Patient Abandonment:

A Perilous Issue for Ophthalmologists

Documentation is key to heading off these claims.
“Once begun, a physician-patient relationship cannot be abruptly terminated by the ophthalmologist if doing so would cause the patient additional harm.
This is the theory of patient abandonment, a theory which has existed in the law of medical malpractice for decades. ”
— From OMIC guidelines on the physician/patient relationship.

By Jerry Helzner, Senior Editor

Because diseases such as glaucoma, macular degeneration and diabetes-related eye problems are chronic and require decades of treatment and management, ophthalmologists are vulnerable to lawsuits by disgruntled patients for the somewhat vague charge of “patient abandonment.”

Ophthalmologists may also be charged with patient abandonment if they move their office or shut down the practice without providing formal notice to each and every patient in their care.

An even more murky area that can easily lead to litigation is when an on-call ophthalmologist provides brief treatment and advice to a patient in an emergency room and does not believe he or she has made a commitment to follow-up with that patient. The patient may believe that a relationship has been established with the ophthalmologist and thus expects further communication.

The possibility of such emergency room misunderstandings is so great that the Ophthalmic Mutual Insurance Company (OMIC) has posted comprehensive guidelines for dealing with such “gray area” encounters under the rules of the Emergency Medical Treatment and Active Labor Act (EMTALA). These guidelines for “on-call” responsibilities are posted on the Risk Management section of the OMIC Web site at www.omic.com.

Abandonment: How Big a Problem?

Though the claim of patient abandonment is not one of the leading categories of litigation in ophthalmology, it is one that can fairly easily be avoided by being aware of the situations that have the potential for such a claim and by being proactive in taking steps to avoid an abandonment charge.

According to the most recent claims statistics compiled by the Physician Insurers Association of America (PIAA) in its 2012 Risk Management Review for Ophtrhalmology, abandonment ranked number 18 among all types of claims against ophthalmologists. Of a total of 29 patient abandonment claims that were closed, seven resulted in payments averaging $201,703 and the other 22 were closed without payment.

Know the Rules and Avoid the Problem

If they are not completely aware of the rules for what constitutes a doctor/patient relationship (such as in an ER situation) or for turning loose an established patient, ophthalmologists can easily be blindsided by an abandonment lawsuit.

In many of these cases, the reality is that the patient essentially abandons the doctor — by missing appointments, not paying bills, not taking medications or all of the above. Still, the patient may have a strong legal case if the doctor has not fulfilled all of the specific requirements for terminating care of that individual.

Here, with guidance from OMIC, I will explain the appropriate legal formalities of ending a relationship with an established patient. OMIC cautions that “one of the most difficult things a physician sometimes must do is to terminate the doctor/patient relationship. The decision to terminate a relationship is not only an emotional one but can have medical and legal ramifications as well.”

Following the rules should insulate any ophthalmologist from being on the losing end of a patient abandonment or breach of contract action.

Out of Sight, Out of Mind

It's easy for patients who are non-compliant and miss appointment after appointment to get lost in the shuffle of a busy practice. And if they don't pay their bills for previous care, after a while you may just give up going after them and classify them as “lost to follow up.”

Strict procedures exist for ending a relationship with a patient. It is imperative that your front desk and billing staff be trained to “red flag” problem patients and alert the patient's doctor so that these procedures are strictly followed. It may surprise you, but even a nightmare of a patient who has ignored bills and blown off appointments has a strong case for abandonment if the physician and the practice doesn't follow all the rules.

Failure to pay is not an acceptable reason for terminating a patient without written notice or without helping the patient find alternate care. A patient who is in critical need of acute or continued care cannot be summarily dropped.

OMIC notes that failure to pay could be the first sign of a patient who is not pleased with his or her treatment and who represents a litigation risk. This is even more reason to attempt to communicate with patients who stop paying their bills.

In reality, a practice cannot ever make “too many” attempts to communicate with a problem patient before taking the step of terminating that patient. One case study cited by OMIC as the proper way to end a relationship shows multiple attempts at all stages by a refractive surgeon to communicate with a patient who had gone missing.

Going the Extra Mile

The steps taken by this surgeon included lengthy initial discussion with the patient of the procedure and all possible risks, leading to obtaining a detailed informed consent form with no guarantee as to the outcome of the surgery. These steps included:

► Thorough documentation of all instances of patient's missed appointments and noncompliance with treatment. Each of these was followed by a letter to the patient expressing concern and disappointment that the patient had not kept her appointment.

► Letters to the patient warning that failure to keep appointments to monitor corneal healing and adjust medications could lead to adverse consequences.

