Avoid Patient Abandonment Claims with Education, Follow-up
April 1, 2023 11 minutes read
EXECUTIVE SUMMARY
Claims of patient abandonment may happen if a provider or facility cannot provide treatment to a patient. Good policies and communication can reduce the risk.
- Carefully document all attempts to communicate with an uncooperative patient.
- Educate patients about their obligations.
- Give patients enough notice when terminating a relationship.
Patient abandonment claims can arise when a physician or hospital can no longer care for a patient or when there is insufficient follow-up. The risk can be ameliorated with proper procedures and communication.
Accusations of abandonment often are related to a provider or clinician dismissing the patient for uncooperative or abusive behavior.
A claim of abandonment is a real risk, particularly if a patient is dismissed without reasonable cause, or when the provider’s actions fall outside the standard of care and the patient is harmed, says Sue Boisvert, BSN, MHSA, CPPS, CPHRM, DFASHRM, senior patient safety risk manager with The Doctors Company, a malpractice insurer based in Napa, CA.
Every healthcare setting uses different policies and expectations. To decrease the risk of misunderstandings, Boisvert encourages hospitals and clinicians to ensure that expectations are clear on both sides. Healthcare organizations should educate patients about their rights and obligations.
“When patients fail to adhere to practice expectations, such as rescheduling an appointment they do not intend to keep, or not being honest and speaking up about care they do not intend to complete, healthcare providers should investigate the cause,” Boisvert says. “The patient may have misunderstood the discussion or there may be a barrier to compliance, such as lack of insurance, inadequate transportation, or child care.”
Facilities and practices should create comprehensive policies and procedures to guide the response to inappropriate behavior, nonpayment of bills, and treatment nonadherence, Boisvert says. A proper policy can reduce the risk of an allegation of discrimination or abandonment when consistently followed.
Boisvert says the typical approach is this three-step process:
- Contact the patient and discuss the transgression, what is expected, and the consequences if the behavior repeats. Depending on the severity of the issue, a follow-up letter formalizing the discussion may be useful.
- If the issue repeats, contact the patient and issue a final warning.
- If the issue repeats, implement the consequence.
Document each step of the process in the medical record and include copies of letters, emails and text messages, Boisvert advises.
Sufficient notice and ample opportunity to seek other care become issues if the patient can no longer be treated. Healthcare providers are responsible for compliance with state recommendations and the contractual language in their payor contracts. With the assistance of an attorney, providers can develop policies and procedures that comply with state and contractual requirements.
“As a general rule, 30 days of emergency coverage is typical unless there is a reasonable expectation that it could take longer to find a new source of care,” Boisvert says. “Examples where a longer time frame, such as 90 days, might be necessary include treatment in scarce specialties, such as psychiatry and pediatric subspecialties, and areas with a low volume of providers with open panels.”
Patients Can Refuse Care
Dismissing a patient should be a rare occurrence, Boisvert says. Providers are expected to develop and maintain therapeutic relationships, and patients have the right to participate in their care — including the right to refuse. If a patient is refusing diagnostic procedures or a consult, the provider’s responsibility is to inform the patient of the benefits of the recommended treatment and the risks of refusing. The patient’s responsibility is to decide.
“Informed consent is for when the patient agrees, and informed refusal is for when the patient declines,” Boisvert says. “If the patient persists in refusing, the provider can memorialize that decision using an informed refusal form signed by the patient and documentation of the process in the medical record and continue to treat the patient.” Each physician must weigh their risk tolerance against the patient’s right to autonomy, she says.
A different way to look at this is the four ways a patient can leave the practice, listed in ascending order of risk:
- The patient transfers to another practice of their own volition.
- The provider and patient negotiate the patient’s voluntary withdrawal from the practice. (This is useful when the therapeutic relationship is strained. Document the discussion in the record.)
- The patient dismisses the practice. (This may happen when a patient is dissatisfied. Send a letter accepting the patient’s decision.)
- The practice dismisses the patient.
“Hospitals typically cannot dismiss a patient without extreme cause, and the process must be managed by corporate counsel after review of payer contracts, including Medicare and Medicaid, and regulatory due diligence,” Boisvert says.
Boisvert notes two risks with improper dismissal. “One is a claim of abandonment, and the other is a malpractice claim if the patient is harmed,” she says. “There are two routes to an allegation of abandonment. The patient or family can complain to the board, or the board may be notified in the course of a malpractice claim.”
