1. health and fitness

NUMBER 1
A Newsletter for MLMIC-Insured Physicians & Facilities
Limited Authorizations
6
Case Study
7
The Role of CPH
8
Post-Graduate Medical
Education Programs
11
New Developments
15
Risk Management Tips
17
Underwriting Update
18
MLMIC’s Lending Library
19
www.mlmic.com
Editorial Staff
Joan Koppel, Editor
Frances Ciardullo, Esq.
Matthew Lamb, Esq.
Robert Pedrazzi
Donnaline Richman, Esq.
James Robb
Linda J. Trentini, CIC
David F. White, CPCU, RPLU
Michael Zeffiro, Esq.
How to Approach the Difficult Patient
Donnaline Richman, Esq. and Frances A. Ciardullo, Esq., Fager & Amsler, LLP
Counsel to Medical Liability Mutual Insurance Company
I
n almost every physician’s practice, there
are difficult patients. There is no simple
solution to resolve the problems these patients
present because each situation is unique. This
article will attempt to describe some of the
more common situations and provide recommendations for handling such patients.
Patients/Families Who Demand
and/or Abuse Narcotics
Patients who abuse narcotics present a dilemma for physicians. The patient may come
to the office with complaints of severe pain.
Pain is often subjective, so the physician must
rely on what the patient tells him/her. Some
patients may demand a specific narcotic, or
even a specific dose. Other patients may claim
that non-narcotics have not been effective, and
ask the physician to prescribe a narcotic.
At the outset, each practice must have
a policy and procedure regarding the secure
storage of narcotics and prescription pads in
the office. Access to prescription pads and
narcotics must be limited to only those professionals who are entitled by law to write
such prescriptions. Prescription pads must
never be pre-signed or left lying around. Both
narcotics and prescription pads must always
be locked up or otherwise secured.
If it is contemplated that a patient will
be treated with narcotics over a long period
of time, it is recommended that the patient
sign a pain management agreement.1 The
agreement sets forth the expectations for the
treatment relationship and spells out the consequences for failure to adhere to the agreement. Consequences include discontinuing
1.
A sample pain management agreement is available from Fager & Amsler, LLP.
the prescription for narcotics, requirements
for drug testing, and/or discharging the
patient from the practice.
Once a physician decides to prescribe
a narcotic, other issues may arise. A patient
who is given medication that is intended to
last for a specific number of days may call the
office requesting a refill before the next refill
is due. The patient may claim the prescription was lost, the medications were stolen,
or something atypical, such as, “the dog ate
my pills.” Substance abusers will generally
have a myriad of excuses. After a few visits,
the physician may begin to question the
legitimacy of the patient’s need for narcotics and become wary of the patient’s excuses.
This is particularly true when the pain has no
obvious cause and/or no objective signs and
symptoms of pain are manifested.
Obvious signs of substance abuse
include: (1) a pharmacist notifying a physician that he/she has received a forged or
altered prescription; (2) the physician learning that the patient has been obtaining narcotics from multiple sources; (3) the patient
making frequent visits to the Emergency
Department or another covering physician
to seek narcotics; and (4) a new patient
demanding narcotics for pain control, but
refusing to authorize the release of treatment
records of a prior physician.
Physicians must always be alert to the
fact that patients abuse, and may even sell,
the narcotics prescribed to them. The patient
may intentionally divert the medication, or
a family member or friend may be stealing
drugs the patient legitimately needs for pain.
continued on page 2
spring
D ateline
VOLUME 7
08
The Difficult Patient continued from page 1
If a physician reasonably believes that
a patient is a habitual user or abuser of
narcotics, is the victim of the theft of
narcotics by a third party, or has stolen
or forged prescriptions, he/she must contact the New York State Department of
Health Bureau of Controlled Substances
(BCS).2 The physician may also consider
discharging the patient from care.3 If the
patient has an existing appointment or
cannot be discharged due to his or her
condition, the physician should advise
the patient that narcotics will no longer
be prescribed and refer the patient to a
pain management clinic. If the patient
resists, the physician must take steps to
wean the patient from the narcotic medication. Further, all covering physicians
must be advised not to refill narcotic
prescriptions for that patient.
