Treating Unvaccinated Patients
MIEC has been receiving increasing calls from members who are concerned about patients who have not received a COVID vaccine. Members have expressed concerns regarding the safety of unvaccinated patients, other patients in the practice, and their staff. Some members have expressed an unwillingness to continue treating patients who are either vaccine-hesitant or who have refused to get vaccinated, or they are unwilling to see these patients in their offices.
To address this question more broadly, MIEC turned to ECRI, which provided the following recommendations based on a review of clinical and gray literature and ECRI resources. ECRI answers questions like this one as part of MIEC’s membership in ECRI risk management programs.
“Individual physicians who have said they will refuse to see patients who are medically eligible but have not been vaccinated against COVID-19, by either refusing to see them at all or refusing to see them except via telehealth, have received media attention (see, for example, articles in the August 21, 2021, NBC News and September 5, 2021, USA Today). However, physicians should carefully consider the legal, ethical, and practical implications of such an approach.
Physicians must take care not to discriminate based on legally protected factors, as discussed in an August 25, 2021, article from Northeastern University. The Civil Rights Act of 1964 prohibits excluding people from participating in federal healthcare programs based on race, color, or national origin or discriminating against people on such basis in any activity that receives federal financial assistance. (42 U.S.C. § 2000d). Similarly, Section 1557 of the Patient Protection and Affordable Care Act of 2010 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities (42 U.S.C. § 18116(a); 45 C.F.R. § 92.1).
The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 prohibit discrimination against people with disabilities. Thus, physician practices may need to accommodate patients who have contraindications to receiving the vaccine. Laws prohibiting disability-based discrimination may bear on the situation in other ways as well; consult legal counsel for advice.
State and local laws may include nondiscrimination or other provisions that are more stringent than federal laws. Patients may bring lawsuits alleging patient abandonment or breach of contract. In addition, state medical board rules may also define unprofessional conduct as including patient abandonment (or other conduct that may arguably apply to the situation), potentially opening the provider up to complaints to the board and disciplinary action if the conduct is found to violate board rules.
Risk managers whose physician practices are considering refusing to care for patients unvaccinated against COVID-19 may wish to consult legal counsel to identify other relevant laws and regulations and consider how applicable laws may apply to their situation.
Two ethicists writing in an August 24, 2021, NBC News article about doctors’ refusal to see patients unvaccinated against COVID-19 stated, “It would be unethical if a doctor were to refuse treatment because of anger, resentment or frustration, including over a patient’s decision not to get vaccinated.” However, they added that it can be ethical to refuse services if the patient’s actions impede the physician’s ability to provide effective, safe treatment. This may the case, they noted, when the refusal is meant to protect staff and other patients and to assign scarce resources such as intensive care unit (ICU) beds to those with the highest likelihood of survival. One doctor’s refusal to serve unvaccinated patients because he couldn’t “watch them die like that” was ethically indefensible, the ethicists wrote, because he seemingly did it to spare himself pain rather than to protect staff or other patients. Refusing to see unvaccinated patients is also unethical if the physician practice can use other means to create environments to safely care for patients, the ethicists wrote.
Similarly, responding to a physician’s question about whether they can refuse to see patients who have not been vaccinated against COVID-19, one ethicist wrote, in a July 13, 2021, New York Times column, “You are not free to make decisions that could reasonably be viewed as punitive.” The ethicist added, “You can certainly insist on their keeping away from the premises if they pose a genuine risk to others in your practice.” However, the ethicist noted that the risk to others was low given that the physician had said that all of the staff and most of their patients were already vaccinated and that the physician would likely require unvaccinated patients to social distance and wear masks.
While largely addressing the question of rationing acute care (e.g., ICU beds) based on COVID-19 vaccination status, an ethicist writing in an August 23, 2021, Washington Post article stated that it is indefensible to deny patients care in order to punish them for making unhealthy choices, noting, as an example, that lung cancer treatment is not withheld from people who have smoked. However, he also wrote that COVID-19 vaccine refusal may be a factor when the unvaccinated patient poses a threat to staff or other patients and when failure to vaccinate leads to a worse health outcome. “Patients should expect to be told that being tested and wearing a mask are conditions of receiving care,” the ethicist wrote. “For non-urgent care in which sufficient advance notice is given, requiring vaccination as a condition of continued service might also be defensible, particularly if the patient has access to alternatives.”
