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You have an obligation to ensure patients are protected and retained when their physician leaves your practices. Here's what to do.
When physicians leave a medical practice, regardless of the reason, one of the most common questions that arises is how to alert patients of the physician's departure and what obligations the departing physician owe to such patients and the practice. While every practice handles these situations differently, here are some recommendations:
1. Patients generally belong to the medical practice. The medical records belong to the practice and all documentation reflects the patient being part of the practice. All employment or other agreements between the parties should clarify these points. Upon termination, patients always have the right to request a transfer of their medical records and every medical practice should be sure to comply with relevant state and federal (HIPAA) laws which may apply.
2. If it is the practice's intention to protect its patient population and internal documents (such as patient lists), it is advisable to include such language in the employment or other agreement between the parties. Physicians should understand that taking a list of patients, whether in paper format or downloaded from the computer, for use outside the practice, is a violation of the agreement between the parties, as well as a likely violation of federal and state laws (i.e. HIPAA).
3. If the intention of the practice is that a departing physician not be permitted to solicit its patients, employees, referral sources, vendors or others following termination, it is essential that this be included in the agreement between the parties (tailored to comply with relevant state laws). A practice that does not include this language cannot complain if a terminated physician contacts patients following his or her departure. Assuming such solicitation does not include the use of a patient list (covered by separate confidentiality provisions), the practice may have little luck in preventing a physician from engaging in such activities.
4. When a physician joins your practice, it is important to consider whether the physician is bringing existing patients. If so, is it the parties' intent that the physician can take those patients when they leave (i.e. solicit them)? If so, it is very important that this be specifically documented in the arrangement between the parties, so that upon termination of the relationship it is clear what rights each party has. If the arrangement also allows the physician to solicit patients the physician generates while part of the practice (as opposed to all patients of the practice), this also should be clearly spelled out, as well as the methodology for tracking patients. Even if a physician has the "right" to take patients, patient charts still may not be transferred without appropriate documentation being signed and the practice should always retain the original record for malpractice purposes.
5. There are abandonment provisions in every state. Medical practice act and departing physicians (and their counsel) often interpret this as meaning that a physician has a legal right to independently advise patients of their departure and new practice location. This is an incorrect assumption. A practice may opt to send a letter to patients about the departure of a physician, but is generally not legally required to do so, and a physician also generally has no legal right to send such letter independently in violation of their contract (and using a practice patient list). Ideally the agreement between the parties spells out the process that will be used to alert patients of a physician's departure, but there are many different ways a practice can effectively provide notice to patients.
The practice might call the departing physician's patients, send an email (or notice through a portal), write a post on the practice website, or place a sign at the practice front desk so all patients can see when checking in/out. The goal of the practice should be to provide adequate notice to patients of the physician's departure and usually a combination of methods can be used. Most importantly, following up with patients who are scheduled for appointments or who desire to schedule a new appointment, and offering to schedule such patients with another equally qualified physician in the practice, is the key manner by which abandonment issues can be avoided. As long as a patient knows they can receive continuing care from another physician and/or can request to have their records transferred to their preferring physician, there should not be an issue. If there is no ability of the practice to provide continuing patient care upon termination of the physician, it is essential that appropriate steps be taken by the practice and the physician to prevent abandonment issues. This might require a lengthy notice period, referrals to other qualified physicians and making sure the departing physician's contact information is offered - even if this runs contrary to contractual provisions.
6. Physicians are generally permitted to make plans for their post-employment career while still employed. This might include finding a new job, printing letterhead, forming an entity, etc. However, whether a physician has a written agreement with the employer or not, a physician is not permitted to solicit patients from the practice while still employed, including sending a letter to patients (either directly or through the new employer), handing out business cards, scheduling patients at the physician's new practice, or similar activities. The common law concept of an employee owing a fiduciary duty of loyalty to their current employer exists - whether or not there is a written agreement between the parties. A breach of fiduciary duty can be hard to enforce sometimes and damages can be difficult to prove, so having written documents preventing such activities is advisable. Moreover, a new employer who assists a physician in engaging in prohibited activities may face a lawsuit from the old practice as well.
A practice hiring a new physician must always be mindful of the end of the relationship between the parties. A thoughtful document that takes into account protection of the practice's patients and records, as well as the transition process upon termination, can help minimize conflict. Provisions in any contract must always be written to comply with applicable state laws.