Americans love medical mysteries. Week after week, we watch medical dramas on television in which a seriously ill patient is rushed into the Emergency Department with mysterious, life-threatening symptoms. Somehow, on the show, there is always an assortment of world-class specialists on hand, ready to focus exclusively on this one patient until the mystery is solved and a life saved.
If you’ve ever been a patient in an Emergency Department (ED), you know that the reality is usually much different. Treatment for most conditions is rarely immediate. Instead of a crew of top specialists ready to jump in and help, there are usually competent, but overworked, emergency medicine personnel.
Those doctors see patients with ailments and injuries affecting every part of their bodies. Frequently, diagnosis and determining a course of treatment requires more specialized knowledge than an ED doctor possesses. For that reason, every hospital has specialists on call to help emergency physicians decide what care the patient needs.
Sometimes, the ED physician requests that the on-call specialist come to the Emergency Department to examine the patient herself. Other times, the consultation takes place entirely by phone or text: so-called “curbside consults.” Do these informal consults pose a risk to patients? And who is liable for any injuries a patient suffers as a result of an informal consult between an ED physician and a specialist on call?
In medical malpractice cases, a patient has to prove four things in order to prevail over the doctor or hospital being sued:
Unless all of these elements are proven, a medical malpractice claim will fail. Usually, the existence of a doctor-patient relationship is the least difficult element to prove. But does a specialist who performs an informal phone consult with the ED doctor treating the patient have a relationship with the patient?
That depends. Many courts have ruled that just because a specialist is informally consulted by a treating physician, that doesn’t necessarily extend the treating physician’s duty to the consulting physician. This ruling makes sense, if you think about it: if a doctor knew she could be held liable for even the most informal advice to a colleague, no specialist would ever agree to answer another doctor’s question about their specialty.
That said, the picture changes when the doctor being consulted is an on-call specialist. Under federal law called the Emergency Medical Treatment and Active Labor Act (EMTALA), an Emergency Department and its on-call physicians owe a duty of care to the patient. Accordingly, if a treating physician consults with a specialist who has agreed to be on-call for the hospital, the consult, no matter how brief, is not “informal” for purposes of liability.
Similarly, when a medical professional who does not have authority to make treatment decisions on their own consults a doctor for guidance, the consulting doctor may be held liable for malpractice, even if she never saw or spoke to the patient.
Even if a consult isn’t informal for purposes of the doctor’s liability, it may seem informal in terms of how information is exchanged between the treating physician and the consulting one. Sometimes a treating ED physician will request an on-call physician to physically come into the ED to examine the patient. Other times, the treating physician will call or text the consulting physician, describe the patient’s symptoms or test results, and ask for guidance.
If the ED physician omits certain details in a phone call, or the consulting physician fails to ask certain questions, something crucial could be missed. In a sense, it’s like the old childhood game of Telephone: the more a message gets relayed, the more likely it is that the information being conveyed gets distorted. It is often better for the consulting doctor to examine the patient directly rather than rely on perhaps incomplete information from the ED physician.
Under EMTALA, if a treating ED physician asks the consulting specialist to come in to the hospital to examine the patient, she must do so. If she refuses for whatever reason, and the patient suffers injury, both doctors could be liable.
It’s not reasonable to expect the real world to be like a television medical drama. But you do have the right to expect that that if your Emergency Department doctor doesn’t have the specialized training to diagnose and treat you, they will connect you with a doctor who does.
If you have questions about whether you were properly treated in an Emergency Department, we invite you to contact The Fraser Law Firm P.C. to schedule a consultation.
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