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Disruptive Medical Patients Forensically Informed Decision Making LANDY F. SPARR, MD, MA; JEFFREY L ROGERS, JD; JOHN 0. BEAHRS, MD; and DENNIS J. MAZUR, MD, PhD, Portland, Oregon
Patients who disrupt medical care create problems for physicians. The risks are not entirely clinical. Although these patients may compromise sound clinical judgment, some are also litigious and express their dissatisfaction in legal or other forums. It then becomes necessary for treating physicians to be aware of the legal and ethical boundaries of their patient care responsibilities. Some disruptive patients are treated by setting limits, which is usually affirmed by health care agreements. A hospital review board may advise clinicians on these agreements and on the management of disruptive patients. If termination of the physician-patient relationship is considered, physicians must follow proper protocol. We examine these forensic considerations and place them in the context of malpractice. Communication, consultation, and documentation are the key elements in reducing liability. (Sparr LF, Rogers JL, Beahrs JO, Mazur DJ: Disruptive medical patients-Forensically informed decision making. West J Med 1992 May; 156: 501-506)
Physicians may find themselves in the uncomfortable situation of providing care to a disruptive medical patient whose conduct interferes with the exercise of clinical judgment and effective treatment. In these situations, physicians are often unclear about their legal authority to redefine, set limits on, or even terminate their professional relationship with the patient. Issues include the contractual nature of the physician-patient relationship and the legal and ethical boundaries of a physician's patient care responsibility.1 By "disruptive patients," we are referring to patients whose behavior interferes with a physician's ability to give health care. For example, disruptive patients may recklessly disregard their medical needs, provide distorted or erroneous information, or engage in abusive, obstructionist behavior that undermines not only their health care but that of others. Most of these patients have joined that medical pantheon of undesirables inhabited by "crocks,"2 "dirtballs,"3 "hateful patients,"4 "gomers,"' and "problem patients."6 Their behavior clashes with the machinery of ordinary health care operations. Medical center administrators may become aware of them through patient or staff complaints, incident reports, lawsuits, or congressional inquiries.' In these instances, appropriate action may include communicating clear expectations to the patient and enforcing limits. Because limit setting is not common and occasionally heightens the risk for bad results, physicians sometimes fear being held liable for some putative failure to use standard practice that can be shown after the fact to have contributed to patient
injury. In an earlier study,8 we discovered that 25% ofthe patients who caused major disruptions of patient care at our hospital were responsible for 38% of the incidents, including most of those in which injuries occurred or weapons were used. Although there have been many authoritative suggestions7 9-'3 regarding managing disruptive patients, in a few instances the appropriate action may be denying access to care even though the patient has a treatable medical condition.
Unilateral termination of a continuing physician-patient relationship is legally possible, but the physician must give the patient adequate time and opportunity to find another source of care. This may not be a problem in areas well served by medical facilities, but when the patient has inadequate financial resources or no alternative treatment facility, the problem is more complex. It is particularly difficult when the patient's condition is severe, chronic, or requires regular medical attendance. Failure to follow proper protocol may result in ethical charges against the physician, and, if harm comes to the patient, a lawsuit. 14 In this article, we consider issues concerning individual practitioners. As background, we provide a short review of basic elements of malpractice law, followed by a discussion of forensic principles regarding patient abandonment. We conclude by discussing methods to reduce liability. Coordinated Care Review Process Review Board It is the policy of our medical center (Department of Veterans Affairs [VA] Medical Center) to make reasonable efforts to provide care to disruptive outpatients. Recently the medical center formed a multidisciplinary coordinated care review board (CCRB) to provide consultation to practitioners and administrative staff with patients who are grossly uncooperative with medical care. In the first three years of operation, we have had 75 patients referred to this board. Although we found no data to show that disruptive patients are more litigious than other patients, we have discovered that approximately 30% of the patients referred to the CCRB have made formal complaints to third parties-congressional delegations or VA service organizations-about their care. We have noted previously that in the VA system congressional inquiries have partially evolved into an extralegal mode of litigation. 15 This was a primary reason for the initial formation of the CCRB. Patients referred to the coordinated care review board are
From the Outpatient Psychiatry Section (Drs Sparr and Beahrs) and the General Medicine Section (Dr Mazur), Department of Veterans Affairs Medical Center; the Departments of
Psychiatry (Drs Sparr, Rogers, and Beahrs) and of Medicine (Dr Mazur), School of Medicine, Oregon Health Sciences University; and the City Attorney's Office (Dr Rogers), Portland, Oregon. Reprint requests to Landy F. Sparr, MD, Department of Veterans Affairs Medical Center (I 16A-OPC), PO Box 1036, Portland, OR 97207.
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ABBREVIATIONS USED IN TEXT CCRB = coordinated care review board VA = [Department ofl Veterans Affairs
up clinic appointments. At the suggestion of the review board, he was sent a health care agreement that he signed and returned. Afterward, his behavior improved.
Case 3 typically medical or surgical patients who need care, are not willing to have psychiatric intervention, or have behavioral problems that interfere with medical treatment. Some of the patients have traditional psychiatric disturbances as well as medical problems. They may have personality traits that lead them to rebel against or defeat the instructions of their health care professionals. They may attempt to manipulate the system to obtain additional compensation, controlled substances, or simply food and shelter; or they may have grown angry at the inability of staff to provide relief from their longterm discomforts.7 The review board, which includes psychologists, physicians, a lawyer, nurses, and administrators, makes suggestions to practitioners about patient management, the development of physician-patient health care agreements, and the advisability of terminating the physician-patient relationship. This board and other similar review bodies, whether in private or public settings, are usually made up of existing medical center staff members who are willing to devote extra time to improving hospital safety. At our facility, patients usually come to the attention of the CCRB through the office of the chief of staff. Previous incidents and efforts to deal with a problem must be well documented before a referral is accepted. This ensures that only truly difficult patients are referred and that data on such patients are sufficiently complete to guarantee a useful consultation.7 Patient referral to the board must follow four criteria: * The patient's failure to comply with assessment or treatment poses a substantially increased risk of morbidity or mortality-or both. * The patient's behavior has involved the repeated use of intimidation (for example, verbal abuse or litigation threats). * The problem behavior is well documented in the medical record. * The physician has tried to resolve the problem. Report of Cases Case I The patient, a 75-year-old man with a history of chronic obstructive pulmonary disease and alcohol abuse, was referred to the CCRB because of noncompliance with treatment. He had many admissions to the hospital that were characterized by a lack of cooperation with discharge arrangements. Usually, after spending his VA disability money, he would come back to the hospital in dire medical condition and need to be readmitted. During admissions he was often verbally abusive toward staff members. Among recommendations by the board was pursuit of a fiduciary arrangement so that the patient's funds and consequently the patient could be better managed. Case 2 The patient, a 46-year-old man with chronic knee pain, deep venous thrombosis with recurrent pulmonary emboli, and atrial fibrillation, had a long history of noncompliance with both warfarin sodium (Coumadin) therapy and follow-
The patient, a 35-year-old man, had chronic right knee pain. He had been seen by many orthopedic surgeons and, despite a lack of notable findings on x-ray film or arthroscopy, continued to have pain and to insist that his physicians were missing something. He was abusive toward hospital staff, threatened to write his congressional representative, and wanted VA-authorized fee-basis (private) care. After unsuccessful attempts to mediate the situation, the patient was sent a health care agreement. Responding to the language of the agreement, the patient wrote back requesting a signed statement by his physicians that they would not threaten him or use abusive language toward him. The chief of staff responded, acknowledging the responsibility of all physicians to treat patients with respect. The patient never returned the health care agreement and was subsequently sent a notice terminating his eligibility for routine hospital care.
