APTA Examines Patient
Abandonment
Represents an adapted version of the House Report on RC 28-98. -
EXCERPTS
PT Magazine 7/99 (Vol. 7, No. 7)
by John J Bennett, Esq
Abandonment law is relevant in a variety of situations. Physical therapists stop treating patients without the patients’ consent for various reasons, such as when a therapist decides to retire from practice or to move to a distant location, or when a PT falls in love with a patient so that continuing treatment would be unethical. In all such situations, PTs have an obligation to give the patient reasonable notice.
However, in view of the concerns expressed by the Connecticut Chapter in its Support Statement, this article focuses on the significance of abandonment law to PTs when treating patients who have exhausted the third-party coverage available to them.
Patient Abandonment Law
Patient “abandonment” is a legal term developed primarily in medical malpractice litigation. According to the case of Lee v Dewbre, abandonment is defined as “the unilateral severance of the professional relationship between [the physician] and the patient without reasonable notice at a time when there is still the necessity of continuing medical attention.”
Although most of the malpractice law concerning patient abandonment arises in cases involving physicians, the same legal principles undoubtedly apply to PTs. Thus, it is fair to assume that the abandonment case law applicable to physicians is equally applicable to PTs.
Sufficient Notice.
As indicated, the law does not obligate PTs to continue to treat a patient who needs further therapy but only to give adequate advance notice. As the court stated in Sparks v Hicks, a physician is entitled to withdraw from a case at any time, but if a need for services still exists, the physician “is bound first to give due notice to the patient and afford the latter ample opportunity to secure other medical attendance of his choice.”
In general, if a patient is not in need of immediate attention (in some cases referred to as being at a “critical stage”), a physician may satisfy the notice requirement simply by giving the patient the names of other physicians. In Miller v Greater Southeast Community Hospital, the court stated, “Where a patient is not in need of immediate medical attention, supplying the patient with a list of substitute physicians to replace the attending physician is a reasonable means of severing the professional relationship.”
Other Concerns
Although the Connecticut Chapter’s motion used the term “patient abandonment,” the chapter actually had far broader concerns. The chapter’s Support Statement raised a number of other issues, most relating to restrictions on patients’ financial resources tied to limitations imposed by third-party payers. In particular, the Support Statement lamented what the chapter saw as the reality that PTs “have come to equate termination of [third-party] benefits with a reason for discharging the patient without providing the patient with options for continued care on a self-pay basis.”
With respect to patients who exhaust their third-party benefits, the Support Statement emphasizes that PTs should:
Obligation to Exercise Clinical Judgment.
PTs obviously have an ethical, if not legal, obligation to exercise their professional clinical judgment in treating patients. Under the heading “Acceptance of Responsibility,” the GPC clearly outlines the obligation of PTs to exercise professional clinical judgment and not merely to defer to insurance contracts or insurance administrators. PTs who simply treat up to the maximum allowed by the third-party payer (and not beyond) surely are not exercising professional clinical judgment.
Of course, the proper exercise of clinical judgment does not require PTs to disregard the cost of the therapeutic alternatives and the patient’s financial resources, whether third-party or first-party. On the contrary, PTs should be mindful of the cost of therapy, since they have an ethical obligation, under the GPC, to be guided at all times by concern not only for the patient’s physical well-being but also for the patient’s socioeconomic welfare. Although this clause in the GPC applies more clearly to providing too much therapy than too little, proponents of RC 28-98 were correct to emphasize that insurance benefits should not be the only component of the decision-making process regarding frequency and duration of care.
Withholding Professional Opinion from Patients.
The Support Statement implies that many PTs fail to communicate their clinical judgment that more therapy would be warranted to patients who have exhausted their third-party benefits. In general, PTs have an ethical, if not legal, obligation to communicate to the patient their judgment that the patient has a need for, or would benefit from, services beyond those covered by the patient’s third-party benefits. As a practical matter, therapists who withhold their professional opinion from a patient to protect their financial relationship with the third-party payer typically would be placing their own economic self-interest ahead of the patient’s physical well-being.
