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When a physician may refuse to treat a patient

By Laura L. Katz, Esq. & Marshall B. Paul, Esq..

Physicians often feel compelled to terminate a relationship with a patient for reasons such as the patient’s failure to pay for the services, the patient’s failure to appear for appointments or take prescribed medications, the patient’s seeking services that are morally or religiously objectionable to the physician and/or the patient having a communicable disease. A physician’s desire to terminate the relationship, however, must be tempered by legal considerations. While the physician may withdraw from the physician/patient relationship under certain circumstances, the physician cannot just say “no” to providing the patient further care.

At common law, a physician did not have a duty to treat any patient as long as a relationship between the physician and patient did not exist. This so called “no duty rule” extended to a physician’s right to refuse to treat an individual in need of emergency care as long as there was no prior relationship between the physician and the patient. From a legal perspective, physicians were free to decline to treat an individual under circumstances that prevented a physician/patient relationship from coming into existence.

This no duty rule was based on the law of contracts and the notion that, to create a physician/patient relationship and the physician’s duty to treat, both parties had to voluntarily consent. In order to establish the duty bound relationship, the physician had to act affirmatively in a way that indicated an intention to treat the patient. The relationship could be established either expressly or impliedly.

A relationship is expressly established where the physician actually sees the patient. A relationship can be impliedly established in many more unexpected ways, even when there has been no direct contact between the physician and the patient. For example, if the physician agrees to treat a patient for a specific condition and schedules an appointment but the patient does not keep the appointment, a physician/patient relationship may still exist. As another example, a physician/patient relationship may similarly exist if an HMO patient’s primary care physician refers the patient to a specialist physician participating in the HMO and the specialist physician’s office gives the patient an appointment at a designated time and place.

Once a physician/patient relationship is established, the general rule is that a physician has a duty to continue to provide care to the patient until that relationship is terminated by the mutual consent of the physician and patient, the patient’s dismissal of the physician, the services of the physician are no longer needed or the physician properly withdraws from the physician/patient relationship. Various laws, including laws governing emergency treatment provided by hospitals and antidiscrimination laws, as well as certain ethical constraints, have significantly limited a physician’s ability to terminate the relationship.

The federal Emergency Medical Treatment and Active Labor Act, commonly referred to as “EMTALA,” was enacted by Congress in response to a concern over “patient dumping” by hospitals refusing treatment of individuals who could not afford to pay for medical services. EMTALA imposes a duty on the hospital and its physicians to provide medical screening examinations and medical stabilization of all individuals seeking emergency care, regardless of the individual’s ability to pay. Under EMTALA, a patient cannot directly sue a physician for not complying with EMTALA’s requirements, but physicians may be subject to civil monetary penalties and may be subject to exclusion from participation in the Medicare and Medicaid programs for gross and flagrant or repeated violations of EMTALA.

Antidiscrimination laws also have affected the circumstances when a physician may deny medical care. Section 504 of the Rehabilitation Act of 1973 prohibits an otherwise qualified individual with a disability from being excluded from or denied benefits of any program actively receiving federal financial assistance solely by reason of the individual’s disability.

The Americans With Disabilities Act of 1990 provides even broader protections for disabled individuals, including individuals who have a contagious disease. Title III of the ADA prohibits a place of public accommodation from denying an individual access to health care because of disability, unless the individual poses a direct threat or significant risk to the health and safety of others that cannot be eliminated by adequate precautions or reasonable modification of policies, practices or procedures. A disabled individual is one who has a physical impairment that substantially limits one or more major life activities, a record of impairment, or is regarded as having an impairment.

In several cases, the courts have addressed the application of the ADA to a physician’s decision to refuse to treat a patient. For example, in the case of Bragdon v. Abbott, decided by the Supreme Court in 1998, the court found that asymptotic HIV infection is a disability under the ADA. Bragdon involved a dentist’s refusal to fill a cavity of an asymptotic HIV patient in his office, although the dentist was willing to treat the patient in a hospital at a higher cost to the patient. The patient sued Bragdon for violation of the ADA. The court ruled that asymptotic HIV constitutes a disability. The court’s decision speaks to health care providers’ legal obligation to treat HIV infected patients along with patients with other disabilities.

Ethical considerations may also limit the circumstances under which a physician can deny care to a patient. The American Medical Association Council of Ethical and Judicial Affairs has found it unethical to deny treatment to individuals because they are HIV positive.

