"I can’t afford that test." "My insurance says I have a $2,000 deductible." "I haven’t filled that prescription in months because it costs too much." How a physician responds to such statements from patients could play a role in whether he or she faces a malpractice suit if a bad outcome occurs.
"Ignoring these statements isn’t a good idea," says Anupam B. Jena, MD, PhD, an assistant professor of health care policy and medicine at Harvard Medical School and a physician in the Department of Medicine at Massachusetts General Hospital, both in Boston.
"Good communication is the cornerstone of good patient care, and it has the extra benefit of probably lowering malpractice risk," says Jena. "Open conversations and shared decision making about these issues would therefore probably lower malpractice risk."
Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services in Madison, WI, and a Rockford, IL-based attorney, has seen a patient’s inability to pay for care become a factor in malpractice litigation in these ways:
• The patient is unable to obtain medications or other care, and a bad outcome results.
"If not handled with the proper approach, adverse outcomes can lead to claims and litigation," says Frew.
• In a small percentage of cases, individuals might sue as a last resort, when all other options to cope with the expense appear hopeless.1
Frew has seen some malpractice lawsuits triggered by aggressive collection actions by a hospital or physician practice, by patients who already were dissatisfied with their care.
"This forces the patient into a perceived need to take defensive action," he says.
• A patient who lacks funds for needed medical care perceives the physician as uncaring about the patient’s financial situation.
"This perception on the part of a patient or family tends to generate the most common source of litigation: anger and frustration with the system," says Frew. "The patient seeks to correct a perceived injustice."
Informed consent is issue
Physicians need to understand how economics might play into their malpractice risks, says Dana Welle, DO, JD, FACOG, FACS, physician risk consultant at Stanford (CA) Hospital & Clinics, "and at the heart of this issue is informed consent."
While a physician should make clinical recommendations based on the standard of care, she says, patients also need to understand the costs associated with recommended care. Once a patient understands the recommended treatment and alternatives, and costs associated with each, the patient can make an informed choice, says Welle.
"When a patient is not made aware of the costs associated with their care, it can prompt the patient to delve deeper into their clinical outcome," says Welle. "It is not uncommon for patients to re-evaluate their care once a bill for services arrives."
This situation can lead to an increase in patient complaints and a potential for a malpractice claim that, even if unsubstantiated, still needs to be investigated and defended.
"This is not to suggest a physician actually have a financial discussion during the course of a clinical intervention," Welle says. "But the physician should be aware of the mechanisms for the patient to obtain financial information."
Allow patient to decide
If a patient can’t pay for care, or can pay only for limited care, this situation could lead to certain tests or procedures not being performed that could have diagnosed or treated an illness. "Failure to do so could, in theory, lead to at least a malpractice case, if not an actual payment," says Jena.
However, the opposite also can be true. "Performing more tests or procedures can also expose a physician to more liability, since it introduces the possibility of iatrogenic errors," says Jena.
It’s important for physicians to recognize what patients can and can’t pay for, and for patients to understand the risks, benefits, alternatives, effectiveness, and costs of specific interventions, he says.
"Of course, that discussion should be documented," Jena says. "It’s fine to recommend less effective treatment, but the most important thing is to allow the patient to decide what’s best for them."
Not necessarily "high-risk"
Many physicians immediately will assume that patients who say they can’t afford care are suddenly moved into the "high-risk" threat level for malpractice litigation, says Frew, and will assume a defensive posture.
"The latest research, however, shows that poor’ patients are less likely to resort to litigation then their affluent counterparts," says Frew.2
Frew says the best approach for physician response in this situation is to assume the posture of "the concerned provider of solutions."
"While these situations may take more of the physician’s time, they occur with such regularity that a standard protocol should be developed," says Frew. The protocol could give various options for patients who can’t afford expensive tests, post-discharge drugs, or medical follow-up, for example.
It is understood the physician must make a living and is entitled to receive compensation, says Leilani Kicklighter, RN, ARM, MBA, CHSP, CPHRM, LHRM, principal of the Kicklighter Group in Tamarac, FL.
"However, to refuse to care for an established patient who cannot pay could create problems for the physician, such as abandonment, and what no doctor wants: bad publicity," she says.
Kicklighter gives these recommendations:
• If the patient is hospitalized, the physician might consider involving the unit nurse manager and the finance department in the patient’s case to assist the patient in obtaining coverage or other types of assistance. For example, a patient might be referred to a federal, state, or locally funded outpatient clinic.
"If the patient is in the physician’s office when this comes up, hopefully the physician has assigned a member of his staff to research the agencies and facilities where the patient can be referred to explore and obtain financial support for medical care," says Kicklighter.
Refer or facilitate referral
• If the care needed is outpatient and the patient does not require hospitalization, the physician can refer or facilitate the patient’s referral to a clinic.
• If the patient has an emergency medical condition, the patient should be referred to the closest emergency department.
• If a patient can’t pay for medication, the physician can refer the patient to the pharmaceutical company, as some have programs to help patients in this circumstance, or any community resources that offer similar assistance.
"Documentation of discussions with the patient and family is prudent," says Kicklighter.
- Hickson GB, Federspiel CF, Pichert JW, et al. Patient complaints and malpractice risk. JAMA 2002; 287:2,951-2,957.
- McClellan FM, White AA, Jimenez RL, et al. Do poor people sue doctors more frequently? Confronting unconscious bias and the role of cultural competency. Clin Orthop Relat Res 2012; 470(5):1,393-1,397.
- Stephen A. Frew, JD, Loves Park, IL. Phone: (608) 658-5035. Fax: (815) 654-2162. E-mail: firstname.lastname@example.org.
- Scott O’Halloran, JD, Williams Kastner, Tacoma, WA. Phone: (253) 552-4094. Fax: (253) 593-5625. Email: email@example.com.
- Anupam B. Jena, MD, PhD, Assistant Professor, Department of Health Care Policy, Harvard Medical School, Boston. Phone: (617) 432-8322. Fax: (617) 432-1073. Email: firstname.lastname@example.org.
Leilani Kicklighter, RN, ARM, MBA, CHSP, CPHRM, LHRM, The Kicklighter Group, Tamarac, FL. Phone: (954) 294-8821. Fax: (954) 665-2863. Email: