Wisconsin doctor did not return a call from a patient who later died, is this medical malpractice?

Medical malpractice complaints emerged against Milwaukee doctor Scott Kamelle last month when his patient passed away after allegedly paging the doctor with no response.

A connection between the missed call and the patient’s death has not been confirmed, but the husband expressed to the Wisconsin Department of Safety and Professional Services that his wife could have lived longer had Kamelle responded to the page, reported the Wisconsin Watch.

According to Wisconsin Watch, Kamelle didn't pick up the phone because he didn't have cell service.

While there appear to be confounding factors impacting Kamelle’s handling of his patient—Kamelle had been under scrutiny for other misdemeanors like allegedly performing unnecessary surgeries—the scenario presents a question of what legal and ethical considerations doctors need to keep in mind before disconnecting from their mobiles.

To what extent are doctors liable for not picking up the phone? And how can they ensure they are following the law and keeping patients safe?

Unfortunately, the answer isn’t as clear as a dial tone. Here’s what some medical malpractice lawyers had to say.

Is refusing a phone call medical malpractice?

According to David Clark, a partner at The Clark Law Office focused on medical malpractice, doctors who refuse to take phone calls from patients may be vulnerable to medical malpractice lawsuits.

“Responding to calls is not optional for doctors, especially for on-call physicians,” says Clark. “If they don't perform their obligations, the physician may be fined by the federal government, lose their hospital privileges, or be sued for malpractice.”

The difference between may be and will be is influenced by a variety of factors, including:

• Whether or not the patient was experiencing a life-threatening episode

• Whether or not the missed call was evaluated in a reasonable period of time.

• Whether or not the missed call was intercepted by another medical provider or answering machine.

• Whether or not the missed call resulted in direct harm, injury, illness, or death to a patient.

“If a doctor's failure to answer a phone call directly causes harm to the patient, the doctor could potentially be held liable for medical malpractice,” says Min Hwan Ahn, Esq, an immigration lawyer and founder of EZ485 with experience in managing medical malpractice. “Picking up phone calls from patients in critical situations is not only essential from an ethical standpoint but also crucial in avoiding potential legal repercussions.”

Assessing medical malpractice in court

A doctor can be found guilty of malpractice if a court decides the doctor’s actions go against the standard of care. The standard of care refers to what other doctors would do in the same position (if, assumably, following the law). In a trial, both the plaintiff and defendant can appoint a doctor witness to represent their view of the standard of care, to be assessed by the jury.

Most states view the standard of care as a national benchmark and allow plaintiffs and defendants to bring doctors from all over the country to the stand. But some states, like Virginia, only allow for doctors from their home state.^[]

A case of medical phone call misconduct may lend itself more naturally to the reasonableness standard, as there is no hard and fast rule for how often doctors must answer their phones.

“The specific hours and times that a doctor must be available are generally not set forth in detail by any law or regulation,” says Thomas J. Simeone, a medical malpractice attorney at Simeone & Miller, LLP in Washington, DC.

If held to the reasonableness standard, the jury must decide that the doctor was or was not “reasonable in determining when to take a call,” he adds.

Phone calls with patients fall under the category of patient-practitioner communication, which is a standard requirement in the medical field, Simeone says. Among other things, communication is essential for properly advising patients of the treatment they are currently receiving, what they need to do now or going forward, and how to navigate emergency situations, he adds.

How to stop malpractice before it starts

A foolproof way to avoid missed-call malpractice is to answer your calls. But—no thanks to doctors’ notoriously busy schedules—that’s easier said than done. So, with time constraints in mind, here are some lawyer-approved tips for keeping both your credentials and your patient’s health in check.

Do not refuse critical communication 

“While it is not reasonable for a doctor to be available to every patient 24 hours a day, seven days a week, a doctor must also not refuse to communicate with patients during critical situations,” says Simeone. “The patient cannot insist that the doctor always take their call, but the more serious and urgent the situation, the more the doctor should provide someone for the patient to call.”

If you’re unavailable, ensure that someone else is

In some situations, a patient in critical care may need a physician to answer their call immediately. But they may not necessarily need one specific doctor on the phone. To prepare for these cases, doctors can make sure they have someone covering calls when they are unavailable, or set up a voicemail that instructs patients on how to get quick care.

According to the Emergency Medical Treatment & Labor Act (EMTALA), physicians, specialists, and subspecialists do not have to be on-call at all times, and hospitals must have policies and procedures in place to continue to do their job when certain physicians are not available.^[][]

“Often, a doctor’s voice mail will advise a patient to call 911 or go to a hospital for a life-threatening issue,” says Simeone. “That is a recognition that patients must be given at least some guidance if they are undergoing an emergency.”

Still, if the call is about something that only the treating doctor can answer, he adds that they may be liable for emergency calls.

Keep thorough records and documentation

Record keeping is an essential skill for any doctor. It can help you keep up with patient needs and ensure adequate care. It can also be an important defense if you are (wrongfully) sued for malpractice.

“If a lawsuit is filed against a doctor, they’ll need to provide evidence that they responded to the patient in a time that was reasonable based on current care standards,” says Clark.

Ensuring phone calls and voicemails are recorded and dated/time-stamped for quality insurance, and updating the patient's medical records even when calls are taken after hours can demonstrate care and attention to the patient.

Know when to be more available

Patients being treated for critical conditions may require more attention, and more phone-call-answering, than patients facing less dire ailments. Making an extra effort to respond to the patients who need you most can have a big impact on their health, and keep you safe from legal slip-ups.

Particularly for patients undergoing end-of-life care, “timely communication with their healthcare provider is of utmost importance,” says Ahn. “When doctors fail to pick up phone calls from patients in critical situations, it may lead to a delay in treatment, worsening of the patient's condition, or even death.”

However, Ahn adds that it is necessary to acknowledge that every situation is unique, and outstanding circumstances cannot be ignored, such as if the doctor is treating another critical patient.

“If the doctor was attending to another emergency at the time and could not reasonably be expected to answer the phone, they may not be held liable. On the other hand, if it can be proven that the doctor was negligent in not answering the call and that the patient's condition worsened as a direct result, the doctor could be held responsible,” says Ahn. “The specific circumstances surrounding a doctor's failure to answer a phone call must be evaluated to determine if malpractice has occurred,”