The Legal Risks of Taking Call

Carolyn Buppert, MSN, JD

Disclosures

October 25, 2018

To submit a legal/professional question for future consideration, write to the editor at lstokowski@medscape.net (include "Ask the Expert" in subject line).

Liability When Taking Call

Dealing with after-hours calls from patients is disruptive to the lives of healthcare providers. It is difficult clinically, because the patient can't be examined. It's not a billable service. However, taking call is an absolute necessity of medical practice.

Given that most physicians, advanced practice nurses, and physician assistants will take call at some time, if not throughout their careers, it is worthwhile to think about the standard of care when taking call, figure out how to reduce bad outcomes, and manage risk for the on-call clinician.

A case search is reassuring—there are not many cases involving an on-call provider. That may indicate that most physicians and other providers who are taking call are covering the bases. Or, it may mean that patients don't expect much from on-call providers, and so the brunt of liability falls upon the primary providers.

This article analyzes two cases where an on-call provider was sued. The focus here is on taking call for a group practice or facility, and not on what the Emergency Medical Treatment and Active Labor Act (EMTALA) requires of hospital emergency departments. For obligations of physicians on call for emergency departments, see Physician On-Call Obligations: EMTALA and Beyond.

The Malpractice Suit

An individual suing a provider for malpractice must prove four elements to be successful. The suing individual—the plaintiff—must prove:

  1. The healthcare provider had a duty to provide care to the plaintiff.

  2. The provider's conduct fell below the standard of care. Standard of care is what a reasonably prudent clinician would have done.

  3. The plaintiff was injured.

  4. The provider's conduct caused the plaintiff's injury.

Duty of care. A duty of care arises when a provider-patient relationship has been established. An office visit or hospitalization establishes that relationship. However, an office visit or admission to the hospital is not necessary to establish a duty of care. If a physician gives professional advice in any setting, a duty of care may be established. In most situations, a clinician who a practice designates as the person on call owes a duty of care to an individual who calls.

Duty to do what? Standard of care. If a patient suffers an injury and sues, experts for both the plaintiff and defendant will opine about the standard of care—what the defendant provider should have done. There is no one accepted reference on standard of care for on-call providers. If a malpractice case is filed, an expert witness might be asked whether the clinician should have gone in to see the patient. Or, should the on-call provider have told the patient to go to the emergency department (ED), so someone else could conduct an examination?

Cases suggest at least two ways to go wrong when taking call:

  • Don't answer or return the call within a reasonable time; and

  • Don't arrange to evaluate the patient, face-to-face, within a reasonable time frame, when good medical judgment would call for an in-person evaluation.

Case 1: Provider Didn't Respond

A man had surgery for an aneurysm of the aortic sinus. A cardiologist was managing his postoperative anticoagulation. Soon after meeting with the cardiologist for the first time, the man began to experience periodic loss of vision. The man tried several times to contact the cardiologist, but got no reply. Eventually he went to an ED, and the ED physician informed him that he was overdosing on anticoagulant medication and treated him. The man sued the cardiologist for his injuries, which included the expense of a week-long hospital stay and sequelae that kept him from an active lifestyle. The court held that the cardiologist failed to meet the standard of care when he failed to return the patient's calls.

Expert witnesses for both the patient and the physician said the standard of care called for the practice to have in place an answering service to receive calls (which the cardiology practice had), relay those calls to the cardiologist or a covering cardiologist (which the practice did), and return calls promptly. In this case, the cardiologist could not explain why he didn't return the call. The trial court decided that the patient's deterioration was related to the lack of action on the part of the cardiologist. The court's opinion for this case is available at Gaffney v. Giles (2015).

Case 2: Provider Didn't Go and See the Patient

In a case before the Supreme Court of Ohio, a nurse called an on-call anesthesiologist to report a patient's leg numbness. The man had fallen 20 feet, suffered multiple rib fractures, and was on a patient-controlled epidural infusion. The anesthesiologist ordered a reduction of the infusion. The patient's problem, which wasn't treated in a timely manner, was either an epidural hematoma or ischemic injury to the spinal cord, which resulted in paralysis.

The plaintiff's expert argued that the anesthesiologist should have come to the hospital to conduct an evaluation and/or request a call back in 2 hours, rather than simply ordering a reduction in an epidural infusion. The defense expert disagreed about the need to come to the hospital, but agreed that the anesthesiologist should have requested that the nurse call back with an update in 1-2 hours.

This case was complicated by a nurse's documentation, which, in one note, didn't name the anesthesiologist whom the nurse called, and in another note listed the name of a doctor other than the one with whom she actually spoke. Both doctor's names started with a K and had the same number of syllables. The details of the case are available at Rush v. University of Cincinnati Physicians, Inc.

This second case brings up a risk-reduction strategy for on-call providers: Make your own notes about what was ordered and communicated. Otherwise, the evidence is limited to what a nurse might document.

If an on-call provider decides that wait-and-see is a safe strategy, the provider needs to tell the patient or the nurse the changes or lack of improvement that would indicate that a call-back is necessary, or the circumstances under which the patient should go to the ED. For example: "If, in 2 hours, you haven't stopped vomiting and can't hold down half a cup of water, call me back." And then the provider needs to be available and do something when the patient calls.

Reducing Risk for Liability When Taking Call

There are several ways that healthcare providers can reduce their liability risk when taking call:

  1. Take time to adequately assess the severity of the symptoms. An on-call physician needs to screen the patient, by phone, sufficiently to make a rational determination whether the caller needs to meet the provider at the office right away or call an ambulance, whether a phoned-in prescription will resolve the problem, or whether wait-and-see is a reasonable disposition.

  2. Communicate with the patient or parent, saying what they need to do now and if things do not improve, the time frame for expecting improvement, and the consequences of doing nothing.

  3. Document the conversation.

  4. Have a system for getting notes about what the on-call provider did into the patient's medical record at the office or facility.

  5. Consider following up with the patient's primary provider to see whether the problem has resolved or, if not, whether and how the problem is being addressed.

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