I. THE DOCTOR – PATIENT RELATIONSHIP
A. THE DUTY TO TREAT
i. Duty of Physician to treat—The “no duty” rule
Hurley v. Eddingfield (Ind. 1901)
Facts: Decedent’s family physician who was licensed and held himself out as a general practioner of medicine refused to treat decedent when she became dangerously ill and sent for his services. The messenger informed the doctor of decendent’s illness and tendered payment and told him that no other physican was available. Nevertheless physician regused to treat decendent without any reason.
Holding: no duty to treat licensure is a preventitive act to ensure only qualified physicians practice not a compulsory act that all licensed physicians must treat. Court distinguishes affirmative duties of innkeepers and common carriers.
RULE (1) NO DUTY RULE: A physician, licensed to practice medicine is not liable for arbitrarily refusing to respond to a call, though he is the only physician available.
-This is so regardless of (1) willingness to pay, (2) prior relationship with patient and (3) availability of other physicians; (4) emergency situation. Hurley
RULE (1a) CAN GIVE NO REASON BUT NOT ANY REASON:Under current interpretations of the “no duty” rule a doctor can give no reason but he can not give any reason like discriminatory reasons (i.e. race, sex, hiv, religion…)
RULE (2) PURPOSE OF LICENSURE: In obtaining the state’s license to practice medicine, the state does not require, and the licensee does not engage that he will practice at all or on other terms than he may choose to accept. Hurley
RULE (3) BRIGHT LINE AT CONTRACT FORMATION: Once doctor enteres D-P relationship the relationship is heavily regulated by the state and to some extent the federal government and doctor can not cease treatment for no reason.
RULE (4) CAN’T CONTRACT AROUND MEDICAL MALPRACTICE LIABILITY- doctors and patients cannot contract around the standard of care required of all physicians. If the physician falls below the standard of care and it results in an injury the patient can sue.
POLICY FOR THIS RULE: (1) compulsory care may be substandard; (2) physicians choice personal autonomy; (3) don’t want to deter persons from entering the medical profession b/c of community service burden; (4) Small town doctors would be disproportionately burdened if they were only doctor in town; (5) contractual nature of relationship requires two free autonomous willing participants to enter into bargain;
POLICY CRITIQUE: What about detrimental reliance or quasi contract? Courts use detrimental reliance in case of E.R. or public hospitals but today in generally dorcts still have no duty to treat.
ii. Duty of Hospital to treat—only if (1) public; (2) have an ER common custom/detrimental reliance for unmistakeable emergency BUT no duty to give medical services for free outside of emergency situation.
Willmington General Hospital v. ManLove (Del. 1961)
Facts: A child became ill and was repeatedly treated by the family physicians for diarrhea and a fever. When the child’s condition didn’t improve the parents took him to the E.R. at Willmington general where a nurse informed the parents that since the child was under the care of the family physician the hospital wouldn’t treat him for fear of mixing medicines. She asked what the childs symptoms were but did not examine the child. The child did not appear to need emergency treatment (no convulsions…). The child died shortly after before being seen by his family physician.
Action for wrongful death of infant who died shortly after treatment was refused at defendant private hospital. The Superior Court entered an order refusing hospital’s MSJ and hospital appealed and said that since the private hospital receives some grants of public money it was a “quasi-public hospital” in terms of emergency situations and thus liability could be imposed on the hospital for refusing to treat.
The Supreme Court held that:
(1) the hospital was a purely private hospital and in general may control its business largely as it sees fit thus NO duty to treat and need not give a reason why
(2) However, if a hospital elects to have an E.R. ward (which it has no duty to have) it establishes a “custom of treatment” and persons may detrimentally rely on the hospitals services in an emergency situation. Such would cause detrimental reliance—akin to the tort of negligent termination of gratuitous services
(3) Affirm denial of hospital’s MSJ since genuine question of fact as to whether child’s condition presented an emergency situation, but in absence of an unmistakable emergency situation private hospital was not liable for refusal to treat her.
POLICY BORROWING FROM TORT PRECEDENT: court uses torts theory of detrimental reliance and past tort precedent to make it seem like they were not creating completely new right—legislating from the bench.
