Malpractice Consult

By Lee J. Johnson, JD

Make sure the right doctor is covering for you

Q: As the on-call cardiologist for the ER, I arranged for coverage by an FP while I was out of town. When the ER called him, the FP was late getting there, and he couldn't perform a needed cardiac catheterization. The patient, whom I've never met, is suing me, claiming that my failure to show up in the ER delayed her treatment and exacerbated her injury. Am I liable?

A: You might be. Even though you've never seen that ER patient, you still have a duty to her by virtue of your contract to cover the emergency room and the hospital's obligation to treat all patients who come there. That contract—written or unwritten—was formed when you were granted hospital privileges and agreed to cover the ER.

When you arrange for ER coverage, you must make sure that the covering doctor is in an appropriate specialty and has the necessary training to take your place. You must also alert the ER about the arrangement and tell them how to locate that covering doctor.

Should an FP cover for a cardiologist? Even if the hospital accepts the coverage, it may be a question of fact for a jury to decide. It's best to make coverage arrangements with another physician in the same specialty, and to notify the ER of the exact hours your substitute will be taking your place and the beeper numbers for everyone involved.

A Missouri appellate court recently held that a general surgeon who was on call to treat ER patients, but was unavailable, may be sued. The patient had been in a motor vehicle accident and had suffered internal bleeding requiring emergency surgery. The on-call general surgeon had left town and hadn't notified the ER that he'd arranged for coverage by an orthopedic surgeon. After the ER had unsuccessfully paged the general surgeon for 40 minutes, the covering orthopedic surgeon happened to stop by the ER and mention that he was on call.

The orthopedist was unable to perform the necessary surgery, and the patient had to be transferred to another facility. In the malpractice complaint, the patient alleged that the four-hour delay in treatment caused preventable injuries. The appellate court held that the on-call general surgeon had a duty to provide reasonable notice to the hospital that he wouldn't be available.

In the case described in your question, I doubt that a judge will dismiss you from the lawsuit. You will probably have to defend the reasonableness of your decisions regarding coverage. Was another cardiologist available that weekend? Did you try to notify the ER? Was there any other reason for the delay in the other doctor's attempts to get there on time? Is there any statute, regulation, or hospital policy that was violated? These are all issues you'll need to discuss with your defense counsel.

There's probably only one possible "out" for you: If your substitute's failure to cover the ER was beyond his control—his beeper malfunctioned, for example, or he got stuck in gridlocked traffic—it's unlikely that the plaintiff could prove negligence by either of you.

The author, who can be contacted at PO Box 37, Mount Kisco, NY 10549, or at leejohnson@dellnet.com, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics 2000;18:139.