The Case (originally printed in March, 2010)
While sitting through the medical malpractice case of a colleague, a statement made by one of the expert witnesses made me think. The plaintiff’s attorney asked the expert “What is an emergency physician’s duty?”
The question is an important one, since a “duty” is one of four things that a plaintiff must prove in order to succeed in a medical malpractice case.
The expert responded that an emergency physician’s duty is to “rule out life threatening problems, then try to find out what is causing the patient’s symptoms.” Because the physician being sued allegedly did not rule out the patient’s life-threatening problems, the plaintiff alleged that the physician had violated the standard of care and was responsible for the patient’s injuries.
Pretend you’re the expert and the plaintiff’s attorney asks you the same question: What is an emergency physician’s duty?
How would you respond?
An emergency physician’s duty is to his entire ED. It is not acceptable to ignore all the other patients to focus on an exhaustive workup of one or two patients. His duty is to provide reasonable, prompt, and compassionate care as best he can to all patients requesting evaluation and care within the unavoidable limitations of patient load, staffing, consultant availability, diagnostic availability (some tests are not available nights and weekends) lack of availability of inpatient beds (patient crowding) and lack of institutions willing to accept transfers from him when his resources are inadequate. It is just common sense that no one can rule out every possible life or limb threatening possibility in every patient (do we now order an MRA, stress test, ACTH stimulation test, tilt table testing, prolonged rhythm monitoring, etc... on every weak and dizzy patient?) It is also common sense that what is a reasonable workup varies with how many other critical patients that physician is concurrently dealing with. Lawyers like to pretend that the physician had only their one patient to deal with and the concurrent care he is providing to multiple other patients somehow doesn’t count. Perhaps trials would be more realistic if the lawyer had 8 or 10 simultaneously, all in the same room, with any member of the public requesting legal evaluation free to interrupt at any time.
-Lloyd Smith, MD
As defined by EMTALA, the emergency physician’s duty is to give a medical screening exam to rule out emergency conditions, then stabilize any found emergency condition within the available capacity of the institution/system.
-Frank Fower, MD
An emergency physician’s duty is to attempt to rule out life threatening problems under the constraints of what is standard of care to his circumstances, and to attempt to find out what is causing the patient’s symptoms and lead him to the resources and providers that would provide a more definitive diagnosis and treatment plan. An emergency physician tries to alleviate pain and suffering and provide short term medical care.
-Dree Hudson Daugherty, MD
The definition of “rule out” that I came up with for my deposition was “The signs, symptoms, and (if applicable) laboratory testing were not consistent with a life threatening diagnosis. It is still possible to have a life-threatening diagnosis, but it has not shown itself yet and thus is on the differential diagnosis list, just very far down near the bottom.” Therefore, “rule-out” to emergency physicians does not mean what the layperson typically asserts: a diagnosis has been considered and it is no longer a possibility. If I were the expert on the stand, or doctor being confronted with this “definition” of duty, that is how I would have responded. I would have said that the medical physician’s definition of rule-out is far different than the laypersons, and I would go on to explain that in a way that the jury would understand. And then i would bring it together by saying, in the context of the medical definition of “rule out” the defendant (or myself) absolutely met the standard of care of “duty” as asserted by the expert on the stand.
-Ilene Brenner, MD
The Analysis by William Sullivan, DO, JD
In order for a medical negligence case to be successful, a plaintiff must prove that the physician had a duty to treat the patient, that the physician breached that duty, and that the physician’s breach of duty caused the patient’s damages. Unless the patient can prove duty, breach, causation, and damages, the malpractice case will fail.
Claiming that a physician failed to fulfill his/her duty or saying that a physician practiced below the “standard of care” are just different ways of saying that the physician was negligent. While expert witnesses are often needed to prove a duty and the standard of care, another way of proving these elements is to elicit the testimony from the defendant physician. Statements made by a physician during testimony may be used against the physician. If a physician admits that he had a duty to perform some act and then did not perform that act, the plaintiff’s attorney no longer has to prove those elements of the negligence claim – they have been admitted. For example, a statement that physicians should never miss a myocardial infarction coupled with an atypical presentation of a myocardial infarction that was missed, will create a presumption that a physican breached the standard of care. Preparation for testimony is extremely important to avoid making unsubstantiated statements against the physician’s interests.
To answer a question of how to define a duty, first we have to ask how the duty was created. This is an important question. Some might argue that duties emerge from social customs. Everybody should “do the right thing.” However, ethical duties do not necessarily translate into legal duties. Social custom might say that we should help little old ladies cross the street, but no one could be held legally liable for damages for failing to do so. If you are unable to find a source to support an assertion for a legal duty, chances are good that a legal duty doesn’t exist.
There are several sources where an emergency physician’s duty might originate.
