Can you refuse to treat a patient? The simple answer is “Yes – of course.” But, when it comes to the law, there are layers to that answer.
The basis of the physician-patient relationship is a contract – both the doctor and the patient have to mutually agree to their roles – and like any contract it can sometimes be broken by either party.
When the doctor is the one ”breaking his end of the bargain”, the process must reflect the fiduciary nature of his role. Termination of a patient from a practice is constrained by common law and statutory prohibition against abandonment. This means the doctor must provide the patient formal notice and emergency coverage with enough time to allow alternative care.
The typical reasons doctors terminate the physician-patient relationship are patient non-compliance and non-payment. However, as long as the termination is done in a manner that is not reasonably construed as abandonment, the doctor can do so even without a reason. Perhaps the magic is gone.
Some reasons for terminating the relationship merit additional scrutiny. Particularly if it is perceived the physician is walking away from an obligation for solely self-serving reasons.
There are therefore limiting set-offs on the right of the physician to refuse care, particularly when that refusal is based on the care itself.
In this two part series we will look at fear of infection, moral opposition to a treatment and political differences with the patient to see to what extent the physician’s unilateral choice to not treat the patient may actually extend.
1. Fear of infection
Ebola is now the old HIV on steroids. Concerns over Ebola have reignited a question not seen since the early days of the AIDS epidemic: Can a doctor refuse to treat a patient because of risk to the doctor?
This first brings us back to the underpinning of the duty of care by the physician-patient relationship. There is no duty to treat a patient who is not your patient.
In the office setting this is clear – you know who your patients are. But, a deeper look may be in order. Accepting a referral is generally held to establish the relationship even before the patient is actually seen. Participating in an HMO or on an insurer panel may, by contract, create a relationship with any patient who then wishes to see you under that coverage. Practicing under an employment contract or subject to duties, such as for call, imposed in a privileges agreement can also create a doctor-patient relationship.
So, a doctor-patient relationship may already exist in a number of contexts. The next step is whether statutes that prevent discrimination based on the patient’s condition will apply, either directly through the physician’s own practice or through the physician’s affiliations.
The first law to consider is the 1973 Rehabilitation Act. This prohibits a qualified patient with a disability from being refused treatment by a recipient of Federal financial coverage solely because of that patient’s disability. Disability here includes whether the patient has some types of infectious diseases.
- A surgeon who refused to perform surgery on an HIV+ patient was removed from Medicaid funding and then restored only after agreeing to treat the patient.
- A surgeon who refused to perform surgery on an HIV+ patient and instead referred that patient to a surgeon 200 miles away, a distance that prevented the patient from seeking care there (i.e.; constructive abandonment), was required to establish a non-discrimination policy.
- A surgeon who initially accepted a patient for surgery but then refused when that patient tested positive for HIV was required to seek the opinion of an infectious disease specialist before ruling out a course of treatment for that patient.
How these cases were handled by the Office of Civil Right (OCR) is worth noting: they did not inflict punishment on the doctor; they interjected to get the patient access to care without unreasonably putting the doctor in harm’s way.
The Americans with Disabilities Act provides even broader protections for patients whose disability is a contagious disease. Title III of the Act prohibits a place of “public accommodation”, which includes hospitals and medical offices, from denying access based on disability.
However, this aspect of the ADA is neutralized if that patient poses a direct threat or significant risk to the health and safety of others that cannot be eliminated by adequate precautions or reasonable modification of policies and procedures.
Let’s examine how the Americans with Disabilities Act addressed a HIV+ patient; and a HIV+ employee. In both cases, the government declared that chronic HIV+ was indeed a “disability.” The question was whether that person was illegally discriminated against.
Ms. Abbott was HIV+, but asymptomatic. She needed a cavity in her tooth filled. Her dentist, Dr. Bragdon, refused to do this in his office. He agreed to do so in a hospital setting but Abbott would have to pay for any extra expense associated with using that facility. Abbott sued. This case was heard by the US Supreme Court. Bragdon argued that HIV posed a “direct threat” to his health and safety, but that he was willing to work on Abbott should he be allowed to take “extra precautions” in a hospital setting. The Court ruled against the dentist. They cited sufficient material in the record to determine, as a matter of law, that patient’s infection with HIV posed no direct threat to the health and safety of her treating dentist. Literature and CDC recommendations detailed precautions that could be taken in an office setting to mitigate any objective risk.
The ADA permits discrimination if based on objective criteria promoting safety. Such action is not “discrimination on the basis of mythology.” Mauro v. Borgess Med. Center, 137 F.3d 398, 402 (6th Cir. 1998). In Mauro, the employee was a surgical technician infected with HIV. Mauro’s duties occasionally required him to place his hands within a surgical wound. He admitted sometimes his gloves tore, and rarely, a needle stuck him. The court determined that even if this occurred uncommonly, it “could have catastrophic results and near certainty of death [for the patient].” The court ruled the hospital acted within its rights when it terminated Mauro because “he was a direct threat.” Mauro relied on Arline, a case that instructed courts calculate the threat in disability analysis based on the nature, duration, severity, and probability of risk. School Bd. of Nassau Co. v. Arline, 480 U.S. 273, 288, 289 (1987). Mere possibility that a person can cause an injury or transmit a disease to another is not enough to establish that that person is a direct threat. The four factors establish a more objective basis for quantifying the danger.
Back to Ebola and the ADA: A hospital with no proper protective gear could reasonably tell EMS not to transport a patient with suspicion of Ebola to them. But if that hospital systematically refrained from getting that gear so as to be able to make the refusal it might not be protected from sanctions. Similarly, a family doctor who has an actively sick patient (recently in West Africa) unexpectedly come to his private office, where they have only standard masks and gloves, can refuse to engage in active treatment of that patient and instead call for EMS to take them to a proper facility. But an infectious disease specialist asked to consult on a possible Ebola case quarantined in the ER cannot just refuse if the hospital has proper protective methods available.
A question that might then be raised, particularly in light of the two nurses who became infected due to a lack of proper protection protocols, is whether a physician may refuse to treat a patient out of concern for danger to others.
The answer under anti-discrimination law is “No” as long as there are safe alternatives. (This is a tricky topic as long as protocols are evolving). For example, Kaiser Permanente was sanctioned under the Rehabilitation Act when a staff physician refused to insert ear tubes because of a mistaken belief that that would place the patient’s caregiver at risk from AIDS. Instead, the hospital was required to provide training to the physician on how AIDS can be transmitted and provide resources on safety to the caregiver.
While a physician can assert his fear of being infected by a patient, if they are under a duty to care for that patient his ability to refuse to treat will be subject to limitations based on the objective reality of the risk. Arguably, the challenges related to Ebola are far greater than HIV. Further, Ebola might not even trigger ADA issues – given that it is an acute illness, and the ADA was not designed to deal with acute, self-limiting conditions; self-limiting here meaning recovery or death.
In sum, doctor are free to refuse care to patients with infections as long as they are not abandoning an already existing patient; and as long as the refusal does not trigger anti-discrimination laws. This analysis will include the objective risk and not the doctor’s subjective fear of risk.