Avoid Lawsuit for Innocent Patient Relationship Reup Mistake

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Avoid Lawsuit for Innocent Patient Relationship Reup Mistake

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doctor and patient relationship

When your practice has finally made the difficult decision to end the doctor and patient relationship, there are a number of steps you should take to ensure that further contact doesn’t accidentally “unfire” the problem patient.

Failing to take precautions could reinstate the doctor and patient relationship, thereby resulting in ethics or even abandonment charges if the doctor refuses to see the patient again.

Duty of Care doctor and patient relationship

To better understand what can undo a patient termination, it’s important you familiarize yourself with the legal standard for such interactions. Simply put, doctors owe their patients a duty of care — a responsibility to provide treatment — but this obligation doesn’t extend to just anyone.  In order for a physician to be obligated to a patient, he or she must either:

  • have a pre-existing relationship with the patient;
  • have a commitment to the patient by proxy; or
  • take affirmative action to treat the patient.

The first category is fairly simple to determine by a quick check of your patient records, and the second category is unlikely to apply to your practice — as it chiefly concerns emergency care —so let’s focus on the third category.

Affirmative Action is Key

The generally accepted standard for determining whether a doctor and patient relationship exists is called affirmative action. It means that your physician has performed, or agreed to perform, either:

  • an examination;
  • a diagnosis; or
  • treatment of the patient.

Unfortunately, what constitutes affirmative action can vary widely from state to state; off-hand medical advice given at a cocktail party could be construed as affirmative action in one state, while an office assistant setting up an appointment for a potential patient could trigger it in another.

Very few states define doctor and patient relationship, except where it involves telemedicine, as in this example from South Carolina. Otherwise, these relationships are determined by prior case law, as in these examples from Oregon and Kansas.

Plan Ahead

Given this high level of uncertainty, your best bet is to over-prepare by establishing a rigorous set of procedures to follow whenever a patient is terminated.

Once a patient has been fired and a termination letter has been sent out, you should do the following:

  • Notify all office staff about the termination. Keep the memo simple: identify the patient, explain that you’ve ended the doctor and patient relationship and give the final date the patient can be seen under continuity of care (typically 30 days). Anything more could pose problems if your patient sues and the memo is subpoenaed. And under no circumstances describe any aspects of the patient’s medical care, as this could run afoul of the Health Insurance Portability and Accountability Act. Some offices don’t even name the patient in such memos to avoid that concern, preferring instead to use a unique identifier, such as the patient’s file number.
  • Notify all practice physicians about the termination. Patient terminations are typically between one doctor and one patient, but if this patient was causing one of your physicians a headache, chances are he or she will have the same effect on others. You should give the practice’s other physicians a heads-up, just in case the patient asks them for a referral to the doctor that just fired him or her. If the termination was practice-wide, you can safely skip this part.
  • Remove the individual from your roster of active patients. If your practice segregates patients as either active or inactive, move records for situations where you’ve ended the doctor and patient relationship over to the inactive file, as you would a deceased patient’s records. This reduces the chances that a temp worker or someone who missed your memo could accidentally schedule the patient for an appointment after his or her cut-off date. If your records are fully electronic, be sure to include a note in the file that he or she has been terminated.
  • Document All Post-Firing Encounters. During the continuity-of-care period between the firing and the patient’s ultimate expulsion, make certain that staff members document every encounter with the patient and the results of those encounters. While this won’t affect the status of the doctor and patient relationship, its important to be able to establish a pattern of conduct if the patient sues.
  • Use Disclaimers for Emergency Care. Some needy patients will abuse the continuity-of-care period by seeking emergency treatment for ailments that don’t appear to be actual emergencies. In these cases, ask the patient to sign and date a document stating that this appointment was conducted on an emergency basis and does not alter or delay the termination process. Use a fresh one for each such visit and keep copies of all of them in the patient’s file.

Checklist for Your Provider

In many respects, setting up office procedures and following through on them is the easiest part, as the actions of office staff rarely influence doctor and patient relationships. The main concern is how the doctor interacts with the soon-to-be ex-patient. It might be beneficial to give a list of dos and don’ts to your practice physicians if they encounter a terminated patient during the separation period or afterward.

Dos and Don’ts for Physicians When Dealing with Terminated patients:

  • Never discuss the patient’s health or wellbeing if they should encounter him or her outside of the office. Such discussions could be construed as an affirmative action that restores the severed relationship.
  • Use a disclaimer when participating in health fairs, online medical discussions and the like. While this is a good idea anytime, it’s especially important if the fired patient attends.
  • Avoid on-call duty until the patient’s dismissal is finalized. This reduces the likelihood of reestablishing the physician-patient relationship if the patient is hospitalized, as doctors can be called on for consultation in such cases.

Following these steps should help you avoid accidentally reestablishing a patient relationship. If you have further questions or concerns, consult an attorney or your state’s medical association for more advice. To learn the best ways to safely terminate a patient, check out the following online training course by Heidi Kocher, B.S., M.B.A, J.D., CHC: “Fire Your Patient Without a Costly Abandonment Lawsuit.” The 60-minute course will guide you through various steps to avoid an accusation of medical abandonment. Sign-up for this valuable course today!


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