When someone is disruptive or uncooperative, it may be time to part company. But dismiss that person carefully, or you could face a lawsuit.
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When someone is disruptive or uncooperative, it may be time to part company. But dismiss that person carefully, or you could face a lawsuit.
Take my patient, please! Nearly every physician has muttered some variation on this ancient punch line. Unfortunately, there's no way to avoid patients who won't cooperate, won't follow medical advice, won't keep appointments, won't pay their bills, or who are disruptive and abusive to the office staff.
You might turn the other cheek and try harder to communicate with such a patient. But eventually, exasperation sets in, and you want to terminate the doctor-patient relationship. That relationship is essentially a contract, and both parties must cooperate for it to work.
A patient can break the contract at will, simply by not returning to the doctor's office. Unfortunately, it isn't as easy for a physician to show the patient the door. How can you discharge a patient from your practice without getting sued for abandonment or discrimination? When can you refuse to treat a patient?
"These questions come up at every seminar we sponsor, and physicians call us about them all the time," says Kathy Oldyn, assistant vice president for risk management at St. Paul Fire & Marine Insurance. "That's why we and most other insurers have developed protocols and sample letters physicians can use to lower their risk of a lawsuit when they discharge a patient" (see below, "How to tell a patient Goodbye").
The issue of abandonment can have a big impact on a jury, say insurers. And now that doctors' offices are considered "places of public accommodation," you have to worry about discrimination as well. Physicians can't refuse to see a patient who's protected by law against discrimination. Managed care adds to the complications: Some contracts make it difficult to discharge patients, even troublesome ones.
Still, "no one can force a doctor to treat someone he'd rather not deal with," says Nancy J. Rudolph, risk management director at Frontier HealthCare in White Plains, NY. "That would be involuntary servitude. But the manner in which you say Goodbye could leave you open to litigation."
We'll describe how to say Goodbye safely. But, first, recognize that discharging a patient should be rarea last resort after repeated efforts at conciliation have failed, says Herbert Rakatansky, a gastroenterologist in Providence, RI, and chairman of the AMA's Council on Ethical and Judicial Affairs.
"In medicine, we have a long tradition of caring for patients we don't necessarily like," he says. "A little communication can go a long way. I wouldn't automatically discharge someone because he yelled at my secretary once after being kept waiting long beyond his appointment time. Intervention by the doctor can often rectify the frustration. But if the patient is continually abusive or threatening, those are grounds for dismissal. No doctor has to subject himself or his staff to that behavior."
With traditional fee-for-service insurance, a physician can dismiss almost any patient, as long as he provides adequate notice, helps the patient find another physician, and doesn't stop caring for that person in the midst of a medical crisis.
Managed care has complicated the process. Some plans limit a physician's ability to act unilaterally. "A physician could be in violation of his contract, unless he checks with the plan on its protocols for discharging the patient," says David Karp, loss prevention manager at Medical Insurance Exchange of California, based in Oakland. "Read the contract carefully to determine if you're able to discharge assigned patients. If so, what form of notice must you give them and the plan?"
Most plans require that a physician accept all patients who choose him from the panel, and many want to be contacted before a doctor dismisses a patient. The plans need to be assured that a patient has been discharged because he's abusive or noncompliant, not because he's just too expensive to treat, says Steven I. Kern, a health care attorney in Bridgewater, NJ. "If the plan believes that a doctor is financially discriminating against a patient with a chronic condition, it can throw the doctor off its panel, he explains."
After they're notified, some plans allow the doctor to discharge a patient as soon as a new primary care physician has been assigned. Others intervene and attempt to resolve the dispute first. For instance, a plan may require a physician to send the patient a series of warning letters. During that time, the physician would be responsible for caring for the patient.
"We have an ethical obligation not to abandon patients," says pediatrician Harold Zarkowsky, Midwest regional medical director for Aetna US Healthcare. "We'd rather be informed of a problem before it gets to the point of termination. We might be able to offer some counseling or mediation. Our case managers might be able to help the patient comply with the doctor's advice. But if a patient is repeatedly disruptive or noncompliant, the doctor is right to end the relationship. We just have to make sure another physician is assigned first."