Case 4 The patient, a 63-year-old man with sinusitis, was convinced that all VA physicians were incompetent and that no one had ever treated him properly. His clinical history included many documented instances of verbal abuse toward staff, complaints, and behavioral incidents. Because of the incidents (15 in all), the patient had a behavioral emergency flag on his records (a computer warning to staff about repetitively violent patients).8"9 The patient had taken his complaints to his representative, his senator, and the hospital's chief of staff. He demanded private fee-basis care because of his dissatisfaction with VA treatment. He signed a health care agreement but complained bitterly about it and had his service officer write a letter of protest to the hospital director. The patient ultimately moved to another area and was sent a letter acknowledging his move and wishing him well. A copy of the letter was sent to his senator. Case 5 The patient, a 67-year-old former prisoner of war, had 15 service-connected medical disabilities. His two primary problems were diabetes mellitus and hypertension. He had sought help from many health care professionals, had refused most treatment recommendations, and had been noncompliant with outpatient or inpatient care. He had written letters to the VA's chief medical director, filed a personal injury claim against the VA, and had written his representative. He was sent a health care agreement, which he signed, and a letter from the chief of staff designating a single physician for him and suggesting a meeting with that physician, a staff psychologist, and the patient's service officer. Initially, there was some improvement in the patient's behavior.
Physician-Patient Agreements Discussion with the CCRB helps clinicians clarify what has gone wrong in the physician-patient relationship. Although not all the cases discussed had successful results, explicit plans were developed to try to rectify the situations. Usually with the help of the review board, clinicians with problem patients are advised to first form a treatment agreement with the patient, particularly when there is a complex
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interplay among biologic, psychological, and social dimensions of an illness. The board may help physicians see the patient as "sick" rather than "bad." A physician-patient agreement may identify clinical problems and broaden options for their resolution. A sample health care agreement and cover letter are shown in Figure 1. If no primary care physician has been clearly designated, the board helps appoint one. The emergency department staff is briefed about the nature of the agreement, as are other concerned personnel, such as pharmacists. In the event of a new incident, the patient is referred immediately to the primary care physician, who, with the support of the chief of staff, enforces the agreement.'
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Sometimes, however, formal contracts hinder communication. Physician-patient agreements may be reflected merely by a medical record note signed by the physician and patient with a copy given to the patient. Whether formal or informal, these agreements may be clinically and legally beneficial and may constitute an enforceable contract, although, as discussed below, the physician should still ensure that all proper steps are taken before terminating the therapeutic relationship. The physician-patient relationship may fulfill the elements of a legal contract if there is an offer to do something by one party, an acceptance of that offer by another, and "consideration" (that is, a payment or another act of value)
A Dear The medical center director and I have discussed the concerns of you and your physician regarding the recent difficulties in your medical care. To rectify this problematic situation, we have decided that we can best provide your care through continuity. Dr John Doe has agreed to be your physician. This medical center fully intends to work with you, but your cooperation will be essential. To clarify the way in which this care will be carried out, we have outlined the attached health care agreement. Should you decide to continue your medical care at this medical center, please sign the agreement and return it to me in the enclosed envelope. After receiving this signed agreement, Dr John Doe's office will call you to make an initial appointment. In the event you elect not to seek further care for your health problems at this medical center, we will no longer provide regular medical care or medications. If I do not receive a signed copy of the enclosed health care agreement from you in the next 30 days, I will assume that you no longer desire care at the medical center. We look forward to joining with you in managing your health care, should you choose to do so at this medical center.
Sincerely, , MD
Chief of Staff
B The medical center would like to provide you with comprehensive health care. This care will include * Scheduled visits with Dr John Doe, who will serve as the coordinator of your medical care. * Medication as prescribed by Dr John Doe. * Consultations with other care providers, as requested by Dr John Doe. * Diagnostic and treatment procedures, as ordered by Dr John Doe. To provide appropriate medical care, your cooperation is necessary. Your cooperation will be demonstrated by your agreeing and adhering to the following points: * I will limit my contact with this medical center to scheduled appointments with Dr John Doe, except for immediate lifethreatening situations, in which case I may be seen in the emergency department. When I or my family members have questions about my health care, we will contact my primary nurse, RN, no more than once per week. * I will notify the clinic at least 1 day before missing any scheduled clinic visit. * I will participate in the evaluation and treatment plans as agreed to with Dr John Doe. * I will inform Dr John Doe about all health care and medication I receive from sources other than the medical center and agree to any communication between health care providers about my care. * My family and I will treat the staff of this medical center with respect and demonstrate that respect by refraining from loud, abusive, or threatening language or behavior. * I understand that the medical center cannot safely provide routine medical care if I fail to comply with any component of this agreement. Should I fail to comply with this agreement, the medical center will no longer provide regular medical care or medications. My signature below indicates my agreement with this plan. Date
Witness
Date
Figure 1.-A health care agreement describing the responsibilities of both parties can help the physician and patient to define their relationship. At our medical center, we use the cover letter (A) and the health care agreement (B) shown.
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that makes the agreement more than a gift or nonbinding statement of intent. 16 Even if there is no written agreement, the court may find that a health care contract has been formed because it was "manifested by conduct" of the respective parties.17 When the physician and patient agree, there is no need for negotiation, and the encounter runs smoothly without a formal agreement. But sometimes the situation is less clear. 18 In a legal sense, unilateral severance of the physicianpatient relationship by the physician when there is still need for continuing medical attention may constitute a breach of contract or a tort, either of which is commonly termed patient abandonment. 19.20 Abandonment in the classic sense involves active intent by the physician to improperly terminate the physician-patient contractual relationship. If there is no such intent and, instead, the physician through inattention and delay provides inadequate care that causes patient injury, it is termed constructive abandonment and the physician may be nonetheless liable. Physicians who have inappropriately terminated patient care are usually sued for negligence rather than breach of contract, in part because physicians generally have insurance coverage for professional negligence but not breach of contract. Even if a patient fails to comply with a written physicianpatient agreement, it would be legally risky for a physician to terminate care without additional notice and an opportunity to find alternative care. Courts could rule that the agreement does not bind the patient or relieve the physician of the usual obligations, because such an agreement may be a "contract of adhesion." For example, if an agreement is not truly bargained but the physician, in effect, compels the patient to accept the agreement to get needed care, the court may not enforce it. Courts are reluctant to enforce contracts that are not the result of bargaining between parties in similar positions of authority. Thus, the physician cannot safely assume that a breach of the agreement by the patient allows the physician to terminate summarily the professional relationship. Despite these cautions, we think an explicit agreement, formal or not, will strengthen a physician's legal position. In the event of a lawsuit, the agreement would help the physician prove reasonable and responsible behavior by clearly defining the patient's role in allowing the physician to provide adequate care. Certainly a judge or jury would respond favorably to the clear documentation and prudent approach reflected in such an agreement. Patient Responsibilities The physician must use the patient's concept of the problem and requested intervention as the starting point.21 The patient's responsibility is to define the problem and the type of intervention sought from the physician. 18 The fundamental principle of medical practice is a relationship of trust between physician and patient. This relationship requires that both be aware of and assume the obligations inherent in their respective responsibilities. Patients carry a responsibility to reflect the circumstances, symptoms, and events honestly and accurately and to consider the recommendations provided by their physicians. Physicians in turn are obligated to define and develop a course of therapy in a patient's best interest under the circumstances described and manifested by the patient.22 If patients do not provide accurate and complete information and if they do not cooperate with treatment, physicians usually will not
