Written by Dr. Medlaw:
So many years and so much study spent. Pre-med. Medical school. Residency. Practice and continued education. All to gain the skills and knowledge to help your patients stay well and get well.
…and yet, some patients just will just not work with you for their own benefit.
As Tom Paine might have said if he were a doctor, non-compliant patients are the patients that try doctors’ souls.
They are also a significant liability risk, more likely to have a bad outcome because they are not following good advice, and also more likely to complain or to sue about it because they are already in an adversarial relationship with their doctor.
In this column we will look at two essential medicolegal aspects of dealing with non-compliant patients: avoiding a case ever occurring and using the facts of the non-compliance in your defense if it does.
The first step in avoiding liability due to patient non-compliance is identifying that the patient actually is non-compliant. You are a fiduciary for your patients so part of your job is being aware of their compliance or lack of it.
Putting in a prescription or making a referral for a consultation is actually just a first step. The patient should be told to touch base with the office about the results or the medication and contacted if they do not. Care at the other office should be tracked and if a timely report is not received from the consultant then they should be contacted to find out if the patient actually kept the appointment.
Patients who break a pattern should also be a trigger for contact. For example, if your patient sends you their glucometer readings in real time then a new lapse in doing so should be followed up on.
If you have a patient portal system, you should also have a protocol in place to follow-up on instructions relayed to patients through that.
Once a compliance problem is identified, your next steps are inquiring as to the reason for the non-compliance and doing what you can to counter it.
The patient may have started going to websites that encourage mistrust of cancer medication, or they may be working a new shift that makes it hard for them properly monitor their blood sugar, or they just be unable to afford their new glaucoma medication and so are trying to spread out their doses. Your record must reflect your attempt to determine what correctable issues underlie the non-compliance and what steps that you took to counter it, such as the facts that you gave to correct the patient’s misconceptions or the change in regimen that you set up to accommodate the patient’s work schedule or the program that you directed the patient to that discounts the drug that they need.
If non-compliance is not solvable as a single issue and verbal reminders are not fruitful then you can consider a treatment contract. The value of these is that rather than generalized statements like “You have to take your blood pressure medication and watch your salt intake”, they break the compliance down into specific acts of patient cooperation – filling prescriptions on time, coming for appointments, meeting stepwise treatment goals – that may be easier to follow. These go to the fact that patients may not be non-compliant because of resistance but because the patterns of their lives have to be meshed with the treatment and they fail in that when trying to do so globally.
If this fails, then your last option would be an “at risk” letter that states the specific non-compliant acts and their clinical consequences. This can include the warning that a failure to correct the non-compliance will result in termination from the practice.
You should not, however, do as some doctors try as an attempted self-help measure, and create a “decline” note in which the patient signs their refusal to comply. Unlike an AMA note in a hospital, after which the patient actually leaves, you would be retaining the patient in your practice despite being unable to treat them as you believe is proper. You cannot delegate the Standard of Care to a patient and a note that actually documents your agreement to treat inadequately would go beyond a statement of negligence on your part and become intentional misconduct, which could underpin a board complaint or a lawsuit but which your malpractice insurance will not cover.
Before going on to the next steps, it is important to take away the fact that documentation in the non-compliance setting should never be just tacked on or simply griping.
That the medicolegal issues that you need to hedge against are grounded in informed consent/refusal may seem counter-intuitive. After all, an informed patient has an absolute right to refuse even proper treatment, while a non-compliant patient actually agreed to treatment and then did not follow through on it. However, establishing that the patient is being non-compliant rather than just being ill-informed is something that your records need to demonstrate. You must anticipate what an attorney considering the case or a medical board investigator looking into a complaint would logically ask: “If this was essential for the patient to do, where is the proof that you explained that to them?” Your records should document the risks/benefits discussions that you had with the patient, including their understanding of the role of the care in their prognosis.
The other side of good documentation is making sure that your descriptions of the patient’s non-compliant conduct are cool and professional, stating the fact of the non-compliance undeniably but without condemnatory or self-serving language. This is not an easy restriction to self-enforce, since these patients are very frustrating to deal with, but an attorney or an investigator will quickly notice how discordant florid blaming or clear exasperation are from the claims to have properly instructed the patient. It is in your self-interest to not vent.
That having been said, the language should not be so removed as to become meaningless in convincing a reviewer that you are not an appropriate target or in closing off patient claims that you never said something that you actually did. Boilerplate lacks the individuality to the patient that you want to show as proof that their non-compliance was not due to a failure on your part to convey the medical issues to them. For an example, a note that says “Counseled patient on medication compliance” does little for you as compared to one that says “Mr. Patient’s failure to take the prescribed dose of Lipitor regularly was again discussed, emphasizing the significant risks of stroke and cardiovascular disease.”
