Malpractice Case: Protect Yourself From a Noncompliant Patient

Gordon T. Ownby


April 19, 2019

Medscape Editor's Key Points:

  • When treating a patient who doesn't follow treatment instructions, physicians should document their recommended treatment plans.

  • If patients fail to show up for an appointment or to maintain regular visits, keep detailed notes, including reminders sent and/or phone calls made.

  • Don't lose patience with documenting your efforts to encourage the patient to get appropriate tests.

Pay Attention to Patients Who May Ignore You

Noncompliant patients: Perhaps the only physicians who do not have them work in the coroner's office. When physicians deal with patients who will not follow their advice for further tests and follow-up visits, apprehension over liability is probably second only to concern over the patient's health. While there is only so much a physician can do to safeguard the health of these patients, protecting against a lawsuit is a matter of diligence and documentation.

Dr. IM, an internist, treated a middle-aged gentleman with diabetes and gallbladder disease over an 8-year period. At the end of the first year, the patient developed pulmonary coccidioidomycosis, requiring hospitalization, bronchoscopy, and transbronchial lung biopsy. A specialist treating the patient during the hospitalization found no malignancy and treated the patient with IV erythromycin and Zinacef [cefuroxime]. The patient remained on antibiotic therapy for the next year but also developed a fungal pneumonia.

During the next 2 years, Dr. IM managed the patient's diabetes, seeing the patient five to six times per year. However, the frequency of visits dropped and the patient made only one visit the next year, despite the doctor's use of appointment-reminder cards, notations of which were made in the records.

The patient returned a year later when he suffered from flu-like symptoms, including coughing, fatigue, and a slight temperature.

On the next visit, the patient showed no improvement. Dr. IM ordered a chest x-ray. The radiologist reported moderate right and left pleural effusion and recommended a chest CT scan. When Dr. IM reported the abnormal chest x-ray results, the patient refused a referral to a pulmonologist. The patient did say that he would undergo the CT scan, and Dr. IM also prescribed Lasix [furosemide].

The patient returned in a month but had not made an appointment with the radiologist for the scan. Though the patient reported that he was breathing better, Dr. IM told him that he was still concerned about the pleural effusion and that he needed to have the chest CT performed.

On the next visit a month later, the patient had still not gone for the scan. Dr. IM noted decreased breath sounds at the lung bases and noted significant fluid retention. Dr. IM told the patient that he must have the scan done as soon as possible.

The patient finally visited the radiologist 3 weeks later. The CT scan revealed a large bilateral pleural effusion and borderline enlargement of the left adrenal gland. The right middle and right lower lobes of the lung were nearly collapsed. According to the radiologist, these presentations were new from the x-ray done 3 months earlier.

Dr. IM referred the patient to a pulmonary specialist for follow-up. Though Dr. IM had no further contact with the patient, his chart did contain another CT scan performed a month after the first. This scan showed mild enlargement of the left adrenal gland and persistent bilateral pleural effusion.

Some 3 months after the patient's last visit, Dr. IM received a telephone call from the patient's family informing him of the patient's death. That same month, the family requested the patient's medical records. Then, just a day short of the 1-year period for filing a suit for personal injury, Dr. IM received a letter from the patient's brother, mentioning an intention to sue and citing Code of Civil Procedure Section 364, the so-called 90-day notice statute.

Despite that letter, the preparation of which showed some legal knowledge, no lawsuit ever took place. Most likely, any attorney reviewing the records noted the patient's chronic noncompliance. More importantly, the records showed Dr. IM's consistent attempts to keep the patient on schedule and repeated warnings on the importance of obtaining the CT scan.

Though the first goal of any doctor's approach to a noncompliant patient is to motivate the individual to get the necessary care, the documentation of those efforts has the added benefit of helping to defend against a lawsuit that may still arise.

This case comes from Medicine on Trial, originally published by Cooperative of American Physicians, Inc., to provide risk management lessons from litigated case histories. The article was originally titled "Documentation Is Key When Patients Don't Comply."


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