Duty to see ED patients

May 21, 2008

As the physician on-call to an ED I was summoned to admit a patient who had left another hospital the day before. The doctor who cared for her at that hospital is also on our staff. When contacted, he said that since she had had left the first hospital against medical advice he was under no obligation to care for her. I felt that since he already had a professional relationship with her, it was his duty, but he refused. Not wanting to have the patient suffer, I admitted her and assumed her care. Who was right?

Q. As the physician on-call to an ED I was summoned to admit a patient who had left another hospital the day before. The doctor who cared for her at that hospital is also on our staff. When contacted, he said that since she had had left the first hospital against medical advice he was under no obligation to care for her. I felt that since he already had a professional relationship with her, it was his duty, but he refused. Not wanting to havethe patient suffer, I admitted her and assumed her care. Who was right?

A. First off, the hospital was obligated under EMTALA to screen her for an emergency condition, and if it was an emergency, to treat her until the condition was resolved or stabilized.

Next, you were right to admit her if in your clinical judgment it was necessary. EMTALA Section 1395dd(d)(1)(B) and (C) imposes a penalty on a physician who fails to respond to an emergency situation when he is assigned as the on-call physician. See www.emtala.com/law/index.html.

As to the doctor who had treated her at the first hospital, if he was not on call when she presented at the second hospital, the issue is whether his refusal to continue to treat her was “abandonment,” which is a matter of state law. My state, Pennsylvania, defines abandonment as "when a physician withdraws his services after a physician-patient relationship has been established, by failing to give notice to the patient of the physician’s intention to withdraw in sufficient time to allow the patient to obtain necessary medical care.  Abandonment also occurs when a physician leaves the employment of a group practice, hospital, clinic or other health-care facility, without the physician giving reasonable notice and under circumstances which seriously impair the delivery of medical care to patients."

When the patient left the first hospital against medical advice, did that physician notify her that he was withdrawing from her care? If not, and if she can prove that his failure to do so in a timely manner impacted her health, he may have some liability exposure, but since she presented to an ER which evaluated and treated her, I do not see much likelihood that she would have a claim. He may also risk sanction under your state licensure laws, depending on how they address abandonment.

Finally, if she was a managed care subscriber and the first physician was a participating provider, there may be some administrative requirements under the provider agreement that must be met before he could withdraw from her care, such as notice to the patient and the health plan.

William H. Maruca is a partner with the Pittsburgh office of the law firm of Fox Rothschild LLP. He can be reached at 412-394-5575 or wmaruca@foxrothschild.com.

The answer to this query is a general opinion and is not intended as a substitute for legal advice. You should not rely on this reply in making decisions involving questions of law, but should instead consult with competent legal counsel.