How to Properly Terminate a Patient
As hard as it is to find and keep new patients, sometimes there is a patient we no longer want to treat. We want to terminate the provider-patient relationship.
If you owned a restaurant, or an auto-body shop, as long as you aren’t discriminating against a protected class, in most cases you wouldn’t have to do anything more than notify the client you are no longer going to do business with them, and that would be enough.
As a medical professional, though, it may not be that easy.
Once the provider-patient relationship is created, you have a heightened duty of care to the patient. The patient has placed their health and wellbeing, sometimes their lives, in your hands, and you have accepted that responsibility.
This duty could come from a contractual promise, it could come from statute, or it could be implied from the circumstances. Regardless of its source, to breach that duty could result in liability for malpractice or other negligence or even patient abandonment.
To protect yourself in these situations, you’re going to want to adopt a three-part strategy: (1) Only create provider-patient relationships that you intend to create, (2) fulfill your duties to your current patients, and (3) establish and follow clear protocols for terminating patient relationships (which discharges the duty of care).
Most of our focus will be on the third stage. We’ll briefly address stage one. The second stage is more medical than legal and is undoubtedly covered extensively in those continuing education courses you attend every year.
Only Create Provider-Patient Relationships That You Intend to Create
In most cases, the provider-patient relationship is established when the patient walks into your office and fills out the new-patient paperwork. In those cases, you control the narrative. The terms of the relationship, the expectations of both parties, and several other relationship-defining promises are made clear in black and white on a document the patient signs.
But sometimes that provider-patient relationship is created much more subtly. Case law on this subject is by no means universal or consistent:
A medical provider who stopped to aid a stranger in immediate need of medical care creates a provider-patient relationship “and thereby assumed a duty of reasonable care towards the patient.”[1]
A doctor who accepted another doctor’s referral established a provider-patient relationship with the referred patient.[2]
A doctor who made medical decisions about treatment rendered by other doctors created a provider-patient relationship with patient,[3] even when he just discussed case over the phone with another physician and gave advice as to how patient should be treated.[4]
A doctor who provided a 90-minute consultation with patient established provider-patient relationship.[5]
A “doctor who evaluated medical information about a patient and made a medical decision about whether to transfer her to another hospital” establishes provider-patient relationship.[6]
When doctor examined patient at employer’s request and solely for employer’s benefit, no provider-patient relationship was established unless doctor injures patient by providing affirmative treatment or advice related to a course of treatment.[7]
Where no prior relationship existed, once doctor took “some action to treat the patient,” the provider-patient relationship was established. An agreement to be on-call did not in and of itself establish such a relationship.[8]
Where medical provider agreed to go to hospital in response to specific patient’s needs, this alone, without more, did not establish the provider-patient relationship.[9]
Doctor’s statement that he would examine patient did not establish provider-patient relationship.[10]
No provider-patient relationship established where physician examined an x-ray of patient as a favor to a member of the hospital staff, but physician never spoke to patient or patient’s family.[11]
“Mere examination of an individual, in the absence of an agreement to benefit the patient, does not constitute acceptance of that individual as a patient.”[12]
Medical provider’s public mission statement to provide “quantitative assessment and disposition for individuals in the Boston Area who require emergency psychiatric services” not enough to create provider-patient relationship with all individuals in the Boston Area or even those who encountered the program.[13]
There are hundreds of other cases where one of the court’s central issues was determining whether the provider-patient relationship was formed, and invariably, the doctor insisted that it had not been, but the patient insists that it dad. Notably, none of the cases I read involved a written contract—it’s always the cases on the margins that get litigated.
The lesson here is to be careful and deliberate when it comes to discussing someone’s health with them. Be mindful that your intentions are clear, especially in the following situations where the putative patient is not coming into your office:
Phone calls and emails
Telemedicine
Social media interactions
Other medical professionals seeking your advice
Favor for family or friend
IMEs, employer physicals, and other examinations at the request of someone other than the person to be examined
Although it may be awkward to decline to offer free advice to a family member or friend, the safest route is going to be to decline to get involved unless they come into your office, refer them to another practitioner, or just fall back on the tried-and-true liability excuse (this is a discussion about liability, after all): “I would love to get involved here, but I’d be taking an undo risk for me and doing you a disservice if I offered advice without having collected your history, taken your vitals, and examined you. It’s those dang lawyers. You know how it is. Liability at every corner.”
