Malpractice Consult

Lee J. Johnson, JD

Answers to your questions

Who takes call when a doctor leaves the practice?

Q: A patient at the ED asked to see a former associate who'd left town—and our practice—a month earlier. The hospital called me, instead, but I refused the call.

Hospital officials contacted me later to say I should have taken it. They added that if we won't accept call for this doctor's patients, we need to send them certified letters terminating any relationship, and forward copies to the hospital's lawyer. Is this necessary? Do my partners and I have a physician-patient relationship with someone who'd seen a former associate of our group?

A: You may indeed. I agree with the hospital that you probably should have taken the call, or at least asked about how the patient would be treated. If the patient was in the middle of treatment with your former associate and nobody made arrangements for continuity of care, the patient could sue not only that doctor and the hospital, but you and your group for abandonment.

What's more, your group could be open to a claim for failure to diagnose if your former associate hadn't arranged for follow-up care and your group didn't follow up on outstanding lab, X-ray reports, consultant reports, or subsequent visits that might have been needed.

The legal issue is duty. Where the liability will ultimately fall can be tricky.

The patient may assume that he still has a relationship with your group. And absent a certified letter to the contrary, a court may find that he's right. The main evidence the court will consider to establish who has a duty to the patient will be the employment or partnership agreement. Ideally, it should specify who'll treat patients when a doctor leaves the group.

Other factors a court would consider: Who made the appointments? Who did the billing? Who maintains the patient's records? If the group handled these matters, then it may be the group that has an obligation to the patient.

On the other hand, if the departing physician sent the patient a letter welcoming him to the new location and has the patient's records, then he's probably the doctor with the duty.

If the group doesn't want to inherit the duty to the patient, then send him a certified letter, return receipt requested, terminating the relationship and asking him to complete and sign an attached form indicating where he wants his records sent. Give a copy of the letter to the hospital and the director of the ED to avoid any further confusion.

In the future, if the ED calls, find out exactly for whom the patient is asking. Did he ask for your former associate by name? If so, have someone ask the patient if he has another choice before assigning him to the on-call list. So if the on-call physician is already there and the patient is satisfied with him, there's no obligation for you or your group to get to the ED. On the other hand, if the patient asks for your group by name, you probably have a duty to him.

Remember that even if you send the patient a termination letter, you still have to treat emergencies until the time of termination is reached, usually about 60 days. So ED call could still belong to your group, like it or not.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

Lee Johnson. Malpractice Consult.

Medical Economics

2002;18:76.