Many insureds call the Risk Management Department for advice about terminating treatment of a verbally abusive patient who does not pose a safety threat. They worry that dismissing the patient will prompt the patient to file an abandonment lawsuit or will elevate the patient’s anger. Although verbal abuse by a patient should not be tolerated and falls within The Joint Commission’s definition of “workplace violence,”1 if it does not include physical threats or violent behavior, it generally will not provide grounds for terminating the treatment of the patient without notice.
Terminating treatment without notice following an episode of verbal abuse without an apparent safety risk is more likely to support an abandonment claim. Consequently, the better strategy is to give the patient notice and continue treatment through the notice period.
However, not all disruptive patients need to be dismissed from the practice. Some patients may need a reminder in the form of patient behavior agreements or written warnings following an incident. Once a patient is informed of behavioral expectations and the consequences of violating expectations, he or she may cease being problematic. If the patient’s behavior continues to be problematic, strong policies and documentation can facilitate termination of treatment in a manner that minimizes the risk that an abandonment claim will be filed. If a patient does file such a claim, evidence of policies and documentation can also help successfully defend the allegation.
The following two cases show opposite sides of the spectrum when it comes to terminating treatment of a disruptive patient. In the first case, the practice wanted to terminate treatment too quickly. In the second case, the physician probably waited too long. Risk reduction strategies and resources for disruptive patient rehabilitation and termination of treatment follow the cases.
Case One: Termination of Treatment Without Notice for Verbal Abuse
Issue
Because the patient used abusive language with the receptionist, the practice wanted to terminate treatment without notice.
Case File
An established patient with a variety of chronic health issues called the office for an appointment. When the receptionist asked him for his date of birth, he became abusive and accused her of racial and gender discrimination; nonetheless, an appointment was made for the following week. The practice manager called the Risk Management Department for advice about terminating treatment before the appointment to avoid further stress on clinicians and staff members who would have to deal with the patient during the appointment.
Discussion
There were a couple of complicating issues in this scenario. Generally, once a physician-patient relationship is established, the physician has an ongoing responsibility to the patient until the relationship is terminated. With adequate notice, terminating treatment can be appropriate and ethical. Because this practice wanted to terminate the relationship with no advance notice, the risk of abandonment had to be considered.
If this patient had presented a safety threat to clinicians and staff, immediate termination might have been appropriate. Pursuant to the Occupational Safety and Health Act of 1970 (OSHA), employers are required to provide a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”2 Although abandonment law is not settled in every state, a patient’s threatening behavior, particularly behavior that warrants calling the police, provides a strong basis to argue that the practice owner’s duty to maintain a safe office environment outweighs the duty to provide reasonable notice of treatment termination.
In situations where the safety threat is either not clear or the patient’s behavior is more abusive than threatening (for example, using profanity, derogatory statements, excessive or repetitive noise, offensive gestures), adequate notice is usually necessary. In this case, the safety threat to clinicians and staff appeared minimal. Therefore, terminating treatment of the patient without notice presented a high risk of an abandonment claim. The insured was advised to give the patient adequate notice if she intended to follow through with termination of treatment.
Case Two: Delayed Termination of Treatment After Sexual Harassment
The handful of studies that have examined the prevalence of sexual harassment by patients suggest it may be significant.3,4 The American Medical Association ethics code defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.”5 (Of course, this refers to physicians harassing others, but the definition suffices for patient-perpetrated harassment.)
In the following case, a psychiatrist continued treatment of a patient who sexually harassed her. The psychiatrist’s persistent unwillingness to enter into a sexual relationship with the patient prompted a series of patient self-terminations from treatment. Because the psychiatrist considered patient harassment a hazard of her job, she consistently reinstated treatment, with admonishments and agreements for acceptable behavior. This went on for the better half of a year. In retrospect, the psychiatrist would admit that she should have terminated treatment at an earlier stage and facilitated referral to a different psychiatrist.
Allegation
The physician negligently caused the patient to act on his sexual attraction to her, then negligently failed to refer him to a different psychiatrist, which resulted in his psychological injuries.
Case File
On December 30, 2018, a 20-year-old male presented as a new patient to a psychiatrist. The psychiatrist recommended treatment two times per week and prescribed medications for depression and anxiety. Early in the third week of treatment, the patient stood, grasped his erect penis through his clothing, and announced his state of sexual arousal caused by the psychiatrist. She admonished him and told him his behavior was unacceptable. The next week, at the end of the session, the patient pulled the psychiatrist into an embrace and explained he was feeling an overwhelming sexual attraction to her. The psychiatrist immediately pulled away, admonished the patient, and obtained agreement from him to refrain from sexual innuendo or physical contact in the future.
