We've been reviewing the duty to treat and the duty of care. I'd like to take a couple of minutes to review that section so that hopefully you have it all down. And then we'll move on to the issue of moral rights to treatment. So let me just review for a moment the fact the patchwork of laws that we've been discussing here in the last the past few lectures. So far there are four physicians. There is no common law of duty to treat. And that applies even in the case of emergencies. Now for hospitals, there is one a common law duty to treat emergencies and emergency patients, regardless of their payment capability. But that applies only in severe emergencies. Secondly, the common law and regulatory duties to treat all patients who can pay exists. There is no enforcement duty to treat non-emergency or mild emergency patients who cannot pay. This set sets the stage for the enactment of the federal statute, which is the Emergency Medical Treatment and Active Labor Act, which I have previously discussed with you. So essentially then the duty to treat in terms of physicians and it must be a contractual mutual understanding. With respect to hospitals, there is essentially no duty to treat unless it's an emergency situation, basically a severe emergency situation. And regulatory duties do indicate that generally you have to treat patients and certainly can pay. So that sort of summarizes what we've been talking about. Let me now turn to the next section and what we're going to be what we're going to be dealing with. We're going to talk about. The moral right to treatment. And then we're going to get into the subject of wrongful reasons to reject patients. And there we're going to look at the three different cases which I would like you to read and to brief. And then we'll talk about the discriminatory denials of care. Well, then move on to the structure of the treatment relationship. And here we will explore forming a patient physician relationship. And there we will look at four cases. And again, I would like you to read them and to breathe breathe them. Then we will deal with creating the physician patient relationship. Then deal limiting the scope of the treatment relationship. And then limiting the standard of care and the scope of practice and then terminating the treatment relationship. We will explore how that is done and in each one of those situations there'll be some cases to look at and to discuss. Finally, we will take up abandonment, liability. And then we will turn to regulating the treatment relationship. And there we will get into the subjects of professional licensure, character, competence and principles of medical discipline that that the medical profession deals with. So let me start then with the rights to moral rights to treatment. And in our materials, this is about page 79 of our materials. The first question I would ask you is, are we limiting care? Because of the emergency care limitation due to the duty to to render care. It seems that the Emergency Medical Act requires that we provide care to patients in emergency situations, basically severe emergency situations. As I discussed with you when we talked about the Emergency Medical Act. Clearly the law says the patients do not have a right to demand treatment from particular doctors and hospitals as a general statement. Private hospital. Emergency rooms exist as a last resort for those who don't have insurance and perhaps the indigent and the poor. And these private hospital emergency rooms have been essentially the outpost for these unfortunate individuals. But when we look at the Constitution of the United States, the Bill of Rights is concerned with freedom from government imposition. It does not provide rights to government assistance. Now the first time. That we ever got close to government assistance, in effect, for all of our citizens was the Affordable Care Act under the Obama administration. Now, that has been challenged because what was projected to be a cost saving measure has turned out to be just the opposite. But it's important to know that when we talk about treatment, the Bill of Rights does not guarantee. Government assistance in does not guarantee. That the government has to provide health care to its citizens. The due process clause of the Constitution does not confer any affirmative right to government aid. And the case law interprets that as as such. So it's important here that we understand that. The. The rights to government assistance. With the exception of the Affordable Care Act really does not exist. So we look at the body of law that basically imposes certain rights, such as taking care of emergencies. 

