Patient Did Not Follow Up? EP Faces These Legal Risks
Case could turn on whether efforts are documented
Even if a patient fails to follow discharge instructions, he or she could still successfully sue the emergency physician (EP) if a serious illness or injury occurs.
"If the jury feels the potential diagnosis was serious enough for the emergency physician to ensure the patient have a follow up, you may very well have a large verdict against the emergency physician," says Linda M. Stimmel, JD, an attorney at Wilson Elser Moskowitz Edelman & Dicker in Dallas, TX.
A jury will usually find a patient has some responsibility to follow a physician’s direction to follow up, says Stimmel. However, they will assign the EP a much larger burden of responsibility due to the provider’s increased knowledge on the issues involved in the patient’s care.
"One of the saddest cases that I have had was a case where this exact scenario occurred," says Stimmel. A young man came into the ED with symptoms of a cold or flu, and the EP thought he might have heard a slight heart murmur.
The EP ordered a blood test for bacterial endocarditis, and told the patient to return a few days later for a second follow-up blood test, as stated in the ED’s protocol. The patient was given discharge instructions telling him to return to the ED for fever or other symptoms.
"The young man failed to return for the second blood test. No one followed up, as is the case in many ERs," says Stimmel. The first blood test came back positive in the early morning hours, but, for some reason, the results were never communicated to the EP or the patient.
"Of course, had the young man returned for a follow-up appointment, as was instructed, the first results would have been read by a physician," says Stimmel. "Most likely, the appropriate medications would have proven successful."
Eight days later, the patient returned by ambulance in a vegetative state from bacterial endocarditis, and died soon thereafter. The family sued the EP and the hospital, and the case was settled for a large amount.
"They realized that even though the young man did not follow the discharge instructions and failed to return for a follow-up appointment, the jury would find that in case of the potential of a serious illness such as bacterial endocarditis, the hospital would have a greater duty to protect the patient," explains Stimmel.
EPs document efforts made to contact patients when they fail to return for a follow up, urges Stimmel. In this case, the EP charted that the patient was to return three days later for the test, but there was no documentation that anything was done when he failed to show up.
"If our chart had said, Failed to follow up. Called patient’s emergency contact and left message,’ it would have been a much different case for the defense," says Stimmel.
Decrease EP’s Risks
A patient’s failure to follow discharge instructions may be raised as an affirmative defense to a malpractice claim, if such failure is found to contribute to the bad outcome in question, says Andrew H. Koslow, MD, JD, an assistant clinical professor of emergency medicine at Tufts University School of Medicine and an EP at Steward Good Samaritan Medical Center in Brockton, MA.
Depending on the forum, state, and the effect of the patient’s behavior, a finding of negligence on the part of the patient could reduce a payment to a plaintiff or even mandate a defense verdict.
"There are many scenarios, however, in which a patient could bring a claim despite not following up as instructed," says Koslow. "Much of the time, the instructions are given, but the intended message does not get through to the patient."1
Koslow says some contributing factors to this problem are the use of medical jargon, written material beyond the patient’s reading comprehension level, language barriers, instructions so voluminous that the key elements are hard to find, and lack of patient capacity to understand due to a medical condition, medication, or other factors altering the patient’s ability to understand.
"Any of these can interfere with the patient’s ability to take the steps that the EP recommends post-discharge, and could be used against the EP if there is a bad outcome," says Koslow. He gives these risk-reducing strategies for EPs to decrease risks of successful suits involving a patient’s failure to follow up:
• Give instructions that are legible, at the appropriate reading level, and concise.
Discharge instructions should state the diagnosis, what was done, what to do next, and reasons to return to the ED. "The next steps for the patient should be specific as to what, where, and when," says Koslow.
• Have a pre-discharge conversation with the patient, especially for high-risk diagnoses.
"Document the patient’s understanding of the important issues as indicated by the situation, and potential for a bad outcome if the plan is not followed," says Koslow. "This is also an opportunity to answer questions."
• Be clear when something serious cannot be ruled out in the ED, as with incidental findings on radiologic studies.
In a 1987 case where the possibility of a patient’s symptoms being heart related was not well-communicated, the court considered this as a factor in determining the patient’s responsibility to follow up.2
"It is important that the patient understands why follow up is so important, and perhaps given some motivation to do so," says Koslow. "This can be done by giving the patient a sense of serious potential diagnoses, in layman’s terms, that need to be addressed post-discharge."
• Document the presence of others when telling the patient about the need for follow-up.
Family and friends can help influence the patient to follow up when he or she might otherwise be reluctant to do so, which could avert the bad outcome in the first place.
"Also, one-on-one he said/she said’ controversies in a case can introduce uncertainty that a plaintiff’s attorney could use to his or her advantage," says Koslow. "Naming witnesses to the conversation introduces specifics into the chart that make it more believable, thereby supporting the provider."
• Communicate with the patient’s primary doctor or applicable specialist.
"This is good risk management as well, depending on the potential consequences of the patient not following up and the perceived reliability of the patient," says Koslow.
• Consider whether the discharge instructions are achievable for the patient.
If the patient has no primary care doctor at the time of the ED visit, he or she is very unlikely to be seen by one the next day for a recheck. Likewise, your ED patient’s lack of resources may prevent him or her from picking up a prescription.
If the plan the EP has outlined is impossible or unlikely for the patient to accomplish and the EP is aware of this, it is a disservice to the patient and a potential source of liability, warns Koslow.
"I view discharge instructions as if I were asking the patient to sign an agreement to follow the plan contained therein," says Koslow. "Are the things the EP is asking the patient to do achievable?" If not, the EP could be portrayed as uncaring or even unethical in court.
Some sort of compromise may be needed in order to get the patient’s compliance, says Koslow. If a patient isn’t willing or able to travel to a regional center for follow-up care, a more local solution may be needed.
"Sometimes a less-than-ideal plan is less risky to the EP than one the EP knows will fail," says Koslow. "If the plan is tenuous, or if the availability of a follow-up physician is not clear, the patient should be made aware that the ED is there as a backup."
- Engel KG, Heisler M, Smith DM, et al. Patient comprehension of emergency department care and instructions: Are patients aware of when they do not understand? Ann Emerg Med. 2009;53(4):454-461.
- Lauderdale v. U.S., 666 F.Supp. 1511, 1516 (N.D. Ala. 1987).
For more information, contact:
- Andrew Koslow, MD, JD, Department of Emergency Medicine, Steward Good Samaritan Medical Center, Brockton, MA. Phone: (508) 427-3034. E-mail: Andrew.Koslow@steward.org.
- Linda M. Stimmel, JD, Wilson Elser Moskowitz Edelman & Dicker, Dallas, TX. Phone: (214) 698-8014. E-mail: email@example.com.