Health_Law

The Duty to Treat or Provide Care Table of Authorities Bragdon v. Abbott, 524 U.S. 624 (1998) Americans with Disabilities Act (ADA) of 1990 Section 504 of the Rehabilitation Act (§504) of 1973 Ricks v. Budge, 91 Utah 307 (1937) Childs v. Weis, 440 S.W.2d 104 (1969) Williams v. U.S., 242 F.3d 169 (4th Cir. 2001) Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C.A. § 1395dd Baber v. Hospital Corporation of America, 977 F.2d 872 (4th Cir. 1992) Howe v. Hull, 874 F.Supp 779 (1994) Barry R. Furrow, Health Law – Cases, Materials and Problems, 5th ed. American Casebook Series, Thomson West Publishers (2001) Questions Presented: Does our client Jan have any common law, private right to action, or malpractice claim against Dr. Ball, Dr. Anderson or Dr. Clark' Discussion The pre-requisite for any malpractice claim is that a doctor-patient relationship must exist; there must be an established standard of care, that care was breeched and damages and/or harm must have occurred. Additionally, EMTALA would probably not apply to The Blue University Healthcare Center because their contractual obligation had ended and they may not have been an institution that received federal Medicare funds. EMTALA was enacted by Congress in response to a concern over “patient dumping” by hospitals refusing treatment of individuals who could not afford to pay for medical services. Even if EMTALA would apply to the Blue University Hospital a “private right of action” rising from statutory law would only exist against the hospital and not the doctor. [1] Jan may have a “private right of action” rising from statutory law if she is deemed disabled by the A.D.A. or §504 because of Bragdon v. Abbott, 524 U.S. 624 (1998) [2] where the question of “direct threat” as a risk is discussed. A “direct threat” of risk to the doctor must be based upon scientific evidence and it appears that The Blue University Healthcare Center and Dr. Ball was able to treat Jan’s condition without any remarkable incident(s). Both Dr. Anderson’s medical office and Jan’s former physician Dr. Clark, appear to have been highly reticent to see or treat Jan solely because of her affliction with symptomatic AIDs. Jen’s condition is distinguished from the Bragdon case because she is “symptomatic” with some “skin diseases” and “compromised immune system.” At common law, a physician does not have a duty to treat any patient as long as the relationship between the physician and the patient does not exist. [3] This so-called “no duty rule” extended to a physician's right to refuse to treat an individual in need of medical care as long as there was no prior relationship between the physician and the patient. From a legal perspective physicians are free to decline to treat an individual under circumstances that prevented of physician-patient relationship from coming into existence. Moreover, common law does not entitle Jan to a “private right of action.” However, once of physician-patient relationship is established the general rule is that a physician has a duty to continue to provide care to the patient until that relationship is terminated by mutual consent of the physician and the patient, the patient's dismissal of the physician, the services of the physician or no longer needed or the physician properly withdraws from the physician-patient relationship. Various laws, including laws governing emergency treatment provided by hospitals and antidiscrimination laws, as well as certain ethical constraints have significantly limited a physician's ability to terminate the relationship. [4] Antidiscrimination laws also have affected the circumstances when a physician may deny medical care. Section 504 of The Rehabilitation Act of 1973 prohibits an otherwise qualified individual with a disability from being excluded from or denied benefits of any program actively receiving federal financial assistance solely by reason of the individuals disability. The Americans with Disabilities Act of 1990 provides even broader protections for disabled individuals, including individuals who have contagious diseases. Title III of the A.D.A. prohibits a place of public accommodation from denying an individual access to healthcare because of disability unless the individual poses a “direct threat” or significant risk to the health and safety of others that cannot be eliminated by adequate precautions or reasonable modification of policies, practices, or procedures. A disabled individual is one who has a physical impairment that substantially limits one or more major life activities, a record of impairment, or is regarded as having impairment. Jan seems to fall squarely within this definition of the A.D.A. Because Jan was symptomatic with AIDs both Dr. Anderson and her former physician Dr. Clark refused to see her and treated her like a leper. Dr. Clark went as far as to both “cancelling” Jan’s scheduled appointment and not even “suggesting a referral” to another physician even though a previous doctor-patient relationship existed. However, a physician may deny care when a patient request services outside the physician's area of expertise or office hours or at a location other than the physician's office. Physicians also have the right to close their patient list and refuse to accept new patients when they do not have the capacity to treat additional patients. [5] In, Ricks v. Budge, 91 Utah 307 (1937), there is a duty to treat because an obligation is formed once treatment begins, however the issue of unpaid medical bills and after sufficient notice was enough to terminate the doctor-patient relationship. The physician should give the patient sufficient notice to find a new physician, assist in referral of the patient, provide patient written notice or confirmation of the reason for termination and include such documentation in the patient's medical records. The physician-patient relationship is similar to any contractual relationship it creates certain rights and obligations. Assuming that of