How to “Fire” a Patient Without Fear of Litigation

Physicians should not react emotionally to ending a patient–physician relationship, according to Heidi Kocher, Esq, Partner, Liles Parker, PLLC, Plano, TX. At the National Organization of Rheumatology Managers 2020 Practice Managers Conference, held virtually this year, Ms Kocher took a deep dive into the steps involved in navigating this often-precarious process.

“When you get to the point of deciding to terminate a relationship, be conscientious and thoughtful about how you go about the process,” Ms Kocher said. “Don’t let emotions cloud your judgment, because the last thing you want to do when terminating a patient–physician relationship is to act impulsively. This is a deliberate process; you want to think it through and make sure you have your ducks in a row.”

How is the Relationship Established?

The first step to terminating a relationship is establishing that a relationship even exists. “You can’t fire a patient if you don’t have a patient–physician relationship,” she said.

This relationship is essentially a contract, based on an understanding that a physician will use proper professional skill to treat a patient. However, whether this “contract” was entered into can be unclear. Generally speaking, setting a first appointment for a new patient does not establish a relationship, nor does a physician merely offering general advice (“curbside consult”).

However, a physician does not necessarily need to see a patient for a relationship to be established (ie, communicating advice through another healthcare provider). “In that case, an overarching responsibility on the part of the physician established that relationship,” she said.

Although a physician may have an implied contract due to other contracts (ie, being on-call), this again does not necessarily establish the relationship. It all depends on exact facts, such as:

  • Was the physician asked to evaluate a medical condition and make a medical decision?
  • Is treatment for the same or a different condition that was treated while the physician was on call?

The concept of consent is also critical to determining whether this relationship was established. Although consent to a contract does not need to be expressed formally or explicitly, key questions can help determine whether consent was established:

  • Is the relationship for the patient’s benefit?
  • Was the relationship established with the express or implied consent of the patient?

However, certain circumstances do not establish a relationship. For example, when the examination of an individual is solely for the benefit of a third party (ie, life insurance examination) or if sufficient time has passed (although this is state-specific). Be careful with things such as health fairs as these can be tricky because making follow-up phone calls increases the risk for establishing a patient–physician relationship, discussions over social media, and “cocktail party advice” (do not ever provide an informal diagnosis and advise the individual to seek medical care from his/her physician).

The particulars around establishing a patient–physician relationship may be determined by state laws and cases, so looking into those can clear up any grey areas, Ms Kocher said. “If there is no patient–physician relationship, you don’t have an obligation to treat; you just can’t injure,” she added.

When Might a Patient–Physician Relationship End?

In general, the following circumstances might necessitate the termination of a patient–physician relationship:

  • Retirement or closing the practice
  • Moving, whether practice or physician
  • Leaving a particular payer or insurance network
  • Patient personality conflict/disruptive patient
  • Violence or abuse toward staff members
  • Noncompliant patient
  • Drug-seeking patient
  • Financial issues with patient, such as a large outstanding balance
  • Repeated or consistent no-shows
  • Conflict of interest, such as financial interests

Terminating the Relationship

Once it has been established that a patient–physician relationship indeed exists, and the physician decides to terminate it, certain steps must be taken.

“Abandonment is a huge, huge issue,” said Ms Kocher. “You cannot abandon a patient; it is, by definition, medical malpractice in most states.” More importantly, a patient can always leave a relationship with their physician at any time and is always free to seek another provider, but a physician cannot do the same, due to the issue of patient abandonment.

Abandonment can result in patient complaints, civil liability/medical malpractice claims, medical board actions, and even criminal liability. “Most physicians think about medical boards, but they don’t always consider that it might be serious enough to be criminal,” she said.

Beware that staff behavior can also create an abandonment issue (ie, refusal to book an appointment due to a large unpaid balance). “You never want to open the door to the argument that the physician abandoned the patient,” Ms Kocher stressed.

If a patient is seeking legal action against their physician, it may be difficult to prove elements of a legal breach, but it might be much easier to prove elements of an ethical breach.

“Do not forget that providers also have an ethical duty to their patients,” she emphasized. Proving a breach of ethical standards may be what leads to medical board complaints and licensure actions (remember the American Medical Association Code of Ethics).

What Does a Lawsuit Alleging Abandonment Look Like?

  • First, the patient and physician did have an established relationship.
  • The treatment relationship was unreasonably ended or discontinued, and the patient still needs care or medical attention.
  • The end of the relationship was without the patient’s knowledge or consent.
  • The provider failed to arrange another appropriately skilled provider to take over care or the patient did not have enough time or resources to arrange for another provider to take over.
  • The provider should have reasonably foreseen the harm that would result from ending the relationship or the termination of care.
  • The patient must actually suffer harm, injury, or loss as a result of discontinuing care.

