Physicians Screen and Turn Away Patients To Avoid Lawsuits

[J.Adderton]

According to the AMA’s Division of Economic and Health Policy Research, more than 34% of physicians have had a liability lawsuit filed against them at some point in their careers. Although plaintiffs in the majority of cases don’t win, the average cost for defending a case is more than $30,000 A recent article published on Medscape looked at how physicians are attempting to protect themselves by screening out patients who are more likely to file suits.

Not Obligated to Treat Anyone

As consumers, we are usually able to pick what physician we see and can change providers if we are not satisfied. What about physicians- are they obligated to treat anyone seeking their services, or do they have a right to self-select patients? According to the American Medical Association’s Economics and the Ethics of Medicine, an office-based physician doesn’t have to treat every patient seeking care.

Quote

“Physicians are not ethically required to accept all prospective patients…...physicians should be thoughtful in exercising their right to choose whom to serve.”

Economics and the Ethics of Medicine, AMA 1936

Possible Red Flags

Medscape’s article highlights Dr. Marie Bradshaw, a physician practicing internal and emergency medicine over the course of 27 years. What makes Dr. Bradshaw unique? In her long career, she has never been sued as a physician. Dr. Bradshaw interviews potential patients before agreeing to be their primary care doctor and credits this practice for preventing legal problems. Here are other factors Dr. Bradshaw considers before accepting a new patient:

How many physicians in that specialty has the patient seen over the past 1-2 years?

• More than 2 could be a sign of “doctor shopping”
• Important to ask if they terminated the relationship or did the doctor….and why.

Did the patient have problems with other doctors or practices.?

• Asking the patient if they have ever had “an issue” with another doctor may open the door to learning about a previous lawsuit.

What is the patient’s attitude toward the practice’s conditions for treatment?

• Does the patient complain about or refuse to sign an agreement related to treatment?
• This could be a red flag the patient will become difficult later in the relationship

Compliance with clinical recommendations.

• Is the patient compliant with health screenings (mammograms, colonoscopies, etc.) and treatment recommendations?

Is the patient show consideration for the practice and staff?

• Impolite behavior and rudeness towards others are a big red flag.
• Potential for violence should be a deal breaker.

Do you communicate well with the patient and have a good rapport?

• It may be a red flag if intuition is telling you it may be difficult to build a good rapport with the patient.

Joseph Scherger, MD, former vice president of primary care and academic affairs at Eisenhower Medical Center, recommends getting the above information while taking the patient’s medical history.

Nurses Have Valuable Insight

Michael Sacopulos, JD, CEO of the Medical Risk Institute, has sat in on hundreds of malpractice lawsuits over the years and emphasizes the need to pay attention to how a patient treats office staff. He states “I can't tell you how many times I've heard physicians say that when the paperwork arrives, the staff isn't surprised".

Patients are more likely to voice concerns or dissatisfaction to nurses and other staff members. Dr. Sacopulos theorizes that staff members are cued in on warning signs quicker because patients tend to be on their best behavior for the doctor. Therefore, it is important for physicians to listen and consider feedback from staff.

There Are Risks

When it comes to turning away or discharging patients, there are state and federal laws physicians must follow. Noncompliance with these laws may lead to complaints being made to state or federal agencies, resulting in an investigation by the state attorney general’s office. A patient, who was not accepted, could file a complaint with the medical board that they were not treated properly. In this case, the physician would need to demonstrate that a physician-patient relationship never existed. For example, a written letter notifying the patient of nonacceptance may be used as evidence the patient was not under the physician’s care.

Taking It to the Extreme

What do you think? Does the practice of screening for potentially litigious patients encourage an attitude of “patients are out to sue you”? What ethical pitfalls do you see?

[JKL33]

23 hours ago, Susie2310 said:

I don't think the best way to begin a relationship that for the patient is based on trust between them and the physician, is to vet the patient/prospective patient for possible signs/characteristics that they may be a risk to the physician's financial or professional livelihood.

Most of us (nurses) are employees so our actions of personal discretion take a different form than what might be expected from an independent/self-employed physician (my comment uses them as the example because none of the employee physicians I know are allowed to routinely screen out potential patients anyway). We--health care workers employed by others--instead attempt to uncover red flags by vetting employers, scrutinizing job descriptions, observing the behavior/manner of hiring mangers, judging the working conditions and evaluating the pros/cons of the offer in order to make a decision about the kind of work we do or don't accept, as opposed to attempting to evaluate the pros/cons of entering into individual legal relationships with a particular patient.

