John Davenport, MD, JD

CASE 1 Nonpayment

Susan L, a 53-year-old who’d been a patient of Dr. O’s for the past 6 years, received a bill for a visit that had occurred nearly 2 years earlier. She called the office and told the receptionist that she had never been billed for this visit and didn’t think she should have to pay after such a lengthy delay. When she received a past due notice, Susan called and asked to speak to the physician—and to schedule an appointment. She was told that she could do neither until her account was current.

Eventually, the unpaid bill was sent to a collection agency, and Susan received a letter threatening legal action. In response, she sent a letter of her own—certified, return receipt requested—detailing her reason for not paying and threatening to sue Dr. O for abandonment.*

*Adapted from actual cases, with details changed to protect the privacy of the parties involved.

With the national unemployment rate hovering at a record high, unpaid medical bills may be your most pressing problem—and potential grounds for patient dismissal. Judging from a recent survey in which primary care physicians identified nearly one patient in 5 as “difficult,"¹ it’s unlikely that nonpayment is the only patient conundrum you face.

Indeed, there are many ways a patient can be difficult, including exhibiting habitual hostility, chronic drug-seeking behavior, or consistent noncompliance; breaking appointments at the last minute; or being a no-show. You may wish you could “fire” the worst off enders but be concerned about professional and ethical responsibilities and the legal risk you might face. Ironically, though, struggling to maintain a chronically stressed physician-patient relationship is often riskier than a well-timed termination.²

The key here, however, is the persistent or extreme nature of the difficulty.³ When a dismissal is prompted by a one-time occurrence or lower-level offense, what constitutes a reasonable response is not always clear-cut.

Under what circumstances is it appropriate to end your relationship with a patient? When you do terminate the relationship, what steps can you take to safeguard the patient and avoid charges of abandonment? Here’s a look at these questions—and some answers.

Professional responsibility: How far does it go?

As a physician, you’ve pledged to “do no harm.” And you’ve likely been taught—as it states in the American College of Physicians (ACP) ethics manual—that you have “a moral duty to care for all patients.” ⁴ The American Medical Association’s code of ethics cites a similar standard: the obligation to place patients’ welfare above your own interests.⁵

According to the ACP, the physician-patient relationship should be discontinued only under “exceptional circumstances."⁶ But not everyone agrees, not only on what constitutes “exceptional,” but on whether that is the correct threshold for termination.

A health care attorney writing in American Medical News, for example, takes a more liberal view. It’s time to dismiss, he asserts, when the doctor-patient relationship doesn’t work.⁷ By that standard, virtually any ongoing problem could be construed as evidence of an “irreparable breakdown” of the physician-patient relationship (TABLE).

TABLE
Key reasons to "fire" a patient

We can work it out

Legally, a doctor can dismiss a patient for virtually any reason, or fail to give any explanation at all.² Ethically, dismissal should be your last option, not your first choice.

In a home study course titled “Challenging physician-patient interactions,” the American Academy of Family Physicians (AAFP) advises doctors to be certain they have exhausted every reasonable effort to communicate, set achievable goals, and meet the patient’s needs.³ The steps you take to try to mend a damaged patient relationship, of course, will depend on what caused the rift in the first place. Here are some examples.

Nonpayment. You are not compelled (or expected) to indefinitely continue to treat a patient who’s unable—or unwilling—to pay you, of course. But if he or she is out of work and has fallen on hard times or has a single unpaid bill, discussing the problem and attempting to accommodate the patient’s financial limitations (and establish a realistic payment plan) is a reasonable approach.

Having a billing clerk handle most communications regarding unpaid bills may be a good idea. But when a situation escalates, as in the case of Susan L (CASE 1), foregoing a direct discussion and expecting a subordinate to handle an abrupt patient termination is not (ethically or legally) appropriate.⁷

CASE 2 A drug-seeking patient

Laura K, age 34, had always been a challenging patient. She suffered from a collection of pain-producing maladies, including migraines, fibromyalgia, and low back pain. Controlling her pain required increasing amounts of narcotics, sometimes in doses that exceeded therapeutic recommendations.

Recently she’d begun calling her primary care physician’s office for early refills; more than once, she claimed her prescription had been lost or stolen. When Laura called to report that the oxycodone prescribed 4 days ago had been stolen from her purse and to request a refill, the physician refused to speak with her—and instructed the receptionist to tell her she needed to find another physician.

Laura called several other local physicians, but none was able to see her. She then went to the emergency department. The ED physician evaluated her and offered her a prescription for a mild analgesic, but refused her request for oxycodone.

That night, Laura attempted suicide. Although she survived, she was left with significant neurologic deficits. She sued the physician who had refused to speak to her on a variety of counts of negligence, including a charge of abandonment.

At deposition, experts for the plaintiff testified that refusing to see and evaluate a current patient for her ongoing problems without giving substantial notice constituted abandonment—and was a substantial cause of Laura’s suicide attempt. On the advice of counsel, the physician agreed to a $150,000 settlement.

Drug-seeking. Behavior like that of Laura K (CASE 2), whose requests for narcotics and claims of lost pills or prescriptions occurred with increasing regularity, can’t be ignored. The AAFP course, which states that patients should not be dismissed “on the grounds of drug-seeking behaviors alone,"³ recommends that physicians develop policies for prescribing controlled substances and handling drug-seeking patients. Such a policy—which might include limits on the frequency of renewals and the duration of a single prescription, among other provisions—should be communicated to every patient who seeks opioid analgesics.³ The Federation of State Medical Boards recommends the use of a written agreement, spelling out your responsibilities as well as those of the patient, for individuals at high risk of abuse (http://www.fsmb.org/pdf/2004_grpol_Controlled_Substances.pdf).

While the existence of a policy or written contract may not alter the behavior of a drug-seeking patient, it can prevent you from being caught off -guard or reacting as rashly as Laura K’s physician did. Indeed, Laura’s doctor made 2 key missteps: acting without warning, and expecting a receptionist to deliver the dismissal message.

A better approach, from the AAFP’s perspective, is to calmly maintain the limits you’ve set, remind the patient that you want to help, and offer treatment alternatives, such as nonopioid analgesics.³ Discussions in response to drug-seeking behavior, of course, should always be delivered—and documented—by the physician.

Noncompliance. This is a particularly complex problem, as issues of patient autonomy and physician authority are involved. A case study presented in the AAFP home study course describes the thoughts and feelings of a physician who considered dismissing a pediatric patient because the child’s mother refused to allow him to be vaccinated. The physician ultimately decided to continue to treat the child, after determining that the physician-patient relationship could still be beneficial and planning to revisit the vaccination issue with the mother at a later date.³ (Another physician, faced with a similar issue, wrote a New York Times article about his decision to dismiss a young patient. His reasoning? Accepting the mother’s refusal to allow her son to get a tetanus booster would compromise “my conscience and my professional ethics. I couldn’t do that."⁸)

Although it is important to recognize the difference between noncompliance and an individual’s right to refuse recommended treatment,⁹ you, too, may encounter situations in which a patient’s, or parent’s, repeated failure—to follow an agreed-upon therapeutic regimen, perhaps, or adhere to a schedule of visits needed to manage a chronic condition— causes your relationship with the patient to deteriorate to a point where dismissal is warranted. Here, as with other potential causes of dismissal, the patient should be adequately warned, the discussion documented, and action taken only if nothing changes.

Anger. As is the case with drug-seeking, the AAFP course advises physicians to anticipate and develop policies for handling situations in which a patient’s anger escalates and creates a real or perceived threat.³ While this is commonly done in acute care facilities, it is often overlooked in outpatient settings.

Among the issues to address: equipping offices and exam rooms with an emergency call button or intercom, knowing where to position yourself to ensure that you can’t be trapped in a room by a threatening patient, and considering how to respond in a way that defuses—rather than escalates—the anger. Calmly ask the patient what he or she is upset about, listen carefully, and apologize, if appropriate, for your role in the upsetting incident. Then move on to the purpose of the visit, stating, for example, “Now, what brings you in today?” ³

It is crucial to set boundaries (although it’s probably not a good idea to attempt it at the time of the outburst), making it clear, for example, that profanity is not acceptable; directing anger at nurses or other staff members is not permitted; and what the consequences of continued outbursts will be. ³

A single incident that’s grounds for dismissal
Despite the emphasis on resolving problems with patients, there are times when dismissal can and should occur, with little warning and no negotiation. In its home study course, the AAFP describes this as a “sentinel incident"— a single occurrence so egregious that it damages the physician-patient relationship beyond repair.³

A threat of violence or a physical assault itself would rise to that level. Some other examples: a sexual assault or blatant sexual advance, falsifying medical records, and theft or another type of criminal activity carried out in the physician’s office.

When a sentinel incident occurs, the best course is likely to be to forego any attempt at resolution, call the police or your facility’s security officer, and, if appropriate, to immediately prepare to “fire” the patient.

Dismissal without abandonment: Here’s how

In the vast majority of cases, dismissing a patient does not in and of itself constitute patient abandonment. Even if the termination is unduly abrupt, as was the case for Susan (CASE 1) and Laura (CASE 2), it doesn’t constitute abandonment unless the patient is dismissed during a course of treatment and unable to find a physician to provide ongoing care.

Neither was true in Susan’s case, and her threat of a lawsuit based on charges of abandonment never came to fruition. Not so for Laura, who was abruptly terminated during ongoing treatment—and who nonetheless made numerous attempts to find another doctor to care for her, without success. The attorney for Laura’s physician advised that the severe consequences of dismissing without going through the proper channels made a trial defense untenable.