Of course, there can come a point at which, despite your best efforts to deal with the non-compliance, the therapeutic relationship is irrevocably broken down and it is necessary for you to step away because the patient is actually preventing you from practicing medicine properly, thereby actually creating liability for malpractice. At this point you will have to terminate the patient from your practice.
The countervailing medicolegal issue that you will then have to consider is abandonment. This point cannot be over-emphasized because although many doctors believe that if they comply with minimum statutory requirements such as 30 day notice and emergency coverage that they cannot be subject to a claim of abandonment, medical boards and courts start from the premise that a patient is in an inherently vulnerable position relative to the doctor and will give them leeway. If you are going to take the maximum step against someone who is already in opposition to you, and therefore more likely to engage in retaliatory conduct, you need to do so carefully.
The termination should not be summary, as it would be for a patient whom you catch stealing or who threatens you. Non-compliance leading to no option but termination is a gradual process by definition and so an evaluator will want to see that it was handled that way. As we discussed earlier, as part of actual treatment there should have been several appropriate verbal warnings and/or a patient contract, and then an “at risk” letter, all of which should be documented. The records should be clear that the patient was made aware of the problem and of the risks of not correcting it and was also under notice that their continuation with the practice was now probationary and would end unless they complied with the necessities of proper care.
You should also consider stating the reason for the termination in the letter. The general rule is to not give a specific reason, but here stating “As we have discussed, and as outlined in the treatment contract that you agreed to, it was essential that you follow through on prescribed care. Due to your continued refusal to follow treatment guidelines, this practice will no longer be able to retain you as a patient as of (date)” may stop a retaliatory process before it starts. However, keep it very short and business-like – a litany of how awful the patient’s conduct was and the disrespect for your efforts that it showed will undercut you, making the termination sound punitive rather than being due to your obligations to not go along with substandard care.
Now, let’s move on to the situation in which, despite your best efforts, your patient suffered a poor outcome and you are being sued for malpractice.
Ideally, you would like to stop the process before it reaches the courtroom. To that end, your attorney would file a Motion for Summary Judgment, asking the judge to dismiss the case as a matter of law because the plaintiff cannot meet their burden of proof. The plaintiff would be required to “lay bare their proof” that it was actually your conduct that was the proximate cause of the harm.
The judge may decide the Motion on papers alone or may hold a hearing at which the attorneys can offer argument but there will not be any witnesses called. Your “witness” will therefore be the medical record. Courts are generally loathe to deny a plaintiff their day in court, and so the record must be very clear as to the patient’s resistance to your efforts to work with them and your informing them of the serious consequences of their non-compliance and of the likelihood that it would cause the very harm that they then suffered.
If this Motion fails and the matter proceeds to trial, you still have strong defenses to raise based on the patient’s non-compliance.
- Contributory negligence is an archaic defense that is still retained only in a minimal number of jurisdictions. It holds that a plaintiff who has any fault at all in their injuries may not recover damages for those injuries. If you are in one of those jurisdictions, your ability to demonstrate that patient non-compliance contributed at all to the claimed harm will bar any recovery against you.
- Comparative negligence does exactly what its name implies: it compares how much at fault each side was. In some jurisdictions no amount of plaintiff fault bars recovery and in others there is a cut-off beyond which the plaintiff is barred. If a case goes through then any recovery will be off-set by the proportion of the plaintiff’s fault. In any comparative negligence jurisdiction patient non-compliance will therefore be a critical issue because even if the case is not barred and the patient wins, the damages will be reduced.
There is also an additional issue, the plaintiff’s duty of mitigation. This legal principle applies to the conduct of the patient after a harm has been recognized. Plaintiffs must show that they did what they reasonably could to minimize the effect that the negligence that they are suing about had on them. Therefore, even if you do have actionable liability for an error of your own, if the patient was non-compliant with well-advised recommendations for correction, that comes into evidence and acts as a damages offset.
In all of these settings, the critical role of good documentation is obvious, so when dealing with a persistently non-compliant patient, think ahead to how you would counter a malpractice claim when you create the record. A clear contemporaneous record of the patient’s ongoing non-compliant conduct despite your efforts to have them act in a medically responsible way is the key to a solid defense.
In summary: When dealing with a non-compliant patient the doctor must satisfy the requirements of their fiduciary duty to keep the patient informed and to try to solve the non-compliance. Termination of the doctor-patient relationship should be a last recourse if non-compliance cannot be resolved because a doctor cannot cooperate in what they know to be substandard care. It is always essential to anticipate a complaint or lawsuit and to document the issues carefully.