Liability of Providers for Denial of Access to Medical Care
(an excerpt from an obscure textbook)
. . . [U]nder traditional common law principles there is no general duty to render assistance to
others, even in emergency situations. The “bystander” has no legally imposed obligation to act unless
he or she has some causal role in creating the circumstances that led to the need for assistance or
unless there is some special relationship between the bystander and the person in need. The origins of
this “no duty” rule are not particularly clear, nor is the underlying logic all that persuasive.
Nonetheless, the principle has persevered in the American common law, although its harsher
implications frequently have been avoided, sometimes by judicial or legislative modification, other
times by the willingness of the courts to distinguish various factual settings from the “innocent
bystander” paradigm.
Conversely, those same common law principles generally impose an obligation of reasonable
care on the person who created the risk or who has a recognized obligation to the injured party.
Moreover, once action is initiated, even by a bystander with no duty to do so, the common law
recognizes an obligation to exercise reasonable care in that undertaking. Thus, even a wholly
gratuitous undertaking can create an obligation to continue to provide assistance and to do so
reasonably.
From these broadly stated principles of common law negligence has derived a patchwork of
decisions that define the obligation of providers in accepting patients, providing services in
emergencies, and terminating or discharging patients. Notwithstanding the important common law and
statutory exceptions . . . the traditional “no duty” rule is often cited as insulating providers from
liability for refusing to render medical assistance to any member of the public until the provider
undertakes to provide treatment or unless what the law regards as a patient-provider relationship has
been established previously. Once a duty is recognized, however, the provider must act as a
“reasonable provider under the circumstances” and comply with the requisite standard of conduct.
[T]his has important implications for the quality of the care rendered; but the common law duty of a
“reasonable provider” also has important implications regarding decisions to transfer, discharge, or
continue to treat a patient.
For various reasons, there have been surprisingly few decisions interpreting the specific
requirements of this aspect of a provider’s obligations. Most courts that have addressed the issue have
held that once a physician-patient relationship is established the physician cannot unilaterally abandon
the patient until the physician’s services are no longer needed or until the patient initiates a
termination of the relationship. Other courts have implied that this continuing obligation should be
defined in terms of a specific spell of illness or period of treatment and that the physician-patient
relationship may be terminated with appropriate advance notice to enable the patient to find another
physician. Most courts also have indicated that a physician’s duty during a period of treatment
continues even after the referral of the patient to a specialist or other physician, at least where the
referring physician retains (or should have retained) primary responsibility for the patient’s care. Thus,
a physician’s duty, once established, can be quite extensive.
Even fewer courts have examined the separate duty of a hospital to continue to provide
treatment to its patients apart from that of the treating physician. But these cases have indicated that
the duty of a hospital, like that of the physician, generally is measured by the continuing need of the
patient and have at least implied that the hospital’s duty, once established, is essentially coexistent
with those needs.
Some courts have indicated, however, that because the basic provider-patient relationship is at
least partially contractual, the duty of continuing care and the requisite standard of conduct that it
requires of the provider can be modified or limited by the terms of the original agreement. For
example, a Texas court ruled that a physician in a small obstetrics and gynecology clinic could limit -prospectively -- his services to normal delivery and refuse to perform a Caesarean section if his patient
had been given sufficient notice and explanation of this condition at the time that treatment was
initiated. In a case that stirred no little controversy, one federal court (interpreting state law) held that
a physician could even condition his care (again, prospectively) on the patient’s (prior) agreement to
agree with the physician’s policy of sterilizing all Medicaid patients following their third pregnancy.
Only a very few jurisdictions have considered the circumstances under which a provider,
subsequent to the initiation of treatment, may give notice and terminate the relationship; these cases
have indicated both that the provider must have reasonable justification for doing so and that the
provider must give the patient sufficient opportunity to secure an alternative source of care. Thus -- in
virtually the only reported American decision that has given judicial approval to an outright
abandonment of a patient in a suit against both a physician and a hospital -- it was clear that the
behavior of the patient made a continuation of the relationship untenable and that the patient had
opportunities for treatment elsewhere. In a similar case -- where the physician believed that the patient
was only “sick in the head” -- the court nonetheless ruled that this was insufficient justification and
that the physician’s termination of treatment was in violation of the physician’s continuing duty.
Significantly, several courts have ruled that financial considerations, such as failure of the patient to
pay an overdue bill (on a previous illness), are not a sufficient basis for the termination of treatment.
Equally important, those courts that have addressed the issue have agreed that any notice of
termination must give the patient adequate opportunity to find alternative sources of care. The obvious
question -- whether the adequacy of that opportunity is based on the actual existence of alternatives or
simply an opportunity to inquire about alternatives -- has not been addressed directly in any appellate
case. The paucity of the case law on the issue of a provider’s discretion to terminate treatment makes
it particularly difficult to “read” the law in this regard or predict future trends. A number of
commentators have argued that a provider cannot terminate treatment or withdraw from a patientprovider relationship without somehow having arranged for an alternative provider. But the case law
hardly confirms that view; in fact, in most jurisdictions there is no case law at all, one way or the
other. On the other hand, given the realities of modern health care and, particularly, the pressures on
providers to contain costs and limit utilization, it would appear inevitable that the limits on a
provider’s duty to continue care will be more frequently litigated in the near future.
Hospitals and the “No Duty” Rule
At least in terms of the number of appellate decisions and, presumably, the number of incidents that
have given rise to lawsuits, a far more important problem involves not the decision to terminate
ongoing care and treatment, but decisions to deny treatment where the patient-provider relationship
has not been clearly established, especially those that arise in an institutional setting. The prototypical
example involves the accident victim or other person in need of immediate attention who arrives at a
hospital emergency room, and the institution questions his or her ability to pay for care. Does the
hospital have an obligation to provide immediate medical attention and to stabilize the patient? Can it
transfer or reject the patient if further hospitalization is needed?
