Health Law

The Duty to Treat or Provide Care

Table of Authorities
Bragdon v. Abbott, 524 U.S. 624 (1998)
Americans with Disabilities Act (ADA) of 1990
Section 504 of the Rehabilitation Act (§504) of 1973
Ricks v. Budge, 91 Utah 307 (1937)
Childs v. Weis, 440 S.W.2d 104 (1969)
Williams v. U.S., 242 F.3d 169 (4th Cir. 2001)
Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C.A. § 1395dd
Baber v. Hospital Corporation of America, 977 F.2d 872 (4th Cir. 1992)
Howe v. Hull, 874 F.Supp 779 (1994)
Barry R. Furrow, Health Law – Cases, Materials and Problems, 5th ed. American Casebook Series, Thomson West Publishers (2001)

Questions Presented:   Does our client Jan have any common law, private right to action, or malpractice claim against Dr. Ball, Dr. Anderson or Dr. Clark?

      The pre-requisite for any malpractice claim is that a doctor-patient relationship must exist; there must be an established standard of care, that care was breeched and damages and/or harm must have occurred.
      Additionally, EMTALA would probably not apply to The Blue University Healthcare Center because their contractual obligation had ended and they may not have been an institution that received federal Medicare funds. EMTALA was enacted by Congress in response to a concern over “patient dumping” by hospitals refusing treatment of individuals who could not afford to pay for medical services. Even if EMTALA would apply to the Blue University Hospital a “private right of action” rising from statutory law would only exist against the hospital and not the doctor. [1]
      Jan may have a “private right of action” rising from statutory law if she is deemed disabled by the A.D.A. or §504 because of Bragdon v. Abbott, 524 U.S. 624 (1998) [2] where the question of “direct threat” as a risk is discussed. A “direct threat” of risk to the doctor must be based upon scientific evidence and it appears that The Blue University Healthcare Center and Dr.   Ball was able to treat...