If the patient alleges that a family
member is stealing the medication, a
toxicology screen must be ordered to
confirm that the patient is not taking
the prescribed narcotic. Theft of drugs
by a third party is a crime and should be
reported to the police. Advise the patient
that the police will be contacted.
Situations involving abuse of narcotics do not lend themselves to easy solutions. If you have a concern in this area,
you should contact legal counsel at Fager
& Amsler LLP.
Patients or Family Members
Who are Rude, Hostile,
Abusive, or Threatenening
Some patients, or their family members,
have a low flash point. If they are given
bad news or inconvenienced, they may
become angry or abusive. Others may
make threats or become physically intimidating. When a patient makes a threat,
the physician must immediately determine how serious the threat is, including
whether the individual could potentially
2. Public Health Law §3372. The telephone
number for BCS is 518-402-0707.
3. The last section of this article addresses
how to properly discharge a patient from
care.
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carry out any threat of violence. If the
threat appears to be legitimate, and if
it rises to the level of a criminal act, it
should be promptly reported to the police.
Criminal acts include: trespass,4 disorderly conduct,5 harassment,6 aggravated
harassment,7 stalking,8 and menacing.9
4. Trespass is defined as knowingly entering or
remaining unlawfully in or upon premises.
Penal Law §140.05
5. Disorderly conduct is defined as engaging in
fighting, violent or threatening behavior;
making unreasonable noise; using abusive
or obscene language or making an obscene
gesture in a public place; creating a hazardous or physically offensive condition by
an act that serves no legitimate purpose,
with the intent to cause public annoyance,
inconvenience or alarm. Penal Law §240.20
6. Harassment is defined as following a person
in or around a public place or engaging a
course of conduct or committing acts which
place a person in reasonable fear of physical
injury. Penal Law §240.25.
7. Aggravated harassment is defined as (1)
communication, including communication
initiated by mechanical or electronic means,
with a person, anonymously or otherwise,
by telephone, telegraph, mail or any form
of written communication, in a manner
likely to cause annoyance or alarm; or (2)
making a telephone call with no legitimate
purpose for communication; or (3) striking,
shoving, kicking, or other physical contact,
or attempting or threatening such contact,
because of a belief or perception regarding
such person’s race, color, national origin,
ancestry, gender, religion, religious practice,
age, disability or sexual orientation, regardless of whether the belief or perception is
correct. Penal Law §240.30
8. Stalking is defined as intentionally, for no
legitimate purpose, engaging in a course of
conduct directed at a specific person, with
the knowledge that such conduct is likely
to cause reasonable fear of material harm
to a person, his/her immediate family or
an acquaintance. Such conduct consists of
following, telephoning, or initiating communication or contact after the actor had
been clearly informed that he/she must
cease such conduct. Material harm includes
physical health, safety or property; mental
or emotional health, and threats to the person’s employment, business or career. Penal
Law §120.45
9. Menacing is defined as intentionally placing or attempting to place another person
in fear of death, imminent serious physical injury or physical injury. Penal Law
§120.15
Law enforcement authorities should also
be immediately notified of any criminal conduct which takes place on the
premises, or any criminal acts committed against the physician and/or staff. If
an individual is hostile and threatening
to staff, and refuses to leave after being
asked to do so, the police may be contacted. If criminal charges do get filed,
the physician and/or staff member may
even request the court to issue an Order
of Protection mandating that the patient
refrain from menacing conduct, or that
the patient stay away from an individual’s
home. In these extreme cases, the patient
(and perhaps his or her entire family)
should be discharged from the office
practice and referred to the Emergency
Department for follow-up care.
