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Covering for another physician or providing on-call coverage at a hospital is a common activity for many physicians, but it too often can increase liability risks for the physicians involved. In some instances, physicians have been held liable for the actions of colleagues who covered for them.
One such incident occurred several years ago when a San Francisco jury held an obstetrician responsible for the negligent actions of his on-call colleague. The primary physician became ill the night his patient was admitted to the hospital in labor. Another doctor was able to cover for him, but the delivery was a difficult one.
Several years later, it was determined that the child had neurological damage, and the parents sued both doctors for negligence. The jury found the on-call obstetrician negligent and awarded the plaintiffs $6.9 million in damages. Although the primary obstetrician was found not negligent, the jury held that the on-call doctor was an agent of the primary doctor and that, therefore, the primary obstetrician was liable for paying the full judgment. A contributing factor to this judgment was that the on-call physician had no medical malpractice insurance coverage.
Take steps to reduce risk
The risks associated with call coverage can be reduced by being aware of some of the problems that could result in malpractice claims. The following recommendations may help physicians when they sign out to someone else:
- Choose a coverage physician who is reliable and trustworthy, preferably one who has comparable or equivalent training and experience. For example, an internist would normally not cover for a surgeon.
- When feasible, notify patients well in advance of any prolonged absence. Patients who have not been forewarned may be anxious and concerned that their “real” doctor is not there for them in a time of need. The goodwill and rapport you have with your patients will not automatically transfer to a covering physician.
- Take the lead: Telephone the covering physician and provide details. Inform him or her about special pending cases or difficult patients he or she may encounter. Most patients feel that no one understands their problem as well as their own doctor. Colleagues may be at a significant disadvantage if they are not advised of a highly charged situation with an apprehensive or even hostile patient or family.
- Make sure the covering physician has professional liability coverage. If the physician is practicing “bare” and is sued while covering for you, you may end up being the “deep pocket” in the lawsuit.
- As soon as possible after returning to your practice, find out from your colleague if any patients experienced serious or unusual problems. If so, contact the patient(s) and express your concern. If a patient expresses any dissatisfaction with how he or she was treated by your colleague during your absence, resolve the problems.
- If you are notified during your absence that a patient has developed a major complication, seriously consider returning at once and resuming the direct care of your patient.
Set up a call system for your practice
There is no one right way to address coverage scheduling within your practice. Some practices divide calls equally among all physicians. Others require the newest physicians to take more so they can begin to build a practice. Still others have mid-level practitioners take a call and triage it, contacting a covering physician only when necessary. Your approach should depend on what type of arrangement will best satisfy everyone. Keep a written record of your particular policy.
Although there is much variation in call arrangements among different types of practices, two things are clear: First, call coverage is less onerous in practices that take the time to negotiate an arrangement that is considered fair by everyone; second, managed care contract language plays a role in how you structure the arrangement. For instance, having no credentialed providers cover for you might be a violation of your contract.
Call coverage also should be addressed in employment contracts. If an agreement is not spelled out in writing, the issue can become a divisive one.
Work to reduce communication miscues
Communicating clearly and completely with a covering physician before he or she fills in is essential to help reduce the risk of liability. Consider the following recommendations:
- Agree on limitations for prescribing and refilling medications. A good rule is to refill only enough medication to carry the patient through until the next appointment with you.
- Agree that the covering physician will not prescribe any new medication without first examining the patient.
- Discuss any differences in approach to treating common ailments and agree on courses of action.
- Agree on which specialists and consultants to use, if needed.
- Ask the covering physician to provide prompt documentation of all patient contacts
Tips for Covering Physicians
If you are the covering physician, here are a few points to keep in mind:
- The scope of your coverage should be agreed upon with the primary physician ahead of time.
- Your duties may include the following:
- taking telephone calls from the hospital
- making hospital visits and rounds
- handling ER calls and taking other calls.
- Your responsibilities extend not only to calls, but also to follow-through with necessary medical and surgical treatments until the primary physician returns. In emergency cases, once the patient is released, responsibility for the patient’s care returns to the primary physician. Until then, treat all patients as if they were your own.
- When covering hospitalized patients, keep in mind the following:
- Be diligent in making rounds.
- Document your activities in complete and legible progress notes.
- Perform all duties as if you were the primary doctor.
Unique risks for emergency departments
Emergency physicians, by the nature of their practice, are uniquely dependent on on-call physicians. No other specialty is connected so routinely to specialists and primary care doctors.
There are many operational problems associated with on-call coverage. A survey by the California Medical Association and the California chapter of the American College of Emergency Physicians (ACEP) found that 60% of hospitals in the state had at least a “somewhat serious” problem with emergency on-call coverage. And concerns with coverage are not unique to California hospitals.