When to Avoid Termination

A relationship should not be terminated under certain circumstances, such as if the patient is in a crisis situation or acute phase of care (ie, mental health, substance abuse, trauma, pregnancy, or surgery). In these situations, the physician may need to provide some type of postoperative care or may need to consider other ways to treat that patient (ie, telemedicine).

Other circumstances in which a relationship should not be terminated include when there is no other physician available to immediately take over care, when the patient is in need of highly specialized care that only the established relationship can provide, when the physician is the sole physician in a community (isolated or rural area), when the physician is the only provider who accepts Medicare or Medicaid (or other payer restrictions), or when the patient has a large balance but no other issues. In addition, the patient’s HIV/AIDS status, patients with disabilities, and patients in other protected classes (race, religion, etc) typically fall into the category of relationships that should not be terminated.

However, Ms Kocher noted that if the treatment for a patient’s disability is beyond the provider’s skill or expertise, that provider may be justified in terminating the patient–physician relationship and shifting the patient to another provider.

“If you really, really, really decide you must terminate a patient in one of these categories, contact your state medical association or board, malpractice insurer, and an attorney,” Ms Kocher said. “You may not be able to avoid an abandonment claim, but you can do your best to minimize costs and fall-out.” She reiterated the importance of not acting impulsively in these situations and making sure that all t’s are crossed and i’s are dotted.

Taking the Plunge to Terminate

Each physician practice should first develop and implement a standardized patient termination policy. Before taking the necessary steps to terminate a patient–physician relationship, the physician should ask themself if there is any way the relationship can be salvaged. For example, if a patient is noncompliant, the physician can write a detailed letter explaining why noncompliance harms the patient’s health and sincerely ask the patient to be compliant. Keep records of any communication with the patient and keep a copy of any letters such as these in the patient’s chart/file.

“In certain circumstances, the physician needs to bend over backward to make sure it gets in the record that the patient was not abandoned, that he or she attempted to work with the patient as much as possible, and that the relationship was not salvageable,” Ms Kocher said.

If the relationship cannot be salvaged, proper steps must be taken to effectively terminate the relationship. First, counsel the patient about the forthcoming events and document that counseling in the patient chart (it is always good to have a witness). Give written notice via a simple, straightforward letter notifying the patient of the end of the relationship. “Many state medical boards or medical associations have sample letters,” Ms Kocher noted. “Use these!”

Do not get into an argument or war of words with the patient and avoid using lengthy explanations as to why the relationship is ending.

“Most states don’t require a reason, so it’s usually better not to offer one, and to keep it very generic,” Ms Kocher advised. “The more you say, the more you open yourself up to a potential complaint or lawsuit.”

Give sufficient notice by telling the patient how long he or she has to arrange a new physician. This is 30 days in most states, and the date on the written notice letter starts the clock ticking, she pointed out.

“Always check payer contracts, as these may have different notice periods,” Ms Kocher added. “The state contract may require 30 days, but your payer contract may require 45, in which case you’ve complied with the state notice period but you’re in breach of your payer contract. You don’t want to lose a payer source, particularly if it’s a big one.”

Send the termination letter via first class mail, certified mail, and e-mail, and place the return receipt in the patient chart. If the patient refuses a certified letter, place the returned letter and envelope in their file as well.

“Again, you want to be very, very clear that you as the physician bent over backward to notify the patient and gave them the opportunity to find a new physician,” Ms Kocher said.

Offer alternatives (ie, physician referral, contact information for state/county medical society), and offer to confer with the patient’s new physician to ensure continuity of care. In addition, always offer to transfer or copy records, and transfer them promptly. Do not hold records because the patient has an unpaid balance. “That will get you into trouble,” Ms Kocher warned.

More importantly, the physician must continue treating the patient during the notice period. After initiating the notice period, bills and invoices can still be sent for care rendered during that time, and the physician can attempt to collect on outstanding bills, but be cautious when taking this action.

“It’s theoretically permissible to require cash from a patient treated during the notice period, but I think you put yourself in a dangerous spot,” Ms Kocher advised. “In light of how much it costs to defend a medical malpractice or board action, you might be better off recognizing that you’re going to eat something on the treatment of that patient in that 30-day period.”

Finally, if a patient files a lawsuit or complaint with the state medical board, this does not automatically terminate the patient–physician relationship. “This is a huge issue I’ve seen multiple times,” said Ms Kocher. “The physician might be upset or angry, but they still need to go through the formal termination process, and if the patient needs treatment during that notice period, the physician must provide it.”

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