Seemingly 'slam dunk' cases end up being settled
" Why did you have to settle a case when the patient didn't comply?" is a question Ashley Watkins Umbach, JD, senior risk management consultant at ProAssurance Companies in Birmingham, AL, is occasionally asked, and the answer is always the same: "It's because the doctor just didn't have any documentation to rely on," she says.
A recent successful lawsuit involving a patient's non-compliance "should have been a slam dunk and should have never been filed," says Umbach.
A gastroenterologist treating a close friend with colitis performed a colonoscopy that showed some dysplasia, and the doctor recommended a yearly colonoscopy.
The gastroenterologist called his friend to remind him to have the test, but the friend refused and said he couldn't make the time. "The second year, the [gastroenterologist] told him it was especially important that he have the test, but the friend said his stomach was feeling really great and he thought the colonoscopy would irritate it," she says. Seven years later, the patient was diagnosed with a rare form of aggressive cancer that he subsequently died from, and the family sued.
"You'd never expect a suit would have been filed, because the patient refused the colonoscopy," says Umbach. Unfortunately, the doctor didn't chart the phone calls or the patient's refusal, so the jury had nothing but his word to rely upon.
"This also shows the problem of treating friends and not keeping a chart the same way you do with your other patients," says Umbach. "For various unusual reasons, the judge did not allow the [gastroenterologist] not to testify to anything that was not in the medical record." As a result, the case that initially seemed to be a "slam dunk" ended up being settled.
Show patient was fully informed
Bobbie S. Sprader, JD, an attorney with Bricker & Eckler in Columbus, OH, said, "Patients can refuse testing for a whole host of reasons, from fear and lack of time to lack of funding, and everything in between."
In one malpractice suit, a primary care physician recommended a colonoscopy, but a patient wanted to defer further testing. The patient sued after being diagnosed with colon cancer.
"He blamed the primary care physician for not following up further at subsequent visits and for not convincing him that the test was really necessary," says Sprader.
Documentation showing that the patient was fully informed of the risks of refusing the test makes such claims more defensible. "Physicians need to document this interaction so they can prove that it happened years later," she says.
Such documentation, says Sprader, "helps us defend cases when the patient does not get the recommended testing and then either 'forgets' that it was recommended or is no longer living and her family claims that she would never, ever decline a recommended test."
She says physicians should consider these practices:
- If there is a commercially available pamphlet that does a good job of explaining the reason for the recommendation, physicians should give it to the patient and note that this step was done.
- If the patient is declining testing for financial reasons, physicians can try to help.
"I am not saying that they pay for the study, but they may be able to push insurance to cover it or seek some form of discounted rate if the patient does not have insurance," says Sprader. The physician can offer an alternative plan that is less expensive, even if it is not as good.
"Again, they should document this compromise and note that it is due to patient preference and not physician preference," says Sprader.
Chart should reflect a caring MD
Umbach recommends physicians have a system in place for tracking no-shows and follow-up that doesn't occur and that everyone in the practice follow the same system.
"The more documentation you have, the better," says Umbach. One attempted phone call is not nearly as persuasive as documentation of repeated calls and the substance of the conversations. It is particularly important to document the facts that were conveyed to the patient about the risks of failing to take the recommended action.
"If you are unable to reach the patient, it's also helpful to document that you tried to contact them in various ways," says Umbach. This contact might include phone calls, letters, certified letters, or Googling for another address or phone number, especially if the condition requiring follow-up is severe.
"A jury wants to see that the physician cares about the patient," says Umbach. "Calling or writing to emphasize that the patient's health will be in jeopardy if he fails to follow up conveys this feeling."
Some documentation is always better than none. "A general notation that preventative screening was discussed is better than silence," says Sprader. "However, in order to dissuade a plaintiff's attorney from filing suit, the best documentation will state specifically what testing was recommended and why."
Patient must understand refusal
When a patient refuses a test or procedure, the physician must first be certain that the patient understands the consequences of doing so, says James Scibilia, MD, a Beaver Falls, PA-based pediatrician and member of the American Academy of Pediatrics' Committee on Medical Liability and Risk Management.
"Often, the patient may not fully grasp the reason for the test or procedure, or what could happen if treatment is delayed," says Scibilia. The patient might be worried about the cost or confused due to medical terminology, language issues, or a mental or physical impairment such as hearing loss. "Educating the patient about the physician's thought process and specific concerns can be very enlightening to the patient," says Scibilia.
Communication breakdowns are the most common complaint of patients in lawsuits, he emphasizes. Empathic and comprehensive discussion with patients is an important element of managing this risk. "Document when patients admit to non-compliance, and document discussions or instructions you give to patients who are, or who are likely to be, non-compliant," says Scibilia.
In some states the principle of "comparative fault" or "contributory negligence" will place some of the blame on the patient for failure to get recommended treatment. "In these cases, the burden of proof is on the defendant to prove the plaintiff contributed to his own injury," cautions Scibilia.
- James Scibilia, MD, Beaver Falls, PA. Email: firstname.lastname@example.org.
- Bobbie S. Sprader, JD, Bricker & Eckler, Columbus, OH. Phone: (614) 227-2315. Fax: (614) 227-2390. Email: email@example.com.
- Ashley Watkins Umbach, JD, Senior Risk Management Consultant, ProAssurance Companies, Birmingham, AL. Phone: (205) 877-4481. Fax: (205) 414-2868. Email: firstname.lastname@example.org.