Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them
Executive Summary
Abandonment is a legal claim that occurs when a physician terminates the professional relationship with a patient without reasonable notice and when continued care is medically necessary. There is no reason physicians cannot go through an entire career without ever having an abandonment claim made against them. Abandonment is not simply “walking away” from a patient. This section discusses areas in which an abandonment claim can arise and steps to avoid it.
Mistake 1 Taking a Vacation without Coverage
All physicians are entitled to take vacations or otherwise leave their office for personal and
other reasons; both the public and the law recognize this right. It is, however, inappropriate for physicians to do so without arranging for another doctor, in the same specialty, to be ready to handle any emergencies or routine problems that arise. Most doctors work in groups and easily make such arrangements by ensuring that their partners and associates will be available; it is not enough, however, for physicians to leave a recorded message on the answering machine telling a patient to simply go to the hospital. A solo practitioner should arrange for another physician, in the local area and in the same specialty, to be available to handle emergencies.
Action Step Physicians should always arrange for coverage if they will be away from their office for more than one to two days.
Mistake 2 Failing to Respond to E-mail
Many physicians use e-mail and have websites that allow for automatic e-mail and give their e-mail address. Having such a website and putting the e-mail address on professional letterhead or business cards constitutes an implied invitation to patients to use e-mail to communicate with the physicians. One drawback of e-mail is that people who use it tend to believe the response time should be rapid. Physicians who intend to use e-mail to communicate with patients should have an office policy or procedure on how and when to respond. Communicating by e-mail can be convenient for physicians, since they can set aside a certain time each day when they can respond so they do not have to interrupt their daily practice by taking telephone calls.
Action Step Physicians who use e-mail should have a procedure to respond to e-mail messages within a reasonably short period of time.
Mistake 3 Failing to Follow Up with a Patient after Prescribing Medication
When physicians prescribe medication for a patient, especially when it is the first prescription for that medication for that patient, there should be some follow-up to determine if the patient is having problems with the medication. Physicians should always instruct the patient to contact them immediately if the patient notices any adverse or unusual side effects. In addition, if the physician knows that the medication can have serious side effects, a follow-up call from the physician’s office should be considered. Also, if follow-up blood testing is necessary to monitor the medication, the patient should be fully instructed about this step, and the physician should have a procedure to ensure that the patient is reminded of his or her obligation to have the testing done.
Action Step Physicians should always follow up with their patients regarding prescriptions drugs, especially drugs with known serious side effects.
Mistake 4 Failing to Give Proper Notice to a Patient Before Withdrawing from the Case
Physicians have the right to terminate their professional relationship with a patient, but they may only do so with proper notice. Most courts have held that proper notice means that the notice of withdrawal must be actually communicated to the patient and must give the patient sufficient time to obtain other medical treatment from another physician of the patient’s choosing. In the case of a physician who is retiring from practice or permanently relocating to another area with another physician taking over his or her cases, the notice to patients should include the qualifications or specialty of the new physician.
Action Step Physicians who wish to withdraw from a case must give full notice to the patient with enough time for the patient to select a new doctor.
Mistake 5 Promising a Patient Treatment at a Specific Time or Place
Where a physician makes a specific promise to a patient regarding the rendering of treatment by that physician, the physician may be held liable on a breach of contract theory as well as on the legal theory of abandonment. This situation may occur, for example, when a doctor tells a patient to go to the hospital and that the doctor will meet the patient there or that the doctor will visit the patient during that particular hospital stay.
This situation occurs most often in ob-gyn cases in which the pregnant woman has been promised that her physician will be present for the delivery. Even if the law in such a case would not impose a duty on the physician to attend, the physician may create that duty if he or she made such specific promises.
Action Step Physicians should not make promises to patients to provide treatment at a specific time or place.
