EXECUTIVE SUMMARY
A charge of patient abandonment can occur even when the provider had no intent. Physicians should be reminded of how this serious issue can manifest.
- Uncertainty over insurance coverage under the Affordable Care Act could increase the risk.
- Transferring knowledge about the patient is crucial.
- Be liberal in defining what is sufficient notice for termination of a relationship.
The current healthcare arena, with a constricted provider marketplace and other challenges for patients seeking a new physician, can amplify the risk of inadvertent patient abandonment, says Ilan Heimanson, JD, partner with the Los Angeles-based law firm Heimanson & Wolf. He has handled cases in which patient abandonment was part of the theory of liability against the healthcare provider, and says many hinge on what the courts consider “sufficient notice” or “ample opportunity” to seek other care.
“In today’s environment where you may have to pick from a list that has one or two preferred providers in your area, that can become an issue,” he says.
With the uncertainty over the Affordable Care Act, Heimanson cautions that a patient’s loss of insurance coverage does not lessen the obligation to ensure continuity of care. If the patient misses appointments because of inability to pay, the physician may have some obligation to follow up.
“Obviously, it’s not the physician’s job to chase down patients and make them come in for a visit, but if a significant prescription comes up for renewal and you haven’t heard from the patient, a good practice would be to follow up,” Heimanson says. “That’s not going to be a standard of care, but if you have reason to believe that the patient is in jeopardy, it is always a good idea to take reasonable steps to investigate and urge the patient to seek help.”
Patient abandonment may be alleged after the physician fires the patient and there is no continuity of care, Heimanson says. The physician may be well within his or her rights to fire the patient, he says, but how that process is handled and documented can determine whether the physician could be held liable for patient abandonment.
Heimanson recently represented a patient who became verbally combative with his psychiatrist and was subsequently fired. The patient, who was not well enough to follow through with obtaining the proper medications from another physician, experienced mood swings that resulted in suicide.
“The pattern we see in these cases is similar to that,” he says. “What you want to see on the defendant physician’s side is that there was every possible effort to ensure continuity of care, and to ensure that there is a transfer of knowledge between care providers so that you don’t have a patient end up with no care at all.”
Avoiding Firing Patient If Possible
Firing a patient should be the last alternative when dealing with a difficult doctor/patient relationship, says Jose I. Almeida, MD, a vascular surgeon in Miami. He recalls firing only one patient in 20 years. Even when the physician is completely in the right, firing a patient puts him or her on thin ice right away.
“It’s usually a case of communication, with you thinking you said one thing and the patient taking it another way,” he says. “When these things go sideways, its usually because the patient felt wronged by the doctor, and then when the relationship ends the patient is primed to take issue with anything that might be construed as the doctor not upholding his obligation to the patient’s well-being. They have legal options — and these days, they can really trash a doctor’s reputation online.”
Documentation will be critical, but not just at the end of the relationship, Almeida notes. Physicians should routinely make note of a patient’s difficult attitude, unhappiness with the physician or staff, and similar issues because that history may be important later if the relationship is terminated.
Even the most difficult patients cannot be fired in the middle of a serious illness or episode, he says.
“That cannot even be perceived, the idea that you abandoned someone in the middle of an illness. That is a perception that can be hard to explain to others,” Almeida says. “No matter how strained the relationship, if there is an acute process going on, the doctor has to carry it through until the patient is stable. At that point, you can have that conversation about terminating the relationship, and it should be documented in the termination letter that the patient is now stable and care can be transferred to another physician.”
Almeida notes that the loss of insurance coverage cannot interfere with the obligation to care for a patient in an acute episode.
“If they’ve lost their insurance in that postoperative period, you better follow them through it for free,” he says. “That’s an ethical obligation before it has anything to do with legal risk.”
With a seriously ill or fragile patient, the physician may want to contact other professionals to try to arrange a transfer of care, Almeida says.
“That can help ensure that continuity of care, but it also can get tricky because it can be perceived as dumping, and that can lead to strains in the referral process,” he says.
Professional groups recommend that the patient be provided a list of doctors and encouraged to contact them about a potential relationship. The physician also may contact the local medical board to ask for assistance in finding the patient a new doctor.
“If it’s during a hospitalization, the physician should contact risk management right away, particularly if it is an acute situation or a potentially violent patient,” he says.
Transfer Knowledge of Patient
Physicians sometimes focus exclusively on notifying the patient to seek other care, overlooking the need to transfer knowledge to the next caregiver, Heimanson says. This requires a follow-up system that checks on whether the patient has obtained a new physician and notification that the medical record is available for transfer.
Heimanson offers the following advice to minimize the risk of a patient abandonment charge:
- Provide the patient with written notice of termination of services by a certain date (at least 60 days in the future), and strongly advise him or her to seek another care provider.
- Ensure that the patient chart is up to date, in order, and available for the patient to pick up. Or, offer for it to be sent to the substitute provider, upon confirmation by the patient. It would be good to create a short narrative “discharge note” that outlines the patient’s history, current diagnoses and conditions, and medical therapies in order to bring the new provider up to date quickly.
- If the patient is dependent on medications being prescribed by the departing care provider for health maintenance, it is crucial not to discontinue the prescription until a substitute provider has been identified and has taken over the care of the patient. If, after 30 days, the patient has not informed the care provider of the identity of the substitute provider, send a follow-up letter and/or email advising the patient that he or she must do so by a certain date.
- Develop a system that tracks these patient notifications and ensures that they were received by the patient.
SOURCE
- Ilan Heimanson, JD, Partner, Heimanson & Wolf, Los Angeles. Telephone: (310) 446-1522. Email: [email protected].
The current healthcare arena, with a constricted provider marketplace and other challenges for patients seeking a new physician, can amplify the risk of inadvertent patient abandonment.
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