Firing a Patient:
By Frank Ferrara, Editor-at-Large
Thanks to the televised adventures of
a certain east coast real estate tycoon, the nation has experienced
something of a firing frenzy
in recent weeks. The words “you’re fired” have
been repeated in jest from wife to husband, brother to sister, and
employee to boss; rumor has it that New York Yankees owner George
Steinbrenner attempted to fire his manager, third baseman, and half
of his hot dog vendors, before being restrained by a panicked staff
member. That the phrase has touched a national nerve is understandable.
While few of us have a fleet of passenger jets, an army of quip-equipped
henchpersons, or “yooge” hair, everyone can understand
the impulse to terminate a failing professional relationship.
For the physician, however, this impulse
can have far-reaching implications. While firing an office staff
worker is subject only to the same laws
and regulations governing all employer–employee relationships,
firing a patient—or, more properly, terminating the physician-patient
relationship (PPR)—can lead to a quagmire of legal and other
complications if done incorrectly. Almost every doctor has had a
patient who, for one reason or another—the patient is abusive
and threatening, the patient is deceitful, etc—he or she no
longer wishes to treat. In some cases, the temptation to deal with
such patients Trump-style, complete with the snake-like hand gesture
favored by the Hair and its host, is considerable. However, this
is seldom the wisest course of action.
Apprentice-related joking
aside, the ability to fire a patient is increasingly important
to the modern physician.
According to Greg
Milliger Consulting, recent years have witnessed the “rising
cost of medical liability premiums and other office expenses
while major payers, like Medicare, are reducing payments for
their services.” Accordingly, many practices have been
forced to accept more patients than ever before in order to remain
financially
viable.
If a patient’s comportment or actions force the physician
or office staff to devote a disproportionate amount of time to
the care
of that patient, thus taking attention away from other patients,
that viability may be threatened. Nearly 90% of physicians surveyed
by MD Net Guide (Table I)
have ended a relationship with a patient
at least once, and more than one-third have done so at least 10
times in their career.
Table
I: Dermatology Net Guide Instant Data: Bad Behavior
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Unfortunately, severing the connection between yourself and a difficult
patient is considerably more complicated than simply shooing
the patient out your door
with a pink slip. Generally, the relationship between the provider of a service
and the consumer of that service is considered to be an “at will” relationship;
either party is entitled to cease all transactions unilaterally, at any time,
subject only to general antidiscrimination laws. However, “The law recognizes
that the physician-patient relationship is different from the arm’s length
dealings between buyers and sellers of commercial products,” says the
Texas Medical Association. “Physicians have a fiduciary or trust responsibility
to act only in the best interests of their patients.” This fiduciary
relationship means that the physician has a special obligation to avoid abandoning
a patient in medical need.
This does not mean that a physician has no right to cease practicing
on a given patient. In 1987, Mississippi nephrologist John Bower,
MD, dismissed
a patient
with severe kidney problems because the patient had become abusive and
threatening (www.ama-assn.org/ amednews/2003/04/14/
prsa0414.htm).
The patient sued Dr.
Bower for abandonment. In a landmark decision, the New Orleans Fifth Circuit
of Appeals ruled in favor of the defendant, finding that to force Dr. Bower
to provide treatment to a patient would violate his 13th Amendment rights
against involuntary servitude.
However, the fiduciary relationship described
above means that termination of a patient must be carried out according
to a specific
and well-defined
protocol. This process will be described in more detail in the paragraphs
to come, but
the AMA (www.ama-assn.org /amednews/2003/04/14/prsa0414.htm) offers a
fairly pithy summary in its Code of Ethics:
“Physicians have an obligation
to support continuity of care for their patients. While physicians
have the option of withdrawing
from a case, they cannot do so without giving notice sufficiently
long in advance of withdrawal to permit another medical attendant
to be secured.”
If a physician fails to adhere to this standard, he or she may be
guilty of abandonment, an ethical violation that may constitute a
liability risk.
The first step in avoiding an abandonment claim is to be sure that
patients are not dismissed without adequate cause. What constitutes “adequate
cause” is of course open to debate, but generally physicians
may ethically refuse to treat a patient for any of the following
reasons:
- Routinely fails to pay bills for services rendered, even after
repeated warnings.