Both the ethical opinions and legal precedents agree that a physician may not intentionally and unilaterally sever an existing relationship with any patient, unless the physician provides reasonable notice to the patient, in writing, and sufficient time to locate another physician. Failure of the physician to continue to provide care when the patient remains in need of care or failure to provide notice and an adequate opportunity for the patient to find another physician before the physician terminates the physician/patient relationship can be construed as the physician’s abandonment of the patient or dereliction of the physician’s duty if injury results. In addition to being exposed to liability for any damages that are caused by the abandonment or the breach of duty, the physician may be subject to disciplinary action under the state’s medical practice act. In Pennsylvania, a physician’s abandonment of a patient can result in disciplinary action against the physician and exposure to civil liability.

Even given these limitations, there are some circumstances when a physician can “fire” the patient in non-emergency situations. One such circumstance is the patient’s unwillingness or inability to pay. However, caution must be exercised in this situation. Courts are split on whether a patient’s inability to pay or lack of insurance justifies a physician’s termination of the physician/patient relationship, especially when the patient continues to require medical attention.

If the patient is not currently receiving treatment and fails to pay, the physician may terminate the relationship after giving the patient reasonable notice and sufficient opportunity to secure another physician. Similarly, at least one court has found that a physician may terminate treatment when the physician no longer participates with the patient’s health plan by informing the patient of the change and giving the patient a list of providers that participate with the health plan or obtaining the patient’s agreement to pay out-of-pocket for the medical services provided.

A physician is not required to prescribe or render medical treatment that the physician deems ethically inappropriate or medically ineffective. A physician may refuse to treat a patient when the physician has a moral or religious objection to the care that is sought by the patient. If a physician decides not to provide services to a patient on religious, ethical or moral grounds, the physician should discuss the reasons for the refusal with the patient, inform the patient of other resources or providers that can competently respond to the patient’s needs, and document the discussion with the patient in the patient’s medical record.

A physician may deny care when a patient requests services outside the physician’s area of expertise or office hours or at a location other than the physician’s office. Physicians also have the right to close their panels and to refuse to accept new patients when they do not have the capacity to treat additional patients.

In non-emergency situations, a physician is justified in refusing to treat unruly and uncooperative patients. If a patient refuses to follow the physician’s plan of care or to comply with an appropriate treatment regimen, the physician may unilaterally terminate the physician/patient relationship by giving the patient advance notice of the specific reasons for his termination. Assuming there is no change in the patient’s behavior after receipt of the notice, the physician may give the patient written notice of the effective date of termination of the relationship as long as the physician provides ample opportunity for the patient to secure a competent substitute.

A physician employed only for a specific occasion or service may be under no duty to continue visits or treatment thereafter. Examples are a surgeon who limits treatment to the performance of the operation and necessary aftercare or a physician who is called upon to consult on a one-time basis with the patient’s attending physician. In these situations, the physician may want to ensure that the patient has no expectation of repeat visits or continued treatment. Consequently, the physician should make sure that the patient understands the treatment is limited to a certain illness or injury or to a certain specified time and place and that another health care practitioner will be responsible for follow-up care.

In no case should the reason given to the patient for the denial of care be a pretext for discrimination. To avoid such an inference, the policy and procedures for termination of the physician-patient relationship must be uniformly applied and implemented by the physician in a non-discriminatory fashion. The physician should give the patient sufficient notice to find a new physician, assist in referral of the patient , provide the patient written notice or confirmation of the reasons for termination and include such documentation in the patient’s medical record.

In summary, the physician/patient relationship, which is similar to any contractual relationship, creates certain obligations. Assuming that a physician/patient relationship exists, a physician has a duty to treat and may not just say “no” to care of a patient without exposure to liability for abandonment of the patient and possible malpractice. A physician’s withdrawal from the relationship should not be attempted or accomplished during a time when the patient is in need of medical attention.

In every other instance, prior to withdrawal from or termination of the relationship, the physician should explain to the patient the reason why the physician is unable to attend to the patient’s needs and assist in the patient’s transfer to a competent substitute. Written documentation of the physician’s notification to the patient and of the referral sources or providers recommended to the patient will demonstrate that the physician has satisfied the conditions for proper withdrawal. Just as the physician must exercise reasonable care and skill in treating the patient, the physician must exercise reasonable care and skill in discontinuing the physician/patient relationship.

Laura L. Katz, Esq., and Marshall B. Paul, Esq., are partners in the Business Department of Saul Ewing LLP in Baltimore, Maryland.