And yet at the end of the day the underlying motivation is quite the same: If possible, people generally prefer to support ourselves/put food on our tables in ways that are less likely to unnecessarily increase our professional, financial and emotional stress beyond the usual levels of risks and stressors. We also don't willingly prefer to sign up for work we don't reasonably believe we can do (regardless of the reason we don't believe we can do it).

Nearly all people in general tend to attempt to control whatever additional risk and stress they can, with their own and their families' best interests shamelessly in mind, when it comes to providing for their existence. This is most certainly not behavior limited to (some) physicians.

15 hours ago, Susie2310 said:

The majority of patients are reasonable in their expectations of health care providers and behave reasonably given the frequent stressors that are experienced in the process of receiving care.

Agree in general. That's a good deal of the reason why the majority of people don't have to worry about this issue to whatever extent it exists.

2 hours ago, Susie2310 said:

I understand many of us would like to have a world where actions have no consequences.

No. That is not true. But with regard to the topic at hand, your position is the one advocating that people should be able to operate without needing to concern themselves with the natural consequences of their actions.

[Susie2310]

4 hours ago, JKL33 said:

But with regard to the topic at hand, your position is the one advocating that people should be able to operate without needing to concern themselves with the natural consequences of their actions.

This comment appears to be intended to be provocative as I haven't advocated that people (I presume you are referring to patients and their family members) should be able to operate without needing to concern themselves with the consequences of their actions. Please provide the quote where I said this. I mentioned outright that visible posting of the Patient's Bill of Rights outlining patient rights and responsibilities is a reasonable way to convey expectations, so I'm not sure how you would conclude that I don't think patients have responsibilities along with rights.

[JKL33]

I didn't address what you said about patients' rights and responsibilities because that has nothing to do with the issue of prospective legal relationships and obligations that do not yet exist, which is what this topic of discussion is about.

[Susie2310]

22 minutes ago, JKL33 said:

I didn't address what you said about patients' rights and responsibilities because that has nothing to do with the issue of prospective legal relationships and obligations that do not yet exist, which is what this topic of discussion is about.

Here is my initial comment which directly addresses the topic of the discussion:

"I don't think the best way to begin a relationship that for the patient is based on trust between them and the physician, is to vet the patient/prospective patient for possible signs/characteristics that they may be a risk to the physician's financial or professional livelihood. When one starts out looking for the worst in another person one tends to find it.

Employing methodology to assist the physician in determining whether the patient will be a "good patient who will not be a financial/professional risk to the physician's practice regardless of the patient's particular situation, individual circumstances, or personal experiences," with the intention of gleaning psychological information about the patient, is not ethical in my opinion.

As far as a patient suing a physician, for malpractice claims in my state there is a specific, very short time window of not more than a few years if I recall correctly in which a claim can be brought. Considering that it may not even be possible to determine the full extent of a patient's injuries within that time, and considering that patients that are harmed, including their family members, may be expending all their resources - emotional, and financial - on trying to assist the patient to recover, and have no time, energy, or money to spend on initiating a lawsuit, the legal system in regard to bringing suit against a physician favors the physician not the patient.

Of course there should be regulations as to the circumstances under which physicians can discharge patients. Physicians have a legal duty of care to their patients.

With electronic health records today, large amounts of patient data exist, and there is the ever present potential for patient data to be used in ways the patient never consented to nor would choose to consent to."

Again, I haven't advocated that people (patients and family members) should be able to operate without concerning themselves with the consequences of their actions.

[JKL33]

1 hour ago, Susie2310 said:

Again, I haven't advocated that people (patients and family members) should be able to operate without concerning themselves with the consequences of their actions.

You can't just put "patients and family members" in parentheses like that, though. People are the general public who are the prospective patients of a particular provider. Patients are, well, already patients (of a particular provider).

Patients (those to whom a legal duty is already owed) and their family members are not what this topic is about. It is about whether individual people who have no legal duty to one another should both be able to evaluate whether they want to enter into a legal relationship.

