In this episode, Brad and Michael are joined by partner Jeff Segal, MD, JD. They discuss the legal and ethical dilemmas physicians face when personal conflicts intersect with patient care. Explore when doctors can legally terminate a patient relationship, when patient abandonment laws kick in, and strategies to manage unwanted patients while maintaining professionalism. Tune in for insights to help you confidently navigate complex patient relationships and protect your practice.
Listen to the full episode using the player below, or by visiting one of the links below. Contact ByrdAdatto if you have any questions or would like to learn more.
Transcript
*The below transcript has been edited for readability.
Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues simplified through real client stories and real world experiences, creating simplicity in 3, 2, 1.
Brad: Welcome back to another episode of Legal 123s with ByrdAdatto. I’m your host, Brad Adatto, my co-host, Michael Byrd.
Michael: As a business and health care law firm, we meet a lot of interesting people and learn their amazing stories. This season’s theme, Brad, is Compliance Fundamentals, so pay attention. We’ll take real client stories, of course, we’ll scrub their names, and these stories will be built around navigating compliance obstacles and the business of health care.
Brad: That’s so awesome. We’ll be hitting compliance a lot since it’s a whole season worth of compliance. What does that even really mean, Michael?
Michael: Well, it’s a broad word, and it’s kind of a blanket word used to describe all the state and federal laws that govern the practice of medicine or other health care practices. As we’ve talked about, health care is [00:01:00] one of the most heavily regulated industries in the United States. And so, compliance means that you’re running your practice consistent with these various laws.
Brad: That’s awesome. Well, well said, Michael. It’s almost like you’ve said it before. And before we bring on today’s guests, I want to ask you, do you know what the worst part of being outside is?
Michael: Well, for you, it’s probably getting sunburned, I’m guessing. For me it’s definitely has to be mosquitoes. They are no joke in Texas.
Brad: Yes. The sun does not love me. I go from pale white to bright red within minutes, and the mosquitoes do love me too. So I don’t know if that’s good or bad, but actually the correct answer is for everyone as to why going outside is bad is stepping on gum. Like, the feeling when your shoe just sinks right into it, it kind of feels like almost like you’re stepping some quick sand.
Michael: Yea, it’s bad.
Brad: And it always feels like it’s like some type of prehistoric piece of gum that’s been sitting there for ages. And I half expect sometimes to see like a little dinosaur fossil in it. But how could all these other [00:02:00] people walk past it and the gum just decides to take a ride on my shoe?
Michael: Well, I will agree with you, that’s really bad – worst thing ever. I would submit to you the dog poop. Yeah. Yeah. Is something to be compared to stepping in that. But either way, I guess you have a mess on your shoes that you don’t want to touch to clean off.
Brad: Yeah. And you get stuck and you start walking around the stickier minor of maybe like, your poor choices in life. Like, your shoe is just wearing the badge of shame that says gum on it.
Michael: Okay. You’re taking it a little bit far right now, but I do think you’ve kind of coined your new band name, Badge of Shame.
Brad: I like that one actually. And it reminds me of the old urban myth when we were little – if you swallow gum, it stays in your stomach for like seven to 10 years.
Michael: Let’s pause that. We have a doctor that’s going to be a guest when we bring him on. I want to find that out because I don’t know if it’s true, but it has prevented me from swallowing gum most of my life. And the few times I have swallowed gum, I’ve had that low level of anxiety of like, [00:03:00] this is going to be with me for seven years. So anyway, where are you going with all this gum talk?
Brad: Well, besides the fact I recently did step in some gum and had to do like the gum off my shoe dance thing. So when I was preparing today, it remind me of another seriously sticky situation where our clients are faced with all too often is what do they do with a bad patient?
Michael: Well, number one, I’m sorry that I accidentally dropped that piece of gum in your office that you stepped in. And number two is, I’m glad you fit a perfectly embarrassing dad joke into our episode today.
