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. Finally, these articles are not intended as specific legal advice. For that, please consult with attorney licensed to practice in your state.
As you have likely heard, the relationship between a doctor and a patient is a contract. The patient consents to be treated and the doctor consents to treat. In that purely legal sense, the doctor would therefore have an unfettered right to refuse their role.
Of course, that is not actually so. There are critical limitations on when a doctor may refuse to care for a patient.
The first issue is understanding whether the doctor is already in a therapeutic relationship with that patient. Under the common law “no duty” rule, unless the physician-patient relationship has formed, the doctor has no legal obligation to treat.
However, the converse is that if the relationship has formed there are strict limitations on ending it. So it is essential to understand what may create the physician-patient relationship.
When a patient makes and shows up for an appointment and the doctor examines and treats him the relationship has obviously formed. However, the relationship can form in ways other than these express acts.
Courts and medical boards will look to whether the claimed patient could have reasonably assumed that they were a patient of that doctor. This is based on the fact that the doctor is positioned to assert by his words or actions whether he agreed to take the patient on. The more “medical” the patient’s contact with the doctor’s office is – not just signing in but filling out a history form and having it accepted by a staff member or meeting with an MA, for example – the more the claimed patient can have relied on their being a patient of the practice even before they ever meet the doctor. There, the relationship is established through the office protocols the doctor set up and the individual’s interactions with the medical agents of the doctor.
The doctor may also be bound to a the physician-patient relationship by his interaction with third parties, either by contract or through providing consultation. The former occurs when the doctor is obligated, usually through their privileges agreement, to provide on-call services to an ER (which would also implicate duties under EMTALA) or to be an Officer of the Day for admissions in his specialty, or is part of a managed care entity that schedules patients for it (but just being on a panel). These arrangements pre-establish a relationship to all patients the doctor may encounter in those roles. The latter occurs when facilities or other practitioners request a consultation on a patient. When the doctor is consulted in a setting in which it is obvious that their opinion will be relied upon and can have harmful implications for the patient’s care if given negligently, the relationship will be held to have formed in an implied fashion, even if the doctor and the patient in question never meet.
If there is an existing physician-patient relationship then it must be terminated according to the statutory and common law requirements of the jurisdiction to avoid actionable abandonment. Abandonment occurs when a patient in need of ongoing care is terminated by the doctor without adequate notice to establish care elsewhere. In general, this can be avoided with a letter stating the termination and offering 30 days of emergency coverage. However, if the doctor is aware that that will be insufficient time or that there is no equivalent practitioner available due to issues like specialization or insurance coverage then that would constitute “constructive abandonment.” In that setting, the doctor may have to take additional steps, such as seeking an alternative for the patient or extending the emergency coverage period or, in rare cases, may not be able to terminate the patient at all.
The next issue is, if the doctor wants to terminate the relationship, what reasons need underpin that termination.
The simple answer is that no reason is legally required unless the doctor is operating under a contract with a third party that requires a listed reason. Other than that, a doctor may refuse to see a patient for any reason or for no cited reason at all.
Patient non-compliance or bad conduct that impedes the doctor’s ability to render proper care, or a patient’s demand that the doctor engage in care that the doctor believes is fruitless or harmful or exceeds the doctor’s own expertise are all valid bases to refuse to treat. The underlying issue is that the doctor is required to adhere to the Standard of Care and so may refuse involvement in care that falls below that due to patient actions / requests.
A refusal to treat may also be stated from the start, either by closing to new patients because the practice is at maximum or by pre-limiting the scope of the care, as when a surgeon contracts with the patient for only the operation and the post-operative visits.
However, there are also limits that must be borne in mind.
Unless there is a state law to the contrary, although non-payment is a valid reason to terminate a patient, a patient cannot be refused care while still in the practice because they have not yet paid. This would actually constitute “internal abandonment.”
A doctor may also refuse to engage in care that he feels violates their religious beliefs, such as performing an abortion. The set-off, though, is that they likely need to refer to another practitioner and must, if the case is an emergency and there is no available alternative, provide the care himself.
Finally, the Americans with Disabilities Act precludes a refusal to treat a patient based on their disability unless the individual 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, practices or procedures.
In summary, the right of a doctor to refuse to care for a patient is actually quite broad. That refusal encompasses objective issues that limit the ability of the doctor to treat properly. It also encompasses purely subjective matters that impede the smooth functioning of the therapeutic relationship. Refusal to treat is subject to the requirements that patients may not be discriminated against, either directly or through a pretext, and that a patient who is already established must not be abandoned, issues that all doctors should bear in mind when denying or ending care.
[Medical Justice notes: If a patient terminates the relationship on his own, the doctor does not need to give 30 days’ notice. The patient, free to choose what type of care he wants, has already moved on. If the patient has made such a move, document in your record.]
