Patient didn't follow up? Be sure chart is clear

Was patient's lack of follow-up the real reason a bad outcome occurred? This quickly can become a "he said/she said" situation during litigation.

"I am always worried when a provider tells me that there was a bad outcome because the patient was 'non-compliant.'" says Kathryn Wire, JD, MBA, president and principal consultant at Kathryn Wire Risk Strategies, a St. Louis, MO, firm specializing in healthcare risk management, and former director of risk and claims for two St. Louis health systems. "That is a judgmental word that covers lots of circumstances."

When reviewing a chart, Wire looks at what was ordered for the patient, what discussion there was with the patient about it, whether there was adequate education about the suggested care and the risks and benefits it offers, hurdles or obstacles that might interfere with the patient's ability to participate in that care, and, if the patient is simply refusing to do what's asked, whether there is a moral or philosophical issue and an alternative approach.

"I would look for all that information before I evaluated the case for liability," Wire says.

The liability standard is what a "reasonably prudent" physician having the competency and professionalism consistent with the specialized training, experience, and care of the defendant would have done under the same or similar circumstances, says Michael E. Clark, JD, LLM, special counsel at Duane Morris in Houston, TX. However, says Clark, "it's always best never to be put into such a position in the first place." To avoid suits, he recommends these practices:

• Have "ticklers" in place.

This ensures appropriate follow-up within a reasonable time if a patient fails to follow through as the physician has instructed, says Clark. (See related story on what systems should be in place, below.)

• Consider the type of patient involved.

"Are we dealing with someone who is emotionally or intellectually compromised?" asks Clark. "Is there any suggestion that the patient has been less than candid with the physician?" If so, he advises even more oversight by the physician or staff with following up with the patient, and documenting these efforts.

Document nonadherence

Physicians and patients have responsibility to pursue a shared goal of maintaining or restoring the patient's health, emphasizes Ben A. Rich, JD, PhD, professor and an Alumni Association Endowed Chair of Bioethics at the University of California — Davis Health System's School of Medicine.

Juries are unlikely to ignore or discount a patient's failure or refusal to actively participate in his or her own care, he explains. "It is no longer the case, if it ever was, that the physician bears the sole responsibility for health outcomes and the patient none at all," says Rich. "Of course, sound risk management requires that the physician document what the patient was told and when." To reduce risks, do the following:

• Document that you've educated of the patient about the reason for the follow-up, the process for accomplishing it, and the risk of failing to follow through.

"Patient indicated that they attended the joint replacement class and also accurately recited the key total hip precautions" is better than "patient advised of restrictions," Wire says. "Patient given brochure and discussed anti-coagulation safety and regulation; understands plan for testing" is better than "patient advised to go to lab for test," she says.

"The more detail in the documentation, the better," Wire emphasizes.

• Document that you inquired, directly or indirectly, about the patient's ability to follow through.

For example, a physician might chart, "Discussed need for home health vs. appointments for outpatient testing and physical therapy," says Wire.

• Document that you facilitated contact if a patient has to make an appointment with another provider.

"Sometimes, it is hard to get an appointment with another physician in the prescribed timeframe, or there may not be insurance coverage without a tussle with the carrier," says Wire. "Acknowledging those issues and providing assistance is helpful."

• Document that obstacles were addressed.

"If a simple referral to a transportation agency will solve the patient's inability to go to follow-up therapy, then a jury might expect the physician to have that information and share it, or at least have a number for social service assistance," says Wire.

Sources

For more information on liability risks involving non-compliance, contact;

  • Lizabeth Brott, JD, Regional Vice President, Risk Management, ProAssurance, Okemos, MI. Phone: (800) 292-1036 or (205) 877-4400. Fax: (205) 414-2806. Email: lbrott@proassurance.com.
  • Michael E. Clark, JD, LLM, Special Counsel, Duane Morris, Houston, TX. Phone: (713) 402-3905. Fax: (713) 583-9182. Email: meclark@duanemorris.com.
  • Ben A. Rich, JD, PhD, Professor and School of Medicine Alumni Association Endowed Chair of Bioethics, University of California — Davis Health System. Phone: (916) 734-6010. Fax: (916) 734-1531. Email: barich@ucdavis.edu.
  • Kathryn Wire, JD, MBA, Kathryn Wire Risk Strategies, St. Louis, MO. Phone: (314) 540-4910. Email: kathy@wireriskstrategies.com.

Do you know if patient followed up?

Did you order a diagnostic or laboratory test, or recommend a patient see a consultant? If so, you need a system that indicates that the patient did or didn't have a reported result, advises Kathryn Wire, JD, MBA, president and principal consultant at Kathryn Wire Risk Strategies, a St. Louis, MO, firm specializing in healthcare risk management and former director of risk and claims for two St. Louis health systems.

"If the physician has ordered something involving another provider, they should almost always get some feedback," she says.

If a physician orders a drug that is critically important and either new or complicated, phone follow-up to make sure the patient understands the new regimen would be a good step, says Wire.

To reduce risks, physicians should establish and maintain systems to trigger follow-up communications with patients so that nothing is left to chance, says Ben A. Rich, JD, PhD, professor and an Alumni Association Endowed Chair of Bioethics at the University of California -- Davis Health System's School of Medicine. "These mechanisms will generate documentation in the medical records that follow-up information was transmitted to the patient," he says.

If these basic measures are taken and documented, but the patient still fails to respond appropriately, then the physician's duty will have been met, and the patient will have assumed the risk of adverse consequences, says Rich. "If patients who suffer such consequences file malpractice claims, it is unlikely that they will be able to recover damages," he says. "Most juries would conclude that the negligence, if any, is their own."

All jurisdictions have legal provisions allowing the assertion of contributory negligence or contributory fault when a patient's action or inaction is a major factor in an adverse outcome, notes Rich.

Physicians need good tracking systems to be sure reports were received from consultants, laboratories, or radiologists, advises Lizabeth Brott, JD, regional vice president of risk management in the Okemos, MI, office of ProAssurance. "The good news is that with many practices converting to EHRs [electronic health records], they have another tool for tracking reports," she says.

However, Brott notes that EHRs pose a different kind of risk if they provide too many alerts regarding test results and drug interactions.

"Physicians may develop 'alert fatigue' and may not pay as close attention as they should," she says. "We have had cases where practices have turned off the alerts because they became overwhelming."