Documenting Noncompliance Won't Protect You Anymore

Mark Crane

Disclosures

November 12, 2012

In This Article

Introduction

"If only the doctor had told me how important it was to (get a test, see a specialist, return for a follow-up visit, go to rehab, and so on), then of course I would have done it. But he didn't act like it was that big a deal."

Malpractice attorneys and insurance risk managers say that this is a classic allegation they hear from plaintiffs when a patient's failure to comply with medical advice is a factor in their illness or injury.

Unfortunately, the claim often works with juries. Without adequate documentation, malpractice trials can turn into a "he said/she said" scenario. A patient who has suffered a life-changing outcome owing to a doctor's alleged negligence may have more credibility in the eyes of jurors than the doctor, for whom the office visit was 1 of 30 that day and the incident occurred years ago, says James Lewis Griffith, Sr., a malpractice attorney in Philadelphia, Pennsylvania.

The best defense against this tactic is having meticulous records that document the doctor's rationale of treatment, clear explanations of what he or she wants the patient to do, and whether the patient actually complied with that advice.

But merely writing "patient did not comply" is not enough to protect you. How you document noncompliance (or nonadherence) can mean the difference between winning or losing a lawsuit -- and often preventing the suit from being filed at all. Comparative fault laws vary by state, but a patient's recovery is often reduced or prohibited on the basis of the percentage of fault attributed to the plaintiff, said Georgette Samaritan, RN, BSN, senior risk management consultant with MAG Mutual, a liability carrier based in Atlanta, Georgia.

So if the patient's percentage of fault is considered high, the doctor has a far greater chance of staving off a harsh judgment.

Juries place a significant amount of responsibility for follow-up on doctors and what steps they took to remind patients of the need for it. "Simply charting the noncompliance used to be sufficient, but more is needed now," said Griffith.

"Patients now argue that the doctor never told them of the consequences and risks of noncompliance. Juries have created this affirmative duty to tell the patient that there is a specific danger and that they need to be seen."

"I have a case in which an internist told a depressed patient to see a psychologist," he said. "The doctor found out that the patient never went. Several weeks later, the patient committed suicide. Two 'expert' witness physicians have provided reports that it was gross negligence not to notify the patient that he was at risk. We live in a Teflon age. No responsibility sticks to me but attaches only to everyone else. You need to document as specifically as possible that you told the patient the risks of not complying with your advice."

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