When Can a Doctor Decline to Provide Medical Services?
What legal obligations do physicians have to offer care? We examine situations that do and don’t justify turning away a patient.
No Shoes, No Shirt, No Service. You’ve seen it displayed outside all sorts of businesses. Generally, service limitations like these aren’t going to get business owners into legal trouble. Essentially, as long as they don’t discriminate against specific groups of people, owners get to choose whom they do and don’t serve. That’s why restaurants can require diners to wear business casual attire—or a mask to protect against COVID-19.
Things are a little different in healthcare; doctors don’t enjoy broad freedom to turn patients away. In fact, in certain situations, the law requires doctors to provide treatment. Read on to see when refusing to care for a patient might cause you legal liability.
The Role of Reliance
Generally, the law affords physicians—and other healthcare providers—the freedom to contract. This means doctors get to decide whom to treat, while patients get to decide from whom to receive treatment. Most courts maintain a level of deference towards the free market. As such, absent a consensual treatment relationship, doctors can often refuse to accept or treat patients.
However, there are limits to this freedom. A cardiac surgeon can’t suddenly decide he’s too tired to finish bypass surgery halfway through the operation. A pediatrician can’t inject her patient with a vaccine and then decide she wants to go home before taking the needle out. A transplant surgeon can’t extract the donor’s kidney and then forget to place it into the recipient.
The above examples demonstrate the concept of reliance. That is, once a doctor starts treating a patient, the patient relies on that professional for care. Indeed, if a doctor were to stop treatment, the patient might be put in a worse position than if no care had been given at all.
The law generally requires that a provider continue treating a patient under their care until the patient has been stabilized. At this point, the patient’s care might be handed over to another provider. However, suppose a doctor does decide it’s best to transfer the patient’s care to another provider. In that case, the patient should be notified of the termination of their existing doctor-patient relationship before the transition. That is, it’s best practice for patients to have a say in choosing their providers, be informed of the existence and reason for treatment hand-offs, and be medically stable when such transitions occur.
When the Relationships Starts
As discussed above, once a doctor accepts responsibility for a medically fragile patient, the provider has a duty to treat the patient until they are stabilized. Exactly when a treatment relationship starts, though, is often hard to define. It might occur upon a patient’s formal admittance to the hospital under the doctor’s care, or when the triage nurses assign a patient to an appropriate specialist. Often, simply by nature of their relationship with their employer (the hospital), physicians “accept” patients and agree to assume responsibility for their care.
In other situations, a doctor may inadvertently create a relationship. This so-called “implied acceptance” occurs when the doctor engages in behavior that suggests that the doctor accepts the patient.
For instance, if a doctor in an outpatient setting examines a patient and prescribes medication, these actions likely form a doctor-patient relationship. This remains true even if the patient doesn’t sign any forms or the physician doesn’t formally admit the patient to a hospital.
How do you know if an implied relationship exists? There is considerable gray area rife with the provider’s and patient’s subjective interpretations. While some courts may decide that an initial phone call or a patient booking an appointment is enough, others may require the doctor to provide actual treatment.
The takeaway: providers should note that a treatment relationship can be formed inadvertently. A doctor who has contact with a potential patient must consider whether their actions could signify acceptance of that patient as their patient.
A provider may also have a duty to treat a patient because the patient arrives in the provider’s emergency room amid a medical emergency or active labor. For example, if John suffers severe chest pains and goes to his local emergency department, he needs that hospital to help him. If the hospital refuses, then John might not make it to another provider. For this reason, the law requires the first hospital to treat and stabilize him, if possible.
Congress created the Emergency Medical Treatment and Active Labor Act (EMTALA) to ensure that patients in medical emergencies get the help they need. EMTALA requires hospitals that accept federal funding (i.e., Medicare beneficiary patients) to screen and stabilize emergency patients, regardless of the patient’s ability to pay. Nearly all hospitals rely on Medicare dollars for financial survival, so this law effectively wrangles every hospital with an emergency room into compliance.
