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Not Following Suits

By Jock Hoffman, CRICO

Related to: Communication, Emergency Medicine, Primary Care, Nursing, Obstetrics, Other Specialties, Surgery

The non-compliant patient who sues his physician for an adverse clinical outcome is a storied malpractice bogeyman. After failing to follow a screening regimen, show for appointments, undergo recommended tests, make health-related lifestyle changes, or take their medications, these patients (now plaintiffs) have the audacity to blame the doctors and nurses for not being adequately clear or assertive.

Are they real?

Yes and no. Not every “difficult” patient is a potential claimant, but many patients do put themselves at risk for irreparable harm and expose their caregivers to greater risk for allegations of negligence.

Five percent of 8,500 malpractice cases analyzed via CRICO’s CBS database cite patient non-compliance as a contributing factor. Most commonly, such cases allege diagnostic errors. About one-third (36 percent) of cases with non-compliance issues result in payment to the plaintiff. Payments average $496,000 across all jurisdictions; $386,000 for the subset of cases involving CRICO-insured providers.

Of course, more than five percent of patients are non-compliant, reflecting both willful and circumstantial discordance. Understanding when a recalcitrant patient does poses a liability risk requires some delineation.

Difficult patients who demand extra attention, who challenge your clinical aptitude, who want superfluous tests or treatment can, indeed, be irksome. Yet patients who aggressively contest standard care recommendations are not necessarily non-compliant. Their assertiveness does, however, signal the physician to be vigilant in maintaining trust and documenting the rationale behind areas of disagreement.

Non-compliant patients are those who seemingly agree to follow your recommendations (i.e., referrals, medications, follow-up appointments, lifestyle changes) then don’t—without telling you. Behavior that is apparent to the care giving team (e.g., missed tests or appointments) identifies that patient as being at additional risk, and reinforces the importance of clinician follow up, pursuit, and documentation. But unseen non-compliance (e.g., unused medications, substance abuse, unreported symptoms) exposes physicians to the risk of practicing in the dark. Subsequent care based upon an assumption of compliance with previous instructions piles risk on top of unresolved issues for both patient and provider. One option physicians might consider to reduce this type of exposure—especially for high-risk or chronic care patients—is an assessment to guide their level of vigilance in confirming treatment plan adherence.


Clinicians at the sharp end of health care need to be blunt with those patients who are inclined to sidestep their recommendations. Patients need to know 1) your advice is personal, not generic; 2) you are adamant, not ambivalent; 3) the long-term risks of non-compliance; and 4) resources available to help them comply with your treatment plan. In turn, providers need to know (and document) the patient's perception of his or her recommendations and the patient's ultimate preference for care.

If you still sense (or have evidence) that compliance is unlikely, stratify the underlying risk. For those patients who you worry will end up in the morgue—or in the courtroom—develop a protocol that enables you to extract the reasons for non-compliance. If your patient can tell you why he or she is reluctant to take your advice, you have a second opportunity to find a mutually agreeable alternate plan. Documentation of those discussions and, if necessary, the patient's expressed (informed) refusal is essential. Without it, their decision not to comply becomes your risk, too.


June 1, 2011
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