However, two weeks later, the patient challenged the psychiatrist to stop him from removing all his clothing and started to undress. In response, the psychiatrist advised she would call building security if the patient followed through on his threat. The patient then threw a vase in the psychiatrist’s direction, screamed he never wanted to see her again, and left her office. After this episode, the psychiatrist assumed the patient had terminated the therapeutic relationship; however, she sent him a letter inviting him to resume treatment. He accepted.
Although she set behavioral boundaries, shortly after resuming treatment the patient’s provocative and hostile behavior escalated. Within a couple of weeks, he self-terminated treatment. His hostility was focused on the psychiatrist’s lack of responsiveness to his daily emails and voice mail messages, which included combinations of angry, lovelorn, apologetic, and sexually suggestive statements. For the next five months, the patient would engage in therapy for a few weeks, self-terminate the therapeutic relationship, then return after about a week. At every first appointment following the terminations, the physician attempted to set patient behavioral boundaries.
On November 15, 2019, the psychiatrist finally concluded the patient would be better served by a different psychiatrist. She sent the patient a letter terminating treatment, in which she listed the disruptive events, numerous self-terminations, and the patient’s inability to control his impulses over the past year. After another month of emails and phone messages, the patient sent the physician a letter detailing his grievances and requesting his treatment records. The psychiatrist responded with an email describing how the grievances were unfounded or based on a false narrative. This resulted in a barrage of hostile emails and letters from the patient. The psychiatrist reported the matter to her insurance carrier, as it appeared the patient was contemplating filing a lawsuit, which he did 10 days later.
The patient’s complaint alleged the psychiatrist had violated the standard of care in various ways, including:
- Making sexually suggestive remarks
- Using a counseling method that would encourage the plaintiff to develop an unhealthy psychological dependence on her
- Failing to explain and provide treatment for the “transference” that occurred during therapy
- Failing to refer the patient to a different psychiatrist in a timely manner
Discussion
The defense of this case was complicated by the psychiatrist’s limited contemporaneous medical record documentation of the details of the patient’s disruptive behavior. In contrast, the patient created a contemporaneous narrative through extensive correspondence, which, although false, was detailed and consistent with the allegations in the lawsuit.
The psychiatrist and patient had significantly different memories of what had occurred during treatment. According to the patient, he legitimately concluded the psychiatrist was interested in a romantic liaison because she went out of her way to be flirtatious and seductive, in addition to frequently complimenting his fitness and beauty. He admitted to grabbing his erect penis and embracing the psychiatrist. However, he described his actions as flirtatious and appropriately responsive to the psychiatrist’s provocations. He reported being completely unprepared for the psychiatrist’s threat to call building security in response to his “teasing” about removing his clothing. He felt victimized and abandoned when the psychiatrist “turned on him.” Later, when he reviewed his psychiatric records, he became angry at the unappealing way the psychiatrist had characterized him. The psychiatrist testified that the patient’s behavior occurred with no provocation on her part. She repeatedly told the patient to stop his flirtatious and eroticized behavior and advised him that his behavior was an inappropriate distraction that was counterproductive to therapy.
Standard of care reviews were positive. However, experts questioned whether the patient could fully benefit from treatment with the number of terminations and reinstatements of treatment. The psychiatrist also admitted to defense team members that she should have terminated treatment earlier, both for the patient’s and her own well-being.
Although the psychiatrist’s documentation in the patient record was sparse, on numerous occasions she defended herself against the patient’s allegations in correspondence to him. Extensive written responses to dissatisfied patients usually end up in the hands of an attorney and, if legal action takes place, they can complicate the defense. It is particularly important to cease communications with the patient following termination of treatment, as the relationship can be reinstated if medical advice continues to be given. In this case, once she contacted her insurer, the psychiatrist was advised to refer any further correspondence from the patient to her assigned defense counsel. Defense counsel ultimately obtained a cease-and-desist order to stop the patient’s harassing letters, emails, and voice mail messages.
Risk Reduction Strategies: Rehabilitation of Disruptive Patients
Preparation is the key to successfully addressing disruptive patients. Setting expectations for patient behavior at the beginning of the physician-patient relationship can signal to patients that disruptive behavior will not be tolerated. However, in many cases, giving patients a “second chance” pursuant to an office policy and protocol can be appropriate. Ideally, intervention with a disruptive patient should occur early, before problems escalate. If rehabilitation fails, the patient’s record should contain a sound basis for their termination. Consider the following strategies:
Clinicians
- Start behavioral rehabilitation with a patient meeting during which you can explain your expectations.