Emergency rooms are required to screen each patient to determine if they are experiencing what qualifies as an emergency under EMTALA. If so, the ER team must treat and stabilize the patient unless it lacks the resources or medical expertise to do so. If that condition is met AND the benefits of transferring the patient to another hospital outweigh the risks, the ER may decide to transfer the patient elsewhere in lieu of providing treatment. However, the penalties for transferring a patient that the hospital should have kept are severe. Thus, the law discourages transfers of patients in the throes of medical crises.
A hospital that violates EMTALA—including violations by those who represent the hospital, like its triage team and ER physicians—faces significant consequences. The Department of Health and Human Services enforces EMTALA and can impose extraordinary fines on the hospital and on non-compliant providers. Additionally, any patient who is injured by an EMTALA violation can sue the hospital for compensation, which most of the time, means money.
EMTALA is rooted in the concept of reasonable reliance. When an emergency department displays a bright red “Emergency” sign, it’s reasonable for a patient to expect—and rely upon— that facility’s ability to offer emergency care. Sometimes, however, things are less clear.
Physician Duty to Treat Emergencies In Other Care Settings
Traditionally, EMTALA applies to Medicare-participating hospitals with emergency departments. However, many courts are expanding what constitutes an emergency department.
For example, hospital-based urgent care clinics may have EMTALA obligations. Indeed, if an urgent care clinic represents itself to the public (by name, signage, or other means) as a place capable of treating emergency medical conditions, a court might consider it an emergency department, even if it is not licensed as such. Any clinic that holds itself out as capable of handling emergencies should proceed with caution—it might unwittingly have a responsibility to provide emergency care outside the scope of its capabilities or expertise.
Although the definition of “emergency department” is expanding, there are limits. EMTALA does not apply to a private physician’s office or a physical therapy clinic. However, these non-emergency providers must still consider if their messaging or patient relationships might cause a patient to rely upon them in an emergency. Despite the lack of an EMTALA obligation, a general practitioner whose patient reasonably believes that the physician can help in an emergency might be liable for any harm that befalls the patient who mistakenly sought them out for emergency care.
Physician Duty to Rescue in Public
Recently, a passenger boarded a commercial flight to Cleveland. Just before take-off, she ate a bag of chips that triggered a severe allergic reaction. Once airborne, she went into anaphylactic shock. The flight attendants asked if there was a doctor on board. Luckily, there was.
Dr. Erich Kiehl, an electrophysiology fellow, injected the passenger with an EpiPen four times and monitored her for the remainder of the flight. After an emergency landing in Pittsburg, she was rushed to the hospital, where she spent the night recovering in the ICU.
Even though this passenger clearly needed help, the doctor was not in a hospital obliged to follow EMTALA, and the passenger didn’t board the plane expecting to receive medical care (that is, she hadn’t relied upon the physician’s care when traveling).
Historically, state laws required licensed healthcare professionals to aid in emergencies if they had the ability to intervene safely. Under a typical “duty to rescue” law, a doctor would be obligated to provide care to an ailing airline passenger or car-crash victim even if the doctor were off-duty and had no treatment relationship with the prospective patient.
Additionally, to encourage providers to come to the aid of those experiencing medical emergencies, most states also enacted “Good Samaritan” laws to protect the rescuing provider against malpractice suits.
Today, most states have abolished their duty to rescue laws. However, many states still maintain their Good Samaritan laws, though the implications of these laws can be very state- and skill-specific.
Reasons For Declining to Treat: What’s Acceptable?
The Americans with Disabilities Act (ADA) prohibits both public and private healthcare providers from discriminating based on a patient’s disability unless the patient poses a direct threat to the health or safety of others. In other words, doctors cannot refuse to treat a patient simply because that patient has a disability. Doing so can subject the provider to significant fines and lawsuits.
Because courts afford some deference to providers about treatment decisions, it can be difficult to pinpoint discriminatory conduct. For example, a doctor who refuses to treat a patient whose need falls outside the scope of the doctor’s training or expertise is not discriminating. Because it is beneficial for providers to identify their treatment limitations, some courts refuse to apply the ADA towards individual treatment decisions.
Other courts interpret the ADA’s scope more broadly and apply it whenever the patient’s disability is not the condition being treated. In these states, a doctor could not refuse a ventilator to a patient suffering from COVID because the patient also has asthma. Because the condition being treated is COVID—not asthma—the ADA would prevent the doctor from treating COVID patients disabled by asthma any differently than others.