Although most charges of patient abandonment never rise to the level required for a successful lawsuit, attorneys often include it in a litany of charges in an attempt to damage the physician’s credibility with a jury. You can usually avoid that scenario by taking the right steps when you dismiss a patient.

CASE 3 Pregnant patient, rural physician

As part of his rural family medicine practice, Dr. J provided obstetrical care. Dr. J had a partner and they alternated call nights, but his partner did not do OB. Dr. J made it a point, however, to always be on call for his obstetrical patients as they neared delivery. Having no patients imminently due, he took a one-week vacation out of town.

One of his patients went into premature labor and went to the local hospital. Dr. J’s partner was called to attend, but indicated he did not do OB work and advised the emergency physician to call “any obstetrician around.” One obstetrical group covered the region and the on-call physician was at another hospital doing a C-section and requested that the patient be transferred to that hospital for evaluation. After a series of delays, the patient was transferred and delivered a preterm infant who showed signs of neurological injury after a lengthy ICU stay.

The family sued all providers involved on several grounds, including patient abandonment. Plaintiff experts testified that the standard of care would be for Dr. J to be in attendance for such emergencies or, failing that, to provide for adequate coverage of his pregnant patient. They also testified that it was reasonable for the patient to have gone to the local hospital where her delivery was planned and that Dr. J should have arranged for the local OB group to provide emergency coverage. The case concluded with an $800,000 pretrial settlement.

Ensure that dismissal is an option
While we’ve already established that physicians have the legal right to dismiss patients, regardless of the reason, there are instances that make it far more difficult—and legally risky—to do so.

A primary care physician in a rural area is a case in point (CASE 3). If you are the only doctor in the area and the patient has no viable means of getting care from another provider, you may want to reconsider the dismissal. It is far easier to establish that a patient in such an underserved area was abandoned, even— as Dr. J found out—for failing to ensure full coverage during a vacation or leave of absence.

Rural physicians can help prevent charges of abandonment by advising patients of the special call challenges a rural setting presents. Doctors should make sure their patients know what to do if an emergency occurs when the practice is closed or a physician is out of town, and document the discussion in the medical record.

A physician in a staff-model HMO may face similar problems. Unless the HMO has another outpatient clinic in the vicinity, dismissal could leave the patient with no means of receiving affordable health care.

Options in such a case might include asking a colleague at the same clinic to accept a patient whom you would like to dismiss or finding a way to manage the patient’s behavior. If a patient has been excessively angry or threatening in the past, for example, it is often advisable to sit down with the patient (with security nearby) to discuss the parameters of expected behavior and develop a contract for future care. The contract might include a requirement that the patient call in advance so that security can be present when he or she arrives, for example, or that the patient agree to abstain from profanity and threats.

Know the laws in your state. Before you terminate a patient, check with your state medical board or local medical society to make sure your actions will be in compliance with any relevant state rules and regulations.

When you dismiss, cover all bases
Send a letter to the patient by certified mail, return receipt requested, notifying him or her of the dismissal and agreeing to provide emergency care for a reasonable time—typically, 30 days—while the patient seeks another physician. It is advisable, too, to help the patient locate other potential clinicians—by, say, including contact information for your county medical society or the patient’s health insurer’s list of in-network providers, or referring an indigent patient to Medicaid or a sliding scale clinic. It is a good idea to offer to transfer records to the new physician, as well.

It is not mandatory to document the reason for the dismissal in the letter, but some sources recommend that you do so. If you’re uncertain how to proceed, check with legal counsel before you send the letter. (You can find sample dismissal letters at www.ttuhsc.edu/som/clinic/forms/ACForm8.11.A.pdf and in “Terminating a patient: Is it time to part ways?” at http://www.aafp.org/fpm/2005/0900/p34.html.)

The events that led up to the dismissal, however, including any discussions you had with the patient about them, must be documented in the medical record. Put a copy of the letter and the certified mail receipt in the chart, as well. JFP

CORRESPONDENCE John Davenport, MD, JD, 13 Redonda, Irvine, CA 92620; john.y.davenport@kp.org

CASE 1 Nonpayment

Susan L, a 53-year-old who’d been a patient of Dr. O’s for the past 6 years, received a bill for a visit that had occurred nearly 2 years earlier. She called the office and told the receptionist that she had never been billed for this visit and didn’t think she should have to pay after such a lengthy delay. When she received a past due notice, Susan called and asked to speak to the physician—and to schedule an appointment. She was told that she could do neither until her account was current.

Eventually, the unpaid bill was sent to a collection agency, and Susan received a letter threatening legal action. In response, she sent a letter of her own—certified, return receipt requested—detailing her reason for not paying and threatening to sue Dr. O for abandonment.*

*Adapted from actual cases, with details changed to protect the privacy of the parties involved.

With the national unemployment rate hovering at a record high, unpaid medical bills may be your most pressing problem—and potential grounds for patient dismissal. Judging from a recent survey in which primary care physicians identified nearly one patient in 5 as “difficult,"¹ it’s unlikely that nonpayment is the only patient conundrum you face.

Indeed, there are many ways a patient can be difficult, including exhibiting habitual hostility, chronic drug-seeking behavior, or consistent noncompliance; breaking appointments at the last minute; or being a no-show. You may wish you could “fire” the worst off enders but be concerned about professional and ethical responsibilities and the legal risk you might face. Ironically, though, struggling to maintain a chronically stressed physician-patient relationship is often riskier than a well-timed termination.²

The key here, however, is the persistent or extreme nature of the difficulty.³ When a dismissal is prompted by a one-time occurrence or lower-level offense, what constitutes a reasonable response is not always clear-cut.

Under what circumstances is it appropriate to end your relationship with a patient? When you do terminate the relationship, what steps can you take to safeguard the patient and avoid charges of abandonment? Here’s a look at these questions—and some answers.

Professional responsibility: How far does it go?

As a physician, you’ve pledged to “do no harm.” And you’ve likely been taught—as it states in the American College of Physicians (ACP) ethics manual—that you have “a moral duty to care for all patients.” ⁴ The American Medical Association’s code of ethics cites a similar standard: the obligation to place patients’ welfare above your own interests.⁵

According to the ACP, the physician-patient relationship should be discontinued only under “exceptional circumstances."⁶ But not everyone agrees, not only on what constitutes “exceptional,” but on whether that is the correct threshold for termination.

A health care attorney writing in American Medical News, for example, takes a more liberal view. It’s time to dismiss, he asserts, when the doctor-patient relationship doesn’t work.⁷ By that standard, virtually any ongoing problem could be construed as evidence of an “irreparable breakdown” of the physician-patient relationship (TABLE).

TABLE
Key reasons to "fire" a patient

We can work it out

Legally, a doctor can dismiss a patient for virtually any reason, or fail to give any explanation at all.² Ethically, dismissal should be your last option, not your first choice.

In a home study course titled “Challenging physician-patient interactions,” the American Academy of Family Physicians (AAFP) advises doctors to be certain they have exhausted every reasonable effort to communicate, set achievable goals, and meet the patient’s needs.³ The steps you take to try to mend a damaged patient relationship, of course, will depend on what caused the rift in the first place. Here are some examples.

Nonpayment. You are not compelled (or expected) to indefinitely continue to treat a patient who’s unable—or unwilling—to pay you, of course. But if he or she is out of work and has fallen on hard times or has a single unpaid bill, discussing the problem and attempting to accommodate the patient’s financial limitations (and establish a realistic payment plan) is a reasonable approach.

Having a billing clerk handle most communications regarding unpaid bills may be a good idea. But when a situation escalates, as in the case of Susan L (CASE 1), foregoing a direct discussion and expecting a subordinate to handle an abrupt patient termination is not (ethically or legally) appropriate.⁷

CASE 2 A drug-seeking patient

Laura K, age 34, had always been a challenging patient. She suffered from a collection of pain-producing maladies, including migraines, fibromyalgia, and low back pain. Controlling her pain required increasing amounts of narcotics, sometimes in doses that exceeded therapeutic recommendations.

Recently she’d begun calling her primary care physician’s office for early refills; more than once, she claimed her prescription had been lost or stolen. When Laura called to report that the oxycodone prescribed 4 days ago had been stolen from her purse and to request a refill, the physician refused to speak with her—and instructed the receptionist to tell her she needed to find another physician.

Laura called several other local physicians, but none was able to see her. She then went to the emergency department. The ED physician evaluated her and offered her a prescription for a mild analgesic, but refused her request for oxycodone.

That night, Laura attempted suicide. Although she survived, she was left with significant neurologic deficits. She sued the physician who had refused to speak to her on a variety of counts of negligence, including a charge of abandonment.

At deposition, experts for the plaintiff testified that refusing to see and evaluate a current patient for her ongoing problems without giving substantial notice constituted abandonment—and was a substantial cause of Laura’s suicide attempt. On the advice of counsel, the physician agreed to a $150,000 settlement.

Drug-seeking. Behavior like that of Laura K (CASE 2), whose requests for narcotics and claims of lost pills or prescriptions occurred with increasing regularity, can’t be ignored. The AAFP course, which states that patients should not be dismissed “on the grounds of drug-seeking behaviors alone,"³ recommends that physicians develop policies for prescribing controlled substances and handling drug-seeking patients. Such a policy—which might include limits on the frequency of renewals and the duration of a single prescription, among other provisions—should be communicated to every patient who seeks opioid analgesics.³ The Federation of State Medical Boards recommends the use of a written agreement, spelling out your responsibilities as well as those of the patient, for individuals at high risk of abuse (http://www.fsmb.org/pdf/2004_grpol_Controlled_Substances.pdf).

