The law governing medical abandonment is predicated on the more dependent status of the patient in the relationship with the physician.
Abandonment in the medical setting means the ending of needed care without either making or allowing for reasonable arrangements for that care to continue.
Once you, as a physician, have engaged to provide care to a patient you are bound to provide that care for as long as that physician-patient relationship continues and only the proper termination of that relationship will end that duty. Terminating incorrectly can therefore lead to you being held to have abandoned your patient.
The first issue to be considered is therefore whether a relationship exists that has to be formally terminated. Whether you were paid, or expected to be paid in future, is irrelevant in that assessment. In fact, as we discussed previously, whether you even intended that relationship to form may not matter if you conducted yourself in such a way that it did form.
What a court or a medical board will actually look at is whether it was reasonable for the person claiming to be your patient to believe that you were their doctor, so you always need to be proactive in limiting those expectations.
For example:
♦ If an initial visit is only for evaluation purposes and does not guarantee entry into your practice, provide a written statement indicating that fact to the patient at the start.
♦ If you do limited examinations like insurance physicals or school screenings, or if you volunteer at health fairs, participate only under a disclaimer that that conduct does not create an ongoing physician-patient relationship.
♦ If you participate in web-site discussions in which you provide medical expertise, limit that involvement to sites that have an explicit disclaimer that such conduct does not establish a physician-patient relationship.
♦ Do not examine or prescribe informally. (The latter is particularly important because great weight is given to prescribing in proving an intention by the doctor that the relationship continue, an intention that the patient could then reasonably rely on.)
However, once you know that a relationship with the patient exists it must be formally terminated.
A proper termination procedure comes down to a very simple issue: the separation does not have to be mutual – in fact, it can be entirely unilateral on your part even if the patient objects strongly—but it has to reflect the fact that medical care is a unique type of interaction because it can literally be a matter of life and death.
Your obligations are therefore to:
♦ Not terminate the relationship during a time when it is still necessary that care be continuous unless there will be an immediate transition to another physician
♦ Give adequate notice (30 days in most states) to the patient of the termination so that they will have the time to set up alternative care
♦ Support that transition, including by making records available or being willing to discuss the case with the new physician
♦ Provide coverage for emergency treatment during the specified transition period
There is no obligation to give the reason for termination and it is actually preferable as a general rule that you do not do so.
Unless otherwise specified by a practice or health plan agreement, you are not obligated to provide the names of alternative practitioners and can simply instruct the patient to contact their insurance carrier or the state medical society. However, a bare statement that the patient needs to find a replacement for you is not sufficient if an abandonment claim is later made against you.
You should specify that you will provide all records to any subsequent physician and it would be advisable to also include a release form with the termination letter. This will be evidence of your cooperative attitude towards continuity of care if an abandonment claim is later made.
Sample Termination Letter
Dear Mr. Patient:
Please be advised that this practice will no longer be able to treat you as a patient as of (date).
This practice will remain available for emergency care during the 30 day period beginning (date) and ending (date).
It is essential that you select another physician and arrange with our office for your records to be sent to them before (date). A release form is enclosed.
Your insurance plan or the local medical society (contact information) will be able to assist you in choosing a new physician.
Very truly yours,
Doctor Doc
You should also cover any necessary prescription refills that will accrue during that time and should document those in the chart.
Send the termination letter as certified mail to prove not only that you sent it and when you sent it, but that the patient received it and when that occurred.
The date on the letter would normally start the transition period clock running but this is a point on which you should use some flexibility. Since you know that several days of the transition period will be taken up by the time to deliver the letter, put in a start date a week from the one on the letter and factor that into any end-date you specify. Remember that your goal is to be defensible if the patient complains about you, so do not set yourself up to be seen as an unreasonable stickler who actually abandoned a patient by functionally giving them less than the required notice or coverage.
If the patient tries to abuse the emergency coverage exception to foist themselves back onto you as a patient by demanding to see you for an “emergency” that does not seem to be one, you have the option to refuse but that is frankly risky, both because this patient is already obviously troublesome and is probably itching to make a complaint about you and because they could actually be emergently sick such that you refusing to see them is abandonment. The better option is to see the patient and then put in a note that that was done because they claimed an emergency need. That brings you fully under the terms of your letter. Do not, however, put in that you disagreed but saw them anyway because that can be used to show that you waived the terms of your own letter by seeing the patient for routine care. Just state that the patient claimed an emergency, that you saw them and that you did not, in fact, find an emergency condition when you did so.
