Reporting Requirements

I hate to see the legal system become a wedge between physicians and their patients. It can destroy the relationship; if a patient believes that she can’t trust her doctor, she probably won’t remain a patient. That said, mandatory reporting laws are just that — mandatory. You do not possess the time or the resources to personally investigate every case of suspected abuse. How you present the issue to your patient will determine how the patient reacts. “Mrs. Doe, because these injuries are consistent with child abuse, I am bound by law to report them to Child Protective Services. They’ll investigate and they’ll help us work through any problems. I know you want the best for your child ...” The intervention ought to be presented in a positive, constructive manner.

Domestic abuse between adults is not reportable, unless you believe a party to be in imminent danger. Gun-shot wounds and knife wounds are reportable. Suspected elder abuse, including the incapacity, substance abuse or negligence on the part of the care-giver should be reported to Adult Protective Services (Texas Department of Protective and Regulatory Services).

Once reported, the duty to investigate falls on the agency representing the state. You should reflect the basis for such action and the steps you have taken in the patient’s chart. The law protects you from reprisal so long as the report is based on reasonable, good faith suspicion.

One of the most difficult reporting duties is that which requires physicians to report their peers who pose a threat to patients. The law set forth in the Occupations Code section 160.003 states that you must report “relevant information to the board [Texas State Board of Medical Examiners] relating to the acts of a physician in this state if, in the opinion of the person or committee, that physician poses a continuing threat to the public welfare through the practice of medicine.”

Involuntary Psychiatric Commitment

It is important to recognize and institute protocols to insure that a patient who has attempted suicide is not automatically released, or allowed to depart against medical advice, even if medically stable. At the very least, a psychiatric evaluation should be done, and if indicated, a temporary commitment should be obtained. A 24 hour psychiatric emergency detention may be obtained on the basis of one physician’s assessment, and is highly advisable. Recent cases have confirmed the duty of hospital staff to take reasonable measures to protect suicidal patients.

Difficult Ethical Issues

Every medical student is taught the historical ethical precepts: beneficence, non-maleficence, autonomy, justice. Some ethicists also include rationality, universalizability and confidentiality. But what we sometimes forget is that these principles are all equal, none carrying more weight than another. It is difficult to subjugate one’s own value system and moral beliefs to those of a patient with whom you may be interacting. In some cases, it is appropriate to transfer care to another physician. In some cases it is not possible to do so, and the patient’s views must be respected. For example, a competent patient’s clearly expressed preference (autonomy) refusing a certain treatment cannot be “trumped” by the principle of beneficence, even where the physician strongly believes that the patient’s best interests would be served by doing so. This is where family physicians possess an advantage because they maintain meaningful relationships with their patients, often spanning generations.

Surrogate Decision making

It is important to determine a patient’s competency to make decisions concerning their own health care independent of whether or not you agree or disagree with the decisions. In a hospital setting, ethics committees are a viable and generally available forum for sorting out difficult cases. Hospital counsel should be able to assist with guardianships or commitment proceedings where indicated. In the absence of hospital counsel, hospital administration should have an established protocol for obtaining judicial interventions when needed. From a legal standpoint, the practitioner should document all relevant consultations and proceedings relating to care of the patient. The law sets forth the following priority for surrogate decision-makers where the patient has appointed a person by medical power of attorney (or advance directive, where applicable).

Confidentiality

Recent legislation in Texas and at the federal level promises to enhance the privacy rights of patients, but the fundamental duty of confidentiality is older than Hippocrates. The challenge is to maintain confidentiality in day to day proceedings. Inappropriate hallway, elevator and cafeteria discussions seem anecdotal, but they do occur with disturbing frequency. Eliminating the use of names is critical, but it does not always eliminate the ‘personally identifiable’ aspect of the case if someone familiar with the patient can overhear it and know that it is their loved one who is being discussed. The federal Health Insurance Portability and Accountability Act provides greater rights to patients concerning their personally identifiable health information, imposes strict limitations on access to patient’s charts and creates an audit trail policy. The statute passed by the Texas Legislature, Senate Bill 11, incorporates many of the provisions of HIPAA. All of the legal mandates aside, a common sense approach may still triumph. Be discrete. Use names on a need to know basis and avoid detailed discussions in public places. Keep records filed appropriately, including that stack of lab slips and billing documents waiting to be filed or entered into the electronic medical record.

Terminating the Relationship vs. Abandonment

The standard way to notify a patient of the termination of the relationship is by a certified letter. This may or may not follow a verbal explanation, and may be sent as a result of some act or omission on the part of the patient. You do not have to state a particular reason for terminating the relationship. Discretion must be used regarding the timing of the termination, and the patient is entitled to continued treatment until the present illness is sufficiently stabilized to safely transfer care to another willing physician.

Suppose an obstetrical patient comes to your clinic because her family physician has terminated care by certified letter due to non-payment. The patient is at 35-weeks estimated gestational age, and states that she received the letter before her last visit with that doctor, which was within thirty days of the letter’s date. She arrived for her next appointment and was told that she had been fired for nonpayment. The patient is very upset, and explains that she has brought most of the money she owed the doctor, but was still turned away.