3 comments

  1. Tiffany Maciejka

    I appreciate all of the information provided. I love in Florida. My mother and I go to a Pain Management facility and have got many years. Last month, in April, more so a few weeks ago we had an appt as we do every month. I brought tomy doctors attention and said lovingly, “not that we don’t love you bc we do, but is there a reason you keep requesting to see us?”
    Normally we’d see an RN, PA or someone other than the doctor. It would be normal ti see the doctor at least every 6 months. That’s why we thought it was strange we kept seeing him & later bringing it to his attention. He agreed thinking the same as us.
    I had been told several different answers for this. “Oh the doctor likes to see certain patients!” What I found out was that someone put it in our charts that we requested to see our doctor specifically. FALSIFYING INFORMATION in our medical records.
    As pur appt. progressed, we said to the doctor that we didn’t mind seeing someone else. We were trying to make it easier on him by not monopolizing his time away from other patients.
    My mom and I went to check out & we told the girls up in the front office about our conversation w/our doctor. Another girl came from the back. We had to get an appt. fixed bc the doctor was going to be on vacation. We are usually scheduled together in one appt. I told the woman checking us out that if she couldn’t schedule us together that it was ok. The girl from the back said that they had to go by what dad in our charts, that we were to see the doctor. She said she would call me about the appt. we needed to get fixed. That was it. We said our goodbyes werer polite and left.
    Fast forward to April 30th 2018 where my mom and I get a certified letter around 4pm. I was talking a nap & when I got up around 5pm, we opened them up. I was absolutely stunned.
    ( Let me add that we were due for our 1 month follow up on May 10th 2018)
    I NEVER could’ve imagined what I was reading which was…

    “Dear Toffany,
    This letter is to notify you of my intent to withdraw care as your Pain Management Physician. I am withdrawing myself as your Pain management physician due to scheduling conflicts with providers.
    It is necessary for you to obtain another Physician to continue your medical care. Please note that your discharge from this practice prevents you from requesting any treatment by any Physician at F****** Pain Institute.
    Should you have trouble finding another Physician, may I suggest you contact your insurance company/adjuster, your primary care Physician, the county medical society or the telephone below boom pages.
    Sincerely (docs name)”

    -word for word is what it says.
    I’ve’ tried contacting them explaining my difficulties in finding another physician. They were rude, vague and evasive. I was trying to understand what happened and ask for help. The girl on the phone said no. I can just go to the hospital, the doctor is no longer treating me and wouldn’t help me find other resources. I was kind, regardless of how she treated me.
    I have NEVER in my life been in this position. I don’t understand what happened. I believe someone conveyed something to the doctor that turned out not to be true, leading to this decision. It doesn’t make any sense. My mom and I were doing everything we could to make it easier for the doctor and we get terminated for conflict of scheduling with providers? Seriously, hands down or knees down, in a church holding a stack of bibles before GOD, I am being so honest.
    I’ve been trying to do research about abandonment and what not. Trying to learn about a physicians ethics and obligations even after terminating us. My head is spinning.
    My concern is, I’ve been on a pain medication for MANY years. It’s VERY potent and is one you just can’t stop taking bc my body had become physically dependent on it. I take it as prescribed but I was told that I’d go through a withdrawal after being on it so long, and just can’t go of it..
    Any suggestions on what to do? I know you don’t know me but I am absolutely begging for ANYONE’S help. I can’t apologize enough for the length of this but felt it was necessary to understand the whole story.
    Look, I totally understand a physician can terminate their relationship with a patient but for me, it doesn’t make any sense whatsoever. I am the kind of person where, if I’ve done something wrong, I’d like to know what it is so I don’t make the same mistake again. I am completely shocked that this happened. I feel my physician has abandoned my mom and I while we are receiving or were receiving critical medical care.
    Thank you so very much for your time and for reading this. If you have any suggestions, i’m all ears!!! Anything on FL laws or the best resources, tips, where to go, who to talk to, I am desperate. Even if it’s a point to the correct direction.
    Thank you!!!

  2. A surgeon crippled me for life in an HMO.

    The recovery room incident was hidden from me and my family. After surgery i was in complete delirium and attempted to jump out of my bed destroying the knee surgery. This incident was never reported or emergency action was not acted upon. My surgeon never placed the incident in my medical files. The only proof i have is that the HMO notified my family about me becoming extremely active and physically attempted jumping out of bed. This HMO has taken no responsibility of the incident. I need help and demand justice for my life.

    • Robert. There is a statute of limitation you must file before the law of your state statute. Most personal injuries are 2 to 3 years statute.

      The hospital this was reported too, they were supposed to have you fill out injury report. If this hasn’t exceeded state statute you should locate attorney immediately. Personal injury attorneys will take a case will take a case without payment.

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