Mr. “K” is a 48-year-old man with neuropathy due to alcoholism who comes to his neurologist's office drunk and misses appointments. He is abusive to the staff and his physician. He frequently states that the physician is incompetent because he has been unable to “cure” his neuropathy. Can you as a physician stop seeing this patient legally and ethically — and if so, what are the necessary steps to avoid liability?
DEFINING THE PHYSICIAN-PATIENT RELATIONSHIP
At the most basic level, physicians have no legal obligation to provide care. The US Constitution does not guarantee the right to health care, albeit, some state constitutions have been construed to provide such a right. Mainly, though, you are required through contracts with hospitals and other health care organizations to treat certain patients. Under the Emergency Medical Treatment and Active Labor Act, emergency departments and, therefore, their employees are required to provide care to patients in need of urgent treatment. Further, federal statutes, such as the Americans with Disabilities Act (ADA), prohibit physicians from refusing to care for patients on the basis of disability, race, gender, national origin or religion.
The basis for the physician-patient relationship is an expressed or implied contract. The patient initiates the relationship by requesting an appointment, but merely scheduling an appointment does not create a relationship. As the doctor, you initiate that relationship when you evaluate and provide treatment. Absent an established relationship, you are under no initial duty to treat the patient. You can refuse to schedule appointments with individuals who have inadequate insurance, and restrict your practice to a certain specialty or type of problem.
Once you establish a relationship with that patient, however, you are considered to be a fiduciary and will be held to a higher level of conduct — you are obligated to act in the best interest of the patient and subordinate your own self-interest. For example, you must adhere to a particular standard of care or you may be subject to a malpractice lawsuit. And you have a duty not to terminate the relationship except under certain circumstances or you may be charged with abandonment, which is breach of your duty to provide continuing treatment.
The four main ethical principles guiding the physician-patient relationship are beneficence, nonmaleficence, respect for patient autonomy, and justice. Beneficence dictates that the physician acts for the benefit of the patient. Generally, continuing to care and treat the patient provides him or her with a benefit; however, in certain circumstances terminating that relationship may prove more beneficial. You should not refuse to provide care to patients that you merely dislike or whose actions make treatment more difficult, such as, those who refuse to take medication or stop smoking or are substance abusers. You are expected to provide care to both victims of crime and perpetrators, as well as those injured in war — regardless of their alliance. You are expected to assume some degree of risk in caring for patients, such as operating on HIV-infected patients.
The ethical obligation is not without limits, however. You are not expected to provide care to patients whose behavior poses a significant threat to your health or safety or others; for example, a patient who brings a gun to their appointment or sells IV drugs while on the hospital wards or who threatens harm. You are not obligated to provide care that is futile or treatment that would compromise your own moral or religious beliefs, such as performing an abortion.
Nonmaleficence addresses the obligation to avoid harming the patient. By continuing to see and treat their patients, physicians avoid harming them. But there may be circumstances when terminating the relationship is necessary to prevent harm, such as when communication and trust are compromised. For example, a patient may be so confrontational, abusive, or noncompliant that a therapeutic relationship no longer exists and his or her needs may be better served by engaging another physician. This may also occur when a patient files a malpractice suit against the physician.
The principle of respect for patient autonomy dictates that patients should be empowered to select their own physicians. By extension, it follows that they should be entitled to continue that physician-patient relationship. Patient autonomy is, however, limited and subject to constraints similar to those manifest in the nonmaleficence principle.
DR. TERI THOMSEN...Image Tools
Justice demands that patients receive fair and equal treatment. It would be an injustice to discriminate against patients based upon criteria that are protected by law or generally accepted as inappropriate — that is, race, gender, age, financial status. Justice supports the right of patients to initiate and continue a health care relationship with their physician; however, this principle also supports terminating the relationship if it interferes with the right of other patients to have access to care. These circumstances may arise when a patient is so disruptive — taking excessive time, missing appointments, acting hostile to staff or other patients — that it compromises the care of other patients in the office or hospital setting.
The doctrines of conscientious practice and physician integrity dictate that physicians strive to provide appropriate care to patients in need. Implicit in these doctrines is the need to attempt to maintain therapeutic relationships with difficult or challenging patients, in a way that is consistent with your core moral beliefs and values.
Patients have rights, but they also have certain obligations. They are expected to follow their physician's recommendations and to follow-up in the fashion requested by their physician. Patients need to be honest in their dealings with their physician, so that care can be tailored appropriately. Patients are required to pay for physician services. Breach of their duty to comply with these obligations may constitute a basis for terminating the physician-patient relationship.
At the first signs of a troubled relationship, it is your best interest to be proactive. Discuss the underlying issues with your patient, and document the conversation in the medical record. Maintain a neutral tone — avoid becoming emotional — about the situation and try to engage the patient in a collaborative relationship. Should efforts fail, send a letter to the patient documenting the discussion and request behavioral changes and that another follow-up appointment be set up. At the next appointment, ask the patient to sign a written agreement governing the terms of your continuing relationship. If the patient either refuses to attend the follow-up appointment or does not comply with the requested terms, consider terminating care. Of course if the patient's behavior involves violence or illegal activities, then you should notify relevant law enforcement agents immediately; avoid dealing directly or engaging with that patient.