Brad: First off, it was handcrafted.
Michael: Gluten-Free?
Brad: Gluten-Free, yeah. When gum gets stuck to your shoe, I mean, you eventually can dance your way to your freedom, right? As you kind of said. But it’s a lot trickier to dance out of treating your patients.
Michael: Oh my goodness. Please stop. I mean, I’m actually blushing. I’m embarrassed for you right now. Let’s get into today’s story. [00:04:00]
Brad: All right. So before we bring on our guests, I’m going to set up two stories. These are either urban legends also, or potentially real stories that maybe our partner, Jeff Segal, may have come across.
Michael: Okay. Well, as you alluded to, Jeff will join us in the second half of this podcast we’ll get to the bottom of this gum answer, and more importantly, get to the bottom of these stories that he may or may not be very familiar with. So, Brad please get on with your first story.
Brad: So the first story, Michael, is this doctor, we’ll just call him Dr. Double Bubble, who got a consult in the emergency room with a patient with a fracture. We’ll call this patient Mr. Extra. And so Dr. Double Bubble put Mr. Extra in a splint, sent him home, you know, nothing really interesting at this point.
Michael: Well, you really stretching yourself with your creativity on your names there today, but we’ll move forward. Okay. what happened next?
Brad: All right. The next day, Mr. Extra shows up at [00:05:00] Dr. Bubble Double Bubble’s office for a follow-up. The doctor determined the patient will need surgery. So Dr. Double Bubble tells Mr. Extra to wait in another side waiting room while his team starts scheduling the operation.
Michael: Well, you do know that there needs to be something kind of non-standard to these stories. This is sounding pretty much down the fairway so far.
Brad: But here’s where it gets a little interesting. While Mr. Extra is waiting, he notice this nice piece of art on a table. He looks around, sees it, he’s all alone, and then he just stuffs the artwork into his backpack.
Michael: Is that frowned upon in this practice? Stealing artwork?
Brad: Yeah. Yeah, it is.
Michael: Okay. He actually stole it?
Brad: Yeah. And then the scheduler comes back to the room. They agree on a surgery date, and Mr. Extra leaves the office as if nothing happened. What Mr. Extra didn’t know is in that side waiting room, they had a video camera in it, and the whole thing was captured on video.
Michael: Oh, wow. Okay. Well tell me more.
Brad: [00:06:00] Okay. And some people might be saying, you know, is there a HIPAA issue here? But for today’s show, we’re not going to really focus on that. But generally speaking, cameras are allowed in public settings, like waiting rooms.
Michael: Okay. Did Dr. Double Bubble find out?
Brad: Absolutely. His team saw the video footage and it made it pretty clear what happened. So the doctor gave Mr. Extra a call and tells him that he has evidence of the theft and demands that the artwork be returned within an hour, or he will file a police report.
Michael: Okay. Well, that seems pretty clear. What did Mr. Extra have to say?
Brad: Well, Mr. Extra, he tries to play dumb acting like he has no idea what the doctor’s talking about, but Dr. Double Bubble isn’t buying it, so he goes ahead and actually files the police report.
Michael: Okay, escalation. Here we go. It must have been a nice piece of artwork. Well, you’d think people would be smarter than that, especially with security cameras everywhere these days.
Brad: I know, right? Yeah. It’s surprising how some people think they can do or get away with anything, really.
Michael: Okay. Well, I’m sure the audience like me, [00:07:00] wants to know what happened next for Mr. Extra.
Brad: Okay. But wait, there’s more here. We will analyze and let me get to my next story, and then we’ll bring Jeff on to help with this story and the next one. So this next story has a similar beginning. In this story, we have a new doctor. He name is Dr. Big League, and he’s working a late shift in ER when a patient, Mr. Hubba Bubba comes to in from a car wreck. A patient was stabilized in the ER, but was going to require a follow-up visit.
Michael: Did Mr. Hubba Bubba swallow gum in the car wreck?
