|
Emergency Care: Responsibilities and Alternatives |
|
Today’s young physicians are concerned not only about their responsibility to provide emergency care, but their liability for doing so, and their ability to "opt out" of providing such care. Physicians of all ages, including hospital-based physicians who routinely provide emergency care, as well as physicians with no clinical responsibilities, share this concern. The American Medical Association’s Young Physicians Section believes that physicians should be aware of the nuances that affect liability related to their response to a medical emergency outside their respective area of practice within a health care facility, or outside their particular specialty of medical practice. They need to thoroughly understand their legal and ethical duty to provide emergency care, as delineated in their hospital bylaws, medical staff bylaws, employment contracts, or group contracts. The AMA-YPS Governing Council provides the following information in the hopes that it will clarify some of the issues that impact on the provision of emergency care, including the scope of duty for hospital-based physicians, including emergency physicians, to provide emergency care in a hospital setting; the common law standard for "Good Samaritan" status; hospital bylaws, medical staff bylaws, employment contracts, and group contracts that address emergency care outside the emergency department; and compensation issues. Most states have enacted some form of Good Samaritan law prohibiting a patient from suing a physician or other health care professional for injuries from a Good Samaritan act. To trigger the protection of such an act, two conditions must be satisfied: it must be a volunteer act, and the actions must be a good faith effort to help. In the medical sense, a Good Samaritan is a medical care professional who volunteers to help someone in need of emergency medical care. The act must be done without there being any duty to care for the patient and without any expectation of compensation. Legal Opinion: Good Samaritan Protection for Emergency Care With the goal of encouraging prompt assistance in emergencies, every state and the District of Columbia have enacted Good Samaritan statutes. Although these statutes vary from state to state, they typically shield from civil liability a person who provides emergency assistance, as long as that person was neither grossly negligent in providing the emergency care, nor found to have delivered such care in bad faith. However, a person rendering emergency care will not be protected under a Good Samaritan statute, if it is determined that the person was already legally obligated to deliver the care in question. Therefore, physicians delivering emergency care in a hospital setting will be protected by Good Samaritan laws only to the extent that it is determined that the care in question did not come within the scope of the pre-existing legal duty of the physician. Scope of Duty Whether or not the provision of emergency care in a hospital comes within the scope of a physician’s duty is a question of fact to be determined by a judge or jury in a civil action against the physician. Basically, the emergency care rendered will be considered part of a physician’s pre-existing duty where the physician’s employment or association with the hospital expressly or customarily required the physician’s assistance in such situations. Evidence that the treatment delivered was expressly or customarily required of the physician can come from a variety of sources, including, but not limited to:
In some cases, courts have found the delivery of emergency care to lie within the scope of a physician’s legal duty, and in other cases, they have found such care to lie outside of the scope of duty. ...for Non-Emergency Physicians (Employed by or Contracting with Hospital) In general, courts have held that it is not within the scope of a contracting, non-emergency physician to render emergency care to patients they happen upon inside a hospital. For example, cases have held that statutory immunity applied to physicians where they were not on call and had no direct responsibility to respond to requests for assistance by the physician on duty. Other cases have held that, by itself, employment by a hospital, even in the position of chief resident physician, is not enough to establish a pre-existing duty to treat emergencies. Moreover, case law has indicated emergency care delivered by a hospital-based physician does not automatically fall within that physician’s legal scope of duty because the treatment in question falls within the specialty of that physician. In other words, without evidence to support the fact that the emergency treatment provided was in the customary course of practice of a particular physician (whether employed by or in a contractual relationship with the hospital), the emergency treatment provided will fall outside of the physician’s pre-existing legal duty. …for Emergency Physicians In contrast, courts have readily found a duty to treat emergencies to exist for hospital-based physicians working in the hospital’s emergency room, holding that physicians who provide emergency treatment as part of their normal duties as members of a hospital emergency treatment team owed a pre-existing duty to patients who entered the department seeking emergency care. Although the above demonstrates how courts have interpreted the legal duty of physicians in previous cases, the existence of a legal duty is a matter of fact to be determined by a judge or jury. Thus, whether a duty is found will depend on the totality of the evidence offered by both parties. For example, a contracting, non-emergency physician might be found to have a legal duty to treat emergencies by virtue of his assenting to hospital bylaws requiring such treatment by all physicians. Qualification for Good Samaritan Status The key to qualifying for Good Samaritan status where a physician provides emergency care in a hospital is whether or not that physician was already under a pre-existing legal duty to do so. In general, the courts have held that contracting or employed physicians who are neither on call nor part of a team charged to respond to emergencies will qualify for Good Samaritan status. These physicians can avoid civil liability in medical malpractice cases involving emergency treatment, so long as there is no evidence that bad faith or gross negligence accompanied such treatment. Conversely, physicians will not qualify for Good Samaritan status where emergency treatment is within their customary course of employment or association with a hospital. Another issue affecting whether a physician qualifies for Good Samaritan status is his or her receipt of compensation by the individual being treated in the emergency. Although individual state Good Samaritan statutes vary, they typically bar from qualification under the statute persons who accept compensation for the emergency care delivered. However, it is important to note that evidence of not accepting payment is not by itself enough to qualify for Good Samaritan status. Opting Out of Providing Emergency Care Opting out of providing emergency care has both legal and ethical implications. A physician can opt out of providing any care that he or she is not legally obligated to provide. Therefore, a physician who does not have a duty to handle emergencies is free to walk away from a situation in a hospital requiring medical attention with immunity under the law. However, although the physician might not be held legally liable for avoiding such a situation, the same behavior might establish grounds for professional discipline as a breach of ethical standards. Principle VI of the AMA’s Code of Medical Ethics states the following: "a physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical services." Springing from that Principle, AMA Council of Ethical and Judicial Affairs Opinion 8.11, "Neglect of Patients," specifies that, although physicians are free to choose whom to serve, they should "respond to the best of their ability in cases of emergency where first aid treatment is essential." Therefore, although physicians who opt out of treating emergencies might not suffer legal consequences for doing so, they might, nevertheless, be disciplined by professional boards for failing to comply with ethical standards. In addition to facing professional sanctions for failing to treat emergencies, physicians who do have a duty to respond in such situations are also to subject to legal liability for doing so. If a physician having a duty respond fails to do so and injury is the result, the patient can bring a malpractice suit against that physician, bringing forth evidence that the physician was negligent by failing to fulfill his or her duty to the patient. Moreover, physicians who fail to treat emergencies when legally obligated to do so may also be subject to liability, in the form of civil monetary penalties and sanctions, under the federal Emergency Medical Treatment and Active Labor Act (EMTALA). Sometimes known as the Anti-Dumping Act, this Act provides that any hospital receiving federal funds must accept any patient seeking treatment in its emergency room or risk the loss of funding. The courts are currently split as to whether the Act provides for a private cause of action against individual physicians who turn away emergency patients. However, as some courts have found a cause of action to exist, individual physicians who have a duty to provide emergency care, such as physicians employed in an emergency room, potentially face additional sanctions, beyond professional discipline and medical malpractice litigation. The Position of the American College of Emergency Physicians The American College of Emergency Physicians (ACEP) takes the following position: Emergency Physicians' Patient Care Responsibilities Outside of the Emergency Department, Policy #400141 Approved by the ACEP Board of Directors September, 1999 "The emergency physician’s principal legal and ethical responsibility is to patients who present to be seen in the emergency department. ACEP believes that:
|
