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A patient might have insurance, but he or she might not be able to afford the high deductible of $5,000, $10,000, or even $20,000. If that patient refuses recommended treatment or leaves a hospital against medical advice (AMA), there could be significant legal risks for physicians.
"Patient non-compliance can be a critical factor in adverse outcomes that lead to malpractice suits," says James W. Saxton, Esq., an attorney at Stevens & Lee in Lancaster, PA.
Patients are shouldering more of the cost of insurance, including higher copays through employer-sponsored plans and high-deductible plans purchased on state Health Insurance Exchanges set up under the Affordable Care Act. "Financial considerations play a larger role in determining how patients make healthcare choices," Saxton says.
At the same time, healthcare reform’s emphasis on screening and testing is resulting in more follow-up appointments and referrals to specialists.
"As lawyers defending physicians, we recognize that patients need to take an active role in their care," Saxton says. "At the same time, we recognize that the expectation is still — that physicians will make sure that patients take that next step."
The odds of death within 90 days were two and a half times higher for people who left the hospital AMA, according to a recent study that looked at 1.9 million adult admissions and discharges over almost 20 years.1
The most interesting finding is the persistence of the effect of leaving a hospital AMA on hospital readmission and death, according to Allan Garland, MD, MA, the study’s lead author and associate professor of medicine and community health sciences. "While these rates rose almost immediately after leaving AMA, they remained persistently elevated out to at least six months," says Garland. "The implication of this finding is that at least some of the adverse effects of leaving AMA are not due to incompletely treated acute illness."
The researchers hypothesize that nonadherence to medical recommendations could play a role. Edward Monico, MD, JD, assistant professor in the section of emergency medicine at Yale University School of Medicine in New Haven, CT, says, "A plaintiff’s attorney could argue that a patient made an ill-informed decision to leave AMA because the healthcare provider failed to inform the patient of material information regarding that decision."
To protect themselves, physicians should include sufficient information to allow patients to make an informed decision regarding their decision to continue medical care, says Monico. (See related story, p. 63, on how to document that patients were fully informed.)
Monico says physicians should make certain that information contained in the medical record is consistent with information in the discharge documentation. "Plaintiff attorneys can build an argument that the provider withheld information that was charted in the medical record but not divulged to the patient, and that this information was material to an informed decision to stay and be treated or leave," he explains.
With the expansion of the healthcare team to include care coordinators, specialty hospitals, and advanced practiced providers, patients are being handed off to a wider scope of healthcare professionals.
Saxon says, "We are seeing the development of new areas of exposure, linked to communication gaps, splintered’ care, and discontinuities in treatment." Increased volume of patients and more testing and screening is also contributing to more litigation, he adds.
Saxton is seeing more claims alleging failure to advise patients of significant test results requiring follow-up, inadequate documentation of the follow-up plan and discussion with the patient, and missed or delayed diagnosis because the patient didn’t see a specialist or get a follow-up test. One claim involved a patient who underwent a chest CT, but did not undergo a repeat CT in three months as recommended by the radiologist. The patient was seen 11 times over the next several months for complaints of a persistent cough. A chest X-ray and biopsy were done five months later, which resulted in a diagnosis of metastatic lung cancer.
"The patient claims that she was not advised of the results of the initial chest CT, or the need to follow up in three months," says Saxton. He says these practices possibly can reduce legal risks for physicians if patients refuse care:
• Engage patients as "partners" in their care by using patient portals to provide access to test results and facilitate scheduling.
• Document care discussions with patients about the recommended next steps and follow-up instructions.
Specialty-specific informed consent and refusal forms, at-risk letters, and disease-specific care contracts can demonstrate that patients have received information and have taken some responsibility for their treatment decisions and their care.
"These can be very helpful evidence, in the event that care ends up as the subject of litigation," says Saxton.
• Use care coordinators or patient navigators to encourage patient compliance.
"Improving compliance can improve outcomes and prevent adverse occurrences," says Saxton.
Care coordinators or patient navigators can encourage patient engagement by facilitating adherence to care and medication instructions and coordinating follow-up appointments and testing.
"Documentation of these interventions can show that information and access was provided, and the nature and extent of a patient’s compliance and cooperation with the treatment plan," says Saxton.