RULE (1) DUTY TO TREAT OF PRIVATE HOSPITAL GENERALLY – Privately owned and operated hospital is a private hospital which, at least in absence of legislative control, conducts business largely as it sees fit, notwithstanding receipt of public funds and exemption from taxation. Trustees or governing board of private hospital alone have right to determine who shall be admitted as its patients.
RULE (2) DUTY OF HOSPITAL TO HAVE E.R. – Private hospital is under no legal obligation to maintain emergency ward or public clinic.
RULE (3) DUTY OF HOSPTIAL w/ E.R. – “custom of treatment” EXCEPTION FOR “unmistakable emergencies”: Where (1) person comes to hospital’s E.R. in reliance on “well established custom” (2) with an “unmistakable emergency” and (3) harm results from refusal to treat-àPrivate hospital maintaining emergency ward may be liable.
NOTE: In Contrast EMTALA has NO harm requirement.
Sophie’s Choice: Medical and Legal Responses to Suffering: Shepherd
· Thesis: suffering instills a right to relief based on the principle that people should not be required to suffer when means are available to end or altogether avoid such suffering
· Reasons to recognize rights based suffering: (1) collective conscience—shared empathy; (2) notion of positive rights, not just free from interference but affirmative right to goods and services—like the emerging right to healthcare and EMTALA; (3) public and private distinctions have blurred—nation like one super-family; (4) feminist ethic of care—responding to specific situations with appropriate responses and alleviating problems of others and not just attending to rights and fairness (like non-interference) from an ethical standpoint
iii. Duty of Government to provide medical assistance: only where domination, coercion or control by state
Wideman v. Shallowford Community Hospital
Facts: Parents of deceased premature baby brought action against county, county ambulance drivers, and hospital to challenge constitutionality of county’s policy of driving patients only to hospitals that guaranteed payment of county’s emergency medical bills. Here mother went into labor at 4 months and despite repeated requests to be taken to her doctors hospital where her treating physician was waiting the ambulance took her to Shallowford. Once there she was transferred to her physicans hospital but it was too late and her doctor was unable to stop the birth of the child who died a few hours later. The United States District Court granted summary judgment in favor of county, drivers, and hospital. Parents appealed.
Holding: The Court of Appeals, Hill, Circuit Judge, held that no constitutional right existed to provision of medical treatment and services by county and to transport by ambulance to hospital of one’s choice. Here the county did not exert control over the woman and thus no affirmative duty existed.
RULE (1) DUE PROCESS NO GUARANTEE TO MEDICAL TREATMENT/SERVICES: Due process clause confers no general right to provision of medical treatment and services by state, county, or municipality. Shallowford
RULE (2) EXCEPTION TO NO AFFIRMATIVE DUTY TO TREAT- STATE CUSTODY: Constitutional duty to provide certain medical or other services can arise only when state or municipality, by exercising significant degree of custody or control over individual, places that person in worse situation; duty arises by virtue of state affirmatively placing individual in position of danger; key concept is exercise of coercion, dominion, or restraint by state. (based on 8th amendment cruel and unusual punishment)
** applies to prisoners and mental hospital institutionalized patients Shallowford
RULE (3) PROVIDING SOME AMBULANCE SERVICE DOESN’T GIVE RISE TO CONSTITUTIONAL DUTY: Fact that county undertook to provide some ambulance service did not give rise to constitutional duty to provide pregnant woman with allegedly necessary medical services by transporting her to hospital of her choice. Shallowford
POLICY NEGATIVE LIBERTIES: The constitution due process clause protects liberty by prohibiting unwarranted government intrusion but it doesn’t “confer an entitlement to such funds as may be necessary to realize all of the advantages of that freedom. Consistent with tort’s “Good Samaritan” doctrine… Bill of Rights—embodides primarily negative not positive liberties
iv. NOTES DUTY OF CARE: PHYSICIANS vs. HOSPITALS:
AMA’s Principles of medical Care: a “physician shall in the provision of appropriate patient care, except in emergencies be free to choose whom to serve”
