Physicians Must Be Careful When Dropping Patients
Law Feature -- April 2004
By Walt Borges
For some physicians, giving a patient a pink slip doesn't have anything to do with the color of the examination gown. It means the doctor and his staff are about to embark on the sometimes necessary and often risky endeavor of firing a patient.
Physicians have many reasons for terminating the physician-patient relationship. Some may feel that synergy or trust between doctor and patient is lacking. More commonly, a patient may have steadfastly refused to follow the physician's instructions or prescribed course of treatment. Or the patient may simply be rude to the physician, nurses, receptionists, and other staff. Sometimes, the decision to terminate is made because the doctor is leaving a specialty with high risk and high insurance premiums. Other times, a physician-patient relationship is terminated because the patient has sued the doctor or has threatened to sue.
In February, 1,155 TMA members responded to an informal e-mail survey about their experiences in ending the physician-patient relationship. Eighty-five percent of the physicians who responded said they had found it necessary to fire a patient. More than half have terminated patients less than once a year.
The leading reasons for firing a patient were failure to follow the doctor's advice or recommended treatment (41 percent) and the patient's disruptive or rude behavior toward the doctor or staff (37 percent). Another 10 percent named multiple reasons -- including those above -- for ending the relationship. (See "Hmmm ... Reasons for Firing Patients.")
Drug or medicinal abuse was cited in 4 percent of the firings. So was failure to pay for provided services. Two percent blamed missed appointments. The filing of a lawsuit or a physical threat to the doctor or staff were both cited as reasons in 1 percent of the responses, as was the physician's decision to leave a high-risk specialty.
Handle With Care
Whatever reasons physicians may have for ending a professional medical relationship, they have a strong ethical charge and a legal duty to act in their patients' best interests. That requires a delicately balanced process, says TMA General Counsel Donald P. Wilcox, JD.
In April 2003, the TMA Board of Councilors issued two opinions defining the association's views on the care physicians must take when terminating patients. (See " Some Good Advice .")
A physician and his or her patient are not equal partners in the relationship, says Mr. Wilcox."The physician has more control and more knowledge about medical matters than the patient, and that brings with it more duties."
Mr. Wilcox noted that the patient-physician relationship is much more than a business one. "The physician has a fiduciary relationship with his or her patient," Mr. Wilcox said. "A fiduciary has a high duty of care."
A fiduciary is defined in law as someone who has a duty to act for the benefit of another.
Nothing poses more legal risk for a physician than ending a relationship with a patient in a way that makes the patient think he or she is being abandoned. Legally, abandonment is usually defined as "the unilateral severance of the professional relationship without reasonable notice at a time when there is still the necessity of continuing medical attention."
To prevent this perception on the part of the patient, and subsequently a judge or jury, the patient must be given "reasonable" notice.
"There is no set time period for what constitutes reasonable notice," said Mr. Wilcox. "It must be adequate in that it must be tailored to medical circumstances, including the need for immediate or ongoing treatment."
The first two questions a doctor needs to consider are:
- Does the patient have a chronic or acute condition?
- Does the patient require specialized care?
If the answer to either question is yes, the physician should consider whether the patient will have access to the required medical care.
Several factors must be considered by the physician.
First, as part of giving notice, a physician may suggest another doctor to the patient or contact other physicians to see if they are willing to provide the necessary treatment for the patient. If the patient agrees to see one of the recommended physicians, there are no grounds for allegations of abandonment. If the patient does not agree, the terminating physician has at least supported the notion that he provided adequate notice, as other physicians clearly are available to provide the necessary treatment.
If the patient is unwilling to entertain a change in physician, the doctor can go ahead with the termination as long as the patient has a suitable amount of time to find another doctor if he rejects the former physician's recommendations. "The patient should be trying to find a new physician, and if he doesn't when there are other doctors available, it doesn't force the physician to continue to treat the patient forever," said Mr. Wilcox. "Only reasonable notice of termination is required."
The second factor to consider is whether there are enough physicians and medical facilities in the area to allow the terminated patient to find adequate medical care. It's far more difficult to find a new doctor in rural areas or in thinly populated stretches of south and west Texas than in Dallas or Houston; thus the time for giving reasonable notice is likely to be much longer for patients and physicians in rural areas.
If the patient is seeing a specialist, it may take more time than usual for him or her to arrange for subsequent care. A classic example is an obstetrician's patient in her eighth month of pregnancy who may not be able to find another physician willing to assume responsibility for her until after delivery and postpartum care. In this case, the terminating physician may need to maintain care throughout the postpartum period.
Be Aware of the Subtleties
In some cases, what seems to a doctor to be clear and persuasive reasons for terminating a patient may be legally risky. For example, when a patient files a liability lawsuit or a grievance against a doctor, the physician might conclude that firing the patient immediately is warranted because of the patient's action. Failing to confirm the impression by letter could be risky, as neither state nor federal law supports the view that a lawsuit or complaint automatically terminates the patient-physician relationship.
The same lack of assumptions about termination are appropriate in circumstances where patients fail to follow a physician's advice, walk out of a hospital and don't reappear for follow-up appointments, or fail to pay outstanding balances for services rendered. Physicians can't assume that a patient has terminated the relationship, and they still must jump through the procedural hoops to terminate the professional relationship.
