Legal Standards

Applicable to Patient Care

SEC. 1 RESPONSIBILITY TO PROVIDE CARE

(a) The Physician-Patient Relationship

Before discussing the legal consequences which may result from the patient care activities of PHS personnel, it is necessary to examine the characteristics of the physician-patient relationship itself, since the legal responsibilities of a physician to his patient do not arise until a physician-patient relationship comes into existence. In this connection, a clear distinction must be drawn between private medical practice and the practice of medicine by Government physicians in Government medical facilities. The private physician is under no legal obligation to accept as patients all who apply to him for treatment. It is generally recognized that the physician-patient relationship is a consensual one, in the nature of a negotiated agreement between two parties having an interest in the same subject matter. The patient seeking medical treatment technically "offers" to engage the services of the physician, and the latter technically "accepts" the engagement, creating the consensual arrangement (or contract) mentioned above.

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Government medical practice presents an entirely different situation. Except for authorized emergency care to persons who are not otherwise entitled to such care,58 the typical Government patient is entitled by statute to receive his needed medical care and treatment

57 Stetler and Moritz: Doctor and Patient and the Law, 121 (C. V. Mosby Co., 4th ed., 1962).

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Sec. 322(d) of the PHS Act (42 U.S.C. 249 (d)) authorizes temporary emergency treatment and care in PHS facilities to persons not entitled to PHS care as statutory beneficiaries. Sec. 36.14 of PHS regulations (42 CFR 36.14) provides that persons so treated who are able to defray the cost of such treatment shall be charged therefor at rates established by the Bureau of the Budget for inpatient care, and by the Surgeon General for outpatient care.

without cost in a Government medical facility. For example, under the Public Health Service Act, there are a large number of beneficiary classes entitled to receive care and treatment in PHS facilities, and from the legal point of view, once the individual in need of treatment is admitted, the ordinary legal consequences of the physician-patient relationship become operative.59 The fact that the patient may be treated by any number of physicians while hospitalized in a PHS facility is of no particular significance from the standpoint of the Government's legal liability, for once the patient is admitted, the Government will be held liable under the FTCA for the negligent acts or omissions of any of its employees who treat the patient."

(b) Emergency Treatment-Good Samaritan Statutes

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While a physician may have an ethical obligation to render emergency care to someone in need of medical assistance, he is under no legal obligation to do so, and cannot be held liable for refusing to offer any assistance whatever.62 It is a general rule of law, however, that one who voluntarily offers emergency aid to a person unable to care for himself must exercise reasonable care under the circumstances of the situation, and his failure to exercise such reasonable care will render him liable for his negligent conduct.

In recognition of the growing reluctance of physicians to give

50 Part B.2 discusses the applicable legal requirements and the consequences of a breach thereof. One legal consequence which would not be applicable relates to the private physician's capacity to enter into a specific agreement with his patient to effect a cure. See, for example, Robins v. Finestone, 308 N.Y. 543, 127 N.E. 2d 330 (1955). A Government physician is not authorized to bind the Government by any contractual agreement of this type, and even if he could, his breach thereof would not support a claim in tort under the FTCA.

6o This does not, of course, preclude the possibility that the employee who is negligent may be sued and held personally liable, as discussed on pages 10-17, but as therein noted, the risk of being sued personally is a relatively remote one.

61 Sec. 5 of the AMA Principles of Medical Ethics (1960) reads in part: “A physician may choose whom he will serve. In an emergency, however, he should render service to the best of his ability. * * *". See also Minor, "The Moral Obligation as a Basis of Liability," 9 Va. L. Rev. 420 (1923).

62 Hurley v. Eddingfield, 156 Ind. 416, 59 N.E. 1058 (1901); O'Keefe v. William J. Barry Co., 311 Mass. 517, 42 N.E. 2d 267 (1942); see excellent Note, "Good Samaritans and Liability for Medical Malpractice," 64 Colum. L. Rev. 1301 (1964).

voluntary emergency care to injured persons, generally founded on their fear of exposure to lawsuits, the legislatures of a number of States have enacted so-called Good Samaritan statutes to encourage physicians to render such care without incurring any liability. For a listing of these States, see Appendix B. The Good Samaritan statutes vary considerably in scope, applicability, and coverage, but in general they make the physician immune from suit for any negligence in giving emergency care (usually limited to the scene of an accident) providing the physician's negligence was not of a willful or wanton nature. Some States have extended this protection to registered nurses as well.

