Noncompliant Patients Increase Liability Risks for Practitioners

Richard F. Cahill, JD, Vice President and Associate General Counsel, The Doctors Company

Practitioners face potential liability when patients do not follow up as instructed or refuse at-home help. In the event a claim results, even a verdict decided in the practitioner’s favor does not negate the time, expense, reputational damage, adverse social media publicity, potential administrative investigations, or emotional toll created by a lawsuit.

Case Example

An older adult with a history of obesity, hypertension, hypercholesterolemia, atrial fibrillation, and cardiovascular disease saw the same physician for 20 years. During one hospitalization, the patient was put on the anticoagulant Coumadin. The physician and the discharge nurse both educated the patient and the patient’s spouse about the risks of Coumadin use and the importance of having blood work done every month. The conversations were appropriately documented in the patient record.

The patient did not, however, keep the first monthly appointment to check the international normalized ratio (INR). The physician’s staff called to schedule a follow-up visit, but the patient did not return the call. Two days after the call, the patient fell at home and was taken to the emergency department. The patient’s spouse told the staff that, although they had missed the appointment for blood work, the patient had taken the Coumadin as prescribed. The patient’s INR was 8.8—an extremely elevated reading (the therapeutic range for individuals on Coumadin is generally 2 to 3).

The patient was diagnosed with a bilateral subdural hematoma and underwent a bilateral craniotomy. After being discharged home, secondary to problems with coordination and confusion, the patient presented to the emergency department several more times over the next few months.

The patient sued for medical malpractice, claiming that the physician failed to properly manage the medication regimen and monitor blood levels, resulting in the fall, subsequent injury, and poor recovery. The patient also claimed that the physician was negligent in providing warnings about the risk of bleeding when taking Coumadin.

The case went to trial after extensive discovery was conducted. Because of the thorough documentation, the jury agreed that the physician had properly educated the patient and made the appropriate resources available to monitor the effects of the Coumadin. The jury also found that the patient’s failure to schedule necessary lab appointments and then follow up with an in-office visit as instructed was the cause of the injury. Accordingly, a defense verdict was rendered in favor of the physician.

Discussion

The patient in this case example neglected to follow physician instructions. Patient reluctance to follow a treatment plan or accept help is often caused by a lack of understanding. Patients may say that they are managing well and do not need help, or they worry about the cost. If home care is recommended, some individuals assert they do not want strangers in their home due to fear of harm or infectious diseases, such as COVID-19.

Patients who decline help may not get the necessary follow-up and support that the practitioner outlined in the treatment plan. When a patient declines follow-up as instructed—for any reason—the practitioner can be at increased risk for professional liability exposure.

Clear and timely documentation in the patient record—along with notations indicating the patient’s responses to instructions—enhance optimum outcomes, improve patient satisfaction, and help to mitigate the potential of being sued for professional negligence.

Patient Safety Strategies

Consider the following strategies to help reduce potential patient safety and malpractice risks when treating patients who refuse help or do not follow up:

• Conduct a risk analysis to determine how likely the patient is to comply with at-home instructions. Consider the patient’s age, mental capacity, ability to drive, independent living status, whether the patient provides self-care or requires a caretaker, the existence of a family support network, and any prior history of failing to comply with appointments, medication instructions, or orders for specialty referrals, diagnostic studies, therapeutic interventions, or other treatment regimens.
• Schedule the follow-up appointment before the patient leaves the office, and provide written documentation to the patient to reinforce all verbal instructions. File in the patient’s record a copy of all written instructions given to the patient.
• Use the Agency for Healthcare Research and Quality’s “Teach-Back” method to confirm the patient’s understanding of home care and follow-up instructions.
• Provide telehealth services, if possible, if patients are unable to keep scheduled appointments or refuse home health visits. (See our article “Top Seven Tips for Telehealth.”)
• Provide the patient and family with contact information for community home health resources, and document the information that was given to the patient. Educate the patient about why community resources are provided, and draw a distinction between what is and is not offered. 
• Document the following actions:
  • The patient received and understood verbal and written instructions.
  • The patient and any family members present were given the opportunity to ask questions.
  • Your response to any concerns raised by the patient and family members.
  • The resources made available to help the patient overcome compliance challenges.
  • The practice’s efforts to follow up and intervene if the patient was not in compliance.
• If the patient ultimately refuses to accept help or comply with follow-up, document the refusal in the patient’s record, ideally with a signed informed refusal form. (See our article and form on “Informed Refusal.”)

Taking the time to document patient discussions gives all caregivers valuable information to ensure that patients are following the plan. In the event of a lawsuit, it also demonstrates the high quality of care that was provided. Statistically, a well-documented patient record significantly decreases the likelihood of an adverse event and subsequent litigation.

For more information, see our article, “Nonadherent and Noncompliant Patients: Overcoming Barriers.” For guidance and assistance in addressing any patient safety or risk management concerns, contact your patient safety risk manager at (800) 421-2368 or by email.