ABOUT THE AUTHOR
Jeffrey Segal, MD, JD
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal received his M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
If you have a medico-legal question, write to Medical Justice at infonews@medicaljustice.com.
“Finally, the Americans with Disabilities Act precludes a refusal to treat a patient based on their disability unless the individual poses a direct threat or significant risk to the health and safety of others that cannot be eliminated by adequate precautions or reasonable Actually…no.modification of policies, practices or procedures. ”
Actually…no. If a physician feels that he cannot safely treat a patient, then once the referral to the next physician is made, he’s at least largely off the hook. It’s pretty hard to imagine a jury agreeing with a plaintiff’s lawyer that the doctor really could have done a great job, but just didn’t want to be bothered. Lots of luck to the PL with that approach.
If a doctor feels that a patient is engaging in high-risk behavior and is setting himself [the patient] for complications to arise, this technique has a lot going for it. When I was doing neurointerventional surgery, the last thing I wanted were patients with serious complications. If they were smokers–who seemed empirically to have odds ratios of 10-100X for complications for treating intracranial aneurysms, I flat out declined to treat them electively until and unless they both stopped smoking (which I could measure) and promised they wouldn’t start up again (which I obviously couldn’t).
I always provided them with the alternative that I’d be more than happy to refer them to colleagues who didn’t seem to are whether they were smokers; amazingly enough, not a single patient took me up on that-even if they didn’t stop smoking. Which tells me that no small number of patients have both hardware and software problems.
But I digress.
Bottom line is that it could be easily argued that I had not yet established a doctor-patient relationship, so the issue was moot for me in case. Perhaps that’s actually true. But perhaps it was not: if I sat down and explained everything about the patient’s problem, proposed surgical (interventional) solution, risks, etc., did that constitute formation of a doctor-patient relationship? If so, did my refusal to treat them until they modified their behaviors to be less risky constitute abandonment? I (obviously) argue in the negative.
What says out legal brethren?
If you believed the standard of care required a patient to stop smoking, then you did not have to treat your patient. You do not have to treat a non-compliant patient. You gave him an option. Stop smoking and I will do the case. Or, I will send you to someone else who may have looser restrictions. But, my recommendation is stop smoking.
As long as the standard of care is what others would support, then I do not see you abandoned the patient.
I would argue that loosening your standards to accommodate a patient’s budget or ability to comply is a greater risk to you in the courtroom.
If you knew the outcome related to noncompliance was dismal, and that outcome was foreseeable and preventable, and you still treated the patient, then a legal case might be made arguing you should not have abandoned your protocol.
Interesting piece. The corollary is also true in the ever more prevalent “peer reviews” once such peer reviewer enters the stage (“physician-patient relationship by his interaction with third parties”). More than once have I been able to void such a peer review by pointing out in writing that the patient in question would now be the sole responsibility of the peer reviewing physician and his agents, and they would carry any and all liability.
Strong move!
I did something similar once upon a time at the U where I was working. The chairman and the main counsel called me to meeting where they insisted that I either stop traveling to do cases or give them a hefty cut of my collections. Very imperious. They were gonna show me. [Not. I was a tenured full professor at the time, so the best they could do was posture, and they know it.]
I pointed out to them that I was willing to give them 3-5%; they wanted 50%. I told them no. But I also questioned the wisdom of them getting anything at all. After all, if they got a cut, then they were the deep pockets in case of a lawsuit–I’m just a little old doc. Did they really want that? [imagine blank stares, then:] How much are you bringing in each year? Oh, only a few thousand bucks. Well!! It’s a de minimis situation anyway. We’re through here.
Total turkeys. Never even asked me to show them a tax return–which would actually have verified what I was telling them. But after pointing out their potential liability, they wanted to get away from that meeting like I had ebola, and was sneezing.
Gotta love it.
Joint and several liability was removed in Pennsylvania at the request of the Pennsylvania Medical Society in conjunction with the Hospital association of Pennsylvania. Now the deep pockets don’t have any more than the percentage of liability and deep pockets mean nothing, only percentage liability.
I called the neurologist my disabled adult son sees for seizures. I asked if they take Humana Medicare Advantage and they said yes. They also said his primary doctor needed to do a referral. His primary doctor did the referral. The neurologist office gave my son an appointment. They called his primary doctor back and said they don’t accept Medicaid. She explained that his health insurance was Humana Medicare Advantage. He only gets waiver services through Medicaid. The office manager said they would not see him even though they accept Humana Medicare Advantage because he receives waiver services through Medicaid. I don’t understand why that should matter to them. Is this unusual behavior for a doctor’s office?It seems discrimanatory behavior to me.