Brad: If it could be there for seven more years.
Michael: Now we’re going to get to that seven years? Okay. I really am having a hard time keeping track of who’s who with these gum names, and you’re having a hard time pronouncing them.
Brad: I know we can recap the names later when we bring on Jeff, but like the last story, Dr. Big League decides that the patient will need surgery and his team sets the patient up for surgery.
Michael: Again, it’s pretty normal.
Brad: But in this case, Dr. Big League goes home that night and [00:08:00] learns that Mr. Hubba Bubba slept with Dr. Big League’s wife.
Michael: Wasn’t expecting that. My 13-year-old curiosity wants to know if she was in the car with Mr. Hubba Bubba. And if so, what was the cause of the wreck?
Brad: Fair question, and my 13-year-old brain would like to respond, but I, I know better for that today. But as you can imagine, Dr. Big League is furious and does not want to treat Mr. Hubba Bubba.
Michael: I can relate to that sentiment, and I have to say that’s better than the option door number two, which might be operating and then forgetting to give Mr. Hubba Bubba anesthesia.
Brad: For sure. Right. Now, we have two stories. One with a criminal act and one with probably an immoral act. And the real question now is, do these doctors have to treat these patients?
Michael: Okay, well, let’s go into commercial. And when we come back, we’ll finally bring in our partner, Dr. Jeff Segal, to help us walk through these stories. [00:09:00]
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Brad: Welcome back to Legal 123s with ByrdAdatto. I’m your host, Brad Adatto, with my co-host, Michael Byrd. Now Michael, this season, our theme is Compliance Fundamentals and today we just heard two crazy stories. Before we get started, let’s bring on Jeff.
Michael: Sounds good. And I’m going to give us a recap, but don’t expect me to try to remember all your different gum names because I don’t think I can keep track.
Brad: Dr. Gums and Mr. Gums.
Michael: Yeah, I don’t know. I know in story number one, [00:10:00] we have a patient getting treated in ER, stabilized, comes into the doctor’s office and getting scheduled for surgery, and in the process decides that he really likes a piece of artwork on the wall and sticks it in his backpack and steals it, caught on camera, and we never found out what happened after we know that the doctor filed a police report and kind of escalated things. The second story, doctor stabilizes patient in the ER after a car wreck. We don’t know the cause of the car wreck, and patient again, to be scheduled and kind of out of left field, the doctor discovers that this particular patient has slept with his wife. And so, now we have a moral dilemma that we have [00:11:00] the doctor facing of whether to operate on this particular patient.
Brad: Well done. Why don’t you bring on Jeff.
Michael: All right. That was stressful because those names were hard to keep track of.
Brad: You did great.
Michael: Well, I appreciate the support. So we have on again, this time our friend, our law partner, Dr. Jeff Segal. He is ByrdAdatto’s California Council. He’s licensed in California. He also is a neurosurgeon. He went to medical school at the Baylor College of Medicine in Texas. Probably most importantly, he went to undergrad at the University of Texas in Austin. Hook him. And he is the founder of Medical Justice and [unclear11:45]. He is married to his wife. Shelly, has twins, Josh and Jordan. He is a cyclist, scuba diver, climber, owner of many incredible stories. If they had a board certification in crazy [00:12:00] scenarios and him having dealt with it before, he would be double board certified, and this is his fifth time on our show as a guest. Jeff, welcome.
Jeff: Great. One for each finger. Glad to be here.
Brad: Well, Jeff, I don’t know, Michael just got very nervous about the whole gum thing. You know, as a doctor, if you do swallow the gum, is it going to be with you for seven to 10 years?
Jeff: No, what I would do is if I swallow gum, I would chat with my gastroenterologist, have him do an upper endoscopy, fish it out. Once the Propofol wears off, you’re ready to go.
Brad: That sounds great. I would definitely want Michael to try that first.
