Most studies on medical malpractice claims in the United States do not specifically isolate instances of patient abandonment, so there is little concrete data on this phenomenon. A study conducted on the rates of medical malpractice lawsuits in the United States between 1992 and 2014 found that misdiagnosis, surgical errors, and treatment-related mistakes are the most common types of claims, respectively. However, how exactly patient abandonment fits within these claims is not stated.
Unlike the more common medical malpractice claims, which involve a specific action taken by a physician, patient abandonment occurs more by the omission of proper conduct. This does not mean that a physician is susceptible to a patient abandonment claim each time a doctor-patient relationship is terminated. However, a clear understanding of its definition and legal implications can help form a medical malpractice claim or defense.
What Constitutes Patient Abandonment (And What Doesn’t)
Patient abandonment cases are very fact-specific and the exact legal definition varies state-to-state. The general elements of patient abandonment claims are:
- There was an established doctor-patient relationship
- The physician abandoned the patient while medical attention was needed
- The abandonment occurred abruptly, preventing the patient from finding a replacement physician
- The patient suffered an injury as a direct result of the abandonment
In order to effectively evaluate a potential patient abandonment claim, the first question one must ask is whether there existed a doctor-patient relationship. While this element might seem intuitive, there is more to this question than meets the eye.
A doctor-patient relationship is typically created when “professional services of a physician are rendered to, and accepted by, another person for the purposes of medical or surgical treatment.” See Cygan v. Kaleida Health, 51 A.D.3d 1373, 1375 (2008). However, the law also recognizes circumstances in which the existence of a physician-patient relationship is implied by circumstances. “An implied physician-patient relationship can arise when a physician gives advice to a patient, even if the advice is communicated through another health care professional.” See Thomas v. Hermoso, 110 A.D.3d 984, 985 (2013); See Pizzo-Juliano v. Southside Hosp., 129 A.D.3d 695, 697 (2015) (held that a doctor-patient relationship existed between the plaintiff and the hospital’s on-call plastic surgeon, who was unavailable to treat the patient and decided on the phone that the injuries could be treated by a physician’s assistant).
There are instances, however, that can circumscribe the relationship from a legal perspective. Some physicians may provide a written statement to their patient during an initial visit that states the visit is only for evaluation purposes and does not guarantee entry into the physician’s practice. Likewise, in limited examination contexts, such as volunteering at health fairs or providing informal medical advice on websites, a disclaimer may be provided which states that the examination or offered information does not constitute an ongoing doctor-patient relationship.
Once a formal relationship between the physician and patient has been established, whether the termination was appropriately handled must be examined. Importantly, termination of the doctor-patient relationship can be a completely unilateral decision on the part of the doctor. Physicians are not obligated to treat each and every patient in perpetuity. However, physicians cannot terminate the relationship during a time when medical treatment is necessary and/or the patient cannot be immediately transitioned to another doctor. For example, in an emergency, a doctor cannot deny treatment to a patient on the grounds of an outstanding medical bill.
Likewise, a physician cannot be unreasonably unresponsive to a patient. Even if a physician does not intend to terminate the relationship, it is still considered abandonment if the physician makes themselves unavailable for a prolonged period of time. Depending on the particular circumstance, a physician may be found to have abandoned their patient by taking a vacation without notifying their patients or arranging for emergency coverage; being unresponsive to a patient’s questions in an email or other correspondence, failing to follow up with a patient after surgery or prescribing a new medication, or failing to provide treatment to the patient by a specified time.
The patient’s necessity for medical treatment also goes hand-in-hand with whether reasonable notice was given to provide the patient with the opportunity to find replacement care. For example, a doctor cannot abruptly shut down their medical practice without making arrangements to ensure that her patients have alternative care. However, doctors are under no obligation to personally find their patients replacement physicians. It may be difficult to find physicians that practice in the same sub-specialties within the same area. Also, some doctors may not be keen on recommending a patient that was particularly discourteous or troublesome to their colleagues. All a physician is required to do is to give adequate notice to the patient (30 days in most states) to the patient and support the transition to alternative care, which may include providing records or engaging in a discussion with the new doctor.
There are numerous reasons that a physician may terminate their relationship with a patient that do not constitute patient abandonment. If a doctor knows that he does not possess the requisite skill or knowledge to handle a patient’s particular issues, they are under no requirement (nor is it preferable) to continue treatment. If a patient does not follow the doctor’s orders, which includes being chronically late to appointments or not taking the necessary prescribed medications, termination may be warranted. As long as the termination is done in an appropriate manner, such action does not constitute abandonment.
What Do The Experts Say?
Like any other medical malpractice action, patient abandonment cases require the use of a medical expert to establish the standard of care and deviation of that standard by the defendant. Experts may also be required prior to filing suit. Rule 3012-a of the New York Civil Practice Law and Rules requires that all medical, pediatric, and dental malpractice complaints be accompanied by a certificate of merit stating that the plaintiff’s attorney has consulted with at least one physician and has concluded that there is a reasonable basis for the commencement of the action.
Medical expert affidavits are also typically used throughout motion practice. However, there are occasions in the cases of patient abandonment in which an expert affidavit is not necessary. “Common sense and ordinary experience and knowledge, such as is possessed by laymen, without the aid of medical expert evidence, might properly suggest that the condition of the plaintiff at the time that he was abandoned by the defendants was not compatible with skillful treatment.” See Mevorah v. King, 303 A.D.2d 657, 657–58, 756 N.Y.S.2d 794, 795 (2003).
That being said, medical experts are typically needed to set forth the consequences of the physician’s abandonment within the context of the patient’s specific facts and circumstances and to establish whether the alleged abandonment represented a departure from the acceptable medical practice. The status of a patient’s condition is necessary to determine whether a physician effectively terminated the relationship. For example, a patient who had undergone heart surgery and requires a multitude of follow-up appointments is vastly different from a patient who visited a doctor once to treat a cold. Thus, a medical expert in the particular field as the defendant doctor is important to establish whether the termination occurred during a time when medical treatment was necessary and if, under the circumstances, the timing and notice were unreasonable.
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