A discussion of such conflict of interest is beyond the scope of RC 28-98. However, it should be noted that if a PT fails to give a patient his or her true clinical opinion, and such silence serves his or her economic self-interest, the PT would be at considerable risk of being liable for any resultant injury to the patient. Consequently, contractual provisions by which third-party payers purport to prevent health care practitioners from giving their professional opinion to patients have incurred almost universal condemnation, and a sizable number of states have enacted statutes that prohibit or render unenforceable such “gag rules.”
Patient Advocacy.
Quite apart from abandonment, the Support Statement states that PTs have a duty to “inform the patient of the insurance appeals processes and provide assistance as necessary.” The Support Statement is correct in suggesting that PTs may have a legal obligation to testify on a patient’s behalf in litigation. In Spaulding v Hussain, a physician reneged on a commitment to testify in a patient’s lawsuit against a third party, and the court upheld a verdict against the physician. However, although PTs may be obliged to testify for a patient (but compare Knight v Johnson) and not provide assistance to a patient’s adversaries, no authority holds that PTs have an obligation to counsel their patients about the appeals process of an insurer or otherwise to function as their patients’ attorney in an insurance appeal.
The Support Statement’s reference to PTs “provid[ing] assistance as necessary” perhaps was aimed less at testimony in formal proceedings, such as litigation, than at the more commonplace function of attempting to persuade insurance administrators and case managers to authorize additional treatment. In situations in which third-party payment for future physical therapy is dependent on the payer’s deeming the treatment to be medically necessary, a patient often will need a PT’s input to obtain any required advance authorization.
PTs’ communications with the third-party payer, whether written or oral, on behalf of the patient are a kind of informal advocacy that can be crucial to the patient’s receiving care—especially if the patient is unwilling or unable to proceed with therapy on a self-pay basis. The decision by a third-party payer to authorize further physical therapy may depend to some extent on the therapists’ skill and persistence in arguing on the patient’s behalf.
Can PTs be held legally liable to the patient for failing to provide such informal advocacy or for lack of skill or persistence in doing so? To date, no PTs have been held legally liable for failing to communicate to a third-party payer their clinical judgment that further treatment was medically necessary or for being culpably unpersuasive in communicating such judgment.
Regardless of the risk of legal liability, PTs have an ethical obligation to make reasonable efforts to communicate with third-party payers in support of a request to authorize additional treatment—provided, of course, that they believe additional treatment is warranted. The GPC makes no explicit mention of such an obligation, but a duty to make reasonable efforts to communicate with payers on behalf of the patient seems clearly implicit in its principles.
First-Party Payment.
The Support Statement for RC 28-98 states that PTs have a duty to inform a patient of the possibility of continuing treatment after exhaustion of third-party benefits on a self-pay basis. Research has not revealed any case law concerning a practitioner’s duty to impart such self-evident advice. PTs who believe that a patient has a need for further treatment, despite the exhaustion of third-party benefits, obviously would do well to point out the possibility of continuing therapy on a self-pay basis.
Disclosure of Free/Low-Cost Alternatives.
The Support Statement also states that PTs have a duty to inform a patient of “community options for continuation of services outside the resources of the patient.” The passage evidently refers to options by which the patient might obtain physical therapy for free or at a lower cost.
Although the Support Statement focuses on patients who have exhausted their third-party benefits, its reference to community options raises the intriguing question: Do PTs have a legal or ethical obligation, from the outset of treatment, to tell a patient about alternative sources of therapy that would be cheaper than their own—a duty, in effect, to steer business to a competitor? That particular question was presented and discussed in a Judgment Call column in the July 1994 issue of PMagazine. The article was later reprinted in APTA’s Ethics in Physical Therapy, Part 2: Patient and Society.
Research has not revealed any case law concerning whether a practitioner has a legal duty to inform a patient of the availability of lower-cost treatment. Whether a PT has an ethical duty to inform a patient of the existence of lower-cost treatment is beyond the scope of this article. Of course, APTA’s ethical principles would not prevent PTs from alerting a patient to the availability of lower-cost treatment, and doing so would be compliant with the basic principles of the GPC.