- Receives reimbursement through Medicare,
but is left without a payment option when Medicare changes its
reimbursement rules
such
that services are left uncovered.
- Is rude and abusive to
you and your staff, or makes threats against your health or life.
- Misses
office visits on a regular basis without a valid excuse.
- Alters
prescriptions that you give to him or her before filling them,
or visits a second physician to get duplicate
prescriptions.
You may also terminate the PPR if you suspect the patient
of using you to get prescription drugs or of redistributing
the
medications
you do prescribe.
Failure to comply with the physician’s treatment plan may
also constitute grounds for dismissal. In 1982’s Payton v.
Weaver, a California court ruled that a physician was not obligated
to continue treating a patient with end-stage renal disease because
that patient missed multiple dialysis appointments, did not abide
by the doctor’s prescribed dietary restrictions, and continued
to use illegal drugs in spite of their impact on her treatment.
Of course, it remains an ethical violation of the highest magnitude
to refuse treatment to a patient, or to terminate an existing
relationship, on the basis
of gender, sexuality, race, or religion; it’s also against the law, and
subject to the penalties associated with antidiscrimination legislation in
the physician’s jurisdiction.
The most important thing to remember about
the termination process is this: in any case where there is an existing
PPR, the dissolution
of that relationship must be formal, documented, and clearly understood
by all parties. The precise moment when such a relationship begins
may be difficult to determine. Certainly, once you’ve conducted
a history and physical exam on a patient, you have formed an official
PPR and cannot sever it without going through a formal termination
process. However, the genesis of the PPR may be even earlier. Medical
Mutual of Maryland (www.weinsuredocs.com/medicalmutualofmd/RM_
Library/LIB_ Terminating.htm) notes that depending on circumstances,
a PPR may
come into being when you agree to treat the patient on the telephone.
Even before the first contact between physician and patient, a PPR
may be extant if the physician receives managed care capitation payments
for that patient.
The physician and patient may agree at the outset of the relationship
that their interaction will be limited to a particular condition
(most often, a
specialty physician providing service for an acute condition); however, the
patient may have a reasonable expectation that the same specialist will treat
him or her should that condition recur. Further, until you have initiated
formal termination procedures, you are ethically required to continue
to treat every
patient with whom you have a PPR. You may not refuse to treat a patient with
an unpaid balance absent formal termination, for example; in fact, you are
even ethically required to treat a patient who sues for malpractice until
you sever the PPR. The lesson to be learned from all this is that
if you even wonder
whether a PPR exists, then it probably does; your safest course of action
when firing a patient is always to follow the procedure outlined
below.
The first step in firing a patient is
to make every possible effort to avoid
proceeding to step two. According to
an excellent article by attorney James
W. Saxton, Esq, found online at www.physiciansnews.com/law/499saxton.html, “Patients
that are just difficult for the physician or the staff to handle
are probably not appropriate candidates
for discharge…trying to rehabilitate these patients if at all possible
is the best policy.” Indeed, the Ethics Code of the American College
of Physicians (www. acponline.org/ethics/manual.htm) maintains that termination
should only be considered if “genuine
attempts are made to understand and resolve differences.” Remember
Dr. Bower, the Mississippi nephrologist whose patient was abusive and threatening?
After winning the lawsuit that granted him the right to terminate, Dr.
Bower
continued to provide care to that patient. “You’ve got to be
willing to accept the behavior of certain patients,” he said at the
time. “Our
career is one of service. We are here to serve them.”
However, everyone has a breaking point when firing a patient becomes
the only option available to the physician. Once you have decided
on this course
of
action, your most important move (step two) should be to document everything,
in writing and in multiple places, to ensure that you are protected against
a charge of abandonment. Formal termination begins with a letter, sent
to the patient, informing him or her of your decision.
- Firm Statement: The letter should state in no uncertain
terms that you wish to end the PPR. Remember: once the patient
has read your letter, you want to be absolutely certain that he
or she
understands your intent.
- Use Certified Mail: Send the letter
via certified mail to ensure delivery. In fact, to maximize your
own protection, you may consider
sending it “restricted delivery,” such that only
the addressee may sign for it.