be held liable for damages resulting from a patient's actions. Physicians' conclusions can be no better than the information
provided. Medicolegal Background Elements of Malpractice Abandonment is a type of malpractice described under civil law as a negligent tort. A tort is a civil wrong, as opposed to a criminal wrong, perpetrated by one citizen against another. Rules governing tort liability were traditionally set by common law-that is, by an accumulation of court decisions about principles of liability that are not based on statutes. Many state legislatures have now enacted statutes defining elements of various types of torts. In a typical medical malpractice lawsuit, the plaintiff has the burden of proof to show that the physician had a legal duty of care to the patient, that the physician breached that duty, and that the breach caused injury to the plaintiff. A physician acquires a duty to a patient by offering or providing care. It is not necessary to have initiated formal, long-term treatment for a duty to exist. A duty to provide care can be terminated by mutual agreement of the parties or, in some instances, by unilateral action. If the patient needs further care, however, the physician's duty continues until the patient is referred or given time to transfer to another treatment source.23
Abandonment as a Cause ofAction In most situations, entry into the physician-patient relationship is discretionary for the physician, but once the relationship is established, its continuance is not entirely discretionary.2425 Theoretically, in most nonemergency situations, treatment is provided by choice until the patient no longer needs care or dismisses the physician. Although the courts respect a physician's right to withdraw from a case, if a need for service persists, the physician is bound to give notice to the patient of the proposed termination and afford ample opportunity for securing other medical attendants of choice.26 Unilateral termination is considered abandonment when these obligations to provide notice and alternative treatment options are breached. Although abandonment is a legal cause of action recognized in every state, there are variations among jurisdictions. For example, several courts have established that abandonment occurs only when a physician leaves a patient at a critical time, without giving reasonable notice or making suitable arrangements for the attendance of another physician. A physician may terminate care even at a critical time, however, if an adequate substitute health care professional assumes care of the patient. In some states, physicians may be liable if they excuse themselves from even routine treatment of a patient without giving notice and a reasonable opportunity for the patient to acquire other medical help or without obtaining the consent of the patient. This standard is more advantageous for the plaintiff patient because there is no need to prove that the physician left at a critical treatment stage.27 An abandonment claim can be a particularly fertile ground for malpractice litigation when bad feelings are combined with a bad result.23 Once the act of abandonment is proved, convincing a judge or jury that the abandonment caused injury may be less difficult than proving cause in some other types of malpractice cases. 28 Whether practicing in a health care institution or a private
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office, a physician should be wary of the following situations that have been found to constitute abandonment if adequate substitute care is not found: premature patient dismissal and absenting oneself because of other patients' needs, personal illness, or vacations." A physician who fails to see the patient at intervals necessitated by the patient's condition may be held to have abandoned the patient. A physician may also be liable for abandonment if a patient is dismissed without proper procedure, despite the fact that the patient has failed to pay a bill or to keep appointments, gone to another physician temporarily, unilaterally sought consultation from another physician, or has not followed instructions.29`31 We think termination without consent is best accomplished by giving the patient a written notice or sending a registered letter terminating the relationship, suggesting alternative sources of care, and allowing enough time (at least 30 days) for the patient to secure another physician. In some situations, it is advisable for the physician to assist the patient in arranging alternative care. The case of Payton versus Weaver illustrates the authority of health care professionals to terminate physician-patient relationships under appropriate circumstances and by following proper procedures even when the patient has a serious illness.32 The plaintiff, Ms Payton, was a 35-year-old woman with chronic end-stage renal disease. She lived alone in a low-income housing project and, in addition to having kidney disease, abused alcohol and had been addicted to heroin and barbiturates for more than 15 years. She first began outpatient hemodialysis treatment in 1975 with Dr Weaver, a renal specialist, but she was disruptive, uncooperative, and verbally abusive to staff members. Finally, Dr Weaver sent her a cautionary letter proposing termination of care if her "persistent uncooperative and antisocial behavior" continued. In response, Ms Payton applied for admission to dialysis programs at two local hospitals but was refused. Dr Weaver continued to provide care to her on an emergency basis for an additional year or so, but her behavior did not improve. He then sent her a second letter terminating their physicianpatient relationship. Ms Payton filed suit, seeking a court order to compel continuation of treatment. A settlement was reached, resulting in an elaborate health care contract under which Ms Payton agreed to improve her conduct by keeping appointments, refraining from using alcohol and drugs, maintaining dietary restrictions, and cooperating with care providers. When she did not comply with any terms of the agreement, Dr Weaver once again notified her in writing that her treatment would be terminated. Ms Payton instituted a second legal action seeking continuation of treatment. The trial court denied her petition, finding that Ms Payton had not fulfilled her obligations and had actively undermined treatment. The court concluded that Dr Weaver had properly discharged his responsibility to her and that the hospital had not violated her rights by failing to provide care. A stay of the court's judgment was entered to permit Ms Payton to appeal the decision. The appellate court upheld the trial court decision, finding that the physician had behaved according to the highest professional standards. Reducing Liability Documentation and consultation are two safeguards against liability. When terminating care, the reasons should be documented clearly and explicitly. Because a physician's judgment may be influenced by hostility to the patient, con-
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sultation may be useful. Good-faith referrals or allowing the patient a negotiated return if the problem has been otherwise redressed is possible. Clinicians are not obligated to accept any patient back into full treatment, but patients may be given periodic reevaluations. The one circumstance in which a clinician simply cannot terminate patient care is a state of emer-
gency.13
