Written by Donnaline Richman, Esq., and Marilyn Schatz, Esq., of the MLMIC Legal Department and Kathleen Harth of MLMIC Insurance Company, this was originally printed in our Fourth Quarter 2022 issue of The Scope: Medical Edition.
In almost every physician’s practice, there are difficult patients. There is no simple solution for resolving the problems these patients present because each situation is unique. This first installment of “How to Effectively Treat the Difficult Patient” will attempt to describe some of the more common situations and provide recommendations for treating such patients.
Patients 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, and, as pain is often subjective, 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. Before the physician prescribes narcotics, he/she must check the I-STOP registry, which will tell the physician if the patient has a history of seeking narcotics from multiple providers and if a narcotic has already been prescribed by another provider.
If it is contemplated that a patient is going to 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 if a patient fails to adhere to the agreement. Consequences could include discontinuing the prescription for narcotics, requiring 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 or symptoms of pain are manifested.
Obvious signs of substance abuse include: (1) the physician learning that the patient has been obtaining narcotics from multiple sources; (2) the patient making frequent visits to an emergency department or another covering physician to seek narcotics; and (3) 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 some 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.
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 narcotics, the physician must contact the New York State Department of Health Bureau of Narcotic Enforcement (BNE) and notify it of that information.2 The physician may also consider discharging the patient from care. 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. In addition, 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 MLMIC.
Patients or Family Members Who Are Rude, Hostile, Abusive, or Threatening
Some patients, or their family members, have a low flash point. If they are given bad news or are 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 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,3 disorderly conduct,4 harassment,5 aggravated harassment,6 stalking7 and menacing.8 Law enforcement authorities should also be immediately notified of any criminal conduct that takes place on the premises, or of any criminal acts that are 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 are filed, the physician and/or staff member may even request that the court issue an Order of Protection, which mandates that the patient refrain from menacing conduct, or that the patient stay away from the protected individual’s home or office. 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, or to the local medical society for the name of other providers.
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, and it should be documented. Often, this will achieve the desired result. If such a discussion with the patient is not an option, then the patient should be seen for the immediate condition and then discharged. The physician/practice 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.
The Noncompliant Patient
Noncompliant patients are some of the most difficult patients a physician may encounter. Some of these patients fail to comply with recommendations for treatment, testing and referrals. Others routinely fail to keep appointments. Although noncompliant patients may be nice individuals, they can be extremely risky to a 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.9 If the noncompliance persists, he/she should be discharged from care. Although patients legally have the right to refuse treatment, the physician also has the right to discharge the patient for noncompliance. The reason for discharge must be thoroughly documented, both in the patient’s record and in the discharge letter, as noncompliance with recommendations for care and treatment.
In summary, all patients, even difficult ones, must be evaluated and treated by their physician until and unless they have been formally discharged from care.
In the next installment of How to Effectively Treat the Difficult Patient, we will examine patients who fail to pay bills, the intoxicated/impaired patient and patients who lack capacity, as well as discuss the proper way to discharge a patient from care.
1. A sample pain management agreement is available from the MLMIC Legal Department.
2. Public Health Law 3372. The telephone number for BNE is (518) 402-0709
3. Trespass is defined as knowingly entering or remaining unlawfully in or upon premises. Penal Law 140.05
4. 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 5. Harassment is defined as following a person in or around a public place or engaging in a course of conduct or committing acts that place a person in reasonable fear of physical injury. Penal Law 240.25
6. 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
7. 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 harm to physical health, safety, or property, mental or emotional health, and threats to the person’s employment, business, or career. Penal Law 120.45
8. 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
9. When a physician sends a letter containing critical information to a patient’s address, it is recommended that the letter be sent by first-class mail with a certificate of mailing purchased from the Post Office. As long as this letter is not returned as undeliverable, it may be presumed that it was received.
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