RULE (1) “SPELLS OF ILLNESS” : Once a patient recovers from an illness or stops seeking treatment a new treatment relationship must form in order to invoke a duty of continuing treatment Castillo v. Emergency Medicine Assoc
RULE (2) CONTRACTUAL NATURE OF D-P: Once a patient accepts physicians services the D-P relationship is created—it may result from express or implied contract and the rights of the parties are governed by contract Oliver v. Brock
RULE (3) STATE BASED REQUIREMENTS OF OPEN E.R. – Many states via statutes or regulation impose a requiremnt of open E.R.s
RULE (4) EXCEPTION TO OPEN E.R. “DRIVE BY STATUS” – Hospitals with E.R.s are allowed to alert ambulences not to stop there when the ER is full. Davis v. Johns Hopkins (1993)
RULE (5) “ON CALL” E.R. DOCTORS – Dr.s who are on call for a hospital ER voluntarily undertakes the hospitals greater duty of care the lack of a consensual D-P relationship before a duty to treat can arise has been waived by the signatory doctors (Hiser v. Randolph Az 1980 – Dr. refused to come into E.R. to see semi-comatose diabetes patient—claimed lack of knowledge of diabetes but was really b/c of personal animosity)
RULE (6) HMO Dr. LIABILITY ABSENT D-P RELATION: Doctors who are under an HMO plan and required to make treatment decisions, including hospital admissions, can be held liable absent an express D-P relationship since the patient as a member of the HMO has pre-paid for the medical care in advance of need which creates a D-P relationship. (Hand v. Tavera CA. 1993 – Patient died of anurism where HMO doctor refused hospital inpatient admissions even though never examined or formed D-P relation)
RULE (7) HOSPITALS AS “QUASI-PUBLIC” FACILITIES: Hospitals which are licensed and privately accredited have a duty to not turn away patients after stabilizing in an emergency situation for financial reasons—akin to putlic carriers and inns, hightened affirmative duty due to monopoly status, importance of service. Thomspon v. Sun City (AZ 1984) BUT note this view is losing favor since hospitals are now government regulated—(Manlove)
RULE (8) CL DUTY TO TREAT: In Leach v. Drummond Med. Group (Cal 1983) The court imposed a common law duty to treat where a patient was refused medical service with the sole practitioners in town b/c patient had filed complaint against one of the doctors.
RULE (9) GENERAL DUTY TO TREAT INDIGENT PATIENTS: There is no general duty to treat patients who can not pay unless (in some states) emergency situation based on a theory of detrimental reliance or where the hospital participates in state Medicare then EMTALA is triggered.
RULE (10) NON PROFIT HOSPITALS DUTY TO TREAT INDIGENT – Since Non-Profit hospitals are tax exempt they have a duty to treat some patients for free—Federal law restricts this to mainly emergency care ut some sates require hospitals to devote some overall % of services to patients who can not pay—but since this is a community service to public at large individual indigent patients have no private right of action.
v. EMTALA – hospitals that accept medicare required, in an emergency to (1) assess benefit & risk of transfer; (2) stabilize before transfer; (3) transfer with appropriate personnel
Fed. Dist. Ct.
Hospitals that Take Medicare (99% of hospitals)
Come to any part of hospitals property or hospital ambulance
(1) Screen; (2) Stabilize or Transfer after weigh risk/benefit w/ proper personell and life saving equipment if other hospital agrees to recieve
NO!! (See Burditt)
Government right of action (no private right of action)
PRO: weight of gov.
CON: lack of enforcement
State court has to fudge based on Tort Th. Of detrimental reliance
Race—some FDA drugs are race specific—Hypertention drugs for African Americans
3. POLICY: In medicine, unlike employment, education, race and sex are sometimes rational distinctions
a. REFUSAL TO TREAT DUE TO PATIENT DISABILITIES —
Note: Since University Hospital and Glanz, the ADA (Americans with Disabilities Act has gone into effect and its provisions apply to all nonfederal providers of health care services, public or private.
United States v. University Hospital (2nd cir 1984) — Under Rehabilitation Act pre-ADA
Facts: Baby born with complex medical condition including spina-bifida—3rd party stepped in to protect interests of the child since he though that the hospitals enforcement of the parent’s choice to forgo surgery was a violation of §504 of the Rehabilitation act which states
(1) “No otherwise qualified handicapped individual in the United states shall solely by reason of his handicap be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program receiving federal financial assistance.”
