Notes from a Plaintiff Attorney: Avoiding Liability for Abandonment

by Dr. J.D.

Abandonment occurs when a doctor cuts off the physician-patient relationship while the patient still actively needs care, and does so without adequate notice to allow the patient to get care elsewhere.

It can be the basis for a complaint to the state medical board and, if the patient can prove that he or she suffered an injury as a result, it can be the basis of a medical malpractice claim.

The proper discharge of a patient is really the rolling back of each step that formed the doctor-patient relationship:

– The patient came to you in need of care. They can only be terminated when they are not actively in need of care.

– The patient sought care with you rather than elsewhere. They can only be terminated by giving them time to find care elsewhere.

– Your conduct allowed the patient to reasonably believe that you were their doctor. They can only be terminated by you laying out clear statements that make such a belief unreasonable.

The separation does not have to be mutual – in fact, it can be entirely unilateral on your part even if the patient objects strongly – but it has to reflect the fact that medical care is a unique type of interaction because it can literally be a matter of life and death.

Your obligation is therefore to:

(i) not terminate the relationship during a time when it is is necessary that care be continuous unless there will be an immediate transition to another physician

(ii) give adequate notice (a minimum of 30 days in most states) to the patient of the termination so that they will have the time to set up alternative care

(iii) support that transition as needed

(iv) provide coverage for emergency treatment during the specified transition period

1. The first thing to bear in mind is that the physician-patient relationship is only terminated when the doctor or the patient discharges the other. There is no de facto termination by other methods.

Here are few specific things that do not terminate the physician-patient relationship, even though you, as the physician, might think that they would:

– the patient running up a significant unpaid bill

– the patient suing you

– the patient having no contact with your office for a long time

– the patient being very non-compliant or even leaving a hospital AMA

– the patient changing coverage to an insurer you do not accept or the patient’s managed care plan “deselecting” you.

The reason that none of these act to sever the relationship is because whether someone is your patient is not looked at by courts and administrative boards in terms of what you thought the relationship was but in terms of what the patient reasonably perceived it to be, and none of these scenarios is incompatible with the patient continuing to believe that he or she is still under your care.

Therefore, while you do not have to keep any of these patients in your practice, you must formally discharge them.

Even what seems to be a clear situation – the patient firing you – deserves due attention to avoid it turning into an abandonment action.

If you have a signed letter from the patient discharging you, you can rely on that. However, if it was all done verbally you need to establish proof that it occurred because the patient can otherwise completely deny it or claim that they were just venting and did not mean it.

You should therefore both document the event in the chart and send a letter to the patient confirming it.

This is the text that I prefer:

As per our discussion on (date), this letter will confirm that you no longer wish to receive medical care through this practice, effective immediately.

It is imperative that you select another physician and arrange with our office for your records to be sent to your new physician as soon as possible. A release form is enclosed.

If you have not yet done so, your insurance plan or the local medical society (insert contact information) will be able to assist you in choosing a new physician.

If you wish to resume medical care through this practice in the future, please feel free to contact us.

 

You have thereby not just memorialized what took place but have also demonstrated to any future evaluator of your conduct that you (1) fulfilled your duty to tell the patient to continue care, (2) affirmed your willingness to cooperate with the transition to another doctor, and (3) not only did not abandon the patient at this point but are also not holding the door closed against them in the future.

You would then send this as a certified letter with return receipt requested and keep that receipt and a copy of the letter in the file.

2. Returning to the situation where you are doing the termination, your next step is to determine if you may even discharge the patient given where they are in their care.

Since discharge is usually actually only necessary because you are seeing the patient on an ongoing basis, just about everyone you discharge will be an active patient. However, it is the nature of the care and the degree of activity that matters.

The parameters you should use are that:

– a phase of care already in progress should not be interrupted

– the patient must be able to safely tolerate the delay involved in switching to a new doctor

Therefore, for example, you cannot discharge a patient still receiving post-op care but a patient with significant hypertension whom you see routinely every three months can be discharged even though their condition is inherently significant.

3. Once you have determined that the patient can be terminated from your practice, you must follow proper procedures to do so.

This is the discharge letter text that I prefer:

Please be advised that I/this practice will no longer be able to treat you as a patient as of (date).

I/this practice will remain available for emergency care only for the 30 day period beginning (date) and ending (date).

It is imperative that you select another physician and arrange with our office for your records to be sent to your new physician before (date). A release form is enclosed.

Your insurance plan or the local medical society (insert contact information) will be able to assist you in choosing a new physician.

