MDNews - Greater Kansas

++++++++++++++++ +++ +++ ++++++++++++++++ LEGAL RX + + Refusing to Vaccinate and the Right to Refuse By Mary E. Christopher, J.D. AN Treatment I S S U E H A S RECENTLY arisen in the pediatric com- munity regarding whether it is appropriate to refuse to treat children whose parents refuse vaccina- tions. Eighty-fi ve percent of pediatricians reported encountering a parent who refused or delayed administration of one or more vaccines to his or her child, and 54% reported encountering a parent who refused all vaccines in a 12-month period.1 Cognizant of the potential health threats to infants and underimmunized children in their waiting rooms, some pediatricians are refusing to treat unvac- cinated children. A physician-patient relationship is contractual and generally requires the consent, express or implied, of both the doctor and the patient. If no physician-patient relationship is in place, a physician has no duty to render treatment to anyone.2 If a patient has not sought medical advice or treatment, no physician-patient relationship exists.3 There are instances, such as medical emergencies, when agreement to treat may be implied, however. Generally, a patient-physician relation- ship can be said to occur when a patient seeks medical services and the physician agrees to serve the patient's medical needs. In some instances, however, a physician's agreement to undertake a physician-patient relationship may be implied, such as in emergency situations, when the physician provides advice by communicating through another health care professional or when consultation services are performed at the request of the treating physician. So long as the person for whom treatment is requested is not in a life-or-death situation and the physician's reason for refusal is nondis- criminatory, a physician generally will not run afoul of the law by refusing to treat. Examples of legitimate reasons for refusing to take on a person as a patient would include not accepting certain insurance, the volume of patients you are already treating, and not special- izing in the specifi c problem presented. Reasons for refusal that could invite legal consequences include the patient's race, religion or disability (some contagious diseases, such as asymptomatic HIV, are considered disabilities for purposes of the Americans With Disabilities Act). Once a physician-patient relationship is established, the general rule is the physi- cian has a duty to continue providing care to the patient until that relationship is terminated by mutual consent, the patient's dismissal of the physician or when services are no longer needed. A physician may not unilaterally end an existing relationship unless he or she fi rst provides reasonable written notice to the patient and suffi cient time to locate another doctor. If a patient refuses to follow the physician's plan of care or to comply with an appropriate treatment regimen — and the patient's condition is not emergent — the physician may unilaterally terminate the relationship. Care must be taken to ensure the proper steps are taken, as refusing to treat a patient's medical needs may well con- stitute patient abandonment, a potential violation of both professional ethics and the law. This article continues online. To read Christopher's article in its entirely, please visit www.gseplaw.com and look under the "News and Events" banner at the top of the page. Mary E. Christopher, J.D., of Goodell, Stratton, Edmonds & Palmer, LLP, primarily focuses on health care law, civil litigation, and appellate practice. She may be reached by e-mail at mchristopher@gseplaw.com. s References: 1. American Academy of Pediatrics, "Documenting Parental Refusal to Have Their Children Vaccinated," available September 2011 at www.aap.org. 2. Under Kansas law, a physician's duty of care is limited to those situations where a physician-patient relationship exists. See Esquivel v. Watters, 154 P.3d 1184 (2007). 3. Fredericks v. Jonsson, 609 F.3d 1096 (10th Cir. 2010). MDNEWS.COM MD NEWS Greater Kansas | 13

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