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Malpractice Consult


Your obligation to treat patients referred by the ER


Malpractice Consult

By Lee J. Johnson, JD

Your obligation to treat patients referred by the ER

Q: A hospital emergency physician will often treat and discharge a patient and then give him my name for follow-up, even though I don't know the patient and wasn't asked to provide any input. In another scenario, the ER doctor may call me for assistance in managing the patient, and then discharge him with instructions to see me for subsequent care. What is my obligation to see each of these patients, and for how long? What should I do if the patient doesn't call my office for follow-up? What if he does call, but I don't participate in his managed care plan?

A: The underlying legal question for both scenarios is: When does an on-call doctor have a duty to the patient? Just being on call doesn't create a duty. Some effort to contact you must be made by the ER or the patient. In general, you can't have liability if you didn't know and didn't have any reason to know about the case.

In the first scenario, there is probably no duty since the ER never called to get your advice or to put you on notice about the patient. Giving a patient a doctor's name and phone number isn't enough. The Texas Supreme Court held in a recent case that physicians aren't obligated to render services to everyone who asks. "It is only with a physician's consent, whether express or implied, that the doctor-patient relationship comes into being," said the court. Since there is no duty, you aren't obligated to see the patient if he calls.

There is a definite duty, however, in the second situation you describe. An Ohio Supreme Court case lays out a test for deciding whether a call from the ER to an on-call physician creates a duty. In that case, the ER physician made two phone calls to a cardiologist and relied on the specialist's advice in discharging the patient, who later died of an aortic aneurysm. The court held that a duty is created when the on-call physician participates in the diagnosis or treatment of the patient's condition.

So once an on-call physician who has a duty to the hospital, its staff, or patients is contacted for the benefit of an emergency room patient, and a discussion takes place between the patient's physician and the on-call doctor, a doctor-patient relationship exists.

You'd have an obligation to see the patient for subsequent care, and either treat her yourself or arrange for a referral if appropriate. If the patient doesn't contact your office, have your staff call her. Your efforts to remind the patient of the need for follow-up depend on the seriousness of the condition. If it's simply a matter of prescribing an antibiotic for a known infection, a phone call will suffice. If the condition is more serious, you might want to take further steps, including sending a registered letter.

If the ER refers any patient to you in an emergent situation, you must treat her whether or not you're on her managed care panel. But for nonemergencies, it's appropriate to refer the patient to another doctor in the correct specialty who is in the plan's network.

The best advice for on-call physicians is to assume that there is a duty if the situation isn't clearly defined. The obligations for follow-up are constantly being redefined by the courts, and the realm of physician responsibility seems to be ever-expanding.


The author, who can be contacted at PO Box 37, Mount Kisco, NY 10549, or at ljohnson@ehealthsg.com, is a health care attorney and vice president of eHealth Solutions. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.


Lee Johnson. Malpractice Consult. Medical Economics 2001;5:93.

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