This document summarizes a webinar series on fundamentals in healthcare law presented by the law firm Parsons Behle & Latimer. The September 15, 2021 webinar focused on patient care and included presentations on forming the provider-patient relationship, obtaining patient consent, terminating the relationship, and issues relating to patient capacity. Key topics included how the relationship is established, components of informed consent, avoiding abandonment claims when terminating care, and assessing a patient's decision-making ability. The webinar provided an overview of important legal and ethical considerations in the provider-patient relationship under healthcare law.

1. Fundamentals in Healthcare Law Curriculum
2021 – 2022 WEBINAR SERIES
PA R S O N S B E H L E . C O M
N AT I O N A L E X P E R T I S E . R E G I O N A L L AW F I R M .
Patient Care
Wednesday, Sept. 15, 2021

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Presenters
• J. Kevin West
208.562.4908
kwest@parsonsbehle.com
• Andrew R. Alder
208.562.4879
aalder@parsonsbehle.com
• C. Edward Cather III
208.528.5224
ecather@parsonsbehle.com

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Today’s Topic: PATIENT CARE
• We will explore various aspects of the provider/patient relationship
and how that impacts patient care

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Kevin West: When and how the provider relationship is formed
Patient consent to treatment
Andrew Alder: Terminating the provider-patient relationship
Ed Cather: Patient competency
Powers of Attorney
Living Wills/Advanced Directives

6. Formation of the Provider-Patient
Relationship

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Without a doctor-patient relationship –
1) A patient cannot sue for malpractice
2) A patient cannot seek ongoing treatment
3) The doctor cannot be reimbursed for services

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The formation of a provider-patient relationship is based on the law of
contracts:
• Express contract
• Implied contract

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Is a provider obligated to accept every patient who walks in the
door?
• No – unless you have an agreement with a third-party payer that
requires you to do so

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Indications of the formation of a relationship:
1) The provider bills for something
or
2) The provider undertakes some affirmative action for the patient
(even if there is no billing)
or
3) The provider had a duty to take some action (e.g., “on-call doctor”),
even if the patient was never actually seen

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Scenarios
• Taking call
• Hallway consultations
• Residents and supervisors
• Referrals to specialists
• IMEs
• Telemedicine

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Hallway Consultations
Q: Does a “hallway consult” create a provider-patient relationship?
A: It depends. If there is just a general discussion as to how to
generally treat conditions, then no. But if the consulting doctor
suggests a specific course of treatment, then there possibly yes.

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Residents and Supervisors
• A split of authority exists among the courts as to whether the
supervising physician for a resident has a provider-patient
relationship

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Referrals to Specialists
A Georgia court ruled that a primary care provider who referred a
patient could be responsible for “negligent referral”, where the
referring doctor merely did a cursory evaluation and determined that
the referral was appropriate.

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Independent Medical Examinations
• A majority of courts rule that no provider-patient relationship is
created (e.g., workers comp, disability or other insurance exams)
• But – if serious adverse findings are made during the evaluation
there is likely a duty to notify the individual

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Telemedicine
• Establishment of the relationship is typically a matter of state law
(e.g., an initial face to face visit)

17. Consent to Medical Treatment

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Consent to Medical Treatment
• Some general principles today
• For more in-depth discussion of Idaho law join us next month on
October 20

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The doctrine of consent is based on the ethical principle of individual
autonomy

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“No right is held more sacred than the right of every
individual to the possession and control of his own
person, free from all restraint or interference by
others.”
US Supreme Court, 1891

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Basic Components of Consent
1) The patient must have the capacity to decide
2) The patient must have sufficient information
3) Consent to care also includes the right to refuse care

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“Capacity to Decide”
• This is generally determined by the provider based upon his/her
face-to-face evaluation of the patient
• When doubt/concerns exist, family and other providers should be
consulted

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“Sufficient Information”
1) The patient’s condition
2) The nature of the proposed care
3) The expected benefits of the care
4) The material risks of the proposed care or going without care
5) Treatment alternatives

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Informed consent is a process, it is not a piece of paper
 Consent forms merely document the process that hopefully
took place

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Mechanics of Consent
1) May be oral or written
 If written, there is a rebuttable presumption of informed consent under
Idaho law
2) Contents of the consent form
 Name of procedure (in medical and lay terms if possible)
 Risks
 Benefits
 Opportunity to ask questions
3) Do all procedures require formal consent, or just “major” ones?

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Special Situations
1) Incompetent patients
 A surrogate is needed
 See list of surrogates in Idaho Code Section 39-4504
2) Unconscious or incapacitated patients
 See list of surrogates in Idaho Code Section 39-4504
3) End of life/refusal of care
 A complex issue
 Physician-assisted suicide is not legal in Idaho, but there is a right to a
“natural death”

27. Ending Provider-Patient Relationship
and Avoiding Patient Abandonment

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Ending Provider-Patient Relationship
When Does the Provider-Patient Relationship End?
• Treatment is no longer necessary;
• Patient terminates the relationship; or
• Provider terminates the relationship.