Patients' negligence and assumption of risk are increasingly recognized as defenses in malpractice actions, although this varies from state to state. In pure contributory negligence (or contributory fault), a plaintiff patient's recovery of damages may be barred even when the defendant was at fault if the patient was sufficiently at fault as well. Typical rules for this defense are set forth in Santoni versus Schaerf33: a patient's negligence "must be concurrent" with, not subsequent to, the physician's; the burden ofproof is on the defendant physician; and the key elements are the patient's appreciation of risk and his or her failure to do what a person of "ordinary prudence" would do. The contributory negligence of patients who fail to provide information or cooperate has been affirmed as a defense to malpractice claims by some courts .34-38 Many states, however, have adopted some concept of comparative negligence, with degrees of negligence measured in terms of a percentage of fault rather than either-or. An Illinois appellate court defined the relevance of comparative negligence to malpractice actions in Newell versus Corres,39 noting that a patient's refusal of recommended treatment put a physician in a dilemma of giving suboptimal treatment or abandoning the patient. The court charged the jury to consider the nature ofthe treatment provided, whether this and the preferred treatment were fully explained to the plaintiff patient, and whether the patient knowingly refused the preferred treatment. It noted that comparative negligence is "particularly suited for such a broad-based fact-finding." Some typical limits are stated in Bellier versus Bazan40: The patient's fault must be concurrent with the physician's; subsequent fault can still mitigate damages, but any reduction in recovery can be negated by the physician's failure to give informed consent. A forum such as the Coordinated Care Review Board provides clinical consultation to treating physicians. It can help them distinguish between a patient who is simply annoying and one who is actively disrupting the medical system. A patient who decides to terminate care should be cautioned beforehand of the consequences, and this should be documented in the medical record. Otherwise, the patient may file suit on the basis of not being warned about the consequences of terminating treatment. Writing appropriate letters to patients that discuss possible or actual termination may be difficult. Some court decisions suggest that letters should be explicit when discussing both specifics and consequences of disruptive patient behavior. In Mortiz versus Medical Arts Clinic, a plaintiff patient sued a group practice clinic and its administrator for libel after she was sent a letter of notice terminating her clinical care.4" The plaintiff had previously sued the clinic for malpractice, which resulted in a settlement out of court. Afterward, the clinic sent the patient a letter in an attempt to terminate its professional relationship with her. The patient protested by initiating a defamation suit even though the termination letter had been rather neutral in tone. There was no allegation that the plaintiff either did not have adequate time
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physician or had trouble finding one. The majority of the justices on the North Dakota Supreme Court
to find another
decided that the letter could not be taken to have any defamatory meaning. A dissenting justice, however, wrote that a failure to give reasons for terminating a professional relationship leaves a notice susceptible to a defamatory interpretation. Thus, even though the clinic prevailed, the dissent suggested that a physician's legal position would be stronger if a termination letter were more detailed and explicit, provided that the reasons expressed are accurate and sup-
portable. Usually, however, when a letter terminating care is sent, there is little discussion of or attempt to list specific patient provocations. There may be clinical reasons to be cautious. Curran suggests that this is a Hobson's choice because even
though providing written reasons for termination might be legally prudent, adopting such a practice might provoke more problems with ex-patients than it would avoid. 14 Stating the reasons for termination could cause disputes and lawsuits over the adequacy and truth of the reasons given. To help avoid liability, sensitive letters should be accurate, succinct, and confidential. The issue of confidentiality, along with informed consent, may be a concern when dealing with disruptive patients because information must be shared among health care professionals and patients must be told of the medical consequences of their actions. Although a thorough discussion of informed consent and confidentiality is beyond the scope of this article, disruptive patients are engaged in public behavior that usually mitigates confidentiality. This latter issue has been debated extensively.4"-45
Conclusion From the cases discussed here, it is evident that not all encounters with disruptive patients end successfully. Sometimes either the patient or physician prematurely breaks off the professional relationship. The physician acting either to set limits on the patient or to terminate the physician-patient relationship should do so with full awareness of medicolegal protocol. We describe a hospitalwide interdisciplinary review board that advises clinicians and the chief of staff on the disposition of disruptive patients. Consultation, documentation, and communication are the key elements of reducing liability. In contrast, the physician must avoid unilateral, arbitrary, or vindictive actions when dealing with disruptive patients. While these patients often tax our patience, a consistent, firm, and coordinated approach may allow a heretofore untreatable patient to become treatable. REFERENCES 1. Healey JM: Termination of the doctor-patient relationship. Conn Med 1982; 46:733 2. Lipsitt DR: Medical and psychological characteristics of 'crocks.' Int J Psychiatry Med 1970; 1: 15-25
3. Grouse LD: Dirtball. JAMA 1982; 247:3059-3060 4. Groves JE: Taking care of the hateful patient. N Engl J Med 1978; 298:883-887 5. Liederman DB, Grisso JA: The gomer phenomenon. J Health Soc Behav 1985; 26:222-232 6. Lipp M: Problem patients, chap 1, In Respectful Treatment-The Human Side of Medical Care. Hagerstown, Md, Harper & Row, 1977, pp 1-27 7. Starker S, Baker L, Drummond D, Pankratz L: Managing the difficult medical patient. VA Practitioner 1991; 8:91-97 8. Drummond DJ, Sparr LF, Gordon GH: Hospital violence reduction among highrisk patients. JAMA 1989; 261:2531-2534 9. Sparr LF, Drummond DJ, Hamilton NG: Managing violent patient incidents: The role of a behavioral emergency committee. QRB 1988; 14:147-153 10. Hossenlopp CM, Holland J: Ambulatory patients with medical and psychiatric illness: Care in a special medical clinic. Int J Psychiatry Med 1977; 8:1-11 11. Steiger WA: Managing difficult patients. Psychosomatics 1967; 8:305-308 12. Von Mering 0, Earley LW: The ambulatory problem patient: A unique teaching resource. Am J Psychiatry 1969; 126:146-150 13. Sparr LF, Boehnlein JK, Cooney TG: The medical management of the paranoid patient. Gen Hosp Psychiatry 1986; 8:49-55 14. Curran WJ: Breaking off the physician-patient relationship: Another legal hazard. N Engl J Med 1982; 307:1058-1060 15. Sparr LF, Drummond DJ: Risk management in Veterans Administration mental health clinics, In Simon RI (Ed): Review of Clinical Psychiatry and the Law-Vol 3. Washington, DC, American Psychiatric Press, 1991, pp 67-97 16. Calamari J, Perillo J: The Law of Contracts, Vol 2, 3rd Edition. St Paul, Minn, West, 1987 17. Beahrs JO: Legal duties of psychiatric patients. Bull Am Acad Psychiatry Law 1990; 18:189-202 18. Quill TE: Partnerships in patient care: A contractual approach. Ann Intern Med 1983; 98:228-234 19. Stohlman v Davis, 220 NW 247 (Neb 1928) 20. Grace v Myers, 29 SE2d 553 (NC 1944) 21. Lazare A, Eisenthal S, Wasserman L: A customer approach to patienthood: Attending to patient requests in a walk-in clinic. Arch Gen Psychiatry 1975; 32:553558 22. Chapman JE: The relationship between law and medicine, In James AE Jr (Ed): Legal Medicine, With Special Reference to Diagnostic Imaging. Baltimore, Md, Urban & Schwarzenberg, 1980, pp 1-13 23. Gutheil TG: Legal issues in psychiatry, In Kaplan HI, Sadock VJ (Eds): Comprehensive Textbook of Psychiatry, Vol 2, 5th Edition. Baltimore, Md, Williams & Wilkins, 1989, pp 2107-2131 24. Capps v Volk, 369 P2d 238 (Kan Super Ct 1962) 25. McManus v Donlin, 127 NW2d 22 (Wis Super Ct 1964) 26. Annotation, Liability of physician who abandons case, 57 ALR2d 432 (1958) 27. Stratton WT: Medical abandonment. Kansas Med 1989; 10:250,253 28. Simon RI: The practice of psychotherapy: Legal liabilities of an 'impossible' profession, chap 1, In Review of Clinical Psychiatry and the Law, Vol 2. Washington, DC, American Psychiatric Press, 1990, pp 3-91 29. Hirsh HL: Patient abandonment: From a legal perspective. Urban Health 1985; 14:34-39 30. Hirsh HL: Patient abandonment. Urban Health 1985; 14:3641 31. Hirsh HL: Patient abandonment. Urban Health 1985; 14:15-17 32. Payton v Weaver, 182 Cal Rptr 225 (Cal Ct App 1st Dist 1982) 33. Santoni v Schaerf, 48 Md App 498 505-508, 428 A2d 94 (1981) 34. Fall v White, 449 NE2d 628, 633-634 (Ind Ct App 1983) 35. Mackey v Greenview Hospital, Inc, 587 SE2d 249 (Ky Ct App 1979) 36. Ray v Wagner, 286 Minn 354, 176 NW2d 101 (1970) 37. Mecham v McLeay, 193 Neb 457, 464, 227 NW2d 829 (1975) 38. Gilles v Rehab Institute of Oregon, 262 Or 422, 425, 498 P2d 777 (1972) 39. Newell v Corres, 125 III App3d 1087, 1094, 466 NE2d 1085 (1984) 40. Bellier v Bazan, 124 Misc2d 1055, 478 NYS2d 562 (Supp 1984) 41. Moritz v Medical Arts Clinic, 315 NW2d 458 (ND 1982) 42. Eichelman B: Proactive violence reduction: Successful quality assurance. JAMA 1989; 261:2546 43. Schwartz H: Violence in-or out of-VA hospitals. VA Practitioner 1989; 6:1718 44. Roth LH, Meisel A: Dangerousness, confidentiality, and the duty to warn. Am J Psychiatry 1977; 134:508-511 45. Weinstock R: Confidentiality and the duty to protect: The therapist's dilemma. Hosp Community Psychiatry 1988; 39:607-609
Articles
Disruptive Medical Patients Forensically Informed Decision Making LANDY F. SPARR, MD, MA; JEFFREY L ROGERS, JD; JOHN 0. BEAHRS, MD; and DENNIS J. MAZUR, MD, PhD, Portland, Oregon
