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Is malpractice ever caused by a failure to act?

What duty of action does an emergency responder, nurse or doctor have toward someone who is experiencing a health crisis? When is it malpractice to neglect to act?

It depends a lot on the situation.

Most of the time, people aren't under any special obligation to take action to try to prevent harm from happening to another person -- although there are exceptions:

  • Any hospital that accepts Medicare payments (which accounts for almost all of them) has a duty to treat anyone having a medical crisis or in active labor, regardless of his or her ability to pay for the treatment -- and the doctor cannot be penalized by the hospital administration for doing his or her duty to treat that patient.
  • A medical professional who has begun efforts to save a person is generally expected to continue the attempted rescue -- within reason. If it is clear that the rescue would fail or continuing to try to save that person would somehow endanger the medical professional's life, there's generally no duty to carry on the attempt.
  • A medical professional who has established a doctor-patient relationship with someone cannot simply walk away at the end of his or her shift without making sure that the patient is stable or has been transferred to another person for equal or better care.
  • If the medical professional created the situation that endangered the patient, he or she needs to act to save that patient. For example, if a patient is showing signs of having trouble waking up after surgery, it would be a failure on the doctor's part to send that patient home until it's clear that he or she is okay -- even if that means admitting the patient to the hospital unexpectedly.

It's important to keep in mind that medical malpractice doesn't always arise from a medical professional's actions -- sometimes it arises from what he or she doesn't do instead.

An attorney can help you if you've been the victim of medical malpractice because a medical professional failed to act , talk to an attorney today.

Source:, "Emergency Medical Treatment and Active Labor Act "EMTALA"," accessed Oct. 13, 2017

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