Notes From a Plaintiff’s Attorney: Legal Issues When Patients Offer You a Gift

---

We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful.

Whether you can accept a gift from a patient is fundamentally a matter of ethics. But fiduciary violations can result in discipline for misconduct. And patients and estates of deceased patients can sue for the return of what was gifted. So, when accepting a patient’s gift, it’s important to keep basic legal issues in mind.

As a fundamental matter, the doctor-patient relationship imposes unique professional boundaries and gifting to doctors by patients blurs those.

The doctor-patient relationship is a fiduciary relationship that mandates the doctor act only for the good of the patient. Gifting touches on the question of whether the patient and/or doctor are acting for the doctor’s personal benefit.

Medical care is often an emotional experience. In that context gratitude is a predictable emotion. Many patients seek a way to express that emotion tangibly. Doctors, who increasingly feel that their work is viewed as thankless, are grateful when that outreach is made.

So, can doctors accept gifts from patients?

Sometimes.

This inherently ambiguous situation is reflected in AMA Opinion 10.017 (Gift from Patients).

The Opinion starts off inclusively:

Gifts that patients offer to physicians are often an expression of appreciation and gratitude or a reflection of cultural tradition, and can enhance the patient-physician relationship.

However, it then details caveats on the value of the gift and the possible motive of the patient. The Opinion concludes, quite unsatisfactorily for a doctor seeking firm guidance on proper conduct, “There are no definitive rules to determine when a physician should or should not accept a gift.”

State laws parallel this, extending punitive sanctions to situations that suggest exploitation of the patient but otherwise leaving the matter largely up to the judgment of the physician.

Let’s therefore look at a few scenarios to see how they play out.

• Your patient, a famous musician, is dying of cancer. You show up uninvited at his home, bringing your young kids, a guitar, and two cards. Your son plays a song and then you present the guitar and the cards to your patient to be signed. The musician is too weak to do so, so you guide his hand. You leave with the now almost priceless autographed memorabilia.

• You operate on a leaking abdominal aortic aneurysm in a patient who is the extremely wealthy owner of a nationwide restaurant chain. As he is being discharged after recovering he leans over and slips a box into your pocket. “The insurance will pay for the work you did but I want to really say thanks for saving my life, doc.” After he leaves you take out the box and see it contains a solid gold Rolex.

• You were financially devastated in the 2008 crash and have never really been able to get back on your feet since. You decide that it is not possible to keep your small town family practice open and that you will need to move to the city and take an employed position at a hospital. When you let patients know that you are leaving, they spontaneously organize a fund-raising effort and present you with a check for $40,000 to cover your outstanding debts so you can now stay.

• It’s almost Christmas and a patient stops by your oncology practiceto bring you a tin of cookies that she baked. “Here’s to you helping me get into that clinical trial next year” she calls out as she leaves with a smile.

• It’s almost Christmas and a patient stops by your oncology practice to bring you a bottle of excellent Scotch. “Here’s to you getting me through this year. God bless you, doc” he says as he hands it to you.

So – there are five situations of gifts from patients. Are any of them acceptable?

The first case actually represents what happened between Dr. Gil Lederman and his patient, George Harrison. Witnesses had also seen the doctor inserting himself into his frail patient’s life. The Harrison estate sued and the items were returned.

In NY, where this occurred, such conduct – whether out of greed or merely because the doctor was star-struck – would fall under the prohibition in Education Law 6530 that bars “exercising undue influence on the patient.”

It exemplifies the first caveat on a gift from a patient to a physician: that gift cannot be one that the physician received by exploiting his position in the therapeutic relationship.

Such exploitation is professional misconduct and can result in sanctions against the doctor’s license.

But what about the rest, situations in which the gift is freely offered by a competent patient?

Following the paradigms that the AMA Opinion lays out, (paradigms which a medical board or court will show considerable deference to), let’s look at (1) the motivation for the gift and (2) the value of the gift:

 

1. The motive must be actual generosity. The patient attempting to cadge something from the doctor in a quid pro quo for future care or to influence the doctor’s medical decision is offering an unacceptable gift.