Patients who disrupt medical care create problems for physicians. The risks are not entirely clinical. Although these patients may compromise sound clinical judgment, some are also litigious and express their dissatisfaction in legal or other forums. It then becomes necessary for treating physicians to be aware of the legal and ethical boundaries of their patient care responsibilities. Some disruptive patients are treated by setting limits, which is usually affirmed by health care agreements. A hospital review board may advise clinicians on these agreements and on the management of disruptive patients. If termination of the physician-patient relationship is considered, physicians must follow proper protocol. We examine these forensic considerations and place them in the context of malpractice. Communication, consultation, and documentation are the key elements in reducing liability. (Sparr LF, Rogers JL, Beahrs JO, Mazur DJ: Disruptive medical patients-Forensically informed decision making. West J Med 1992 May; 156: 501-506)
Physicians may find themselves in the uncomfortable situation of providing care to a disruptive medical patient whose conduct interferes with the exercise of clinical judgment and effective treatment. In these situations, physicians are often unclear about their legal authority to redefine, set limits on, or even terminate their professional relationship with the patient. Issues include the contractual nature of the physician-patient relationship and the legal and ethical boundaries of a physician's patient care responsibility.1 By "disruptive patients," we are referring to patients whose behavior interferes with a physician's ability to give health care. For example, disruptive patients may recklessly disregard their medical needs, provide distorted or erroneous information, or engage in abusive, obstructionist behavior that undermines not only their health care but that of others. Most of these patients have joined that medical pantheon of undesirables inhabited by "crocks,"2 "dirtballs,"3 "hateful patients,"4 "gomers,"' and "problem patients."6 Their behavior clashes with the machinery of ordinary health care operations. Medical center administrators may become aware of them through patient or staff complaints, incident reports, lawsuits, or congressional inquiries.' In these instances, appropriate action may include communicating clear expectations to the patient and enforcing limits. Because limit setting is not common and occasionally heightens the risk for bad results, physicians sometimes fear being held liable for some putative failure to use standard practice that can be shown after the fact to have contributed to patient
injury. In an earlier study,8 we discovered that 25% ofthe patients who caused major disruptions of patient care at our hospital were responsible for 38% of the incidents, including most of those in which injuries occurred or weapons were used. Although there have been many authoritative suggestions7 9-'3 regarding managing disruptive patients, in a few instances the appropriate action may be denying access to care even though the patient has a treatable medical condition.
Unilateral termination of a continuing physician-patient relationship is legally possible, but the physician must give the patient adequate time and opportunity to find another source of care. This may not be a problem in areas well served by medical facilities, but when the patient has inadequate financial resources or no alternative treatment facility, the problem is more complex. It is particularly difficult when the patient's condition is severe, chronic, or requires regular medical attendance. Failure to follow proper protocol may result in ethical charges against the physician, and, if harm comes to the patient, a lawsuit. 14 In this article, we consider issues concerning individual practitioners. As background, we provide a short review of basic elements of malpractice law, followed by a discussion of forensic principles regarding patient abandonment. We conclude by discussing methods to reduce liability. Coordinated Care Review Process Review Board It is the policy of our medical center (Department of Veterans Affairs [VA] Medical Center) to make reasonable efforts to provide care to disruptive outpatients. Recently the medical center formed a multidisciplinary coordinated care review board (CCRB) to provide consultation to practitioners and administrative staff with patients who are grossly uncooperative with medical care. In the first three years of operation, we have had 75 patients referred to this board. Although we found no data to show that disruptive patients are more litigious than other patients, we have discovered that approximately 30% of the patients referred to the CCRB have made formal complaints to third parties-congressional delegations or VA service organizations-about their care. We have noted previously that in the VA system congressional inquiries have partially evolved into an extralegal mode of litigation. 15 This was a primary reason for the initial formation of the CCRB. Patients referred to the coordinated care review board are
From the Outpatient Psychiatry Section (Drs Sparr and Beahrs) and the General Medicine Section (Dr Mazur), Department of Veterans Affairs Medical Center; the Departments of
Psychiatry (Drs Sparr, Rogers, and Beahrs) and of Medicine (Dr Mazur), School of Medicine, Oregon Health Sciences University; and the City Attorney's Office (Dr Rogers), Portland, Oregon. Reprint requests to Landy F. Sparr, MD, Department of Veterans Affairs Medical Center (I 16A-OPC), PO Box 1036, Portland, OR 97207.
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ABBREVIATIONS USED IN TEXT CCRB = coordinated care review board VA = [Department ofl Veterans Affairs
up clinic appointments. At the suggestion of the review board, he was sent a health care agreement that he signed and returned. Afterward, his behavior improved.
Case 3 typically medical or surgical patients who need care, are not willing to have psychiatric intervention, or have behavioral problems that interfere with medical treatment. Some of the patients have traditional psychiatric disturbances as well as medical problems. They may have personality traits that lead them to rebel against or defeat the instructions of their health care professionals. They may attempt to manipulate the system to obtain additional compensation, controlled substances, or simply food and shelter; or they may have grown angry at the inability of staff to provide relief from their longterm discomforts.7 The review board, which includes psychologists, physicians, a lawyer, nurses, and administrators, makes suggestions to practitioners about patient management, the development of physician-patient health care agreements, and the advisability of terminating the physician-patient relationship. This board and other similar review bodies, whether in private or public settings, are usually made up of existing medical center staff members who are willing to devote extra time to improving hospital safety. At our facility, patients usually come to the attention of the CCRB through the office of the chief of staff. Previous incidents and efforts to deal with a problem must be well documented before a referral is accepted. This ensures that only truly difficult patients are referred and that data on such patients are sufficiently complete to guarantee a useful consultation.7 Patient referral to the board must follow four criteria: * The patient's failure to comply with assessment or treatment poses a substantially increased risk of morbidity or mortality-or both. * The patient's behavior has involved the repeated use of intimidation (for example, verbal abuse or litigation threats). * The problem behavior is well documented in the medical record. * The physician has tried to resolve the problem. Report of Cases Case I The patient, a 75-year-old man with a history of chronic obstructive pulmonary disease and alcohol abuse, was referred to the CCRB because of noncompliance with treatment. He had many admissions to the hospital that were characterized by a lack of cooperation with discharge arrangements. Usually, after spending his VA disability money, he would come back to the hospital in dire medical condition and need to be readmitted. During admissions he was often verbally abusive toward staff members. Among recommendations by the board was pursuit of a fiduciary arrangement so that the patient's funds and consequently the patient could be better managed. Case 2 The patient, a 46-year-old man with chronic knee pain, deep venous thrombosis with recurrent pulmonary emboli, and atrial fibrillation, had a long history of noncompliance with both warfarin sodium (Coumadin) therapy and follow-
The patient, a 35-year-old man, had chronic right knee pain. He had been seen by many orthopedic surgeons and, despite a lack of notable findings on x-ray film or arthroscopy, continued to have pain and to insist that his physicians were missing something. He was abusive toward hospital staff, threatened to write his congressional representative, and wanted VA-authorized fee-basis (private) care. After unsuccessful attempts to mediate the situation, the patient was sent a health care agreement. Responding to the language of the agreement, the patient wrote back requesting a signed statement by his physicians that they would not threaten him or use abusive language toward him. The chief of staff responded, acknowledging the responsibility of all physicians to treat patients with respect. The patient never returned the health care agreement and was subsequently sent a notice terminating his eligibility for routine hospital care.
