Why Should Doctors Be Penalized for Patient Outcomes?

Leigh Page

September 08, 2021

A patient with diabetes went to an orthopedic surgeon for treatment of a severe leg problem. The surgeon determined that the patient had a vascular problem and directed him to go to the emergency department next door for a vascular consult. The patient would not go, saying he was "too busy moving and getting divorced."

The patient's condition worsened, and his leg had to be amputated. The patient sued the orthopedic surgeon for not sufficiently helping him. The lawsuit was settled for an unspecified amount.

The situation taps into a larger debate that currently engages many in society: how much responsibility do people bear for their own behavior? Some say the environment or genetics plays the major role in determining an individual's actions. Others say people need to accept responsibility for their behavior and its consequences.

When patients don't take their medications or follow their treatment plans, physicians often feel stuck between a rock and a hard place. It's often extremely difficult to get patients ― or anyone else ― to change their habits and do what a physician recommends, and yet courts, payers, and patients themselves often feel the doctor is at least partly to blame.

It's no surprise, then, that nonadherence was primary care physicians' top complaint about their patients in a poll by Consumer Reports. A majority of surveyed physicians said nonadherence affected their ability to provide optimal care, and more than one third said it did so "a lot."

Many physicians feel strongly that it's basically up to patients to follow their recommendations. "I tell my patients this," a family physician commented. "You are an adult (or with an adult); I am here to guide and educate you. You have choice. Here are the consequences.... I will educate my patients, but I will not parent them."

The courts, however, often see things differently when patients sue for malpractice.

Nonadherent Patients Can Win Malpractice Suits

In most states, physicians can be at least partly liable for their patients' nonadherence. If a patient experiences harm because of not following a physician's recommendations and sues that physician, courts in these states will examine how hard the physician tried to elicit adherence. Juries often assume that the physician has a better understanding of the implications of a patient's failure to pursue treatment than the patient does.

How often do nonadherent patients sue their doctors? CRICO, the malpractice insurance carrier for Harvard-affiliated hospitals and research institutes, reports that 11% of cases submitted from 2007 to 2016 involved adherence problems, and one third of those generated a payment.

In awarding damages, courts may may also consider how much the doctor tried to help the patient stick with his or her treatment plan. Alaska and California have set this principle into law, apportioning damages on the basis of degree of fault, according to Justia, a resource for legal matters. For example, if the court decided that a plaintiff's nonadherence made him or her 25% responsible for the bad outcome, that plaintiff would recover 75% of the award.

In some states, plaintiffs wouldn't be entitled to any damages if they were found to be equally or more responsible (Colorado and Maine) or simply more responsible (Hawaii and Iowa), Justia stated.

Only a few states bar nonadherent patients from collecting any damages: Alabama, Maryland, North Carolina, and Virginia, as well as the District of Columbia, Justia said.

Doctors can lower their malpractice risk with nonadherent patients by entering in the chart the steps they took to help the patient with adherence and the patient's responses. But this will not protect doctors if juries feel they could have done more.

Physicians Can Be Docked for Patients Who Don't Follow Treatment Plans

As medicine shifts to value-based payments, doctors can be penalized for having a large number of nonadherent patients. Value-based contracts with payers reward physicians for meeting certain performance metrics, but in 2020, only 3% of such contracts included downside risk, whereby practitioners lose a portion of their reimbursement if benchmarks are not met.

The risk of losing payments because of nonadherence is somewhat greater under Medicare's Merit-based Incentive Payment System (MIPS). Generally speaking, at least one of the six MIPS quality measures has to be an outcome measure, and these outcomes often have to do with patients' adherence.

Among the 2021 MIPS outcomes measures, for example, measure 001 involves bringing A1c under control for patients with diabetes; measure 398 involves the percentage of asthma patients whose asthma is well controlled; and measure 470 regards functional status after primary total knee replacement.

Poor performance on MIPS quality measures can lead to penalties, which amounted to 9% of Medicare reimbursements across all MIPS categories in 2022.

Whose Responsibility Is It Anyway?

Many physicians respond with disbelief when they are held accountable for patients' noncompliance. As they see it, the physician's job is to create the treatment plan, and it's up to the patient to carry it out.

"I used to feel the same way," says Marie T. Brown, MD, director of practice redesign at the American Medical Association and a professor of internal medicine at Rush University School of Medicine, in Chicago, Illinois.

"My attitude was, 'My job is done when I write the prescription,' " she says. "But seeing patients not getting good outcomes, not getting their blood sugar down in spite of the prescriptions I wrote, I began to change my attitude."

She has come to believe that making sure patients adhere to their treatments is as crucial to good outcomes as coming up with the best treatment plan. "Improving patients' adherence would have a far greater impact on their health than providing them the latest medical intervention," Brown says.

A look at patients' high nonadherence rates suggests that not paying attention to the problem significantly impairs clinical outcomes.