 

This means that the Rolex or the expensive bottle of Scotch are acceptable by this standard because both are pure acts of gratitude for past care. But the tin of homemade cookies that seems to be being given to “sweeten” the doctor’s judgment on the clinical trial would not be.

In that latter situation, the AMA Opinion holds that “Some patients may attempt to influence care or to secure preferential treatment through the offering of gifts or cash. Acceptance of such gifts is likely to damage the integrity of the patient-physician relationship. Physicians should make clear that gifts given to secure preferential treatment compromise their obligation to provide services in a fair manner.” If the doctor accepts the cookies he must clearly state that efforts to get the patient into the trial are a completely separate issue.

The check from the townspeople is a borderline matter because it does extend to future care since they want the doctor to stay and treat them in the future. But it is a group gift and not tied to specific patients making specific requests for care and so is presumptively acceptable.

 

2. In general, a gift of low to moderate value is acceptable but the patient’s circumstances do matter in this regard.

 

As per the AMA Opinion, “No fixed value determines the appropriateness or inappropriateness of a gift from a patient; however, the gift’s value relative to the patient’s or the physician’s means should not be disproportionately or inappropriately large. One criterion is whether the physician would be comfortable if acceptance of the gift were known to colleagues or the public.”

Consider a patient the doctor knows is struggling financially. She shows up with a silk scarf for the doctor at Christmas. She should be thanked warmly and told to return it for store credit because to take a $15 item from that patient would be to take something too costly for her to give.

However, even if someone is very rich that is not an excuse for letting them be a spigot.

An example: Hugette Clark, an heiress, moved into a New York City hospital despite not really needing care and then just stayed for a decade, paying over $800/day for her room and endowing the hospital with an additional $4 million and giving her doctor $800,000. To a woman with $300 million, that was literally chump change. After her death, her estate sued on the basis that the hospital and the doctor were basically enabling her to keep charging her. These bequests were returned.

By this standard, the rich man’s gift of the Rolex may raise ethical limitations while the bottle of Scotch comes squarely under the level that is considered appropriate as long as the patient can reasonably afford it. As long as the townspeople all individually gave only what they could afford and no one gave such a large amount that it is intrinsically disproportionate to the diminished financial status of the doctor, the aggregate check for the financially troubled doctor would also pass muster.

In every setting the doctor must be aware of any limitations their hospital or group has placed on accepting gifts.

Now, what about a bequest in a patient’s will?

This is particularly dicey since, of course, that bequest can only be obtained after the patient is dead and it is being received by the doctor charged to keeping him alive. That opens the door for a family member to claim that medical care choices were influenced by that potential for personal gain.

The amount of the bequest should also be considered. As per the AMA Opinion, “If, after a patient’s death, a physician should learn that he or she has been bequeathed a gift, the physician should consider declining the gift if the physician believes that its acceptance would present a significant hardship (financial or emotional) to the family.”

Even if the other beneficiaries will not be seriously disadvantaged, a doctor who has received a bequest that is disproportionate to the relationship they actually had with the patient (length of the association, medical care actually delivered) should consider it was inappropriately bequeathed and should decline the gift.

If, taking all of these issues into account, you feel that a gift or an offer of a bequest would be inappropriate for you to accept but you do not want to offend the patient, you can suggest a gift that the entire office or care team can share or a donation to a charity.

In summary: A physician may not exploit the therapeutic relationship to acquire a gift from a patient but gifts that are of a financially appropriate level and offered by patients simply out of gratitude for care already received can be ethically accepted. Bequests should be proportionate to the doctor’s actual role and not disadvantage family beneficiaries.

[Medical Justice notes: As a token of gratitude, most gifts by patients to doctors pass ethical muster. Most patients are appreciative for the care they received; and they do not represent a quid pro quo for future benefit. It would be a travesty indeed if patients were globally foreclosed from being able to express this gratitude as they see fit.]

---