Defining and terminating the physician-patient relationship
By Richard A. Geline, MD
Every orthopaedic surgeon knows at least one “difficult patient”—the one who repeatedly refuses to follow recommended treatment, leaves the hospital or medical facility against advice, or fails to return for follow-up treatment. A difficult patient may refuse to cooperate; challenge your judgment and insist on acting as the doctor; or dispute fees that, to a reasonable person, appear just and normal. Such patients may appear severely disturbed or threaten a lawsuit.
Confronted with this type of patient, many physicians simply choose to endure the difficulty and continue trying to provide good medical care. But remaining stoic in such circumstances can actually expose you to additional liability. On occasion, terminating a relationship with a difficult patient may be advisable and actually represent good risk-management practice.
What defines a physician/patient relationship?
This sounds simple enough, but the courts are continually clarifying and defining the situation. For instance, some attorneys claim that the relationship begins when the patient’s name is entered in the appointment book following a telephone call. Actually creating a chart represents a more advanced requirement for establishing the relationship. Courts have even held that a relationship exists if the physician has a capitated contract with a managed care plan, regardless of whether or not the physician has actually seen the patient enrolled in that plan.
The AAOS Code of Ethics and Professionalism for Orthopaedic Surgeons specifically addresses the physician/patient relationship in its first section. In addition to noting that the physician/patient relationship is the central focus of all ethical concerns, has a contractual basis and is based on confidentiality, trust and honesty, the Code discusses terminating the relationship as follows:
“1C. The orthopaedic surgeon may choose whom he or she will serve. An orthopaedic surgeon should render services to the best of his or her ability. Having undertaken the care of a patient, the orthopaedic surgeon may not neglect that person. Unless discharged by the patient, the orthopaedic surgeon may discontinue service only after giving adequate notice to the patient so that the patient can secure alternative care. Managed care agreements may contain provisions which alter the method by which patients are discharged. If the enrollment of a physician or a patient is discontinued in a managed care plan, the physician will have an ethical responsibility to assist the patient in obtaining follow-up care. In this instance, the physician will be responsible to provide medically necessary care for the patient until appropriate referrals can be arranged.”
A physician may disengage from a patient without liability under certain conditions, including the following:
Steps in terminating a relationship
Patients referred by an emergency department are another special situation. The general rule that “you do not have to treat anyone you don’t want to” does not apply to this group of patients. Refusing to accept or treat these patients may place the physician in breach of the hospital’s medical staff bylaws. If you have privileges at the hospital, you are expected to abide by these bylaws, which may detail on-call obligations. An implied contract exists, and your failure to abide by the terms of the bylaws may constitute breach of contract, thereby jeopardizing your hospital staff appointment.
Patients with an ongoing medical problem constitute a third category of concern. Once you have established a physician/patient relationship, it should last as long as the patient needs care or until the patient reaches a logical endpoint to treatment. If the patient needs a series of treatments, you must complete the series before ending the relationship.
The law has been reluctant to define “continuing medical condition” and leaves the definition open to the professional judgment of the physician, as guided by the standard of care. Generally, the orthopaedic surgeon must ask, “Does this patient need ongoing medical care? What will happen if the patient does not have a physician to call for care?” If the answers indicate that the patient’s health may be in danger, there is indeed a continuing medical condition.
Another area that courts periodically address is in the context of third-party examinations. In these cases, an employer or insurer initiates or requires an individual to undergo a medical examination. Two issues arise: first, whether or not this establishes a physician/patient relationship; and second, whether or not the physician incurs an obligation to use reasonable care and skill in attending to the examined individual.
The question has not been fully settled under law, with some courts holding that a physician/patient relationship exists, even if limited in scope and duration, while others finding no relationship exists. But the courts have concluded that a physician owes the individual a continued duty to use reasonable skill and care.
The unconscious patient is yet another special circumstance. This patient does not have the opportunity to select a particular physician or hospital, but a physician who accepts or undertakes to render care to an unconscious patient establishes a physician/patient relationship. Courts will be inclined to find that the relationship exists simply because of the overt conduct of rendering care by the physician.
In summary, terminating a relationship can be necessary and effective under select circumstances, but must be exercised with caution to avoid additional problems.
Richard A. Geline, MD, is a former member of the AAOS Medical Liability Committee.
Much of the material for this article is excerpted from the following: