Should You Screen for and Turn Away Patients Who Might Sue?

Debra A. Shute

March 09, 2020

An Ob/GYN in California had an unblemished record until an incident with a female patient who had often been surly and frequently complained. When the woman gave birth, the physician delivered the baby, who was born with a birth defect. Although there was no evidence that the physician was responsible, the patient sued.

Being named in one or more liability claims during one's career is an expected occupational hazard of practicing medicine in the United States. It's no wonder that physicians are looking for ways to prevent that, including trying to ferret out patients more likely to sue.

Can You Screen for Patients Who Are Lawsuit Risks?

"Patients can self-select their doctors, and it's important, to some degree, for physicians to self-select patients," said Joseph Scherger, MD, MPH, former vice president of primary care and academic affairs at Eisenhower Medical Center in Rancho Mirage, California.

In general, office-based physicians are not obligated to treat anyone who crosses their threshold. The American Medical Association's Principles of Medical Ethics state, "Physicians are not ethically required to accept all prospective patients." The AMA adds: "Physicians should be thoughtful in exercising their right to choose whom to serve."

Scherger cautions against taking this ability to the extreme. "I'm not a person who would ever encourage the attitude that patients are out to sue you. It doesn't make for very good patient-centered care and patient-centered thinking," he said. "I often counsel doctors to make sure they're taking care of the people they enjoy taking care of."

Because the stakes are so high — financially, psychologically, and career-wise — many physicians attempt to protect themselves by screening out patients prone to filing lawsuits. In fact, Medscape's Malpractice Report 2019 revealed that 14% of respondents who had been sued said that, in retrospect, the one thing they would have done differently was to not take such patients in the first place.

Some physicians and attorneys advocate interviewing prospective patients for fit generally and for risk in particular. Still, fewer believe that a doctor can dodge this proverbial bullet through screening alone.

"It's a tough topic because everyone wants to avoid the patient who is the landmine," said Michael Sacopulos, JD, CEO of the Medical Risk Institute, who also serves as general counsel for Medical Justice Services. "But of course, physicians spend their whole education and career trying to help people. The idea of turning someone away isn't very pleasant to most physicians. But then neither is a lawsuit," he said.

The idea of turning someone away isn't very pleasant to most physicians. But then neither is a lawsuit. Michael Sacopulos, JD

It is useful to focus on a prospective patient's behavior, Sacopulos said, especially behavior toward staff. "I've had a front row seat on hundreds and hundreds of medical malpractice cases," he said. "I can't tell you how many times I've heard physicians say that when the paperwork arrives, the staff isn't surprised."

His theory about why physicians aren't clued in sooner is that patients tend to conduct themselves better in front of doctors and that they reveal their truer or less inhibited personalities around employees. Therefore, practices need mechanisms to hear staff concerns right away.

"Patients are more likely to make a [negative] comment to a staff member than they would be to a physician, which may offer an insight into something that's bothering the patient," Sacopulos said. "If we can address it at that point, everybody's going to be way better off."

Potential Red Flags to Watch

Over the course of a 27-year career practicing internal and emergency medicine, Marie Bradshaw, MD, had never been sued as a physician. In part, she credits her long run without legal woes to interviewing all potential patients before agreeing to become their primary care physician. Although there is no fail-safe way to identify a patient who is highly likely to sue, she says it can be helpful to consider the following factors:

  • How many physicians the patient has recently seen. A key question to ask potential patients is how many physicians in that specialty they've seen within the past 1 to 2 years. If the answer is two or more, that's a prompt to find out more about who terminated the relationships and why. "It raises the question of whether they're doctor shopping," Bradshaw said.

  • Whether the patient has had problems with other doctors or practices. Bradshaw also asks patients whether they've ever "had an issue" with another physician. This question not only probes into whether an individual has sued, but it is also a jumping-off point to discuss whether a potential doctor-patient relationship would be a good fit.

    Most of this information can be acquired by taking a complete medical history, Scherger noted. "It should be done in the context of you trying to see if it's realistic for you to be the doctor the patient wants, not in the context that you're screening someone as a potential litigant," he added.

  • Attitude toward the practice's conditions for treatment. If a patient balks at or refuses to sign an agreement, it's not a good start. "If they're not willing to follow the rules of the road from the outset, the patient may become problematic as time goes on," said Richard Cahill, MD, vice president and associate general counsel with malpractice insurer The Doctors Company.

