How to Dismiss Problem Patients

Are you fed up with patients who fail to pay, who consistently miss appointments, and who refuse to submit to tests or screenings you believe necessary for their good health? Have you been confronted by patients seeking services that you object to for moral or religious reasons? In frustration, do you wish you could just tell certain patients "goodbye?"

You might be able to. Physicians can pull out of a physician-patient relationship under some circumstances, but it's important to understand all the legal implications and background first.

Defining the relationship

Under common law - a body of principles derived from unwritten customs or judicial decree (as opposed to legislative enactment) - the so-called "no-duty rule" means that a physician has the right to refuse treatment to a patient in need of emergency care if there is no prior physician-patient relationship. In order to establish a physician-patient relationship, both parties must voluntarily consent to it, with the physician indicating an intention to treat the patient.

Clearly, a physician-patient relationship is expressly established when the physician actually sees the patient. But it can be implied in other ways; for example, when the patient schedules an appointment with the physician, but does not keep that appointment; or when a primary-care physician refers the patient to a specialist participating in the same health plan and the specialist's office gives the patient an appointment at a designated time and place.

Once a physician-patient relationship is established, the general rule is that a physician has a duty to continue to provide care to the patient until that relationship is terminated by the mutual consent of the physician and patient; the patient dismisses the physician; the services of the physician are no longer needed; or the physician properly withdraws from the physician-patient relationship.

Today, statutory laws - those enacted by legislatures - add several layers of complexity to the common-law rules governing the physician-patient relationship. Laws including those governing emergency treatment provided by hospitals and antidiscrimination, as well as certain ethical constraints, play a significant role in how and when a physician can terminate that relationship. Also, specific laws vary by state.

Statutes that matter

In very broad terms, you can legally extricate yourself from a physician-patient relationship if you:

• give the patient adequate notice in writing preferably by certified mail, return receipt requested (30 days is generally acceptable);

• give the patient a brief explanation why you are terminating the relationship;

• document notification and the reasons for termination in the patient's medical record;

• help the patient find another physician;

• offer to transfer medical records to a newly-designated physician upon signed patient authorization to do so; and

• continue to provide care if the patient remains in need of care.

For physicians practicing under fee-for-service, that may be all that is required. However, if you are under contract to managed-care plans or you treat patients in a hospital setting, it is not quite so simple. In those cases, you are subject to the stipulations of your contracts with payers, and to laws that prohibit "patient dumping."

Regardless of your setting or payment structure, a physician's office is considered a "place of public accommodation," and is therefore subject to state and federal laws. For example, Title III of the Americans with Disabilities Act (ADA) prohibits a place of public accommodation from denying access to healthcare because of disability, unless the disabled individual poses a direct risk to the health and safety of others. The ADA also provides broad protections for those who are considered disabled by virtue of having certain diseases, such as HIV.

In several cases, the courts have addressed the application of the ADA to a healthcare provider's decision to refuse to treat a patient. The best-known of these is probably Bragdon v. Abbott, decided by the Supreme Court in 1998. The case involved a dentist who refused to fill a cavity of an asymptotic HIV patient in his office, although he was willing to treat the patient in a hospital at a higher cost to the patient. The patient sued for violation of the ADA, and the court ruled that asymptotic HIV constitutes a disability. The court's decision speaks to other healthcare providers' legal obligations to treat HIV infected patients as well as patients with other disabilities.

Hospital emergency room physicians are even more restricted in their ability to choose not to treat certain patients. The federal Emergency Medical Treat-ment and Active Labor Act (EMTALA) was enacted by Congress in response to a concern over "patient dumping" by hospitals refusing treatment to individuals who could not afford to pay for medical services.

EMTALA imposes a duty on the hospital and its physicians to provide medical screening exams and stabilization of everyone seeking emergency care, regardless of their ability to pay. Under EMTALA, a patient cannot directly sue a physician for not complying with the act, but physicians may be subject to civil monetary penalties and exclusion from participating in Medicare and Medicaid for flagrant or repeated violations of EMTALA.

A question of beliefs

Certain federal and state laws, including antidiscrimination laws, do allow some exceptions. One exception allows physicians and other healthcare providers (and faith-based health systems) to refuse to provide services, such as abortions and sterilizations, that are morally or religiously objectionable to them. Most states have some form of these "conscience clauses."

