By Greg Freeman
Executive Summary
Patients may refuse care from certain physicians or staff. Organizations must respond carefully to avoid liability.
- Some requests can be accommodated.
- Caregivers in protected classes pose more risk to the employer for liability.
- Reassigning a caregiver can cause problems with worker satisfaction and community reputation.
It is not uncommon for patients to refuse care from certain staff members for a variety of reasons. Whether a healthcare employer should accommodate that request depends on a number of factors that determine potential liability.
To address patient demands about caregivers, the first priority is determining whether the request involves a legally protected class, says Gordon H. Hirsch, JD, managing attorney with the Hirsch Law Group in Chicago. Federal laws like Title VII of the Civil Rights Act prohibit discrimination based on race, gender, religion, and other protected categories.
“For example, if a patient insists on a caregiver of a specific gender for non-medical reasons, accommodating this request could constitute illegal discrimination,” she says. “Employers must carefully evaluate each demand to ensure compliance with these laws, particularly since such decisions often carry significant legal risks.”
If the request does not involve a protected class, such as when the patient simply does not like the caregiver for a personal reason unrelated to discrimination, the employer has more flexibility, Hirsch says. However, even in these cases, accommodating unreasonable demands can lead to unintended consequences.
“It may erode team morale, damage the caregiver’s confidence, and even expose the employer to claims of unfair treatment or workplace bias,” he says. “An employee reassigned under such circumstances might argue constructive dismissal if they perceive the reassignment as punitive or demeaning.”
From a risk management perspective, Hirsch says healthcare employers generally should avoid honoring unreasonable patient requests, even when they are not legally prohibited. Instead, the focus should remain on communicating professionally with the patient, emphasizing the qualifications and professionalism of the assigned caregiver, he says.
For example, an employer might explain that the caregiver has been carefully selected based on their skills and experience, ensuring the highest standard of care, he says.
“Documentation is a non-negotiable element of handling these cases. Employers should maintain detailed records of the patient’s request, the analysis of the situation, and the final decision,” Hirsch says. “This protects the employer in case of future legal scrutiny and demonstrates that decisions were made thoughtfully and consistently.”
Tricky to Handle
While there are laws that healthcare providers must follow regarding not rejecting or providing a lower standard of care to patients based on the patients’ race, gender, or sexual orientation, the same does not exactly apply to patients wanting a different provider based on those things, says Ben Michael, JD, attorney with Ben Michael & Associates Criminal Defense Attorneys in Austin, TX.
“It is a bit tricky to handle these situations, and a main reason why there aren’t the same laws here is because these kinds of requests are often not discriminatory. For example, a Muslim woman may not want a male doctor due to religious reasons, or a woman may not want a male gynecologist due to past sexual trauma, or a Black patient may prefer a Black doctor because they have not felt heard about their concerns by white doctors,” Michael says. “While there absolutely can be discriminatory reasons for such requests, too, the fact that so many requests aren’t discriminatory in nature makes it difficult to create strict laws here.”
Navigating patient objections to caregivers based on personal prejudices can be a balancing act with major consequences if improperly managed, says David Haskins, JD, CEO of WrongfulDeathLawyer.com.
“I’ve seen cases that show how tricky it is to balance employer duties, medical ethics, and following the law,” he says. “Healthcare companies have to be careful while meeting such expectations. Requests concerning protected classes — race, gender, religion, or disability — usually come under anti-discrimination rules such Title VII of the Civil Rights Act or the ADA (Americans with Disabilities Ac). Denying a caregiver an assignment grounded in such prejudices might put businesses in legal hot water.”
A nurse denied working because of a patient’s racial bias, for instance, might later file a discrimination lawsuit, Haskins explains.
Employers may grant a request to satisfy the patient when it does not include a protected class, such as a patient merely “not liking” a caregiver, Haskins says. But agreeing to the request might still result in charges of favoritism or problems of workplace morale, he says.
“The secret is documentation: note the request, the decision-making process, and the actions done to guarantee justice and compliance,” Haskins says. “Emphasizing policies of equality while gently addressing issues, companies should explicitly interact with the employee as well as the patient. Aligning ethical responsibilities with legal requirements is ultimately about maintaining confidence in the caregiver-patient connection rather than only about compliance.”
Allowed in Some Situations
An employer may comply with a patient’s request for a different provider based on the provider’s membership in a protected class only under specific, carefully considered circumstances, says Chris Kmoch, JD, attorney with the Smith & Malek law firm in Boise, ID.