While the existence of a policy or written contract may not alter the behavior of a drug-seeking patient, it can prevent you from being caught off -guard or reacting as rashly as Laura K’s physician did. Indeed, Laura’s doctor made 2 key missteps: acting without warning, and expecting a receptionist to deliver the dismissal message.

A better approach, from the AAFP’s perspective, is to calmly maintain the limits you’ve set, remind the patient that you want to help, and offer treatment alternatives, such as nonopioid analgesics.³ Discussions in response to drug-seeking behavior, of course, should always be delivered—and documented—by the physician.

Noncompliance. This is a particularly complex problem, as issues of patient autonomy and physician authority are involved. A case study presented in the AAFP home study course describes the thoughts and feelings of a physician who considered dismissing a pediatric patient because the child’s mother refused to allow him to be vaccinated. The physician ultimately decided to continue to treat the child, after determining that the physician-patient relationship could still be beneficial and planning to revisit the vaccination issue with the mother at a later date.³ (Another physician, faced with a similar issue, wrote a New York Times article about his decision to dismiss a young patient. His reasoning? Accepting the mother’s refusal to allow her son to get a tetanus booster would compromise “my conscience and my professional ethics. I couldn’t do that."⁸)

Although it is important to recognize the difference between noncompliance and an individual’s right to refuse recommended treatment,⁹ you, too, may encounter situations in which a patient’s, or parent’s, repeated failure—to follow an agreed-upon therapeutic regimen, perhaps, or adhere to a schedule of visits needed to manage a chronic condition— causes your relationship with the patient to deteriorate to a point where dismissal is warranted. Here, as with other potential causes of dismissal, the patient should be adequately warned, the discussion documented, and action taken only if nothing changes.

Anger. As is the case with drug-seeking, the AAFP course advises physicians to anticipate and develop policies for handling situations in which a patient’s anger escalates and creates a real or perceived threat.³ While this is commonly done in acute care facilities, it is often overlooked in outpatient settings.

Among the issues to address: equipping offices and exam rooms with an emergency call button or intercom, knowing where to position yourself to ensure that you can’t be trapped in a room by a threatening patient, and considering how to respond in a way that defuses—rather than escalates—the anger. Calmly ask the patient what he or she is upset about, listen carefully, and apologize, if appropriate, for your role in the upsetting incident. Then move on to the purpose of the visit, stating, for example, “Now, what brings you in today?” ³

It is crucial to set boundaries (although it’s probably not a good idea to attempt it at the time of the outburst), making it clear, for example, that profanity is not acceptable; directing anger at nurses or other staff members is not permitted; and what the consequences of continued outbursts will be. ³

A single incident that’s grounds for dismissal
Despite the emphasis on resolving problems with patients, there are times when dismissal can and should occur, with little warning and no negotiation. In its home study course, the AAFP describes this as a “sentinel incident"— a single occurrence so egregious that it damages the physician-patient relationship beyond repair.³

A threat of violence or a physical assault itself would rise to that level. Some other examples: a sexual assault or blatant sexual advance, falsifying medical records, and theft or another type of criminal activity carried out in the physician’s office.

When a sentinel incident occurs, the best course is likely to be to forego any attempt at resolution, call the police or your facility’s security officer, and, if appropriate, to immediately prepare to “fire” the patient.

Dismissal without abandonment: Here’s how

In the vast majority of cases, dismissing a patient does not in and of itself constitute patient abandonment. Even if the termination is unduly abrupt, as was the case for Susan (CASE 1) and Laura (CASE 2), it doesn’t constitute abandonment unless the patient is dismissed during a course of treatment and unable to find a physician to provide ongoing care.

Neither was true in Susan’s case, and her threat of a lawsuit based on charges of abandonment never came to fruition. Not so for Laura, who was abruptly terminated during ongoing treatment—and who nonetheless made numerous attempts to find another doctor to care for her, without success. The attorney for Laura’s physician advised that the severe consequences of dismissing without going through the proper channels made a trial defense untenable.

Although most charges of patient abandonment never rise to the level required for a successful lawsuit, attorneys often include it in a litany of charges in an attempt to damage the physician’s credibility with a jury. You can usually avoid that scenario by taking the right steps when you dismiss a patient.

CASE 3 Pregnant patient, rural physician

As part of his rural family medicine practice, Dr. J provided obstetrical care. Dr. J had a partner and they alternated call nights, but his partner did not do OB. Dr. J made it a point, however, to always be on call for his obstetrical patients as they neared delivery. Having no patients imminently due, he took a one-week vacation out of town.

One of his patients went into premature labor and went to the local hospital. Dr. J’s partner was called to attend, but indicated he did not do OB work and advised the emergency physician to call “any obstetrician around.” One obstetrical group covered the region and the on-call physician was at another hospital doing a C-section and requested that the patient be transferred to that hospital for evaluation. After a series of delays, the patient was transferred and delivered a preterm infant who showed signs of neurological injury after a lengthy ICU stay.

The family sued all providers involved on several grounds, including patient abandonment. Plaintiff experts testified that the standard of care would be for Dr. J to be in attendance for such emergencies or, failing that, to provide for adequate coverage of his pregnant patient. They also testified that it was reasonable for the patient to have gone to the local hospital where her delivery was planned and that Dr. J should have arranged for the local OB group to provide emergency coverage. The case concluded with an $800,000 pretrial settlement.

Ensure that dismissal is an option
While we’ve already established that physicians have the legal right to dismiss patients, regardless of the reason, there are instances that make it far more difficult—and legally risky—to do so.

A primary care physician in a rural area is a case in point (CASE 3). If you are the only doctor in the area and the patient has no viable means of getting care from another provider, you may want to reconsider the dismissal. It is far easier to establish that a patient in such an underserved area was abandoned, even— as Dr. J found out—for failing to ensure full coverage during a vacation or leave of absence.

Rural physicians can help prevent charges of abandonment by advising patients of the special call challenges a rural setting presents. Doctors should make sure their patients know what to do if an emergency occurs when the practice is closed or a physician is out of town, and document the discussion in the medical record.

A physician in a staff-model HMO may face similar problems. Unless the HMO has another outpatient clinic in the vicinity, dismissal could leave the patient with no means of receiving affordable health care.

Options in such a case might include asking a colleague at the same clinic to accept a patient whom you would like to dismiss or finding a way to manage the patient’s behavior. If a patient has been excessively angry or threatening in the past, for example, it is often advisable to sit down with the patient (with security nearby) to discuss the parameters of expected behavior and develop a contract for future care. The contract might include a requirement that the patient call in advance so that security can be present when he or she arrives, for example, or that the patient agree to abstain from profanity and threats.

Know the laws in your state. Before you terminate a patient, check with your state medical board or local medical society to make sure your actions will be in compliance with any relevant state rules and regulations.

When you dismiss, cover all bases
Send a letter to the patient by certified mail, return receipt requested, notifying him or her of the dismissal and agreeing to provide emergency care for a reasonable time—typically, 30 days—while the patient seeks another physician. It is advisable, too, to help the patient locate other potential clinicians—by, say, including contact information for your county medical society or the patient’s health insurer’s list of in-network providers, or referring an indigent patient to Medicaid or a sliding scale clinic. It is a good idea to offer to transfer records to the new physician, as well.

It is not mandatory to document the reason for the dismissal in the letter, but some sources recommend that you do so. If you’re uncertain how to proceed, check with legal counsel before you send the letter. (You can find sample dismissal letters at www.ttuhsc.edu/som/clinic/forms/ACForm8.11.A.pdf and in “Terminating a patient: Is it time to part ways?” at http://www.aafp.org/fpm/2005/0900/p34.html.)

The events that led up to the dismissal, however, including any discussions you had with the patient about them, must be documented in the medical record. Put a copy of the letter and the certified mail receipt in the chart, as well. JFP

CORRESPONDENCE John Davenport, MD, JD, 13 Redonda, Irvine, CA 92620; john.y.davenport@kp.org

CASE 1 Nonpayment

Susan L, a 53-year-old who’d been a patient of Dr. O’s for the past 6 years, received a bill for a visit that had occurred nearly 2 years earlier. She called the office and told the receptionist that she had never been billed for this visit and didn’t think she should have to pay after such a lengthy delay. When she received a past due notice, Susan called and asked to speak to the physician—and to schedule an appointment. She was told that she could do neither until her account was current.

Eventually, the unpaid bill was sent to a collection agency, and Susan received a letter threatening legal action. In response, she sent a letter of her own—certified, return receipt requested—detailing her reason for not paying and threatening to sue Dr. O for abandonment.*

*Adapted from actual cases, with details changed to protect the privacy of the parties involved.

With the national unemployment rate hovering at a record high, unpaid medical bills may be your most pressing problem—and potential grounds for patient dismissal. Judging from a recent survey in which primary care physicians identified nearly one patient in 5 as “difficult,"¹ it’s unlikely that nonpayment is the only patient conundrum you face.

Indeed, there are many ways a patient can be difficult, including exhibiting habitual hostility, chronic drug-seeking behavior, or consistent noncompliance; breaking appointments at the last minute; or being a no-show. You may wish you could “fire” the worst off enders but be concerned about professional and ethical responsibilities and the legal risk you might face. Ironically, though, struggling to maintain a chronically stressed physician-patient relationship is often riskier than a well-timed termination.²

The key here, however, is the persistent or extreme nature of the difficulty.³ When a dismissal is prompted by a one-time occurrence or lower-level offense, what constitutes a reasonable response is not always clear-cut.

