By Darryl S. Weiman, M.D., J.D.
Associate Program Director, General Surgery Residency Program
Baptist Medical Center, Memphis, Tennessee
Newsletter submitted on behalf of the Standards and Ethics Committee of the Eastern Cardiothoracic Surgical Society
Can taking call, in and of itself, put you at risk for a malpractice action even if you have never met the patient? After all, a duty owed is one of the elements that must be proven by the plaintiff in order for them to win the suit. If a physician-patient relationship has never been established, then how can a duty be owed? This issue was addressed in Millard v. Corrado.1
On November 5, 1994, 63-year-old Marjorie Millard was involved in a motor vehicle accident (MVA). The emergency medical technicians (EMT) arrived at the scene at 10:28am.2 The accident scene was 14 miles from the Audrain Medical Center (AMC) and 25 miles from the University of Missouri Medical Center. Since the EMTs found no measurable blood pressure or radial pulse, they chose to transport to Audrain.
Dr. Joseph Corrado was the general surgeon on call for Audrain, but he had signed out to Dr. Ben Jolly, an orthopedic surgeon. Dr. Corrado then left town so that he could attend the local American College of Surgeons meeting. Unfortunately, Dr. Jolly did not have general surgery privileges and Dr. Corrado had not notified anyone else that he would be unavailable for emergencies.
Millard arrived at AMC at 11:07am. IV fluids were started and a chest radiograph was obtained. The chest film was consistent with blood in the chest. The emergency room attending examined Millard and he concluded that she was also bleeding into the abdomen.
Dr. Corrado was paged twice but he did not answer. At 12:00pm, air transport was called but they were grounded due to bad weather. At 12:07pm, Dr. Jolly entered the ER and saw the patient. He agreed that she needed an abdominal exploration, but he did not have the privileges or training to do that operation.
At 12:23pm, Dr. Corrado responded to the previous pages. After being told the situation, he agreed that Millard should be transferred to the University of Missouri Medical Center. At 1:45pm, the patient arrived at the University of Missouri where she underwent an abdominal exploration beginning at 2:15pm; this was about four hours after the MVA.
Ms. Millard was found to have broken ribs, a ruptured diaphragm, injuries to the renal artery and vein, and adrenal artery. She presented in hypovolemic shock.3
The left kidney, gall bladder, part of the colon and part of the small bowel had to be removed. Millard brought a malpractice action against Dr. Corrado claiming that “…as a direct and proximate result of the delay in treatment caused by Dr. Corrado’s absence (she) sustained aggravation of the injuries sustained in the accident and additional serious injuries.”4
Dr. Corrado moved for summary judgment arguing that the plaintiff had failed to establish the formation of a physician-patient relationship—a necessary component proving that a duty of care was owed.
The trial court agreed with Dr. Corrado. The motion for summary judgment was granted and a judgment in favor of Dr. Corrado was entered. However, on appeal, the judgment was reversed. The appellate court held that the public policy of Missouri and the foreseeability of harm to patients in the position of the plaintiff support the recognition of a duty flowing from Dr. Corrado to Ms. Millard. By being “on call” the physician owes a duty to reasonably foreseeable emergency patients to, at least, provide notice to the hospital when they will be unable to respond to calls.5
In dictum, the court went on to say that the duty to provide adequate notice should not have a detrimental effect on the ability of the hospital to attract physicians to accept “on-call” assignments. It is now common practice for hospitals to pay physicians to “take call” and many young physicians are anxious to take call to help build their practices.
A concurring opinion summed up the “duty owed” issue very well. “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking if his failure to exercise reasonable care increases the risk of harm…”6
Since the plaintiff produced substantial evidence that Dr. Corrado’s actions resulted in a delay in obtaining treatment for her injuries, thus increasing the risk of harm, Dr. Corrado lost his summary judgment motion.
As we now know, taking call, in and of itself, will create a duty of care owed to any foreseeable patient who may need our care during that call period. With the advent of the Emergency Medical Treatment and Active Labor Act (EMTALA) of 1986, further legal requirements may be required of us if a patient with an emergency condition is able to make it to our hospital.
Using public policy factors, courts will consider the prevention of future harm, the cost of the conduct, and the ability to spread the risk of loss, and the economic burden upon the actor and the community related to the conduct.
The court in Millard concluded that Corrado did owe a duty of care to Ms. Millard. Also, Corrado had a contractual obligation to AMC to notify them if he would not be able to cover. The court also construed a contractual obligation for the “on-call” physician to respond to being called in a reasonable time frame, i.e., 30 minutes.
The legal requirements of Millard only apply to the state of Missouri, but other states have their own “on-call” laws. Each physician should learn the laws in their state. Ignorance of the law is no excuse if the laws are violated in their malpractice arena.
1 Millard v. Corrado, 14 S.W.3d (Mo. App. E.D. 1999). 2 Id. 3 Id. 4 Id. 5 Id. 6 Id.