Case 4 The patient, a 63-year-old man with sinusitis, was convinced that all VA physicians were incompetent and that no one had ever treated him properly. His clinical history included many documented instances of verbal abuse toward staff, complaints, and behavioral incidents. Because of the incidents (15 in all), the patient had a behavioral emergency flag on his records (a computer warning to staff about repetitively violent patients).8"9 The patient had taken his complaints to his representative, his senator, and the hospital's chief of staff. He demanded private fee-basis care because of his dissatisfaction with VA treatment. He signed a health care agreement but complained bitterly about it and had his service officer write a letter of protest to the hospital director. The patient ultimately moved to another area and was sent a letter acknowledging his move and wishing him well. A copy of the letter was sent to his senator. Case 5 The patient, a 67-year-old former prisoner of war, had 15 service-connected medical disabilities. His two primary problems were diabetes mellitus and hypertension. He had sought help from many health care professionals, had refused most treatment recommendations, and had been noncompliant with outpatient or inpatient care. He had written letters to the VA's chief medical director, filed a personal injury claim against the VA, and had written his representative. He was sent a health care agreement, which he signed, and a letter from the chief of staff designating a single physician for him and suggesting a meeting with that physician, a staff psychologist, and the patient's service officer. Initially, there was some improvement in the patient's behavior.
Physician-Patient Agreements Discussion with the CCRB helps clinicians clarify what has gone wrong in the physician-patient relationship. Although not all the cases discussed had successful results, explicit plans were developed to try to rectify the situations. Usually with the help of the review board, clinicians with problem patients are advised to first form a treatment agreement with the patient, particularly when there is a complex
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interplay among biologic, psychological, and social dimensions of an illness. The board may help physicians see the patient as "sick" rather than "bad." A physician-patient agreement may identify clinical problems and broaden options for their resolution. A sample health care agreement and cover letter are shown in Figure 1. If no primary care physician has been clearly designated, the board helps appoint one. The emergency department staff is briefed about the nature of the agreement, as are other concerned personnel, such as pharmacists. In the event of a new incident, the patient is referred immediately to the primary care physician, who, with the support of the chief of staff, enforces the agreement.'
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Sometimes, however, formal contracts hinder communication. Physician-patient agreements may be reflected merely by a medical record note signed by the physician and patient with a copy given to the patient. Whether formal or informal, these agreements may be clinically and legally beneficial and may constitute an enforceable contract, although, as discussed below, the physician should still ensure that all proper steps are taken before terminating the therapeutic relationship. The physician-patient relationship may fulfill the elements of a legal contract if there is an offer to do something by one party, an acceptance of that offer by another, and "consideration" (that is, a payment or another act of value)
A Dear The medical center director and I have discussed the concerns of you and your physician regarding the recent difficulties in your medical care. To rectify this problematic situation, we have decided that we can best provide your care through continuity. Dr John Doe has agreed to be your physician. This medical center fully intends to work with you, but your cooperation will be essential. To clarify the way in which this care will be carried out, we have outlined the attached health care agreement. Should you decide to continue your medical care at this medical center, please sign the agreement and return it to me in the enclosed envelope. After receiving this signed agreement, Dr John Doe's office will call you to make an initial appointment. In the event you elect not to seek further care for your health problems at this medical center, we will no longer provide regular medical care or medications. If I do not receive a signed copy of the enclosed health care agreement from you in the next 30 days, I will assume that you no longer desire care at the medical center. We look forward to joining with you in managing your health care, should you choose to do so at this medical center.
Sincerely, , MD
Chief of Staff
B The medical center would like to provide you with comprehensive health care. This care will include * Scheduled visits with Dr John Doe, who will serve as the coordinator of your medical care. * Medication as prescribed by Dr John Doe. * Consultations with other care providers, as requested by Dr John Doe. * Diagnostic and treatment procedures, as ordered by Dr John Doe. To provide appropriate medical care, your cooperation is necessary. Your cooperation will be demonstrated by your agreeing and adhering to the following points: * I will limit my contact with this medical center to scheduled appointments with Dr John Doe, except for immediate lifethreatening situations, in which case I may be seen in the emergency department. When I or my family members have questions about my health care, we will contact my primary nurse, RN, no more than once per week. * I will notify the clinic at least 1 day before missing any scheduled clinic visit. * I will participate in the evaluation and treatment plans as agreed to with Dr John Doe. * I will inform Dr John Doe about all health care and medication I receive from sources other than the medical center and agree to any communication between health care providers about my care. * My family and I will treat the staff of this medical center with respect and demonstrate that respect by refraining from loud, abusive, or threatening language or behavior. * I understand that the medical center cannot safely provide routine medical care if I fail to comply with any component of this agreement. Should I fail to comply with this agreement, the medical center will no longer provide regular medical care or medications. My signature below indicates my agreement with this plan. Date
Witness
Date
Figure 1.-A health care agreement describing the responsibilities of both parties can help the physician and patient to define their relationship. At our medical center, we use the cover letter (A) and the health care agreement (B) shown.
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that makes the agreement more than a gift or nonbinding statement of intent. 16 Even if there is no written agreement, the court may find that a health care contract has been formed because it was "manifested by conduct" of the respective parties.17 When the physician and patient agree, there is no need for negotiation, and the encounter runs smoothly without a formal agreement. But sometimes the situation is less clear. 18 In a legal sense, unilateral severance of the physicianpatient relationship by the physician when there is still need for continuing medical attention may constitute a breach of contract or a tort, either of which is commonly termed patient abandonment. 19.20 Abandonment in the classic sense involves active intent by the physician to improperly terminate the physician-patient contractual relationship. If there is no such intent and, instead, the physician through inattention and delay provides inadequate care that causes patient injury, it is termed constructive abandonment and the physician may be nonetheless liable. Physicians who have inappropriately terminated patient care are usually sued for negligence rather than breach of contract, in part because physicians generally have insurance coverage for professional negligence but not breach of contract. Even if a patient fails to comply with a written physicianpatient agreement, it would be legally risky for a physician to terminate care without additional notice and an opportunity to find alternative care. Courts could rule that the agreement does not bind the patient or relieve the physician of the usual obligations, because such an agreement may be a "contract of adhesion." For example, if an agreement is not truly bargained but the physician, in effect, compels the patient to accept the agreement to get needed care, the court may not enforce it. Courts are reluctant to enforce contracts that are not the result of bargaining between parties in similar positions of authority. Thus, the physician cannot safely assume that a breach of the agreement by the patient allows the physician to terminate summarily the professional relationship. Despite these cautions, we think an explicit agreement, formal or not, will strengthen a physician's legal position. In the event of a lawsuit, the agreement would help the physician prove reasonable and responsible behavior by clearly defining the patient's role in allowing the physician to provide adequate care. Certainly a judge or jury would respond favorably to the clear documentation and prudent approach reflected in such an agreement. Patient Responsibilities The physician must use the patient's concept of the problem and requested intervention as the starting point.21 The patient's responsibility is to define the problem and the type of intervention sought from the physician. 18 The fundamental principle of medical practice is a relationship of trust between physician and patient. This relationship requires that both be aware of and assume the obligations inherent in their respective responsibilities. Patients carry a responsibility to reflect the circumstances, symptoms, and events honestly and accurately and to consider the recommendations provided by their physicians. Physicians in turn are obligated to define and develop a course of therapy in a patient's best interest under the circumstances described and manifested by the patient.22 If patients do not provide accurate and complete information and if they do not cooperate with treatment, physicians usually will not