If the conduct is less severe, such as
rude or disruptive behavior, the physician
has several options. Sometimes, a direct
conversation with the patient or family
member will result in a change of behavior. The physician can plainly state that
the behavior is unacceptable and, if it
occurs again, will result in discharge from
the practice. This conversation can occur
either by telephone or at the time of a
visit. Often, this will achieve the desired
result. If a discussion with the patient is
not an option, then the patient should
be seen for the immediate condition and
then discharged. The physician/group
also may wish to discharge other family
members, such as siblings or in-laws, if
it would be uncomfortable continuing to
care for them under the circumstances. Patients Who Complain
About Treatment
Patients who lodge complaints about
their care and treatment with a third
party, such as a hospital, insurance company, or governmental agency (such as
Medicare or the New York State Office
of Professional Medical Conduct), create
an awkward situation. The patient may
have chosen not to discuss his or her
concerns about treatment with the physician and, instead, decided to write a for-
mal complaint letter. Sometimes it is not
the patient who makes the complaint,
but rather a spouse, adult child, or other
family member. No matter where it originates, receipt of a complaint letter places
the physician in an uncomfortable and
defensive position. It may not be wise
to continue to treat the patient, if he or
she is dissatisfied. Consciously or unconsciously, the physician may be inclined
to order additional, or even unnecessary,
testing merely to satisfy the patient’s
demands or protect himself/herself from
litigation or government investigation.
If a physician does receive a complaint letter, the physician should contact
MLMIC. When the letter alleges substandard quality of care received AND
requests compensation for an injury (a
claim letter), MLMIC will investigate the
patient’s claim and develop an appropriate
response and/or resolution to the complaint. If the patient’s letter does not ask
for monetary compensation, but simply
raises concerns about the quality of care,
attorneys at Fager & Amsler, L.L.P., are
available to assist physicians in preparing
a written response.
Patients Who Threaten to
Sue or Consult an Attorney
If the patient not only complains about
treatment, but threatens to bring a lawsuit, or if the patient has actually consulted an attorney, clearly the physician/
patient relationship has been seriously
disrupted. The physician’s first awareness of attorney involvement may occur
when he or she receives a request for the
patient’s medical record. Because it is not
always clear why an attorney is requesting
the record, many physicians rely upon
instinct to alert them to a potential liability issue. If there is any inkling that the
patient is contemplating a malpractice
lawsuit, it makes it uncomfortable for the
physician to continue to treat the patient.
Surprisingly, some patients wish to
continue seeing their physician, even after
they have sued him/her. It is not in the
best interests of either the patient or the
physician to continue the relationship.
Patients who have sued, or who have consulted an attorney with the intention of
commencing a lawsuit, often cancel or fail
to keep scheduled appointments, particularly after their attorneys have requested
their medical records. They may be noncompliant with treatment recommendations, or fail to communicate about medical issues. Physicians might feel compelled
to practice “defensive” medicine, ordering
inappropriate tests and procedures. The
physician may believe that continuing the
relationship will help him/her “look better
to the jury,” which generally is not true.
Once a patient has commenced a
malpractice suit, the physician/patient
relationship, based upon mutual trust, has
been seriously compromised. The patient
should be discharged from care or, if his/
her condition requires it, the patient may
be transferred to another practice. If the
patient’s physician is in a group practice,
the patient should be discharged from the
care of all providers in the group.
The Non-Compliant Patient
Non-compliant patients are some of
the most difficult patients a physician
encounters. Non-compliant patients
fail to comply with recommendations
for treatment, testing, and referrals.
Others routinely fail to keep appointments. Although these patients may be
nice individuals, they can be extremely
risky to the physician’s legal health. Noncompliant patients should be counseled
and warned about the consequences of
failing to adhere to treatment recommendations, and these discussions should
be documented in the medical record.
