When physicians leave a practice, they set in motion a number of changes that have the potential to negatively impact themselves, patients and the practice. There are steps that need to be taken by both the practice and the departing physician to promote continuity of care and to ensure that all involved physicians have access to the medical records in the event that the care is ever called into question. Taking these steps will protect the practice and the departing physician against allegations of patient abandonment and will ensure compliance with contractual obligations and state medical board requirements.
When physicians retire or move on. In some circumstances, departing physicians have no option but to terminate the physician-patient relationship. This is the case if they are retiring from practice, are leaving the geographic area or have signed a noncompete agreement that prohibits them from soliciting patients from the practice they are leaving (this may not be enforceable; consult an attorney). Also, patients may decide to stay with the current practice rather than continue their care with the departing physician. Note that whether they can do this will depend upon how the original practice agreement was drafted.
Avoid patient abandonment. Before the departing physician terminates any physician-patient relationship, that patient must be given sufficient advance notice to enable him or her to secure the services of another physician. Failure to provide sufficient notice may leave the departing physician and/or the practice vulnerable to charges of patient abandonment, which is when a physician fails to provide for necessary medical care to a current patient without adequate justification. In general, once a physician-patient relationship is established, the physician and the practice have an ongoing responsibility to the patient until it is terminated.
Third Parties to Notify
Dependent upon the provisions of contracts and state law, both the departing physician and the practice may need to notify various third parties:
- The underwriting department of the relevant professional liability carrier needs to know of any changes in order to ensure coverage of the care rendered in both the prior and future practice settings. Physicians who are retiring and have a “claims made” policy should inquire about “extended reporting period endorsements” or “tail” coverage.
- Managed care companies with whom you have contracts.
- The medical staff committee of hospitals where the departing physician has privileges. If he or she is on-call at the hospital, notify the emergency department as well.
- The state board of medicine (if required by state law).
- Legal counsel for assistance as needed in contract provisions and employment law.
The patient notification process is key to ensuring continuity of care and minimizing your liability risk.
How should you notify patients? You can divide patients into three categories.
- High-risk patients should be sent a letter by certified mail, with return receipt requested. High-risk patients are those who are more likely to experience adverse outcomes and allege abandonment if their physician is unavailable for ongoing care. You should use your professional judgment when deciding who falls within this category. Examples would include postop patients and those currently being followed for serious or chronic conditions. Keep a copy of the notification letter and certification material in the patient’s record.
- Active patients who aren’t high risk should be sent a letter by regular post. Examples of active patients include those seen within the last 12 to 18 months. Keep a copy of the notification letter in the patient’s record.
- Notify other patients who won’t be receiving a letter by placing a notice in the local newspaper with the largest circulation, putting a sign up in the lobby and preparing a patient handout.
The practice should also provide a script for receptionists on what to say. This should include information on how to contact the departing physician.
What should the patient notification say? This will depend on whether the departing physician will still be available for ongoing care.
- If the departing physician won’t be available for ongoing care, you should say so but explain care is available at the same location from other physicians. You should tell those patients who choose to seek care elsewhere that, upon their written authorization, a copy of their medical record will be forwarded to their new provider.
- If the departing physician will be available for ongoing care, explain to patients that the physician is leaving the practice but is available in the area. Tell patients that they have the choice of staying with the practice or continuing to see the same physician in his or her new location. Instruct patients who choose to follow the physician that, upon their written authorization, a copy of their medical record will be forwarded to the physician at his or her new location.
To expedite the transfer of records, you should consider including an authorization form with the letter of notification. If your practice is going to charge the patient for the photocopying costs, you should inform the patient what the fee will be. Any material that is related to patient care should be considered part of the medical record and should be provided to the new physician. Both the practice and the new physician should keep a copy of the medical records.
What should you tell patients who stay with your practice? The patient should be notified about the change in provider. The patient’s preferences, if any, should be honored.
- If the care will be provided by another practitioner with the same scope of practice as the departing physician, simply inform the patient of the new provider’s name (though if the care will be provided by a practitioner with a different subspecialty, you should verify that the patient’s clinical needs can be safely met by the new provider).
- If the care will be provided by a practitioner with a different scope of practice, the practice should verify that the patient’s clinical needs can be safely met by the new provider, and that the care to be provided is consistent with the provider’s legal scope of practice (determined by state law) and competency.
When you assume the care of a departing physician's patient. In general, physicians are not liable for the care given by the previous provider, unless they were part of the same medical group or otherwise participated in the prior care. To promote continuity of care and avoid allegations of failure to diagnose or failure to follow-up, however, he new provider assuming care of the patient should obtain the patient's medical record from previous providers and review it. Once the review is complete, make an entry in the medical record, noting pertinent history and current healthcare plan and needs (For example: "8/4/02. Taking over care from Dr. Sanchez. Chart reviewed; continue medical management of glaucoma; follow-up appointment scheduled in one month; consider laser surgery if pressure does not respond.") At the time of the first visit, carefully evaluate and document the patient's current condition at the time of the first visit.
Numerous malpractice lawsuits are generated by comments made by other treating physicians about prior care. These subsequent providers are often drawn into the lawsuits, and sometimes even become defendants. You should therefore focus your attention—and the patient’s—on the current treatment needs. Exercise caution when discussing prior care.
Restrict your comments to the known medical facts, and refrain from speculation or blame. If asked by the patient to render an opinion about the prior physician's decision-making process or care, inform the patient that you were not present during that aspect of the care and are therefore not able to comment upon it. Refer the patient back to the prior physician.
|Custodianship of Records|
|Negotiate a custodianship agreement. The departing physician and the practice need to come to a written agreement about who is the custodian of the records and the conditions under which the departing physician will be granted access to the records of the patients he or she treated. The Ophthalmic Mutual Insurance Company encourages you to consult an attorney in your state who is familiar with health care, insurance and contract law for assistance in drafting the agreement or contract. Many state medical associations provide attorney referral services.|
The custodianship agreement should state whether patient authorization is needed for the departing physician to access his or her former records or to obtain a copy of those records for his or her health care operations (such as a medical malpractice allegation). If not specified in the agreement, state law may determine whether patient authorization is needed for the departing physician to access or copy these records. Generally, physicians should be allowed access to the records of patients they treated. The records provided should reflect care up to and including the day of the physician’s departure.
The custodianship agreement should specify the access process, contents of the records to be copied and who pays for copies of the records provided.
Ensure security. The custodian of the records has a legal duty to maintain the security, integrity and confidentiality of the records, and to comply with state law and HIPAA regulations about patient and third party access.
Provide access to records. When the departing physician continues to treat patients from his or her previous practice and needs access to their records, the priority should always be patient safety and well-being in order to avoid delays in diagnosis or treatment. Juries will not be sympathetic to physicians or practices that impede access to health care information for business or financial reasons. A list of the patients treated by the departing physician should be given to each party, in order to simplify requests for access to and copies of the records. The list should specify the date of the physician’s departure.
Get the patient’s authorization. If the patient will be transferring care to the departing physician, try to obtain a written authorization from the patient before providing a copy of the medical record. If you do not have a copy of an authorization, do not delay transfer of the records as long as you can verify and document the purpose of the disclosure and the identity of the party requesting it.
PLEASE NOTE: This information is intended solely to provide risk management recommendations. It does not constitute legal advice. If legal advice is desired or needed, consult an attorney.