- Clearly identify the patient’s inappropriate behavior.
- Explain why the identified behavior is not acceptable according to office policy.
- Describe your expectations for future interactions with the patient and the consequences of the patient’s failure to meet expectations.
- Create a warning letter or patient behavior agreement that memorializes the expectations and patient agreement.
- Give the patient an opportunity to ask questions and clarify terminology.
- Have the patient sign and date the agreement and provide the patient with a copy.
- Identify the consequences of breaching the agreement (e.g., termination).
- Document the details of the rehabilitation encounter in the patient’s medical record, including whether the patient has accepted or rejected the rehabilitation plan.
- Communicate the rehabilitation plan and expectations to staff, along with clear directions about how non-compliant behavior should be handled and documented.
- When appropriate (e.g., when a patient exhibits sexual attraction to you) transfer the patient to a different clinician.
- Document the patient’s progress with rehabilitation compliance or failure.
- Terminate the patient when appropriate (e.g., when the physician-patient therapeutic relationship has been irreparably damaged, when the patient’s behavior threatens your well-being, when the patient sexually harasses you).
Operations
- Inform patients and visitors of behavioral expectations in waiting room placards and handouts, patient rights and responsibilities statements, or practice brochures.
- The notice should outline the types of behavior expected and the types of behavior for which the office has a zero-tolerance policy, including patient-initiated sexual harassment. It should also describe the use of behavioral agreements or behavioral warning protocols, and that patients may be terminated from treatment for disruptive conduct.
- Include a “Patient Rights and Responsibilities” section.
- “Patient Rights” might include the right to respectful and courteous care, the right to receive answers to clinical questions in a way they can understand, and the right to privacy and confidentiality.
- “Patient Responsibilities” can address treating physicians, healthcare professionals, staff, and other patients with courtesy and respect.
- Create behavioral rehabilitation policies and protocols, including warnings or behavior agreement protocols, and termination policies.
- Intervene early, before problems escalate.
- Provide algorithms6 to simplify decision-making and ensure safety.
- Establish the number of times the patient will receive warnings prior to violating a behavior agreement.
- Train staff on patient behavioral policies and protocols.
Patient Behavior Tools
Viglianti, et al.: Decision-guiding algorithm for physicians who experience patient-initiated sexual harassment and abuse
An algorithm to guide clinicians in balancing their obligation to provide effective and appropriate care with their need to work in a safe and respectful environment
Regions Hospital: “Patient and Care Team Partnership Agreement
A sample document setting out patient behavior expectations and the results for not meeting them
HealthPoint: “Patient Warning Letter #2”
A sample form letter used to warn patients that their failure to comply with behavioral rules has put them at risk of being terminated
Termination of Treatment Resources
ProAssurance: Terminating the Physician-Patient Relationship
Two Minutes: What’s the Risk? video addressing key considerations for deciding to end a patient relationship
ProAssurance: Withdrawal from Care or Termination Letter*
Sample termination letter appropriate for adaptation
NORCAL Group: Termination of the Physician-Patient Relationship: Breaking Up Is Hard To Do*
Claims Rx article presenting case studies and risk reduction strategies associated with termination of treatment
* Available along with many other Risk Management resource documents and past editions of Claims Rx in the policyholder portal or by policyholder request at 855.882.3412.
References
1. The Joint Commission. Workplace Violence Prevention Standards. R3 Report. Issue 30. June 18, 2021. [PDF]
2. “Duties of Employers and Employees.” 29 U.S.C. § 654(a)(1).
3. Eliza Notaro, et al. “Sexual Harassment from Patient to Provider.” International Journal of Women’s Dermatology. 2019; 6(1): 30-31. DOI: 10.1016/j.ijwd.2019.09.001
4. Jeffrey L. Jackson, et al. “Gender Differences in the Prevalence and Experience of Sexual Harassment of Internal Medicine Providers by Patients.” Journal of general Internal Medicine. 2021; 36(11): 3598-3600. DOI: 10.1007/s11606-020-06473-y
5. American Medical Association. “Sexual Harassment in the Practice of Medicine.” Code of Medical Ethics: Opinion 9.1.3.
6. Edward R. Jones, Richard S. Goldman. “Managing Disruptive Behavior by Patients and Physicians: A Responsibility of the Dialysis Facility Medical Director.” Clinical Journal of the American Society of Nephrology. 2015; 10(8): 1470-1475. DOI: 10.2215/CJN.05220514