► A certified letter with return receipt requested telling the patient the ophthalmologist was discontinuing his services to her and suggesting that the patient seek an ophthalmologist who could continue the necessary care that she required. (All letters were placed in the patient's chart.)

► Finally, the refractive surgeon wrote off the remainder of the patient's bill with no suggestion of improper care of further liability.

OMIC commented that by following the appropriate steps to terminate this patient the ophthalmologist headed off a malpractice claim that was already in the process of being filed.

Looking for Someone to Blame

In another case, an Arizona glaucoma specialist was doing everything in his power to help a patient who came to him already experiencing vision loss from severe glaucoma.

“I should have been alert to the fact that this patient had already been treated by several ophthalmologists and did not seem to stay with one doctor for long,” noted the glaucoma specialist. “But I thought that I could help him and began treating him.”

After only two visits, the patient dropped out of sight, only to claim a year later that, not only had the practice abandoned him, but that the doctor's treatments had caused more vision loss. The man said he had a lawyer and intended to sue.

Fortunately, the practice had kept adequate (but not completely thorough) records of the man's missed appointments and noncompliance.

“We could have done more to document this case and we now do more in that regard,” says the doctor. “However, what I did was contact the patient and make another appointment for him, which he accepted. When he came in, I could see that he was mainly frustrated with his vision loss and looking for someone to blame. We just sat down and had a heart-to-heart talk. He had financial and other problems and conceded that he was ashamed of the way he had acted toward me. We got off to a fresh new start and he hasn't been a problem since.”

Document, Document, Document

As the cases discussed above demonstrate, having documentation of all interactions with a patient is a practice's best defense against the claim of patient abandonment. Gaps in documentation are the first thing a plaintiff's attorney will look for when pursuing a case of potential patient abandonment.

OMIC advises that all IOP readings of glaucoma and glaucoma-suspect patients should be entered and recorded, even when these readings fall into a normal range. Any incidents of noncompliance with a medical regimen should also be fully documented. Glaucoma patients are noted for their noncompliance with medications, particularly if they are not experiencing vision loss or if they find the medications too costly to purchase. True, this type of noncompliance is solely the fault of the patient, who will often lie to the physician regarding compliance. However, failure to document makes the practice an easy target for an aggressive plaintiff attorney.

It is not enough just to document. The documentation must be consistent and later entries should not contradict what was recorded on previous entries. Any attempt to alter documents after being threatened with a lawsuit will only put the practice in the most severe jeopardy if such alterations are discovered.

Proper Termination Procedures

An OMIC publication that deals with appropriate procedures to terminate a patient explains that “the relationship is properly concluded when the patient dismisses the ophthalmologist or when the ophthalmologist and the patient mutually agree to terminate their relationship. Upon dismissal under these circumstances, the ophthalmologist should guard against later allegations of improper termination by confirming the termination in a letter sent to the patient.” It is also important to check the provisions of any contract with a health plan; at times, physicians may be required to go through the plan to end the relationship.

In addition, the ophthalmologist should provide the doctor taking over care of the patient “with all information necessary to enable the patient to receive continued treatment without delay.” When appropriate, the doctor who will no longer see the patient should advise the patient in writing of any specific need for continued care.

Routine Endings May Not Be Routine

An appropriate end of an ophthalmologist-patient relationship also occurs when the case reaches a medical conclusion in such a way that the ophthalmologist's services are no longer needed. When an ophthalmologist is involved in a case solely as a consultant, the relationship terminates upon completion of the consultation. However, OMIC points out that at times “the point at which the case reaches its medical conclusion can be difficult to ascertain. Courts could determine that follow-up examinations and check-ups that are reasonably foreseeable are within the necessary scope of treatment. Once again, documentation may be critical.”

When an ophthalmologist does choose to terminate a patient, OMIC says that the doctor “must first provide reasonable notice of termination so the patient has time to secure the services of another ophthalmologist. Although the law does not specify the amount of time that a physician must provide before services are terminated, factors that might be considered include the nature of the medical problem, the proximity of qualified substitute physicians, and the willingness of potential substitutes to assume treatment of the patient. In the absence of proper termination, the ophthalmologist must then continue to provide care to the patient as long as the doctor-patient relationship exists.”

A patient cannot claim abandonment if the ophthalmologist's own ill health prevents him or her from providing treatment. In these cases, it is sufficient for the ill physician to take reasonable steps to provide a qualified substitute.

Common Sense is the Key

By implementing and following strict office protocols for both documentation and patient communication, most charges of patient abandonment can be rather easily disproved. However, these types of charges do arise on a regular basis, often from disgruntled patients with chronic diseases who require long-term or lifetime care. It falls on the practice to be vigilant and have a solid range of protective measures in place that can prove the falsity of any claim of patient abandonment. OM