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Malpractice Consult


Your responsibility for ED calls, The patient who can't consent to treatment


Malpractice Consult

By Lee J. Johnson, JD

Answers to your questions about...

Your responsibility for ED calls


Q:I'm a cardiologist in a small community, and I take call for two emergency departments. Occasionally, I'm called when a patient with high blood pressure asks to see a cardiologist. Am I required to go to the hospital when the ED physician is capable of treating the condition? And what if the patient has no insurance—must I provide free services?

A: Both hospitals should have a policy clarifying when an on-call physician must come to the ED. If the ED physician normally treats a condition and doesn't feel the patient needs a specialist, he should provide reassurance about his training and experience. He should also tell the patient how soon you'd be available.

A self-pay patient should be told that you'll bill him if you're called in. He might then be less likely to request your services. However, once the ED physician calls you, generally you have some duty to the patient under state malpractice case law, and under federal law you must determine that the patient's condition is stable before transferring him to another hospital.

If you don't go to the ED, you must listen to the symptoms the ED physician describes and recommend appropriate treatment. You must evaluate not only the severity of the possible diagnosis but also the training and expertise of the doctor on duty. You should make sure the other doctor feels comfortable diagnosing and treating the patient's condition, since he'll be held to a cardiologist's standard of care.

If you think the problem isn't serious or the ED doctor can handle it, you can walk him through the necessary steps over the phone. Otherwise, you'd best go in. You're held to the reasonableness of your medical judgment, regardless of the patient's financial and insurance status. Moreover, if the patient ends up dissatisfied and sues the hospital and the ED doctor, you can be sure you'll also be named in the suit.

Whether or not you see the patient in the ED, you may have an obligation to see him for subsequent care and either treat him or, if appropriate, refer him. If the situation isn't clearly defined, it's safest to assume you have a duty. The legal obligations for follow-up are in a state of flux, and physician responsibility seems to be expanding.

The patient who can't consent to treatment

Q:What should I do about informed consent when an unconscious patient is brought to the ED?

A: Most states exempt doctors from informed consent requirements in emergencies. When an attempt to gain consent would cause a delay that could jeopardize the patient's life or health, go ahead with treatment.

Check with your state medical society or malpractice carrier on the law in your state. Document the emergency in the patient's record, reflecting the language of the law as closely as possible.


The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. 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


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