(2) it defines “handicapped individual” as any person who (i) has physical or mental impairment which substantially limits one or more of such person’s major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment
HOLDINGS: (1) is baby “otherwise qualified” to undergo surgery—No multiple disabilities that effect length and quality of life thus the hospital not discriminating under Rehabilitation Act—this case is distinct from education or employment discrimination since handicap effects medical decisions (2) Who decides about surgery? Risk/benefit uncertainty – Parents can decline surgery for a child for a rational reason not tied to religion, discrimination. (3) The hospital remains willing to perform the dual corrective surgeries if her parents would consent—to require the state to ignore parents wishes or petition the state would be an “onerous affirmative action burden upon the hospital”
POLICY AUTHORITY IN TREATMENT DECISIONS: Court argues that Congress never intended §504 to apply to treatment decisions—consistent with congressional policy against the involvement of federal personnel in medical treatment decisions (court cites medicare preamble that states “nothing in this subchapter shall be construed to authorize any federal officer or employee to exercise any supervision or any control over the practice of medicine or the manner in which medical services are provided”.
RULE (1) PARENTAL AUTONOMY IN MEDICAL DECISION-MAKING: Parents can reject treatment of a child for rational reasons but not for religion,… Courts can step in the instance of minimally invasive life saving treatment (blood transfusion for Jahova’s Witness child) but this is rare. University Hospital
RULE (2) REHABILITATION ACT DEF OF “DISIBILITY” : Fuzzy standard—if person suffers from a physical impairment that substantially impairs one or more major life activities.
RULE (3) OVERRIDING PARENTS DECISION– “OTHERWISE QUALIFIED” PATIENT W/ DISABILITY: Rehabilitation Act section prohibiting discrimination against “otherwise qualified” handicapped individual solely by reason of his handicap, could not be meaningfully applied in medical treatment decision involving newborn infant with severe birth defects, who was not “otherwise qualified” (meaning qualified in spite of his handicap) under the Act to have corrective surgery performed or to have hospital initiate litigation seeking to override decision against surgery by infant’s parents. University Hospital
Bragdon v. Abbot (U.S. 1998)
Facts: Dentist didn’t want to treat patient in office b/c HIV positive but he said he would treat in a hospital
ISSUE: is dentist’s fear of contracting HIV rational or discriminatory
HOLDING: Court found in favor of Mrs. Abbot because of the availability of “universal precautions” to prevent transmission thus dentist couldn’t justify his denial of treatment tin terms of medical need to protect himself
RULE (1) AVAILABILITY OF UNIVERSAL PRECAUTIONS: A doctor cannot refuse to treat a patient with a disability where there are safety procedures that would adequately protect the health/safety of the doctor Bragdon
RULE (2) AIDS is A Handicap:Since AIDS interferes with the ability to have a child (a major life activity) aids is considered a handicap w/in the scope of the Rehabilitation act Bragdon
POLICY: THE COURTS RESPECT FOR PHYSICIAN AUTONOMY:
(1) where medical profession divided as to relative safety of a particular procedure or treatment option shouldn’t we defer to the individual D-P treatment decision? Note the court didn’t defer in the Gonzales abortion case, nor to the dentist in Bragdon – here the court deferred to the AMA Dental guidelines over the views of the individual doctor.
(2) Sometimes handicapped condition is so bound up with the treatment decision that it ought to be considered in medical decisions—i.e. doctors need to take age of patient into account and terminal illnesses to determine fitness for trasplant
Glanz v. Vernick (D. Mas 1991) Under Rehabilitation Act pre-ADA
Facts: Physician Vernick (D) treated patient for severe pain in the right ear and recommended surgery to repair a perforation. However, once physician learned that patient was HIV+ he refused to perform the operation. Patient sued under Rehabilitation Act alleging that AIDS was a handicap w/in meaning of the Act.
Holding: (1) The “otherwise qualified” determination requires an individualized factual inquiry and fact finding, here there is evience available which tends to prove the patient was “otherwise qualified” and the doctor did not produce any