Could Patient’s Non-compliance Be Life-threatening?
If so, protect yourself legally
In a recent malpractice case, the plaintiff failed to follow up in two days, as instructed by the emergency physician (EP), and died a month later from an ectopic pregnancy. Yet the EP was still held liable and ended up settling the claim.
"Clearly, if she had followed up even days later, she would have been just fine. She did not, and caused her own death without a doubt," says Michael Blaivas, MD, FACEP, professor of emergency medicine at University of South Carolina Medical School and an ED physician at St. Francis Hospital in Columbus, GA. "Yet the insurance company caved in and forced a settlement. "
If patients fail to follow up, the EP is "still on the hook, especially if the patient was young and the outcome bad," says Blaivas. "Several juries have held the EPs responsible for complete disregard by patients regarding follow up, even with iron-clad documentation."
ED Held Responsible
Blaivas has reviewed several malpractice cases involving non-compliant ED patients that were settled by the insurance company, even with good documentation and defensible care.
"If a young patient dies, in my experience, you are still facing an uphill battle," says Blaivas. In one case, a patient failed to follow up on a possible lung nodule with suspicion for early cancer. "The patient went on to develop advanced lung cancer and died. The jury held the EP responsible for the fact that he did not follow up," says Blaivas.
Blaivas has reviewed several cases in which patients were sent home after cardiac workups in the ED and suffered cardiac-related deaths. The documentation was vague in each case, although each patient clearly received instructions to follow up.
"In each case, the jury appeared to hold the EP responsible," says Blaivas. "One common thread through the cases is that a family member stated they clearly recalled the EP not advising the patient to follow up."
Blaivas recommends these practices to reduce legal risks if a patient’s non-compliance could be life-threatening:
• Call a primary care physician or other follow-up site to arrange an appointment for the patient.
"This is very hard in a busy ED, yet I still see some of my colleagues accomplish this," says Blaivas. "They basically impact their productivity by doing so. Having a secretary or someone similar who can do this is key."
Calling the primary care physician puts some liability on their part to get in touch with the patient, says Sandra Schneider, MD, FACEP, a professor in the Department of Emergency Medicine at Hofstra North Shore — Long Island Jewish School of Medicine in Hempstead, NY.
"It would be great if you can make an appointment time from the ED, but that is rare because so much of our care is after hours," says Schneider. "Some hospitals have walk-in clinics where a patient can go the next day."
Plaintiff attorneys can easily ask the EP, "Well, why didn’t you just call the physician with whom you were going to have the patient follow up, and make the appointment for tomorrow?"
"It is clear that some juries seem to expect the EP to make complete arrangements for the patient to be followed up, no matter how unrealistic this is," says Blaivas.
While some EDs contact physician offices the next business morning to let them know about referrals, says Blaivas, "for most of us, all we can do is make sure a patient has a name, phone number, and well-documented instructions."
It can be legally protective for EPs to show the efforts made to get the patient follow-up care, such as faxing information to physician offices, making appointments, or requesting consultations. "If documented well, you may still get sued, but it will be a very uphill battle for the plaintiff," says Blaivas.
• Make it clear in the chart that the EP stressed that the patient’s life might depend on their following instructions.
"Stress that although it is safe to discharge them now, it is important they follow up, and tell the patient what could happen if the worst case scenario comes true," says Blaivas.
• Document that the patient understood the EP’s instructions, and the gravity of the situation.
"The nursing record has to independently corroborate this as well," says Blaivas.
Tell Patient the Reason to Follow Up
Juries are often swayed by a bad outcome, and might not want to hold the patient liable for their own misjudgment, says Schneider.
One malpractice case involved a patient who failed to return to the ED the following day for a wound check after a complex laceration repair of his hand. The patient also failed to see a surgeon for follow up in three days.
"He never cleaned the wound, as instructed, nor did he fill or take the antibiotics prescribed," says Schneider. "His hand became badly infected. He stayed home for days while it swelled and pus ran from the wound."
Eventually, the patient returned to the ED with extensive damage, which resulted in several fingers being amputated. Despite good documentation of the patient’s non-compliance, the patient sued the EP.
"However, the case against the physician was dropped," says Schneider. The chart was very clear about what the patient was told, and stressed the importance of the patient returning to ED.
"The thing that saved the physician were very clear and easily understandable instructions," says Schneider. "These included not only what he needed to do, but why he needed to do it."
For more information, contact:
- Michael Blaivas, MD, RDMS, Vice President, Emergency Ultrasound Consultants, Bear, DE. Phone: (302) 832-9054. E-mail: email@example.com.
- Sandra Schneider, MD, FACEP, Professor, Department of Emergency Medicine, Hofstra North Shore — Long Island Jewish School of Medicine, Hempstead, NY. E-mail: firstname.lastname@example.org.