Acuity Dictates Necessary Steps
When patients miss appointments, the extent of follow-up necessary is influenced by the acuity of the patient’s medical condition, says Elizabeth L.B. Greene, JD, partner with Mirick O’Connell in Worcester, MA. When a patient misses an appointment for urgent care, it is appropriate for staff to call the patient to find out why he or she missed the appointment, explain the importance of the appointment, and make reasonable efforts to reschedule as soon as possible.
“The more urgent a patient’s medical condition or follow-up care is, the more follow-up the staff or physician is advised to undertake to convey to the patient the significance of the care to be provided, and reschedule the appointment,” Greene explains. “When the patient with an urgent medical issue misses an appointment and cannot be reached, written communication to the patient is appropriate. These communications are important for quality patient care as well as from a risk management perspective.”
Physicians and other healthcare providers should create a system in their practice for follow-up of missed appointments, Greene says. Depending on the number of missed appointments and the acuity of the patient’s medical condition, in some instances it may be appropriate to notify a noncompliant patient of the risk of termination from the practice.
In such an instance, it is advisable for providers to consult their practice risk manager or legal counsel for guidance. Every communication or attempted communication with a patient about missed appointments should be included in the patient’s medical record, including copies of any letters or emails to the patient. This is protective in case of an unfortunate medical outcome that leads to a claim.
Document Communications
When there is a plan for follow-up care or testing, clinicians should document communications with the patient regarding subsequent visits, necessary testing, and its importance, Greene says. This can help ensure patient compliance and will help the provider defend claims that may follow a patient’s noncompliance.
“Also, contacting patients in advance of appointments can help reduce some no-shows. The legal ramifications and risks of patients who no-show for appointments or are noncompliant is that they do not receive the medical care they need,” Greene notes. “Later, they or their surviving family members may file suit against the provider for abandonment, an alleged delay in diagnosis of cancer or other condition, or for an alleged wrongful death of a patient.”
Depending on the patient’s condition and the provider’s specialty, it might be necessary to call emergency contacts or social services after missed appointments.
“For example, this might be reasonable and appropriate in instances of patients who are impaired by memory, medications, or other issues when they no-show for care and the staff or provider cannot reach the patient,” Greene says. “When doing so, providers will want to be mindful of what information is shared in order to remain compliant with state and federal privacy laws.”
Moral and Legal Obligations
Even when a patient does not show up for appointments, stops treatment without explanation, or fails to pick up test results, providers should remain cognizant of the moral and legal obligation to avoid patient abandonment, says Jacob Hascalovici, MD, PhD, chief medical officer and co-founder of Clearing, a telehealth platform for chronic pain patients based in New York City.
Providers should inform patients in writing that treatment is terminated. The idea of transferring or terminating care should be socialized when providers start to notice a pattern on a patient’s behalf of not fully participating in treatment or of skipping appointments even after multiple reminders. After a reasonable amount of time has passed for a patient to find an alternate provider, and after giving proper notice, the original provider can discontinue engaging with a patient.
“If and when the patient picks a new provider, the original provider should send over applicable patient records,” Hascalovici says. “Throughout the course of treatment, it behooves providers and clinics to give clear explanations of the expected course of treatment, to practice clear communication with appointments set in advance and reminders sent, and to practice thorough follow-up, including giving a patient multiple chances to reschedule missed appointments.”
If providers cannot give care for any reason, they should arrange alternate care options and explain these options to patients. When terminating a relationship with a patient, a provider should avoid causing harm, meaning they should not cease treatment abruptly, should not “ghost” or go silent on patients, and should not cease services midstream in a multistage series of treatments.
“Ceasing to engage with a patient due to nonpayment can make a provider responsible for patient abandonment,” Hascalovici cautions. “Providers should make sure a clear pattern is present of patients skipping appointments before broaching the topic of terminating the relationship. A single skipped appointment, in other words, is not sufficient to establish a pattern.”
Policies should outline how a provider will track patient interactions and how the provider will handle patients who fail to pick up test results or who skip scheduled appointments. The number of rescheduling attempts, notices sent, and protocol for giving notice of a patient-provider relationship termination should be described in detail.
“It is also a good idea to have a plan in place for how to proceed if a provider is accused of patient abandonment. Keeping thorough records and sticking to well-outlined policies can help protect providers against these charges,” Hascalovici says.
Discontinuing care is permissible if the patient presents a danger to the provider, if there is a conflict of interest, if patients repeatedly fail to participate in their recommended treatment plan, or if patients repeatedly fail to attend scheduled appointments. A few other circumstances also apply, including when a provider is not trained to continue providing care.
“Choosing to discontinue care is a choice that should be made carefully and should be clearly communicated to the patient, even if the patient does not participate in the communication,” Hascalovici says. “Before discontinuing care, the provider should provide patient education for a reasonable amount of time and should also document these efforts.”
