Medical Malpractice

Where Is Your Doctor When You Need Him Most?

Imagine you're on the operating table, prepped for surgery and sedated. You wake up, thinking you're ready to go on with your recovery. You're shocked to find out that your doctor never showed up to perform the surgery, and you're going to have to go through the process all over again.

This is exactly what happened in a New York hospital. A patient was scheduled for brain surgery and the surgeon failed to show up. The surgeon went on a family vacation instead.

The chief of neurosurgery was summoned to step in for the surgeon, but refused to go forward with the operation. Both surgeons were suspended and the state health department filed numerous violations against the hospital.

Patient Abandonment

The above event is an extreme example of patient abandonment. This is when a doctor fails to provide necessary medical care to a current patient without cause. Once a doctor-patient relationship is created, the doctor is obligated to treat the patient until the relationship ends. However, if there isn't a doctor-patient relationship, the doctor doesn't have a duty to treat the person.

The doctor's duty to treat a patient includes coverage for the patient when the doctor is away or otherwise unable to attend to the patient. Abandoning a patient in need of medical care without making reasonable plans for care isn't only unprofessional, but is considered medical malpractice.

Other examples of patient abandonment include:

  • Failing to transfer a patient to an appropriate level of care
  • Failing to respond to calls from a hospital regarding a patient
  • Refusing to care for a patient after arranging the patient's admission
  • Failing to treat a patient until new coverage is arranged

Proving Patient Abandonment

If you believe your doctor abandoned you during treatment, you must show that:

  • Your doctor had a duty to treat you - a duty was created when the physician-patient relationship was established
  • You had a reasonable expectation that your doctor would treat you
  • Your doctor failed to treat you although he or she was obligated to do so
  • You suffered injury as a result

Terminating the Doctor-Patient Relationship

The doctor-patient relationship may be properly ended at your request or by the doctor for specific reasons after providing formal notice to the patient and giving you a reasonable opportunity to find alternate care.

Specific reasons for ending the relationship include:

  • A breakdown in the relationship with the patient that makes it medically impossible to continue treating the patient
  • Threatening, abusive, or violent behavior by the patient
  • Sexual advances made by the patient
  • Conduct that interferes with the patient's treatment or safety, including failure to show up at scheduled appointments
  • Refusal to follow the doctor's recommended treatment
  • Repeated failure to pay for medical expenses
  • A patient's concealment of their real identity
  • Fraud or theft by the patient

HIV-Positive Patients

According to the AIDS Legal Council of Chicago, a surgeon can't refuse to operate on an HIV-positive patient because this would violate the Americans with Disabilities Act. If a surgeon tells you that you must take an HIV test before he will operate, ask him what difference it would make if you were HIV-positive.

If the surgeon states that extra precautions would need to be taken, advise him that universal precautions should already be used on all of his patients. If he refuses to operate on you because you won't take an HIV test, he's breaking the law.

Complaints against Medical Providers

All states have an agency that investigates claims of negligence against medical providers. Generally, the agency falls under the state health department. If you believe a doctor or hospital failed to properly treat you, you should contact the appropriate agency and file a complaint. If you suffered injuries as a result of the abandonment, consult a lawyer.

Questions for Your Attorney

  • Is a doctor obligated to continue to care for a patient if the patient has changes in insurance coverage?
  • Can a doctor refuse to accept a patient if he incorrectly concludes that the patient's insurer won't provide coverage for the doctor's services, for example, if a woman switches employer-provided insurance due to a job change during pregnancy?
  • What if a doctor takes on too many patients over time and ends up overbooked - is that a form of failing to treat patients?
  • If a doctor is part of a group practice, does the doctor meet the obligation to treat a patient as long as someone from the practice tends to patients? It seems that the primary doctor I chose is never available
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