One quarter of patients are thought to be nonadherent to any kind of therapy, and for certain therapies, rates of nonadherence can be much higher. For example, only 51% of patients with hypertension adhere to their prescribed drug treatment regimens, and often fewer than 50% of patients agree to undergo doctor-recommended colonoscopies. Adherence to medications has been found to drop over time. From the time patients fill their first prescription to 6 months later, adherence decreases from 69% to 43%.

Why Patients May Lie About Compliance

Brown says that although patients may sometimes forget to take their medications, in most cases it is intentional. Patients may fear the side effects of a drug, or they may stop taking a drug because they don't feel it makes any difference, she says.

"You often hear some understandable reasons for nonadherence," Brown says. "The side effects of a medication can make you gain weight or make you so tired that you can't do your job. Some drugs cause impotence, swelling in the legs, or a dry cough."

Brown says patients often don't tell their doctors that they plan to skip their medication or treatment. In one study, 27% of seniors who reported skipping doses or stopping a medication said they had not spoken with their physician about it.

A recent study on nonadherence to statins found that patients let their doctor prescribe the medication without expressing to the doctor their objections to taking the medication, according to the lead author of the study, Derjung M. Tarn, MD, a professor of family medicine at the University of California, Los Angeles.

Why would patients not bring up their objections? "They may feel that voicing their disagreement with the doctor would be disrespectful," Tarn says.

Brown says many patients remain silent because they fear their doctor would chastise them. In a videotaped interview, one of Brown's patients with diabetes talked about her previous experience with doctors. "With physicians, it's usually [about] shaming," she said. " 'Why haven't you lost the weight?' 'Why aren't you taking the medication?' I would tend to fail the appointment, because I knew I hadn't lost weight since the last appointment."

Is It Possible to Reduce Patient Nonadherence?

Many doctors believe they can't do anything to improve adherence. "There is no way to budge these people," a frustrated family physician commented to Medscape Medical News. "Trust me, I've tried every trick in the book. Some patients don't even believe in getting their diabetes under control."

In many cases, however, physicians' efforts to improve adherence are very limited. In one study in which Tarn and colleagues interviewed physicians, the physicians said they did not try hard to ensure adherence. They did not want to contact patients after the visit because "they felt this would be intrusive, acting like Big Brother," Tarn says.

Tarn has found that even during office visits, physicians' monitoring of noncompliance has been skimpy. A 2021 study she led found that physicians spent a mean of 23 seconds discussing new statin prescriptions and recommended guidelines with patients.

Physicians are sometimes fatalistic about helping patients with problems related to lifestyle, such as being overweight. In one study, for example, doctors brought up weight in only half of visits with patients with obesity or overweight. When doctors did inform patients that they were overweight, patients were significantly more likely to lose weight, according to an analysis of the National Health and Nutritional Examination Survey.

How to Motivate Patients to Follow Their Treatment Regimen

From her own experience, Brown believes most patients can be persuaded to follow the recommended medical treatment. "There are always going to be people who will not follow your advice no matter what, but they are not the vast majority of nonadherent patients," she says.

Brown, who travels the country speaking to physicians on how to improve adherence, offers some tips for physicians.

Frame questions in a different way. If you ask, "You're taking all your medicines, right?," noncompliant patients would have to disagree with your statement, which they are unlikely to do, she says. Instead, Brown advises asking questions that invite patients to open up, such as, "Have you had to stop your medicine for any reason? How many days of the week do you skip your medicine?"

Bring up nonadherence tactfully. "If you say to the patient, 'Why aren't you taking the medications I prescribed?,' that's confrontational and blaming," she says. "It's much more effective to empathize with the patient and try to find out what the cause of their nonadherence is. You might say something like, 'Many people have trouble taking their medications on a regular basis. Do you find that this is the case for any of your medications?' "

Give patients reasonable goals. When a patient needs to lose weight, the first step should be to stop gaining weight for 6 months. "When the patient comes back in and has not gained weight, that can be celebrated," Brown says.

Do Doctors Have Time to Deal With Nonadherence?

Brown concedes that helping patients with adherence can be time consuming at first. Achieving the necessary rapport for patients to open up can take multiple appointments. Once the patient admits to nonadherence, the doctor must then explore the patient's concerns ― perhaps changing the treatment plan to accommodate those concerns, Brown says.

"Most doctors do not have the time and have not been sufficiently taught about how to uncover nonadherence," Brown says. "You have to have an ongoing conversation with the patient. It may require building a relationship with patients over many visits before they will reveal their nonadherence. Then I can explore their reasoning and do something about it."

Although this work is time consuming at first, Brown says adherence saves time in the long run. "If you assume they are adhering to the drug and prescribe yet another drug to improve their outcomes, you might have to get prior approval for it, which can involve long phone calls," she says.

Brown thinks working on adherence is one of the most overlooked tools in a physician's armamentarium. "When you deal with nonadherence, your patients' outcomes improve, and that is incredibly rewarding for physicians. That makes it a great antidote to burnout."

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