SPEAKER 0 And. I'd like to turn now to a case in our materials at page 81. The case of Burdette versus the United States Department of Health and Human Services. This is a very interesting case, and I'd like you to read it. I'd like you to discuss I'd like you to review the operative facts in the case. I'm not going to go through this case with you in any great detail, but I will talk to you a little bit about what this case stands for and and essentially what. This case is in our book and what it is intended to point out. This is a case where they started out. With a situation where a patient arrived in an emergency room at a hospital in Texas. And she was pregnant. And she was near her term. And she was this was her sixth would have been or will be or would have been her sixth child. But she was experiencing one minute moderate contractions every 3 minutes and her fetal membranes had ruptured. There were two obstetrical nurses that attended her. They examined her. And they found something very significant. They found that her blood pressure was extremely high. And because she had received no prenatal care. And she did not have a regular doctor. The. Nurse. One of the nurses phoned. A Dr. Burdette who was on the hospital's rotating. Call this. And. Of course, he had never treated this patient. When they realize that this patient had this elevated blood pressure, they realized this was a condition known as pre-eclampsia. This is a condition that pregnant mothers can find themselves in, where if this high blood pressure is not regulated and brought down, the mother can have a stroke. Endangering, of course, the fetus. So not only is the mother in danger, but the fetus is in danger as well. This is a very serious situation. So in this particular case. They called this on call. Dr.. And upon hearing the history in this case. Of the patient. Dr. Brigette told the nurse. Quote, You didn't want to take care of this lady. And he asked the nurse to prepare this woman for transfer to another hospital. Which was 170 miles away. And. The doctor said over the phone to the nurse. He would call back in five or 10 minutes to see how she was coming with the transfer. The nurses told their supervisor. At their hospital that in their opinion, it would be unsafe to transfer this patient to that hospital 170 miles away. When Dr. Burdette called back. The nurse told him that, according to. The administrator to the administrator she talked to. And according to the regulations of the hospital and federal law. Dr. Brigette was required to examine this patient and personally arrange. For. This other hospital to receive her before he could legally transfer her. In other words, these were the requirements of the Emergency Medical Act, which I previously outlined to. The doctor, Burdette told the nurse to begin administering medication. And said that they should administer that medication only if the patient could be transferred by ambulance. Now, this medication that they were talking about is a drug. Used in for patients with pre-eclampsia. To hopefully reduce the patient's very high and dangerous blood pressure. Dr. Burdette arrived at the hospital at 450. To examine the patient. He confirmed that her blood pressure was the highest that he had ever seen. Basically 210 of 130. Stroke levels. Dr. Burdett knew that there was a strong possibility that her hypertension would precipitate complications which might kill both. The patient and her baby. After I knew that. He also knew that the infants of hypertensive mothers. All right. A higher than normal risk for a situation known as intra uterine growth retardation. He estimated that. The. Baby was about 6. Which was less than normal weight for a child at this stage. And he arranged to have this child transferred to. The hospital, which was 170 miles away. At 5:00. That day shortly after the doctor got there. He showed the. Dr. Barnett would show guidelines regarding the Emergency Medical Treatment Act. Doctor refused to read them. He told. The represent the nurses and the representatives of the hospital. That he was ready, that he represented more, that the patient represented more risk than he was willing to accept. From a malpractice standpoint. And he said, quote, Unless this hospital pays for my malpractice insurance, I'll pick and choose those patients that I wish to treat. Or then the doctor. Burdette then went to care for another patient. While the nurses arranged for. The first patient's transfer. Dr. Brunet returned to the nurse's station and stayed there from 530 to 618. He never again examined the original patient with the hypertensive situation. Though he inquired several times about her. And he delivered. Another woman's baby at 622. He concluded that the first woman's condition had not changed since his examination 2 hours before. Although he didn't examine her. And he. He did not order any further medication or life support for the original patient. The patient was transferred in an ambulance and in the ambulance approximately 40 miles into the 170 mile drive to the next hospital. She delivered. She directed the driver to go or the attendant directed the driver to go to a nearby hospital to get a drug called Pitocin, which is a drug used to stop bleeding from the patient. Patient was bleeding. And while their doctor, Burdette, who ordered her to continue on to the hospital despite the despite the birth, because she had actually in the ambulance. She she did. Don't. So. So she was in the ambulance. And despite. Despite that, they returned. They turned around instead of going to the hospital. Approximately 150 miles away now. They turned around and went back to the original hospital. Where. Fredette directed that. This woman be discharged if she was stable and not bleeding excessively. And. What happened was, of course, that. The patient stayed at the hospital under another doctor's care and then left the hospital after a couple of days after she was maintained by others. So then the question was. What was the position of the hospital when they got sued by the patient? The hospital maintained that patients diagnosed with an emergency medical condition or active labor must either be treated or transferred in accordance with the Emergency Medical Act. Dr. Burdette claimed that the patient received all the care that she was due under the act because he stabilized her hypertension sufficiently for transfer as she was not in active labor when she left the hospital for that 170 mile trip. The court said no. The court said. The experts testified in the case that the original patient's hypertension put her at high risk of suffering serious complications, including seizures, heart failure, kidney dysfunction, tubular necrosis, stroke, intracranial bleeding, placental abruption and fetal hypoxia. That is oxygen deprivation to the fetus. This, the court said, was substantial, if not conclusive, that the patient entered and exited the hospital with an emergency medical condition in violation of the act. And they found the doctor responsible now. I'll tell you why our book cites this, because this was the first physician ever fined for a violation of the Emergency Medical Treatment Act. His actions were vigorously defended by the Texas Medical Association. However, the case stood for a violation of a refusal to provide emergency care. The patient, according to the court and the experts who testified, were not patients, were not Asian, was not stabilized. Emergency care was not rendered. The doctor was found responsible and liable.

