By Greg Freeman
Executive Summary
Clinicians and hospitals must proceed with caution when terminating a relationship with a patient. Failure to do so can prompt allegations of patient abandonment and malpractice.
- It can be legitimate to terminate patients for a variety of reasons.
- Patients must be given sufficient notice and other information.
- Good documentation is important before and during termination.
Terminating a relationship with a patient or banning someone from a hospital is never done lightly, and, fortunately, it does not happen often. But when it is necessary, healthcare organizations must tread carefully to ensure that the patient is afforded other opportunities and that the potential liabilities are minimized. The most likely potential negative outcome of discharging a patient is that the patient will file a complaint with the licensing board, says Paul D. Werner, JD, attorney with the Buttaci Leardi & Werner law firm in Princeton, NJ.
Most often, termination occurs when a patient becomes overly aggressive, either with the provider or, more often, with the staff, he says. There may be a disagreement over scheduling or payments, for instance, and the relationship degrades to a point that it is no longer safe to have the patient there.
“There are more egregious situations where patients are being discharged from care because they’re continually trying to seek care that the provider is not willing to provide. Most often you’ll see that scenario in the context of prescriptions,” Werner says. “Certainly, providers that are dealing more with pain management issues are more likely to find themselves in a situation where there’s a dispute over access to prescriptions than their colleagues outside of that field.
Tell Them Why
The biggest practical concern when looking to formally end a patient relationship comes down to communicating why, says Jonathan Feniak, JD, a lawyer in Denver. Most medical boards and related professional groups recommend nothing less than a 30-day notice, Feniak says, but he recommends providers push that up to 90 days or even more, if possible.
As for the termination reason, medical professionals actually are not legally required to state why they are ending services, he says.
“However, it’s strongly advised that you do. Not only for the patient’s well-being and care, but from a medical ethics standpoint. It maintains a standard of professionalism and compassion when you can provide some rationale for no longer seeing a patient,” he says. “Even broad reasons such as incompatibility with treatment alignment and practice or even a lack of compatible rapport are better than nothing from an ethics and compliance standpoint.”
Providers first should consult a professional liability/medical malpractice legal or insurance expert before terminating a patient relationship, says Mark Pierce, Esq., CEO and founding partner of Wyoming Trust in Sheridan, WY. This is an important first step that can provide some peace of mind amidst what likely feels like a weighty decision, he says.
“It’s essential for you to be slow and purposeful in your termination proceedings. At a minimum, provide a 30 to 60 days’ notice of the termination of services alongside information on outgoing and patient-relevant resources,” he says. “That means providing assistance in helping your patient find replacement care and assisting in continuity of care, especially for prescriptions.”
Document everything, staying committed to clear, intentional paper trails, Pierce advises. The most commonly cited reasons for ending a provider-patient relationship tend to come down to treatment incompatibilities, such as repeated instances of a patient refusing or intentionally not complying with treatments. In some extreme cases, abuse may be involved, he says.
“Ensure you’re documenting all incidents following medical, insurance, and ethics boards’ standards,” he says. “This will help to prevent compliance penalties and even potential litigation, in the rare instance that a patient retaliates.”
Can Be Justified
There are several situations where it is appropriate to terminate a patient from a practice, says Paul F. Schmeltzer, JD, senior attorney with the Clark Hill law firm in Los Angeles. The decision to terminate care also can depend on state regulations and the nature of the care, he says.
If a patient no longer requires care in the hospital, then the relationship can be terminated. Some common examples of patient actions which can result in termination from the practice include noncompliance with follow-up care, failure to adhere to the practice’s office policies, verbal abuse, violence or threats of violence, inappropriate or criminal conduct, and failure to pay bills or to establish a payment plan to pay for treatment, he says.
“A patient crosses the line from merely annoying to worthy of termination when the patient or their family member threatens the provider or staff with violence or exhibits threatening behavior; the patient participates in drug diversion, theft, or other criminal activity involving the practice; or the patient exhibits inappropriate behavior or sexual misconduct toward the provider or staff,” Schmeltzer says. “If, after speaking with the patient, they refuse to follow the treatment plan, discontinue medication or therapy regimens prior to completion, or repeatedly cancel follow-up visits or fail to keep scheduled appointments with providers at the practice, then the patient’s actions also warrant termination from the practice.”
Patients should not be terminated due to their race, color, national origin, sex, disability, age, or limited English proficiency, he notes. The practice cannot terminate the patient because of their disability unless the patient requires care or treatment for the disability that is outside the expertise of the practice. The decision to terminate a patient should not be made lightly, Schmeltzer says. Prior to terminating the patient relationship, the practice should make an attempt to rehabilitate the relationship by addressing the underlying reasons for ending the relationship, such as the patient’s behavior or noncompliance, he says.