Jeff: Remember anesthesia’s a luxury. Be nice to your doctor.
Brad: That’s right. Well, Jeff, that’s perfect. That brings us right into our first story. So again, Mr. Extra took something, a little extra item that he took it home with them, and Dr. Double Bubble [00:13:00] does not want to treat someone who stole from him. So, the question I think the audience, and Michael and I are all wondering here is, does Dr. Double Bubble have to treat that patient who stole from him?
Jeff: That’s a great question. The question hinges on abandonment. If you are in the middle of a treatment plan, you need to continue treating that patient until the doctor-patient relationship is terminated. It could be terminated by the patient being handed off to another doctor who picks up the baton. The patient can say, “Hey, I’m going somewhere else,” and it’s immediately terminated. Or the doctor formally terminates the patient and gives them 30 days to find another doctor, you make records available and you give them the ability to find a new doctor. But if you’re in the middle of a treatment plan, even that 30 day, “Hey, I want to get out,” opportunity may not be available. So I think in this particular situation, and by the way, this is based on a true story. [00:14:00] It wasn’t a piece of artwork because very few doctors that I know actually have artwork in their rooms that aren’t bolted to the walls.
But in this case, it was an iPad that the patient took. They put that iPad in their backpack and took off, and the practice was able to locate that iPad with the Find My Device methodology. And so, he calls the patient and says, bring back the iPad. He goes, “Whoa, wait, what are you talking about?” He said, “I’ve got these screenshot right here. You were just in my office and it’s coming out of, I guess, presumably your backpack.” So he also didn’t bring it back, and they called the police. Same thing. This is the same scenario. I mean, the question is, let’s assume that the patient does come back or wants to continue to be treated, I can tell you that physicians take care of all [00:15:00] sorts of unsavory characters.
Michael: Yeah, that’s all fascinating, and somewhat probably to a lot of people counterintuitive because you think someone steals something from you, and why would I have to continue to treat them? But I like how you kind of anchor this on the patient abandonment laws, which is the law that governs a doctor’s obligations in the circumstance. I want to talk a little bit more – patient abandonment is a state law. Have you noticed Jeff differences in how states apply it or what their requirements are on this kind of general – I would agree with you, my understanding generally of how I think about patient abandonment in line with what you just shared, kind of that 30 day if the doctors terminate the relationship. But I’m curious if you’ve seen nuances across states.
Jeff: Yeah. So I would say that if you do the 30 day window, [00:16:00] let’s say you the doctor want to terminate the relationship, you’re not in the middle of a treatment plan. You generally want to make sure they have enough medication to bridge the gap in that 30 days. You want to demonstrate you’ll make records available to the new doctor, and that you give them a mechanism to find the new doctor, for example, going to the county medical website or to their insurance company’s website. That’s generally reasonable for every state, but there are situations where it could be, no pun intended, a little stickier. So for example, if you are the only specialist in a region, let’s say you’re a pediatric oncologist in North Dakota, probably not many of those around. And if you’re in the middle of a treatment plan, even if you’re not in the middle of a treatment plan, you probably want to give them more than 30 days to find a new doctor, only because it’ll be very difficult. [00:17:00] And the last thing you want to do is have someone not be able to get life-saving care, and you’re the last person that touched that patient. They file a complaint to the board of medicine and then off to the race as you go with a charge of abandonment.
Michael: And you, you raised a good point, and I want you to touch on this too. The urgency of the care needed that’s happening during the treatment plan is relevant, right? Like a cancer patient, versus a fracture correction, versus an elective procedure is relevant to the analysis for patient abandonment?