SPEAKER 0 And. There is a discussion on page 85 of our materials of the federal patient dumping statute. I'd like you to read. That provision. Congress passed the Emergency Medical Treatment Act, as I have said, as part of the Consolidated Omnibus Reconciliation Act of 1986, in response to the perception that state law was too weak to prevent widespread patient dumping. And. There are still concerns for patient dumping because his dumping does persist in unacceptable levels in certain situations. So understand this, that this dumping anti-dumping statute was designed, the Emerging Emergency Medical Act, designed to prevent. Situations where hospitals would try to transfer someone that didn't didn't have insurance, wasn't able to pay. Those were situations where hospitals would try to shuffle these patients off. I talked to you about the Medical Act and I talked to you about those critical elements that made the act applicable. And that is. There were two distinct duties under the Act that emergency rooms must do. Just to repeat them, the duty to screen that is the duty to evaluate the patient and the duty to stabilize. That's why in the Burdette case. The doctor said, I don't want to treat these this patient. And the hospital administration said, look, before you can transfer, you've got to do two things. One, you've got to evaluate this patient from the medical standpoint. And if you think this patient should be transferred, then you have to make sure the patient's stabilized. And in the Burdette case, the court ruled. This patient was far from being stabilized. What if the hospital does not have the facilities or personnel necessary to stabilize the patient? Then I've indicated to you that the hospital first hospital can transfer to a more sophisticated hospital, but they have to meet the requirements of the act, which of course is making sure that the hospital understands who's coming and that they have the capability of handling the patient. The transferring hospital must do all it can before the transfer to make sure that the patient, to the best of the ability of the transferring hospital, is stabilized. What about a situation? And again, I would direct your attention to page 87 of my materials. What about the patients? Indians, Indians? Indians. The patient does that is indigent, doesn't have funds to pay for health care. The Emergency Medical Act applies to all patients, not just indigent patients or ones with insufficient resources. Applies to all patients. And you do not have to show if you're seeking to comply. If you're seeking to bring an action under the act, you do not have to show any improper motive. You just have to show a failure to treat the patient. Now let's talk about. Preventative dumping. Dumping patients before they reach the hospital to avoid the act. Is also mentioned in the ACT, as I previously discussed with you, once they have reached any part of the hospital property. They're on the campus and the act applies. What triggers the act. The act is triggered. Depending upon where the person is in the hospital. But essentially, if an emergency occurs in Nashville originally, not if an emergency occurs after a patient is already admitted to the hospital. But if a emergency occurs when the patient is in the hospital, coming to the hospital or in a part of the hospital, then the act does apply. And then that has to be evaluated and the patient has to be stabilized before that patient can leave the hospital. Now, as I have said to you, I think at the last lecture, the Emergency Medical Act cannot be used to bring claims for medical malpractice under the act deal, dealing with denials of care in situations where they maintain that a doctor or a nurse was negligent in their provision of care, that the act specifically indicates it cannot the act cannot be used in a as a if there is a violation of that, it cannot be used as evidence in a medical malpractice case. Now hospitals are obligated only to apply uniform screening procedures to all individuals coming to the emergency room. The Sixth Circuit Court of Appeals, the one in Ohio, Federal Court of Appeals, has indicated that the departure from the hospital's standard screening procedure must have resulted from some invidious motive. See Page 91, 91 of our materials where that is discussed. But I want to make that important distinction from the sixth. The Sixth Circuit made with respect to finding. Liability for departure from the standard screening procedures they adopted. The standard in a situation, says the departure from the hospital. Standard screening procedures must have resulted from some invidious motive like