PHS physicians and nurses should become generally familiar with the Good Samaritan laws of the State or States in which they have occasion to work or travel regularly. From the liability standpoint, it should be noted that the furnishing of voluntary emergency care to injured persons away from PHS facilities is not considered to be within the scope of the PHS employee's Government employment, and therefore not within the coverage of the FTCA, nor would it be within the protection of the doctrine of personal immunity for official acts performed within the scope of Government employment. The only protection available to the PHS employee, in the event he is sued for negligence, would be that afforded by a local Good Samaritan statute,** or his own malpractice insurance coverage.

SEC. 2 THE LEGAL STANDARDS OF CARE

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The law imposes the duty on every person to use "reasonable care" in his actions toward others, and this same fundamental standard applies to the conduct of physicians, dentists, nurses, pharmacists, and other professional medical personnel, with the modification

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See discussions in Part A.2(c) (Scope of employment) and Part A.3 (b) (Official immunity).

64 Under most Good Samaritan statutes, the volunteer physician (or nurse, in some States) is granted immunity from suit for acts amounting to malpractice, providing he or she acts in good faith, without thought of recompense, and is not guilty of gross negligence in giving the emergency care. The statutes are not uniform in scope or coverage, but generally apply to roadside or highway accidents. See, for example, Va. Code Ann. § 54-276.9 (Supp. 1964); Ga. Code Ann. § 84-930 (Supp. 1963); Md. Ann. Code, Art. 43, § 149A (Supp. 1964).

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that what constitutes "reasonable care" in the case of the with professional training and experience is always measured by what a reasonably prudent member of his profession would have done under the circumstances. Set forth below are the court-announced standards of conduct as applied to physicians, dentists, nurses, and pharmacists.

(a) The Physician's Legal Duties

The courts generally express the obligation of a physician in the following manner:

The physician is required to possess and to exercise that degree of knowledge, skill, care and judgment, which other physicians in the same or similar localities usually exercise under similar circumstances.65 It would serve no useful purpose to detail here all the possible ramifications of the quoted legal standard. In the final analysis, the physician's duty (or any alleged breach thereof) must always be measured in relation to the facts of the particular case. Certain general propositions may be stated, however, to give a broad idea of the nature of the physician's legal duty. The physician is not a guarantor of cure, nor an insurer of a good result.66 He is merely required to exercise that degree of care and skill commonly possessed by other reputable physicians in the same or a similar locality. If he holds himself out as being a specialist, he must meet the standards of skill and care exercised by others practicing that specialty. If he is aware that he lacks specific knowledge or competence in the treatment of a patient, the law requires that he call in a consultant or refer the patient to a specialist." Once he has

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undertaken the professional care of a patient, he must continue that

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Lane v. Calvert, 215 Md. 457, 138 A. 2d 902 (1958); see generally Smith, J., "Legal Responsibility for Medical Malpractice," J.A.M.A. 116: 2670 (June 14, 1941).

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Teig v. St. John's Hospital, 63 Wash. 2d 369, 387 P. 2d 527 (1963); Cervantes v. Forbis, 73 N.M. 445, 389 P. 2d 210 (1964).

67 Fields v. Rutledge, 284 S.W. 2d 659, 58 A.L.R. 2d 210 (Ky., 1955); Haggarty v. McCarthy, 344 Mass. 136, 181 N.E. 2d 562, 94 A.L.R. 2d 998 (1962).

68 Lewis v. Read, 80 N.J. Super. 148, 193 A. 2d 255 (1963).

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Rahn v. United States, 222 F. Supp. 775 (S.D. Ga., 1963); Tvedt v. Haugen, 70 N.D. 338, 294 N.W. 183 (1940).