  • Compliance with clinical recommendations. Similar practice disqualifiers include refusal to follow recommended guidelines for health screenings, such as colonoscopy or mammography. "When we're paid for performance, it behooves me to spend my time on patients who are willing to do what I ask, not somebody who's noncompliant and who is not going to listen," Bradshaw said.

  • Consideration shown toward practice and its staff. Rudeness to anyone in the practice is a red flag; any hint of violence is a deal-breaker. "Practices must set forth the expectations regarding patient behavior and indicate zero tolerance for any type of violence in any portion of the practice, including the waiting room, exam rooms, hallways, or otherwise," said Cahill.

  • Communication and intuition. "Generally, if you don't feel like you have a good rapport or communication with someone, that's when trouble can brew," Sacopulos said. "If you feel like that's not going well, maybe that's not the patient for you and you're not the physician for that patient," he added.

Most of this information can be acquired by taking a complete medical history, Scherger noted. "It should be done in the context of you trying to see if it's realistic for you to be the doctor the patient wants, not in the context that you're screening someone as a potential litigant," he added.

What to Put in Writing

Practices can take advantage of the fact that patients often research doctors in advance, so physicians can use their websites and marketing materials to guide patients, said Cahill.

"Physicians should early in their careers — or if they're changing their type of practice — create a mission statement and post it clearly on their website, so that those seeking medical attention from them will have a clear understanding of what the practice does," Cahill said. As a result, fewer people who look into the practice will expect care outside the scope of the group's mission.

For example, a growing number of primary care practices now refer patients whose chief problem is chronic pain, Cahill noted. Similarly, some rural pediatric practices may decline to handle certain complex conditions or cases.

In addition to providing such transparency, practices should put in writing their conditions for treatment, setting forth clear expectations for patients who belong to the practice, according to Cahill. This document may include rules and policies regarding appointment cancellation/rescheduling, payment and billing, adherence to clinical recommendations, and possibly standards for family participation in care.

Bradshaw, who is facing a lawsuit filed by an emergency department patient's spouse, whom she never met, has learned the importance of regularly engaging with family members of patients in her practice. "A lot of times when taking care of patients, you'll never, ever see a family member. And then something goes wrong, and all of a sudden you're getting a 180-day letter," she said.

Cahill advised that practices post a disclaimer on their websites stating that an individual who is seeking care with the practice is not considered a patient until the person has been been advised in writing that the individual has been accepted. Although it's rare that a practice follows this process, Cahill recommended that physicians take their risk management even further.

"For example, it should say that sending billing materials, insurance information, completing a health questionnaire, or even making an appointment with the physician does not equal a doctor-patient relationship," he said. What's more, practices should return any documents provided or completed by patients who are not accepted into the practice, Cahill said.

Risks and Caveats

Without exception, physicians must follow state and federal laws about turning away and discharging patients. Failure to do so, according to Cahill, can result in a complaint to a federal or state agency that a statute such as the Civil Rights Act or the Americans With Disabilities Act has been violated. Such a complaint would then lead to an investigation by the Office of Civil Rights or the state attorney general's office.

There's also a risk that a rejected patient could complain to a medical board that he or she was not treated properly. "And medical boards very proactively investigate those," Cahill said. Documentation proving that a physician-patient relationship did not commence, such as a written letter, makes any basis for a malpractice action impossible, he noted. "In a malpractice action, you have to establish that there was a duty owed — and that only attaches if there's a doctor-patient relationship."

When it comes to discharging existing patients, it's crucial to avoid patient abandonment by giving written 30-day notice and not terminating a patient during a critical stage of treatment. "In the event that abandonment is found, then the question is, to reasonable medical probability, if the abandonment caused some compensable injury to the patient," Cahill said.

Even trickier than navigating legal ramifications is the question of whether prescreening patients for litigiousness is very effective. After all, Medscape's 2019 report also showed that the vast majority (86%) of physicians who've been sued never saw it coming.

"I know people want a bright-line litmus test, but such tests are few and far between when it comes to picking out patients," Sacopulos said.

Debra A. Shute is a freelance writer in Marblehead, Massachusetts

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