Under what circumstances is it appropriate to end your relationship with a patient? When you do terminate the relationship, what steps can you take to safeguard the patient and avoid charges of abandonment? Here’s a look at these questions—and some answers.

Professional responsibility: How far does it go?

As a physician, you’ve pledged to “do no harm.” And you’ve likely been taught—as it states in the American College of Physicians (ACP) ethics manual—that you have “a moral duty to care for all patients.” ⁴ The American Medical Association’s code of ethics cites a similar standard: the obligation to place patients’ welfare above your own interests.⁵

According to the ACP, the physician-patient relationship should be discontinued only under “exceptional circumstances."⁶ But not everyone agrees, not only on what constitutes “exceptional,” but on whether that is the correct threshold for termination.

A health care attorney writing in American Medical News, for example, takes a more liberal view. It’s time to dismiss, he asserts, when the doctor-patient relationship doesn’t work.⁷ By that standard, virtually any ongoing problem could be construed as evidence of an “irreparable breakdown” of the physician-patient relationship (TABLE).

TABLE
Key reasons to "fire" a patient

We can work it out

Legally, a doctor can dismiss a patient for virtually any reason, or fail to give any explanation at all.² Ethically, dismissal should be your last option, not your first choice.

In a home study course titled “Challenging physician-patient interactions,” the American Academy of Family Physicians (AAFP) advises doctors to be certain they have exhausted every reasonable effort to communicate, set achievable goals, and meet the patient’s needs.³ The steps you take to try to mend a damaged patient relationship, of course, will depend on what caused the rift in the first place. Here are some examples.

Nonpayment. You are not compelled (or expected) to indefinitely continue to treat a patient who’s unable—or unwilling—to pay you, of course. But if he or she is out of work and has fallen on hard times or has a single unpaid bill, discussing the problem and attempting to accommodate the patient’s financial limitations (and establish a realistic payment plan) is a reasonable approach.

Having a billing clerk handle most communications regarding unpaid bills may be a good idea. But when a situation escalates, as in the case of Susan L (CASE 1), foregoing a direct discussion and expecting a subordinate to handle an abrupt patient termination is not (ethically or legally) appropriate.⁷

CASE 2 A drug-seeking patient

Laura K, age 34, had always been a challenging patient. She suffered from a collection of pain-producing maladies, including migraines, fibromyalgia, and low back pain. Controlling her pain required increasing amounts of narcotics, sometimes in doses that exceeded therapeutic recommendations.

Recently she’d begun calling her primary care physician’s office for early refills; more than once, she claimed her prescription had been lost or stolen. When Laura called to report that the oxycodone prescribed 4 days ago had been stolen from her purse and to request a refill, the physician refused to speak with her—and instructed the receptionist to tell her she needed to find another physician.

Laura called several other local physicians, but none was able to see her. She then went to the emergency department. The ED physician evaluated her and offered her a prescription for a mild analgesic, but refused her request for oxycodone.

That night, Laura attempted suicide. Although she survived, she was left with significant neurologic deficits. She sued the physician who had refused to speak to her on a variety of counts of negligence, including a charge of abandonment.

At deposition, experts for the plaintiff testified that refusing to see and evaluate a current patient for her ongoing problems without giving substantial notice constituted abandonment—and was a substantial cause of Laura’s suicide attempt. On the advice of counsel, the physician agreed to a $150,000 settlement.

Drug-seeking. Behavior like that of Laura K (CASE 2), whose requests for narcotics and claims of lost pills or prescriptions occurred with increasing regularity, can’t be ignored. The AAFP course, which states that patients should not be dismissed “on the grounds of drug-seeking behaviors alone,"³ recommends that physicians develop policies for prescribing controlled substances and handling drug-seeking patients. Such a policy—which might include limits on the frequency of renewals and the duration of a single prescription, among other provisions—should be communicated to every patient who seeks opioid analgesics.³ The Federation of State Medical Boards recommends the use of a written agreement, spelling out your responsibilities as well as those of the patient, for individuals at high risk of abuse (http://www.fsmb.org/pdf/2004_grpol_Controlled_Substances.pdf).

While the existence of a policy or written contract may not alter the behavior of a drug-seeking patient, it can prevent you from being caught off -guard or reacting as rashly as Laura K’s physician did. Indeed, Laura’s doctor made 2 key missteps: acting without warning, and expecting a receptionist to deliver the dismissal message.

A better approach, from the AAFP’s perspective, is to calmly maintain the limits you’ve set, remind the patient that you want to help, and offer treatment alternatives, such as nonopioid analgesics.³ Discussions in response to drug-seeking behavior, of course, should always be delivered—and documented—by the physician.

Noncompliance. This is a particularly complex problem, as issues of patient autonomy and physician authority are involved. A case study presented in the AAFP home study course describes the thoughts and feelings of a physician who considered dismissing a pediatric patient because the child’s mother refused to allow him to be vaccinated. The physician ultimately decided to continue to treat the child, after determining that the physician-patient relationship could still be beneficial and planning to revisit the vaccination issue with the mother at a later date.³ (Another physician, faced with a similar issue, wrote a New York Times article about his decision to dismiss a young patient. His reasoning? Accepting the mother’s refusal to allow her son to get a tetanus booster would compromise “my conscience and my professional ethics. I couldn’t do that."⁸)

Although it is important to recognize the difference between noncompliance and an individual’s right to refuse recommended treatment,⁹ you, too, may encounter situations in which a patient’s, or parent’s, repeated failure—to follow an agreed-upon therapeutic regimen, perhaps, or adhere to a schedule of visits needed to manage a chronic condition— causes your relationship with the patient to deteriorate to a point where dismissal is warranted. Here, as with other potential causes of dismissal, the patient should be adequately warned, the discussion documented, and action taken only if nothing changes.

Anger. As is the case with drug-seeking, the AAFP course advises physicians to anticipate and develop policies for handling situations in which a patient’s anger escalates and creates a real or perceived threat.³ While this is commonly done in acute care facilities, it is often overlooked in outpatient settings.

Among the issues to address: equipping offices and exam rooms with an emergency call button or intercom, knowing where to position yourself to ensure that you can’t be trapped in a room by a threatening patient, and considering how to respond in a way that defuses—rather than escalates—the anger. Calmly ask the patient what he or she is upset about, listen carefully, and apologize, if appropriate, for your role in the upsetting incident. Then move on to the purpose of the visit, stating, for example, “Now, what brings you in today?” ³

It is crucial to set boundaries (although it’s probably not a good idea to attempt it at the time of the outburst), making it clear, for example, that profanity is not acceptable; directing anger at nurses or other staff members is not permitted; and what the consequences of continued outbursts will be. ³

A single incident that’s grounds for dismissal
Despite the emphasis on resolving problems with patients, there are times when dismissal can and should occur, with little warning and no negotiation. In its home study course, the AAFP describes this as a “sentinel incident"— a single occurrence so egregious that it damages the physician-patient relationship beyond repair.³

A threat of violence or a physical assault itself would rise to that level. Some other examples: a sexual assault or blatant sexual advance, falsifying medical records, and theft or another type of criminal activity carried out in the physician’s office.

When a sentinel incident occurs, the best course is likely to be to forego any attempt at resolution, call the police or your facility’s security officer, and, if appropriate, to immediately prepare to “fire” the patient.

Dismissal without abandonment: Here’s how

In the vast majority of cases, dismissing a patient does not in and of itself constitute patient abandonment. Even if the termination is unduly abrupt, as was the case for Susan (CASE 1) and Laura (CASE 2), it doesn’t constitute abandonment unless the patient is dismissed during a course of treatment and unable to find a physician to provide ongoing care.

Neither was true in Susan’s case, and her threat of a lawsuit based on charges of abandonment never came to fruition. Not so for Laura, who was abruptly terminated during ongoing treatment—and who nonetheless made numerous attempts to find another doctor to care for her, without success. The attorney for Laura’s physician advised that the severe consequences of dismissing without going through the proper channels made a trial defense untenable.

Although most charges of patient abandonment never rise to the level required for a successful lawsuit, attorneys often include it in a litany of charges in an attempt to damage the physician’s credibility with a jury. You can usually avoid that scenario by taking the right steps when you dismiss a patient.

CASE 3 Pregnant patient, rural physician

As part of his rural family medicine practice, Dr. J provided obstetrical care. Dr. J had a partner and they alternated call nights, but his partner did not do OB. Dr. J made it a point, however, to always be on call for his obstetrical patients as they neared delivery. Having no patients imminently due, he took a one-week vacation out of town.

One of his patients went into premature labor and went to the local hospital. Dr. J’s partner was called to attend, but indicated he did not do OB work and advised the emergency physician to call “any obstetrician around.” One obstetrical group covered the region and the on-call physician was at another hospital doing a C-section and requested that the patient be transferred to that hospital for evaluation. After a series of delays, the patient was transferred and delivered a preterm infant who showed signs of neurological injury after a lengthy ICU stay.

The family sued all providers involved on several grounds, including patient abandonment. Plaintiff experts testified that the standard of care would be for Dr. J to be in attendance for such emergencies or, failing that, to provide for adequate coverage of his pregnant patient. They also testified that it was reasonable for the patient to have gone to the local hospital where her delivery was planned and that Dr. J should have arranged for the local OB group to provide emergency coverage. The case concluded with an $800,000 pretrial settlement.

