This article is already over a year old, but the legal points it makes are still valid. It sure looks like many pain patients who were tossed out of practices have grounds to sue for malpractice.
The hard part might be finding a lawyer who hasn’t been gaslighted by the myth of “heroin pills” and is willing to fight for the patient in the midst of a whole society, including juries, believe this cleverly made-up story.
Patient abandonment is a serious, yet often overlooked, form of medical malpractice. Generally, patient abandonment occurs when a physician terminates medical treatment without a justifiable excuse or reasonable notice so that the patient can find a replacement physician.
Most studies on medical malpractice claims in the United States do not specifically isolate instances of patient abandonment, so there is little concrete data on this phenomenon.
A study conducted on the rates of medical malpractice lawsuits in the United States between 1992 and 2014 found that
- surgical errors, and
- treatment-related mistakes
are the most common types of claims, respectively. However, how exactly patient abandonment fits within these claims is not stated.
Unlike the more common medical malpractice claims, which involve a specific action taken by a physician, patient abandonment occurs more by the omission of proper conduct.
What Constitutes Patient Abandonment (And What Doesn’t)
Patient abandonment cases are very fact-specific and the exact legal definition varies state-to-state. The general elements of patient abandonment claims are:
- There was an established doctor-patient relationship
- The physician abandoned the patient while medical attention was needed
- The abandonment occurred abruptly, preventing the patient from finding a replacement physician
- The patient suffered an injury as a direct result of the abandonment
In order to effectively evaluate a potential patient abandonment claim, the first question one must ask is whether there existed a doctor-patient relationship. While this element might seem intuitive, there is more to this question than meets the eye.
A doctor-patient relationship is typically created when
“professional services of a physician are rendered to, and accepted by, another person for the purposes of medical or surgical treatment.”
Once a formal relationship between the physician and patient has been established, whether the termination was appropriately handled must be examined.
Importantly, termination of the doctor-patient relationship can be a completely unilateral decision on the part of the doctor.
Physicians are not obligated to treat each and every patient in perpetuity.
However, physicians cannot terminate the relationship
- during a time when medical treatment is necessary and/or
- the patient cannot be immediately transitioned to another doctor.
This would seem to disallow termination because pain patients on opioid therapy “cannot be immediately transitioned to another doctor”, although much depends on whether a judge/jury believes that opioid therapy is necessary for intractable pain.
The patient’s necessity for medical treatment also goes hand-in-hand with whether reasonable notice was given to provide the patient with the opportunity to find replacement care. For example, a doctor cannot abruptly shut down their medical practice without making arrangements to ensure that her patients have alternative care.
But this is exactly what’s happening to pain patients.
All a physician is required to do is to give adequate notice to the patient (30 days in most states) and support the transition to alternative care, which may include providing records or engaging in a discussion with the new doctor.
There are numerous reasons that a physician may terminate their relationship with a patient that do not constitute patient abandonment.
If a doctor knows that he does not possess the requisite skill or knowledge to handle a patient’s particular issues, they are under no requirement (nor is it preferable) to continue treatment.
So, if a doctor is unable to alleviate a patient’s pain by non-opioid means and is unwilling or “does not possess the requisite skill or knowledge” to prescribed effective opioid pain relief, they might be able to get away with patient abandonment.
If a patient does not follow the doctor’s orders, which includes being chronically late to appointments or not taking the necessary prescribed medications, termination may be warranted.
As long as the termination is done in an appropriate manner, such action does not constitute abandonment.
Well, that’s exactly the problem: what is the appropriate manner of terminating the relationship when the patient definitely needs ongoing pain treatment with opioid therapy (when nothing else works), but no other doctor will take over this treatment.
It all depends on whether “pain” is considered a “harm” and if opioid therapy is considered appropriate and necessary (ie. can’t be substituted with other treatments for pain because they aren’t effective for this patient)
What Do The Experts Say?
Like any other medical malpractice action, patient abandonment cases require the use of a medical expert to establish the standard of care and deviation of that standard by the defendant
Experts may also be required prior to filing suit. Rule 3012-a of the New York Civil Practice Law and Rules requires that all medical, pediatric, and dental malpractice complaints be accompanied by a certificate of merit stating that the plaintiff’s attorney has consulted with at least one physician and has concluded that there is a reasonable basis for the commencement of the action.
This is wide open for bias because we have “experts” on opioids from the opposing views of addiction versus pain management doctors whose beliefs are almost opposite, like Stefan Kertesz vs Kolodny, for example.
How does the court handle opposing testimony by such “experts”? Must their expertise and experience be pertinent to the case?
In the case of abandoned pain patients, this seems to require the doctor to be a pain management specialist.
But when the case involves opioids, which for most people always imply addiction, are they allowed to substitute an “addiction expert” like Kolodny even when the case is about the untreated pain, not opioids.
However, there are occasions in the cases of patient abandonment in which an expert affidavit is not necessary. “Common sense and ordinary experience and knowledge, such as is possessed by laymen, without the aid of medical expert evidence, might properly suggest that the condition of the plaintiff at the time that he was abandoned by the defendants was not compatible with skillful treatment.”
That being said, medical experts are typically needed to set forth the consequences of the physician’s abandonment within the context of the patient’s specific facts and circumstances and to establish whether the alleged abandonment represented a departure from the acceptable medical practice.
Well, it has *become* acceptable medical practice when it concerns opioid therapy, mainly because it’s already been happening all over and because there’s so much (deliberate) confusion of dependence and addiction.
The status of a patient’s condition is necessary to determine whether a physician effectively terminated the relationship.
In this opio-phobic cultural moment, a judge/jury could easily believe that a patient’s condition of “intractable pain” isn’t a serious concern. And needing opioids might not be considered valid either. After all, they might believe that the patient is just be addicted.
For example, a patient who had undergone heart surgery and requires a multitude of follow-up appointments is vastly different from a patient who visited a doctor once to treat a cold.
Thus, a medical expert in the particular field as the defendant doctor is important to establish whether the termination occurred during a time when medical treatment was necessary and if, under the circumstances, the timing and notice was unreasonable.
Author: Anjelica Cappellino, J.D. is an accomplished defense attorney and legal writer who has represented numerous federal criminal defendants in the Southern and Eastern Districts of New York.