Is this a case of abandonment? When asked, my physician colleagues felt un-equivocally that the firing physician had behaved unethically. From a legal standpoint, because the patient is so late in her pregnancy, the physician’s actions in terminating her care could clearly have a detrimental effect on the patient and/or her baby. It would be very difficult to defend the physician if the patient or fetus came to harm. Was it worth the liability to the doctor? Certainly not.

While there are not a high number of cases alleging abandonment, it is often pled in cases where the patient has had a bad outcome after dismissal. It is therefore important to document reasons such as patient non-compliance, abusive behavior, dishonesty, and even non-payment. While doctors are expected to provide some charity care, it is acceptable to limit the non-paying population in your practice, so long as the patient’s illness or disease is stable or non-emergent. An excellent discussion of terminating the physician-patient relationship, including sample letters, is available at the Texas Medical Association’s Web site, in the practice management area.3

Guardianship

We often think of guardianship for older patients, but it is sometimes appropriate in other cases. Suppose a 24-year-old mentally retarded female patient presents pregnant with her seventh baby. Child Protective Services has taken all of her previous babies from her because she is mentally incapable of caring for them. Throughout her pregnancy the physician discusses tubal ligation with her. At one point he discusses the issue of not bringing another baby into the world that will have to be cared for by someone else, but the patient just smiles sweetly and says, “Oh, no, I love little babies. I don’t want to be sterilized.” One of the faculty physicians has a long talk with the patient just prior to her delivery and the patient agrees to have a tubal ligation.

The patient has a vaginal delivery, but during of the delay between the delivery on Friday and the surgery on Monday, she changes her mind. When the physician arrives for the surgery, the patient begins screaming that the doctor is trying to sterilize her against her will.

This patient needs a court-appointed guardian, and has for some time. Whose responsibility is it to see that she gets one? The doctors I questioned feel that CPS should have pursued the matter because of their familiarity with the legal system. It would be entirely appropriate for the treating physician to petition the court for appointment of a guardian. Any of the physicians involved in her previous pregnancies could have done this. How to go about this?

Any concerned person can write a letter to the judge of the county probate court and request that the court to initiate a guardianship proceeding. The court must be supplied a certificate by a physician licensed to practice medicine in Texas describing the proposed ward’s incapacity. Many courts have printed forms for both the letter and the certification. The court will then appoint a temporary guardian or an attorney just for the guardianship case itself and order an investigation. If the investigation determines that a guardianship is needed, an application for appointment of a guardian will be filed by an attorney. Completion of court-initiated guardianships may take several weeks, depending upon the size of the jurisdiction and the court’s caseload.

For our purposes, an “incapacitated person” includes 1) a minor and 2) an adult individual, who because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.

Abusive and Harassing Behavior toward Clinic Staff, Nurses and Physicians

Sick people are often poorly-rested and cranky. In addition, the wait to be seen may be long. The patient may also be frustrated by chronic illness and debility. An occasional unpleasantness may be forgivable. First, make sure your staff are trained in handling patients professionally and courteously. Your excellence as a physician can be quickly undermined by a staff that creates problems through unprofessional behavior. Everyone should work together to promote goodwill among your patients. Patients who are provoked into an argument or publicly embarrassed about an unpaid bill are not only more likely to sue, but they won’t be back and they will discourage others.

However, some people suffer from personality disorders or other problems, and it’s important for everyone involved that you as the physician make it clear to patients that you expect them to treat your staff and nurses with respect, and that patients who do not comport themselves appropriately will be dismissed. Then monitor the situation and take action if you must. Make it clear to your staff that they should report behavior problems to you, and that you will handle them directly with the patient. Some patients will behave badly towards your staff, but will be sweet as pie to you.

One of the most important things to remember is this — if a patient is involved in an argument or altercation with a member of your staff, it is essential that a different member of the staff intercede to calm the patient down. Rarely will the person involved be successful in persuading the patient to calm down or redirect their anger. The situation is best handled out of the public areas, in an empty office or exam room and where the patient can be made to feel that they have the intercessor’s undivided attention. If a patient is truly out of control, don’t hesitate to have someone contact the police or security. If appropriate, let the individual know that if they don’t settle down, this will happen. If appropriate, have a psychiatric assessment performed.

Like others, I am disturbed by the increasing demands of non-medical issues which impose upon physicians’ time. Legal and regulatory matters may be time-consuming and burdensome, but in some instances the law can provide protection and assistance to doctors who recognize that a patient requires more than medicine can provide. Indeed, most of the statutes which directly affect physicians actually favor the physician, shielding them from liability so long as their actions are founded in good faith. Good communication with patients, accurate documentation and advocacy with the patient’s best interest in mind are the best ways to assure that any interactions you may have with the legal system are positive and productive.

NOTES: The author wishes to thank the residents of the Family Practice Residency of the Brazos Valley who have shared their cases and patiently taught me much about medicine.

This article offers general legal advice.  Because facts may vary, contact your own retained counsel for actual legal counsel and representation.

END notes

1. DeVaul, Richard A., Chapter VII “The Doctor-Patient Relationship in Chronic Pain”, The Chronic Pain Patient

2. American Medical Association, Current Opinions of the Council on Ethical and Judicial Affairs, Policy E-10.01. www.ama-assn.org

3. Texas Medical Association, Practice Management, Terminating the Physician-Patient Relationship, www.texdoc.org