Establish and Follow Clear Protocols for Terminating Patient Relationships
Like the restaurant owner who posts a sign that says “we reserve the right to refuse service to anyone,” you, too, have a right to decline to accept someone as a patient, or if they’re already a patient, you can terminate the relationship.[14]
However, unlike the restaurant owner, you have far more to consider before ejecting a client from your place of business.
Some of those things you need to consider include the following:
Emergency Care (e.g., EMTALA[15])
Anti-discrimination laws[16]
Contractual obligations[17]
Charity care obligations
Grant requirements
Patient abandonment
Local ethical requirements
Sometimes the application of these exceptions is easy. For example, if refusal to render medical care would violate your Hippocratic Oath and cause the patient harm, it’s safe to say you have a duty to provide care. If you are refusing to accept a patient or are terminating a patient relationship because of prejudices you hold to a specific protected class, that’s a big no-no, too.
Although not an exhaustive list, there are also precedent-setting examples of when a doctor may lawfully dismiss a patient:
repeated noncompliance with treatment and follow up appointments that were previously agreed upon,
disruptive, threatening, or seductive behavior,
unreasonable failure to pay for services,
a physician’s closure of their practice or retirement
misleading statements about the patient’s past medical history,
patient’s chronic drug-seeking behaviors, or
criminal behavior at the office[18]
Although there are clear-cut examples on both sides, usually it’s going to require examining the facts on a case-by-case and the outcome will depend heavily on what happened in your situation.
If you are considering terminating a patient, you’ll want to consider the following:
What are the patient’s current health needs? (If there is emergent care required, you are taking a bigger risk and subjecting the patient to more risk by terminating the relationship without safeguards in place)
How easy or difficult would it be for a patient to find necessary healthcare elsewhere within the time needed? (If you are the only provider in your field, and the patient needs care specific to your expertise, the more I’d think about it before dismissing the patient)
Is the patient in a protected class? (If they are, you’ll want to examine not only your motives, but your ability to prove your motives before terminating the relationship.)
As part of this analysis, you should look at what constitutes patient abandonment. Once court summarized patient abandonment as follows:
When a physician takes charge of a case and is employed to attend a patient, the relation of physician and patient continues until ended by the mutual consent of the parties, or revoked by dismissal of the physician, or the physician determines that his services are no longer beneficial to the patient and then only upon giving to the patient a reasonable time in which to procure other medical attendance.[19]
Another court outlined three things a patient must prove to win a case for medical abandonment: (1) the unilateral severance of the doctor-patient relationship by the doctor; (2) without reasonable notice or without providing adequate alternative medical care; and (3) at a time when there is the necessity of continuing medical attention.[20] The standard for abandonment in your state may differ.
Only continue with the termination if you are convinced (consult an attorney if needed) that you can terminate the relationship in a way that will not be considered patient abandonment.
If at this point, you are still committed to terminating the relationship, consider your obligations to the patient as set forth by the AMA Principles of Medical Ethics:
Physicians’ fiduciary responsibility to patients entails an obligation to support continuity of care for their patients. At the beginning of patient-physician relationship, the physician should alert the patient to any foreseeable impediments to continuity of care.
When considering withdrawing from a case, physicians must:
(a) Notify the patient (or authorized decision maker) long enough in advance to permit the patient to secure another physician.
(b) Facilitate transfer of care when appropriate.[21]
I would also recommend, before terminating the relationship, that you call your local ethics hotline and run the situation by them. They should have some good advice related to your local ethical rules. If nothing else, you will have shown that you were thoughtful in your termination, not only by re-reading through this section of the book,[22] but also by consulting with the ethics chapter of your local board.
Document Everything
Once you’re committed to terminate the relationship, you’re going to want to make sure you document everything. Send a written letter to the patient.[23] The letter should provide a brief, valid reason for terminating the relationship, an agreement to continue to provide emergency treatment for a reasonable length of time (usually 30 days will be enough), during which time the patient can find a new provider. You may also consider offering the patient to find a new provider and notifying the patient that you are happy to facilitate the transfer of records to the new provider.