bias against the patient on the basis of race, sex, politics, occupation, education, personal prejudice, drunkenness, distaste for the patient's condition such as AIDS, etc. In other words, there has to be some invidious reason why the screening procedures were not followed. And if those invidious reasons were race, sex, politics, occupation, education, etc., then there is a clear violation of the act because you're discriminating, because you're not screening patients, certain patients, the way you would screen any other patient. And so. Essentially the bottom line is that. The law says there wrongful reasons to reject patients are situations where you can produce evidence that the patient was rejected because of a discriminatory discrimination reason. And I gave you some of the lists of the discriminatory, discriminatory subjects and conduct. Now let me turn to some wrongful reasons to deny care. And here we're going to look at three cases. The first case is found on page 93 of our materials called United States Forces the University Hospital. Now essentially. So what we want to take up three cases in these cases are cases involving situations where patients have been wrongly rejected from care. And essentially in the United in the first case a situation occurred in this case where. I'm a patient in this particular case, had multiple birth defects. Condition known as spinal bifida. Also it had microcephaly, small head, hydrocephalus, water on the brain, and had a very malformed brain stem. Upper extremity, spasticity, spasticity, etc., etc.. This this child was in very serious condition. And while this case is somewhat complicated, I'm going to let you read it. I just want to give you some highlights. The question raised in this case was, was there an unlawful denial of care of an infant with these multiple birth defects? In other words, did did did they refuse care of this child because this child had medical handicaps? The court concluded that in this case, the child had been treated appropriately. And they indicated that disability is relevant in deciding whether a person is a candidate for treatment. But here, under the facts of this case, this patient's disability was a that was a factor. But this patient was treated appropriately in the face of the presenting disabilities. So the first case, the United States versus University Hospital. Concluded that the Health and Human Services who had attempted to obtain medical records to evaluate whether or not the patient had been. The patient had been. That the patient had not been serviced in accordance with the Real Rehabilitation Act. The court concluded that the Rehabilitation Act, which is found in our materials, had not been violated by the hospital. The Rehabilitation Act has found a page 94, Section five of four of that act. No, it's basically says no. Otherwise qualified handicapped individual in the United States, as defined in Section seven or six of this title, shall solely by reason of this handicap, be excluded from participation in be denied the benefits of or are subjected to discrimination under any program or activity. Receiving Federal Financial Assistance. The Department of Health and Human Services maintained that this child was not provided that assistance in looking at the facts. The court said no, this child was not denied here, was not denied care. And because of anything that had to do with this patient's handicap, the appropriate care was rendered. So that is the first case on. Questions of whether or not appropriate care was rendered. The second case is an interesting case called Glanz versus Bernick, which is with page 99 of our materials. Let me give you just a brief summary of that case and tell you why that case is in our materials. This is a case involving a 1986 case started in 1986, decided by a federal court in 1991. This was a situation where a patient had to undergo some neurosurgery. Due to a perforation of his right ear. The doctor had suggested that he undergo surgery until the doctor learned. This patient was HIV positive in March of 1987. And so at that time, the doctor rescinded the offer to do the surgery. And as a result of this, the patient was forced to delay surgery. It caused him severe pain and discomfort. Patient had to go to another doctor and had surgery performed at a later date. He sued the original doctor, claiming he was denied treatment. And that he underwent emotional damage in pain and suffering due to the delay in receiving treatment. He requested damages and even punitive damages. Damages, punishing the doctor for his carelessness and refusing to treat. Patient even though he