The practice should adopt a written policy and procedure that standardizes the practice’s termination process. The policy and procedure also should document the interventions required by the practice’s staff prior to terminating the relationship and mandate that the decision to terminate a patient must come from the provider or the practice’s leadership, Schmeltzer says.
If efforts to repair the relationship are unsuccessful, Schmeltzer says the practice should take these steps to terminate the patient: The practice should send written notice to the patient via first-class and certified mail with a return receipt requested. The letter should state the reasons for terminating the relationship, provide an effective end date, address the patient’s interim care with the practice, and offer to provide the patient’s medical records to their new provider. The letter should address any other details for the transition of care and remind the patient that medication refills will not be provided after the termination effective date. The practice should carefully document the reasons for terminating the provider-patient relationship in the patient’s medical record.
“Terminating a patient’s care must be done carefully to avoid accusations of patient abandonment, which involves the unilateral severance of the physician-patient relationship without reasonable notice or without providing adequate alternative medical care at a time when there is a necessity for continuing medical attention,” Schmeltzer says. If the practice’s notice of termination is not done properly, a patient may claim intentional infliction of emotional distress, Schmeltzer notes If a patient’s loss of trust in the medical provider or practice is the reason for termination, it can be considered a legitimate, non-retaliatory reason for terminating the provider-patient relationship, he says.
If a patient-physician relationship is terminated improperly, the patient may claim negligent termination by the practice because of their failure to provide adequate notice of termination to the patient, or adequate resources, so that they can establish care with another provider, Schmeltzer explains. The patient also could allege negligent termination if the practice fails to provide non-urgent medical care to the patient until care is established with a new provider, he says.
The circumstances of when and how the practice follows up with the patient after termination largely depend on the patient’s condition. If a physician leaves a patient in a critical stage of a disease without reason or sufficient notice to enable the patient to secure another physician, the physician could be subject to liability, Schmeltzer says. However, if a patient does not need immediate medical attention, supplying the patient with a list of substitute physicians can be a reasonable means of terminating the physician-patient relationship, he says.
Schmeltzer says there are several mistakes that practices should avoid when terminating the physician-patient relationship, including failing to document the reasons for termination and the steps taken to address the issue, failing to provide appropriate notice or assistance for the patient to transition to alternative care, and not following legal and ethical guidelines or institutional policies regarding the termination of patient care.
“In some cases, it may be appropriate to reconsider the decision to terminate care and readmit the patient if their behavior improves or if there are mitigating circumstances,” Schmeltzer says. “However, the decision to readmit a patient should be made only after thorough consideration of the reasons for the initial termination and the potential risks and benefits of readmitting the patient.”
Annoying Can Be Enough
Most physicians in office practice have public-facing jobs, working in close quarters with people who may be at their most vulnerable and not at their best interpersonally, notes Karen Owens, JD, partner with the Coppersmith Brockelman law firm in Phoenix. Patients, like people everywhere, range from easy to get along with to impossible even when they are feeling well, she says.
There are many different reasons why a physician may wish to terminate the physician-patient relationship, and so long as the physician stays within her ethical parameters, she can do so, Owens says. For example, it is not unethical to terminate a patient relationship if a patient is annoying to the physician or staff, particularly if the annoyance is to the point that the patient’s conduct interferes with the office’s ability to consistently provide proper care, she says.
“But whatever the reason — inappropriate behavior, non-compliance, or nonpayment — the physician needs to follow some important guidelines before showing the patient the door,” she says. “Failure to do so not only falls outside the physician’s ethical obligations but can result in patient harm — and can open the physician up to patient abandonment/malpractice allegations and professional board complaints.”
Generally, the physician will want to give the patient some lead time to find a new provider, and this notification must be in writing. The practice or facility should take steps to ensure the patient actually receives the notice, Owens says. Keep a copy of the letter and whatever evidence there is of receipt.
The amount of time given to the patient depends on a number of factors, including the frequency of the patient’s care needs and the reasons for the termination, she says. Typically, 30 days is a rule of thumb, but when a patient’s behavior is disruptive or disturbing to staff, other patients, or the physician, the patient may be limited to urgent care needs and warned to curb their conduct during that month.
“Care should be taken to document in correspondence with the patient that they are not prohibited from coming to the office for urgent needs or regular appointments when the failure to have the appointment could harm the patient,” Owens says. “In situations in which the patient is threatening staff, the physician should keep notes, with dates and details of interactions with the patient.”
A physician should consider all resources available before terminating a patient. If the physician works in an office or clinic owned by a large group or business, there likely will be policies that guide the physician’s actions, Owens says. In other instances, the physician’s professional liability insurer very likely has written guidance and can provide specific advice.
