Hospital sued after pulling welcome mat

A column analyzing the impact of recent court decisions on physicians

By Tanya Albert amednews correspondent— Posted May 9, 2005.

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Are there any differences between a doctor choosing no longer to see a patient because of his or her disruptive behavior and a medical facility opting no longer to let its physicians and staff -- in nonemergency situations only -- treat a group of patients who sued it?

It's an interesting question given the current medical liability climate that has left some physicians feeling like the patient is an enemy who could sue them at the drop of a hat.

A federal court in Kentucky is grappling with a case that will in essence answer the question. The U.S. District Court for the Western District of Kentucky, Owensboro Division, is considering a lawsuit asking whether a health system has the right to no longer serve a group of patients who sued it and a doctor who no longer works there.

The story starts in February 2004.

That's when a Kentucky Cabinet for Health Services inspection found insufficiencies in quality assurance in the Trover Clinic Foundation's radiology department. Trover is a network of clinics and a regional medical center that serves a 12-county area in western Kentucky.

The Centers for Medicare & Medicaid Services' regional office told Trover to correct the problem or face losing federal funding. The health care network told CMS it would hire an outside physician to review about 1,200 images, the bulk of which were originally read between January 2003 and January 2004. In the end, roughly 6,000 to 7,000 images were re-read, and the radiologist's error rate was within the standard of care.

In March 2004, dozens of patients who had films re-read joined together to file a state court lawsuit that alleged, among other things, negligence, outrage and negligent infliction of emotional distress. The lawsuit, still working its way through Hopkins County Circuit Court, requests punitive damages and injunctive relief.

After the patients filed the lawsuit, the Trover Clinic Foundation board of directors decided that its facilities could no longer provide services to those patients.

In the fall of 2004, the Trover Clinic Foundation sent letters to the plaintiffs informing them that the health system's facilities no longer could offer nonemergency medical care to them. The letter asked the patients to arrange for new care in the next 30 days. Trover also told patients they could contact the foundation if they needed help in making any arrangements. The Trover facilities would continue to provide emergency care for the patients.

The patients then turned to the federal court system, asking a judge to make Trover take care of their nonemergency medical needs. They said finding treatment elsewhere would be more expensive and difficult, if not impossible, because some of them did not have access to transportation.

The federal court denied the patients' initial request for a temporary restraining order against the hospital. And in March of this year, a U.S. district judge in Owensboro, Ky., refused to issue a preliminary injunction that would have forced the clinic to treat the patients.

One threshold a court must consider before issuing a preliminary injunction is whether there is a "substantial threat of impending injury" to the people seeking it. But in this case, U.S. District Judge Joseph H. McKinley Jr. said the patients did not face that risk.

They "have not presented any testimony that other hospitals, treatment facilities or physicians in the area are not as qualified as the physicians and facilities owned by the Trover Clinic Foundation," McKinley wrote in his March 2 opinion in Adams v. Trover Clinic. "Nor have plaintiffs demonstrated that there is a substantial threat that they will be forced to forgo necessary medical services because of higher costs or transportation concerns."

But the court didn't go as far as throwing out the entire lawsuit, which seeks a permanent injunction against the foundation's decision. The case challenging the health system's decision not to see the patients in nonemergency situations will go to trial if it's not settled before then.

Deciding not to treat someone

There have been a number of lawsuits involving physician and hospital decisions not to treat a patient seeking nonemergency care.

A Delaware court in 1961 said a private hospital doesn't owe the public a duty to accept a patient it doesn't desire, and it doesn't have to give a reason for the refusal.

A Maryland court in 1946 similarly established that a private hospital "is not under a common law duty to serve everyone who applies for treatment."

Courts have similar opinions about physicians opting not to treat some patients. For example, a Georgia court in 2003 said that a doctor can "unilaterally withdraw from treating a patient" but must give the patient reasonable notice so he or she can find care elsewhere. A 1964 Wisconsin court and a 1931 North Carolina court issued similar opinions.

Those decisions support the American Medical Association's ethical guidance to physicians on the issue.

AMA ethics policy -- which was quoted at the hearing held in McKinley's courtroom -- says that "while physicians have the option of withdrawing from a case, they cannot do so without giving notice to the patient, the relatives or responsible friends sufficiently long in advance of withdrawal to permit another medical attendant to be secured."

Other medical organizations have similar policies.

Trover argues that it met those standards and that it has a legal right to exercise that judgment. It said patients have access to other facilities and that these alternatives are about equidistant for patients.

The patients suing the foundation argue that the situation was not handled properly and that the Trover facilities have a legal duty to treat them in nonemergency situations. They said there hasn't been continuity of care, and that other facilities aren't easy to get to and in some cases don't offer the same level of care.

The ethics of declining treatment

At a court hearing in February, Houston ethicist Laurence McCullough, PhD, testified that the patients' lawsuit gives Trover no ethical justification to terminate its physicians' professional relationships with the patients.

"When you're irritated by the fact that a patient has brought suit against you or a colleague, that's a matter of mere self-interest and just should be sacrificed. It doesn't really have any place in patient care," he testified.

During the court hearing, Trover attorney Byron L. Hobgood challenged Dr. McCullough's interpretation of the ethical standards because it doesn't allow leeway for a physician who tried not to let the lawsuit interfere with his or her clinical judgment but ultimately couldn't. The judge also challenged Dr. McCullough's position.

"What if you try to do that, you muster everything you've got to try to do that, but you reached that point where you know you can't?" McKinley asked Dr. McCullough. "You're human, and it is affecting your clinical judgment? What's the obligation there?"

Dr. McCullough answered: "That's a good question. ... Of course, whenever you've reached the judgment you're not a sufficient doctor for a patient, you should arrange for the prompt transfer of the patient to any other physician. But it's a very, very rare exception, and the worry is that it could become, as I said, self-serving and self-deceptive."

In a phone interview, John C. Whitfield, a Madisonville, Ky., attorney representing the patients suing the clinic, said the clinic's decision not to see patients because of a pending lawsuit is disturbing because people have a right to sue.

"It's an egregious situation," he said. "We understand a situation where [a patient or hospital won't see a patient because] a patient is unruly. ... But this just doesn't pass the smell test."

Hobgood told the court that Trover had treated other patients who have sued it and that the hospital had good reason not to treat the patients in this particular case. He said the lawyers in the other cases are "not acting crazy with us. They're not trying to punish us with their discovery, doing all this other wild stuff, holding town meetings, signing up people."

Hobgood added that if the foundation continued serving the patients who it sent the letter to, anything a physician or other staff member said to those patients could be used against Trover in court.

And Trover is making exceptions to the rule laid out in the letter, Hobgood said. If a doctor feels strongly about continuing to treat a patient who has received a letter from the foundation, Trover would allow that physician to continue to care for the patient, he said. In fact, that is already happening, Hobgood told the court.

"If they've got cancer, then we're still treating them in spite of the letter," he said.

Associations monitoring the case

The Kentucky Medical Assn. and the Kentucky Hospital Assn. have not filed friend-of-the-court briefs in the case, but representatives for each said they were monitoring it. Associations generally file briefs at the appellate level. So for now, all eyes are focused on how the district court will answer the question of whether a lawsuit is a justifiable reason for a hospital to no longer treat patients in nonemergency situations.

Tanya Albert amednews correspondent—

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