The evolution of the corporate practice of medicine has increased the scope of vicarious liability on the part of hospital systems, particularly in the area of emergency medicine. As corporate entities directly employ more of the professionals treating patients in their emergency rooms, and market their emergency services to the public, New York has recognized liability on the part of institutional healthcare providers for negligent emergency care even when the emergency room provider is not employed by the defendant hospital. Mduba v. Benedictine Hosp., 52 A.D.2d 450 (3d Dep’t 1976), Hill v. St. Clare’s Hosp., 67 N.Y.2d 72 (1986). The increasing scope of liability for the institution has created some confusion as to the liability of the individual emergency room physician, who has frequently rendered discrete services at the outset of a long and complicated course of treatment. This article addresses how the legal duty of the emergency room physician remains a question of law across a spectrum of treatment scenarios. Those providers continue to require careful attention from their counsel to limit their involvement and exposure to the circumstances in which the law has determined that they owe a duty to the patient.
The emergency room physician is usually presented with a specific medical issue involving a patient who has been seen by other doctors before the encounter and will be seen by other doctors thereafter. The law recognizes that the ER physician cannot accept responsibility for all aspects of the more routine medical care of the patient, but is expected to address an acute issue, assure that the patient is stabilized, render emergency care, and determine an appropriate disposition of the patient. That disposition may include direct treatment, referral, or admission for further workup and management. The delineation of when the duty of the emergency room physician begins and ends presents thorny legal issues in complicated emergency room cases.
The emergency room provider may affirmatively remove herself from the care of the patient upon referral to the appropriate specialist (Monostori v. Murphy, 34 A.D.3d 882 (3d Dep’t 2006)), but there may be a question as to the precise point in time when her liability ends. In Monostori, the court extended the hospital’s vicarious liability for an attending hand surgeon who had seen the patient in the emergency room to include surgery performed two days later, but terminated the liability of the referring emergency room physician at the point when care was transferred to the surgeon during the ER visit. Although factual details may complicate the issue regarding when the emergency room doctor’s responsibility for the patient ends, in most cases, the duty of the doctor to the patient is a question of law, to be resolved by the court. Eiseman v. State of New York, 70 N.Y.2d 175, 187 (1987).
It is established precedent that limited participation in the course of a patient’s treatment will limit the liability exposure of the physician for events which occur thereafter. Kleinert v. Begum, 144 A.D.2d 645, 647 (2d Dep’t 1988). In that case, a mother and her infant were injured during the course of delivery by obstetrical residents, and the claim involved negligence in the management of labor and delivery. The court held that there was no continuing duty on the part of an attending obstetrician who had examined the mother two hours before delivery, determining that she was about to deliver a large infant. The attending had turned the care of the patient over to the residents at a point when there was no observable problem with the mother’s labor, and the court affirmed summary judgment in her favor both on liability and causation as a matter of law. Id. at 648. The same limitation of duty and dismissal as a matter of law has been available to doctors who consulted in a specialty capacity (Oelschlagel v. United Parcel Service, 23 A.D.3d 359 (2d Dep’t 2005)), and “on call” physicians who have been consulted without actually seeing the patient (Cintron v. N.Y. Medical College, 193 A.D.2d 551 (1st Dep’t 1993)).
Joint liability may be imposed where the tangentially involved physician has involved himself in the decisions on diagnosis and treatment to the extent that they have become his own (see Graddy v. N. Y. Medical College, 19 A.D.2d 426 (1st Dep’t 1963)), but the mere referral of a patient to another physician does not generally render the referring doctor liable for the negligence of the physician who treats the patient on that referral. Mandel v. N.Y. Public Administrator, 29 A.D.3d 869 (2d Dep’t 2006). This being the case, careful attention to the particular facts of the case will determine which situations will lend themselves to resolution on summary judgment motion. The courts will carefully assess the duration of the emergency room physician’s duty to the patient, even when diagnosis and treatment have begun during their encounter. Although the hand surgeon in Monostori continued to be the vicarious responsibility of the defendant hospital even after discharge to an unrelated ambulatory surgery facility, the court found no continuing legal duty to the patient on the part of the emergency room physician who had made the referral. The court in Bleiler v. Bodnar, 102 A.D.2d 226 (3d Dep’t 1984), shortened the duration of the duty of the emergency room physician by three days based upon the patient’s decision to consult with an ophthalmologist immediately after leaving the emergency room, rather than waiting the three days the emergency room doctor had recommended to allow his eye injury to improve. In that case the court observed that there was no evidence that the subsequent treating ophthalmologist had relied in any respect upon the prior observations of the ER doctor, whose duty to the patient was dictated by the nature of their relationship. “He was expected to provide emergency treatment only, and that is all that he undertook to do.” Id. at 227-28.
In other instances, the courts have found a complete absence of duty on the part of the emergency room physician based upon the participation of the patient’s private physician and consultants who were not chosen by the ER doctor. See Ventura v. Beth Israel Medical Center, 297 A.D.2d 801 (2d Dep’t 2002); Schultz v. Shreedhar, 66 A.D.3d 666 (2d Dep’t 2009). Without evidence of independent acts of malpractice or negligent adherence to a contraindicated order of the other doctors, a legal basis for a claim of liability stemming from the acts of the emergency room provider does not exist. Toth v. Bloshinsky, 39 A.D.3d 848 (2d Dep’t 2007).
The defense argument to the court on the duty point is not weakened by the production of an “expert affidavit” by counsel for the plaintiff, precisely because this is a question of law upon which the input of expert witnesses is immaterial. In Markley v. Albany Medical Center, 163 A.D.2d 639 (3d Dep’t 1990), the infant plaintiff was alleged to have been injured by the negligence of a resident physician in the administration of chemotherapy, and the expert witness for the plaintiff attempted to extend liability to the general pediatricians who had admitted him to the defendant hospital. Although the expert maintained that the pediatricians had allowed the resident to administer chemotherapy without attention to the dosage, the court relied on Kleinert to determine that summary judgment should have been granted because the duty of the defendants was to be limited to the medical functions undertaken by the defendants and relied upon by the patient. Markley, 163 A.D.2d at 640.
Despite the fact that the courts recognize a general duty on the part of physicians to their patients, the circumstances of the treatment will justify the limitation of the physician’s duty as suggested by the Markley court. Wasserman v. Staten Island Radiological Associates, 2 A.D.3d 713 (2d Dep’t 2003). This is evident in the decision in Dombroski v. Samaritan Hospital, 47 A.D.3d 80 (3d Dep’t 2007), an emergency room case in which the patient had sustained multiple traumatic injuries in a motorcycle accident. Based upon testing ordered by the emergency room physician, there were signs of diabetes in results reported from blood work before the patient left the emergency room, and from urinalysis after his admission to the hospital by the consulting general surgeon. The plaintiff claimed injuries caused by delay of diagnosis and treatment of his diabetes. The court observed that the ER provider was aware of the elevated blood sugar of the patient before transfer, but terminated the duty of the doctor at that point, in spite of an affidavit from an opposing expert claiming an ongoing duty to communicate test results to the team which had assumed the patient’s care. The court held that to expand and continue the ER doctor’s duty to the patient in this manner would be contrary to the purpose and scope of emergency medicine, granting the motion of the doctor to dismiss both malpractice and general liability claims.
It is only through the careful analysis of the context in which emergency room providers have evaluated and treated their patients that they will be afforded these opportunities to limit their duty as a matter of law.
This article is also on Law.com: Defending the Duty of the Emergency Room Physician