This information is intended solely to provide risk management recommendations. It is not intended to constitute legal advice and should not be relied upon as a source for legal advice. If legal advice is desired or needed, an attorney should be consulted. This information is not intended to be a modification of the terms and conditions of any OMIC policy of insurance you may hold. Refer to your OMIC policy, if applicable for these terms and conditions.
Physicians leave practices for many reasons, including illness, changes in employment status and personal or family needs. Both the individual ophthalmologist and the practice need to take steps in order to promote continuity of care, prevent allegations of abandonment and ensure that all involved physicians have access to the medical records in the event the care is ever called into question. Taking these steps will also ensure compliance with provisions of contracts and with requirements of state medical boards. Here are several keys to handling the transition appropriately.
1. Notify Third Parties
Dependent upon the provisions of contracts and state law, the insured physician and practice may need to notify various third parties.
- Contact managed care companies with whom you have contracts.
- Notify the medical staff committee of hospitals where you have privileges. If you are on-call at the hospital, notify the emergency department as well.
- Notify your state board of medicine, if required to do so by state law.
- Contact legal counsel for assistance, as needed, in contract provisions and employment law.
- Notify the underwriting department of your professional liability carrier of any changes in order to ensure coverage of the care rendered in both the prior and future practice settings.
2. Properly Terminate Physician-Patient Relationships, If Needed
Patient abandonment occurs 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, a physician has an ongoing responsibility to the patient until the relationship is terminated. In order to terminate the relationship, the physician must notify the patient sufficiently in advance for the patient to secure the services of another physician.
There are several reasons you may need to terminate the physician-patient relationship when you leave a practice:
- You are leaving the geographic area.
- You have signed a non-compete agreement with the practice/your employer that prohibits you from soliciting patients from your current practice. (This may not be enforceable; consult your attorney.)
- Your patient chooses to stay with the practice rather than remain your patient. This will depend upon how your original practice agreement was drafted (physicians should obtain legal advice when drafting practice agreements).
- The agreement should define who is considered to be the patient’s physician and how the patient’s right to choose his or her own physician will be handled. For example, an agreement might state that locum tenens physicians will not be considered to be the patient’s physician.
- In general, the patient’s choice should be honored.
- The departing physician and practice may want to offer the patient the choice of following the treating physician to his or her new location or obtaining care from a different physician in the original practice.
3. Notify Your Patients
- Send a letter by certified mail, return receipt requested, to all of the physician’s “high-risk” patients.
- "High-risk" patients are more likely to experience adverse outcomes and allege abandonment if their physician is unavailable for ongoing care.
- When determining who is a “high-risk” patient, physicians need to exercise professional judgment. Examples of high-risk patients include postoperative patients, those currently being followed for serious or chronic conditions, etc.
- Keep a copy of the letter and certification material in the patient’s record.
- Send a letter by regular post to those “active” patients who are not considered “high-risk.”
- Examples of “active” patients include those seen within the last 12 to 18 months.
- Keep a copy of the letter in the patient’s medical record.
- In order to notify patients who will not be receiving a letter:
- Place a notice in the local newspaper with the largest circulation.
- Put a sign up in the lobby.
- Prepare a patient handout.
- Provide a script for receptionists of what they will say to patients and how to contact the departing physician.
4. Provide Patient Options and Record Information
- If the departing physician will not be available for ongoing care:
- Explain to patients that the departing physician is unavailable for ongoing care, but that care is available at the same location from other physicians.
- Instruct patients who choose to seek care elsewhere that, upon written authorization, a copy of their medical record will be forwarded to their new provider.
- Any material related to patient care should be considered part of the medical record and provided to the new physician.
- Both the practice and the new physician should keep a copy of the medical records. A written agreement should determine who keeps the original and who pays for the costs of copying the records.
- Consider including an authorization form with the letter to expedite transfer of records. (See the Ophthalmic Mutual Insurance Company website for sample form.)
- If your practice charges the patient for the photocopying costs, inform the patient of the fee.
- 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 written authorization, a copy of their medical record will be forwarded to the physician at his or her new location.
- Any material related to patient care should be considered part of the medical record and provided to the departing physician.
- Both the practice and the departing physician should keep a copy of the medical records. A written agreement should determine who keeps the original and who pays the costs of copying the records.
- Consider including an authorization form with the letter to expedite transfer of records. (See OMIC website for a sample form.)
- If your practice charges the patient for the photocopying costs, inform the patient of the fee.
5. Facilitate Patients' Transition to a New Provider
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, simply inform the patient of the new provider’s name.
- If the care will be provided by a practitioner with a different (sub)specialty, the practice 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.
6. Review Prior-Care Records for Patients You Assume from Departing, Retiring Physicians
In general, physicians are not liable for the care given by a prior 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, the new provider assuming care of the patient should obtain the medical record from prior providers and review it.
- Once the review is complete, make an entry in the medical record, noting pertinent history and current health care 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.”)
- 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. Subsequent providers are often drawn into these lawsuits, and sometimes even become defendants.
- 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.
- Focus your attention — and the patient’s — on the current treatment needs.
7. Document Transfer, Ongoing Access to and Custodianship of Patient Records
- If the patient will be transferring care to the departing physician or a physician in another practice, try to obtain a written authorization from the patient before providing a copy of the medical record, even if state or federal law does not require it.
- 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.
- OMIC encourages physicians to consider consulting an attorney in their 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 verify 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 healthcare 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.
- 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.
- 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.
- 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.
OMIC policyholders who have additional questions or concerns about practice changes are invited to call OMIC’s confidential risk-management hotline at 800.562.6642; choose option 4. They should also notify OMIC’s underwriting department at extension 639.
Editor's note: For other risk management recommendations, informed consent documents and rate quotes, go to www.omic.com.
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About the author: This article has been adapted from an OMIC advisory written by Anne M. Menke, RN, PhD, the risk manager for OMIC.