EMTALA (42 U.S.C. 1395dd) is often cited as a statute imposing duties upon emergency physicians. In reality, EMTALA requires that *hospitals* provide a medical screening examination. If an emergency medical condition is discovered, *hospitals* are required to provide either stabilizing treatment or to make an “appropriate transfer” to another facility. While emergency physicians may perform those actions on behalf of the hospital, ultimately, the hospital is liable if the requirements are not met. Under EMTALA, physicians may be liable for a civil monetary penalty of up to $50,000 or possible exclusion from State and Federal health care programs if they negligently certify patients for transfer or if they misrepresent a patient’s condition. While Section 1395dd(d)(2)(A) permits civil actions against participating hospitals due to EMTALA violations, there is no provision allowing civil suits against physicians. Therefore, under EMTALA, emergency physicians have a duty to the government to properly certify a patient for transfer and to properly represent a patient’s condition. EMTALA imposes no direct duty on emergency physicians with respect to patients.
By signing a contract with a hospital or practice management group, physicians may agree to duties regarding such things as the number of shifts the physicians work, the payments received, or even the manner in which the physicians perform their work. However, those duties are with the contracting entity and do not directly involve the patients. Violating those duties might subject the physician to contractual penalties, such as termination of employment, but would not subject the physician to civil damages claimed by a third party.
3. Common Law
For the most part, a physician’s legal duty to patients is established by state common laws. Every state has a common law duty to act in a non-negligent manner. With respect to patients, physicians have a duty to act as a reasonably-well trained physican in the same specialty would act under the same or similar circumstances. Negligence is defined as a failure to act in such a manner. Note that common law imposes a duty of reasonableness on a physician’s medical care of patients. Physicians are not required to provide perfect care or even exemplary care, only reasonable care.
To answer general questions about an emergency physician’s duty while on the stand, care should be used when providing specific answers to broad questions. Some might find it helpful to rephrase general questions by asking whether an emergency physician would always be negligent for failing to perform an alleged duty under any circumstances.
Suppose that we state that a physician has a duty to “rule out” life-threatening conditions in patients. Then suppose that a patient comes to the emergency department complaining of chest pain. Must physicians perform an aortic angiogram to rule out aortic dissection in every patient? Overdoese of Adderall (and multiple other medications), pancreatitis, pulmonary embolism, pneumothorax, lung cancer, and myocardial infarctions are just some of the many other examples of life-threatening medical problems that may cause chest pain. There are hundreds of additional life threatening conditions unrelated to the patient’s chest pain that also may be present. Are physicians negligent for failing to rule out each of these processes while the patient is in the emergency department? If not, then we can’t make the broad generalization that our duty to every patient is to rule out life threatening medical problems. One of the comments to this scenario made by Dr. Smith was exactly on point: “No one can rule out every possible life- or limb-threatening possibility in every patient.”
What if we put a time requirement into a physician’s duty and say that emergency physicians have a duty to provide timely care? A plaintiff attorney will naturally argue that any bad outcome was due to a failure to provide timely care. What if the emergency physician is running a code or putting a chest tube in a major trauma patient? What if six patients come to the emergency department complaining of abdominal pain within 30 minutes? Is the emergency physician still negligent if patients are required to wait?
Suppose that we impose a duty on physicians to treat all patients. A universal duty to treat all patients for any condition may be a moral duty, but is certainly not a legal duty. Otherwise, any patient could walk into any physician’s office or even the physician’s home and demand treatment at any time. Even if we limit the duty to the emergency department, there is not a universal duty to provide treatment. Should a physician be liable for damages for deciding not to use warfarin to “treat” an off-balance elderly patient with atrial fibrillation? What if a physician refuses to “treat” an upper respiratory infection with antibiotics? Is a physician liable if he does not treat a 90 year old patient’s elevated cholesterol with expensive cholesterol medications when the patient is on a fixed income? Must we provide chemotherapy to an end-stage cancer patient with agonal respirations? By imposing a broad legal duty to “treat” every one of these patients, we may do the patients more harm than good and may incur legal liablity in the process.
By virtue of living in this society, all citizens – including physicians – have many duties. There is generally a duty to drive on the correct side of the road, to follow the speed limit, to avoid stealing from the cafeteria, and to avoid punching people walking in the hospital hallways. None of these duties relate to patient care, though. If asked a general question about a physician’s duties, it may be helpful to request that the question be clarified so that the answer is relevant to patient care and pertinent to issues in the case.
When explaining a physician’s duty, keep in mind the common law definition of a duty: To behave as a reasonable physician would behave under the same or similar circumstances. Duties are very situation-specific. Unless the circumstances potentially giving rise to a duty are clearly defined, it is difficult to define the duty involved. Small changes in circumstances may also change the accompanying duty.
A physician may have a duty to administer aspirin in an acute ST elevation myocardial infarction, but that duty disappears if the patient is allergic to aspirin.
The duty reappears if the “allergy” is only GI upset. The duty disappears again if the patient received aspirin in the ambulance on the way to the hospital. The answer to whether one had a duty to perform an action (or was negligent for failing to perform an action) is that “it depends upon the specific circumstances.” As shown with the aspirin example, if there are exceptions to a duty, then a universal “duty” does not exist.
We can strive to provide exceptional care to our emergency department patients, but we can’t be held liable if we don’t reach those goals. Don’t make things harder on yourself in a medical malpractice case by creating a duty when none existed.