According to the ACEP, frequently encountered problems with emergency on-call coverage include the following: difficulty contacting on-call physicians inappropriate response times disagreement with a patient assessment and/or treatment plan refusal of the on-call physician to respond when called disagreement about which physician the patient is assigned to.
Ensure compliance with emergency transfer laws
Federal regulations such as the Emergency Medical Treatment and Active Labor Act (EMTALA) require hospitals to provide back-up physician coverage. It is the responsibility of the individual hospital’s medical staff to determine how to comply with these regulations. Medical staffs need to have policies and procedures to ensure adequate on-call coverage of the emergency department. To optimize emergency patient care, a system must be in place to contact on-call specialists quickly, efficiently and accurately. There also should be mechanisms to correct problems that may arise when contacting or interacting with on-call physicians. Medical staffs and governing boards have considerable latitude to develop creative and cooperative solutions to provide emergency coverage. Different medical staffs and/or departments may address this issue in various ways. Methods may include the following:
- voluntary on-call coverage
- mandatory on-call coverage as a condition of medical staff membership
- contracting for on-call services
- call-sharing agreements with other hospitals.
There is no need for an on-call policy to be uniform across all departments, and reasonable exceptions may be made even within a department or within the staff as a whole. For example, some medical staffs may elect to exempt physicians aged 65 and older from on-call coverage obligations. To avoid confusion, there should be a roster of on-call coverage that spells out specific dates and times of coverage for medical staff members.
WATCH FOR POTENTIAL EMTALA PITFALLS
Specialists providing on-call coverage in emergency departments must be wary of common pitfalls when it comes to complying with the Emergency Medical Treatment and Active Labor Act (EMTALA). According to Stephen A. Frew—who maintains the EMTALA online resource site at www.medlaw.com and who is a risk management consultant and legal editor for Emergency Physician’s Monthly—the most common pitfalls are as follows:
- debating with the emergency department physician over the necessity of coming in to see a patient
- refusing to come in and suggesting that the patient be seen by another specialist
- refusing to see a patient because of severity or scope of condition and ordering a transfer to another facility
- instructing the emergency department physician to admit the patient or to run various tests, thus delaying coming in to see the patient
- declining to see a patient because the patient’s apparent needs exceed the physician’s scope of practice
- declining to see a patient because of health plan or self-pay status
- declining to see a patient who is aligned with another specialist who is unavailable.
Failing to respond can lead to penalties or claims
Neither federal nor state laws require an individual physician to serve on call. However, when a physician accepts on-call responsibilities for a hospital, the physician must comply with emergency transfer laws and may be liable for failure to do so.
State laws may expand upon provisions in the federal laws. For example, California statutes (Health and Safety Code §1317 et seq.) are more comprehensive than federal regulations and cover all licensed healthcare facilities with emergency departments. Specifically, California law prohibits on-call physicians from refusing to respond for any nonmedical reason, such as a patient’s race, religion, citizenship, age, gender or ability to pay.
Taking emergency calls requires at least a telephone consult and, when medically necessary, a face-to-face examination at the hospital. According to guidelines of the Centers for Medicare and Medicaid Services (CMS), when a physician is on-call during office hours, it is not acceptable to refer emergency patients to the physician’s office for examination and treatment. Instead, the physician must examine patients at the hospital— unless the physician is in a hospital-owned facility or on the hospital campus.
If a physician demonstrates a pattern of not arriving at the hospital while on-call, but instead transfers patients to another hospital where that physician can treat the patient, that also may be a violation of the federal law, the CMS states. Physicians who violate EMTALA provisions may be subject to fines up to $50,000 and may be excluded from the Medicare and Medi-Cal programs.
In addition, most medical staff members agree to be bound by staff bylaws, rules, regulations and policies. If a policy calls for mandatory on-call service, a medical staff member is bound by that policy.
Physicians who are unsure of their rights and obligations in this respect should check their medical staff bylaws. Physicians also could face a negligence claim for failure to notify a hospital that they are unable to take calls they have previously agreed to take. There is a strong judicial sentiment in the courts to impose liability when on-call physicians fail to reasonably meet their obligations.
Clarify who will provide follow-up care
Emergency transfer laws do not fully address the issue of follow-up care for patients who have been treated, stabilized and discharged from an emergency department. The basic question is whether a physicianpatient relationship is established during emergency care or whether that relationship is limited to stabilizing the patient. The safest course for physicians who are unsure of their obligation is to do the following:
- provide treatment
- inform the patient while still in the emergency department or hospital that the physician’s care is limited to providing stabilizing treatment
- follow up with a letter confirming that the relationship terminated when the patient left the hospital and that the patient will need to find another source of care.
Conclusion
Taking precautions, complying with federal and state regulations and discussing with colleagues the full range of on-call coverage responsibilities can help reduce your liability exposure. These steps also will provide you and your colleagues with the peace of mind that your patients are in the hands of capable and caring physicians.
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