be held liable for damages resulting from a patient's actions. Physicians' conclusions can be no better than the information
provided. Medicolegal Background Elements of Malpractice Abandonment is a type of malpractice described under civil law as a negligent tort. A tort is a civil wrong, as opposed to a criminal wrong, perpetrated by one citizen against another. Rules governing tort liability were traditionally set by common law-that is, by an accumulation of court decisions about principles of liability that are not based on statutes. Many state legislatures have now enacted statutes defining elements of various types of torts. In a typical medical malpractice lawsuit, the plaintiff has the burden of proof to show that the physician had a legal duty of care to the patient, that the physician breached that duty, and that the breach caused injury to the plaintiff. A physician acquires a duty to a patient by offering or providing care. It is not necessary to have initiated formal, long-term treatment for a duty to exist. A duty to provide care can be terminated by mutual agreement of the parties or, in some instances, by unilateral action. If the patient needs further care, however, the physician's duty continues until the patient is referred or given time to transfer to another treatment source.23
Abandonment as a Cause ofAction In most situations, entry into the physician-patient relationship is discretionary for the physician, but once the relationship is established, its continuance is not entirely discretionary.2425 Theoretically, in most nonemergency situations, treatment is provided by choice until the patient no longer needs care or dismisses the physician. Although the courts respect a physician's right to withdraw from a case, if a need for service persists, the physician is bound to give notice to the patient of the proposed termination and afford ample opportunity for securing other medical attendants of choice.26 Unilateral termination is considered abandonment when these obligations to provide notice and alternative treatment options are breached. Although abandonment is a legal cause of action recognized in every state, there are variations among jurisdictions. For example, several courts have established that abandonment occurs only when a physician leaves a patient at a critical time, without giving reasonable notice or making suitable arrangements for the attendance of another physician. A physician may terminate care even at a critical time, however, if an adequate substitute health care professional assumes care of the patient. In some states, physicians may be liable if they excuse themselves from even routine treatment of a patient without giving notice and a reasonable opportunity for the patient to acquire other medical help or without obtaining the consent of the patient. This standard is more advantageous for the plaintiff patient because there is no need to prove that the physician left at a critical treatment stage.27 An abandonment claim can be a particularly fertile ground for malpractice litigation when bad feelings are combined with a bad result.23 Once the act of abandonment is proved, convincing a judge or jury that the abandonment caused injury may be less difficult than proving cause in some other types of malpractice cases. 28 Whether practicing in a health care institution or a private
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office, a physician should be wary of the following situations that have been found to constitute abandonment if adequate substitute care is not found: premature patient dismissal and absenting oneself because of other patients' needs, personal illness, or vacations." A physician who fails to see the patient at intervals necessitated by the patient's condition may be held to have abandoned the patient. A physician may also be liable for abandonment if a patient is dismissed without proper procedure, despite the fact that the patient has failed to pay a bill or to keep appointments, gone to another physician temporarily, unilaterally sought consultation from another physician, or has not followed instructions.29`31 We think termination without consent is best accomplished by giving the patient a written notice or sending a registered letter terminating the relationship, suggesting alternative sources of care, and allowing enough time (at least 30 days) for the patient to secure another physician. In some situations, it is advisable for the physician to assist the patient in arranging alternative care. The case of Payton versus Weaver illustrates the authority of health care professionals to terminate physician-patient relationships under appropriate circumstances and by following proper procedures even when the patient has a serious illness.32 The plaintiff, Ms Payton, was a 35-year-old woman with chronic end-stage renal disease. She lived alone in a low-income housing project and, in addition to having kidney disease, abused alcohol and had been addicted to heroin and barbiturates for more than 15 years. She first began outpatient hemodialysis treatment in 1975 with Dr Weaver, a renal specialist, but she was disruptive, uncooperative, and verbally abusive to staff members. Finally, Dr Weaver sent her a cautionary letter proposing termination of care if her "persistent uncooperative and antisocial behavior" continued. In response, Ms Payton applied for admission to dialysis programs at two local hospitals but was refused. Dr Weaver continued to provide care to her on an emergency basis for an additional year or so, but her behavior did not improve. He then sent her a second letter terminating their physicianpatient relationship. Ms Payton filed suit, seeking a court order to compel continuation of treatment. A settlement was reached, resulting in an elaborate health care contract under which Ms Payton agreed to improve her conduct by keeping appointments, refraining from using alcohol and drugs, maintaining dietary restrictions, and cooperating with care providers. When she did not comply with any terms of the agreement, Dr Weaver once again notified her in writing that her treatment would be terminated. Ms Payton instituted a second legal action seeking continuation of treatment. The trial court denied her petition, finding that Ms Payton had not fulfilled her obligations and had actively undermined treatment. The court concluded that Dr Weaver had properly discharged his responsibility to her and that the hospital had not violated her rights by failing to provide care. A stay of the court's judgment was entered to permit Ms Payton to appeal the decision. The appellate court upheld the trial court decision, finding that the physician had behaved according to the highest professional standards. Reducing Liability Documentation and consultation are two safeguards against liability. When terminating care, the reasons should be documented clearly and explicitly. Because a physician's judgment may be influenced by hostility to the patient, con-
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sultation may be useful. Good-faith referrals or allowing the patient a negotiated return if the problem has been otherwise redressed is possible. Clinicians are not obligated to accept any patient back into full treatment, but patients may be given periodic reevaluations. The one circumstance in which a clinician simply cannot terminate patient care is a state of emer-
gency.13