Mistake 6 Failing to Advise Patients of Who Will Perform Each Phase of a Surgical Procedure
Much has been written about “ghost surgery,” when a surgeon other than the patient’s surgeon actually performs the operation. If the patient is not fully informed of who the surgeon will be before the operation, an abandonment claim can arise. An abandonment claim also can arise when other doctors perform various phases of surgery without the patient’s knowledge and consent. A surgeon may clearly allow other doctors to perform various procedures during the surgery (such as suturing an opening after the actual surgery has been performed) but to do so, the patient’s surgeon must always obtain the patient’s understanding and consent.
Action Step Surgeons should always obtain the patient’s consent when others might be assisting with the surgery.
Mistake 7 Failing to Follow up with a Patient Advised to Go Directly to a Hospital
Patients often call their physician’s office and describe symptoms that alarm the physician, who then instructs them to go directly to the hospital. In that situation, the physician has a duty to contact the hospital to explain why the patient was sent and to determine if there is a need for the physician to attend the patient while he or she is in the hospital. This is especially true when the patient is sent to the hospital from the doctor’s office. A physician may not simply “hand off” a patient to the hospital and then fail to follow up on the treatment within a reasonable period of time, which is generally shorter in emergencies. Where there is no follow-up by the patient’s treating doctor, an abandonment claim can arise, even when the doctor has turned the patient over to competent medical care at the hospital.
Action Step Physicians should always follow up on patients they send to the hospital under emergency circumstances.
Mistake 8 Prematurely Discharging a Patient from the Hospital
In this era of HMOs and managed care, there is great pressure on physicians to discharge a patient from the hospital as soon as possible. Later, if a determination is made that the patient needed additional hospitalization or was unstable when discharged, the patient may charge the discharging physician with abandonment. The courts have never recognized a physician’s claim that the physician was not paid as a defense to an abandonment claim when additional medical treatment was necessary and proper notice was not given to the patient. Physicians should always exercise their own professional judgment when deciding whether or when to discharge a patient from the hospital. A patient leaving the hospital without the physician’s approval should always be required to sign a document stating that his or her discharge is against medical orders.
Action Step Physicians should never discharge a patient from the hospital for purely economic reasons.
Mistake 9 Discharging a Patient without
Proper Instructions
When it is medically appropriate to discharge a patient from the hospital or from the doctor’s continuing care, the patient must be given instructions regarding his or her present condition. (If the patient is being discharged on medication, the information
in Mistake 3 should be reviewed.) A patient should always be informed under what circumstances after discharge he or she should contact the physician. Any other follow-up instructions appropriate to that patient should be considered and should be given to the patient, preferably in writing. Even after the physician appropriately determines that the patient can be discharged, an abandonment claim can arise if the patient was not instructed on what to expect and when he or she may need immediate medical care.
Action Step Physicians should always fully instruct patients upon discharge from the hospital or from their continuing care.
Mistake 10 Failing to Monitor Postoperatively a Patient Who Has Undergone Surgery
The surgeon’s duty does not end at the end of the operation. The surgeon remains responsible for the postoperative care, including infection control and recovery. The surgeon must also determine the relative success of the operation and must exercise judgment as to whether additional operations may be needed. While the surgeon’s duty may not extend throughout the balance of the patient’s hospital course, the surgeon will be responsible for treating any surgical complications, even if they arise at some time after the surgery. Many states do allow a surgeon to limit his or her duty to the patient by contract. The better practice is for the surgeon to follow up, at least with the attending physician, to determine the patient’s condition until discharge from the hospital and perhaps for a time thereafter.
Action Step Surgeons should always follow up with the patient after surgery for a reasonable period of time.
Conclusion
Physicians should understand the legal nature of an abandonment claim, as well as review these mistakes and the steps to avoid them.
Additional Resources
- American Medical Association, Clinical Practice Guidelines (Directory) (current ed.)
- American Medical Association, Counsel on Ethical and Judicial Affairs, Code of Medical Ethics, Current Opinions with Annotations (2004)
- ECRI, Health Care Standards, Official Directory
- Moore, Medical Malpractice, Discovery, and Trial, 7th ed. (2003)
Written by: Benjamin Goldstein, Esq.,
Peer reviewed by: Genora Rosypal, Esq.,