Jeff: It’s completely relevant. I take care of – I work with so many different types of specialists. Some of them are dealing with acute problems or people in the middle of a life altering treatment plan, hopefully lifesaving treatment plan. And then on the other end of the spectrum, [00:18:00] entirely elective, we’re talking about a cosmetic surgery. Even with cosmetic surgery, I suggest you should stay within the formal parameters of how you discharge a patient. Now remember, if a patient says, I’m never coming back, I’m leaving, I’m going elsewhere, all you have to do is document that. You don’t need a 30 day window. If they say they’re going somewhere else, you just document the patient said they were leaving. They took the affirmative action of taking off. Now, if they’re two days post-op, you may need to double down and remind them that now’s not a good time to head off on a new path because you uniquely are aware of what took place during that operation.
Sometimes you have to bite the bullet, then try to keep sewing around. I think you may want to resist the urge to have a patient jump ship so quickly, because if it turns out the patient does have a complication, ends up [00:19:00] getting a hematoma or an infection, even after an elective case, the new doctor may throw you under the bus, now you’ve got a bigger problem they initially had. So I generally tell people to try and work your way through the acute postoperative course, even for an elective case to try and get them set up to find another doctor. You don’t want to discharge a patient even if they do it on their own in an acute period because they don’t really know what they don’t know.
Brad: Right. Well, great, and I’m curious now with second story where Dr. Hubba Bubba was sleeping with Dr. Big League’s wife. I’m assuming the audience wants to know if the answer changes here. Does Dr. Big League, does he have to operate on Mr. Hubba Bubba? Meaning, does Dr. Big League have to treat this patient?
Jeff: Yeah, so the second case where the patient slept with the doctor’s wife, I assume, unbeknownst to the doctor and learn this only later, that is quite shocking. [00:20:00] And the doctor patient relationship is based on trust. And arguably, that trust has been broken. And I would suggest it may be a high risk move for the patient to accept surgery from that doctor. I mean, if I were the patient, I would probably say, are there other options available? Which takes us back to the option if the patient terminates the relationship, you don’t need a 30 day window, you’re done. The patient has already made the move. Now you could try to make a handoff, a baton pass over by finding another doctor if the patient agrees. If you find the other doctor and the patient agrees, then you’re safe. You haven’t abandoned that particular patient.
If you have no alternative and you’re it, let’s say that you were paid to take care of the patient, you’re the only orthopod in town that can fix that fracture. [00:21:00] And arguably it needs to be set sooner rather than later. You may just need to do it and move on and just figure out how he could be seen by somebody else and follow up. This is not a great situation. I have seen in less sticky situations. Again, Brad, you really set me up on that. In less sticky situations, I’ve certainly seen the doctor when they don’t want to take care of a patient, describe the risk in very graphic details. Just saying the risk of this particular operation is death, is death and death again. And they talk about the risk of paralysis and nerve damage. So that’s one option. You can just double down on the risk and maybe the patient makes a reasonable decision saying, “The risks sound greater than I’m willing to entertain at this particular time.” The other option in cases that aren’t particularly as acute [00:22:00] is to say that, I don’t have an opening for this type of procedure for some time. Assuming that the patient can wait and, and it’s not ridiculous the weight may just be enough to get the patient to voluntarily migrate on their own to another practice. So there are tricks or tools that can be used to gently show the patient the door without showing them the door directly.
Michael: And I can make the case too, I mean, it’s like salt in the wounds for the doctor because if he’s like for whatever reason can’t get out and has to operate and even let’s say that approaches it and is able to compartmentalize what happened in the background, if something goes wrong, you know that that’s all going to be a fact brought in that the doctor was trying to hurt the patient because the guy slept with his wife. I feel like the risk the doctor’s taking is enhanced. [00:23:00]
Jeff: Well, just imagine in this particular case, if the elective case was a vasectomy that the doctor was scheduled to perform. Need I say more?
Brad: No. That’s a different kind of clipping.
Michael: We have three 13 year olds on here. I’m sure we could take this conversation.