physician-patient relationship exists a physician has a duty to treat and may not just say “no” to care for the patient without exposure to liability for abandonment of the patient and possible malpractice. A physician's withdrawal from the relationship should not be attempted or accomplished during a time when the patient is in need of medical attention. And here, Jan is in need of medical treatment because of her “skin diseases” and “her compromised immune system.” Questions 1. Does Jan have any legal claims against Dr. Ball' If so, what are they and what will Jan need to prove to prevail on the claims' Is she likely to prevail' Why or why not' Dr. Ball who works at the University’s Healthcare Center has been Jan's physician for the past four years while she has been in college. Here there is clearly a doctor-patient relationship that has been formed. Dr. Ball has decided to scale back on her practice and become semi-retired and she sends all her patients written notice stating that she will leave her position at the Healthcare Center and also scale back on her private practice. Here Jan is given formal written notice of an impending termination of the doctor-patient relationship. Additionally, Dr. Ball advises all of her patients to call her office for referrals. Instead, Jan is informed by the University Healthcare Center that she can still continue to receive medical treatment until she graduates and the University's Healthcare Center provided a referral to another physician named Dr. Anderson for continued treatment after Jan graduates. The University’s referral to Dr. Anderson presents some problems discussed in the next question. Dr. Ball does not seem to have discriminated against Jan in any context of Jan's rights rising from statutory law under the Americans with Disabilities Act. Notice was given and the good-faith referral was made by the University Healthcare Center. Dr. Ball has the absolute right to enter into semi-retirement and to close her private practice to new patients. Moreover, Jan does not seem to have any legal claims against Dr. Ball personally because Dr. Ball was an employee of the University Healthcare Center and Jan did continue to receive medical treatment even after Dr. Ball had left practice at the University’s Healthcare Center. Dr. Ball was properly discharged from his duties at the University’s Healthcare Center and Jan continued to receive medical treatment from another unnamed physician. The doctor-patient relationship between Dr. Ball and Jan was properly terminated. Although Jan had formed a formal doctor-patient relationship with Dr. Ball there does not appear to be any factual merit to warrant a claim of medical malpractice or discrimination under the A.D.A. Jan is unlikely to prevail in a malpractice or discrimination lawsuit against Dr. Ball in her practice as a physician at the University Healthcare Center or Dr. Ball’s private medical practice. The quality of medical care is not at issue here. There is a minor issue of whether Dr. Ball was a bona fide employee or an independent contractor' 2. Does Jan have any legal claims against Dr. Anderson' If so, what are they and what will Jan need to prove to prevail on the claims' Is she likely to prevail' Why or why not' The University’s Healthcare Center gives Jan a referral to a physician named Dr. Anderson for continued medical care after she graduates. Jan signs a medical release form so that her medical records can be sent the Dr. Anderson’s office. The day before Jan’s scheduled appointment Dr. Anderson’s office calls Jan and informs her they are “not setup to treat patients like her” and that “Dr. Anderson is not comfortable taking you on as a patient due to your health issues and lacks the safety protocols to address those issues.” Here the verbal response by Dr. Anderson’s office is clearly in discriminatory response to Jan’s symptomatic medical affliction with AIDs. AID’s is not contagious. All physicians should know this. As discussed in, Bragdon v. Abbott, 524 U.S. 624 (1998) and Howe v. Hull, 874 F.Supp 779 (1994) Jan falls within the meaning of the A.D.A. as a disabled person “who has a physical impairment that substantially limits one or more major life activities, a record of impairment, or is regarded as having impairment.” Moreover, Jan does not pose a “direct threat” because as her medical records document, Jan was successfully treated for 4 years at The Blue University’s Healthcare Center. There could be a private right to action for Jan because of blatant discrimination by Dr. Anderson’s medical office. Moreover, if Dr. Anderson’s office accepts federal payments from Medicare or Medicaid insurance “Section 504 of The Rehabilitation Act of 1973 prohibits an otherwise qualified individual with a disability from being excluded from or denied benefits of any program actively receiving federal financial assistance solely by reason of the individual’s disability.” No formal doctor-patient relationship has been formed between Jan and Dr. Anderson’s medical office so the relief of a tort of professional malpractice would not be available to her. Malpractice can only be asserted once the doctor-patient relationship has been properly formed. At common law Jan would have a weak case against Dr. Anderson’s medical office. [6] Jan’s best legal argument would be one that sounds in discrimination under Title III of the A.D.A. or § 504 because of the overt and blatant denial of medical services by Dr. Anderson’s medical office. It is not clear from the fact pattern whether Dr. Anderson’s office even offered a good faith referral to another physician who might be willing to treat Jan. Dr. Anderson’s medical response that they “not setup to treat patients like her” and that “Dr. Anderson is not comfortable taking you on as a patient due to your health issues and lack if safety protocols to address those issues” is clearly discriminatory on its face for a patient who does not pose a “direct threat or significant risk to the health and safety of others that cannot be eliminated by adequate precautions or reasonable modification of policies, practices, or procedures” Jan’s medical records clearly show that she can be successfully treated in a normal healthcare facility. I do not believe that Jan has a claim for medical malpractice against Dr. Anderson because no doctor-patient relationship was ever properly entered into from a formal visit or examination by Dr. Anderson’s medical office. However, I do believe that Jan may have a legal claim and will prevail under the antidiscrimination statues and a private right to action under Title III of the A.D.A. and/or § 504. 