Closing a practice or being deselected by an insurance carrier can lead a physician to decide to terminate a significant number of patients, but the physician must act carefully. Adequate notice still must be given, and in the case of deselection, the doctor cannot assume that the change in insurance coverage triggers a termination of the patient-physician relationship. While most patients will switch physicians to ensure the full use of their insurance benefits, some may balk at the change. A physician should continue to treat the patient, making other arrangements for payment, until reasonable notice of the termination is given and the patient has been given ample time to find a new doctor.
Hugh Barton, JD, an Austin lawyer who specializes in health law, says no one template for firing patients fits all circumstances.
"If someone goes into a doctor's office and assaults the doctor or staff or commits a crime, no notice of a termination is necessary," Mr. Barton said. "But, in many other circumstances, the process is complicated."
For example, Mr. Barton says physicians should check their contracts with managed care organizations before firing a covered patient. "You may not be able to get rid of a patient without the express permission of the managed care medical director," he said. Antidiscrimination laws that protect individuals with disabilities or HIV-positive patients may also come into play, he added.
Another gray area is the Health Insurance Portability and Accountability Act (HIPAA). It "covers more information about the patient than is included in the medical record," Mr. Barton explained, and until the scope of HIPAA is narrowed by administrative or judicial decisions, physicians would be wise to be cautious in communicating with other doctors about their decisions to fire patients.
How to Fire a Patient
Despite the complexity of firing a patient, health law attorneys recommend one measure in common: inform the patient of the termination in a letter that gives the patient adequate time to arrange for needed medical treatment.
To ensure that the letter is received, the letter may be sent return-receipt-requested. If confirmation of delivery is not forthcoming because a patient refuses to accept the letter, a second letter can be mailed by standard mail. For legal purposes, the letter is assumed to have been delivered -- and read -- three days after the date it was received in the post office.
Legal experts say such a letter should contain a notice to the patient that the physician is terminating the patient-physician relationship. A well-written letter should mention the ongoing or critical medical condition that requires further medical attention and invite the patient to find another physician without delay. The letter may specify the number of days or months that a physician will continue to treat the patient, but physicians must be aware that such a deadline cannot be set in stone if medical conditions change or if the patient has difficulty finding another doctor.
The reasons for termination do not need to be included. If there is a chance of conflict arising from the termination, a physician may simply want to state that the physician believes the relationship is not working.
The letter also should offer to release the patient's medical records to any physician or other person designated by the patient. Some physicians include an authorization for the release of records, which can be mailed back to the physician's office. A sample release form and letter are available on TMA's Web site.
Walt Borges can be reached at (800) 880-1300, ext. 1385, or (512) 370-1385.
Hmmm … Reasons for Firing Patients
As part of researching this article, TMA sent e-mails asking members whether they were willing to talk about their experiences. The respondents were not asked to identify themselves unless they wished to be interviewed for the article. To respect patient privacy, no specifics that would identify patients were requested, and none were provided. However, many of the 1,155 responding physicians gave rather interesting explanations. Here's a short list of the best responses to the question of why the physician felt it was necessary to fire a patient:
- Romantic infatuation (whose was not specified).
- Patient threatened lawsuit in a bizarre manner.
- Patient started employment with attorney of ill repute.
- Not enough space here.
- Patient was my ex-wife's mother.
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Some Good Advice
In April 2003, the TMA Board of Councilors issued the following opinions on the termination of patients to ensure that patients have adequate continuity of care when they switch doctors. The councilors crafted statements that incorporate current law, recent legal decisions, and ethical principles focusing on patient welfare.
Termination of the Patient-Physician Relationship
The patient-physician relationship is wholly voluntary in nature and therefore may be terminated by either party. However, physicians have an ethical obligation to support continuity of care for their patients. Thus, it is unethical for a physician to terminate the patient-physician relationship without first providing reasonable notice under existing circumstances of the physician's intent to terminate the professional relationship. To terminate the patient-physician relationship without such notice may result in civil liability for abandonment.
The unilateral severance by the physician of the patient-physician relationship without providing an adequate medical attendant or reasonable notice under existing circumstances of the physician's intent to terminate the patient-physician relationship is abandonment and is unethical.
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Where to Get Information
The Texas Medical Association's legal staff cannot offer legal advice to individual TMA members because of the prohibition of the corporate practice of law under state statutes. They do make available, for free, general legal information that addresses many physician concerns through the TMA Knowledge Center at (800) 880-7955 and through the Practice Management section of the TMA Web site.
The TMA Knowledge Center and the TMA Web site serve as valuable repositories of knowledge and allow physicians to conduct their own research on clinical, medical business, and legal topics.
"The knowledge center can provide help in answering physician questions by conducting research and preparing bibliographies for member physicians on subjects such as the patient-physician relationship or related health business topics," Director Claire Duncan said.
Knowledge center researchers charge $15 per bibliography for TMA members, but the center's information specialists also can point members to online resources, including databases that contain leading journals on health care law and business. Access to the journal databases is free for TMA members, Ms. Duncan says.
The TMA Knowledge Center operates from 8:15 a.m. to 5:15 p.m. Monday through Friday.
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