Lawsuit leads clinic to drop patient, family

A column analyzing the impact of recent court decisions on physicians

By — Posted Dec. 10, 2007.

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When a jury in Sedgwick County, Kan., held a physician at a Wichita clinic liable for medical malpractice last fall and awarded the plaintiff more than $140,000 in damages, the Wichita Eagle covered the story.

But the article's focus wasn't the malpractice award. Instead, the newspaper focused on the letter the Wichita Clinic mailed the plaintiff, Wichita police officer Karie Zimmer, shortly after she filed the lawsuit in 2005.

The letter served as notice that, because of the lawsuit, the clinic was severing the relationship between the more than 100 physicians in the practice and Zimmer and her immediate family.

Indeed, the clinic's chief medical officer, Robert Kenegy, MD, told the Wichita Eagle that other patients also find their relationships with the clinic severed after suing one of its doctors.

Dr. Kenegy did not return phone calls from AMNews seeking comment.

Legal experts agreed that it is not common practice for entire groups of doctors to refuse to treat plaintiffs' families following a lawsuit filing. But while it may not seem "fair" to patients, there is nothing in the law that forbids it.

"Given the law as I know it to be, a physician can treat whoever they want and stop treating whoever they want, as long as proper steps are taken for continuity of care," said Miles Zaremski, a health care attorney and partner of Zaremski Law Group in suburban Chicago.

Zaremski acknowledged that emotions often run high in situations involving legal action, but he said the Wichita Clinic's actions, while leaving a bad taste in the mouth of some patients and physicians alike, are analogous to several other situations in which a physician may terminate a relationship with a patient under less volatile conditions.

For example, he said, a physician can stop treating patients who don't stop smoking after being told they need to quit. In Oregon -- a state where the practice of physician-assisted suicide is legal -- a physician who does not believe in assisted suicide can refuse to treat patients who request the doctor's help in committing suicide.

Zaremski said a health insurance provider could forbid a physician from dropping a patient for any reason or for certain reasons as part of its contract terms. Under such terms, the physician would be breaching the contract by refusing to treat that patient following the filing of a medical malpractice lawsuit.

He said, however, that he has never seen that language in contracts, which instead deal mainly with payment terms.

Treatment refusal not common

Neither Zaremski nor Harrison Pledger, a Virginia attorney who defends physicians, have represented clients who refused to treat a patient's family members after becoming a defendant in the patient's lawsuit.

"Doctors are looking for patients all the time," Zaremski said. "A settlement or a verdict usually is not enough of a reason for dropping patients."

Plaintiff attorney Janice Mulligan, who handles only catastrophic cases, also said none of her clients had experienced such a refusal. But, she said, that may be because she usually helps her clients and their families find new doctors and medical groups before suing their existing physicians.

Via e-mail, she said she finds it surprising that physicians would stop seeing a patient who sues or stop seeing that patient's family.

"There are many meritorious cases where the patient's life is ruined and they have no choice but to file a lawsuit to seek compensation for lost wages and lifelong disability," said Mulligan, of the San Diego law firm Mulligan and Banham. "To punish them or their families by withholding care is cruel."

But she acknowledged that outside of patient "dumping" laws, physicians legally can refuse to treat a patient as long as they follow the proper steps to withdraw care.

Obligation to find care

According to American Medical Association policy on terminating the physician-patient relationship, physicians do have an obligation to support continuity of care for their patients. They have the option of withdrawing, but they cannot do so without letting the patient or any of the patient's relatives responsible for care know far enough in advance so there is time to find another physician.

Medical ethicists say it is not unethical for a physician to choose not to treat a patient or an attorney who sued that physician. But they are generally uncomfortable with blanket denial of care. Anytime a doctor bases a decision not to treat someone on a factor that person cannot control -- such as skin color or who they are related to -- they are practicing invidious discrimination, and that, they said, is unethical.

That being said, neither Zaremski nor Pledger would advise their physician clients to terminate care as a first step after a lawsuit. Pledger said that action is unlikely to decrease a practice's medical liability insurance rates.

"I can understand that doctors, if they've been sued, could be a little skittish about treating other family members," said Pledger, a past member of the American Bar Assn.'s Medical Professional Liability Committee. "You'd wonder if their family members were there for some reason other than medical care."

For obvious reasons, most patients don't return to a physician they have filed a lawsuit against. Pledger said he would tell his client to wait and see if a family member of that patient makes an appointment. If one does, he said, the question is whether there would be a conflict in treating that person.

"If you are an ob-gyn and the pregnant sister or sister-in-law of a plaintiff comes in, there is the possibility of a conflict," Pledger said. There, he said, refusing to take on that patient certainly would be understandable.

Zaremski noted that the article in the Wichita Eagle is the perfect example of the No. 1 reason for not refusing to treat a plaintiff's family members: bad publicity.

"You have to ask yourself, is the bad PR really worth it," he said. "The answer would be no unless you are just overloaded with patients."

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