Although requiring COVID-19 vaccination as a condition of service may seem to promote vaccination, such approaches are “coercive,” according to the ethicists who wrote the NBC News article. Some believe that refusing to treat those unvaccinated against COVID-19 is a missed opportunity to build trust and encourage vaccination, as discussed in an August 24, 2021, Healthline article. Dismissal of unvaccinated patients may also adversely affect access to care, particularly in areas where few or no alternatives are available and readily accessible to patients.
It is not uncommon for pediatric practices to have policies of dismissing patients whose families refuse childhood vaccines. In a 2019 survey of 303 pediatricians, 51% said their office had a policy of dismissing families who refused primary series vaccines, and 37% said they often or always dismiss families for such reasons. An American Academy of Pediatrics report on vaccine hesitancy said that pediatricians “may consider dismissal of families who refuse vaccination as an acceptable option.” But the report also noted, “The decision to dismiss a family who continues to refuse immunization is not one that should be made lightly, nor should it be made without considering and respecting the reasons for the parents’ point of view.” The report stated that if insufficient availability of other providers would leave the patient and family with inadequate access to care, pediatricians should continue to provide care rather than dismiss the family. Organizational policy (e.g., of an employing health system) may also bar physicians from dismissing patients for such reasons, the report added.
An alternative to dismissing patients who refuse to get vaccinated against COVID-19 is to keep seeing such patients but promote vaccination. Even if the practice does decide to dismiss unvaccinated patients, it is important to first make efforts to promote vaccination to the patient by listening to and addressing the patient’s concerns.
An AAFP News Blog post and a 2014 Family Practice Management article described various approaches to conversations involving vaccine hesitancy (not specific to COVID-19). In addition to asking about and listening to patients’ reasons for declining the vaccine, the New York Times ethicist stated that physicians could consider routinely offering unvaccinated patients telehealth appointments, when medically appropriate.
If after consultation with legal counsel and ethical consideration a physician does decide to dismiss patients who refuse COVID-19 vaccination, the physician must take steps to reduce the risk that a lawsuit for patient abandonment or breach of contract would be successful or that the physician would face discipline by the state medical board. Physicians should consider consulting legal counsel to determine how best to avoid such claims and board discipline under applicable state law, as requirements may vary from state to state.
The American Medical Association’s (AMA) Code of Medical Ethics Opinion 1.1.5 notes that “physicians’ fiduciary responsibility to patients entails an obligation to support continuity of care for their patients.” The opinion further states that when considering terminating the physician-patient relationship, the physician must:
- “Notify the patient (or authorized decision maker) long enough in advance to permit the patient to secure another physician” and
- “Facilitate transfer of care when appropriate.”
The AMA does not specify a required time frame for notice. The physician may wish to consider sending a letter terminating the relationship by certified mail with return receipt requested as proof that the letter was sent on a particular day. The physician should also at least give the patient a list of physicians in the area who may be able to provide care for the patient and facilitate transmission of the patient’s health records.”
Withdrawing from Care
Physicians are permitted to withdraw from a patient’s care for any non-discriminatory reason; however, certain procedures must be followed to avoid a claim of patient abandonment.
MIEC recommends that physicians who choose to withdraw from care follow guidelines established by the American Academy of Family Practice, which recommends providing patients with a minimum of 15 days written notice with information as to how a patient can locate another physician and obtain a copy of their medical records. For more information and a sample withdrawal from care letter, see MIEC’s article entitled How to Discharge a Patient from Your Medical Practice.
For assistance with specific patients and/or assistance in withdrawing from care, MIEC members should contact the MIEC Claims Department.
For further information and general guidance around treating unvaccinated patients, please contact MIEC’s Patient Safety & Risk Management team.