I am not trying to misunderstand your position. To the best of my reading/understanding, you are advocating that if one of these individual people is a healthcare provider, that person (provider) either does not or should not have the right to evaluate the prospective situation in order to help them decide whether they want to enter into a legal relationship.

If that ^ is what you believe, then you de facto believe that certain people (prospective patients) who appear to engage in illegal, abusive or very disruptive health-care related activities and behaviors should not be subject to this particular natural consequence of their actions [where the natural consequence is that an individual may not wish to enter into a legal relationship with them some time in the future].

I agree with you that where such legal (patient-provider) relationships are already established it is both right and fair to have regulations about how the relationship may be terminated (by the provider). But again, right now we are talking about whether providers should have any rights regarding the decision to enter into said legal relationships in the first place.

[Susie2310]

1 hour ago, JKL33 said:

You can't just put "patients and family members" in parentheses like that, though. People are the general public who are the prospective patients of a particular provider. Patients are, well, already patients (of a particular provider).

Patients (those to whom a legal duty is already owed) and their family members are not what this topic is about. It is about whether individual people who have no legal duty to one another should both be able to evaluate whether they want to enter into a legal relationship.

I am not trying to misunderstand your position. To the best of my reading/understanding, you are advocating that if one of these individual people is a healthcare provider, that person (provider) either does not or should not have the right to evaluate the prospective situation in order to help them decide whether they want to enter into a legal relationship.

If that ^ is what you believe, then you de facto believe that certain people (prospective patients) who appear to engage in illegal, abusive or very disruptive health-care related activities and behaviors should not be subject to this particular natural consequence of their actions [where the natural consequence is that an individual may not wish to enter into a legal relationship with them some time in the future].

I agree with you that where such legal (patient-provider) relationships are already established it is both right and fair to have regulations about how the relationship may be terminated (by the provider). But again, right now we are talking about whether providers should have any rights regarding the decision to enter into said legal relationships in the first place.

The OP's question was "Is It Ethical To Turn Patients Away Who Signal Risk For Suit? I answered the OP's question.

Again, I haven't suggested that "people who are not yet patients of a medical practice" should be able to operate without concerning themselves with the consequences of their action.

Here is my comment again in response to the OP:

"I don't think the best way to begin a relationship that for the patient is based on trust between them and the physician, is to vet the patient/prospective patient for possible signs/characteristics that they may be a risk to the physician's financial or professional livelihood. When one starts out looking for the worst in another person one tends to find it.

Employing methodology to assist the physician in determining whether the patient will be a "good patient who will not be a financial/professional risk to the physician's practice regardless of the patient's particular situation, individual circumstances, or personal experiences," with the intention of gleaning psychological information about the patient, is not ethical in my opinion.

As far as a patient suing a physician, for malpractice claims in my state there is a specific, very short time window of not more than a few years if I recall correctly in which a claim can be brought. Considering that it may not even be possible to determine the full extent of a patient's injuries within that time, and considering that patients that are harmed, including their family members, may be expending all their resources - emotional, and financial - on trying to assist the patient to recover, and have no time, energy, or money to spend on initiating a lawsuit, the legal system in regard to bringing suit against a physician favors the physician not the patient.

Of course there should be regulations as to the circumstances under which physicians can discharge patients. Physicians have a legal duty of care to their patients.

With electronic health records today, large amounts of patient data exist, and there is the ever present potential for patient data to be used in ways the patient never consented to nor would choose to consent to."

My first two paragraphs refer to people who are not yet patients of a practice, and also apply to people who are already patients of the medical practice. I said that in my OPINION the practice of vetting patients in this way ( the way the OP described) is not ethical; I did not comment on the practice's right to do this or on the legalities of doing this - please read my post again. My opinion that it is not ethical to do this does not confer any "de facto" belief on my part that prospective patients who may engage in abusive, illegal, or disruptive behaviors should not be concerned with the consequences of their actions. Your logic is very poor and I'm afraid you are grasping at straws.

Here is the OP again:

"According to the AMA’s Division of Economic and Health Policy Research, more than 34% of physicians have had a liability lawsuit filed against them at some point in their careers. Although plaintiffs in the majority of cases don’t win, the average cost for defending a case is more than $30,000 A recent article published on Medscape looked at how physicians are attempting to protect themselves by screening out patients who are more likely to file suits.

