ISSUES and ANSWERS
Vol 9 No 2
April 1998
Advice on Abandonment
by Susan Moebius Henderson
Assistant Attorney General for the Board
Once a physician undertakes treatment of a patient, he or she has a continuing legal duty to treat that patient until the need for his or her services is at an end or until the physician-patient relationship is terminated lawfully. Physicians who improperly terminate a physician-patient relationship risk both civil lawsuits and charges of unprofessional conduct for patient abandonment.
A physician must exercise reasonable and ordinary care in determining when the physician's services are no longer needed. Generally speaking, a physician must continue to provide services as long as the case requires it.
Unlike a patient, who may lawfully terminate the physician-patient relationship at any time, a physician may withdraw before the need for his or her services is at an end only after giving the patient prior notice. That notice must afford the patient ample opportunity to secure another equally competent physician prior to the withdrawal.
A patient who sues a physician for abandonment must prove that the abandonment caused the injury for which damages are being sought. For example, a physician incurred no liability for refusing to treat a patient some 16 days following initial treatment for a severely cut finger. After the finger became infected and was amputated, the patient sued the physician for abandonment. The court exonerated the physician because the refusal to treat occurred after the critical, initial period when immediate treatment necessary to save the finger was provided.
Abandonment has been justified in certain limited circumstances, such as where the patient has failed to cooperate in his or her treatment (e.g., failing to keep or reschedule appointments). One court held that a nephrologist had no legal obligation to continue dialysis treatment for an uncooperative patient where the patient was given sufficient notice that his treatment was being terminated and was provided with a list of other dialysis providers in the area.
Rural providers whose patients may have difficulty locating an equally competent replacement should be especially cautious when "firing" a patient. At least one rural physician has been forced to defend himself against potential violations of anti-trust law by denying healthcare services to a patient in an underserved area.
Courts traditionally have held that a patient's failure to pay for services will not justify abandonment if the patient still is in need of medical treatment. For example, one physician was held liable for refusing to continue the treatment of a patient being prepared for emergency hand surgery until after the patient satisfied his outstanding account balance.
In a more recent case from Iowa, a physician was found not to have abandoned his patient by refusing to treat abscesses occurring subsequent to a gastric bypass. The surgeon's bookkeeper "fired" the patient for her failure to pay the bill for her surgery and follow up visits. The Iowa court found that the surgeon, who had seen the patient 11 times post-operatively and had previously advised her on treatment of the abscesses, was not liable because he did not abandon the patient during a critical stage of treatment.
From these cases, it appears that where a physician has successfully treated a patient's illness and has not been paid, he or she arguably may condition renewal of the physician-patient relationship on receipt of payment if the patient presents with a different illness that does not require immediate treatment.
Terminating a physician-patient relationship can be complicated further if the patient has a disability protected by the Americans with Disabilities Act (ADA) or the Federal Rehabilitation Act of 1973. The ADA prohibits places of public accommodation, such as physician offices, from discriminating against disabled individuals in the provision of goods and services.
In a recent case, a deaf patient successfully sued his physician for discrimination under the ADA after being discharged as a patient. The discharge occurred because the physician lost the only employee in his office who could communicate with the patient in sign language. The court held that instead of firing the patient, the physician should have made a reasonable effort to accommodate him by furnishing him written materials or using other methods to facilitate communication.
Before "firing" a patient, a physician should weigh carefully the potential risk for malpractice or discrimination lawsuits against the perceived benefits of firing a particular patient. If a decision is made to proceed, the physician should take the least amount of affirmative action possible to sever the relationship in order to avoid needlessly incurring the patient's ill will.
For example, one surgeon effectively terminated the physician-patient relationship while the patient was hospitalized awaiting a surgical procedure. After the patient refused to sign the proffered surgical consent form, the surgeon supplied the patient with a list of appropriate replacement surgeons. The court held that furnishing the list of substitute surgeons was a reasonable means of severing the physician-patient relationship where the patient's condition did not warrant immediate medical attention.
The following are some practical tips to consider when"firing" a patient:
- When the patient calls to schedule his or her next routine appointment, determine if the patient is in need of immediate care and if the physician is presently involved in treating the patient for an ongoing illness. If these questions are answered in the negative, politely advise the patient that the physician no longer wishes to continue the relationship. Provide the patient with the telephone number of a referral service so that the patient may locate another appropriate physician. Document this conversation in the patient's file.
