Physicians Need to Guard Against Patient Noncompliance

Even though prostate cancer is the second most common cause of cancer deaths in men, most prostate cancers grow so slowly that the patient often dies from some other cause. This fact has led some healthcare experts to question the value of the PSA test, the primary screening tool for prostate cancer, which more often than not produces a false positive. According to the National Cancer Institute, about 70% to 75% of men with elevated PSA levels are found not to have prostate cancer.

Five years ago, an article published in Physician’s News Digest called for reducing physician liability through patient accountability. In particular, the article targeted the area of noncompliance, and the growing problem of how patients often do not follow through on their physician’s recommendations and treatment regimen. Today, the problem has not gone away. In fact, it’s gotten worse.

“My experience is that it’s becoming even more prevalent,” says Greg Young, an attorney at Hinkle Elkouri Law Firm. “[Patients] don’t accept responsibility for the fact that they choose to smoke or to live an unhealthy lifestyle. It’s easier to blame somebody else for their problems than to accept responsibility for the problems themselves.”

Just as it was suggested five years ago, it’s time for patients to be made more accountable. It’s also time for physicians to protect themselves.

Importance of documentation

Young stresses that noncompliance can be a very good defense in a litigated matter or any type of complaint, but for that to happen, physicians have to document the noncompliance. As an example, he compared two recent cases. In one, an orthopedic surgeon performed back surgery on a patient, but the patient did not stop smoking either before or after the surgery for a substantial period of time, thus reducing the chance of successful surgery. But the doctor had no documentation.

“We just had to go on his word,” Young explains. On the other hand, another patient had gall bladder surgery, and while in the hospital, her family brought her fried chicken and cookies. The patient was also seen smoking. “The nurses did a fabulous job of documenting all of this. By the time we got through about half of the depositions, we made the woman and her family look so bad, the case was dismissed.”

Jeffrey Segal, MD, founder and CEO of Medical Justice, says that to guard against the aforementioned type of noncompliance, some doctors have taken to having patients sign a contract. For example, smoking interferes with wound healing following plastic surgery and can result in a horrible outcome in the case of a facelift. Segal says some plastic surgeons have not only told patients they cannot smoke for 2 weeks prior and 2 weeks following surgery, they have them sign a contract to that regimen. The morning of the surgery, the patient’s urine is checked and verified for any signs of nicotine. If found, the procedure is cancelled.

“Health is a partnership, and it requires everyone participating,” says Segal. “Putting it down on paper protects the doctor. But it also reinforces to the patient the importance of the message.”

Build the partnership

One way to forge a solid doctor-patient relationship and gain better insight into a patient is to do a thorough medical history during a patient’s first appointment. Young believes that in taking the time to get to know the patient, the physician is less likely to be sued. “Patients who believe that the physician is spending as much time with them as necessary are less likely to blame the doctor for a bad event.”

Getting to know the patient, says Segal, can also help the physician get a sense of whether the patient is a noncompliance risk. “If a patient comes in and says, ‘I’ve been to 12 doctors over the last year, and they’re all morons. But I’ve heard so many good things about you, and I’m sure you will heal me,’ that’s a red flag,” Segal explains. “There should be concern that the individual is doctor-shopping, as well as clues to what the future doctor-patient relationship might look like. The last thing you want to do is be doctor number 13 on that list.”

As a physician, you might also come to learn that the patient is of low health literacy, which could enhance the chance of noncompliance. Asking a patient, “Why are you taking this medication?” will produce one of two answers. The patient may provide the name of the condition they are afflicted with, or they may say, “Because the doctor told me to.” The latter, says Segal, suggests the patient is unsophisticated and could be a noncompliance risk.

You can cut the cord

As a last resort to protect themselves, physicians can discharge patients from their practice for noncompliance. Young says it happens much more frequently now, and that’s a good thing from a liability standpoint.

“I have reviewed files and written letters for physicians to discharge patients from their clinic for noncompliance four or five times in the past year. I hadn’t done that in 10 prior years,” says Young, noting that it’s better for physicians to let a patient go than to expose themselves to liability. “If a patient is continually noncompliant and the doctor knows about it but continues forward with the treatment plan and doesn’t do anything of any consequence, the noncompliance defense is extremely weakened.”

Ed Rabinowitz is a veteran healthcare reporter and writer. He welcomes comments at edwardr@frontiernet.net.