I take ER calls as a plastic surgeon. The ER doctor performs the primary repair on cases for which they determine don’t warrant calling me and tells the patients to see me for follow-up. If the patient never calls, am I liable if they have a bad outcome?

The reliance of the ER doctor on your guidance and your understanding of this create a physician– patient relationship, even if the patient is unaware. The ER doctor is predicating their choice on the patient seeing you, an aspect of reliance. Under your privileges agreement or call contract, you have bound yourself to see anyone sent to you from that shift, which can also be held to underpin a duty to them.

There is also your contractual duty to the hospital as its agent. That you will see the patient for follow-up is baked into the process of the ER doctor doing the primary repair rather than bringing you in. Not doing so is a lapse in that process that the hospital could treat as a breach of your obligations.

You don’t have a contractual duty to hunt a patient down and foist care on them, but you have to do what you reasonably can to fulfill the duties on which the hospital is relying. Ask the ER for a list, per shift, of every patient referred to you, and track who calls for an appointment. If a patient has not called within the clinical interval relevant to the case, send a letter (keep a copy) that includes the date, where and why they were seen, the procedure performed, the instruction they got to call your office for necessary follow-up, your urge to call you or a physician of choice for an appointment, and the importance of follow-up care in their recovery.

The inclusion that they were instructed to do this because it was necessary raises negligence on their part if they do not and fulfills your own duty to them. However, you have not done so in terms so strong that raise the issue of why you then did not go further. It would be the now-informed patient’s choice of what to do.

If there is a serious risk involved in not seeing you for the follow-up and the letter does not get a prompt response, or if the patient needs to see you quickly but does not make an appointment within the needed timeframe, you will need to inform the ER that the patient never followed through and needs to be contacted through their official call-back system. Document that you did so, when, who you spoke with, and that they said they would handle it. You would not have to follow up further.

This article was written by Dr. Medlaw, a physician and medical malpractice attorney. It originally appeared on SERMO, which retains all rights to it.