Hospitals generally also have policies regarding such matters, although hospitals are more limited in what they can do regarding “problem” patients, Owens says. The Emergency Medical Treatment and Active Labor Act (EMTALA), for example, in effect prohibits ejecting a patient from the emergency department (ED) if the patient may have an emergency medical condition. The Medicare Conditions of Participation and state regulations also place guardrails around what a hospital can do in the discharge process.
Importantly, a physician who has terminated a relationship with a patient in a clinic or office setting still will have to care for the patient if the physician is on call in the ED and that patient is present, unless the physician can find a substitute without delaying care, Owens notes.
“The trickiest terminations may be ones based on a patient’s inappropriate conduct. It is terribly important for the physician to remain cool and collected and not make comments that could come back to bite them later. Patients with behavior problems may well surreptitiously record such conversations,” Owens says. “While state laws vary, it generally is a bad idea to tell a patient to stop recording or video recording and instead try to de-escalate difficult situations — without making any promises. In extreme circumstances, security should be called.”
Other situations may be less traumatic, but sadder, she says. An example would be a patient who cannot pay her medical bills.
“Caution should be exercised in this situation, particularly if the patient has private or government-provided insurance. It may be a good idea to contact the insurer regarding its rules when a patient fails to cover co-pays and the like,” Owens says. “For government-insured patients, contact your counsel. In all such cases, compassion and professionalism can make the transition easier.”
Risk of Abandonment
The risks of terminating a patient relationship include claims of abandonment, breach of contract, discrimination, malpractice, licensing board disciplinary proceedings, and in the hospital setting, violations of EMTALA, notes Elizabeth L.B. Greene, JD, partner with Mirick O’Connell in Worcester, MA. It is advisable to review the risks to the provider or system of these claims, based on each patient’s situation, and work with the provider and their practice or hospital, and risk management or legal counsel when indicated, to mitigate applicable risks before terminating a patient whenever possible, she says.
Alternatives to termination may include providing the patient with written instructions or a plan of care and confirming they understand it, engaging a family member or social worker to support the patient in cooperating with the plan of care, or sending the patient a warning letter, she says. If the presenting circumstances involve abusive, criminal, or violent behavior, if appropriate, the provider or practice is advised to send the patient a warning letter, which may include information of what the patient must do to continue receiving care, document their behavior history, and explain such continued behavior will cause termination of the patient relationship and may lead to reporting to law enforcement, Greene says.
In the instances of abusive, criminal, or violent behavior when immediate termination of a patient relationship may be necessary, the provider or practice should notify law enforcement and their legal counsel, she says.
“A provider should not terminate a patient relationship when a patient is at a critical stage of care or treatment, and if transitioning care is necessary, the provider should consult with their system leadership to arrange for alternative care for the patient,” Greene says. “It is important for providers to be aware if the patient is a member of a legally protected class under state or federal law to avoid discrimination claims, and to determine whether the patient requires support services if they are impaired by capacity or disability before terminating a patient relationship. Providers who are in a hospital must also be mindful of not violating EMTALA, medical staff bylaws, or hospital policies when considering terminating care of a patient.”
When the patient relationship is terminated, the provider should send a letter — not email — to the patient, by certified mail, return receipt requested, and keep a copy in the patient’s chart, she says. When termination of a patient relationship is not indicated to be immediate, the termination letter should provide reasonable notice and time to find a new provider and may offer to provide transitional care/prescriptions for a specified time, which often is 30 days. “The reasonable notice and time for finding a new provider is a critical issue as it presents legal risk to the provider/system, and while 30 days’ notice is generally considered appropriate, in a rural or underserved area, or for difficult to find specialties, it may be necessary to provide longer notice,” Greene says. “Providers in those settings are advised to consult their risk manager or legal counsel before terminating a patient relationship.”
Sources
- Jonathan Feniak, JD, Denver. Email: [email protected].
- Elizabeth L.B. Greene, JD, Partner, Mirick O’Connell, Worcester, MA. Phone: (508) 860-1514. Email: [email protected].
- Karen Owens, JD, Partner, Coppersmith Brockelman, Phoenix. Telephone: (602) 381-5463. Email: [email protected].
- Mark Pierce, Esq., CEO and Founding Partner, Wyoming Trust, Sheridan, WY. Email: [email protected].
- Paul F. Schmeltzer, JD, Clark Hill, Los Angeles. Telephone: (213) 417-5163. Email: [email protected].
- Paul D. Werner, JD, Buttaci Leardi & Werner, Princeton, NJ. Telephone: (609) 799-5150. Email: [email protected].
Terminating a relationship with a patient or banning someone from a hospital is never done lightly, and, fortunately, it does not happen often. But when it is necessary, healthcare organizations must tread carefully to ensure that the patient is afforded other opportunities and that the potential liabilities are minimized.
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