Patients' negligence and assumption of risk are increasingly recognized as defenses in malpractice actions, although this varies from state to state. In pure contributory negligence (or contributory fault), a plaintiff patient's recovery of damages may be barred even when the defendant was at fault if the patient was sufficiently at fault as well. Typical rules for this defense are set forth in Santoni versus Schaerf33: a patient's negligence "must be concurrent" with, not subsequent to, the physician's; the burden ofproof is on the defendant physician; and the key elements are the patient's appreciation of risk and his or her failure to do what a person of "ordinary prudence" would do. The contributory negligence of patients who fail to provide information or cooperate has been affirmed as a defense to malpractice claims by some courts .34-38 Many states, however, have adopted some concept of comparative negligence, with degrees of negligence measured in terms of a percentage of fault rather than either-or. An Illinois appellate court defined the relevance of comparative negligence to malpractice actions in Newell versus Corres,39 noting that a patient's refusal of recommended treatment put a physician in a dilemma of giving suboptimal treatment or abandoning the patient. The court charged the jury to consider the nature ofthe treatment provided, whether this and the preferred treatment were fully explained to the plaintiff patient, and whether the patient knowingly refused the preferred treatment. It noted that comparative negligence is "particularly suited for such a broad-based fact-finding." Some typical limits are stated in Bellier versus Bazan40: The patient's fault must be concurrent with the physician's; subsequent fault can still mitigate damages, but any reduction in recovery can be negated by the physician's failure to give informed consent. A forum such as the Coordinated Care Review Board provides clinical consultation to treating physicians. It can help them distinguish between a patient who is simply annoying and one who is actively disrupting the medical system. A patient who decides to terminate care should be cautioned beforehand of the consequences, and this should be documented in the medical record. Otherwise, the patient may file suit on the basis of not being warned about the consequences of terminating treatment. Writing appropriate letters to patients that discuss possible or actual termination may be difficult. Some court decisions suggest that letters should be explicit when discussing both specifics and consequences of disruptive patient behavior. In Mortiz versus Medical Arts Clinic, a plaintiff patient sued a group practice clinic and its administrator for libel after she was sent a letter of notice terminating her clinical care.4" The plaintiff had previously sued the clinic for malpractice, which resulted in a settlement out of court. Afterward, the clinic sent the patient a letter in an attempt to terminate its professional relationship with her. The patient protested by initiating a defamation suit even though the termination letter had been rather neutral in tone. There was no allegation that the plaintiff either did not have adequate time
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physician or had trouble finding one. The majority of the justices on the North Dakota Supreme Court
to find another
decided that the letter could not be taken to have any defamatory meaning. A dissenting justice, however, wrote that a failure to give reasons for terminating a professional relationship leaves a notice susceptible to a defamatory interpretation. Thus, even though the clinic prevailed, the dissent suggested that a physician's legal position would be stronger if a termination letter were more detailed and explicit, provided that the reasons expressed are accurate and sup-
portable. Usually, however, when a letter terminating care is sent, there is little discussion of or attempt to list specific patient provocations. There may be clinical reasons to be cautious. Curran suggests that this is a Hobson's choice because even
though providing written reasons for termination might be legally prudent, adopting such a practice might provoke more problems with ex-patients than it would avoid. 14 Stating the reasons for termination could cause disputes and lawsuits over the adequacy and truth of the reasons given. To help avoid liability, sensitive letters should be accurate, succinct, and confidential. The issue of confidentiality, along with informed consent, may be a concern when dealing with disruptive patients because information must be shared among health care professionals and patients must be told of the medical consequences of their actions. Although a thorough discussion of informed consent and confidentiality is beyond the scope of this article, disruptive patients are engaged in public behavior that usually mitigates confidentiality. This latter issue has been debated extensively.4"-45
Conclusion From the cases discussed here, it is evident that not all encounters with disruptive patients end successfully. Sometimes either the patient or physician prematurely breaks off the professional relationship. The physician acting either to set limits on the patient or to terminate the physician-patient relationship should do so with full awareness of medicolegal protocol. We describe a hospitalwide interdisciplinary review board that advises clinicians and the chief of staff on the disposition of disruptive patients. Consultation, documentation, and communication are the key elements of reducing liability. In contrast, the physician must avoid unilateral, arbitrary, or vindictive actions when dealing with disruptive patients. While these patients often tax our patience, a consistent, firm, and coordinated approach may allow a heretofore untreatable patient to become treatable. REFERENCES 1. Healey JM: Termination of the doctor-patient relationship. Conn Med 1982; 46:733 2. Lipsitt DR: Medical and psychological characteristics of 'crocks.' Int J Psychiatry Med 1970; 1: 15-25
3. Grouse LD: Dirtball. JAMA 1982; 247:3059-3060 4. Groves JE: Taking care of the hateful patient. N Engl J Med 1978; 298:883-887 5. Liederman DB, Grisso JA: The gomer phenomenon. J Health Soc Behav 1985; 26:222-232 6. Lipp M: Problem patients, chap 1, In Respectful Treatment-The Human Side of Medical Care. Hagerstown, Md, Harper & Row, 1977, pp 1-27 7. Starker S, Baker L, Drummond D, Pankratz L: Managing the difficult medical patient. VA Practitioner 1991; 8:91-97 8. Drummond DJ, Sparr LF, Gordon GH: Hospital violence reduction among highrisk patients. JAMA 1989; 261:2531-2534 9. Sparr LF, Drummond DJ, Hamilton NG: Managing violent patient incidents: The role of a behavioral emergency committee. QRB 1988; 14:147-153 10. Hossenlopp CM, Holland J: Ambulatory patients with medical and psychiatric illness: Care in a special medical clinic. Int J Psychiatry Med 1977; 8:1-11 11. Steiger WA: Managing difficult patients. Psychosomatics 1967; 8:305-308 12. Von Mering 0, Earley LW: The ambulatory problem patient: A unique teaching resource. Am J Psychiatry 1969; 126:146-150 13. Sparr LF, Boehnlein JK, Cooney TG: The medical management of the paranoid patient. Gen Hosp Psychiatry 1986; 8:49-55 14. Curran WJ: Breaking off the physician-patient relationship: Another legal hazard. N Engl J Med 1982; 307:1058-1060 15. Sparr LF, Drummond DJ: Risk management in Veterans Administration mental health clinics, In Simon RI (Ed): Review of Clinical Psychiatry and the Law-Vol 3. Washington, DC, American Psychiatric Press, 1991, pp 67-97 16. Calamari J, Perillo J: The Law of Contracts, Vol 2, 3rd Edition. St Paul, Minn, West, 1987 17. Beahrs JO: Legal duties of psychiatric patients. Bull Am Acad Psychiatry Law 1990; 18:189-202 18. Quill TE: Partnerships in patient care: A contractual approach. Ann Intern Med 1983; 98:228-234 19. Stohlman v Davis, 220 NW 247 (Neb 1928) 20. Grace v Myers, 29 SE2d 553 (NC 1944) 21. Lazare A, Eisenthal S, Wasserman L: A customer approach to patienthood: Attending to patient requests in a walk-in clinic. Arch Gen Psychiatry 1975; 32:553558 22. Chapman JE: The relationship between law and medicine, In James AE Jr (Ed): Legal Medicine, With Special Reference to Diagnostic Imaging. Baltimore, Md, Urban & Schwarzenberg, 1980, pp 1-13 23. Gutheil TG: Legal issues in psychiatry, In Kaplan HI, Sadock VJ (Eds): Comprehensive Textbook of Psychiatry, Vol 2, 5th Edition. Baltimore, Md, Williams & Wilkins, 1989, pp 2107-2131 24. Capps v Volk, 369 P2d 238 (Kan Super Ct 1962) 25. McManus v Donlin, 127 NW2d 22 (Wis Super Ct 1964) 26. Annotation, Liability of physician who abandons case, 57 ALR2d 432 (1958) 27. Stratton WT: Medical abandonment. Kansas Med 1989; 10:250,253 28. Simon RI: The practice of psychotherapy: Legal liabilities of an 'impossible' profession, chap 1, In Review of Clinical Psychiatry and the Law, Vol 2. Washington, DC, American Psychiatric Press, 1990, pp 3-91 29. Hirsh HL: Patient abandonment: From a legal perspective. Urban Health 1985; 14:34-39 30. Hirsh HL: Patient abandonment. Urban Health 1985; 14:3641 31. Hirsh HL: Patient abandonment. Urban Health 1985; 14:15-17 32. Payton v Weaver, 182 Cal Rptr 225 (Cal Ct App 1st Dist 1982) 33. Santoni v Schaerf, 48 Md App 498 505-508, 428 A2d 94 (1981) 34. Fall v White, 449 NE2d 628, 633-634 (Ind Ct App 1983) 35. Mackey v Greenview Hospital, Inc, 587 SE2d 249 (Ky Ct App 1979) 36. Ray v Wagner, 286 Minn 354, 176 NW2d 101 (1970) 37. Mecham v McLeay, 193 Neb 457, 464, 227 NW2d 829 (1975) 38. Gilles v Rehab Institute of Oregon, 262 Or 422, 425, 498 P2d 777 (1972) 39. Newell v Corres, 125 III App3d 1087, 1094, 466 NE2d 1085 (1984) 40. Bellier v Bazan, 124 Misc2d 1055, 478 NYS2d 562 (Supp 1984) 41. Moritz v Medical Arts Clinic, 315 NW2d 458 (ND 1982) 42. Eichelman B: Proactive violence reduction: Successful quality assurance. JAMA 1989; 261:2546 43. Schwartz H: Violence in-or out of-VA hospitals. VA Practitioner 1989; 6:1718 44. Roth LH, Meisel A: Dangerousness, confidentiality, and the duty to warn. Am J Psychiatry 1977; 134:508-511 45. Weinstock R: Confidentiality and the duty to protect: The therapist's dilemma. Hosp Community Psychiatry 1988; 39:607-609