Some courts have at least implied that the common law “no duty” rule could be applied to
even the emergency room situation despite the harsh result. In a decision frequently cited but
infrequently followed, the Alabama Supreme Court ruled in Birmingham Baptist Hospital v. Crews,
229 Ala. 398, 157 So. 224 (1934), that a hospital was not liable for refusing to treat a patient who
came to its emergency room with a contagious disease because the hospital had “no duty to accept any
patient not desired by it.” Subsequently, some courts in other jurisdictions have referred to this
decision with apparent approval, although almost all have found some way to distinguish Crews on
the facts (in some cases rather eagerly). For example, where a patient receives even minimal
examination (as the patient in the original Crews case also did), several courts have characterized that
examination as a voluntary undertaking and consequently have imposed a duty of reasonable care on
the hospital.
More important, a number of courts have excepted the “no duty” rule in the emergency
setting. Wilmington General Hospital v. Manlove, 54 Del. 15, 174 A.2d 135 (1961), is usually cited as
the first explicit articulation of this exception to the common-law “no duty” rule. In Manlove, a fouryear-old child suffering from high fever and diarrhea was brought by his parents to the emergency
room at a private hospital after he failed to respond to medication prescribed two days earlier by the
family’s physician. The nurse on duty at the emergency room denied the child any examination or
treatment by the hospital’s staff on the grounds that the child was already under a physician’s care.
The child died the next day of bronchial pneumonia. The Delaware Supreme Court rejected the
hospital’s argument that it had no duty to provide treatment even in an emergency unless it undertook
to do so. Although relying heavily on common law principles, the Delaware court held that the “no
duty” rule was inapplicable to a hospital that maintained an emergency room generally available to the
public:
[T]he maintenance of such a ward to render first-aid to injured persons has become a well-established
adjunct to the main business of a hospital. If a person, seriously hurt, applies for such aid at an emergency
ward, relying on the established custom to render it, is it still the right of the hospital to turn him away
without any reason? In such a case, it seems to us, such a refusal might well result in worsening the
condition of the injured person because of the time lost in a useless attempt to obtain medical aid.
Such a set of circumstances is analogous to the case of the negligent termination of gratuitous
services, which creates a tort liability. (citation omitted)
54 Del. at 23; 174 A.2d at 139.
As with many ground-breaking decisions, the full implications of this decision were not
initially clear. Among other things, in its articulation of the applicable standard of conduct, the
Manlove court indicated that the exception to the “no duty” rule applied only where there was an
“unmistakable emergency,” implying that the exception would apply only in the most extreme
circumstances. Subsequent courts, however, have read Manlove more broadly. Many -- though not all
-- other jurisdictions have followed Delaware’s lead and recognized that a hospital with an emergency
room must provide emergency care at least where that care is viewed as generally available. As the
Wisconsin Supreme Court explained in 1973 in a factual setting similar to Manlove but in which,
significantly, the denial was based on an inability to pay:
We think . . . that today, without [sic] our society’s emphasis upon a concern for the health of its citizens,
private hospitals with emergency wards and facilities for emergency services have a duty to admit those in
need of aid. It would shock the public conscience if a person in need of medical emergency aid would be
turned down at the door of a hospital having emergency service because that person could not at that
moment assure payment of the service. . . .
Mercy Medical Center v. Winnebago County, 58 Wis. 2d 206, 260, 268 N.W.2d 198, 201 (1973).
In other jurisdictions, the courts have found statutory bases for imposing obligations on
hospital emergency rooms. For example, in Arizona the courts have held that the state licensing law
requiring hospitals to maintain emergency rooms implies that the state recognizes a mandatory duty
not to “deny emergency care to any patient without cause.” In other jurisdictions, similar obligations
also have been affirmatively and explicitly required by legislation. Indeed, given the various statutory
and common law exceptions to the “no duty” rule and, in particular, the federal statute discussed
below, the common law “no duty” rule may have little meaning in situations involving initial
admission to emergency rooms, even in jurisdictions that still may be inclined to follow the reasoning
of Crews.
What is more difficult to assess are the limits on that exception and their implications for the
further treatment of the patient after first aid or initial treatment is rendered in the emergency room.
Can the hospital simply refuse to admit the patient or to provide further treatment? Under such
circumstances, it is even difficult to discern whether the issue properly should be framed as a
hospital’s refusal to accept the patient, suggesting that the critical legal question is whether the
hospital has a duty to do so, or as termination of treatment, suggesting that the critical question is
whether the hospital has complied with its applicable standard of conduct -- that is, is it acting as a
“reasonable provider”? The courts have not been particularly consistent either in their characterization
of what could be regarded as essentially similar factual circumstances or in their interpretation of the
applicable common-law principles. If there is a discernible trend, it would appear that most courts tend
to evaluate the hospital’s actions following the rendering of emergency care in terms of the
“reasonableness” of those actions. And if this is a correct reading of the common law, then it would
appear that Manlove and its progeny, in addition to opening the door to the emergency room, have
opened the door to the hospital’s inpatient services as well. That is to say, virtually every modern
court has considered a post-emergency care decision as a decision of whether to terminate treatment
that already has been initiated (as opposed to treating it as a decision to begin treatment or to accept a
patient); and these courts have followed the traditional rule that the duty of the provider is measured
primarily by the medical needs of the patient. Thus, for example, where the patient is transferred to
another institution following emergency treatment, courts typically frame the issue in terms of the
reasonableness of the decision -- but few courts have analyzed such decisions in terms of whether
there was a duty to do so.
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