- Sent Well in Advance: No matter
how frustrating the patient, it is unethical to leave him or
her abruptly without medical care.
Your letter should state that you have decided to terminate the PPR, effective
after a stated period of time. You should usually offer to
provide regular care for at least 15 days, and emergency care
for at
least
15 more.
- State a Reason (Or Don’t): Some experts strongly
advise against giving a reason for the dismissal; others suggest
explaining in brief.
You are not legally required to give your reason; you’re
only required to have a valid reason.
- Offer to Help Secure Alternate
Arrangements: Although you are not legally required to do this,
referring your patient to
another provider—or,
if you’re uncomfortable doing this, to your local medical
society so that he or she can find another provider—can
substantially reduce your risk of litigation.
- Copy the Patient’s
Insurer: A copy of the letter should be sent directly to the
patient’s insurance provider. “Depending
on the health plan,” says the American Association of
Health Plans, “doctors could violate a contract if they
dismiss a patient without following the plan’s policy.” Check
with the insurance provider to be sure this isn’t the
case.
In general, it is often advisable to word the dismissal letter in
such a way as to suggest that the end of the PPR is to the advantage
of the patient. Emphasize the importance of a healthy PPR, and inform
the patient that you feel that your relationship with him or her
is too damaged to be conducive to high-quality care. If the patient
feels that you have his or her best interests at heart, even at this
late stage, he or she is less likely to cause problems.
After sending the letter, document the termination in the patient’s
chart and remind him or her of the impending change at every office
visit. It may
be wise to send additional letters after 15 days have expired and at the
time of official termination. It is also very important to provide
written and oral
notice of the termination to every member of your support staff, as well
as to any other physicians in your practice. For example, if a dismissed
patient
contacts your partner for a prescription refill after the termination date
in your initial letter, and your partner is unaware of the termination and
agrees to prescribe the refill, it could reconstitute the PPR, requiring
you to dismiss the patient all over again.
Once you have initiated
the process outlined above, it is seldom if ever advisable to go
back, even if the patient promises to change his or her ways.
Generally,
as a physician you will be obligated to provide emergency care to a “fired” patient
if he or she comes to you, even if it happens after your stated termination
date. If this occurs, however, be sure to send a new termination letter;
your provision of emergency care may, again, reconstitute the PPR.
According to Medical Mutual of Maryland, the three chief risk factors
for liability following patient termination are: (1) failure to document
termination;
(2)
failure to provide adequate advance notice; and (3) failure to assist
in the securing of alternate care resources. If you follow the procedure
above
rigorously
and consistently you should be fairly well protected against subsequent
legal difficulties.
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| Terminating a
PPR while minimizing liability risk is a tricky venture, requiring
attention to detail. Below, you’ll find a summary of
the important steps in the process described throughout this
article:
30 DAYS BEFORE FIRING
- Write termination letter, agreeing
to provide usual care for
15 days and emergency care for 15 more.
- Include in the letter advice on
securing a new care provider.
- Send termination letter to patient,
via certified or restricted
delivery mail.
- Copy termination letter to health
plan.
- Document sending of termination
letter in the patient’s chart.
- Send a memo to all office staff
members and practice partners you may have, notifying them
of the impending termination.
15 DAYS BEFORE FIRING
- Send follow-up letter to patient,
reminding him or her that the usual care period has ended.
Inquire about his or her progress securing a new care provider.
- Document follow-up letter in patient’s
chart.
- Call the patient’s insurer,
to be sure they received your notice and have processed
it appropriately.
- Provide oral reminder of termination
to patient at every office visit, and document these reminders
on chart as well.
1 DAY BEFORE FIRING
- Send final notice to patient, confirming
termination date.
- Send all patient records to patient’s
new care provider.
- Send memo to staff and partners,
reminding them of termination.
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TexMed Q&A
Answers to important questions.
www.texmed.org/pmt/lel/termppr.asp
TexMed Sample Letter
Includes an example of a termination letter and an authorization
to release medical records.
www.texmed.org/pmt/lel/sampleltr_termppr.asp#Terminating
Legal Discussion of Abandonment
A trove of valuable information.
www.smcma.org/documents/Abandon.htm
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