Patient is no-show, has bad outcome? Successful lawsuit could occur
In a recent malpractice claim, the plaintiff was a man diagnosed with prostate cancer who followed up regularly with his physician for a year. He was put on medication after he started to experience some complications.
"The physician asked the patient to return in 10 days, but the patient did not show up," says Ashley Watkins Umbach, JD, senior risk management consultant at ProAssurance Companies in Birmingham, AL.
Nurses documented subsequent conversations with the man and his wife about the importance of following up, and then sent a letter urging him to seek follow-up care. They put a copy of the letter in his chart. The man developed complications and filed a lawsuit, claiming the problems occurred due to the doctor's negligence.
"When we tried the case, we showed jurors all of the documentation we had on his failure to follow up, not only with our office, but with other treating physicians during the same time period," says Umbach. This documentation included evidence that the patient was reluctant to return to the defendant physician.
"We had a difficult time coming up with a defense expert, and we were worried defending the case on the medicine," Umbach says. However, the jurors ended up essentially disregarding the medicine involved, and instead, focused on the patient's failure to follow up.
After returning a defense verdict, one juror told defense attorneys he didn't believe the patient should have been allowed to sue because he didn't follow the doctor's instructions. "The fact that the physicians not only tracked no shows and non-compliance, but also documented it, made all the difference in the case," she says.
A survey of 723 patient care sites found that more than half said making referrals and follow-up appointments was their top risk management problem.1"Patients who fail to keep appointments appear to be making a choice that should affect only them individually," Umbach says. "Unfortunately, we have seen many lawsuits arise out of circumstances in which a physician failed to follow up on the no-show."
Umbach says a common theme in these lawsuits is conditions that worsened because patients failed to obtain followup care after receiving abnormal test or laboratory results, which results in the condition not being diagnosed as soon as it otherwise would have been. In the above case, for example, the patient was just beginning to experience mild complications a year after a procedure. "These likely could have been managed with medication, had he received regular care," Umbach says. "Because of his failure to keep appointments, those complications led to a decreased quality of life, which caused him to sue."
Brenda C. Tuck, RN, MSN, CPHRM, a senior risk management consultant in ProAssurance Cos.' Washington, DC, office, says these practices can make claims more defensible:
• Closely track patient referrals for consultation with a specialist or diagnostic tests.
"If appropriate treatment is not provided and disease later develops, the [referring] provider is potentially liable for incomplete followup," she says.
In the event the patient refuses to comply with the recommended referral, the provider should document this refusal in the medical record, says Tuck.
"Healthcare providers often ask how much followup is reasonable," says Umbach. "It will differ according to the situation and the condition the patient is being asked to follow up on." In the case of a patient with a suspicious mammogram, physicians might make two phone calls, send a letter, and a certified letter, for example. However, if a study reveals an abdominal aortic aneurysm and the patient already has left, physicians should send an ambulance to transport the patient to the emergency department immediately.
• Ensure telephone messages received by staff members are dated and timed and accurately state what the patient is calling about.
"Often, telephone messages can be a source of communication gaps and can have damaging legal ramifications," Tuck says.
If a provider is off work or out of the office and his partner receives a message from the provider's patient from the previous day, the provider should be able to clearly follow the communication chain documented in the medical record, she adds.
• Exercise caution when allowing personnel, particularly unlicensed staff, to triage telephone calls and/or make decisions regarding renewal of prescriptions.
All staff must use provider-approved triage protocols and have documented evidence of training on accurate use of the protocols, advises Tuck. "Ensure that the medical record reflects provider involvement in all aspects of treatment and care of the patient," she adds.
1. The Doctors Company. Frequent malpractice risks faced by office practices revealed in survey. May, 23, 2013. Web: http://bit.ly/1dGho2x. Accessed Sept. 18, 2013.