Documenting Noncompliance Won't Protect You Anymore

Mark Crane

Disclosures

November 12, 2012

In This Article

Documenting Informed Refusal

Even after you've done your best to explain the need for a treatment and the potential risks of not getting it, patients still have the right to refuse care. Some insurers recommend that you document the patient's response with an 'informed refusal' form.

It's similar to an informed consent form, but instead of electing to undergo the therapy or treatment, the patient states that they will forgo it. "This approach more clearly articulates particular risks and benefits, rather than merely noting in the chart that treatment was discussed and the patient's decision," notes Georgette Samaritan. "By using a refusal form, patients will better appreciate the potentially serious consequences of their decisions. In many cases, this opportunity to reflect will be sufficient to convince them to pursue the proposed treatment after all.

"If the patient refuses to sign the form, the next best response is simply to document what you've related, along with his or her reaction, in the medical record," she said.

An example of a properly documented informed refusal discussion is, "Breast ultrasonography has been recommended to evaluate the palpable lesion on the right breast. The patient states that her insurance will not be effective for 90 days and elects not to have the test done pending coverage by insurance plan. The risk of delay was discussed with the patient to include the possibility of a malignancy and the risks of a potentially life-threatening delay in diagnosis and treatment. The patient verbalizes understanding of the information provided. I have asked my staff to investigate and advise her of any financial assistance that may be available. She was advised to contact me as soon as possible if she reconsiders this decision or as soon as insurance coverage is effective."

"No attorney can challenge what the doctor meant and what his or her plan of care was," said Samaritan. "The patient can't say she didn't understand."

Send a certified letter to the patient if his condition is urgent and you haven't heard from him or her in a while, she adds. "Some anticoagulant treatment needs regular studies, but the practice has lost track of the patient. This is critical in claims I've looked at. Suddenly the patient winds up in the hospital, seriously ill, due to a blood clot or hemorrhagic stroke. Physicians may be held liable."

Hard Decision: Discharging a Noncompliant Patient

Discharging a patient should be a last resort only after repeated attempts to find out why the patient won't comply with your advice. Physicians should personally speak with the patient to ask about specific complaints, say malpractice risk managers.

It's important to end the doctor/patient relationship carefully to avoid getting sued for abandonment or discrimination. Most liability insurers have protocols and sample letters that doctors can use to reduce their risk for a lawsuit when they discharge a patient.

Send a termination letter by certified mail, return receipt requested, and keep the receipt in the patient's file. Give the patient sufficient notice that you will stop treating him or her. One month is usually adequate, but check with your insurer or state medical society for guidance.

Inform the patient that you'll continue to treat him or her until the termination date and for any emergencies that occur up to then. Refer the patient to the local medical society or hospital to obtain a list of physicians. Offer to transfer the patient's records promptly once you receive a written authorization.

Physicians are busier than ever, and solid documentation does take more time. But the choice is clear, according to attorneys and risk managers. You can spend an extra 30 seconds per patient to document properly, or you might have to spend months or years defending a lawsuit you could have avoided.

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