had. HIV infection. The doctor defended himself by saying that it is within a surgeon's rights to consider a patient's existing conditions and that. The doctor and that the patient was not, quote, otherwise qualified in that sense. In other words, the doctor feared that being an HIV positive patient. It's raised the threat of the increased threat of infection to the patient, and it also increased the risk to the doctor. The issue before the court was should medical professionals be given the right to defer cases concerning interests of public health? And the holding of the court was that Dr. Bernanke was not at fault due to the decision that the HIV diagnosis was made that made the patient, quote, not otherwise qualified. In other words, that this patient was not qualified for surgery because of a public health situation. So in this case, the court held the denial of medical care under the facts and circumstances was appropriate. The third case, Walker versus Pierce, is found on our materials. At page one or one. And in this case. A divorcee mother with three children expecting her fourth consulted a Dr. Pierce and presented and Dr. Pierce you'll be presented to this woman is sterilization policy that he had always held and followed where in those unable to financially support themselves must consent to sterilization following the birth of their third child. This was going to be their fourth child. And so he said to this woman. Got to be sterilized after the delivery of this child. She objected. But when he did not relent, she came back and consented to the sterilization. She delivered the fourth child. She signed two more consent forms for sterilization and was sterilized in April of 1972. She then filed suit against her doctor, claiming that she was she faced a violation of her civil rights. She said the doctor acted against the color of the law and that he prohibited a service afforded to her by a state function. The appellate court affirmed the verdict and stated that. The verdict in favor of the patient. Where in the doctor sterilized patients based upon race? The appellate court affirmed the verdict and payable the defendant, hospitals and agencies. In other words, it's at the appellate court level. They the trial court level, the doctor, the hospitals one the doctor one. At the appellate level, the doctor's one, the hospital's one, and the courts ruled as follows. The lower courts passed the verdict that all defendant parties were innocent for all actions except Dr. Pierce. He was assessed a five $5 worth of nominal damages. The appellate court upheld the verdicts, except overturned the $5 ruling against the doctor. And their reasoning was this. The court saw no force from the doctor for sterilization. He saw no reason why the doctor could not establish and pursue a policy he had publicly stated and consistently pursued. So the question was, was this patient just denied treatment and care? Or was this doctor forcing the way he was going to treat the patient? Only if she did certain things? The court said, No, no, no, the doctor has a right to set the terms. If she doesn't like it, she can go to someone else. But this was not considered, even though one could argue about the policy of this doctor. They said this was not a reason that the client, the plaintiff woman should prevail because because the doctor had imposed this requirement for sterilization, essentially saying the doctor can set the terms if the patient doesn't like it, she's free to go elsewhere. So those are the three cases that basically talk about the obligation of a situation where we look at wrongful reasons to deny care. And these are some examples of where the courts intervened and said these were not wrongful reasons. Now there are wrongful reasons to deny care, and they certainly would be those discriminations if you discriminate because of race, color, creed, religion, etc., etc.. That's discrimination, which is not accepted. And that would those would be reasons that you could not you could not fail to treat a patient. Question 4

What makes the physician liable for abandonment?

Question 5

Can physicians contract away their liability for future negligent care and treatment for patients?

Question 6

How effective are medical boards as enforcers of medical discipline and quality (how effective is their oversight of the medical profession)?

Question 7

What are a hospital's obligations under EMTALA?

Question 8

What is EMTALA and what is its purpose?

Question 9

Can hospitals refuse to accept patients;if so,under what circumstances?

Question 10

What is the duty to warn and how does it impact health care today?