Do not fall back on telling the patient to go to the ER, though, because that would suggest that you perceived that the issue might actually be an emergency. If the care requested is care that you could have provided and you still tell the patient to go to the ER, you can be deemed to have violated the terms of your own termination letter, thereby actually creating abandonment.
If you do see the patient you must use the circumstance to reinforce the fact that the termination process is still going forward. Document that the patient was re-informed of the end-date of the transition period and was again advised that they will need a new physician by that point. You have thereby just closed off any claim by the patient that they reasonably believed that they had re-entered your care.
But what if there is a genuine emergency and you are thereby pulled back into the patient’s care?
Obviously, you will treat the patient for that emergency, as stipulated in your letter. However, the next step will differ based on what the patient’s further needs are beyond the acute phase if another physician will not be taking over from you:
♦ If additional care that will fall within the transition period specified in your termination letter is needed, you again need to document that these events do not stop the termination process and that the patient is aware of that.
♦ If the patient needs longer-term care that will extend beyond the specified transition period, the fact that you cannot terminate a patient while necessary care is ongoing takes precedence and the termination that you initiated is thereby stopped. However, you should document that it was explained to the patient that when this treatment period is ended that they will be terminated from the practice and will need to find a new physician at that time.
In all of these situations, having the patient co-sign the note is advisable because, as discussed earlier, in an abandonment claim the evaluator will look to the reasonability of the patient’s perception of whether you were their doctor and would continue to be so, and a signature on a note contradicting any such perception is quite iron-clad.
In summary, to effectively terminate your relationship with a patient requires the undoing of each step that formed it:
♦ The patient came to you in need of care. They can only be terminated when they are not actively in need of care.
♦ The patient sought care with you. They can only be terminated by giving them reasonable time to find care elsewhere.
♦ Your conduct allowed the patient to reasonably believe that you were their doctor. They can only be terminated by you laying out clear statements that make such a belief unreasonable.
Once you have fulfilled those obligations, you will have terminated the patient but will not have abandoned them.
However, there are other situations in which abandonment can occur that it is important to be aware of.
Let’s look at those situations:
Failure to carry out an accrued duty
We earlier noted the necessity to engage in limited-scope work like physicals and screenings only under a disclaimer that no ongoing physician-patient relationship is thereby established. However, the critical word there is “ongoing”.
Even within the scope of the limited care that you are providing, you still have the duties of a physician relative to what that examination reveals.
The law assumes that the examinee would expect to be told of any medically important issues the physician finds and that this imposes a duty of reasonable care on the physician to reveal any such to the examinee. Therefore, for example, if you notice a suspicious mole on the back of a patient you are performing a disability physical on, you are obligated to not just document it in the record but to inform the patient that it is something they need to have attended to by their own physician.
The duty to notify the patient applies for findings outside your specialty as well. For example, if you are doing an initial evaluation to decide if you will even accept the patient into your plastic surgery practice and you identify significant hypertension that was previously unknown, you are obligated to both inform the patient and to offer to send the results to their primary care physician.
You do not, however, have to order a biopsy or prescribe an anti-hypertensive or even make sure that the patient followed-up as you suggested. That would all be care associated with an ongoing relationship with the patient and it exceeds your duty, which was limited to dealing appropriately with what was found during the examination that you performed. That limited duty was fulfilled in full when you alerted the patient and activated an appropriate follow-up system. More is not required, but less is abandonment.
Constructive abandonment
This usually occurs when the termination process looks perfect on paper but, in the real world, the patient is actually left high and dry.
Whether the patient can get another physician, either within the time frame you specified or at all, must be realistic or you will be deemed to have constrictively abandoned them. For example, if you have specialized skills not otherwise available in your area, or you practice in an isolated rural town where traveling to another physician is impossible for your patient, or even if you are the only practitioner in your area who accepts Medicaid or Medicare or a given insurer and your patient is otherwise completely unable to pay for treatment, then your responsibilities as the discharging physician are higher than usual in terms of making sure that your patient can actually get alternative treatment, beginning with at least allotting more than the usual time for the patient to get a new physician and possibly including helping them do so.
However, if no matter how ample the transition period or assistance you offer is there simply are no practical alternatives to you, you may not be able to terminate the patient without facing an abandonment claim. In that case, you should contact your state medical board for instructions on how to proceed.