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Ending Provider-Patient Relationship
Provider can terminate the relationship for any non-discriminatory
reason, such as:
• non-compliance;
• non-payment;
• drug-seeking behavior;
• Etc.
BUT, regardless of the reason, must provide appropriate notice to
avoid a claim of “abandonment.”

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Avoiding “Abandonment” Claims
What is Patient Abandonment?
• Ending the provider-patient relationship (1) while the patient
actively needs care and (2) without adequate notice that allows
the patient reasonable time to obtain care elsewhere.
Consequences & Penalties:
• Patient can bring a lawsuit for damages
• Board of Medicine disciplinary action (I.C. § 54-1814(15))

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Avoiding “Abandonment” Claims
Real-World Examples of Patient Abandonment
 Provider intentionally refuses to treat a patient who has failed to pay his or her medical bill
 Provider is unavailable for an unreasonable amount of time when a patient needs medical
care—and so is the backup (or "on call") doctor
 Medical staff fails to reach out to patient who has missed important follow-up appointment
 Medical staff fails to communicate a question from the patient to the provider
 Appointment scheduled too far in the future, resulting in harm to the patient as their
condition worsens that could have been prevented.
 When hospital has inadequate staffing

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Avoiding “Abandonment” Claims
Remember provider-patient relationship does not automatically end,
even under the following circumstances:
• Outstanding bill
• Patient changes insurance coverage and is no longer covered
• Patient is suing the provider
• Managed care plan “deselects” you
• Etc. etc.
Must still provide appropriate notice by sending a “dismissal letter.”

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Avoiding “Abandonment” Claims
The Dismissal Letter – Do’s and Don’ts
Do:
• State that patient is being dismissed
 You don’t need to provide a reason, though this can be appropriate. Less is
more.
• State risks of not continuing treatment with another provider
• State official date of termination (30 days generally fine)
 During this time, you should provide emergency care and prescription refills.
• Inform patient of the right to access and obtain medical records
• Retain copy of dismissal letter for patient’s medical record

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Avoiding “Abandonment” Claims
The Dismissal Letter – Do’s and Don’ts, continued….
Don’t:
• Criticize the patient and/or appear hostile
• Terminate the relationship during a vulnerable time, such as
immediately after an operation

35. Patient Capacity, Powers of Attorney for Health
Care, and Living Wills/Advanced Directives

36. Patient Capacity

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Why is Medical Decision-Making Capacity important?
“Medical decision-making capacity is the ability of a patient to
understand the benefits and risks of, and the alternatives to, a
proposed treatment or intervention.” Craig Barstow et. al., Evaluating Medical
Decision-Making Capacity in Practice, Am Fam Physician, 2018 July 1;98(1):40-46.
Put simply, Medical Decision-Making Capacity is the basis of informed
consent.
◦ Except in emergencies, informed consent is necessary for a patient’s treatment. Robert
Aldridge, Idaho Senate Bill 1068-the Medical Consent Act and Natural Death Act, 48 Advocate 21 (2005).

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Who makes the determination on a patient’s capacity?
• Consultation with a psychiatrist may be helpful in some cases, but
the final determination on capacity is made by the treating physician.
◦ HOWEVER, a patient’s power of attorney or living will may designate a
specific person to determine the patient’s loss of capacity. In such cases, the
surrogate decision maker should be identified and consulted.
• BUT if the patient is unable to give consent and identifying a
surrogate decision maker will result in a delay that might increase
the risk of death or serious harm, physicians can provide emergency
care without formal consent.
Idaho Code § 15-12-109

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When is capacity assessed?
• Capacity is assessed intuitively at every medical encounter and is
usually readily apparent.
◦ However, a more formal capacity evaluation should be considered if there is
reason to question a patient's decision-making abilities.
 Some examples of situations requiring a more formal capacity evaluation include:
– Acute change in mental status
– Refusal of a clearly beneficial recommended treatment
– Readily agreeing to an invasive or risky procedure without adequately considering the risks
and benefits

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How do providers determine capacity?
Patients must be able to:
1. Demonstrate understanding of the benefits and risks of, and the alternatives
to, a proposed treatment or intervention (including no treatment);
2. Demonstrate appreciation of those benefits, risks, and alternatives;
3. Show reasoning in making a decision; and
4. Communicate their choice
Because these four elements are built into everyday dialogue and interactions, it
can be assumed that patients have the capacity to make medical decisions if their
conversation demonstrates basic logic. See Craig Barstow et. al., Evaluating Medical Decision-
Making Capacity in Practice, Am Fam Physician, 2018 July 1;98(1):40-46.

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What are some examples of questions for providers to
ask their patients to assist in determining capacity?
Questions to determine the patient's ability to understand
treatment and care options
• What is your understanding of your condition?
• What are the options for your situation?
• What is your understanding of the benefits of treatment, and what are the
odds that the treatment will work for you?
• What are the risks of treatment, and what are the odds that you may have
a side effect or bad outcome?
• What is your understanding of what will happen if nothing is done?

