No-Show On-Call Doctor Can’t Be Sued

Plaintiff received neck and spinal cord injuries in a motor vehicle accident.  He was taken to the local ER; the ER doctor thought he needed to be seen by a neurosurgeon.  The on-call neurosurgeon (Ebeling) said he was very tired and would not be coming to the hospital and recommended that Plaintiff be transferred to a trauma center.  Plaintiff was transferred and was determined to have developed C-7 paraplegia.

The ER doctor testified that Ebeling’s refusal to come in was the first time a doctor had refused to come to the ER because of fatigue. 

Plaintiff sued Ebeling (and others); Ebeling defended by saying that there was no physician-patient relationship between him and Plaintiff and that he was not negligent.

The Kansas Court of Appeals agreed and affirmed dismissal of the case.  Plaintiff first argued that by taking call Ebeling had assumed a duty under Section 324A of the Restatement (Second) of Torts.  The Court rejected this argument, saying that even if Section 324A was extended to impose a duty under the facts the uncontroverted evidence was that Ebeling performed as he was required to perform.  Why?  His on-call responsibilities did not require him to go to the hospital and treat a patient.

The Court also noted that Plaintiff "has not pointed to any regulation, law, or policy which would establish a "social consensus" in Kansas that on-call physicians must come to the hospital within a reasonable time after they are called. Moreover, [Plaintiff] has failed to point to any authority which would indicate that based on the public policy in Kansas, a duty should be imposed upon a physician who is on-call to come into the hospital and treat a patient. To extend such a requirement to an on-call physician would have a chilling effect on the profession. Physicians would not want to volunteer to receive calls from hospitals if a physician could be required to come into the hospital and treat a patient even though the physician did not feel competent to handle a particular case. "

The Court also held that a physician-patient relationship was not created by Ebeling’s conduct. The Court said that "Ebeling’s only opportunity to treat [Plaintiff] was during the two phone calls that he had with [the RE doctor]. Nevertheless, the undisputed evidence in this case showed that he declined to treat [Plaintiff] during both of these telephone calls. There was no evidence that Ebeling provided any advice concerning [Plaintiff’s] treatment and care. [Plaintiff ] has not met his burden to bring forth evidence which could show that Ebeling, either expressly or impliedly, consented to treat [Plaintiff].

The case is Seeber v. Ebeling, No. 94,666 (Kansas Ct. App. 9/1/2006).