Constructive abandonment can also occur when the patient is still part of your practice. This can happen in several ways:
Failure to initiate treatment that was warranted
In a medical malpractice case this would be alleged in addition to the negligence claim, the premise being that the patient was internally abandoned within the active doctor-patient relationship because the care that was needed never began, leaving them as though they actually had no access to the treatment at all.
Refusal to assist the patient in accessing appropriate support
Physicians who refuse to fill out forms for such matters as legitimate disability claims or to get the patient an appropriate medical device or to keep a patient’s medically-required utilities on, or who will do so only for a significant fee that the patient cannot pay, can be held to have abandoned their patients.
Of course, a physician is not expected to be a kowtowing hand-puppet to an overly demanding patient or to assist an outright scammer to avoid being charged with abandonment. Constructive abandonment would only apply when the treatment or the assistance really were warranted but were unilaterally denied by the physician without good cause.
Refusal to see the patient
This most commonly occurs when the patient has a very large outstanding bill that they are refusing to address and the doctor tells them that they will not be scheduled for further appointments until that is dealt with. This acts as constructive abandonment because the patient thereby loses substantive access to the doctor while the bill remains unpaid.
Such a situation should instead be dealt with by the formal discharge of the patient from the practice, followed by all appropriate collection procedures.
This potential for falling into constructive abandonment in such “self-help” situations is an important reminder as to two points:
♦ There is no such thing as de facto ending of the physician-patient relationship by the patient by their conduct. Even if the patient actually sues the doctor, that does not, in and of itself, end the relationship. Therefore, any approach to a troublesome patient that begins with the idea that “Well, since the patient did (fill in thing that drives you bonkers) it means that I am no longer bound by my duties as a doctor” should be immediately avoided. Unless the patient says “You’re fired” they are still your patient until you formally terminate them.
♦ The law views the physician-patient relationship as one in which the patient, as the one needing expert services for their health, is in the dependent role. It is therefore protective of the patient. This means that any doctor who finds themselves in opposition to a troublesome patient should make sure to use only clearly sanctioned methods, such as formal discharge, that actually afford the doctor considerable protection.
Coverage
Because you are responsible for providing an adequate alternative to your patients when you are unavailable for an extended period, if you do not do so, thereby leaving the patient without needed care, it can give rise to an abandonment claim.
This could occur if you use a covering doctor who is not reasonably equivalent to you (e.g.; not from the same specialty or at least a closely allied one, such as internal medicine and cardiology covering for each other, or barely out of training when you are very experienced) and so cannot provide a comparable level of expertise. It can also occur if you continue to use an answering service even after it habitually proves unreliable at getting messages from the patient to the covering doctor accurately and promptly.
In both of those situations the patient really has no meaningful access to appropriate care through the coverage system their doctor has put in place and so is abandoned.
The final topic to consider is inadvertent abandonment, which occurs when the patient is left without care despite a system to provide care actually being present. This generally occurs in two settings:
No Coverage
In this situation, unlike the coverage issues that can give rise to constructive abandonment, there is a proper call schedule in place but the covering doctor becomes unexpectedly unavailable. To the extent that the doctor needing coverage could have then reasonably (e.g.; leaving a movie, not returning from a vacation out-of-state) stepped in to prevent the problem by taking the call personally but did not, they can be deemed to have abandoned their patient.
Office conduct
In this situation, unlike a refusal to see a patient who is not paying their bill, you are willing to see the patient but the conduct of your office staff creates the abandonment scenario. This can occur if your staff refuses to let a patient with a real problem talk to you or schedules a necessary appointment too far in the future or simply files away the chart of a patient who actually needs to do some important follow-up rather than contacting that patient. In all of these cases procedures to track the patient properly within the practice are present but the staff’s actions deprive the patient of access to those processes, thereby abandoning them. You therefore need to have set clear office policies in place—preferably in writing, since you may have to prove them—to prevent these problems.
In summary: The law governing medical abandonment—a failure to provide necessary care within the physician-patient relationship—is predicated on the more dependent status of the patient in the relationship with the physician. Therefore, when terminating a patient or when dealing with a patient actively, it is essential to fulfill your duty to make sure that your patient will not be left without appropriate care.
Dr. Medlaw is a physician and medical malpractice attorney. This article originally appeared on SERMO, which retains all rights to it.
Janine Anthes