But There Was No
It is a well settled concept that once a physician contracts to provide care to a patient, the physician is legally and ethically bound to continue with care until the treatment relationship ends by mutual consent, the physician withdraws with proper notice, care is transferred, or the physician’s services are no longer needed. Otherwise, the physician risks allegations of patient abandonment.
Elements of a patient abandonment claim in a medical malpractice action are (1) the unilateral severance of the doctor-patient relationship by the doctor; (2) without reasonable notice or without providing adequate alternative medical care; and (3) at a time when there is a necessity of continuing medical attention. Note that a patient “feeling” abandoned, without all of the above elements being met, does not qualify as legal abandonment. Following such a claim, a physician may be found liable in a court of law or disciplined by the state medical board even if the treatment relationship began unintentionally. In short, a court or licensing board may conclude that a treatment relationship existed based on the patient’s reasonable perception in light of the physician’s behavior as opposed the physician’s verbal insistence that the individual was not a patient.
This type of misunderstanding between a physician and a potential patient is most likely to arise out of an initial visit or limited purpose examination, where the nature of the relationship has not been clearly defined at the outset. Also, prescribing for non-patients such as friends or family members, providing informal counseling in social situations, and participating in informational/educational activities, including those taking place on the internet, can cause a physician to inadvertently create a treatment relationship. Finally, neglecting to formally terminate actual treatment relationships can confuse former patients and lead to various medical malpractice allegations.
Here are a few tips physicians may find useful in managing individual perceptions of whether a treatment relationship exists and therefore avoid claims of abandonment from non-patients.
- Avoid prescribing for non-patients. Prescribing is a positive sign to any court or medical board that a treatment relationship exists. In addition to claims of abandonment, physicians may be sued or disciplined for prescribing without an examination, failure to keep medical records, or failure to monitor, among many others.
- Refer individuals to their own physicians. Whether mingling in social situations or while participating in informational activities, clarify that specific advice cannot be given on the basis of single or limited questions. Visitors to websites should also be referred to their treating physicians for complete examinations and answers to specific clinical questions.
- Explain to evaluees or potential patients the nature of the interaction at the outset.Many physicians use the initial visit as a means to determine whether they can meet the individual’s clinical needs. Others may have been retained to perform an examination for a specific reason (fitness for duty, for example) without the promise of ongoing care. Making this clarification and documenting the exchange not only reduces later misunderstandings, but also place the physician in a much better position to defend against later claims of abandonment. Such clarification should take place at the time the initial appointment is made and then again at the start of the initial appointment.
- Offer a disclaimer. Participants in live or on-line educational activities must be made aware that it is not the physician’s intention to create a treatment relationship and that the information shared does not serve as a substitute for an actual examination by a qualified professional. Do not rely entirely on disclaimers to limit potential liability, however. If a dispute arises as to whether a professional treatment relationship was created, physicians will be judged primarily on their actions and how those actions are perceived by the purported patient.
- Formally terminate with actual patients. Ideally the end of the treatment relationship should be documented with a letter detailing the reason for the termination, the number of weeks or months the physician will remain available (notice), treatment recommendations (including medication safety information), referrals to other sources of care, and instructions on how to access the medical record.
- Call your risk manager for specific advice in cases of uncertainty about whether a treatment relationship exists.
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