The American Medical Association (AMA) Code of Medical Ethics Opinion 10.01 Fundamental Elements of the Patient-Physician Relationship has established that patients have the right to receive information from their physician, to make health care decisions, to receive treatment with respect and dignity, and to confidentiality. It further states that patients have a right to continuity of health care, thus, “[t]he physician may not discontinue treatment of a patient as long as further treatment is medically indicated, without giving the patient reasonable assistance and sufficient opportunity to make alternative arrangements for care.”
Also in the AMA Code of Medical Ethics Opinion 8.115 Termination of the Physician-Patient Relationship, the organization states that although physicians have an obligation to provide continuity of care to their patients, they may withdraw from a case if they give “notice to the patient, the relatives, or responsible friends sufficiently long in advance of withdrawal to permit another medical attendant to be secured.”
For instance, you and your patient may mutually agree to terminate the relationship. Similarly, your patient may unilaterally terminate the relationship. Alternatively, the relationship may simply lapse when there is no longer a need for your services. Finally, you may terminate the physician-patient relationship by giving notice and adequate time to seek another doctor. The unilateral decision to terminate the relationship should be governed by the legal and ethical restraints previously discussed.
HOW TO TERMINATE THE RELATIONSHIP
Your relationship with your patient is not a written contract, but it should be treated like one in order to avoid legal consequences when terminating care. To avoid a charge of abandonment, provide a reasonable notice of termination, such as 30 days. You can check with your state medical licensing board as they may have rules defining adequate notice. This can take the form of a certified letter, with return receipt requested, mailed to the patient's home address. The notice must be timely, affording your patient a reasonable opportunity to locate acceptable substitute care. It is important that you inform your patients that he or she needs to continue medical treatment through another provider and the possible health consequences of not obtaining continuing care. Finally, provide a brief explanation containing a valid reason for terminating the relationship.
You are required to provide continuing care for a reasonable period of time, such as 30 days, while the patient seeks another physician. The obligation to provide emergency care may extend for a longer period of time or even be indefinite depending upon your on-call arrangements. You are not legally obligated to arrange for medical care from another physician, but you should provide resources or recommendations to help the patient locate a physician in the same specialty (through county medical societies, national boards, and specialty organizations). You are also obligated to provide the full medical record to the new physician or to the patient.
Make sure you notify your office staff that the patient has been terminated to ensure that they deal with the person appropriately. Also, notify the patient's other health care providers about the termination and transfer to a new physician. The termination process should be adequately documented, including detailed notes of any discussions with the patient, and copies of the termination letter and postal receipt should be placed in the chart. A final record entry should be made in the patient's chart.
Consideration must be given to constraints imposed by third parties, such as commercial insurance providers and government payers (Medicare, Medicaid, and the Veterans Administration, for example). Prior to initiating the termination process, be sure to review provisions in the insurance policies and governmental law and regulations to ensure compliance with requirements for terminating physician-patient relationships. Typically, alternatives such as referral to counseling or transfer to a second provider within the same system are required before a patient enrolled in a government health coverage plan can be involuntarily dropped or transferred to another system.
Finally, be aware that if your patient is a member of a protected class or is disabled he or she can bring a lawsuit alleging discrimination or violation of the ADA, so this must be considered as well.
Ethical and legal considerations should factor into any decision to terminate care for a patient — and even then, the option should be exercised only after careful consideration of alternatives. It is critical that you conscientiously complete and document all the necessary steps to notify and inform the patient of the process. Following these steps will help to avoid the possibility that the terminated patient would raise the issue of abandonment.
Dr. Thomsen is associate professor of neurology and director of medical student education in neurology at University of Iowa Carver College of Medicine in Iowa City, IA.
FOR FURTHER READING:
• Allison DM. Physician retaliation: Can the physician-patient relationship be protected? Dick L Rev1989;94:965.
• American Medical Association, Code of Medical Ethics, Opinion 10.01, issued 1992, based on the report “Fundamental Elements of the Patient-Physician Relationship,” adopted June 1990, JAMA
1990;262:3/33; Updated 1993: http://bit.ly/VbqfBo
• American Medical Association, Code of Medical Ethics, Opinion 8.115 Termination of the Physician – Patient Relationship, issued June 1996: http://bit.ly/11LmXt8
• American Medical Association, Legal Topics, Ending the Patient-Physician Relationship: http://bit.ly/VCglap
• Elder N, et al. How respected family physicians manage difficult patient encounters, J Am Bd Fam Med 2006;19(6):533–541.
• Fremgen BF. Medical Law and Ethics, 2nd ed. Pearson Prentice Hall, 2006, pp 90–94, 108–112.
• Furrow BR, et al. Health Law, 2nd ed. West Group 2000, pp 510–512.
• Harris SM. Take care when firing a patient. American Medical News
. Feb 4, 2008: http://bit.ly/WRAyrs
• Kaldjian LC, et al. A clinician's approach to clinical ethical reasoning, J Gen Int Med 2005; 20:306–311.
• Lo B. Resolving ethical dilemmas: A guide for clinicians, 2nd ed. Lippincott Williams & Wilkins 2005, pp 28–35, 157–162.
• Willis DR, Zerr A. Terminating a patient: Is it time to part ways? Fam Pract Manag 2005;12(8):34–38.