HEALTH LAW KURTZ FALL 2017
The Treatment Relationship
The Duty to Treat [FORMATION] The Duty to Accept Patients
Basic facts: Appellant sued appellee when his intestate died following the appellees refusal to render medical services. The messenger sent by the family brought money and told the doctor that she was violently ill. The doctor refused to render service and the wife died. Previously he was their family physician
Spell of illness doctrine:
The Doctor patient relationship is one of contract between the physician and patient. The relationship ends when the spell of illness ends
Note: the act regulating the practice of medicine does not require that just because a doctor is licensed they are required to practice or take on a patient
Rule in favor of physician because the license alone does not require a doctor to render services whenever they are needed. Must be a new contract.
Basics: Hospital denied care to an infant brought into the ER because he was under the care of another physician. The issue in this case was whether a private hospital is liable for the death of an infant whom was refused treatment at the ER of the hospital.
A hospital can be held liable if there is a visible sign of emergency and care is refused; emergency must be unmistakable and it must be provent hat patient has relied upon well-established custom of hospital to render aid in such a case
In this case, the nurse DID NOT examine the child in any way
The fact that the child died a few hours after going to the hospital shows an emergency in hindsight, but not at time of entry into the hospital
NO hospital liability
Basics: A pregnant woman was experiencing abdominal pains and was directed by her doctor to go to a specific hospital. She wasn’t taken to that hospital, but when she was unable to be treated, she was taken to the original hospital. She gave birth prematurely and the infant died.
The issue: whether a county government’s alleged practice of using its emergency vehicles only to transport patients to certain county hospitals which guarantee the payment of the county’s medical bills violates a constitutional right
Such a practice would not violate an established constitutional right
A constitutional duty arises only when a state or municipality, only by exercising a significant degree of suctody or control over an individual, places that person in a worse situation than (s)he would have been had the government not acted at all.
Her physical condition cannot be attributed to the county and therefore the county was under no affirmative constitutional duty to provide any particular type of emergency medical service for her
Arose from patient dumping
Creates two duties:
Duty to screen patients to determine whether there is an emergency
If there is an emergency condition, the hospital must stabilize
Times when the physician may transfer:
The patient requests a transfer
The hospital to which the patient would be transferred must agree to accept the patient
That hospital is not subject to EMTALA and does not have to agree
The physician must certify that the benefits of transfer outweigh the risks of a transfer
If the hospital does not have the facilities or personnel necessary to fully stabilize a patient, and the patient MUST be transferred to a more sophisticated hospital to receive needed care, the first can transfer without violating EMTALA
EMTALA does not provide a private CoA against the doctor, but it does allow a CoA against the hospital
Burditt v. US Department of Health and Human Services
Basic Facts: Woman arrived at the hospital experiencing labor and dangerously high blood pressure. She had had no prenatal care, a regular doctor, nor means of payment. Burditt was the on-call doc who refused to treat her and wanted a transfer to hospital 170mi away. He feared a lawsuit and signed a blank form to send her away.
Doc didn’t follow the rules and was an asshole
In Re Baby K
Basic facts: Anecephalic baby (born without cerebellum) was brought into the ER. The first two times they treated her and sent her home. The third time, the doctors refused to treat Baby K because it would be “futile care”
Issue here was that by denying her care because she would not benefit creates a notion of what kind of life “life” must be in order to be worthy of care
Wrongful Reasons to Reject
United States v. University Hospital
Basic facts: baby Jane Doe was born with three major defects: spina bifida, microcephaly, and hydrocephalus. The parents instructed the physician that they did not want their child to have surgery, but a stranger to the family and medical authorities petitioned the courts to become a guardian and order the surgery. This person went away, but then the government stepped in.
§504 prohibits discrimination against a handicapped individual only where the individual’s handicap is unrelated to, and improper to consideration of, the services in question
Court ruled that the Baby was treated in an evenhanded manner and that usurping the parents consent would pose an undue burden.
Basics: A woman with HIV challenged her dentist’s refusal to fill her cavity unless it occurred at the hospital.
Dentist would need to show that Abbott posed a direct threat to his health and safety, with a direct threat defined as a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services
On remand, court found that because of the availability of universal precautions, dentist
Implication is that P had sought and D had granted an appointment at a designated time and place for the performance of a specific medical service, one with D’s professional competence, treatment of a particular ailment.
The office marked down what the treatment was for. This doesn’t always work for a general practitioner because could be seeing for multiple things
Limiting Scope of the Treatment Relationship
Tunkl v. Regents of University of Califronia
Issue: Whether a release signed by a patient under great pain, sedation, and probably inability to read can stand as a matter of law
Civil Cod §1668: All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law
Exculpatory provision may stand only if it doesn’t involve the public interest
Types which fall within public interest:
Concerns a business of a type generally thought suitable for public regulation
Party seeking exculpation is engaged in performing a service of great importance to the public
Party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standard
Hospital-patient clearly falls within the category of agreements affecting the public interest AND to immunize the hospital from negligence as to the charitable patient because he does not pay would be abhorrent.
Infected hand case where P left against medical advice and doc told P to return if condition got worse. When P returned, doc refused to treat him saying he would not treat until account was paid. P left and went to a different hospital where he was treated.
The treatment relationship had not been terminated after its commencement due to doc telling him to return
A physician or surgeon, upon undertaking an operation or other case, is under the duty, in the absence of an agreement limiting the service, of continuing his attention, after the first operation or first treatment, so long as the case requires attention
No clear termination of care