“Firing” Patients: Avoiding Patient Abandonment

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By Kim Stanger

Physicians and other healthcare providers often find themselves in situations in which they no longer want to care for a patient. It may be that the patient is disruptive, noncompliant, or is unable or refuses to pay for his or her care. It may be that the patient requires services outside the expertise or capability of the provider. Regardless of the reason, the provider must take care when “firing” or discharging the patient from the practice. By accepting the person as a patient, the provider assumes the duty to care for the patient unless and until the provider-patient relationship is properly terminated. If the provider fails to render care consistent with the applicable standard of care, the patient may sue for malpractice. If the provider fails or refuses to care for the patient before the patient is able to transfer their care elsewhere, the patient may also sue the provider under the common law theory of patient abandonment. (See, e.g., 1 Am. Law Med. Malpractice § 3:15 (2017)). As one court explained:

[I]t “is well settled that a physician or surgeon, upon undertaking an operation or other case, is under the duty, in the absence of an agreement limiting the service, of continuing his [or her] attention, after the first treatment, so long as the case requires attention.”  Ricks v. Budge, 91 Utah 307, 64 P.2d 208, 211 (1937) (emphasis added). “A physician has the right to withdraw from a case, but if the case is such as to still require further medical or surgical attention, he must, before withdrawing from the case, give the patient sufficient notice so the patient can procure other medical attention if he desires.” Id. at 212. Accordingly, a medical provider “‘is bound to exercise reasonable and ordinary care and skill in determining when he [or she] should discontinue his [or her] treatment and services.’” Id. (quoting Mucci v. Houghton, 89 Iowa 608, 57 N.W. 305, 306 (Iowa 1894)).

Newman v. Sonnenberg, 81 P.3d 808, 811 (Utah App. 2003). In addition, state licensing statutes or regulations often prohibit providers from “abandonment of a patient”; violations may result in administrative penalties and adverse licensure action. (See, e.g., Idaho Code § 54-1814(15)). To avoid liability for patient abandonment, the provider generally must take certain steps to ensure the patient is not harmed while care is transferred to another provider. Read more

Sports and Student Physicals: Legal Issues

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By Kim Stanger

It’s that time of year when many healthcare providers offer free or discounted sports or student physicals as a community service or marketing ploy. If you participate in such programs, make sure you consider the legal issues, including the following: Read more

Healthcare Employers Spared Burden of FFCRA By Last Minute DOL Guidance

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By Bradley Cave

The Families First Coronavirus Response Act created a bizarre contradiction for healthcare employers.  While hospitals, clinics and other patient care providers worked under great strain to care for patients, with COVID-19 and other maladies, the Act would have permitted employees of healthcare providers to be absent from work, sometimes with pay, in some situations for up to 12 weeks.  Saturday afternoon, the DOL issued new guidance to greatly expand the scope of employees that healthcare providers can exclude from the leave rights under FFCRA, sparing providers from crippling staff shortages during this pandemic.

FFCRA permitted employers to elect to exclude healthcare providers and emergency responders from the leave rights created by the act.  However, the act did not define emergency responder, and borrowed the FMLA’s narrow definition of healthcare provider.  As the act was written, healthcare employers could exclude only doctors, nurse practitioners and physicians’ assistants, along with a handful of other licensed professionals, from the leave rights under the act.  Notably, RNs, LPNs and CNAs were not on the list of employees that could be excluded, nor were pharmacists, pharmacy techs, any type of therapists, or any of the support staff necessary to operate a hospital, nursing home or medical practice. Read more

Minors’ Ability to Consent to Medical Treatment Under Utah Law

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By Kristy M. Kimball

Medical providers are sometimes faced with the difficult scenario of a minor (under 18 years of age) requesting medical or mental health treatment without a parent’s or legal guardian’s consent. This situation often arises in the context of sexually active minors who wish to obtain contraceptives available only through a medical provider (e.g., prescription birth control, IUD, etc.). When facing such scenarios, Utah providers need to be aware of relevant laws and carefully consider other implications. Read more

Federal and New Mexico Surprise Billing Protections

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By Little V. West and Kaitlyn Luck

Surprise billing protections are part of both state and national policy agendas this year in an effort to provide health-care transparency and consumer transparency. New Mexico’s new law now protects consumers by specifically prohibiting health care providers from balance billing, and President Trump also signed an Executive Order with the same goals. New Mexico health care providers need to be aware of federal and state level developments regarding surprise billing because of the significant changes that could result in civil penalties for noncompliance if the proposed federal regulations are adopted.

On the state level, effective January 1, 2020, New Mexico’s Surprise Billing Protection Act (SB 337) (the Act) will generally prohibit providers from submitting a surprise bill to an insured person, or a collection agency, and provides for rights for insureds to appeal a health insurance carrier’s decision regarding a surprise bill. Among other things, the Act aims to prevent insured’s receipt of “surprise bills” by: (1) requiring a health insurance carrier to pay nonparticipating providers for emergency care necessary to evaluate and stabilize a covered person if a prudent layperson would believe such treatment is necessary, without requiring a prior authorization for such services; (2) requiring health insurance carriers to pay, and relieving an insured from liability for payment for, non-emergency care by an out-of-network provider when (a) the insured received care at an in-network facility, but did not have the ability or opportunity to choose an in-network provider who is available to provide covered services, or (b) medically necessary care is unavailable within the health benefit plan’s network; and (3) in nonemergency circumstances, requiring an out-of-network provider, with advance knowledge that the out-of-network provider is out of network, to inform the insured of that fact and to advise the insured person to contact their health insurance carrier to discuss the insured’s options. Balance billing is permitted by out-of-network providers to an individual who knowingly choses to receive services from the out-of-network provider. By July 1, 2020, the Act will require licensed health care facilities to post information about consumers’ rights.

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