Open Bar: The Difficult Patient Dilemma: Legal Requirements for Discharge and Responding to Demands

Question: When is it time to discharge a difficult patient and what documentation must you provide?

Response: One of the most common risk management questions we receive is how to handle difficult patients.

How difficult do the patients have to be to decide to discharge them, and what is a provider/office required to do in response to a patient’s demands for reports, policies, explanations and apologies? The decision to discharge a patient lies with the treating provider and his or her office/staff and whether they feel they can continue to provide appropriate care. If the answer to that question is no, then discharge is appropriate, if otherwise permissible.

In some situations, a provider may not be able to discharge a patient from care. Examples include patients who need emergent or urgent care, patients who are in the third trimester of pregnancy, or those who require continuous follow up care that will be difficult to obtain from another provider in that area. Further, if the patient belongs to an HMO, a provider must first confirm whether their HMO contract allows them to discharge the patient. 

The key to proper discharge/termination of professional services is accurate, factual and complete documentation in the medical record, including notes of all telephone conversations with the provider and/or office staff, letters/emails sent by the patient and/or parent and portal messages. All triage/phone/portal/email notes should be dated and include both the names of the parties speaking/writing and the gist of statements made by those parties. 

A related issue that comes up often, especially in pediatrics, is when a patient and/or a parent or parental representative makes demands on a practice. A practice and/or provider is not required to provide a patient with written responses, explanations, reports, or the policies of the practice. A provider *is* required to provide (1) copies of a patient’s medical records and (2) a notice of their privacy practices.^[1] In those limited situations where a minor consents for him or herself, the provider must give notice to the minor and make a good faith effort to obtain the minor’s acknowledgement of the notice.

However, some patients, and particularly parents of pediatric patients, demand not only changes to the medical records, but also explanations of what happened, copies of reports or policies, and/or assurances of future behavior from staff. A practice is *not* required to provide anything beyond what is required by law.^[2] Best practices require investigation and appropriate documentation of a complaint. A written response to a complaint should always be concise and straightforward, and a copy kept in the patient’s medical record. 

A provider, however, is not obligated to draft a document or produce a written explanation after a parent complaint (excluding hospitals^[3]).^[4] A provider is *not* obligated to provide a parent with an explanation or a policy/report that is outside of the medical record.^[5]  And while physicians, nurse practitioners and physician assistants do have legally mandated training related to child abuse, infection control, prescriber education and other topics^[6], providers do *not have a responsibility to provide training above what is required by state and federal law simply because a parent or patient demands it.^[7]

Likewise, when a patient or parent demands that a provider amend a medical record, he/she is not obligated to do so. Ask that the request be submitted in writing.^[1] A provider is then required to review the medical record and decide whether the record should be amended. We recommend that if a provider denies the request, outline in writing the reasons for denial and include how to appeal the decision.^[2] A provider must advise the patient that they can file a complaint with the Patient Access Coordinator, OPMC, or the New York State Office of Civil Rights.^[3] Additionally, both the request by the patient and the response by the provider must be included in the medical record.^[4]

It can be difficult to know how to respond when a patient and/or a parent makes a complaint and specific demands on your practice. Please contact a MLMIC attorney if you are dealing with a situation like this and are not sure how to proceed.

MLMIC policyholders can reach out to our healthcare attorneys for questions about handling difficult patients or any other healthcare law inquiries by calling (877) 426-9555 Monday-Friday, 8 a.m.-6 p.m. or by email here.

Our 24/7 hotline is also available for urgent matters after hours at (877) 426-9555 or by emailing hotline@tmglawny.com.

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This document is for general purposes only and should not be construed as medical, dental or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical, dental or professional obligations, the applicable state or federal laws or other professional questions.

^[1] See Public Health Law § 2803

^[1] 45 CFR §164.501; see https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html#:~:text=Thus%2C%20individuals%20have%20a%20right,in%20the%20designated%20record%20set.

^[1] 45 CFR §164.501.

^[1] This is not an exhaustive list and requires compliance outside the guidance listed here.

^[1] See NYS Licensed Professionals at https://www.op.nysed.gov/professions-index.

^[1] 45 CFR §164.524; Public Health Law §18(8).

^[1] https://www.health.ny.gov/professionals/patients/patient_rights/access_to_patient_information.htm

^[1] Id.

^[1] Public Health Law §18(8).