Not Obligated to Treat Anyone

As consumers, we are usually able to pick what physician we see and can change providers if we are not satisfied. What about physicians- are they obligated to treat anyone seeking their services, or do they have a right to self-select patients? According to the American Medical Association’s Economics and the Ethics of Medicine, an office-based physician doesn’t have to treat every patient seeking care.

Quote

“Physicians are not ethically required to accept all prospective patients…...physicians should be thoughtful in exercising their right to choose whom to serve.”

Economics and the Ethics of Medicine, AMA 1936

Possible Red Flags

Medscape’s article highlights Dr. Marie Bradshaw, a physician practicing internal and emergency medicine over the course of 27 years. What makes Dr. Bradshaw unique? In her long career, she has never been sued as a physician. Dr. Bradshaw interviews potential patients before agreeing to be their primary care doctor and credits this practice for preventing legal problems. Here are other factors Dr. Bradshaw considers before accepting a new patient:

How many physicians in that specialty has the patient seen over the past 1-2 years?

More than 2 could be a sign of “doctor shopping”

Important to ask if they terminated the relationship or did the doctor….and why.

Did the patient have problems with other doctors or practices.?

Asking the patient if they have ever had “an issue” with another doctor may open the door to learning about a previous lawsuit.

What is the patient’s attitude toward the practice’s conditions for treatment?

Does the patient complain about or refuse to sign an agreement related to treatment?

This could be a red flag the patient will become difficult later in the relationship

Compliance with clinical recommendations.

Is the patient compliant with health screenings (mammograms, colonoscopies, etc.) and treatment recommendations?

Is the patient show consideration for the practice and staff?

Impolite behavior and rudeness towards others are a big red flag.

Potential for violence should be a deal breaker.

Do you communicate well with the patient and have a good rapport?

It may be a red flag if intuition is telling you it may be difficult to build a good rapport with the patient.

Joseph Scherger, MD, former vice president of primary care and academic affairs at Eisenhower Medical Center, recommends getting the above information while taking the patient’s medical history.

Nurses Have Valuable Insight

Michael Sacopulos, JD, CEO of the Medical Risk Institute, has sat in on hundreds of malpractice lawsuits over the years and emphasizes the need to pay attention to how a patient treats office staff. He states “I can't tell you how many times I've heard physicians say that when the paperwork arrives, the staff isn't surprised".

Patients are more likely to voice concerns or dissatisfaction to nurses and other staff members. Dr. Sacopulos theorizes that staff members are cued in on warning signs quicker because patients tend to be on their best behavior for the doctor. Therefore, it is important for physicians to listen and consider feedback from staff.

There Are Risks

When it comes to turning away or discharging patients, there are state and federal laws physicians must follow. Noncompliance with these laws may lead to complaints being made to state or federal agencies, resulting in an investigation by the state attorney general’s office. A patient, who was not accepted, could file a complaint with the medical board that they were not treated properly. In this case, the physician would need to demonstrate that a physician-patient relationship never existed. For example, a written letter notifying the patient of nonacceptance may be used as evidence the patient was not under the physician’s care.

Taking It to the Extreme

What do you think? Does the practice of screening for potentially litigious patients encourage an attitude of “patients are out to sue you”? What ethical pitfalls do you see?"

Quote

Respectfully, I have to tell you that I cannot give you any more of my time in this discussion - I have seen other posters make similar comments to you. You seem desperate to put me in a position where you can hold me accountable for things I have never said. I am not responsible for your reading comprehension or for your inferences.

[JKL33]

I will temporarily choose to believe that you are sincerely not aware of how your copy/paste methods complicate the work of reading and trying to understand what you actually are trying to say. If you continue to do it I will take that as being an intentional attempt at obfuscation.

[JKL33]

Susie2310, the main reason I ever engage you is out of curiosity and some desire that you would participate in good faith to possibly consider of other points of view.

I made a second, even more careful attempt to review your original post. [I see you are now bowing out, but here it is anyway]:

Quote

I don't think the best way to begin a relationship that for the patient is based on trust between them and the physician, is to vet the patient/prospective patient for possible signs/characteristics that they may be a risk to the physician's financial or professional livelihood.

