Contractual and Statutory Duties to Treat
Under the traditional common law, physicians and patients entered into voluntary contracts for services. Patients could choose their own physicians, and physicians were free to refuse to treat patients for any reason they chose. This right to refuse to treat was substantially limited by the Civil Rights laws in the 1960s. Medical care practitioners and institutions could no longer refuse to treat based on race, religion, or ethnicity. Subsequent to the Civil Rights Act, the government further limited physicians’ right to refuse to treat in the Americans with Disabilities Act (ADA) and the Emergency Medical Treatment and Active Labor Act (EMTALA). However, the greatest change in the freedom of physicians and patients to contract for medical care has been brought about by private health plans, not statutes. As private insurance plans have moved to the MCO model, they have limited both the physician’s right to refuse to treat and the patient’s right to choose his or her physician.