Read:

1. The story of Christopher Sercye

2. Baylor Proceedings on EMTALA

3.More on EMTALA and the 250 yard rule that followed Sercye

4. Read Millard v. Corrado

A note before reading Millard v. Corrado. This case preceded EMTALA. As a result the federal law was not applied by the court. I have prepared a short glossary for the case designed to help you with some of the legal terms. The decision which is reprinted below is from the Missouri Court of Appeals. The Court of Appeals was asked to review the decision of a trial court. The trial court issued a summary judgment in favor of Dr. Corrado. That decision by the trial court concluded that under the law of Missouri a malpractice case against a doctor could not move forward to trial unless there had been there had been a doctor/patient relationship.

GLOSSARY for Millard v. Corrado and useful for assignment four In Re Mattie Brown

Summary judgment—This is a legal short cut that allows a judge to determine a winner in a case without the need for a trial. It is used in cases where the facts are not in dispute. In this case the trial court ruled that even if the facts were as the plaintiff claimed there was not a legal basis for the claim made. For that reason, the trial court ruled in favor of the court. What appears below is the decision of the court of appeals who considered the appropriateness of the trial courts ruling.

Amended petition—In Missouri the suit filed by the plaintiff is called a petition. In other states it is called the complaint. It may be amended after it is filed and before the trial.

Amici—plural for amicus curiae, a cute Latin phrase that literally means friend of the court; In some cases people or organizations other than the parties have an interest in the case. In this case the state medical association was interested in the outcome of the case and they filed an amicus brief. The friend of the court brief is designed to help the court know and understand what people or organizations other than the parties think about the policy that the court is likely to review in the case.

Remanded- – -One of the options for an appellate court is to send a case

Back to the trial court with instructions to do it over in a way consistent

With the decision made by the court of appeals.

WILLIAM MILLARD and MARJORIE MILLARD, Plaintiffs/Appellants, v. JOSEPH A. CORRADO, M.D., Defendant/Respondent.

ED75420

COURT OF APPEALS OF MISSOURI, EASTERN DISTRICT, DIVISION TWO

14 S.W.3d 42; 1999 Mo. App

December 14, 1999, Filed

OPINION BY: James R. Dowd

OPINION

Plaintiffs William and Marjorie Millard appeal from the trial court’s grant of summary judgment in favor of defendant Dr. Joseph Corrado in their negligence action. Plaintiffs claim the trial court erred in concluding that plaintiffs could not maintain a general negligence claim against Dr. Corrado absent a physician-patient relationship. We reverse and remand.

FACTS

Dr. Joseph Corrado is a general surgeon with active staff privileges at Audrain Medical Center (“AMC”) in Mexico, Missouri. On the morning of November 5, 1994, Dr. Corrado was preparing to attend a meeting of the Missouri chapter of the American College of Surgeons in Columbia, Missouri. Several days earlier, Dr. Corrado had filled out the “Surgeon On Call Schedule” for November. Although aware of the upcoming American College of Surgeons meeting, Dr. Corrado scheduled himself as “on call” for that day, presumably because the other two general surgeons on AMC’s staff would be on vacation that day. Before leaving AMC for his meeting, Dr. Corrado asked Dr. Ben Jolly if he would cover for Dr. Corrado’s calls during the four-hour period he would be out of town. Dr. Jolly agreed to “fill in” for Dr. Corrado even though his training was in orthopedic surgery and he did not have privileges to perform general surgery. Dr. Corrado then left the hospital and drove to Columbia. Dr. Corrado notified no one else at AMC that he would be out of town and would therefore be unable to provide hands-on care to emergency room patients requiring a general surgeon.

Later that morning, Marjorie Millard was involved in an automobile accident in Callaway County, Missouri, near the intersection of Highway 54 and Interstate 70. Mrs. Millard suffered serious trauma, including broken ribs, a ruptured diaphragm, and injuries to her renal vein and artery and her adrenal artery. These injuries produced severe internal bleeding, and she quickly developed hypovolemic shock. At the time of the accident, Mrs. Millard was sixty-three years old.

The accident occurred approximately fourteen miles from Audrain Medical Center and twenty-five miles from the University of Missouri Medical Center located in Columbia, Missouri. A Callaway County ambulance arrived at the scene at 10:28 a.m. When the EMTs commenced treatment, Mrs. Millard had no measurable blood pressure or radial pulse. Her skin was pale, cold and moist. At the time of the accident, AMC held itself out as maintaining a twenty-four hour emergency room with an emergency physician “in house” and a general surgeon “on call” and with equipment to handle surgical trauma patients on an emergency basis. The EMTs elected to transport Mrs. Millard to AMC based on its proximity to the accident and on the belief that AMC operated a twenty-four hour emergency department and therefore would have a general surgeon “on call.” The ambulance left the accident scene at 10:49 a.m.. The EMTs radioed AMC’s emergency department that they would be arriving with a “Class 1” patient–a patient in a critical or life-threatening condition–who was involved in an automobile accident. AMC did not respond to this message.