Ensure that dismissal is an option
While we’ve already established that physicians have the legal right to dismiss patients, regardless of the reason, there are instances that make it far more difficult—and legally risky—to do so.

A primary care physician in a rural area is a case in point (CASE 3). If you are the only doctor in the area and the patient has no viable means of getting care from another provider, you may want to reconsider the dismissal. It is far easier to establish that a patient in such an underserved area was abandoned, even— as Dr. J found out—for failing to ensure full coverage during a vacation or leave of absence.

Rural physicians can help prevent charges of abandonment by advising patients of the special call challenges a rural setting presents. Doctors should make sure their patients know what to do if an emergency occurs when the practice is closed or a physician is out of town, and document the discussion in the medical record.

A physician in a staff-model HMO may face similar problems. Unless the HMO has another outpatient clinic in the vicinity, dismissal could leave the patient with no means of receiving affordable health care.

Options in such a case might include asking a colleague at the same clinic to accept a patient whom you would like to dismiss or finding a way to manage the patient’s behavior. If a patient has been excessively angry or threatening in the past, for example, it is often advisable to sit down with the patient (with security nearby) to discuss the parameters of expected behavior and develop a contract for future care. The contract might include a requirement that the patient call in advance so that security can be present when he or she arrives, for example, or that the patient agree to abstain from profanity and threats.

Know the laws in your state. Before you terminate a patient, check with your state medical board or local medical society to make sure your actions will be in compliance with any relevant state rules and regulations.

When you dismiss, cover all bases
Send a letter to the patient by certified mail, return receipt requested, notifying him or her of the dismissal and agreeing to provide emergency care for a reasonable time—typically, 30 days—while the patient seeks another physician. It is advisable, too, to help the patient locate other potential clinicians—by, say, including contact information for your county medical society or the patient’s health insurer’s list of in-network providers, or referring an indigent patient to Medicaid or a sliding scale clinic. It is a good idea to offer to transfer records to the new physician, as well.

It is not mandatory to document the reason for the dismissal in the letter, but some sources recommend that you do so. If you’re uncertain how to proceed, check with legal counsel before you send the letter. (You can find sample dismissal letters at www.ttuhsc.edu/som/clinic/forms/ACForm8.11.A.pdf and in “Terminating a patient: Is it time to part ways?” at http://www.aafp.org/fpm/2005/0900/p34.html.)

The events that led up to the dismissal, however, including any discussions you had with the patient about them, must be documented in the medical record. Put a copy of the letter and the certified mail receipt in the chart, as well. JFP

CORRESPONDENCE John Davenport, MD, JD, 13 Redonda, Irvine, CA 92620; john.y.davenport@kp.org

Misdiagnosis accounts for more malpractice claims than medication errors—indeed, for more lawsuits than any other medical misstep.^1-5 Yet until recently, diagnostic errors garnered little attention from patient safety advocates.

That’s no longer the case. In 2007, the Agency for Healthcare Research and Quality (AHRQ) identified diagnostic errors (a catchall category encompassing delayed, incorrect, and missed diagnoses) as a problem that warranted closer study.⁶ The inaugural conference on Diagnostic Error in Medicine, cosponsored by AHRQ and the American Medical Informatics Association, took place in 2008. The third annual Diagnostic Error in Medicine conference will be held in Canada in October, reflecting the expanding focus on uncovering root causes of diagnostic error and developing preventive measures aimed at safeguarding patients and avoiding lawsuits.

Because diagnostic errors have long been underemphasized and understudied—and remain difficult to track—it is hard to know just how often they occur. Estimates of their frequency fluctuate widely from 1 study to another, but are generally in the range of 10% to 15%.⁷ Fatal illnesses appear to be misdiagnosed more frequently than less severe conditions: A review of more than 50 autopsy studies found that, on average, about 1 in 4 (23.5%) major diagnoses were missed.¹

Whatever the numbers, diagnostic missteps are clearly common enough to be on patients’ radar screen. In a recent survey of US adults, 55% of respondents cited misdiagnosis as their greatest concern when they see a doctor in an outpatient setting.⁸ In a Harris Poll commissioned by the National Patient Safety Foundation⁹ several years earlier, 1 in 6 adults reported having had a condition that was misdiagnosed.

Evidence suggests that while years of experience and strong diagnostic skills help prevent diagnostic errors, they do not afford full protection against the cascade of events that can result in a serious diagnostic error. In fact, overconfidence may contribute to the problem.^10,11

The take-away message: No physician is immune to misdiagnosis or to a subsequent lawsuit. There are, however, steps you can take to safeguard your patients and yourself, but first you need to know where the pitfalls lie.

Misdiagnosis in primary care: What malpractice claims reveal

Diagnostic errors that result in malpractice claims undergo extensive legal review. Thus, they provide an excellent opportunity for analysis, as the authors of a study of 181 “closed,” or completed, claims from 4 malpractice insurers found.¹² The errors all occurred in ambulatory settings, with primary care physicians most frequently involved.

Nearly 6 in 10 of the lawsuits were for missed or delayed cancer diagnoses, followed by misdiagnosis of infection, fracture, and myocardial infarction. Overall, 24% of the cases involved breast cancer. No other disorder came close.

The most common problems, or “breakdowns,” in the diagnostic process were:

• failure to order the appropriate diagnostic test (which occurred in 55% of the cases)
• failure to create a proper follow-up plan (45%)
• failure to obtain a thorough medical history or to perform a thorough physical examination (42%).¹²

Notably, however, diagnostic errors rarely had a single cause. A median of 3 breakdowns per case was identified, and more than 4 in 10 cases involved more than 1 clinician.

Additional sources of breakdowns ran the gamut from patient factors (eg, non-compliance, atypical presentation, or a delay in seeking care) to system errors (eg, delay in seeing a test result, referral delay, or a mishandled handoff). Rarely was misdiagnosis attributed to a physician’s cognitive error alone. Most diagnostic errors, the authors reported, involved “a potent combination of individual and system factors.” ¹²

Is it cancer? Failure to test or follow up

Cancer may not be the most frequently misdiagnosed condition, but because of the dire consequences often associated with a delay in detection, cancer is No. 1 in frequency of diagnostic error lawsuits¹³—with breast cancer typically at or near the top of the list. Evidence suggests that clinician preconception plays a role.

Most women who develop breast cancer are over the age of 50, but plaintiffs in breast cancer suits tend to be younger.^14,15 This may be partly because of overreliance on age as a predictive factor, causing some physicians to offer a younger woman what may be unwarranted reassurance that a breast lump is due to fibrocystic tissue rather than malignancy (CASE 1).

Ordering a test is not enough. Even when physicians order the correct test, follow-up may fall short. In the closed claims study, physicians incorrectly interpreted test results in 37% of the cases.¹² Other evidence suggests that about a third of women with abnormal mammograms do not receive follow-up care that’s consistent with established guidelines.¹⁶

What’s more, physicians sometimes overlook the fact that diagnostic tests are rarely 100% accurate. Mammography misses approximately 20% of breast cancer cases,¹⁷ for example, and a woman with a palpable lump should be closely watched, not dismissed on the basis of a negative mammogram result.^1,15

What happens to test results? In other cases, the problem is not that a test result doesn’t match the clinical findings, but that the result is not reviewed by the physician or conveyed to the patient in a timely manner. Indeed, the title of a published report of a survey of internists starts with the quote, “I wish I had seen this test result earlier!” ¹⁸ Of the 262 internists surveyed, only 41% expressed satisfaction with their method of handling test results.

What would satisfy these physicians? Respondents said what they wanted in a test result management system were tools that would help them generate letters to patients detailing the results, prioritize their workflow, and track orders for tests to completion.

By the way, doc… Harried physician, hurried response
What physician isn’t familiar with the patient who comes in for care of 1, or several, chronic conditions, but mentions another problem as he or she is getting ready to walk out the door (CASE 2)? If that problem appears to be a transient and treatable condition, the temptation is to make a hasty diagnosis and write a prescription, without the usual degree of history taking, patient examination, contemplation, or documentation. Doing so, however, poses considerable risk, to both patient and physician.

If the condition or symptom is serious enough to address in the course of the visit, it requires the same level of attention as any other presenting problem. When time constraints prevent you from addressing the complaint with the proper diligence, it would be appropriate—assuming the symptom in question is nonurgent—to ask the patient to make another appointment. But be sure to document that you did so.

How sure are you of the diagnosis?
It’s human nature to see things in terms of what you’re familiar with. A doctor who has been treating a patient with migraine headaches for years, for example, is apt to assume that “the worst migraine I’ve ever had” is more of the same (CASE 3). Similarly, a clinician who has identified a disorder that matches several of a patient’s symptoms may dismiss or overlook signs and symptoms that do not fit that explanation or diagnosis. Safety advocates refer to this phenomenon as “premature closure.” It may also be a function of overconfidence.

One example of physician overconfidence comes from a study in which experienced dermatologists were asked to examine lesions and diagnose melanoma. Although the specialists confidently diagnosed melanoma in more than 50% of the test cases, 30% of their decisions were later found to be incorrect.¹⁹

Build a no-fault, fail-safe system

The purpose of analyzing diagnostic errors is not to assign blame or point a finger at physicians, but rather to find and fix flaws in the medical system.²⁰ That approach has been used by patient safety advocates to address other types of errors following the publication of the Institute of Medicine’s landmark report on medical error 11 years ago.²¹

Since then, many physician leaders have looked to the airline industry—a field in which the consequences for not strictly adhering to a fail-safe system are likely to be fatal. That reality has led to the development of vital checklists, forcing functions (in which the user is prevented from moving to the next step until the current step is completed), and computerized reminders in an attempt to eliminate, to the extent possible, the chance of human error.