3. Does Jan have any legal claims against Dr. Clark' If so what are they and what will Jan need to prove to prevail on the claims' Is she likely to prevail' Why or why not' Dr. Clark, Jan’s family doctor, presents some tricky circumstances upon only which we can make inferences. Usually, a “family doctor” or general practitioner is a doctor-patient relationship that lasts for many years. This can begin from childhood and sporadically continue throughout adulthood for members of an entire family. While Jan was away at college she was treated for her medical conditions at Blue University’s Healthcare Center because she was in a different state and far away from her family doctor’s physical office. The question here is whether the doctor-patient relationship between the family doctor and Jan was properly formed and if this relationship was ever terminated. I would venture to guess that the doctor-patient relationship here has not ever been properly terminated because Jan felt comfortable calling her family doctor to ask for medical help and Dr. Clark’s office, at least initially, was willing to help her. Another reason I would venture to guess that the doctor-patient relationship still exists between Jan and Dr. Clark’s medical office is because “at first, the office [Dr. Clark’s] was glad to schedule an appointment.” Here there may be a doctor-patient relationship and a basis for a medical malpractice suite because not only did Dr. Clark’s medical office deny care to Jan “Dr. Clark’s office did not have any suggestions for referrals” there is also the issue of complete physician abandonment. A treating physician has an ethical and legal obligation to aid in the treatment of a patient who is in need of medical care. If “Dr. Clark does not specialize in the particular area of illness that [Jan’s current medical records] mentioned” Dr. Clark may be under a legal obligation to refer Jan to a specialist instead of the present acts where his medical office does not provide any referral. They basically, just hung up the telephone on her after telling Jan to go away. Additionally, but to a lesser degree than Dr. Anderson’s office mentioned above, Dr. Clark’s office may be acting in a discriminatory manner because of the abrupt cessation of any dialog between Dr. Clark’s medical office and Jan. Jan may have a claim of medical malpractice and a private right to action under the antidiscrimination statutes already mentioned because of the pre-existing doctor-patient relationship. Jan is in need of medical care and was denied even the basic courtesy of a referral even after being Dr. Clark’s patient for many years. Dr. Clark may have had a duty to refer Jan to a specialist if this was a medical area in which he was not competent to practice medicine. It is very common for a general practitioner to refer his patients out to doctors practicing in other areas of medical specialties. Dr. Clark may have breached his duty as Jan’s physician to provide continuing care for Jan and since time has tolled from Jan’s last medical treatment while she was a student at Blue University, Jan might be suffering medical distress from her “skin diseases” and “compromised immune system.” If Jan has suffered medical distress, even psychological distress, and can prove that this intentional harm was inflicted upon her by Dr. Clark’s refusal to see her and failure to provide a referral to another doctor, Jan may be able to show tangible damages resulting Dr. Clark’s failure to act resulting in complete physician abandonment. This would be a prima facia basis for a medical malpractice suit. In conclusion, Jan may have a malpractice suit and a discrimination suit against the medical offices of Dr. Clark – her family physician. Whether or not Jan would prevail is a close call that may rest upon how much in actual medical damages her suffering from Dr. Clark’s abandonment to provide any medical treatment for her (breech of care & damages) distressing medical conditions. At the very least, Dr. Clark acted in an unethical manner towards a patient in need of medical attention but as the old saying goes, “when it comes to medical ethic and medical law, never shall the twain meet.” ----------------------- [1] Baber v. Hospital Corporation of America, 977 F.2d 872 (4th Cir. 1992) [2] Bragdon v. Abbott, 524 U.S. 624 (1998). A dentist did not want to treat a patient in his office because that patient was HIV positive and would only provide routine dental treatment in a hospital setting. The Supreme Court of the United States (SCOTUS) held that the mere presence of the asymptomatic HIV was not a “direct threat” to the doctor or his staff. Moreover here, SCOTUS holds that having HIV is considered as “limiting a major life activity” because it affects procreation and falls under the protection of the A.D.A. For a good discussion of the A.D.A. requirements and medical treatment and a discussion of §504 see: Howe v. Hull, 874 F.Supp 779 (1994). [3] See: Childs v. Weis, 440 S.W.2d 104 (1969) and Williams v. U.S., 242 F.3d 169 (4th Cir, 2001). [4] See: Barry R. Furrow, Health Law – Cases, Materials and Problems, 5th ed. American Casebook Series, Thomson West Publishers (2001), Chapter 8 - Access to Health Care: The Obligation to Provide Care. [5] Ibid. [6] See: Childs v. Weis, 440 S.W.2d 104 (1969) and Williams v. U.S., 242 F.3d 169 (4th Cir, 2001).