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Patient Non-Compliance— A Powerful Legal Defense

By: Becky Summey-Lowman, LD, CPHRM
6-3-3 This article is reprinted with permission from Healthcare Risk Manager, a publication of MAG Mutual Insurance Company’s Risk Management/Patient Safety Department, Vol. 15, Number 1.   There is little doubt to any practicing physician that patient non-compliance is a significant and contributory factor to poor outcomes. There is also little doubt that patient non-compliance can often lead to more aggressive and costly treatments. What you may not know is the extent that to which a patient’s noncompliance can increase your risk for a medical malpractice claim and how much good documentation can protect you.   While it is reasonable for you to expect a patient to share in the responsibility for their own care, juries nationwide have placed a significant amount of responsibility for follow-up on the provider. When patients fail to follow treatment advice, it is prudent to document this in the medical record. There are compelling reasons for providers to document patient noncompliance. If such non-compliance contributes to an injury that results in a malpractice suit, it can usually be introduced as evidence in the doctor’s defense. Documentation of patient noncompliance can may provide a powerful defense to any lawsuit.   Depending upon the comparative fault laws in your state, a plaintiff’s recovery is reduced or prohibited based on the percentage fault attributed to the plaintiff. A recent case involved the death, while hospitalized, of a 39 year old 6’4, 225 white male 11 days post bilateral laminectomy and lumbar decompression at the L3-4 and L4-5 from a pulmonary embolism. The MAG Mutual insured neurosurgeon ordered TED and SCD devices for the patient upon his presentation in the emergency department. This order was never discontinued, but the patient was non-compliant throughout his hospitalization, despite repeated education by the medical team of the risk associated with a deep vein thrombosis (DVT).   The plaintiff contended that because our physician never documented his conversation with the patient regarding the possible risk of DVT and because he failed to implement heparin therapy these actions rose to the level of malpractice.   The MAG Mutual defense team put forth a strong defense that showed the patient’s refusal to follow medical instructions and the risks associated with heparin therapy. Our physician did an excellent job during his testimony educating the jury about the surgical procedure including his normal practice of explaining the risks associated with blood clots. It was also brought out in the testimony by the nurses, physical therapist and nursing assistant regarding their diligence in ambulating the patient and explaining the risk for DVT to both the patient and his wife. After a week of trial the jury returned a defense verdict, following 45 minutes of deliberations.   Non-Compliance versus Patient’s Right to Make Decision Regarding Medical Treatments.   It is important to recognize the difference between noncompliance and the patient’s right to refuse care. Patients have the right to make informed decisions regarding their care, including being informed of their health status, being involved in care planning and treatment, and being able to request or refuse treatment. Non-compliance may be the result of an educated, rational and reasonable decision on the patient’s part to exercise control over their healthcare. The medical record should include documentation that the diagnosis and proposed procedure/treatments were explained to the patient and that the explanation included the patient’s prognosis without the procedure, the risks and benefits, and alternative therapies.   Consider the following suggestions to enhance patient compliance:

• Emphasize the seriousness and urgency of any recommended tests.

• Explain the rationale for your treatment advice

• Allow the patient to voice any concerns they have about recommended treatments

• Suggest treatments that are reasonable, taking into account the patient’s lifestyle, finances and ability to comply

• Whenever possible, give patients the opportunity to think about proposed treatments prior to making a final decision

• Provide simple written information to patients and others who are involved in their care

• Attempt to gain agreement on the treatment plan effective.”

  A sample informed refusal form can be found on the MAG Mutual website at www.magmutual.com.   Risk Management Strategies   Document Non-Compliance/Informed Refusal   When the patient has failed to comply with your recommendations, document the non-compliance. Among the more common problem areas are:

• Repeated failure to keep appointments;

• Failure to have diagnostic testing or consultation as recommended

• Failure to comply with medication therapy

• Failure to follow medication monitoring recommendations (for example, warfarin monitoring)

  Carefully notate episodes of non-compliance, avoiding any documentation that may look judgmental or self-serving. An example of an adequately documented informed refusal discussion is as follows:   “A breast ultrasound has been recommended to evaluate the palpable lesion on the right breast. The patient states that her insurance “will not be effective for ninety days” and elects not to have the test done pending coverage by insurance plan. The risk of delay was discussed with the patient to include the possibility of a malignancy, and the risks of a potentially life threatening delay in diagnosis and treatment. The patient verbalizes understanding of the information provided. I have asked my staff to investigate and advise her of any financial assistance that may be available. She was advised to contact me as soon as possible if she reconsiders this decision or as soon as insurance coverage is     Document Screening Recommendations   Advise patients of preventative health screenings and document these discussions. Failure to do so could result in an allegation of a delay in diagnosis if a metastatic or potentially life-threatening condition is not detected in a timely manner.     Inform Patients of Test Results in a Timely Manner   Inform patients of test results in a timely manner. Results that are indicative of a potentially life threatening illness may be best communicated by the physician personally to allow the patient the opportunity for questions and agreement on future treatment plans.     Maintain a Reliable Clinical Tracking System   Without a reliable clinical tracking system, it may be difficult to identify patients who fail to keep scheduled appointments for tests and consultations with specialists. Whenever possible, schedule referrals and follow-up appointments before the patient leave the office. If the patient refuses the test, due to financial or other reasons, this should be well documented. Failure to maintain reliable clinical tracking systems is one of the most frequently cited problems in medical malpractice cases where there is an allegation of delay in diagnosis and/or failure to supervise care.     Coordinate Treatment Plans with Other Providers Involved in the Patient’s Care   Maintain good communication with other providers involved in the patient’s care and maintain a clear understanding of the expectations and role in the patient’s plan of care. Ask consultants to notify you if the patient fails to keep an appointment and request periodic updates on the care and treatment plan or a summary at the conclusion of care, whichever is appropriate.   Informed Consent   Inform patients regarding any alternatives, benefits, risks and complications associated with the proposed treatments or tests. Document all informed consent and informed refusal discussions. In conclusion, given the extensive research on patient noncompliance, it is reasonable to maintain a high index of suspicion for non-compliance on all patients. The best approach is to maintain effective communications with patients and take proactive measures to enhance treatment goals. However, when patients fail to follow recommended advice and a poor outcomes result in a medical malpractice claim, objective documentation of non-compliance can be your most powerful defense.   References: 1. The Food and Drug Administration and the National Council on Patient Information. Healthy Living: Be a Good Patient and Follow Directions. Available at www.healthlink.com/health_good_patient.asp. Accessed 30 Sept. 2003. 2. The Prevalence and Incidence of Patient Noncompliance Section, with citations, is available for download in PDF format from Dr. Showalter’s Align- Map.com site: ~Noncompliance Incidence and Prevalence~ 3. Online Reference http://www.musc.edu/catalyst/ archive/2001/co1-19pharmacy.htm 04/02/01,11785 bytes