The same principle can be applied to misdiagnosis. Recommended steps—ordering diagnostic tests or referring to a specialist, for example—should be put into motion whenever a set of predetermined parameters are met, rather than relying on physician memory or choice.²⁰

Similarly, checklists should specify questions to ask or criteria to be met under specified circumstances to prevent physicians from prematurely settling on a (possibly incorrect) diagnosis. To avoid a rush to judgment, some patient safety advocates¹ stress the importance of assessing the urgency of a patient’s condition, rather than trying to arrive at a definitive diagnosis the first time he or she presents with a perplexing set of signs and symptoms. Other recommendations follow:

Mandate a second look. Develop and adhere to a set of criteria to determine when a referral to a specialist or a physician consultation is needed, rather than deciding on a case-by-case basis.

Plug the holes in your follow-up system. Develop a fail-safe system for reviewing diagnostic tests or laboratory findings and reporting them to patients without delay. This can be done with an electronic health record (EHR) system or by developing and adhering to parameters requiring, for instance, that no test result get filed until there are 2 signatures on it—that of the physician who ordered the test, indicating that he or she has seen it, and that of a staff member, indicating that the patient has been notified of the results. As an additional back-up, tell patients undergoing tests when to expect to get results, and stress the importance of calling the office if they do not receive such notification within a specified time frame.

Partner with patients. Engage patients in the pursuit of a definitive diagnosis. Discuss your preliminary findings, describe your treatment decision and what you expect to occur, and urge patients to contact you with evidence that confirms or refutes that expectation. Elicit additional feedback at each visit until either the symptoms have fully resolved or you have gathered enough information to arrive at a definitive diagnosis.

Develop “don’t-miss” checklists. One list should cover diagnostic red flags to be considered anytime you see a symptomatic patient to ensure that you don’t overlook important signs and symptoms, and include findings that warrant hospital admission, specified diagnostic tests, and immediate referral. (A patient who comes in with a “common pink eye,” but has consensual photophobia, is at risk for iritis and needs an urgent ophthalmology evaluation, for instance.) Another list you should develop is a “must-do” list for well visits, featuring clinical scenarios to address and screening tests to remember, such as an eye exam for patients with diabetes.

Question your initial diagnosis. Beware of “premature closure”—the tendency to stop looking for other signs and symptoms once you find a presumptive diagnosis—and “diagnostic inertia”—evaluating new signs and symptoms almost exclusively on the basis of past medical history. If aspects of a patient presentation do not fit your presumed diagnosis, use a decision support system, if available, to review other possibilities.

Head off hand-off errors. Develop a problem list for each patient to reduce the likelihood that crucial information will be overlooked when more than 1 clinician is involved in his or her care. Include chronic and acute conditions, unexplained signs and symptoms, medications, and allergies. Create a fail-safe system for other potential hand-off problems, as well—requiring confirmation that the findings in a preliminary radiology report are the same as those in the final report before you take action based on the preliminary report, for example, and ensuring that you receive prompt notification whenever that is not the case.

EHRs and decision support: Isn’t it time?
In 2009, 44% of office-based physicians had EHRs, according to a Centers for Disease Control and Prevention preliminary report.²² Federal funding to promote the adoption of EHRs is expected to accelerate their use. Among the benefits of EHRs are clinical reminders, system alerts, and documentation tools that can help reduce the risk of diagnostic missteps and avert misdiagnosis lawsuits.

The Department of Veterans Affairs uses a notification system called View Alert, for example, that tracks acknowledgement of abnormal radiology test results and flags those that remain unacknowledged. ²³ EHR systems can also be programmed to issue automated appointment reminders that make it easier to track patients who do not show up for critical follow-up visits.

Diagnostic decision support software adds another critical element. When a clinician inputs a set of symptoms and patient-specific data, such systems produce lists of possible diagnoses, often divided by bodily system.

While many safety advocates believe that the use of such systems will increase the likelihood of accurate diagnosis, critics point out that the software is only as good as the clinician using it. One concern is that computerized systems typically come with a “macro” ability—that is, the ability to enter large amounts of information with the click of a key. This raises the possibility that an overload of patient data, some of which may be incorrect, will be added to the medical record—or that the system will generate so many possibilities that clinicians will cease to pay attention. Both can lead to inferences of inattention or raise doubts about a physician’s credibility in a legal setting.

Electronic prescribing software systems that flag potential drug interactions are a case in point. Forty-five percent of family physicians responding to a Journal of Family Practice Instant Poll about their use of such systems reported that they override them frequently. The problem, according to 1 respondent: The system gives “so many red flags that I routinely ignore them all—like the little boy who cried wolf.”

CORRESPONDENCE John Davenport, MD, JD, 13 Redonda, Irvine, CA 92620; John.y.davenport@kp.org

Misdiagnosis accounts for more malpractice claims than medication errors—indeed, for more lawsuits than any other medical misstep.^1-5 Yet until recently, diagnostic errors garnered little attention from patient safety advocates.

That’s no longer the case. In 2007, the Agency for Healthcare Research and Quality (AHRQ) identified diagnostic errors (a catchall category encompassing delayed, incorrect, and missed diagnoses) as a problem that warranted closer study.⁶ The inaugural conference on Diagnostic Error in Medicine, cosponsored by AHRQ and the American Medical Informatics Association, took place in 2008. The third annual Diagnostic Error in Medicine conference will be held in Canada in October, reflecting the expanding focus on uncovering root causes of diagnostic error and developing preventive measures aimed at safeguarding patients and avoiding lawsuits.

Because diagnostic errors have long been underemphasized and understudied—and remain difficult to track—it is hard to know just how often they occur. Estimates of their frequency fluctuate widely from 1 study to another, but are generally in the range of 10% to 15%.⁷ Fatal illnesses appear to be misdiagnosed more frequently than less severe conditions: A review of more than 50 autopsy studies found that, on average, about 1 in 4 (23.5%) major diagnoses were missed.¹

Whatever the numbers, diagnostic missteps are clearly common enough to be on patients’ radar screen. In a recent survey of US adults, 55% of respondents cited misdiagnosis as their greatest concern when they see a doctor in an outpatient setting.⁸ In a Harris Poll commissioned by the National Patient Safety Foundation⁹ several years earlier, 1 in 6 adults reported having had a condition that was misdiagnosed.

Evidence suggests that while years of experience and strong diagnostic skills help prevent diagnostic errors, they do not afford full protection against the cascade of events that can result in a serious diagnostic error. In fact, overconfidence may contribute to the problem.^10,11

The take-away message: No physician is immune to misdiagnosis or to a subsequent lawsuit. There are, however, steps you can take to safeguard your patients and yourself, but first you need to know where the pitfalls lie.

Misdiagnosis in primary care: What malpractice claims reveal

Diagnostic errors that result in malpractice claims undergo extensive legal review. Thus, they provide an excellent opportunity for analysis, as the authors of a study of 181 “closed,” or completed, claims from 4 malpractice insurers found.¹² The errors all occurred in ambulatory settings, with primary care physicians most frequently involved.

Nearly 6 in 10 of the lawsuits were for missed or delayed cancer diagnoses, followed by misdiagnosis of infection, fracture, and myocardial infarction. Overall, 24% of the cases involved breast cancer. No other disorder came close.

The most common problems, or “breakdowns,” in the diagnostic process were:

• failure to order the appropriate diagnostic test (which occurred in 55% of the cases)
• failure to create a proper follow-up plan (45%)
• failure to obtain a thorough medical history or to perform a thorough physical examination (42%).¹²

Notably, however, diagnostic errors rarely had a single cause. A median of 3 breakdowns per case was identified, and more than 4 in 10 cases involved more than 1 clinician.

Additional sources of breakdowns ran the gamut from patient factors (eg, non-compliance, atypical presentation, or a delay in seeking care) to system errors (eg, delay in seeing a test result, referral delay, or a mishandled handoff). Rarely was misdiagnosis attributed to a physician’s cognitive error alone. Most diagnostic errors, the authors reported, involved “a potent combination of individual and system factors.” ¹²

Is it cancer? Failure to test or follow up

Cancer may not be the most frequently misdiagnosed condition, but because of the dire consequences often associated with a delay in detection, cancer is No. 1 in frequency of diagnostic error lawsuits¹³—with breast cancer typically at or near the top of the list. Evidence suggests that clinician preconception plays a role.

Most women who develop breast cancer are over the age of 50, but plaintiffs in breast cancer suits tend to be younger.^14,15 This may be partly because of overreliance on age as a predictive factor, causing some physicians to offer a younger woman what may be unwarranted reassurance that a breast lump is due to fibrocystic tissue rather than malignancy (CASE 1).

Ordering a test is not enough. Even when physicians order the correct test, follow-up may fall short. In the closed claims study, physicians incorrectly interpreted test results in 37% of the cases.¹² Other evidence suggests that about a third of women with abnormal mammograms do not receive follow-up care that’s consistent with established guidelines.¹⁶

What’s more, physicians sometimes overlook the fact that diagnostic tests are rarely 100% accurate. Mammography misses approximately 20% of breast cancer cases,¹⁷ for example, and a woman with a palpable lump should be closely watched, not dismissed on the basis of a negative mammogram result.^1,15

What happens to test results? In other cases, the problem is not that a test result doesn’t match the clinical findings, but that the result is not reviewed by the physician or conveyed to the patient in a timely manner. Indeed, the title of a published report of a survey of internists starts with the quote, “I wish I had seen this test result earlier!” ¹⁸ Of the 262 internists surveyed, only 41% expressed satisfaction with their method of handling test results.

