Malpractice Case: When Payment Should Not Be Part of the Issue

Gordon T. Ownby


June 06, 2018

Medscape Editor's Key Points:

  • If a physician doesn't want to continue treating a patient or performing a procedure because the patient is uninsured or is otherwise unable to pay, the physician should provide sufficient notice to the patient to find another physician; not doing so can amount to abandonment.

  • Because of anti-patient-dumping statutes and their "abandonment" corollary, issues about payment for emergency care carry risk.

  • Physicians should work with their hospitals on financial arrangements in advance for emergency patients who might be unable to pay for care. Discussions about compensation should take place away from the patient's care.

The Case

Certainly no one believes that a physician must work for nothing. But if somehow the issue of compensation becomes part of a dispute over a physician's actions and judgment, the result can be inflammatory.

A 44-year-old man arrived at the emergency room via ambulance following chest pain radiating to the back, plus weakness, paleness, and profuse sweating. Family members reported that the patient smoked a half-pack of cigarettes daily and abused methamphetamine over several years. Also per the family, the patient had a heart attack 12-15 years earlier and two strokes, 16 and 19 years earlier. Dr I, an internist, admitted the patient for telemetry. A CT scan showed extensive aortic dissection from the root to the arch. An angiogram was planned for the next morning.

Dr CS, a cardiothoracic surgeon, saw the patient early in the afternoon of the next day. Dr CS reviewed the CT scan and planned a cardiac catheterization and, depending on the results, an ascending hemiarch replacement with possible right coronary bypass and other grafts.

Dr CS's consultation expressed concern that the patient's history of tobacco and methamphetamine use might have damaged the left anterior descending and circumflex arteries. Dr CS estimated an operative mortality of 10%-15%, with the risk of exacerbating the patient's previous strokes.

After the patient's catheterization the next morning, the cardiologist reported a markedly dilated aortic root and extensive dissection. The cardiologist noted that he discussed with Dr CS the plan for an aortic root replacement. Nursing entries following the patient's return to the ICU from the catheterization lab noted: "Waiting for surgeon's decision on what is to be done next; legs are cold on and off, BP on low side. No urine output, doctors are aware."

According to the patient's family, however, Dr CS (whose surgical group had an on-call contract with the hospital) refused to perform the procedure because the patient lacked insurance. The patient remained in the ICU and died in the early afternoon from a ruptured aorta.

The patient's family sued Dr CS and the hospital for medical malpractice, intentional tort, and violation of the state and federal laws regarding emergency medical treatment. The complaint alleged that despite earlier consulting on the patient's case, calling for the catheterization, and scheduling surgery, Dr CS withdrew from the patient's care after improperly inquiring about the patient's insurance status.

Further, the family's complaint alleged, because Dr CS failed to provide sufficient notice to find another surgeon, his actions amounted to abandonment. During the workup of the litigation, the plaintiffs obtained supporting testimony from Dr I and an ICU nurse on comments that Dr CS allegedly made in the ICU regarding the patient's lack of insurance.

In his own deposition, Dr CS testified that though he made specific (unsuccessful) requests to hospital administrators for monetary support for the surgical team needed for the difficult case, he denied telling anyone that he would not perform the surgery. He further testified that had he been told of the patient's deteriorating condition, his partner could have performed surgery on the patient while Dr CS was in the OR with other scheduled patients.

All parties resolved the dispute without going to trial.

Because of anti-patient-dumping statutes and their "abandonment" corollary, discussions concerning payment for emergency care are fraught with risk. To avoid such peril, physicians should work with their hospitals on financial arrangements long before—and in a setting completely removed from any particular patient care.

This case comes from Medicine on Trial, originally published by Cooperative of American Physicians, Inc., to provide risk management lessons from litigated case histories. This article was originally titled "When Money Should Not Be Part of the Discussion."


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