Let’s look at the individual parts of the letter:

(i) There is no statement of the reason for termination.

It is not required and I generally counsel against including it because it adds a tone of accusation and animosity. Frankly, the patient already knows why the relationship with you has gone sour, so I see no need to give a potential later evaluator a chance to see you in even a slightly negative light.

You will, however, of course put a note in the chart detailing the problems, but you will do that in reserved terms because if there is a complaint or litigation that note will come into evidence and you want to make sure that you are seen simply as a completely professional person who had no choice but to discharge the patient from your care.

(ii) The next issue is the date of termination.

Remember that your goal is to be defensible if the patient complains about you, so do not set yourself up to be seen as an unreasonable stickler who actually abandoned a patient by giving them less than required notice.

You should therefore not make this the date of the letter because that does not account for transit time. Making the date the patient receives the letter the effective termination date is impractical because it means you have to bother to follow up and recalculate the transition period. Instead, just specify one week from the date of the letter and use that as the basis for any time calculations.

(iii) This brings us to the period of transitional coverage.

Most states have a “floor” of 30 days but if that is not a realistic time period for your patient because, for example, you are very specialized or you are in a rural area that is medically under-served or the patient has coverage that most doctors in your area do not take, then you need to allot adequate time. The failure to do so constitutes abandonment.

You should also, in addition to stating the coverage for emergencies during the transition period in the letter, make arrangements with the patient for covering any necessary prescription refills during that time, and should document those in the chart.

Of course, this transition period coverage does create the chance for a patient to try to foist themselves back into your practice.

If the patient starts demanding an appointment for an “emergency” that does not seem to be one, you have two options.

You can stick to your guns and refuse to see them but this is foolish because this patient will likely lodge a complaint about you that you will then have to deal with at time and expense that far exceeds an unnecessary appointment. It also puts you at risk of the patient actually being sick and you refusing to see them, which you will never be able to defend.

The better option is to see them and then put in a note that that was done because they claimed an emergency need. Do not put in that you disagreed, because that can be used to show that you waived the terms of your own letter. You should, however, document that the patient was re-informed of the end-date of the transition period and was again advised that they will need a new physician by that point.

But what if there is a genuine emergency and you are pulled back into the patient’s care?

Obviously, you will treat the patient for that emergency, as stipulated in your letter. However, the next step will differ based on what the patient’s further needs are:

– If another physician takes over for the patient’s post-emergency care you are released from your involvement. You should, however, re-affirm to the patient that their discharge from your practice is still in effect and that they still need to obtain alternative care, and you should document that you did so.

– If short-term follow-up that will fall within the specified transition period is needed and you are the only one available to provide it, you again need to document that these events do not stop the discharge process and that the patient is aware of that.

– If the patient needs follow-up that will extend beyond the specified transition period and you are the only one available to provide it, the fact that you cannot discharge a patient while necessary care is ongoing takes precedence and the termination that you initiated is stopped. However, you should document that it was explained to the patient that when this treatment period is ended they will again be terminated from the practice.

It is advisable to have the patient co-sign any notes that re-confirm the discharge process because the standard used to determine if the doctor-patient relationship has been re-established will be what the patient reasonably believed, so you want to provably eliminate that issue.

(iv) Unless otherwise specified by a practice or health plan agreement, you are not obligated to provide the names of alternative doctors and can simply instruct the patient to contact their insurance carrier or the state medical society. However, a bare statement that the patient needs to find a replacement for you is not sufficient if an abandonment claim is later made against you.

(v) You should specify that you will provide all records to any subsequent physician and it would be advisable to also include a release form with the termination letter. This will be evidence of your cooperative attitude towards continuity of care if an abandonment claim is later made.

The next step is the necessity to prove that the letter was sent and received. Certified mail with return receipt will usually suffice. Some doctors use a delivery service like FedEx because they have found that that reduces people dodging acceptance of the letter. In either case, you will keep a copy of the letter and the proof of its delivery in the chart.

If the letter comes back because the address you have for the patient is incorrect and you are not able to find out the new address you are not required to exhaustively try to hunt the patient down. Just keep the letter in your file and deal with the termination issue the next time that the patient contacts your office.

4. It is also possible to be the subject of an actionable abandonment claim by patients you discharged in compliance with the requirements and even by patients you consider to be fully active in your practice as well as by patients you never considered to be your patients at all.