For example, some state laws stipulate that a physician cannot be required to perform, participate in, or make a professional referral for any medical procedure that results in artificial insemination, sterilization, or termination of pregnancy. However, in the case of a failure to refer, physicians can be liable for civil or disciplinary action if the courts find that it led to a serious or long-lasting injury or death to the patient.

Physicians who are uncomfortable treating homosexual patients need to be aware of their states' laws with regard to discrimination based on sexual orientation. If discrimination is illegal, so is dismissing a patient because he or she is gay.

Finally, the Ethical Opinion of the Medical and Chirurgical Faculty of Maryland, and similar edicts in other states, say "a physician may freely choose the patients he wishes to treat. However, fear of contagion should not be the sole reason a physician refuses care." Similarly, the AMA Council on Ethical and Judicial Affairs has deemed it unethical to refuse to treat patients because they are HIV positive.

Valid reasons

Given these legal limitations, there are some circumstances when you can "fire" a patient in non-emergency situations. If the patient does not currently require treatment and fails to pay for prior medical care, some courts have held that a physician can terminate the relationship after giving the patient reasonable notice and sufficient opportunity to secure another physician. In addition, at least one court has found that a physician may terminate treatment when he no longer participates with the patient's health plan. In that instance, you must inform the patient of the change, give the patient a list of providers participating in their health plan, or obtain the patient's agreement to pay out-of-pocket.

You also have the right to say "no" when a patient requests services outside your area of expertise or at a location other than your office. If a patient is generally unruly and uncooperative, you may terminate the relationship by giving the patient advance notice of the specific reasons you are severing the relationship and, assuming there is no change in the patient's behavior, give the patient written notice of the effective date of termination of the relationship - again, with ample opportunity for the patient to secure another physician, and when the medical situation is a non-emergency.

If you treat a patient during a limited time for a specific service, such as a surgery or consultation, you have no duty to continue visits or treatment thereafter. In this situation, be sure that the patient understands the treatment is limited to a certain illness or injury, or to a certain specified time and place, and that another physician or provider will be responsible for follow-up care.

'Reasonable care and skill'

The physician-patient relationship, which is similar to any contractual relationship, creates certain obligations. Assuming that relationship exists, you have a duty to treat and cannot just say "no" to the care of a patient without exposure to liability for abandonment of the patient, possible risk of malpractice suits, and possible licensure revocation, suspension, or other disciplinary action, based on specific state laws.

Withdrawal from the relationship should not be attempted or accomplished during a time when the patient is in need of medical attention, and be absolutely certain that the reason given to the patient for the denial of care could not be a pretext for discrimination.

Just as you must exercise reasonable care and skill in treating your patients, you must exercise reasonable care and skill in discontinuing the physician-patient relationship. Dismissing a patient should be a rare occurrence - a last resort.

What It Means for You

Feeling strongly that you should discharge a patient from your practice? Here are some dos and don'ts to stay within the law.

Do:

* Realize that dismissing a patient should be an act of last resort. Try every option to improve things first.

* Be certain that you are acting within the stipulations of payer contracts before letting a patient go - and keep the payer in the loop, in writing.

* Notify the patient in writing, with at least 30 days' notice, that you intend to discontinue your relationship and state the reasons why. Continue to provide necessary care during this time.

* Document notification and the reasons for termination in the patient's medical record.

* Help the patient find another physician.

* Offer to transfer medical records to the new physician upon proper patient authorization.

* Seek advice from an attorney if you need help or have specific questions.

Don't:

* Be pressured into providing services that you are against, for moral or religious reasons. Antidiscrimination laws make room for exceptions here.

* Initiate the process of terminating your relationship with a patient if there is any possibility that your reasons could be deemed discriminatory.

* Go into the process angry or without documentation of the situation.

Joanne Tetrault, managing editor for Physicians Practice Inc., can be reached at editor@physicianspractice.com.

[Diane Carter, healthcare attorney for Hilgers & Watkins, PC, of Austin, Texas, reviewed this article.]

This article originally appeared in the July/August 2002 issue of Physicians Practice.