In the simplest scenario, the patient voluntarily terminates the
physician–patient relationship and seeks care from another physician.
Unfortunately, patients sometimes stop coming before they are fully recovered
from the acute condition that brought them to the physician. When this
happens, the physician must make some effort to determine whether the
patient is knowingly forgoing further care, has found another physician, or is
staying away out of ignorance or a misunderstanding of the physician’s
instructions. As discussed later under “documentation,” the process of
investigating the patient’s disappearance also generates the necessary record
that the physician has discharged the duty to the patient.
An adult patient has the right to refuse to follow the physician’s advice. If this
person understands the need for further treatment and the consequences of not
having that treatment, the physician has no legal liability for the patient’s
subsequent course. (The physician’s duty is different for minor and incompetent
patients.) The problem arises in establishing what the patient was told. A jury
will presume that a severely injured patient would not have refused to follow
the physician’s instructions if he or she had understood the consequences of
the refusal. An example of this problem arose when a woman died of cervical
cancer and her family sued the physician for failure to diagnose. [
Thomas, 611 P.2d 902 (Cal. 1980).] The physician argued that she had refused
a Pap smear, and this prevented him from making a proper diagnosis. The
physician lost. The jury did not believe that he had properly informed her of
the value of the test. His credibility was undermined because she had dutifully
returned for gynecological checkups, including pelvic examinations, and he had
never documented the refusal of the test in the medical record. It was hard to
believe that she would go to this much trouble and refuse a minor diagnostic
Problems also arise if the patient has misunderstood either the physician’s
directions as to the need for further care or the seriousness of forgoing further
care. In this situation the patient is not intentionally accepting the risk of injury.
The physician may be liable if it can be established that the patient was not
properly informed about the need for further treatment. There are steps the
physician may take to ensure that the patient receives the proper information,
but nothing can ensure that the patient understands this information. Since the
goal of the physician is to prevent patient injuries whenever possible, he or she
should make some effort to follow up with patients who do not return for
Patients sometimes discharge their physicians explicitly. They may fire the
physician over a disagreement or courteously inform the physician that they are
seeking care elsewhere. In either case, the physician should endeavor to
identify the subsequent treating physician and document the patient’s decision
to seek care elsewhere. If the patient has a new physician, the patient should
be asked to write down the name of the new physician so that records may be
forwarded. If the patient has not made arrangements for care, the physician
should reiterate the need for care and offer to help the patient find a new
physician. These efforts will help ensure that the patient receives proper care.
If, despite the physician’s efforts, the patient does not follow through in
seeking proper care, there will be evidence that the original physician made a
good- faith effort to help the patient.
Many medical insurance schemes use financial incentives to coerce patients into
abandoning their usual physicians. The purpose is to shift patients to the care
of physicians who have agreed contractually with the insurance company to
accept reduced fees, modify their way of practice, or both. The effect is that
the patient is forced to discontinue an established medical relationship and
seek care from a new physician who is unfamiliar with the patient’s condition.
This poses a legal risk to physicians who subsequently treat these patients.
Patients who are forced to abandon a long-standing relationship with a
physician may be very demanding of a physician they see under duress. This
increases the probability that misunderstandings and bad results will escalate
to litigation. It also puts the physician at a medical disadvantage. He or she is
expected to pick up the patient’s care exactly where the previous physician left
off, without the benefit of the previous physician’s knowledge of the patient.
The physician who accepts a new patient who has sought care voluntarily is not
expected to have all the knowledge of the patient’s condition that the previous