Physicians' fears about being deselected if they dismiss patients from their practices aren't realistic, Zarkowsky says. "The issue just hasn't come up that often. Typically, the patient terminates the relationship by asking to be assigned to another doctor. It's still rare for the doctor to end it unilaterally. We need to be notified to help the physician through the process. There isn't a prescribed formula. We deal with this on a case-by-case basis."
If you're the one to leave the plan, the advice is straightforward: "Send a letter to each patient, and indicate what arrangements you've been told the plan will make to assign the patient a new doctor," says Karp.
As a place of public accommodation, a physician's office is subject to state and federal civil rights laws. Lawsuits alleging discrimination and violations of the Americans with Disabilities Act are on the rise, and advocacy groups are looking for test cases to expand protection of their constituencies. These cases are especially thorny, because the case law is still evolving.
They're also potentially more costly than a standard malpractice suit, because insurance doesn't cover illegal acts, says St. Paul's Kathy Oldyn. If it's determined that a doctor violated the law by turning a patient away, the physician could find himself without coverage for any award.
To see how knotty these cases can be, consider this recent one: An orthopedist in San Francisco was sued last year both for negligence and for discrimination under the ADA, because he declined to perform an operation on an HIV-positive patient. The surgeon denied that he'd discriminated against the patient. He said that the patient's depressed T-cell count unduly increased the risk of post-surgical infection, making him a poor candidate for the procedure (See, Was this sound medical judgmentor outright bias?, June 21, 1999).
But when another surgeon in Hawaii performed the operation and achieved good results, the patient sued the San Francisco doctor. It was one of the first "refusal to treat" lawsuits to come to trial since the US Supreme Court ruled that people with asymptomatic HIV are protected by the disability law, and that health care providers can't refuse to treat them without a bona fide medical reason. The Supreme Court held that fear of contagion isn't a legitimate reason for denying care.
The San Francisco physician's attorney argued that his client's decision was one of medical judgment rather than discrimination. The jury rendered a split verdict, finding the physician liable for negligence for refusing to operate. It awarded the patient $166,000. However, the jury rejected the discrimination charge.
The doctor's attorney worries that the case law is rapidly changing, and that doctors' responsibilities aren't clear. Other legal observers, including Gary Cloutier, the patient's attorney, predict that similar cases will arise. "If doctors refuse to treat someone with HIV, they'd better have a credible reason backed by scientific evidence," says Cloutier. "Otherwise, their decision may be construed as discrimination under the ADA."
The AMA's position is that a physician may not decline to accept patients because of "sex, color, creed, race, religion, disability, ethnic origin, national origin, sexual orientation, age, or any other basis that would constitute invidious discrimination." The law in many states is similar.
But this guideline isn't absolute. For example, whether discrimination based on sexual orientation is legal can vary by locale within a state. "It's illegal in New York City, but not in New York state, nor in the majority of states," says Margaret Davino, general counsel at St. Vincent's Hospital in New York.
Can a physician refuse to treat a patient because he's opposed to the "gay lifestyle" (see below, "When a doctor is uncomfortable with homosexuality)? Not in jurisdictions where discrimination based on sexual orientation is illegal. Even where it's legal, if the patient is HIV-positive, the doctor runs the risk of a suit under the ADA.
Antidiscrimination laws do make some exceptions. For example, no physician is required to perform a procedure that conflicts with his religious beliefs. "As a Catholic hospital, we obviously don't perform abortions or tubal ligations, and we don't prescribe birth control pills," says Margaret Davino.
However, emergency room physicians have almost no discretion in turning away patients, because of federal anti-dumping regulations. "If the local chapter of the Ku Klux Klan came in decked in their sheets and hoods following a cross-burning, the ER doctors would still be required to evaluate and treat them," says Lee J. Johnson, a health care attorney in Mount Kisco, NY.
Private offices are another matter. Let's say an African-American physician walks into the exam room to find a neo-Nazi patient with swastikas and "White Power" tattooed over his chest. Must the physician treat this patient? No, say attorneys. "Nazis aren't a protected class," says Davino. "A doctor isn't required to treat everyone who walks in the door, as long as he's not discriminating based on race, color, creed, and other classes protected by the law. Personal beliefs don't constitute a protected class." Similarly, a physician is entitled to refuse treatment for someone he dislikes for any personal reason, as long as it's nondiscriminatory under the law.
