Severing the Ties

Despite the fact that patients are the lifeblood of your life's work, extricating yourself from a less-than-ideal relationship with a patient while staying within the scope of the law is something that many physicians -- more than 60 percent of our surveyed readers -- are interested in knowing more about.

Patients who fail to pay, who consistently miss appointments, and who refuse to submit to tests or screenings you recommend may be appropriate candidates for dismissal from your practice. What about patients seeking services that you object to for moral or religious reasons, or patients who just show up in the ER with no apparent means to pay? Proceed with caution: With certain laws come obligations.

While physicians are within their rights to terminate a physician-patient relationship under some circumstances, it's important to understand all the legal implications and background first. And when you do decide to dismiss a patient, have a policy in place that you apply consistently.

Defining the relationship

At the cornerstone of this issue is the physician-patient relationship and how it is defined. To establish a physician-patient relationship, both parties must voluntarily consent to it, and the physician must indicate an intention to treat the patient.

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, or when a primary-care physician refers the patient to a specialist and the specialist's office gives the patient an appointment at a designated time and place.

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

Assuming the relationship exists, you have a duty to treat and cannot simply deny care to 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. However, under common law, there is a "no-duty rule" that says a physician has the right to refuse treatment to a patient in need of emergency care if there is no prior physician-patient relationship.

Statutory laws, which vary by state, add several layers of complexity to the common-law rules. Laws including those governing emergency treatment provided by hospitals (EMTALA, the Emergency Medical Treatment and Labor Act) and antidiscrimination statutes, as well as certain ethical constraints, play a significant role in how and when a physician can terminate that relationship.

Withdrawal from the relationship should not be attempted or done during a time when the patient is in need of medical attention. Otherwise, in very broad terms, you can legally terminate your relationship with a patient if you:

• Give the patient adequate notice in writing, preferably by certified mail, return receipt requested (30 days is a good rule of thumb).
• Give the patient a brief explanation of why you are terminating the relationship. Be absolutely certain that the reason given could not be a pretext for discrimination.
• Document notification and the reasons for termination in the patient's medical record.
• Help the patient find another physician. Generally this can entail giving the patient the phone number of the local medical society or a physician referral service.
• Offer to transfer medical records to a newly designated physician upon receiving signed patient authorization to do so.
• Continue to provide care if the patient remains in need of care.

It's also advisable to check with your malpractice carrier, particularly if you're in the middle of a course of treatment, and check with payers to make sure you're not in violation of your contract.

Your legal obligations

A physician's office is considered a "place of public accommodation," and is therefore subject to certain state and federal laws that affect the establishment of the physician-patient relationship. 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.

EMTALA (Emergency Medical Treatment and Labor Act) was enacted by Congress in 1986 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.

Certain federal and state laws, including antidiscrimination laws, do provide some grounds for physicians to refuse certain patient relationships. One allows physicians, other healthcare providers, and faith-based health systems to refuse to provide services, such as abortions and sterilizations, which 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 referral for 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.

The Ethical Opinion of the Medical and Chirurgical Faculty of Maryland, and similar edicts in other states, says "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.

Probably the best-known case surrounding treatment of an HIV-positive patient was decided in 1998 when a patient sued a dentist who refused to provide treatment in his office, but was willing to do so in a more expensive hospital setting. The court ruled that HIV constitutes a disability and ruled accordingly under the ADA.
As awareness and knowledge about HIV's spread and treatment have improved since then, these types of situations seem somewhat anachronistic.

Valid reasons to terminate

Given these legal limitations, there are some circumstances in which you can "fire" a patient in nonemergency 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 (generally 30 days) 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.

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.

Have a pay policy

Since there are so many sticky circumstances surrounding the termination of a patient relationship, it's best to have a written policy in place -- particularly with regard to payment of services -- and apply it consistently. For example, your policy might state that if the patient has been dismissed for administrative reasons (as opposed to clinical noncompliance), you will allow the patient to resume his care if 100 percent of the outstanding balance is paid.

Some practices have decided that once a patient is dismissed, they will no longer agree to extend credit, even after readmitting the patient. That is, the patient has to pay 100 percent of his bill at the time of service, and he can file his own insurance claim if he so wishes. And some practices will no longer schedule an appointment with a dismissed patient, but will treat the patient on a walk-in basis. 

For issues of clinical noncompliance, your policy should be reviewed by the physicians in your practice and your malpractice carrier.

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 last resort.

Joanne Tetrault, director of editorial services for Physicians Practice, can be reached at
jtetrault@physicianspractice.com. Joan Roediger, JD, LLM, a partner with the law firm Obermayer Rebmann Maxwell & Hippel LLC in Philadelphia, contributed to this article. She can be reached at (215) 665-3216, joan.roediger@obermayer.com, or editor@physicianspractice.com.

This article originally appeared in the January 2005 issue of Physicians Practice.