On 3/12/2020 at 12:43 PM, Susie2310 said:

Quote

I said that in my OPINION the practice of vetting patients in this way ( the way the OP described) is not ethical; I did not comment on the practice's right to do this or on the legalities of doing this

1. In the first quote, you specify that, for the patient, the relationship is based on trust between them and the physician. In your opinion, does bi-directional trust come into play here, or is it only about whether the patient can trust the physician?

2. In the first quote, you state [the practice] isn't the best way [for the physician/provider] to begin a relationship based on [trust--from the patient's perspective]. In the second quote you add that you believe it is unethical. In your opinion, are there any ethical means by which a provider may attempt to ascertain the likelihood that a given prospective patient will engage in the relationship in good faith?

3. In the first quote, you state [the practice] isn't the best way to begin [a relationship based on trust]. What is the best way?

Quote

Employing methodology to assist the physician in determining whether the patient will be a "good patient who will not be a financial/professional risk to the physician's practice regardless of the patient's particular situation, individual circumstances, or personal experiences," with the intention of gleaning psychological information about the patient, is not ethical in my opinion.

4. I feel that "intention of gaining psychological information" is an inappropriately broad (and thus disingenuous) way to characterize the action.

Quote

As far as a patient suing a physician, for malpractice claims in my state there is a specific, very short time window of not more than a few years if I recall correctly in which a claim can be brought. Considering that it may not even be possible to determine the full extent of a patient's injuries within that time, and considering that patients that are harmed, including their family members, may be expending all their resources - emotional, and financial - on trying to assist the patient to recover, and have no time, energy, or money to spend on initiating a lawsuit, the legal system in regard to bringing suit against a physician favors the physician not the patient.

5. I'm not clear how you are you linking [the practice described in the OP] with your assertion that "the legal system with regard to bringing a suit against a physician favors the physician not the patient"? Does the ease or difficulty of bringing a malpractice lawsuit have something to do with whether or not the OP-described practice is ethical or not? Or were those two portions of your original comments unrelated?

Quote

With electronic health records today, large amounts of patient data exist, and there is the ever present potential for patient data to be used in ways the patient never consented to nor would choose to consent to.

6. This is a concern, I agree. I guess I just put it into a different context for myself personally: There are health data-collection related issues that concern me infinitely more than the thought of an individual small-time physician/provider who basically just wants to try to guess whether or not s/he and I will be able to get along and have a productive physician-patient relationship (which is what I think most of such screening is really about).

[DeeAngel]

On 3/13/2020 at 9:00 AM, OUxPhys said:

Sure did. I apologize if I insinuated that all note takers are looking to sue. That was not my intent, but, when you have family members complain about anything and everything I highly doubt it is to chart the progress of their care.

Of course nursing malpractice insurance is cheap, so cheap that hospitals usually cover it for their nurses. I was referring to MD malpractice. The fact it is so high just shows you where we are as a society.

Absolutely. Nurses and doctors should be held to a high standard of care. I never said patients dont have the right to sue. If there is clear negligence that resulted in harm or death then they have every right and the provider should be held accountable.

This is the sad fact: in our society there are people looking to make a quick buck by suing for malpractice even when there is no harm or wrong by the hospital/provider. Just look at all the lawyer advertisements.

No, I'm more for universal care because it will make healthcare more affordable in the long term. The military currently has a law where you are not allowed to sue if a physician makes a mistake, which I am 100% against and hope they pass the law they introduced intended to repeal it.

Only a fool doesn’t have their own malpractice policy. Hospitals cannot be trusted to provide this protection, always have your own.

[Tegridy]

Physicians should absolutely have the choose to refuse new patients.

[TriciaJ, RN]

On 3/12/2020 at 6:04 PM, Susie2310 said:

The Patient's Bill of Rights that large medical practices post in a visible place that can be seen by members of the public, setting forth patients rights and responsibilities, is a reasonable way to communicate expectations.

I always thought that was just someone's bad idea of wall art, just like the anatomy posters in exam rooms.

[Susie2310]

1 hour ago, TriciaJ said:

I always thought that was just someone's bad idea of wall art, just like the anatomy posters in exam rooms.

The ones that I am familiar with are quite explicit in setting forth patients' rights and responsibilities. One has to take the trouble to read them, but even just a quick browse is informative. Patients' rights and responsibilities are described very clearly.