Let’s look at these situations:

(i) Failure to carry through on an accrued duty

Even if you are involved in care that does not establish a physician-patient relationship you still have the duties of a physician relative to what your limited contact with the patient reveals, even if it exceeds the intended purpose of the contact or is not within your specialty

For example, if you are an orthopedist and you notice a suspicious mole on the back of a patient you are performing a disability claim physical on, you are obligated to both document it in the report you will be submitting and to tell the patient, with the recommendation that they consult their own physician for follow-up.

Similarly, if you are a plastic surgeon doing an initial evaluation of a patient to decide if you will accept them and you find previously unknown hypertension, you are obligated to tell the patient and to offer to send the results to their primary care physician even if you decide to not accept the patient into your practice.

You do not, however, have to order a biopsy or prescribe an anti-hypertensive, or even make sure that the patient followed up on what you told them. That would be care associated with an ongoing relationship with the patient and it exceeds your duties.

In other words, more is not required, but less is abandonment.

(ii) Constructive abandonment

a. Constructive abandonment usually occurs when all the i’s appear to be dotted and all the t’s appear to be crossed in terms of the termination process but in the real world the patient is actually left high and dry.

This was discussed earlier in terms of setting an appropriate length for the transition period, but if even the most generous time allotment is not enough because there really are no practical options for the patient then you may not be able to discharge the patient without incurring liability for abandonment.

In that setting, you should contact your state medical board to seek alternatives.

b. Constructive abandonment can also occur when you fail to initiate treatment that was warranted. The premise is that the patient is internally abandoned within the active doctor-patient relationship because the care that was needed never began, leaving them as though they actually had no access to the treatment at all. In those situations, abandonment is alleged separately from medical negligence.

This concept of abandonment by inaction can also apply if you refuse to assist the patient in accessing what they need in terms of support. Physicians who refuse to fill out forms for such matters as legitimate disability claims, obtaining necessary medical devices, or keeping medically-needed utilities on, or who will do so only for a significant fee that the patient cannot afford, can be held to have thereby abandoned their patients.

This aspect of constructive abandonment of course does not mean that the physician is rendered a mere hand-puppet to an overly demanding or scamming patient to avoid being charged with abandonment. It would only apply when the treatment or the assistance really were warranted but were refused by the physician without good cause.

c. An extension of this aspect of constructive abandonment also occurs if a physician selectively denies to treat the patient while still nominally maintaining them in the practice.

This generally occurs when a patient who has run up a large bill is refused further appointments until the debt is dealt with.

Such cases should, instead, be handled by a formal discharge from the practice, followed by any appropriate collections procedures. It cannot be over-emphasized that a physician has very wide latitude about discharging a patient as long as the proper procedures are met and so will be in a strong legal position if the patient makes a complaint about the termination, but that denial of care within the practice will be seen as abandonment and the doctor will be very legally vulnerable as to that.

d. Constructive abandonment can also occur in the coverage setting.

Since a physician should arrange for adequate coverage when he or she is not available for an extended period, a failure to do so that leaves the patient functionally without a doctor can be held to be abandonment.

In arranging for your coverage it is therefore necessary that you ensure that it will be provided by someone equivalent to you in that they are from the same specialty or a closely-related one (e.g.; internal medicine and cardiology covering for each other) and that the service that you engage with should be efficient in getting the patient in touch with the covering physician and accurate in conveying messages between them.

(iii) Inadvertent abandonment

(a) Coverage can be an issue here as well, but this time not in terms of inadequacy but in terms of complete absence.

This is not the situation of having no coverage at all and just leaving a message to call 911 or to go to an emergency room. That is overtly inadequate.

This, instead, is where the coverage is facially present in that it is listed on a call schedule but in reality there is actually no coverage because the assigned doctor became unavailable but was not replaced.

To the extent that you could have reasonably intervened to prevent that problem but did not, you can be seen to have abandoned your patients during your absence.

b. Inadvertent abandonment can also occur at the office level through staff error, such as if your front desk staff either refuses to let a patient talk to the medical staff when that conversation was actually necessary or schedules a needed appointment too far in the future, or if your staff merely files away the chart of a patient who requires some important follow-up without first contacting that patient.

You need to have set office policies in place – preferably in writing, since you may have to prove them – to avert these problems.

 

In summary: The laws governing medical abandonment are predicated on the more dependent status of the patient in the relationship with the physician. Therefore, when discharging a patient from your practice or when dealing with a patient actively, it is essential to make sure that you have fulfilled your duty to ensure that your patient will not be left without appropriate care.