Millard v. Corrado

Millard
v. Corrado,
No. ED75420 (Mo. Ct. App. Dec. 14, 1999)

Defendant
physician was scheduled to be the ‘on call’ general surgeon at Audrain Medical
Center (AMC) on November 5, 1994. Defendant arranged for an orthopedic surgeon,
to cover for him so that he could attend a meeting out of town. The orthopedic
surgeon did not have privileges at AMC to perform general surgery, and defendant
never notified anyone at AMC that he was going out of town and arranging this
coverage.

That same day,
plaintiff was involved in a serious car accident in
which she suffered severe internal injuries. She was
taken by ambulance to AMC. Defendant was paged twice
after plaintiff arrived at the hospital and did not
respond. Approximately one hour after she arrived at AMC,
the orthopedic surgeon and another physician evaluated
plaintiff and concluded that she needed immediate surgery
which they were not qualified to provide. While
plaintiff was still at AMC, defendant responded to the
page and concurred with the other physicians that the
only option was to transfer plaintiff. Four hours
after the accident, plaintiff was transferred to
Missouri Medical Center where she underwent emergency
surgery.

Plaintiff  sued defendant for malpractice.
The trial court granted summary judgment to defendant, ruling that plaintiff failed
to establish a physician-patient relationship which is a necessary component of
a malpractice claim.

The Missouri Court of Appeals
reversed. The appeals court recognized that in most cases of medical negligence,
the physician’s duty is derived from the physician-patient relationship, But
the court ruled that a duty may also exist when public policy favors the recognition
of a duty or when harm is particularly foreseeable. The court found both elements
present in this case. Public policy, as articulated in a regulation adopted
by the Missouri General Assembly in 1996 that requires emergency room physicians
to arrive at the hospital within 30 minutes, favored imposing such a duty on
on-call physicians. Likewise, the court held that the risk of harm that plaintiff
was exposed to due to defendant’s failure to notify AMC that he would be unavailable
was reasonably foreseeable. He knew that there would not be a general surgeon
on call in his absence, and his attempt to delegate his on call responsibilities
to an orthopedic surgeon was ineffective. As a result of this action, AMC did
not warn ambulance drivers that it did not have a general surgeon available,
time was wasted in attempting to contact defendant, and plaintiff’s medical
treatment was delayed. "Under these circumstances," said the court,
"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
[plaintiff’s]."