Patient preferences are important, but employers must balance these preferences with the legal protections against discrimination, he says. While an employer has an obligation to consider the patient’s request, if the patient’s request for a different provider is rooted in a non-discriminatory reason, only then may the employer have grounds to accommodate the request without potentially violating anti-discrimination laws.
“However, if the request is based on discriminatory beliefs because of a provider’s age — if over 40 — race, sexual orientation, etc., the employer risks liability for unlawful discrimination if accommodating the request since such an accommodation effectively supports or reinforces the discrimination,” Kmoch says.
Best Practices to Avoid Problems
Best practices indicate that the employer should question the patient — and document such questioning — in an effort to determine if the objection is related to the patient’s sincerely held religious beliefs or cultural preferences, Kmoch advises.
“If the objection is based on the patient’s sincerely held religious belief or cultural preference, the employer will have a stronger argument that any such reassignment was not discriminatory and was instead a reasonable accommodation to the patient,” he explains.
For example, if a patient refuses care from a provider who is a member of a particular religion, such as a Jewish patient refusing care from a Muslim provider, Kmoch says, in some cases, it might be reasonable to offer the patient an alternative provider. But that accommodation should not disproportionately burden the employer or result in unlawful discrimination against the provider, he says.
“On the other hand, if a patient simply expresses that they do not like Muslim individuals or persons of a particular race and requests a different provider on that basis, the employer risks liability for discrimination should such an accommodation be made,” Kmoch says.
The biggest factor in the distinction between a permissible accommodation and one that risks liability for unlawful discrimination is whether the request for the accommodation is reasonably based on a patient’s sincerely held belief, Kmoch says. If a request is made on the basis that a patient does not like a particular class of people, an employer accommodating such a request risks liability for unlawful discrimination, he says.
Another factor is who is making the determination whether to accommodate the patient’s request, he says. When the treating physician is the one making the decision whether to accommodate a patient’s request for another provider, courts generally have given physicians wide latitude in this regard, Kmoch says. If a physician is the one making the determination, it is unlikely that the physician would be able to successfully demonstrate that the employer engaged in an unlawful, discriminatory practice if the employer was not involved in the decision, he explains.
“The latitude provided by courts in these situations is likely due to the unique nature of the physician-patient relationship and the physician being chiefly responsible for determining the best course of care for the patient,” Kmoch says.
If the provider is not a member in a protected class, Title VII and other anti-discrimination laws do not apply. However, that does not mean that an employer should freely comply with every patient’s request to change providers, Kmoch says.
“For example, if a patient objects to a provider on the basis of something that is not protected by law — for example, being from Illinois or having red hair — an employer should still think twice before giving into the patient’s request for a different provider,” Kmoch says. “Even if the reason is not unlawfully discriminatory, an employee would likely still see such a practice as being discriminatory and as violating their trust with the employer.”
This could result in reputational harm with other employees and could give rise to legal liability in certain circumstances, such as if there is an employment contract between the employer and the employee that incentivizes certain performance metrics, and the reassignments result in the employee losing out on pay, he says.
If the patient’s request is accommodated, the employee could have a cause of action against the employer, Kmoch notes. An employer who substitutes a different provider after a patient objects to the original provider based on their membership in a protected class risks liability for unlawful discrimination under Title VII and corresponding state law, he says. Beyond anti-discrimination laws, the employer also could be liable for other common law causes of action, such as negligent or intentional infliction of emotional distress, he says.
Even if the accommodation is not legally prohibited, it still can be advisable to grant it, Kmoch says. Employers have an inherent duty to protect their employees while in the workplace, but patients have a right to make decisions about their healthcare, he says.
“If a patient expresses discriminatory beliefs based on a status that is not legally protected, it may make most sense to assign the patient a different provider based on safety concerns,” he says. “However, any such determination should be carefully considered in light of the legal and practical implications of granting such a request.”
Beyond legal risk, employers who do not stand up for their employees risk reputational harm with their employees and patients, Kmoch says.
“Additionally, simply giving in to every patient request at your employee’s expense could result in negative publicity and could ultimately diminish patient trust,” he says.
If a patient requests a change in provider because of the provider’s protected characteristics, and the patient’s request is rooted in the patient’s discriminatory belief about the provider, the employer should address this situation by educating the patient about the organization’s commitment to diversity and inclusivity, Kmoch says. Additionally, if the employer has a policy regarding patient requests for alternative providers, that also should be referenced.