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What are some examples of questions for providers to
ask their patients to assist in determining capacity?
Questions to determine the patient's ability to appreciate how
that information applies to his or her own situation
• Tell me what you really believe about your medical condition.
• Why do you think your doctor has recommended (specific treatment/test)
for you?
• Do you think (specific treatment/test) is best for you? Why or why not?
• What do you think will actually happen to you if you accept this treatment?
If you don't accept it?

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What are some examples of questions for providers to
ask their patients to assist in determining capacity?
Questions to determine the patient's ability to reason with that
information in a manner supported by the facts and the patient's
own values
• What factors/issues are most important to you in deciding about your
treatment? What are you thinking about as you consider your decision?
• How are you balancing the pluses and minuses of the treatments?
• Do you trust your doctor? Why or why not?
• What do you think will happen to you now?

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What are some examples of questions for providers to
ask their patients to assist in determining capacity?
Questions to determine the patient's ability to communicate and
express a choice clearly
• You have been given a lot of information about your condition. Have you
decided what medical option is best for you right now?
• We have discussed several choices. What do you want to do?

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What should a provider do if they determine the
patient lacks capacity?
• Find out if the patient has given anyone power of attorney for health
care or executed a living will/advanced health care directive.
◦ The department of health and welfare for the State of Idaho maintains a
health care directive registry. Idaho Code § 39-4515. This can be found on
the Secretary of State’s website at https://sos.idaho.gov/health-care-
directive-registry-index/.
• If these situations do not apply, the treating physician acts in
accordance with their best professional judgment.

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What if the patient has capacity but also has a
living will or power of attorney?
• The wishes of a patient with adequate capacity take priority over
powers of attorney or living wills.
Idaho Code § 39-4511A; 39-4511B.

47. Powers of Attorney for Health Care

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What is a Power of Attorney for Health Care?
• A power of attorney for health care, or health care proxy, is a legal
designation by which one person, the principal, decides the extent that
another person, the agent, can make decisions for him or her concerning
health care.
• In other words, a health care power of attorney allows the patient to grant
a trusted person the authority to make medical and end-of-life care
decisions on their behalf.
• Generally, the person designated can be anyone so long as they are at
least 18 years of age.
◦ However, health care providers, community care facilities, and their respective
employees are excluded.

49. Living Wills/Advanced Directives

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What is a Living Will/Advanced Directive?
• A living will (also commonly called an Advanced Directive) allows a patient to
communicate to those around them what kind of care they do, or do not, want in the
event they are unable to communicate their wishes because of a debilitating injury or
illness.
• Living wills can be very specific or general. Some examples of terms commonly found
in living wills are:
◦ Opting between being placed on ventilation support
◦ Being attached to feeding tubes
◦ Receiving pain medication
◦ Being given IV fluids to keep the person alive even if his or her quality of life is low.
• These directives are different than a Do Not Resuscitate Order, which is focused on one
type of medical procedure and may not require the situation to be as dire as those
traditionally involved with advance directives.

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When does a power of attorney or a living will
become effective?
• The default rule is that a powers of attorney or a living will become
effective when executed.
• However, the patient may reserve efficacy until the occurrence of a
future event or contingency.
◦ This is not the default rule and is only the case when the power of attorney
explicitly reserves efficacy.
Idaho Code § 39-4512; 15-12-109.

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The Revocation of Living Wills or Powers of Attorney
• A living will or power of attorney for health care may be revoked at
any time by the patient by any of the following methods:
◦ The destruction of the document
◦ Signing a writing which expresses intent to revoke
◦ Any other action that clearly manifests the patient’s intent to revoke
• There is no liability for a health care provider who does not have
actual knowledge of such a revocation.
Idaho Code § 39-4511A.

53. Practical Tips

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What if the patient has both a living will and a
power of attorney that conflict?
• The patient’s health care agent (the person having power of
attorney) cannot overrule any of the provisions of the patients living
will.
• They can supplement the patient’s wishes if something comes up
that the patient did not anticipate.

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What if the power of attorney or living will was
made in another state?
• Idaho’s policy is to liberally give effect to “any authentic expression
of the person’s prior wishes or directives concerning his or her health
care.”
• However, the person’s prior wishes or directives cannot authorize or
force:
◦ Euthanasia (mercy killing or assisted suicide)
◦ Futile care (medical treatment that is inappropriate or futile)
Idaho Code § 39-4514.

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What if the terms of the living will go against the
standard of care?
• Health care providers and personnel are immune from civil or
criminal liability as well as discipline for unprofessional conduct for
acts or omissions carried out or performed in good faith pursuant to
living wills or other health directives. Idaho Code § 39-4513.
Idaho Code § 39-4513.

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Thank You
• J. Kevin West
208.562.4908
kwest@parsonsbehle.com
• Andrew R. Alder
208.562.4879
aalder@parsonsbehle.com
• C. Edward Cather III
208.528.5224
ecather@parsonsbehle.com