Is Patient’s "Non-compliance" Enough to Protect EP Legally?
Chart could shift responsibility for bad outcome
Did a bad outcome occur because the patient didn’t comply with the emergency physician’s (EP’s) recommendations?
"Non-compliance is not a get-out-of-jail-free card’ on its own," emphasizes Robert J. Conroy, JD, an attorney at Kern Augustine Conroy & Schoppman in Bridgewater, NJ.
For non-compliance to provide the EP with a good defense, it needs to be founded on patients being properly educated as to what they need to do, given adequate information to impress upon them the significance of their compliance, and having the ability to comply, he says. "If the ED patient is possessed of such knowledge and ability, then there is a framework on which to build a defense based on non-compliance," says Conroy.
Conroy has used this strategy to defend many malpractice claims involving patients discharged from the ED with instructions that they failed to follow.
Several claims have involved patients seen in EDs with slight head trauma, who were discharged with instructions to call or return if they experienced vision problems or dizziness, and failed to do so to their detriment.
"Death occurred in one claim, and extended hospital stays in others with neurological injuries," says Conroy. "The claims were settled, as most claims are, but for much less value than would have been typically expected."
Many times, non-compliance won’t provide a complete defense but is nevertheless useful in shifting some of the blame and responsibility to the patient for a bad outcome. In such cases, the judge or a jury will consider the patient’s non-compliance and proportionately reduce the EP’s share in any liability, Conroy explains.
"The more the onus for action can be shifted to the patient, the stronger the defense will be," he says. "A well-informed but lazy or willful patient would be, accordingly, the least sympathetic and most susceptible to a defense of non-compliance."
Documentation of instruction on discharge, and documentation on return that the patient did not follow prior instructions, could be valuable for the EP’s defense, says Conroy.
"It bears noting, though, that a jury is not likely to penalize a sympathetic patient," he cautions. "So there can be practical limitations as to the real value of such a defense in a given set of circumstances."
If the EP learns a patient didn’t follow up with the original treatment plan, Michelle M. Garzon, JD, a health care attorney at Williams Kastner in Tacoma, WA, says it’s important for the EP to document what was done about it. For instance, the EP should document the fact that he or she reinforced the importance of the patient seeing their primary care physician, or the fact that the EP gave the patient the phone number of a clinic.
"Patient responsibility is a good defense, but it has to be played pretty lightly. We can only do that when it’s documented and addressed," Garzon says.
SOC Is Issue
If a patient coming to the ED reports non-compliance with treatment recommended by another provider, the EP "will then be measured with that understanding," says Robert Shannon, JD, a senior partner at Hall Booth Smith in Atlanta, GA.
In this case, Shannon says the questions that a plaintiff attorney will look at would be: What does the standard of care require given the presentation of symptoms? and Did the disease process or injury become worse due to the lack of compliance?
For instance, if a patient’s infection worsens because the patient failed to take the required antibiotics and delayed follow-up, upon presentation to the ED the standard of care may require amputation of a limb. "Notwithstanding, the emergency physician may try to debride the infection. The patient later becomes septic and dies," says Shannon.
If the EP failed to meet the standard of care based on the patient’s current presentation, the patient’s previous non-compliance would not protect the EP from liability, he underscores.
Kevin Abernethy, JD, a partner with Hall Booth Smith in Atlanta, GA, says key questions will be whether the EP followed the hospital’s protocol, whether discharge instructions were clearly communicated, and whether the EP instructed the patient to follow up with the patient’s physician or a specialist.
"The bottom line is: Did the ED’s treatment and discharge meet the required standard of care expected of physicians under similar or like conditions?" says Abernethy.
Problems With Access
Was your ED patient unable to obtain prescribed medications because of lack of insurance coverage, or because he or she was unable to obtain a follow-up appointment with a primary care physician as instructed?
If so, EPs should avoid documenting phrases such as, "patient is non-compliant" in the chart, advises Roger J. Lewis, MD, PhD, FACEP, a professor in the Department of Emergency Medicine at Harbor- UCLA Medical Center in Torrance, CA. "The term compliance,’ in my mind, is a loaded term. It puts all of the responsibility of completing a recommended course on the patient," he says.
Given widespread problems with access to care, patients have many legitimate reasons for being unable to complete a prescribed course of therapy, notes Lewis.
Lewis says that it is appropriate and important, however, for EPs to document the patient’s history in terms of ability to obtain medications, keep follow-up appointments, or comply with other prescribed measures, such as keeping a swollen leg elevated.
"Whenever a patient is not experiencing the hoped-for recovery, one wants to document all of the things that might have contributed to that course," he says.
When EPs give discharge instructions to patients, they have a responsibility to consider potential obstacles to compliance with these, adds Lewis.
"Even if the original plan appears appropriate, it behooves you to carefully consider the practical and logistical aspects to see that patient can successfully complete the prescribed course of therapy and follow-up," he says.
For more information, contact:
• Kevin Abernethy, JD, Hall Booth Smith, Atlanta, GA. Phone: (678) 539-1629. E-mail: KAbernethy@halboothsmith.com.
• Robert J. Conroy, JD, Kern Augustine Conroy & Schoppmann, Bridgewater, NJ. Phone: (908) 704-8585. E-mail: email@example.com.
• Michelle M. Garzon, JD, Williams Kastner, Tacoma, WA. Phone: (253) 552-4090. E-mail: firstname.lastname@example.org.
• Roger J. Lewis, MD, PhD, FACEP, Vice Chair for Academic Affairs/Professor of Medicine-in-Residence, Department of Emergency Medicine, Harbor- UCLA Medical Center, Torrance, CA. (310) 222-6741. E-mail: email@example.com.
• Robert Shannon, JD, Senior Partner, Hall Booth Smith, Atlanta, GA. Phone: (404) 954-5000. E-mail: RShannon@hallboothsmith.com.