Thaddeus Mason Pope, JD, PhD
Many clinicians are confused by the evolving opioid prescribing guideline issued by the Centers for Disease Control and Prevention (CDC) meant to stem the rising epidemic of opioid addiction and overdose in the United States.1 Many are also worried about regulatory oversight by the U.S. Drug Enforcement Administration and state medical boards in the treatment of their patients with cancer—and other diseases—in chronic pain.2 Despite assurances from the CDC that its new guideline is not intended for patients in active treatment for cancer or sickle cell disease or for those undergoing palliative or end-of-life care, a “climate of fear” has taken hold among physicians surrounding cancer pain management.3 And, although oncologists are still prescribing opioids for their patients in chronic pain, a growing number are reluctant to introduce opioids into patients’ treatment plans, especially if they suspect patients may have a substance abuse disorder.
There is no evidence, yet, suggesting that oncologists, fearful of treatment restrictions in the CDC guideline, are excluding these patients from their practices. But, in some instances, physicians in other medical specialties not only are picking and choosing but also are taking the extreme step of discharging patients with chronic pain from their practices.4-6
This reaction is troublesome, but it is not surprising. Firing patients eliminates legal risks associated with overprescribing (or perceived overprescribing) of opioids. However, unless done correctly, firing your patient for drug abuse—or any other reason—creates new legal risks associated with patient abandonment.
For example, in June 2019, the New Hampshire Board of Medicine fined and reprimanded a physician specializing in pain management for discharging a patient who had complained about reductions in his pain medication.7 There will likely be more cases such as this in the future. After a clinician agrees to care for a patient, the clinician must continue providing that care until the relationship is appropriately terminated. Here, we explain the right way to end a treatment relationship.
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Reasons to Terminate a Treatment Relationship
There are four ways a relationship with a patient may come to an end. First, the patient can fire the physician for any reason, at any time. Second, the patient can complete the course of treatment, thereby ending his or her need for medical care. Third, the physician and patient can mutually agree to terminate the relationship. Fourth, the physician can unilaterally end the relationship without the patient’s consent while the patient still needs care. We focus on this last way, when the physician fires the patient.
Physicians end treatment relationships with patients for various reasons, most of which concern patients’ objectionable conduct. For example, one, patients fail to pay their medical bills, despite efforts to offer a suitable payment plan. Two, patients engage in inappropriate conduct, including repeatedly missing or cancelling appointments, engaging in disruptive or violent behavior, falsifying medical history, or failing to adhere to treatment plans. Three, patients demand treatments (especially prescriptions) that the physician is unwilling to provide. And, four, patients file lawsuits or complaints.
Patient conduct may be the most common reason why physicians terminate treatment relationships, but it is not the only one. Sometimes, the reason for termination pertains to the physician instead of the patient. For example, the physician may be retiring or relocating, may be leaving the patient’s insurance plan network, or may be changing his or her scope of practice for health reasons.
Penalties for Patient Abandonment
Although there are a wide range of reasons for terminating a treatment relationship, the reason is almost never legally relevant to determining whether the termination is appropriate. The fundamental test is one of timing. No matter how compelling the reason, the physician must give the patient enough notice to ensure continuity of care and enough time to obtain equally qualified care elsewhere.
Patient abandonment occurs when a physician terminates a treatment relationship without enough notice for the patient to secure a replacement clinician. This is a form of medical malpractice. Patients regularly sue physicians for injuries resulting from a lack or delay in care.8 Furthermore, patient abandonment not only exposes physicians to claims and liability, it also exposes them to medical board discipline for unprofessional conduct.7 In addition, since compliance with professionalism and ethics rules is usually incorporated into employment and other contracts, violation could also constitute breach of contract and forfeiture of rights.9
In summary, so long as physicians provide enough notice, they do not need a “good” reason to terminate a treatment relationship. However, there is one hard constraint. Physicians may not terminate a treatment relationship for an invidious discriminatory reason. They may not fire a patient because of the patient’s race, color, religion, national origin or citizenship status, sex, gender identity or expression, pregnancy, sexual orientation, age, disability, or military status.
How to Terminate a Patient Relationship
If the relationship with a patient is beyond repair, the physician may proceed to terminate care. Because the ultimate objective is continuity of care, all the requirements focus on timing and transition. For example, the American Medical Association Code of Ethics advises: “When considering withdrawing from a case, physicians must: (a) notify the patient…long enough in advance to permit the patient to secure another physician, and (b) facilitate transfer of care when appropriate.”10
First, tell the patient, in writing, the date on which the patient will no longer receive care. Although regulations vary from state to state, rules and guidance generally require mailing the notice by certified mail with return receipt. Keep a copy of the notice and the mail receipt in the patient’s medical record.