That's why during the late 1980s, a group of ob/gyn specialists in Brunswick, GA, was able to refuse to treat any lawyer or the spouse of any lawyer involved in litigation against any of the doctors. The case achieved national notoriety. The doctors had been sued by local attorneys, who then sought treatment from them. The doctors felt it was a matter of survival to turn away the attorneys. "Lawyers aren't a protected class, so there was no obligation to take them as patients in a private office," says Frontier's Nancy Rudolph.
It just makes sense to be as diplomatic as possible when discharging a patient. "There's no reason for a physician to provoke a patient with an excess of candor about his personal feelings," says James Lewis Griffith Sr., a malpractice attorney in Philadelphia. "If a doctor has such deeply held religious or personal beliefs that he feels he doesn't want to treat gay patients, he should check the law in his jurisdiction. But he should never say directly, 'I won't treat you, because you're gay.' It's easier for everyone if the office manager tells the patient that the doctor is booked up, so perhaps he'd care to make an appointment with another doctor in the practice.
"Alternatively, it's acceptable to say, 'Because of my religious beliefs, I don't think this will be a satisfactory doctor-patient relationship. But I'll treat you until you can find another doctor.' That's a lot different from saying, 'You're gay. Get out,' " notes Griffith.
"Physicians shouldn't impose their values on patients," says the AMA's Herbert Rakatansky. "There's also a difference between episodic care and a relationship that a patient may have with his FP over many years. In the latter case, continued bad rapport in spite of attempts to improve it is a solid reason for terminating the relationship. But I don't have to agree with a patient's values to take out his colon cancer."
It isn't discrimination for a doctor to turn away patients if he already has too many and his practice is closed to new ones. "But the doctor must be consistent," Rakatansky adds. "He can't say Yes to one patient and No to another."
More commonly, physicians want to dismiss patients who don't pay up or won't follow directions. Risk managers stress that doctors should try to bring such patients into compliance before ending the relationships.
"Why isn't the patient paying his bill?" asks Andrew A. Oppenberg, a risk management consultant in Northridge, CA. "Is he unhappy with the care he's received and contemplating a malpractice suit? In that case, a termination letter might push him over the edge. Is he facing a temporary financial crisis? Can he afford the medications you've prescribed? That may have some impact on his compliance, as well."
If no special circumstances applythe patient is simply a deadbeatyou must warn him that you'll discharge him from your practice if he doesn't make an effort to pay you. Until you go through the process formally, in writing, you have to continue to treat the patient, or you could face a suit alleging abandonment.
Any noncompliance should be carefully documented in the patient's chart. He should be informed of the specific potential consequences of failing to follow medical advice, and told of the need for ongoing care, says California loss prevention consultant David Karp.
"A California patient declined to get a Pap smear, despite several reminders from her FP," says Andrew Oppenberg. "She later developed cervical cancer and died. The California Supreme Court ruled the physician could be held liable, because he didn't go far enough in informing her of the consequences of refusing the test."
A decision to terminate the relationship must be made by the physician, never by the office staff. "If possible, discuss the termination with the patient in person," says Elaine M. Ziemba, vice president for risk management at The SCPIE Companies in Los Angeles. "The best approach is to have an open and honest discussion, explaining the basis for the termination. If the patient is too angry to meet with you or seems threatening to you or your staff, you must formally notify the person by mail to avoid a charge of abandonment."
Send such a letter by certified mail, return receipt requested, and keep the receipt in the patient's file. "If the patient refuses to accept the certified letter, file the returned, unopened letter in his chart, and send another copy of the letter by regular mail," says Karp. "Write a note in the chart to indicate the date the second letter was mailed, and by whom."
Give the patient sufficient notice that you will withdraw care. Usually, 30 days' notice is enough. Review the medical record for conditions that might require additional treatment or monitoring. Mention medication requirements, and reinforce your earlier recommendations. Tell the patient that you will continue to provide medical services until the termination date, and will see him for any emergencies that occur in that time, says Michael Zeffiro, director of risk management for Medical Liability Mutual Insurance in New York City. Refer the patient to the appropriate local medical society or hospital to obtain a list of physicians.