Jeff: Well, this does give it some color. I had a patient, this was many decades ago. He was a motorcycle rider in a motorcycle gang. And he had a fair amount to drink, fell off his bike, his colleagues put him back on his motorcycle, he fell off again and he fractured his spine. And so he came in and needed to be stabilized, and was it. As I turned him over, and this was, I operated on him the second day, he had to be stabilized, for the first time we needed OR time, I noticed that he had a swastika right in the middle of the operative or the proposed [00:24:00] operative field right in the middle, so I’d have to be cutting right through the swastika. And you know, this goes back to what I said before, we do operate on unsavory individuals at different times. I wanted to tell him we’ve got some good news and bad news after we woke up. The good news is I was able to avoid having to just destroy his tattoo artwork. The bad news for him was that I converted it into a Star of David Is a true case. I actually did have a patient with swastika and we were able to just work around it. But these are the surprises you run into, and the question is how do you avoid a charge of abandonment? And I think you just work through it. We deal with all types of unsavory individuals.
Brad: Well, Jeff for our audience, you kind of mentioned this earlier, [00:25:00] but why don’t we, going back to if a doctor is terminating in that relationship, can you provide recommendations on a competent patient dismissal later? Like, what are the things that should be in that letter when they are terminating that relationship?
Jeff: If you’re the doctor and you’re terminating the relationship, you need to give them sufficient time. So in most situations, 30 days is sufficient, and you should do it in writing. “I’m terminating the doctor patient relationship effective today. I’ll continue treating you for urgent or emergent conditions for 30 days until you find another physician, whichever comes first. Number two, I’ll make your records available to your new physician as per your written authorization. Number three, if you don’t have a new doctor, you can find one on the county medical website or through your insurance carriers in network website. I wish you well. You don’t need to even go into the details of this, honestly. I think less is more. [00:26:00] There’s no reason to say that you’re an unsavory individual or you yelled at the staff and I’m putting you in timeout. I think less is more. I really would just keep it to the bare facts and move on.
Michael: Okay. Final question. Let’s talk about the consequences for patient abandonment. Kind of frame for the audience. Like, if they do take an action that results in patient abandonment, what’s kind of their exposure from a risk perspective is, whether it be medical board or malpractice or otherwise.
Jeff: The easiest thing for a patient to do is to file a complaint with the Board of Medicine saying, “Dr. Segal abandoned me,” and it requires little more than five minutes of effort and looking a stamp or they can do it online. And so the board typically would be charged with investigating the claim, and abandonment is a fairly serious charge. [00:27:00] I do think that action could be taken against your license. At the very least, you’ll have to defend against it. And if you didn’t formally terminate the relationship, it will be quite uncomfortable. In terms of filing a legal claim, a civil claim, it’s doable, a little bit more challenging to do. The question will come down to, was the patient injured? Were they harmed by the abandonment? And if you just chose not to take care of a particular patient in the middle of a treatment plan and they’re injured, let’s say they need additional surgery or the outcome is worse than otherwise might have been, they will find an attorney and then sue you. You may end up getting beaten up by the board of medicine. You may end up getting beaten up by a plaintiff’s attorney.
Brad: That was awesome, Jeff. Thanks for dropping by again for the fifth time. Glad you can make it.
Jeff: Absolutely a pleasure.
Brad: Well, that’s all the time we have today, Michael, and believe it or not, next Wednesday show we will be back to discuss compliance fundamentals, this time on anti-aging with our partner, Jay Reyero. [00:28:00] Thanks again for joining us today. And remember, if you Like this episode, please subscribe, make sure to give us a five star rating and share with your friends.
Michael: You can also sign up for the ByrdAdatto newsletter by going to our website byrdadatto.com.
Outro: ByrdAdatto is providing this podcast as a public service. This podcast is for educational purposes only. This podcast does not constitute legal advice, nor does it establish an attorney-client relationship. Reference to any specific product or entity does not constitute an endorsement or recommendation by ByrdAdatto. The views expressed by guests are their own, and their appearance on the program does not imply an endorsement of them or any entity they represent. Please consult with an attorney on your legal issues.