The ambulance arrived at AMC at 11:07 a.m. where Mrs. Millard received the following treatment: IV fluids were administered and a chest x-ray was done which indicated a reduced lung volume and an increased density of the left hemithorax. This was apparently caused by layering fluid collection. At 11:45 a.m., EMT Gregory Weaver paged Dr. Corrado because he was the general surgeon listed on the call roster, but the page went unanswered. Nine minutes later, Dr. Steve Taylor, the emergency room physician, examined Mrs. Millard and diagnosed her as having an intra-abdominal bleed. Dr. Corrado was paged a second time at 11:55 a.m. Again, Dr. Corrado did not respond.

At approximately 12:00 p.m., AMC personnel attempted to arrange for air transport of Mrs. Millard to the University of Missouri Medical Center, but it was soon learned that the EMS helicopter was grounded due to inclement weather. At 12:08 p.m., Dr. Thomas Welsh and Dr. Jolly entered the emergency department at AMC after completing their rounds. Dr. Welsh and Dr. Jolly evaluated Mrs. Millard and concurred with Dr. Taylor’s diagnosis that Mrs. Millard was bleeding internally and needed surgery. Dr. Welsh and Dr. Jolly were not qualified as general surgeons and could not perform this type of surgery. In addition, neither Dr. Welsh or Dr. Jolly had hospital privileges which would permit them to perform this type of surgery.

At 12:23 p.m., Dr. Corrado called the emergency department in response to the pages and spoke with Dr. Welsh. The patient history report prepared by Dr. Welsh provides the following relevant account of the conversation:

We did contact Dr. Corrado by phone. The situation was discussed

and the options addressed. It was felt that in view of the extent and

nature of the patients injury, (Mrs. Millard) would be best served by

transfer to the University of Missouri Medical Center, where a trauma

team was available. It was not felt to be prudent to attempt to care for

her at Audrain Medical Center.

Dr. Corrado testified that he was told that AMC had a patient with some intra-abdominal injuries and that the patient was going to be transferred to the University of Missouri Medical Center. After the conversation, Dr. Taylor arranged for Mrs. Millard to be transferred to the University of Missouri Medical Center where a general surgeon would be available to care for her. Her ambulance arrived at the University of Missouri Medical Center at 1:45 p.m. Dr. Roger Huckfeldt, a general surgeon on staff at the University of Missouri Medical Center, performed emergency surgery on Mrs. Millard at 2:15 p.m., some four hours after the accident.

Plaintiffs brought suit against Dr. Corrado alleging negligence and seeking damages for injuries suffered by Mrs. Millard, including the loss of her left kidney, gallbladder, colon and part of her small intestine. . . . The Third Amended Petition alleges that as a direct and proximate result of the delay in treatment caused by Dr. Corrado’s absence, Mrs. Millard suffered aggravation of the injuries she sustained in the accident and additional serious injuries. Dr. Corrado filed a Motion for Summary Judgment in which he argued that he was entitled to judgment as a matter of law because plaintiffs failed to establish a physician-patient relationship, a necessary component of a medical negligence claim. The trial court granted the motion and entered judgment in favor of Dr. Corrado. Plaintiffs appeal from the judgment.

bleeding, and she quickly developed hypovolemic shock. At the time of the accident, Mrs. Millard was sixty-three years old.

We did contact Dr. Corrado by phone. The situation was discussed

and the options addressed. It was felt that in view of the extent and

nature of the patients injury, (Mrs. Millard) would be best served by

transfer to the University of Missouri Medical Center, where a trauma

team was available. It was not felt to be prudent to attempt to care for

her at Audrain Medical Center.

[HN4] When reviewing a grant of summary judgment, we view the evidence in the light most favorable to the party against whom judgment was entered. Id. at 382. Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion and the non-movant is accorded the benefit of all reasonable inferences from the record. Id.

. . . .

I. General Negligence

Plaintiffs claim the trial court erred in finding that Dr. Corrado could not be held liable for general negligence because he owed no duty of care to Mrs. Millard absent a physician-patient relationship. The trial court concluded that Mrs. Millard could not submit a claim against Dr. Corrado for general negligence because “the specific acts and omissions alleged by plaintiff on the part of Carrado [sic] all necessarily involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons.”

[HN5] In most cases of medical negligence or malpractice a physician’s duty to a patient is derived from the physician-patient relationship. Richardson v. Rohrbaugh, 857 S.W.2d 415, 417-18 (Mo.App. E.D.1993). However, when the physician’s allegedly negligent acts or omissions do not involve a matter of medical science, a duty may also exist when public policy favors the recognition of a duty or when the harm is particularly foreseeable.

A. Public Policy Considerations

In determining whether public policy supports the recognition of a duty in this case, we are guided by Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 432 (Mo. banc 1985). In Hoover’s Dairy, the Missouri Supreme Court articulated [HN6] several factors that courts should consider in deciding whether to recognize a legal duty based on public policy. These factors include: (1) the social consensus that the interest is worth protecting, (2) the foreseeability of harm and the degree of certainty that the protected person suffered [**11] the injury, (3) the moral blame society attaches to the conduct, (4) the prevention of future harm, (5) the consideration of cost and ability to spread the risk of loss, and (6) the economic burden upon the actor and the community. Id.

