When physicians leave, who gets the patients?
Dissolutions more fraught with tension
The issue of physicians leaving a practice or a hospital and taking their patients with them has always been a sticky one. However, in an era of stiff competition due to mergers and declining reimbursement from third-party payers, these dissolutions of working relationships are becoming increasingly fraught with tension.
’The reaction of the chief of service [at the hospital] or the practice manager is typically one of disappointment or betrayal,” says Paul Risner, an attorney specializing in health law and regulation with the firm of Baker, Donelson, Bearman and Caldwell in Memphis, TN.
’Their gut reaction is, I went out on a limb for this guy, and look at what he is doing to us.’ They want to get the person and put him out of business or run him out of town or whatever,” adds Risner.
However, most health law and ethics experts say fighting over patients is meaningless because the patients ’belong” to no one but themselves. ’A patient, any patient, has the right to choose where and from whom they receive care,” says Harold J. Bursztajn, MD, co-director of the Program in Psychiatry and the Law at Harvard Medical School in Cambridge, MA.
To protect their patients’ rights, physicians should not sign any noncompetitive agreements with hospital systems that would violate appropriate continuity of care and appropriate termination, he says. Physicians have a responsibility to inform their patients if they decide to move or leave their practice and offer patients the option of continuing their care at the existing location with another provider or moving with the doctor, he says.
Usually this dispute over patients boils down to who ’owns” the medical record, says Risner, who formerly served as general counsel to two hospital systems in Florida. ’The answer to that, in most states, is that the patient owns the record, but the hospital or physician owns the paper,” he says. ’This essentially means that the hospital would have custody’ of the record and have to maintain it.”
However, if a patient requests that the hospital transfer the record to another facility, the hospital is not permitted to charge the patient or require that the patient come to the hospital and get the record, he explains.
Physicians who are leaving a certain institution or practice, however, do have ethical obligations to their former partners and employers, say both Risner and Bursztajn.
’There is nothing unethical about notifying your patients and telling them where you are going, etc.,” says Risner. ’It is probably not unethical to suggest that you would like to continue to treat them and so forth. What you have to stay away from is saying anything negative about the care at the place you are leaving.”
Most physicians are savvy enough to know that or to consult an attorney who does, so patients rarely receive a letter that would violate this concept. However, Bursztajn contends the physician should indicate in the letter that the patient would be able to get good treatment at the site under the care of another physician, or the letter could be deemed coercive.
’I would think that there should be some indication that the choice is completely up to the patient,” he says. ’I think it should in some way mention that the patient can continue to receive good care at the current institution.”
Contracts keep splits amicable
Setting up a detailed employment contract at the beginning of the physician’s tenure at the hospital is the best way to avoid these kinds of termination disputes, Risner says. ’It depends on what terms the contract sets, when the doctor can leave on how much notice and whether he can recruit other employees,” he says.
Contracts Risner has drawn up for other hospitals generally stipulated that the physicians are required to give six months’ notice and not take any proprietary records.
’Even when we had six-month provisions, you ask yourself the practical question: Do you want a physician treating your patients who doesn’t want to be there, doesn’t like you anymore, and could potentially be distracted in care?” he asks.
Many of Risner’s contracts included a monetary amount known as ’liquidated damages,” he says. That would be the amount of money the hospital deemed necessary to continue to cover the physician’s services if he or she left the institution without six months’ notice.
’Both parties agree to this amount on the first day the contract is signed, while everybody still loves each other,” he says. ’It is a lot easier to do that ahead of time.”
As long as the physician meets all the terms of his employment contract, gives proper notice, notifies his patients in an ethical way that he will be leaving, and doesn’t ’back a truck up to the door and make off with all of the records,” then he has fulfilled his duty to the institution, Risner adds.
Someone not involved should negotiate
Once a physician decides to leave, it’s best to accept the decision and get someone not directly involved with his employment to negotiate the termination, he advises. When the hospital systems he served had such an occurrence, it was often Risner who worked through the details with the physicians, stipulating time frames for the physician to work and establishing a protocol for allowing the physician to make copies of his or her patients’ information if necessary.
’I usually took over the operation when it was a physician [who was resigning] whenever I could,” he explains. ’I took the practice manager or center manager or vice president in charge of that division out of it because I was not emotionally attached to the situation or the dispute. I would just look at it as, He wants to leave; we have some interests that we need to protect. We can easily get these things worked out.’”
• Harold J. Bursztajn, MD, Co-director of the Program in Psychiatry and the Law, Harvard Medical School, 96 Larchwood Drive, Cambridge, MA 02138.
• Ram Kairam, MD, Director of Pediatrics, Bronx-Lebanon Hospital Center. Phone: (718) 518-5760.
• Paul E. Risner, of Counsel, Baker, Donelson, Bearman and Caldwell, 165 Madison Ave. #2000, Memphis, TN 38103.
• Andrew Wiznia, MD, Jacobi Medical Center, 1400 Pelham Parkway, South Bronx, NY 10461.
2. According to Harold J. Bursztajn, MD, co-director of the Program in Psychiatry and the Law
at Harvard Medical School, the fighting over patients among health law and ethics experts
is meaningless because:
A. Medical records are considered separate
B. Physician/patient relationships supercede other relationships.
C. Patients belong to no one but themselves.
D. All of the above.