"Avoid referring the patient to a specific physician," says Elaine Ziemba. "You don't want to pass along your problem patients to your colleagues. Moreover, if you recommend a certain physician who later commits malpractice, you may find yourself sued for negligent referral." That could be a danger if you knew or should have known that the other doctor wasn't qualified.
Offer to transfer the patient's records promptly once you receive a written authorization, but send out copies only, never the original chart. Make sure that your appointment scheduler knows about the termination, so that she doesn't make any new appointments for the patient. Scheduling a discharged patient for a new appointment may be construed by the courts as the re-establishment of the doctor-patient relationship.
Must you tell the patient the reason you're withdrawing as his physician? Risk managers and attorneys disagree about this. "In cases of nonpayment, I don't favor giving a specific reason in the letter," says Lee Johnson. "The doctor may go too far and provoke the patient. You don't want to give the patient a quote that could return to haunt you. If the issue is noncompliance, it's good to get that on the record, but briefly. The noncompliance should be extensively documented in the chart, however."
Elaine Ziemba agrees. "We caution doctors against putting in too many specifics. If you tell the patient that he has been hostile to the staff, he might deny it and say the staff was hostile to him. You don't need a debate. It's easier to say something like, "There appears to be a breakdown in the trust between us, and trust is the cornerstone of a good doctor-patient relationship. Accordingly, this letter is to advise you that I must withdraw as your physician."
Other experts, however, favor spelling out the reasons for termination. "It prevents the patient from making up some theory later on," says James Griffith. "The reason you give doesn't have to be long, but it should be clear. Never attack the patient. Just state the facts. You could say, 'After repeated discussions, you have declined to follow my medical advice and won't obtain the testing I feel is essential for your health. The doctor-patient relationship depends on good rapport and trust. Since it appears that you have lost confidence in my advice, I must withdraw as your physician.' "
Jeffrey Moffat, a malpractice defense attorney in Los Angeles, agrees. "Spelling out the reason avoids confusion and gives the doctor a chance to go on the record. But even with a termination letter, you don't have to part on angry terms if you phrase the letter properly."
In the first case of alleged sexual discrimination in a doctor's office brought under the California Civil Rights Act, a lesbian charged that her physician discriminated against her when he suggested that she see another doctor in the practice for future appointments.
Michelle DuPont, 39, went to the Bristol Park Medical Group in Mission Viejo, CA, a primary care practice. When FP Ronald A. Axtell asked her if she used birth control, DuPont responded, "No. I'm a lesbian, and therefore pregnancy isn't an issue."
After completing the exam, Axtell told her that he was uncomfortable treating her because of her lifestyle, and gave her the names of two other physicians in the practice. He noted his remarks in the patient's chart. The American Civil Liberties Union of Southern California filed a discrimination suit on DuPont's behalf, alleging that the doctor had refused to treat her because of her sexual orientation.
Axtell concedes that he made the remarks, but denies that he refused to treat DuPont. "He's a religious guy, but he has other gay patients and hasn't allowed his personal views to get in the way of the care he provides," says his attorney, Jeffrey C. Moffat of Los Angeles. "The patient so vigorously expressed her lifestyle preference that he didn't feel they'd have a good relationship."
The lawsuit received widespread publicity in southern California but was settled last summer. Without conceding liability, Bristol Park Medical Group agreed to sponsor an in-house seminar for employees about discrimination, and to require them to sign a form stating they will comply with the group's nondiscriminatory policies. DuPont received a confidential financial settlement.
"This is a gray area of the law," says Moffat. "Is it discrimination to suggest that a patient seek help elsewhere, because she might form a better relationship with another doctor? The ACLU was hoping that this could become a test case to expand the civil rights law."
The settlement "reaffirms the principle that . . . all businesses open to the public must treat their clients equally, without regard to race, gender, or sexual orientation," says ACLU chief counsel Michael Small. "Discrimination, whether it be in the workplace or the doctor's office, can never be tolerated."
Mark Crane. How to cut loose from a troublesome patient.