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Contractual and Statutory Duties to Treat

Hospitals with emergency facilities must provide treatment to all persons in need of lifesaving care, including delivering the baby of a woman in labor. Violating this duty can subject the hospital and the physician to a substantial fine and extensive civil liability. (See Chapter 32.) Most hospital bylaws require medical staff members to assist in the delivery of emergency care if needed or to participate in a specialty call system. This is a contractual agreement between the physician and the hospital. In return for staff privileges, the physician gives up the right to refuse to treat persons that the hospital requests him or her to treat. If a physician refuses to treat a patient when requested under this agreement, the hospital has the contractual right to cancel the physician's medical staff privileges. The patient who is refused treatment may sue the physician and the hospital if he or she is injured by the refusal.

With the recent growth of HMOs and similar other arrangements, many physicians have contracted with insurance carriers to treat any patient insured by that carrier. This obviates the physician's right to refuse to treat such insured patients. A person who is injured because a physician wrongfully refuses to accept him or her as a patient may sue the physician based on this contractual agreement with the insurance company. These contractual and statutory requirements can be understood as creating a physician-patient relationship with a class of persons rather than with an individual. When a member of this class requests treatment, the physician has the responsibility to treat that person as an accepted patient.

While patients traditionally had a free choice of physicians, it is becoming common for insurance companies to limit this choice in an attempt to control the cost of medical care. These limitations change the physician-patient relationship. From the patient's perspective, these limitations make the physician an "insurance company" physician, as opposed to the patient's physician. This difference in the perception of the physician's loyalties is most acute in health maintenance organizations (HMOs).

Closed-panel HMOs are the most restrictive type of health insurance scheme. The degree of restriction on the patient's choice of physicians varies among organizations, but in general, HMO patients have a physician assigned to care for them. The physicians have even less choice of which patients they may treat. In this situation, the traditional assumption of a freely determined physician-patient relationship is inapplicable.

In preferred provider organizations (PPOs) and other contractual arrangements in which the patients have a smaller co-payment if they are treated by certain physicians, the choice of physicians is limited, but unless the list is very short, the patients still perceive that they are choosing the physician. The physicians' position is more ambiguous. They may retain the right to refuse to treat patients of their choosing, but it is more usual that the PPO contract requires them to treat any PPO patient who presents in the office, subject to limitations of scheduling and specialty practice.

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