Other courts strike a balance between these two interpretations and state the ADA prohibits discrimination where the disability is unrelated to the treatment being provided. Under this view, a doctor could refuse to offer a ventilator to a COVID patient with asthma because asthma relates to COVID and its treatment. However, a provider could not refuse to offer a COVID patient a ventilator due to the patient’s blindness, as blindness does not relate to the diagnosis or treatment of COVID.
Non-Medical Patient Characteristics
Title VI of the Civil Rights Act of 1964 prohibits any physician or hospital receiving federal funding from denying services to a patient due to race, color, or national origin. The Office of Civil Rights, an office within HHS, has the authority to sanction violators by suspending or terminating their ability to receive federal money. In addition, non-compliant physicians may be forced to pay compensatory damages and patients can sue doctors who intentionally discriminate against them.
Many physician oaths specifically speak to the importance of non-discrimination. Doctors taking the World Medical Association Declaration of Geneva physician’s pledge assert, “I will not permit considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, social standing or any other factor to intervene between my duty and my patient.” On a global and national scale, medical schools have been adding non-discrimination language to their oath-taking or “white coat” ceremonies. During COVID, many added language that voiced a commitment to expanding access to medical care and serving social justice goals.
Even so, many patients continue to suffer from unintentional discrimination. Unfortunately, studies show that doctors routinely dismiss or minimize the concerns of Black and/or female patients. (See our previous articles Why Black Women are Dying in Childbirth & How All Women’s Health Providers Can Help and How Provider Bias Harms Women in Pain).
Inequitable treatment, even if unintentional, may be actionable under the law. The Office of Civil Rights can enforce Title VI based on a disparate impact theory. Here, the government must prove a healthcare provider made what may appear to be a neutral decision that nonetheless had a disproportionately negative impact on persons of a particular protected class.
Accordingly, the above doctor could be forced to pay fines if the government proves a robust pattern of refusing to offer MRIs to female patients, leading to disparate outcomes. However, while patients can sue providers for violating federal law by discriminating against them, the patient must show that the discrimination was intentional.
Ability to Pay
Some medical providers may consider refusing to treat because of the patient’s inability to pay for treatment. Generally, in non-emergency situations, this is allowed. A private internist, for example, might refuse to schedule a patient’s appointment if that patient has unpaid medical bills. Moreover, a clinic may cap its Medicaid patient capacity at 20% if accepting more would be economically infeasible. Note, though, that once a clinic does accept a Medicaid patient, the treating doctor cannot treat that patient any differently than a patient with private insurance. Further, the doctor cannot charge the patient any money in excess of the rate reimbursable by Medicaid.
What happens when the patient requires services outside of the scope of the provider’s expertise? The courts consider this a legitimate reason to refuse a patient. An oncologist, for instance, is an expert in treating cancer, not cardiac conditions. Thus, if a patient requires specialized cardiac care, the oncologist can (and likely has an ethical and professional obligation to) refuse to accept the patient. However, the oncologist should still communicate effectively with the cardiac patient and offer them resources about finding an appropriate provider.
Even if a patient requires services within a doctor’s education or training, there still might be ethical and legal reasons justifying a refusal to treat. A doctor might decline to treat a 90-year-old patient, knowing that a colleague works well with the elderly population and is better versed in geriatric medical needs.
However, the doctor must still comply with section 1557 of the Affordable Care Act, which prohibits discrimination based on age. That is, the doctor cannot refuse to treat the patient solely based on age— that is, the doctor cannot refuse to treat the patient because of an underlying age-based animus or bias. The key is to be sure that decisions about accepting or denying patients are rooted in the patient’s best interest, not in discrimination.
With laws continuing to evolve, it’s important you know when refusing to treat a patient may land you in legal trouble. This can be reinforced by:
- creating clear patient intake and payment policies
- complying with the terms of the practice’s insurance contracts
- ensuring accuracy in billing
- training employees on the practice’s operational and workforce standards.
If you practice in a state where we operate, reach out to us for a free consultation so we can discuss how you can structure your practice to stay compliant with local and federal laws related to obligations to treat.
This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.