We've all had that patient who enters a practice and leaves a wake of worry and woe. The emotions and time spent dealing with an uncooperative or nonpaying patient can make the doctor-patient relationship that you had hoped for become frustrating or even confrontational. The question in your mind becomes: How do I legally and ethically release this patient from the practice?
Ignoring the patient by not returning calls or blocking appointments is not the way to go, unless you want to risk a malpractice claim of abandonment. The proper way to ethically release a patient from your care is to legally terminate the doctor-patient relationship.
Before you can sever a doctor-patient relationship, you must first determine whether such a relationship exists. The doctor-patient relationship is contractually based with a legal and ethical fiduciary duty to the patient. The doctor-patient relationship begins when the doctor gives an opinion upon which the patient could reasonably rely.1 It doesn't start when the patient enters your office or even fills out office forms, such as a medical history. For example, the new prospective patient could call, make an appointment, fill out all necessary forms, ask the front desk if the office takes her insurance, and find out that it does not. She could then proceed to walk out the front door. Although she was logged into the computer, the doctor-patient relationship was never formed or established because she was never seen or given any opinions by the doctor. (Note: While she is not a patient of record, she was a prospective patient, so you are still legally responsible to all applicable HIPAA and confidentiality laws regarding the information received from a prospective patient.)
Simply discontinuing treatment doesn't terminate the doctor-patient relationship. In some situations, a slowing down of treatment to see if the patient corrects the problem without continuing treatment is allowed. However, during this "slow-down" time, the patient must still be seen for emergencies, be informed of the situation, and be provided a level of maintenance care to prevent any harm to the patient. The doctor-patient relationship ends when any of the following happen:
1. The patient goes or transfers to another doctor, thereby severing the relationship (which is not to be confused with a referral).
2. The doctor or the patient breaches the contract for treatment.
3. The doctor and the patient agree to end the relationship.
4. The doctor or patient dies, becomes disabled, or becomes ill.
5. The doctor terminates the practice with due notice.
6. The doctor terminates the relationship with due notice.
When a doctor-patient relationship ends, a chart entry must be made and a letter to inform the patient must be sent in order to prevent any miscommunication that could lead to a claim of patient abandonment.1
The doctor and office must be made aware of these basic duties so a claim of abandonment can be avoided. The doctor has a duty to complete the services agreed upon if the patient has been cooperative and fulfilled his or her duties, such as keeping timely appointments, paying agreed amounts, etc. The doctor's duty to keep his or her side of the deal-to provide the agreed-upon treatment-is based on the contractual relationship. The doctor cannot withhold completion of treatment when the patient is at a critical stage of treatment, regardless of nonpayment. This is based on the doctor's legal and ethical care of the patient, which requires that no harm (nonmalfeasance) shall come to the patient. Also, the refusal to initiate treatment may be regarded as abandonment in that the untimely delay to start treatment or continue treatment, provided that the patient has fulfilled his or her duties, could cause harm to the patient.
As with any claim, the lawsuit must have a cause of action. A breach of contract and negligence are the two causes of action for abandonment. A breach of contract is found when the doctor either did not perform the treatment, failed to notify the patient, or refused needed treatment as agreed upon. Negligence is the other cause of action for abandonment. This can be found in scenarios when the doctor failed to see the patient as required per the treatment rendered or improperly discontinued treatment when further treatment was necessary. Both causes of action require the patient to have been damaged by the doctor's failure to maintain or provide care within the standard of care.
A cause of action for negligent abandonment must fulfill the five elements of negligence:
1. Health-care treatment was unreasonably discontinued or delayed.
2. The termination of health care was contrary to the patient's will or without the patient's knowledge.
3. The health-care provider failed to arrange for care by another appropriate, skilled health-care provider.
4. The health-care provider could have reasonably foreseen that harm to the patient would arise from the termination of the care (proximate cause).
5. The patient actually suffered harm or loss as a result of the discontinuance of care.
The patient must prove that the doctor ended the relationship without good reason or without sufficient notice to allow the patient to find another doctor and that the patient was injured as a result.2
The definition of "abandonment" was best stated in several legal cases: It occurs when there is a unilateral withdrawal by the doctor from treatment of a patient without giving reasonable notice or providing a competent replacement.3,4 The American Dental Association Code of Ethics also gives its opinion in Section 2.F. of the Code: Once the doctor has undertaken a course of treatment, the doctor should not discontinue that treatment without giving the patient adequate notice and the opportunity to obtain the services of another doctor. Care should be taken that the patient's oral health is not jeopardized in the process.5 Hence, abandonment of a patient is a legal and ethical problem. Under both concepts, the continued proper care for the patient is paramount (beneficence) such that no harm occurs to the patient (malfeasance). Abandonment will not occur when termination of the doctor-patient relationship is mutual, when termination of the relationship is determined by the patient, or when the doctor-patient relationship was never established.