The consequences of failure to comply
should also be reiterated in writing to the
patient.10 If the patient persists, he/she
should be discharged from care.
continued on page 4
10.When a physician sends a letter containing
critical information to a patient’s address,
it is recommended that the letter be sent
simultaneously by two methods: 1) certified
mail, return receipt requested, and 2) first
class mail with a certificate of mailing purchased from the Post Office. As long as the
first class letter is not returned as undeliverable, then it may be presumed that it was
received.
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The Difficult Patient continued from page 3
Hospitalized patients may choose
to leave against medical advice (AMA).
Many physicians consider leaving AMA
the ultimate in non-compliance, and may
feel they have no obligation to provide
follow-up care for the patient. Office staff
may even refuse to give the patient an
appointment. It is important to understand that, when a patient leaves AMA,
the physician/patient relationship has not
ended. In order to sever the relationship
with the patient, the physician must take
the additional step of formally discharging
the patient from his or her office practice.
Although patients legally have the right
to refuse treatment, the physician also
has the right to discharge the patient for
non-compliance. The reason for discharge
must be thoroughly documented, both in
the patient’s record and in the discharge
letter, as non-compliance with recommendations for care and treatment.
The Intoxicated/
Impaired Patient
When a patient comes to the office drunk
or otherwise intoxicated due to drugs, he/
she may be uncooperative and disruptive.
If a patient or family member is not only
intoxicated but disruptive in the office,
he/she can be asked to leave the premises.
The physician may be concerned about the
patient’s ability to drive, and may question
whether he/she should call the police to
prevent an accident. These same questions
arise when a patient who has received an
anesthetic or sedative in the office insists on
driving home, despite clear warnings not to
do so. Regrettably, a physician’s office cannot call the police without a patient’s consent to stop the patient from driving, since
this would be a breach of the patient’s right
of confidentiality.
Handling these situations involves
skillful persuasion. First, the patient
should be assessed to determine whether
there is another medical cause for the
patient’s behavior which can be treated,
or if he/she has recovered sufficiently
to drive safely. If the physician feels the
patient is unsafe to drive, the physician
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should attempt to persuade the patient
to remain until he/she is safe to drive,
offer to send the patient home in a taxi
cab, or call a family member to transport
him/her. If the physician believes that the
patient presents a danger to himself or
others, then the county adult protective
service may be notified. The counseling
efforts and actions taken must be documented in the patient’s medical record. If
clinically appropriate, the patient may be
discharged from the practice.
A hospitalized patient who is disruptive or intoxicated should never be
encouraged to leave AMA. Doing so
undermines the concept of leaving AMA
and could result in allegations of abandonment and professional misconduct
against the physician.
Patients Who Lack Capacity
Patients with decreased cognition, dementia, or those who reside in an OMRDD11
facility can be difficult to treat. Concerns
may include cooperation, safety, and
informed consent. When dealing with
patients who lack capacity, proper staffing
and adequate time are important so that
these patients may be treated safely.
It can be difficult to discern if the
patient has a legal guardian or who has
the right to consent for the patient. The
patient may have multiple family members who disagree about the patient’s
care, but none of those individuals has
the legal authority to make healthcare
decisions. Individuals entitled to make
healthcare decisions, such as consent
for treatment, include healthcare proxy
agents, legal guardians, or an involved
family member (for a patient from an
OMRDD facility).
Patients who lack capacity pose special legal issues involving appropriate delegation and documentation of decisionmaking authority. If you have a situation
that requires evaluation of such authority,
you should contact legal counsel.
11.Office of Mental Retardation and
Developmental Disability.
Patients Who Fail to Pay Bills
Physicians often ask whether they may
discharge a patient who fails to pay for
services rendered. The answer is yes, as long
as there is no medical reason which would
preclude discharge. These patients may fail
to keep their appointments due to their
inability to pay. If the patient misses an
appointment, and his/her medical condition warrants follow-up care, appropriate
steps must be taken to be sure that the
patient is counseled about receiving the
required care and the consequences of
failure to obtain it. Warning letters should
be sent about missed appointments, spelling out the patient’s condition, the need
for continued treatment, and what could
happen if treatment is not received. Only
after such steps have been taken, may he or
she be discharged from the practice. Note
that the doctor/patient relationship does
not automatically end when a patient’s
bill is sent to an agency for collection. The
physician’s responsibility for the patient’s
care only ends when the patient has been
formally discharged from care.