Patient requests for a different provider, and whether such requests are granted, should be thoroughly documented, Kmoch says. Documenting this process will help employers identify patterns where patient objections are based on discriminatory views and whether reassignment or exclusion of certain providers is based on their protected characteristics. This will help to mitigate liability and avoid establishing a precedent that normalizes discrimination that could lead to legal claims.
Key legal risks for employers in such a situation involve potential claims of discrimination or harassment, violating civil rights protections, and creating a hostile work environment for the provider, he says.
Likewise, key legal risks for providers who refuse such accommodations could include the lack of informed consent, safety concerns, and deprivation of a patient’s right to choose their healthcare provider, he says.
“In light of these risks, a delicate balancing act is required, balancing physicians and other healthcare workers’ employment rights against patients’ rights to refuse medical care, including treatment by an unwanted provider,” Kmoch says.
Sometimes Legally Required
Although employers should not honor requests that discriminate against a caregiver based on race, gender, religion, or other protected characteristics under Title VII of the Civil Rights Act, one exception to this rule is when accommodating a patient’s request is legally required, says Jonathan Feniak, JD, a lawyer in Denver. For example, religious or gender-based care preferences in certain medical contexts is ethically reasonable to accommodate, he says.
“When it comes to caregiving, or healthcare in general, this is a fine line that employers must carefully tread. Honoring a racially motivated request, even if it does not technically violate a law, can undermine workplace equity and can create a hostile work environment,” he says. “Even if no law explicitly forbids compliance, allowing bias-driven reassignments can encourage further discrimination.”
Feniak advises healthcare employers to document all patient requests thoroughly. Include the patient’s reasoning and how the hospital responded, to protect the facility and employees. If a patient files a discrimination lawsuit claiming they were denied care unfairly or an employee sues for workplace discrimination, detailed records can serve as evidence of proper handling, he says.
Patients in many states have a broad right to choose their healthcare providers, as well as the treatment they choose to receive or do not receive, says Zachary R. Fowler, partner with the Gross McGinley law firm in Allentown, PA. This concept often is referred to as a “conscientious objection” and arises in a variety of situations, including blood transfusions in patients who are practicing Jehovah’s Witnesses, he says.
“This right likely extends to declining a provider for any reason, including personal preferences, bedside manner, and even moral objections,” he says. “However, navigating these requests requires careful consideration of legal and practical implications.”
The standards are different if the patient or the provider is raising a “conscientious objection,” he explains. With respect to a patient request, even if the request does not involve a protected class, accommodating the patient often is the best course of action. Finding an alternative provider within the practice group generally is the most prudent approach, he says.
Terminating the patient-provider relationship is even permissible in some circumstances, but that requires meticulous documentation, Fowler says. In that situation, he advises comprehensive charting such that records demonstrate consistent, appropriate care up to the point of discharge. There also must be unwavering care, meaning the level of care provided must not have faltered at any time, he says. Also be sure to follow all other discharge best practices. Even if legally permissible, accommodating a patient’s request based on subjective preferences can present challenges, Fowler says. Patients with frequent complaints may exhibit similar behaviors with subsequent providers. Maintaining a professional and respectful approach is crucial, he says.
When a patient requests a physician change, Fowler says the healthcare employer should offer an alternative. Provide the patient with a formal, written notification of an alternative provider within the practice or network, and explicitly acknowledge the patient’s right to seek care outside the network. The physician practice also should provide clear instructions on how the patient can obtain their medical records to ensure a smooth transition to a new provider, he says.
“While accommodating patient preferences is often advisable to avoid conflict and potential litigation, it’s essential to balance patient autonomy with legal and ethical obligations. Thorough documentation and a professional approach are paramount in navigating these situations,” Fowler says. “A proactive, patient-centered approach can often mitigate the risk of disputes and potential legal action.”
Sources
- Jonathan Feniak, JD, Denver, CO. Email: [email protected].
- Zachary R. Fowler, Partner, Gross McGinley, Allentown, PA. Telephone: (610) 871-1314. Email: [email protected].
- David Haskins, JD, CE, WrongfulDeathLawyer.com.
- Gordon H. Hirsch, JD, Managing Attorney, Hirsch Law Group, Chicago. Telephone: (815) 855-2028.
- Chris Kmoch, JD, Smith & Malek, Boise, ID. Telephone: (208) 925-2737.
- Ben Michael, JD, Ben Michael & Associates Criminal Defense Attorneys, Austin, TX. Telephone: (512) 729-1720. Email: [email protected].
It is not uncommon for patients to refuse care from certain staff members for a variety of reasons. Whether a healthcare employer should accommodate that request depends on a number of factors that determine potential liability.
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