There are two ways by which abandonment may occur: inadvertently and constructively/intentionally. Inadvertent abandonment occurs when the patient has been forgotten about or slips through the office follow-up protocol and feels that he or she has been abandoned.
Things go wrong when the doctor unfortunately forgets to oversee the follow-up for patients and set up after-hours contact information, and the patient goes to another doctor because she is in pain. She feels abandoned, and her attorney agrees that she was abandoned. Even though the doctor may not have intended to abandon the patient, she will state that she was never made aware that more treatment was needed, nor was she made aware of the risks of not completing treatment.
Suppose, for example, that the receptionist tells a patient that the office will call when the permanent crown comes in. The office, which is very busy, forgets to call the patient. The patient calls the office, but it is closed, and there are no arrangements for after-hours care. Months later, the patient, who is experiencing pain with the temporized tooth, goes to another doctor (due to a lack of after-hours care) who tells her that she now needs a root canal. She is told that, because she went so long with the temporary, it has leaked, and now there is decay that is causing her pain. She states that the office never called and that when she called, they never called back and were unavailable when she started to have pain.
This may also occur when the office staff is working hard to fulfill the doctor's orders not to let certain patients make appointments for various reasons. For example, staff members might be asked to deny appointments to patients who have past-due balances, or they might be asked to block patient phone calls to the doctor and refer them to the office manager. Or, they might not answer or arrange for after-hours patient calls. Patients should never be blocked from talking to the doctor when requested, since this can lead to unintended clinical complications that could have been rectified or prevented had the doctor attended to them. To avoid inadvertent abandonment, be cautious about what you say to your staff, so as not to be taken too literally or be misunderstood, and have a good follow-up protocol set up in the office to prevent patients from being forgotten about. This includes providing the patient with proper postcare instructions and directions about what to do should a need arise after regular office hours.
Constructive abandonment occurs when the doctor intends to terminate the relationship without the patient's knowledge or consent. When this happens, punitive damages, which are not covered by malpractice insurance, could be awarded. This occurs most often when the doctor refuses to see the patient until the patient pays, regardless of whether the patient is in pain or not. To prevent such a scenario, always end the doctor-patient relationship with a patient termination letter first; then discontinue treatment per the time designated in the letter. Most, if not all, jurisdictions consider abandonment to be an unprofessional conduct violation, which may prompt the state's licensing agency to review and investigate the situation. While the basis for unprofessional conduct may vary by your jurisdiction, the New York State Rules of the Board of Regents, Section 29, defines the following as a basis for unprofessional conduct: abandoning or neglecting a patient or client under and in need of immediate professional care, without making reasonable arrangements for the continuation of care, or abandoning a professional employment by a group practice, hospital, [etc.,] without reasonable notice and under circumstances which seriously impair the delivery of professional care to patients or clients.6
In summary, inadvertent and/or constructive/intentional abandonment can occur in four basic situations:
1. Refusal to see a patient without a valid legal reason.
2. Failure to provide proper follow-up care to rendered treatment.
3. Failure to provide proper emergency care, including after-hours care.
4. Failure to provide coverage for patient care when away from the office for extended time, such as a vacation.1
Disclaimer and advice: The material presented within this article is for general information. Every jurisdiction may have different laws, rules, and regulations affecting the subject discussed. Always consult your attorney or insurance carrier regarding legal advice pertaining to situations in your jurisdiction.
Originally posted in 2015 and updated regularly
References
1. Graskemper J. Professional Responsibility in Dentistry: A Practical Guide to Law and Ethics. Ames, Iowa: Wiley-Blackwell; 2011:37, 39, 73.
2. Kattsetos v Nolan, 368 A.2d 172 (Conn.1976)
3. Lee v Dewbre, 362 S.W.2d 900 (Tex. 1962).
4. Groce v Myers, 224 N.C. 165, 171, 29 S.E.2d 553, 557 (N.C. 1944).
5. ADA Principles of Ethics and Code of Professional Conduct. Chicago, IL: American Dental Association Council on Ethics, Bylaws and Judicial Affairs; 2012:6.
6. NYS Rules of Board of Regents: Part 29, Unprofessional Conduct. Albany, NY: New York State Board of Regents and State Education Department. 2011:Section 29.2(a)(1).
Joseph P. Graskemper, DDS, JD, DABLM, FAGD, is an associate clinical professor at Stony Brook School of Dental Medicine, teaching professionalism, ethics, and risk management. Dr. Graskemper has authored many peer-reviewed articles, lectured, and published nationally and internationally. He recently published a book, Professional Responsibility in Dentistry: A Guide to Law and Ethics. He may be reached at [email protected] for comments or consultations.
