Legal Exposure for EDs if On-Call Consultant Refuses to See Patient

By Stacey Kusterbeck, Special for ReliasMedia.com

Staffing shortages and surging volumes are making it harder for many emergency physicians (EPs) to obtain consultations with specialists. “EDs [emergency departments] across the country are seeing consultations become more difficult to get ahold of. There are networks that go, essentially, without a consultant in a certain area,” reports John Bedolla, MD, national director of risk at US Acute Care Solutions.

Generally, consultants who are unavailable are either highly specialized or expensive to keep on call, according to Bedolla. These include ophthalmologists; neurosurgeons; ear, nose, and throat specialists; orthopedists; or urologists. These also can include certain consultants who are in high demand, such as general surgeons or obstetricians who are on call for multiple hospitals. Here are some issues EDs are seeing:

Consultants facing competing demands for their time warn EPs that it will be a long time before they can come in and see the patient. “This makes it so EPs have to choose between delaying care, discharging the patient, or doing without a consultation,” Bedolla says.

If the situation is serious enough, it warrants the EP doing “everything possible” to obtain the consultation, according to Bedolla. One example is surgical sepsis, during which the patient’s survival is dependent on not just proper medical treatment, but also surgeons finding the source. Examples of those cases include perforated bowel, necrotizing fasciitis, ischemic bowel, and any surgical condition with sepsis markers.

What if the EP says it is a medical emergency, and the consultant still refuses to come in? In that case, the EP should call the ED medical director, the hospital’s legal department, and the chief of staff, according to Bedolla. “But using that ‘nuclear option’ in grey area cases can cause difficulties in your future interactions with the consultant,” Bedolla cautions.

Bedolla says if EPs cannot obtain a consult once, referring the issue to the ED medical director might be warranted. However, if it happens multiple times, a different approach is needed. “The medical director needs to engage the system at the medical executive level,” Bedolla says.

EPs might need to consider transfer. EPs might need to obtain urgent in-person consultations for cases with time-dependent mortality and morbidity. Aortic dissection, spinal epidural abscess, or intracranial bleeding are examples. “If the consultant does not agree the patient needs to be seen, the EP’s other option is to transfer the patient. If you don’t have call for that specialty, and you need that specialty, you should transfer the patient,” Bedolla says.

If the consultant refuses to come in, there are Emergency Medical Treatment and Labor Act (EMTALA) implications. If the consultant refuses to come to the ED to see the patient, there is no doctor-patient relationship established, says Robert A. Bitterman, MD, JD, FACEP, president of Bitterman Health Law Consulting Group. Therefore, the on-call physician has no medical malpractice liability.

However, if the on-call physician refuses to come in, he or she may be liable under EMTALA, for which he or she can be terminated from Medicare and/or fined up to almost $120,000 for failure to appear when requested, according to Bitterman.

There are also EMTALA implications for the hospital if consultants do not come in after an EP requests such. Once the EP determines the patient has an emergency medical condition (EMC), the on-call physician is legally obligated under EMTALA to come in if, and only if, the EP cannot stabilize the patient and needs the on-call physician’s services to stabilize. “The emergency physician doesn’t need to declare an EMC exists to get the on-call physician to come in,” Bitterman notes.

If the EP cannot determine if an EMC exists and asks an on-call physician to come to the ED to help make that determination, the on-call physician is required by EMTALA to do so. “In other words, under EMTALA, the on-call physician is required to come to the ED whenever his or her services are needed to help determine if an EMC exists, or to stabilize an EMC,” Bitterman says.

If the EP can stabilize the EMC, there is no legal obligation under EMTALA requiring the on-call physician to come to the ED. However, there may be obligations under medical staff rules and regulations, Bitterman adds.

In some cases, the EP must transfer the patient because the on-call physician refused to come in to help screen or stabilize the patient. In those cases, the hospital must send the name and address of the on-call physician with the patient to the accepting hospital, according to Bitterman. The accepting hospital then is legally obligated to report the physician and transferring hospital to the government for violating EMTALA.

EPs should document conversations with consultants. In many cases, there was no doctor-patient relationship established between the ED patient and the consultant. The consultant may be dismissed from those malpractice claims, Bedolla acknowledges.

However, the plaintiff attorney may initially name the consultant in a subsequent lawsuit. That means the consultant might be deposed. “In the case of a bad outcome, consultants who did not lay hands on the patient can claim that you failed to give them a critical piece of the data. That puts you on your back foot, unless you document the conversation,” Bedolla says.

EPs might wonder what they should document if they cannot obtain a consult. “If you don’t have something that you need, it’s OK to state it,” Bedolla offers.

For instance, the EP might document, “We don’t have cardiology on call,” or “Cardiology is performing a catheterization at another hospital.” Those statements simply are describing the circumstances in which the EP is working, and in a neutral manner. What is not advisable is to place blame on the consultant in the medical record. “The jury will ask, ‘Why didn’t you do something about it?’ It makes you look whiny and ineffective,” Bedolla cautions.

(Editor’s Note: For more on this and related subjects, be sure to read the latest issues of ED Management.)