Acting in good faith is important, Hascalovici says. Providers should attempt to secure patient compliance multiple times before terminating the relationship.
“Patient abandonment is a serious consideration. That’s why clear communication, consistent and persistent messaging, and excellent recordkeeping are all very important,” Hascalovici says. “In areas of practice such as chronic pain management, patient abandonment should be kept top-of-mind, since these cases can be complex, can result in patient harm if treatment is not consistent, and can be characterized in some cases by patient noncompliance.”
Disciplinary Proceedings Possible
Many risks arise from patient abandonment, starting with the risk that the patient may not receive necessary care and treatment, says Jonathan Berger, JD, attorney with Nelson Hardiman in Los Angeles. There also is the risk of disciplinary proceedings — either from the medical board or, in some cases, from a hospital or health plan.
“Abandonment can lead to a tort claim in the event of a bad outcome for failure to meet the standard of care in either not following up with the patient who goes MIA [missing in action], or to provide direction and/or sufficient time to seek alternate services in the event that the practitioner terminates the relationship,” Berger explains. “I have not seen any statistics on this, but as we live in an increasingly litigious society, it’s not surprising that plaintiff lawyers will seek to add abandonment to the litany of claims that are brought. I think it’s clear that nobody likes the idea of being abandoned, especially by someone who was supposed to be providing care.”
Patients can be discharged from treatment in many circumstances, including the failure to pay for services, noncompliance with the provider’s recommendations, and disruptive or even abusive behavior by the patient that makes it impractical to continue. There also are situations in which a provider retires or moves away from the service area or opts out of a provider network that can lead patients to believe they have been abandoned.
Technology Can Pose Risk
Another possibility is unintentional abandonment.
“I worry that many practices are over-reliant on technology. A patient may have provided an email address or a text-capable phone number, but that doesn’t necessarily mean that those are effective means of communication, notwithstanding the claims made by vendors of patient engagement tools,” Berger says. “You need to know your patients and [know] their level of understanding in dealing with the health system.”
Providers should recognize this is an area where “an ounce of prevention is worth a pound of cure,” Berger says. Time and money should be invested in quality patient registration and consent forms, and the personnel to review them with patients so the reasonable expectations are met.
In the case of a retirement or relocation, patients should be given at least 30 days advance notice — perhaps more in situations where finding alternate sources of care may prove difficult. The measures taken to contact patients should be carefully documented, using certified mail and other resources. If the patient is taking prescription medication, it is important to make sure they have an adequate supply on hand or refills submitted to the pharmacy to ensure there will not be any interruption during a transition to another provider.
“Special care should be taken with any patients with cognition issues, hearing or sight impairments, and other conditions that may lead to a written notice or a voicemail being misunderstood. Ideally, the provider and the office staff should have an idea of which people within the patient’s circle can be relied upon to make sure that messages are received,” Berger says. “If the patient is transitioned to a new provider and a request for medical records is received, then it is important to have a swift response so that the new provider has the benefit of all relevant information as soon as possible.”
Patient abandonment can lead to other negative consequences, such as complaints to regulatory agencies or creating negative publicity resulting in reputational damage, notes Kamila Seilhan, DO, medical director with LabFinder, a lab-testing platform for patients based in New York City.
The risk of abandonment complaints probably is higher with patients with complex medical problems and those who are prescribed controlled substances. Providing specific referrals is helpful if it is necessary to dismiss a patient from further treatment.
“If a claim is made, documentation is everything,” Seilhan says. “Giving the patient adequate notice and a referral is the minimum in terms of standard of care to be able to make a defense.”
SOURCES
- Jonathan Berger, JD, Nelson Hardiman, Los Angeles. Phone: (310) 203-2800. Email: [email protected].
- Sue Boisvert, BSN, MHSA, CPPS, CPHRM, DFASHRM, Senior Patient Safety Risk Manager, The Doctors Company, Napa, CA. Phone: (800) 421-2368.
- Elizabeth L.B. Greene, JD, Partner, Mirick O’Connell, Worcester, MA. Phone: (508) 860-1514. Email: [email protected].
- Jacob Hascalovici, MD, PhD, Chief Medical Officer and Co-Founder, Clearing, New York City. Phone: (855) 852-0858.
- Kamila Seilhan, DO, Medical Director, LabFinder, New York City. Phone: (855) 452-2346.
Patient abandonment claims can arise when a physician or hospital can no longer care for a patient or when there is insufficient follow-up. The risk can be ameliorated with proper procedures and communication.
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