What would satisfy these physicians? Respondents said what they wanted in a test result management system were tools that would help them generate letters to patients detailing the results, prioritize their workflow, and track orders for tests to completion.

By the way, doc… Harried physician, hurried response
What physician isn’t familiar with the patient who comes in for care of 1, or several, chronic conditions, but mentions another problem as he or she is getting ready to walk out the door (CASE 2)? If that problem appears to be a transient and treatable condition, the temptation is to make a hasty diagnosis and write a prescription, without the usual degree of history taking, patient examination, contemplation, or documentation. Doing so, however, poses considerable risk, to both patient and physician.

If the condition or symptom is serious enough to address in the course of the visit, it requires the same level of attention as any other presenting problem. When time constraints prevent you from addressing the complaint with the proper diligence, it would be appropriate—assuming the symptom in question is nonurgent—to ask the patient to make another appointment. But be sure to document that you did so.

How sure are you of the diagnosis?
It’s human nature to see things in terms of what you’re familiar with. A doctor who has been treating a patient with migraine headaches for years, for example, is apt to assume that “the worst migraine I’ve ever had” is more of the same (CASE 3). Similarly, a clinician who has identified a disorder that matches several of a patient’s symptoms may dismiss or overlook signs and symptoms that do not fit that explanation or diagnosis. Safety advocates refer to this phenomenon as “premature closure.” It may also be a function of overconfidence.

One example of physician overconfidence comes from a study in which experienced dermatologists were asked to examine lesions and diagnose melanoma. Although the specialists confidently diagnosed melanoma in more than 50% of the test cases, 30% of their decisions were later found to be incorrect.¹⁹

Build a no-fault, fail-safe system

The purpose of analyzing diagnostic errors is not to assign blame or point a finger at physicians, but rather to find and fix flaws in the medical system.²⁰ That approach has been used by patient safety advocates to address other types of errors following the publication of the Institute of Medicine’s landmark report on medical error 11 years ago.²¹

Since then, many physician leaders have looked to the airline industry—a field in which the consequences for not strictly adhering to a fail-safe system are likely to be fatal. That reality has led to the development of vital checklists, forcing functions (in which the user is prevented from moving to the next step until the current step is completed), and computerized reminders in an attempt to eliminate, to the extent possible, the chance of human error.

The same principle can be applied to misdiagnosis. Recommended steps—ordering diagnostic tests or referring to a specialist, for example—should be put into motion whenever a set of predetermined parameters are met, rather than relying on physician memory or choice.²⁰

Similarly, checklists should specify questions to ask or criteria to be met under specified circumstances to prevent physicians from prematurely settling on a (possibly incorrect) diagnosis. To avoid a rush to judgment, some patient safety advocates¹ stress the importance of assessing the urgency of a patient’s condition, rather than trying to arrive at a definitive diagnosis the first time he or she presents with a perplexing set of signs and symptoms. Other recommendations follow:

Mandate a second look. Develop and adhere to a set of criteria to determine when a referral to a specialist or a physician consultation is needed, rather than deciding on a case-by-case basis.

Plug the holes in your follow-up system. Develop a fail-safe system for reviewing diagnostic tests or laboratory findings and reporting them to patients without delay. This can be done with an electronic health record (EHR) system or by developing and adhering to parameters requiring, for instance, that no test result get filed until there are 2 signatures on it—that of the physician who ordered the test, indicating that he or she has seen it, and that of a staff member, indicating that the patient has been notified of the results. As an additional back-up, tell patients undergoing tests when to expect to get results, and stress the importance of calling the office if they do not receive such notification within a specified time frame.

Partner with patients. Engage patients in the pursuit of a definitive diagnosis. Discuss your preliminary findings, describe your treatment decision and what you expect to occur, and urge patients to contact you with evidence that confirms or refutes that expectation. Elicit additional feedback at each visit until either the symptoms have fully resolved or you have gathered enough information to arrive at a definitive diagnosis.

Develop “don’t-miss” checklists. One list should cover diagnostic red flags to be considered anytime you see a symptomatic patient to ensure that you don’t overlook important signs and symptoms, and include findings that warrant hospital admission, specified diagnostic tests, and immediate referral. (A patient who comes in with a “common pink eye,” but has consensual photophobia, is at risk for iritis and needs an urgent ophthalmology evaluation, for instance.) Another list you should develop is a “must-do” list for well visits, featuring clinical scenarios to address and screening tests to remember, such as an eye exam for patients with diabetes.

Question your initial diagnosis. Beware of “premature closure”—the tendency to stop looking for other signs and symptoms once you find a presumptive diagnosis—and “diagnostic inertia”—evaluating new signs and symptoms almost exclusively on the basis of past medical history. If aspects of a patient presentation do not fit your presumed diagnosis, use a decision support system, if available, to review other possibilities.

Head off hand-off errors. Develop a problem list for each patient to reduce the likelihood that crucial information will be overlooked when more than 1 clinician is involved in his or her care. Include chronic and acute conditions, unexplained signs and symptoms, medications, and allergies. Create a fail-safe system for other potential hand-off problems, as well—requiring confirmation that the findings in a preliminary radiology report are the same as those in the final report before you take action based on the preliminary report, for example, and ensuring that you receive prompt notification whenever that is not the case.

EHRs and decision support: Isn’t it time?
In 2009, 44% of office-based physicians had EHRs, according to a Centers for Disease Control and Prevention preliminary report.²² Federal funding to promote the adoption of EHRs is expected to accelerate their use. Among the benefits of EHRs are clinical reminders, system alerts, and documentation tools that can help reduce the risk of diagnostic missteps and avert misdiagnosis lawsuits.

The Department of Veterans Affairs uses a notification system called View Alert, for example, that tracks acknowledgement of abnormal radiology test results and flags those that remain unacknowledged. ²³ EHR systems can also be programmed to issue automated appointment reminders that make it easier to track patients who do not show up for critical follow-up visits.

Diagnostic decision support software adds another critical element. When a clinician inputs a set of symptoms and patient-specific data, such systems produce lists of possible diagnoses, often divided by bodily system.

While many safety advocates believe that the use of such systems will increase the likelihood of accurate diagnosis, critics point out that the software is only as good as the clinician using it. One concern is that computerized systems typically come with a “macro” ability—that is, the ability to enter large amounts of information with the click of a key. This raises the possibility that an overload of patient data, some of which may be incorrect, will be added to the medical record—or that the system will generate so many possibilities that clinicians will cease to pay attention. Both can lead to inferences of inattention or raise doubts about a physician’s credibility in a legal setting.

Electronic prescribing software systems that flag potential drug interactions are a case in point. Forty-five percent of family physicians responding to a Journal of Family Practice Instant Poll about their use of such systems reported that they override them frequently. The problem, according to 1 respondent: The system gives “so many red flags that I routinely ignore them all—like the little boy who cried wolf.”

CORRESPONDENCE John Davenport, MD, JD, 13 Redonda, Irvine, CA 92620; John.y.davenport@kp.org

Misdiagnosis accounts for more malpractice claims than medication errors—indeed, for more lawsuits than any other medical misstep.^1-5 Yet until recently, diagnostic errors garnered little attention from patient safety advocates.

That’s no longer the case. In 2007, the Agency for Healthcare Research and Quality (AHRQ) identified diagnostic errors (a catchall category encompassing delayed, incorrect, and missed diagnoses) as a problem that warranted closer study.⁶ The inaugural conference on Diagnostic Error in Medicine, cosponsored by AHRQ and the American Medical Informatics Association, took place in 2008. The third annual Diagnostic Error in Medicine conference will be held in Canada in October, reflecting the expanding focus on uncovering root causes of diagnostic error and developing preventive measures aimed at safeguarding patients and avoiding lawsuits.

Because diagnostic errors have long been underemphasized and understudied—and remain difficult to track—it is hard to know just how often they occur. Estimates of their frequency fluctuate widely from 1 study to another, but are generally in the range of 10% to 15%.⁷ Fatal illnesses appear to be misdiagnosed more frequently than less severe conditions: A review of more than 50 autopsy studies found that, on average, about 1 in 4 (23.5%) major diagnoses were missed.¹

Whatever the numbers, diagnostic missteps are clearly common enough to be on patients’ radar screen. In a recent survey of US adults, 55% of respondents cited misdiagnosis as their greatest concern when they see a doctor in an outpatient setting.⁸ In a Harris Poll commissioned by the National Patient Safety Foundation⁹ several years earlier, 1 in 6 adults reported having had a condition that was misdiagnosed.

Evidence suggests that while years of experience and strong diagnostic skills help prevent diagnostic errors, they do not afford full protection against the cascade of events that can result in a serious diagnostic error. In fact, overconfidence may contribute to the problem.^10,11

The take-away message: No physician is immune to misdiagnosis or to a subsequent lawsuit. There are, however, steps you can take to safeguard your patients and yourself, but first you need to know where the pitfalls lie.

Misdiagnosis in primary care: What malpractice claims reveal

Diagnostic errors that result in malpractice claims undergo extensive legal review. Thus, they provide an excellent opportunity for analysis, as the authors of a study of 181 “closed,” or completed, claims from 4 malpractice insurers found.¹² The errors all occurred in ambulatory settings, with primary care physicians most frequently involved.