It probably goes without saying but keep the language professional. Refrain from calling names or blaming the patient. This letter should serve to help you if the patient ever initiates a claim or lawsuit, not incriminate you or make you look like the bad guy.
If there was a specific occurrence or occurrences that precipitated the termination, get witnesses to provide and sign objective statements. Objective the same way the medical charting would be. Instead of saying “the patient behaved in an aggressive and inappropriate way,” document that “the patient raised her fists and her voice, leaned in towards Nurse Charlie, and said ‘don’t you dare get that popsicle stick anywhere near my mouth.’”
Everything you document should be put in the patient’s chart.
Terminating patients can be tricky, but there is a right way and a wrong way to do it. Done right, and you can minimize the risk of creating a claim, or if one is right, giving yourself the best chance of defeating it.
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References
[1] Colby v. Schwartz, 78 Cal. App. 3d 885, 890, 144 Cal. Rptr. 624, 627 (Ct. App. 1978).
[2] Bovara v. St. Francis Hosp., 298 Ill.App.3d 1025, 233 Ill.Dec. 42, 700 N.E.2d 143, 146 (Ill.App.Ct.1998).
[3] DeLong v. Nelson, No. CV 17-11783-PBS, 2019 WL 4193423, at *12 (D. Mass. Sept. 3, 2019).
[4] Pope v. St. John, 862 S.W.2d 657 (Tex.App.—Austin 1993).
[5] White v. Harris, 2011 VT 115, ¶ 9, 190 Vt. 647, 650, 36 A.3d 203, 206 (2011).
[6] Wheeler v. Yettie Kersting Memorial Hosp., 866 S.W.2d 32 (Tex.App.—Houston [1st Dist.] 1993.
[7] Heller v. Peekskill Cmty. Hosp., 198 A.D.2d 265, 265–66, 603 N.Y.S.2d 548, 549–50 (1993).
[8] Day v. Harkins & Munoz, 961 S.W.2d 278, 280–81 (Tex. App. 1997).
[9] Ortiz v. Shah, 905 S.W.2d 609, 611 (Tex. App. 1995), writ denied (Nov. 16, 1995).
[10] Roberts v. Hunter, 310 S.C. 364, 426 S.E.2d 797 (S.C.1993).
[11] Minster v. Pohl, 206 Ga. App. 617, 619, 426 S.E.2d 204, 206 (1992).
[12] Hord v. United States, 178 F.3d 1283 (4th Cir. 1999) (citing Tumblin v. Ball-Incon Glass Packaging Corp., 324 S.C. 359, 478 S.E.2d 81, 85 (S.C.Ct.App.1996)).
[13] Garcia v. City of Bos., 115 F. Supp. 2d 74, 78 (D. Mass. 2000), aff'd, 253 F.3d 147 (1st Cir. 2001).
[14] See, e.g., IC 39-1391(c).
[15] Emergency Medical treatment & Labor Act, 42 U.S.C. § 1395dd.
[16] E.g., Title II of the Civil Rights Act, 42 U.S.C. § 2000(a). This provision applies to that restaurant owner, too.
[17] You may have a contract that requires you to continue care in certain situations.
[18] Jung S, McDowell RH. Abandonment. [Updated 2022 Oct 3]. In: StatPearls [Internet]. Treasure Island (FL): StatPearls Publishing; 2022 Jan-. Available at: https://www.ncbi.nlm.nih.gov/books/NBK563285/ (last accessed January 18, 2023).
[19] Tierney v. Univ. of Michigan Regents, 257 Mich. App. 681, 686, 669 N.W.2d 575, 578 (2003).
[20] King v. Fisher, 918 S.W.2d 108, 112 (Tex. App. 1996), writ denied (Oct. 10, 1996).
[21] AMA Principles of Medical Ethics: I, VI.
[22] Feel free to disclose that if a patient makes an allegation that you improperly abandoned them—I can’t guarantee it will help, but it can’t hurt.
[23] For several examples of letters you could use as a template, go take a look at a document repository created by Montgomery County, MD Medical Society: http://www.montgomerymedicine.org/members/learningdocs/Guidelines%20on%20Firing%20Patients%202009.pdf (last accessed January 18, 2023).