Patients Who Act in
a Seductive Manner
Towards the Physician
Some patients send love letters, exhibit
unusual or flirtatious behavior, or use
sexual innuendos when speaking to the
physician. In some instances, the patient
may not even be aware that his/her
behavior is inappropriate.
A physician should have a chaperone present in the examining room
during every internal examination or
physical examination where the patient
is undressed. The presence of the chaperone must be documented in the patient’s
medical record.12 This is particularly
important for patients who act in a
seductive manner. A patient who acts
inappropriately toward his or her physi12.Fager & Amsler LLP can provide sample
language which can be used to create a rubber stamp for documenting the presence of
a chaperone.
cian may have underlying emotional or
psychological issues. There is a very real
risk that the patient may make allegations of sexual misconduct when his or
her advances are rebuffed by the physician. Such allegations can destroy a
physician’s career and result in disciplinary action by the Office of Professional
Medical Conduct (OPMC). Use of a
chaperone can help a physician avoid
such allegations. If the patient alleges
that sexual misconduct has occurred, the
patient must be discharged immediately
(if appropriate) to protect the physician’s
license and reputation.
Discharging a
Patient From Care
As pointed out in this discussion, a physician is not required to continue caring
for a patient whose behavior makes the
physician uncomfortable. A patient may
be discharged from care if he/she does
not have an urgent or emergent medical
condition or does not require continuous
care without a gap. In some situations,
the physician may find that the patient
cannot be discharged, or that the physician must first arrange for a seamless
transition to another provider. The physician must consider the patient’s ability to
obtain the same type of care in a timely
manner within a reasonable geographic
distance. For example, it may not be possible to discharge patients who are in the
hospital or more than 24 weeks pregnant,
because no alternative provider may be
willing to immediately assume their care.
In other situations, discharge may occur,
but it is a question of timing. In some
specialties, 30 days’ notice may be insufficient for the patient to obtain substitute
care in a timely manner within the geographic area.
If the patient can be discharged, any
existing appointments must first be cancelled. The physician must then promptly send a letter to the patient, stating that
he/she is discharged from the entire practice. Once the discharge letter has been
sent, all office staff must be made aware
of the fact so that the patient is not inadvertently given a new appointment.
Be aware that, in certain situations,
even after discharge, the physician may
still be required to see the patient. If a
patient who has been discharged presents
at the Emergency Department (E.D.), and
the physician is on call and is requested
by the E.D. physician to see the patient
in the E.D., the physician must respond.
Failure to see the patient in this situation
could result in an EMTALA13 violation for
both the hospital and the physician.
The wording of the discharge letter
may be important. In cases where the
patient has failed to pay his/her account,
it is usual for the letter to state non-payment as the reason for discharge. In other
cases, especially where the discharge is
due to the patient’s disruptive behavior,
or if there is a potential lawsuit against
13. Emergency Medical Treatment and Active
Labor Act.
the physician, the discharge letter may
be more general and may state simply
that there has been a disruption in the
doctor/patient relationship. This general,
noncommittal statement may avoid or
minimize unpleasant confrontation. If
further evaluation, care, and treatment
are indicated, the discharge letter must
emphasize the important of seeking such
care and state the consequences for failing to obtain it.
In summary, all patients, even difficult ones, must be evaluated and treated
by their physicians until and unless they
have been formally discharged from care.
Failure to discharge a patient properly
can lead to allegations of professional
misconduct, commencement of medical
malpractice litigation, and/or criminal
charges due to gross neglect or reckless
endangerment. Therefore, every effort
must be made to provide the same level
of care for all patients, and, if appropriate, to arrange for continued care by
other professionals. 
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