- Use caution in sending written letters to terminate the physician-patient relationship. Ignore the natural urge to defend your decision or to provide too much information that might generate feelings of rancor in a patient. Letters may be useful to document unacceptable patient behavior, however, especially where warnings are given about the physician's intention to terminate the relationship if the unacceptable behavior continues. Be sure to include in the letter a referral to another competent physician or appropriate referral service.
- Do not volunteer reasons for the physician's decision to sever the relationship. If asked, explain the circumstances without making accusations against the patient. Possible examples to consider are:
- "To reduce the doctor's heavy case load, he had to make some difficult decisions about which patients he could continue to see."
- "The doctor felt that you did not cooperate fully with her treatment during your prior illness and that you should see another physician."
- "The doctor has decided that he cannot keep you as a patient because of your unwillingness to pay promptly for his services."
Always remember that an ounce of prevention is worth a pound of cure. Before ending a troublesome physician-patient relationship, consider all possible adverse consequences and then take prudent steps to diffuse potential future complaints by handling the situation with common sense and diplomacy.
Child Abuse in Oklahoma
by Gerald C. Zumwalt, M.D.
Board Secretary/Medical Advisor
The Oklahoma Department of Human Services recently released a report on statistics of child abuse and neglect for fiscal year 1996.
It is, of course, appalling in the sheer numbers. In 1996, 44,879 referrals of possible abuse and neglect were received. 40,916 cases were investigated and 11,646 cases were confirmed. As expected, the largest number occurred in Oklahoma and Tulsa counties but the report does not break down the occurrences per 1000 population so the significance of those numbers is blunted. (Only one case was confirmed in Ellis County.)
Not surprisingly, children ages 1-3 comprise an unduly large number of children affected and the majority of deaths occurred in this group. The types of abhorrent treatment covered a wide gamut of behavior from lack of supervision and providing inadequate shelter and food to sexual abuse, beating, mental injury and even Munchausen Syndrome by proxy.
Surprisingly, the most frequent perpetrator was the mother (46.59%), with females of all categories being the perpetrator 60.42% of the time. The race of both the victim and the perpetrator appears to reflect closely that of the general population.
The most medically pertinent chart is that of the reporting source for this conduct. Only 1.18% of cases were reported by physicians. Most common was law enforcement - 17.36%, relatives - 15.16%, and school - 11.34%. It seems Oklahoma physicians need to take off the blinders and heighten their index of suspicion.
If you would like to learn more about detecting child abuse,one source is
the OU Health Sciences Center's Center on Child Abuse and Neglect. Ask for Trish
Williams at (405) 271-8858. (FAX 405/2712931).
Free Lunch!
The Board is hosting a forum on continuing medical education in conjunction with the Oklahoma State Medical Association's annual meeting. The forum will be held April 25th at 11:45 a.m. at the Oklahoma City Marriott. It will offer physicians a chance to ask questions regarding CME. Panel members will be Gerald Zumwalt, M.D., Board Secretary, David Selby, M.D., President of OSMA and Arthur Osteen, Ph.D., from the American Medical Association. Dr. Osteen will be present to answer questions about Category I and II CME, documentation and availability of CME, Board Certification and the Physician Recognition award.
Lunch is being offered with the forum. You do not have to register for the entire OSMA meeting to attend the forum but you do need to register to receive a ticket for lunch. There is no charge.
OSMA is offering three hours of Category I CME the morning of April 25th, also free of charge. Contact OSMA for meeting and registration details at (405) 843-9571 or (800) 522-9452.
The Board is very interested in hearing from physicians about the current CME rule. If you are unable to attend the forum, take a few minutes to send your questions and comments to the Board.
New Board Members
The Oklahoma State Board of Medical Licensure and Supervision welcomes two new Board members appointed by Governor Frank Keating. Tim K. Smalley, M.D. fills the unexpired term of Jerry L. Puls, M.D. Dr. Smalley is a native Oklahoman trained at the OU School of Medicine and practicing Internal Medicine_Gastroenterology in Stillwater, Oklahoma. Mr. Thomas L. Rine, CEO, Southwestern Medical Center, Lawton, Oklahoma replaces the late Mr. Corlandus Lang. Mr. Rine comes to the Board with more than twenty years of hospital and corporate healthcare experience in Oklahoma and Texas.
Agency Legal Counsel
The Board has contracted with the Attorney General's Office for legal counsel. Susan Moebius Henderson, Assistant Attorney General, came to the AG's office after eleven years of private practice in Oklahoma City. She was assigned to the Board February 1st.
OAC 435:10-15-1. Continuing medical education
(a) Requirements.