“Although physicians may ethically and legally end their relationship with their patients, first consider whether it can be repaired.”— Thaddeus Mason Pope, JD, PhD
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Second, set the termination date, so the patient has enough time to arrange alternative care. The overwhelming majority of state boards and professional societies require or suggest 30 days, but some patients may need more time to find a new physician. For example, although 20% of the U.S. population lives in rural areas, only 3% of medical oncologists do,11 making it more difficult for these patients to find oncology care. In any case, unless there is an immediate transition to another physician, continue providing treatment between the notice date and the termination date.
Third, help the patient find a new physician. This need not be a specific referral. Instead, provide the patient with contact information for a state medical association or similar organization that maintains a database of providers. Then, facilitate the transition, either by offering to provide or by quickly transferring the patient’s medical records.
Before Ending a Patient Relationship, Try Mediation and Negotiation
Although physicians may ethically and legally end their relationship with their patients, first consider whether it can be repaired.12 Ideally, the physician has been keeping a record of problems, such as mistreating physicians or staff, failing to keep appointments, or neglecting to follow recommended care. Discuss the problem issues with the patient and give the patient an opportunity to modify his or her behavior. Sometimes, patients do not appreciate the impact of their actions. In short, work it out, if possible. ■
Dr. Pope is Director of the Health Law Institute and Professor of Law at the Mitchell Hamline School of Law in Saint Paul, Minnesota (www.thaddeuspope.com).
DISCLOSURE: Dr. Pope reported no conflicts of interest.
1. Centers for Disease Control and Prevention: Guideline for prescribing opioids for chronic pain. Available at www.cdc.gov/drugoverdose/pdf/Guidelines_Factsheet-a.pdf. Accessed August 21, 2019.
2. U.S. Senate Committee on Health, Education, Labor, and Pensions: Committee hearing: Managing pain during the opioid crisis. Available at www.help.senate.gov/hearings/managing-pain-during-the-opioid-crisis. Accessed August 21, 2019.
3. Doyle C: The great opioid debate: Treating cancer pain safely. The ASCO Post, December 25, 2018.
4. Dowell D, Haegerich T, Chou R: No shortcuts to safer opioid prescribing. N Engl J Med 380:2285-2287, 2019.
5. U.S. Department of Health & Human Services: Pain management best practices inter-agency task force report: Updates, gaps, inconsistencies and recommendations. Available at www.hhs.gov/sites/default/files/pmtf-final-report-2019-05-23.pdf. Accessed August 21, 2019.
6. Human Rights Watch: ‘Not allowed to be compassionate.’ Chronic pain, the overdose crisis, and unintended harms in the U.S. December 18, 2018. Available at www.hrw.org/report/2018/12/18/not-allowed-be-compassionate/chronic-pain-overdose-crisis-and-unintended-harms-us. Accessed August 21, 2019.
7. In re: Joshua Greenspan, No. 13011 (N.H. Board of Medicine June 18, 2019) (Settlement Agreement). Available at www.oplc.nh.gov/medicine/documents/20190618-joshua-greenspan.pdf. Accessed August 21, 2019.
8. Dreschler CT: Liability of physician who abandons care. 57 A.L.R.3d 432, 2018.
9. Ayers AA: The consequences of a medical provider quitting without notice. J Urgent Care Med. Available at www.jucm.com/the-consequences-of-a-medical-provider-quitting-without-notice/. Accessed August 21, 2019.
10. American Medical Association: Code of medical ethics opinion 1.1.5. Available at www.ama-assn.org/sites/ama-assn.org/files/corp/media-browser/code-of-medical-ethics-chapter-1.pdf. Accessed August 21, 2019.
11. Charlton M, Schlichting J, Chioreso C, et al: Challenges of rural cancer care in the United States. Oncology 29:633-640, 2015.
12. Willis DR, Zerr A: Terminating a patient: Is it time to part ways? Fam Pract Manag 12:34-38, 2005.
Editor’s Note: The Law and Ethics in Oncology column is meant to provide general information about legal topics, not legal advice. The law is complex, varying from state to state, and each factual situation is different. Readers are advised to seek advice from their own attorney.
Disclaimer: This commentary represents the views of the author and may not necessarily reflect the views of ASCO or The ASCO Post.