a formal termination after 30 days and your ongoing duty to the patient would end.

You are never obligated to bump another patient or come in at 9 AM on a Sunday just because they want an appointment at a certain time. Your obligation is be reasonably accommodating in scheduling and if you meet that then your contractual requirement is discharged.

Summary: Consulting to the ER in an on-call capacity can be a very fluid situation under which liability may accrue even though the on-call physician never sees the patient. The on-call physician needs to first look to their defined contractual obligations with their hospital to see if those immediately create a physician-patient relationship. If they do not, the on-call physician should know that courts find a physician-patient relationship exists when the on-call physician acts in a supervisory capacity and/or when he or she knows that the ER physician will be relying on their advice in treating the patient. Absent a contractual obligation with the hospital for follow-up care, such a duty only extends to the time that the patient is being treated in the ER. Subsequent follow-up for routine care in the physician’s office is subject to standards that would apply to any referral or to an established patient.

[Medical Justice notes: For on call physicians, understand the capability of the ER physician calling about the patient. Such individuals will vary in their background, training, and experience. Some are fully worthy of your trust – you’ve seen their work in the past. Others are less adept at managing some conditions. The more questions you ask, the more you’ll know the type of care the patient just received.]