Nearly 6 in 10 of the lawsuits were for missed or delayed cancer diagnoses, followed by misdiagnosis of infection, fracture, and myocardial infarction. Overall, 24% of the cases involved breast cancer. No other disorder came close.

The most common problems, or “breakdowns,” in the diagnostic process were:

• failure to order the appropriate diagnostic test (which occurred in 55% of the cases)
• failure to create a proper follow-up plan (45%)
• failure to obtain a thorough medical history or to perform a thorough physical examination (42%).¹²

Notably, however, diagnostic errors rarely had a single cause. A median of 3 breakdowns per case was identified, and more than 4 in 10 cases involved more than 1 clinician.

Additional sources of breakdowns ran the gamut from patient factors (eg, non-compliance, atypical presentation, or a delay in seeking care) to system errors (eg, delay in seeing a test result, referral delay, or a mishandled handoff). Rarely was misdiagnosis attributed to a physician’s cognitive error alone. Most diagnostic errors, the authors reported, involved “a potent combination of individual and system factors.” ¹²

Is it cancer? Failure to test or follow up

Cancer may not be the most frequently misdiagnosed condition, but because of the dire consequences often associated with a delay in detection, cancer is No. 1 in frequency of diagnostic error lawsuits¹³—with breast cancer typically at or near the top of the list. Evidence suggests that clinician preconception plays a role.

Most women who develop breast cancer are over the age of 50, but plaintiffs in breast cancer suits tend to be younger.^14,15 This may be partly because of overreliance on age as a predictive factor, causing some physicians to offer a younger woman what may be unwarranted reassurance that a breast lump is due to fibrocystic tissue rather than malignancy (CASE 1).

Ordering a test is not enough. Even when physicians order the correct test, follow-up may fall short. In the closed claims study, physicians incorrectly interpreted test results in 37% of the cases.¹² Other evidence suggests that about a third of women with abnormal mammograms do not receive follow-up care that’s consistent with established guidelines.¹⁶

What’s more, physicians sometimes overlook the fact that diagnostic tests are rarely 100% accurate. Mammography misses approximately 20% of breast cancer cases,¹⁷ for example, and a woman with a palpable lump should be closely watched, not dismissed on the basis of a negative mammogram result.^1,15

What happens to test results? In other cases, the problem is not that a test result doesn’t match the clinical findings, but that the result is not reviewed by the physician or conveyed to the patient in a timely manner. Indeed, the title of a published report of a survey of internists starts with the quote, “I wish I had seen this test result earlier!” ¹⁸ Of the 262 internists surveyed, only 41% expressed satisfaction with their method of handling test results.

What would satisfy these physicians? Respondents said what they wanted in a test result management system were tools that would help them generate letters to patients detailing the results, prioritize their workflow, and track orders for tests to completion.

By the way, doc… Harried physician, hurried response
What physician isn’t familiar with the patient who comes in for care of 1, or several, chronic conditions, but mentions another problem as he or she is getting ready to walk out the door (CASE 2)? If that problem appears to be a transient and treatable condition, the temptation is to make a hasty diagnosis and write a prescription, without the usual degree of history taking, patient examination, contemplation, or documentation. Doing so, however, poses considerable risk, to both patient and physician.

If the condition or symptom is serious enough to address in the course of the visit, it requires the same level of attention as any other presenting problem. When time constraints prevent you from addressing the complaint with the proper diligence, it would be appropriate—assuming the symptom in question is nonurgent—to ask the patient to make another appointment. But be sure to document that you did so.

How sure are you of the diagnosis?
It’s human nature to see things in terms of what you’re familiar with. A doctor who has been treating a patient with migraine headaches for years, for example, is apt to assume that “the worst migraine I’ve ever had” is more of the same (CASE 3). Similarly, a clinician who has identified a disorder that matches several of a patient’s symptoms may dismiss or overlook signs and symptoms that do not fit that explanation or diagnosis. Safety advocates refer to this phenomenon as “premature closure.” It may also be a function of overconfidence.

One example of physician overconfidence comes from a study in which experienced dermatologists were asked to examine lesions and diagnose melanoma. Although the specialists confidently diagnosed melanoma in more than 50% of the test cases, 30% of their decisions were later found to be incorrect.¹⁹

Build a no-fault, fail-safe system

The purpose of analyzing diagnostic errors is not to assign blame or point a finger at physicians, but rather to find and fix flaws in the medical system.²⁰ That approach has been used by patient safety advocates to address other types of errors following the publication of the Institute of Medicine’s landmark report on medical error 11 years ago.²¹

Since then, many physician leaders have looked to the airline industry—a field in which the consequences for not strictly adhering to a fail-safe system are likely to be fatal. That reality has led to the development of vital checklists, forcing functions (in which the user is prevented from moving to the next step until the current step is completed), and computerized reminders in an attempt to eliminate, to the extent possible, the chance of human error.

The same principle can be applied to misdiagnosis. Recommended steps—ordering diagnostic tests or referring to a specialist, for example—should be put into motion whenever a set of predetermined parameters are met, rather than relying on physician memory or choice.²⁰

Similarly, checklists should specify questions to ask or criteria to be met under specified circumstances to prevent physicians from prematurely settling on a (possibly incorrect) diagnosis. To avoid a rush to judgment, some patient safety advocates¹ stress the importance of assessing the urgency of a patient’s condition, rather than trying to arrive at a definitive diagnosis the first time he or she presents with a perplexing set of signs and symptoms. Other recommendations follow:

Mandate a second look. Develop and adhere to a set of criteria to determine when a referral to a specialist or a physician consultation is needed, rather than deciding on a case-by-case basis.

Plug the holes in your follow-up system. Develop a fail-safe system for reviewing diagnostic tests or laboratory findings and reporting them to patients without delay. This can be done with an electronic health record (EHR) system or by developing and adhering to parameters requiring, for instance, that no test result get filed until there are 2 signatures on it—that of the physician who ordered the test, indicating that he or she has seen it, and that of a staff member, indicating that the patient has been notified of the results. As an additional back-up, tell patients undergoing tests when to expect to get results, and stress the importance of calling the office if they do not receive such notification within a specified time frame.

Partner with patients. Engage patients in the pursuit of a definitive diagnosis. Discuss your preliminary findings, describe your treatment decision and what you expect to occur, and urge patients to contact you with evidence that confirms or refutes that expectation. Elicit additional feedback at each visit until either the symptoms have fully resolved or you have gathered enough information to arrive at a definitive diagnosis.

Develop “don’t-miss” checklists. One list should cover diagnostic red flags to be considered anytime you see a symptomatic patient to ensure that you don’t overlook important signs and symptoms, and include findings that warrant hospital admission, specified diagnostic tests, and immediate referral. (A patient who comes in with a “common pink eye,” but has consensual photophobia, is at risk for iritis and needs an urgent ophthalmology evaluation, for instance.) Another list you should develop is a “must-do” list for well visits, featuring clinical scenarios to address and screening tests to remember, such as an eye exam for patients with diabetes.

Question your initial diagnosis. Beware of “premature closure”—the tendency to stop looking for other signs and symptoms once you find a presumptive diagnosis—and “diagnostic inertia”—evaluating new signs and symptoms almost exclusively on the basis of past medical history. If aspects of a patient presentation do not fit your presumed diagnosis, use a decision support system, if available, to review other possibilities.

Head off hand-off errors. Develop a problem list for each patient to reduce the likelihood that crucial information will be overlooked when more than 1 clinician is involved in his or her care. Include chronic and acute conditions, unexplained signs and symptoms, medications, and allergies. Create a fail-safe system for other potential hand-off problems, as well—requiring confirmation that the findings in a preliminary radiology report are the same as those in the final report before you take action based on the preliminary report, for example, and ensuring that you receive prompt notification whenever that is not the case.

EHRs and decision support: Isn’t it time?
In 2009, 44% of office-based physicians had EHRs, according to a Centers for Disease Control and Prevention preliminary report.²² Federal funding to promote the adoption of EHRs is expected to accelerate their use. Among the benefits of EHRs are clinical reminders, system alerts, and documentation tools that can help reduce the risk of diagnostic missteps and avert misdiagnosis lawsuits.

The Department of Veterans Affairs uses a notification system called View Alert, for example, that tracks acknowledgement of abnormal radiology test results and flags those that remain unacknowledged. ²³ EHR systems can also be programmed to issue automated appointment reminders that make it easier to track patients who do not show up for critical follow-up visits.

Diagnostic decision support software adds another critical element. When a clinician inputs a set of symptoms and patient-specific data, such systems produce lists of possible diagnoses, often divided by bodily system.

While many safety advocates believe that the use of such systems will increase the likelihood of accurate diagnosis, critics point out that the software is only as good as the clinician using it. One concern is that computerized systems typically come with a “macro” ability—that is, the ability to enter large amounts of information with the click of a key. This raises the possibility that an overload of patient data, some of which may be incorrect, will be added to the medical record—or that the system will generate so many possibilities that clinicians will cease to pay attention. Both can lead to inferences of inattention or raise doubts about a physician’s credibility in a legal setting.

Electronic prescribing software systems that flag potential drug interactions are a case in point. Forty-five percent of family physicians responding to a Journal of Family Practice Instant Poll about their use of such systems reported that they override them frequently. The problem, according to 1 respondent: The system gives “so many red flags that I routinely ignore them all—like the little boy who cried wolf.”

CORRESPONDENCE John Davenport, MD, JD, 13 Redonda, Irvine, CA 92620; John.y.davenport@kp.org