(1) Effective July 1, 2000, each applicant for licensure, re-registration of licensure or reinstatement of licensure shall certify that he/she has completed the requisite hours of continuing medical education (C.M.E.).
(2) Requisite hours of C.M.E. shall be one hundred fifty (150) hours within the preceding three (3) years of which sixty (60) hours will be Category I as defined by the American Medical Association/Oklahoma State Medical Association/American Academy of Family Physicians or other certifying organization recognized by the Board.
(b) Exceptions/verification.
(1) Exceptions from the requirement shall be:
(A) Medical Doctors in residency and fellowship programs.
(B) Medical Doctors in a Physician Emeritus status.
(C) Holders of current American Medical Association Physician Recognition Award (A.M.A.P.R.A.) or its specialty equivalent or recertification by specialty group whose program for the certification has been found by the Board to be equivalent to the Physician Recognition Award.
(2) The Board staff will, each year, randomly select applications for verification that all C.M.E. requirements have been met. Physicians choosing to use programs other than the A.M.A.P.R.A. must submit additional documentation on request as evidence that the compliance with C.M.E. requirements have been met in the specified time period.
(c) Compliance.
(1) Failure to maintain such records rebuts the presumption that C.M.E. requirements have been completed.
(2) Misrepresenting compliance with C.M.E. requirements constitutes a fraudulent application.
From Last Time...
Double Vision
Last month's case was whether the Oklahoma Board could find an Oklahoma licensed physician guilty of unprofessional conduct for practicing medicine in another state without being licensed in that state. The other state board had reached an agreement with the doctor which did not include a finding of guilt.
The Board dismissed the Complaint finding the evidence did not prove unprofessional
conduct.
Board Meeting
March 26, 27, 1998
The Board met on March 26, 27 1998 in regular session. Two rules were amended—the first specifies the number of exam failures that would disqualify an applicant for medical licensure and exceptions that may be granted (i.e., three failures on any component of the USMLE or more than six failures on any combination of USMLE, NBME, or FLEX). The second rule allows the Board Secretary to extend Special Licenses for a period of sixty days to permit time for exam scores to be received for first year residents applying for full licensure.
Full medical licenses were granted to ten doctors, two with terms of probation and one with an Agreement between the doctor and the Board Secretary. One application for medical licensure was denied and one application was tabled until a personal appearance could be made. One license was reinstated under terms of an Agreement between the doctor and the Board Secretary. One request for reconsideration of denial of licensure was tabled until the applicant could make a personal appearance.
Two requests to modify Special Licensure were approved. Fifteen requests to modify Special Licensure to full, unrestricted licensure were denied.
One application for Physician Assistant licensure was denied. One Physician Assistant's request to waive the one year's experience necessary for practice in a rural health clinic was denied. Two requests from physical therapist applicants for waiver of exam failures were denied.
In disciplinary matters, three Voluntary Submittals to Jurisdiction were accepted. Two of the Voluntary Submittals were for five years with standard terms for substance abuse. One imposed a reprimand with four months of probation for failure to detect and report child abuse.
One full hearing was held and resulted in a five-year probation. Terms included no practice of weight control or pain management, maintenance of adequate medical records to support prescribing and limitation of the practice to psychiatry. Three hearings were continued to the May 28th, 29th meeting.
The Board accepted the surrender of one medical license. Two doctors appeared for final probation reviews prior to scheduled termination of their probations. Two requests to terminate probation early were denied. And one motion to vacate a portion of a previous Board Order was denied.
Physician Forum on Mandatory CME Rule
- Saturday, April 25, 1998
- 11:45 - 12:45 (lunch provided)
- Oklahoma City Marriott
- 3233 Northwest Expressway
- Held in conjuction with the Oklahoma State Medical Association's Annual meeting
Will you have your 150 hours of CME for license renewal in 2000?
Come hear the latest on the CME requirement
Find out about the American Medical Association Physician Recognition Award
A chance to ask questions and provide input
Panelists
- David Selby, M.D., Panel Moderator
President, Oklahoma State Medical Association - Arthur Osteen, Ph.D., Director,
Office of Physician Credentials and Qualifications American Medical Association - Gerald C. Zumwalt, M.D., Board Secretary/Medical Advisor
Board of Medical Licensure and Supervision
If you are unable to attend this Forum but have comments you would like the Board to consider, you can use the space below to write the Board at P.O. Box 18256, Oklahoma City, Oklahoma, 73154-0256. Fold and tape for mailing. Place stamp in area indicated.
