In a medical malpractice case, the typical standard of care applied to review a physician’s conduct is the “reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Burgess v. Superior Court, 2 Cal.4th 1064, 1081 (1992)). However, Health and Safety Code section 1799.110 was enacted to provide physicians and surgeons in hospital emergency department settings additional protection from malpractice claims by modifying the general standard of care. Section 1799.110 provides such protection by 1) recognizing the need to apply a standard of care that considers emergency circumstances and 2) requiring expert medical testimony from physicians and surgeons with substantial professional experience in emergency medical care. Recently, in Charlie L. v. Kangavari, a question was raised regarding the applicability of Section 1799.110 to remote physicians providing emergency department services.*
In this case, a three-year-old patient with a history of mal-rotated bowels since birth, presented to the emergency department with abdominal pain.¹ The patient was assessed by an emergency department physician who ordered a stat X-ray and ultrasound imaging of the patient’s abdomen.¹ The images were sent to an on-call, remote radiologist for review.¹ The radiologist determined the patient’s bowel was unobstructed. After further monitoring, the patient was eventually discharged home with instructions to follow up with his pediatrician and gastroenterologist.¹ Shortly after returning home, the patient vomited and turned blue.¹ The patient returned to the emergency department nonresponsive with a faint pulse and breathing.¹ The patient was assessed and determined to have a small bowel obstruction.¹ The patient was transferred to a higher level of care where he had multiple surgeries to remove necrotic tissue and most of his small bowel.¹ Currently, the patient requires gastrostomy tube feedings and has challenges with his mental and emotional wellness.¹
On April 23, 2021, the patient’s mother filed a medical malpractice suit against the radiologist for failing to timely diagnose the patient’s bowel obstruction.¹ The radiologist moved for summary judgment because he believed the standard of care was met as supported by a diagnostic radiologist witness.² The mother filed an opposition against the motion with support from a medical school professor.² The radiologist opposed the admission of the professor’s declaration because he did not believe the professor satisfied section 1799.110 expert requirements.² The trial court agreed with the radiologist and granted summary judgment which led to an appeal.
On appeal, the court held section 1799.110 does apply to a physician who remotely reviews tests results on a stat basis as part of the emergency department. The court reasoned the statute’s purpose was to eliminate physicians’ fear that their emergency services would be scrutinized under the general standard of care lens.² The court opined remote physicians are under the same pressures and are subjected to the same liability as in-person emergency physicians; therefore, remote physicians should not be treated differently.² However, the court ultimately reversed summary judgment based on the separate issue that the defendant physician's expert witness also did not meet the expert requirements of section 1179.110.
Why It Matters
This recent decision moves away from an earlier case which held section 1799.110 requirements did not apply to on-call physicians who provided emergency medical services because such services were not considered emergency medical coverage.³ Despite the difference in outcome between these two appellate court decisions, the Charlie L. decision acknowledges that remote physicians providing emergency services to an emergency department may indeed be included in the section 1799.110 provisions. Though the court’s holding is favorable to remote physicians, the court acknowledged the same expert scrutiny of the “emergency” standard of care still applies. Therefore, it is important that remote physicians respond timely to stat orders and communicate findings. Further, documentation of a physician’s clinical decision-making pathway should include:4,5
- Assessment of patient vitals and examination
- Information about any identified areas of concern and considerations made for each area
- Analysis of the patient’s chief complaint
- The use of understandable language to clearly state findings
- Any reassessments that were completed
By following the previous tips, a physician providing remote services will not only support patient safety but will also help prevent any allegations of failing to meet the standard of care.
Bryan Dildy, Esq., MPA, CPHRM, CPPS is a Senior Risk & Patient Safety Specialist. Questions or comments related to this article should be directed to BDildy@CAPphysicians.com.
*For purposes of Section 1799.110, remote physicians are physicians who are 1) on-call or consulting to the emergency department, 2) are not physically present within the department and 3) are providing emergency medical services to the department.
¹Charlie L. v. Kangavari, 107 Cal. App. 5th 1117 (2025).
²Charlie L. v. Kangavari, 107 Cal. App. 5th 1117 (2025).
³Miranda v. National Emergency Services, Inc. 35 Cal. App. 4th 894, 900-907 (1995)
4Gabayan Gz, Gould MK, Weiss RE, et al. Emergency Department Vital Signs and Outcomes After Discharge. Acad Emerg Med. 2017;24(7): 846-854
5Christopher L. Moore, MD, Andrew Basking, MD, et. al., Best Practices in the Communication and Management of Actionable Incidental Findings in Emergency Department Imaging, Journal of American College of Radiology (Apr. 18, 2025, 1:54 PM), https://www.jacr.org/article/S1546-1440(23)00123-0/fulltext