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Health Law Pointers - Volume V, No. 1

TERMINATING A PHYSICIAN-PATIENT RELATIONSHIP

Patients have a right to continuity of health care and a physician should not discontinue treatment of a patient when further treatment is medically necessary without giving the patient reasonable assistance and sufficient opportunity to make alternative arrangements for such care.

Some recommended protocols to observe in terminating a physician-patient relationship are noted below:

1. Provide written notice
2. Give a brief explanation for your withdrawal from the relationship
Examples:
- failure to appear for an appointment
- failure to take prescribed medications
- disruptive behavior
3. Continue to make medical care available for reasonable period
4. Render assistance and/or recommendations regarding a successor
5. Offer to transfer copies of medical records upon receipt of a signed patient authorization form
6. Document correspondence in the medical record
7. Retain medical records for the applicable statutory period
8. Advise your staff of the decision and/or special instructions regarding the (former) patient

Establishing and following protocols governing the termination of a physician-patient relationship should reduce any unwanted exposure to liability for patient abandonment, licensure issues and malpractice.

COMMUNICATING EFFECTIVELY

An essential part of the physician-patient relationship is the physician’s responsibility to inform his or her patient of the risks, benefits and costs of treatment and the optimal course of action. Only if the patient is so informed may consent be implied.

Many physicians, however, do not communicate effectively, and this can undermine the strength of the professional relationship. Experts in the field recommend following a few simple strategies to improve the quality of communication with the patient:


Listen – don’t interrupt - don’t think what you will say next
Paraphrase and reiterate key points
Ask the patient if you’ve understood his/her concerns correctly
Use nonverbal signals: smile, eye contact, nod or acknowledgement
Show compassion and courtesy
Deliver tough messages well

A documented benefit of effective communication is a healthier physician-patient relationship that may better withstand damage in the event of any professional error or omission.

EMPLOYEE ACCESS TO PROTECTED HEALTH INFORMATION

Determining which employees need access to protected health information to carry out their duties is an important step in allowing employers to comply with the “minimum necessary requirements” under the HIPAA Privacy Rule and institute appropriate security arrangements. Most employers already have developed employment categories (receptionist, biller, nurse practitioner, and physician) and will not find it difficult to establish similar categories for handling protected health information. Once this is accomplished, the next step is to implement policies and procedures defining what categories of employees are entitled to access what types of protected health information.

HIPAA PRIVACY DEADLINE

Physicians and physician groups should be preparing now to comply with HIPAA Privacy Rules scheduled to take effect Monday, April 14, 2003. Available information indicates that the initial enforcement policy under HIPAA will rely on complaints filed with the Centers for Medicare and Medicaid services (formerly HCFA) rather than on a proactive review or audit process. It is estimated that more than 10,000 annual complaints are expected. Reliance on a “whistle blower” or complaint-based system emphasizes the importance of adopting privacy polices and procedures and educating your employees on those office policies and procedures, and the rules governing release of protected health information.

USE OF A RESTRICTIVE COVENANT OR NON-COMPETE AGREEMENT

For many medical practices, the most valuable asset is not the office premises, equipment or supplies but the cultivation and maintenance of relationships with patients, referral sources and vendors. Protection of these relationships is critical in assuring the future success of any medical practice.

Despite the reluctance of many professionals to limit the post-employment opportunities of a valued employee or partner, the potentially devastating damage resulting from a defecting professional’s use of confidential and proprietary information has stimulated the increased use of restrictive covenants or non-compete agreements.

Powerful considerations of public policy to the contrary, New York courts can and will enforce non-compete agreements that are no greater than necessary to protect the legitimate business interests of a medical practice. Reasonable time and geographic restrictions must be adopted and these restrictions must not impose an undue burden on the public by, for example, removing a medical specialist from an area where there is a severe shortage.

The drafting and implementation of non-compete agreements, however, should be part of a carefully designed strategy aimed at protecting the medical practice in the event of any physician departures.

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