Public Health Law Map - Beta 5 - Medical and Public Health Law Site

should make sure that he or she can ensure that the patient will not be injured by this
action.
Inadvertent abandonment usually occurs through misunderstandings about backup
coverage when the physician is unavailable. Although a jury will be much more
sympathetic if the physician was unavailable because of a medical emergency, as
opposed to a social event, the reason makes little difference to the patient in need of
care. Many physicians would never go to a party without arranging to receive their
calls or providing someone else to cover emergencies, but they may become involved
in lengthy hospital procedures that render them unavailable without arranging any
coverage.
Failure of the system for backup coverage can result in constructive abandonment. A
physician who is part of a group that shares calls on a set schedule can get in trouble
if the person on call does not show up. The physician’s duty is to his or her patient. If
the patient is injured because of a problem with the call schedule, it is the patient’s
original physician, not the on-call physician, who is ultimately liable. It is important
to verify call arrangements each time, rather than relying on habit or custom.
Patients may be abandoned through failures in the scheduling system. The
appointment clerk may functionally abandon a patient by refusing to let a patient talk
to the medical personnel, by scheduling an appointment too far in the future, or by
filing away the chart of a patient who failed to keep an important follow-up
appointment.
2. Patient-Initiated Terminations
In the simplest scenario, the patient voluntarily terminates the physician–patient
relationship and seeks care from another physician. Unfortunately, patients
sometimes stop coming before they are fully recovered from the acute condition that
brought them to the physician. When this happens, the physician must make some
effort to determine whether the patient is knowingly forgoing further care, has found
another physician, or is staying away out of ignorance or a misunderstanding of the
physician’s instructions. As discussed later under “documentation,” the process of
investigating the patient’s disappearance also generates the necessary record that the
physician has discharged the duty to the patient.
An adult patient has the right to refuse to follow the physician’s advice. If this person
understands the need for further treatment and the consequences of not having that
treatment, the physician has no legal liability for the patient’s subsequent course.
(The physician’s duty is different for minor and incompetent patients.) The problem
arises in establishing what the patient was told. A jury will presume that a severely
injured patient would not have refused to follow the physician’s instructions if he or
she had understood the consequences of the refusal. An example of this problem
arose when a woman died of cervical cancer and her family sued the physician for
failure to diagnose. [Truman v. Thomas, 611 P.2d 902 (Cal. 1980).] The physician
argued that she had refused a Pap smear, and this prevented him from making a
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