Medical Liability

Terminating the Patient/Physician Relationship: Discharging the Patient Without Abandoning

Under the heading “things they never taught you in medical school” falls the category of terminating the patient-physician relationship. Although patients can “fire” physicians for any reason and without advance notice, the reverse is not true. That is, not if you want to protect yourself from a claim of abandonment. Even so, physicians can discharge patients without fear of reprisal provided certain steps are taken.

Abandonment is defined as the unilateral severance by the physician of the professional relationship between physician and patient without reasonable notice and at a time when there is still the need for continuing medical treatment. The physician may be held liable for injuries the patient suffers as a result of the termination. A patient who alleges abandonment may bring a malpractice lawsuit against the physician based either on negligence or breach of contract. The patient may also file a complaint with the state against the physician’s medical license, seeking disciplinary action.

Understanding the legal basis from which a claim of abandonment arises involves understanding the nature of the relationship between patient and physician. Under the common law, there was no recognized duty for any person to assist another, even in an emergency. Applying this principle to the patient-physician relationship, it is generally recognized that a physician has no duty to render medical care and treatment without an agreement to do so. However, once a physician agrees to treat a patient, either expressly or implicitly, a contractual duty is established. Just like any other contract, a legal duty is created.

The express contract is obvious - where the patient presents with a medical condition and the physician undertakes to treat the condition. The implicit contract is not as obvious. The patient-physician relationship may be established even after only slight involvement of the physician with the patient. In O’Neill v. Montefiore Hospital, 11 AD 2d 132, 202 NYS 2d 436 (1960), the court found that a physician who attempted to diagnose an individual’s condition over the phone entered into a patient-physician relationship. This, and other situations such as a physician or his staff giving telephone advice to a patient seeking care; listening to the telephone complaints of a patient seeking care and recommending a course of treatment; and scheduling an appointment for a patient seeking care with the understanding that the individual has been accepted as a patient, may constitute an implicit contract.

Once a contract is created, the general rule is that the physician has a legal duty to treat and to continue to treat the patient unless: (1) the patient’s condition no longer warrants treatment; or (2) the physician and patient mutually agree to discontinue treatment by the physician; or (3) the patient discharges the physician; or (4) the physician unilaterally withdraws from treatment and gives the patient appropriate notice of his intention and an opportunity to secure a competent replacement. The American Medical Association (AMA) Code of Medical Ethics states that once a patient-physician relationship has been established, the physician is obligated to provide the patient with consistent, ongoing care as need.

What circumstances lead a physician to want to unilaterally withdraw treatment and discharge a patient? The most common include non-compliant, abusive, threatening, no show and non-paying patients. As tempting as it may be to tell a patient that, starting immediately, you no longer wish to treat him, it’s not quite that simple. In a formal opinion, the AMA recognizes that although physicians have the option of withdrawing from a case, they cannot do so without giving sufficient advance notice to permit the patient to secure another physician. In addition, the AMA has established guidelines for the process of terminating the patient-physician relationship. These guidelines have been adopted by various state and specialty medical societies, including the Connecticut State Medical Society (CSMS), and have been upheld by the legal system when challenged.

The CSMS provides sample letters for discharge, which include the following elements: (a) a statement informing the patient that he is being discharged; (b) the general, factual basis for discharge (i.e., “your failure to follow treatment recommendations”; “your repeated failure to keep scheduled appointments”; “your threatening behavior toward me and my staff”); (c) a recommendation that the patient places himself under the care of another physician without delay; (d) an offer to continue treating the patient for an additional thirty days following receipt of the letter; and (e) an offer to send a copy of the patient’s medical records to his new provider upon receipt of a signed authorization. The letter should be sent via overnight mail with tracking or by certified mail, return receipt requested. The physician should keep a copy of the letter, with evidence of receipt, in the patient’s medical record.

The following are tips to reduce the risk of a claim of abandonment:

Carefully document the factual basis leading up to the termination;
Assure that the patient is medically stable prior to termination;
Assure that the patient has medication refills for thirty days;
Inform your scheduler that the patient has been terminated so that no additional appointments are scheduled that could be construed as re-establishing the relationship;
Do not withhold sending a copy of the patient’s record to the new provider even if the patient has an outstanding balance;
Work to end the relationship as cordially as possible;
Remember that your emergency department on-call responsibility remains even if you have terminated the patient.

The key point to remember is that there are valid reasons to terminate a relationship, but make sure you do so in a way that would convince a court that you legally discharged rather than abandoned your patient.

Melinda Monson, RN, JD
Director of Risk Management