Malpractice: What Is Abandonment?

Editor's note: Attorneys Ladenheim and Sherman, along with Louis Sportelli, DC, are the editors of The Chiropractic Legal Update. They and Judge Louis Campbell have authored numerous articles and books on chiropractic legal matters including: The Chiropractic Form and Sample Letter Book; Risk Management in Chiropractic; and Synopsis of the Mercy Guidelines.

Abandonment occurs when the doctor, without proper notice, unilaterally severs his professional relationship with a patient who is in need of continuing health care. To succeed in an abandonment suit the plaintiff must prove five elements:

• that the doctor owed a duty to the patient;
• that the doctor's withdrawal was unilateral;
• that the patient was in need of continued treatment;
• that the patient sustained some injury from the lack of care;
• that the injury was caused by the physician's abandonment.

A doctor cannot "abandon" a patient to whom he owes no duty. Physician duties arise from the establishment of a doctor/patient relationship. Absent that fundamental relationship and its attendant duties, a patient has no basis to claim that he was abandoned. That much is true in every malpractice case. Abandonment claims have an additional element requiring the defendant to demonstrate the existence of a "treatment relationship" during the patient's present illness. A doctor who has previously treated a patient for a condition unrelated to the present problem is still free to decline to re-establish the doctor/patient relationship.

Complicating factors occasionally arise which can lead a court to find a duty under unlikely circumstances. A Virginia case, for example, involved a blind patient who made an appointment at a doctor's office. When she arrived, the doctor refused to see her unless she left her guide dog outside. She refused and brought suit for abandonment. The court denied the doctor's motion for summary judgment, holding that he would be liable if the patient could prove that she was unable to obtain timely treatment elsewhere and suffered damages because of that delay. This doctor had accepted the patient and was not free to attach unreasonable conditions to that acceptance after the fact. Lyons v. Grether, 239 S.E.2d 103 (Va. 1977).

Case Study: Failure to Tell the Patient to Return for Additional Treatment

A recent Massachusetts case involved a patient who slipped and fell while working on a truck. Joe Harlow hit the back of his head and neck and "felt a sharp pain in his left leg, the back of his neck, and from his left shoulder down to his left hand." He also reported tingling in the fingertips of his right hand. When the condition did not resolve within a few days, he went to an MD who spent a scant two to five minutes examining him. He "felt the back of the plaintiff's neck and tapped his elbows and kneecaps."

The MD diagnosed muscle spasm and recommended that Harlow avoid heavy lifting, apply heat and take aspirin. He also prescribed a muscle relaxant. The MD did not tell him to come back if the pain persisted or got worse. Harlow took the medication for the next 10 days and stayed home from work for 18 days because of the pain. When the pain intensified and began to involve the right leg, he finally went back to the doctor about three weeks after the accident.

Harlow collapsed while getting on an examination table and was rushed to a hospital where he was diagnosed as suffering from a herniated cervical disk at C-4 and C-5. Despite an attempt at surgical repair he was left a quadriplegic.

Jury Awards 6.3 Million Dollars!

The Supreme Judicial Court of Massachusetts upheld a jury award in excess of 6.3 million dollars! The court held that the jury could reasonably have believed the doctor was negligent in not taking a more detailed history. Moreover, it held he should have conducted a more extensive neurological examination and "told the plaintiff to return in two to three days if the pain continued." Harlow v. Chin, 545 N.E.2d 602 (Mass. 1989).

The law permits an inference that a warning once given to a patient will be followed. Harlow still had to prove, however, that such a warning would have avoided the injury. His expert testified that had Harlow returned to the doctor, he should have undergone x-rays which would have revealed no fracture, dislocation or tumor. A CAT scan would, therefore, have been performed which would have shown the bulging or herniated disk. Armed with that information, the doctors would have immobilized the plaintiff, operated on him earlier and probably prevented his quadriplegia.

What the Case Means to You

Technically this is not an abandonment case. It focuses entirely on the doctor's negligence in allowing the patient to conduct his normal routine when he was in need of continued, more aggressive care. There is, however, little meaningful difference between these facts and the case of a chiropractor who sees an acute trauma patient the day before the doctor takes a week's vacation and fails to either arrange for a "covering" doctor or to warn the patient to seek emergency care if his condition does not improve. Under those facts an abandonment analysis would certainly apply.

Liability also awaits the doctor who fails to provide instructions for continued care. "Even if personal attention is no longer necessary in the treatment ... the physician ... must furnish the patient with instruction as to [his condition's] care, and his failure to do so might become actionable negligence." DeLuryea v. Winthrop Labs, 697 F.2d 222 (8th Cir. 1983).

Situations in Which Chiropractors Are Most Likely to Attract Abandonment Claims

• discharging patients for non-cooperation
• doctor's retirement
• vacations and other absences
• moving away from the area
• transferring patients to an associate
• giving inadequate instructions to patients
• an angry patient discontinues care