In this case we conclude that by application of the Hoover’s Dairy factors, Dr. Corrado owed a duty of care to Mrs. Millard. cident. . . . . (T)he record shows that at the time of the accident, AMC expected “on call” physicians to respond to calls within thirty minutes. It was also reasonably foreseeable that AMC would be presented with a patient requiring the care of a general surgeon during Dr. Corrado’s absence.

[Imposing a duty on “on call” physicians to notify appropriate hospital personnel of their unavailability does not place an unreasonable burden on the medical profession. Here, a mere phone call would have significantly reduced the four-hour period between the accident and Mrs. Millard’s life-saving surgery. Whatever slight inconvenience may be associated with notifying the hospital of the on-call physician’s availability is trivial when compared with the substantial risk to emergency patients absent any notice requirement. Finally, if “on call” physicians have a duty to give notice when they cannot fulfill their “on call” responsibilities, the chances of similar incidents occurring in the future will be reduced.

B. Foreseeability of HarmHN8] If the harm is particularly foreseeable, a duty will be recognized. [HN9] The touchstone for the creation of a duty is foreseeability. Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 62 (Mo. banc 1988). [HN10] A duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury. Id. If, under the circumstances, a reasonably prudent person would have anticipated danger and provided against it, courts will recognize a legal duty to prevent harm. Geiger v. Bowersox, 974 S.W.2d 513, 516 (Mo.App. E.D.1998).

The risk of harm to which Mrs. Millard was exposed due to Dr. Corrado’s failure to notify AMC of his unavailability was reasonably foreseeable. When Dr. Corrado decided to attend the American College of Surgeons’ meeting, he knew AMC would have no general surgeon “on call” during his absence. Dr. Corrado’s attempt to delegate his “on call” responsibilities to Dr. Jolly, an orthopedist, was conclusively ineffective because AMC had not granted Dr. Jolly privileges to perform general surgery. According to Dr. Jolly’s testimony, he would have [**14] to “send” any patients needing the care of a general surgeon to another hospital. At the very least, Dr. Corrado’s failure to notify the hospital staff of his unavailability created a false security that a general surgeon would be available to treat emergency patients requiring a general surgeon within a reasonable time at AMC. As a result of Dr. Corrado’s failure to notify AMC of his absence, AMC did not radio the ambulance that it did not have a general surgeon available and valuable time was lost attempting to contact Dr. Corrado, all of which significantly delayed Mrs. Millard’s receiving the care of a general surgeon. Under these circumstances, it is apparent a reasonably prudent person should have foreseen that such conduct would create a substantial risk of harm to emergency room patients like Mrs. Millard.

C. Application of These Principles

Applying these principles to the present case, we hold that the public policy of Missouri and the foreseeability of harm to patients in the position of Mrs. Millard support the recognition of a duty flowing from Dr. Corrado to Mrs. Millard. Accordingly, we hold that [HN11] “on call” physicians owe a duty to reasonably foreseeable emergency [**15] patients to provide reasonable notice to appropriate hospital personnel when they will be unavailable to respond to calls. This duty exists independently of any duties flowing from a physician-patient relationship. Physicians who cannot fulfill their “on call” responsibilities must provide notice as soon as practicable once they learn of circumstances that will render them unavailable.

In reaching our conclusion, we are mindful of concerns raised by Dr. Corrado and the amici, in particular the fear that recognizing such a duty will prompt fewer physicians to accept “on call” assignments. This fear, however, is unwarranted. Unless obligated by law or contract, physicians are not required to accept “on call” assignments, and our holding does not alter this principle. While emergency patients may expect that a qualified physician will care for them, this expectation alone does not create a duty on the part of an identifiable physician. The duty is created by the physician who agrees to be available without reservation to treat emergency patients. We are aware of no public interest that is furthered by permitting “on call” physicians to leave town without providing adequate notice [**16] that they will be unable to respond to calls. In short, the duty we establish in this case will not have a detrimental impact on the ability of hospitals to attract physicians to accept “on call” assignments. . . . .

CONCLUSION

For the reasons stated, the trial court erred in concluding that: 1) plaintiffs failed to state a general negligence claim against Dr. Corrado; . . . .The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

James R. Dowd, Presiding Judge

Lawrence G. Crahan, J., Concurs in Result in Separate Opinion.

Richard B. Teitelman, J., Concurs.

ASSIGNMENT FOR LESSON ONE, answer both part A and part B.

Assignment part A

What is the purpose of EMTALA?

Why was Christopher Sercye not covered by EMTALA as the law existed in 1998?

Assignment part B

In Millard v. Corrado What was the plaintiffs claim?

What was the doctors defense?

Did the Court of Appeals buy the defense?

If you were setting the rules for society would you side with the patients view or with the view of the doctor in this case?