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Malpractice Cases Involving Non-Adherent Patients

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Malpractice Cases Involving Non-Adherent Patients

By Jock Hoffman, CRICO

Related to: Ambulatory, Communication, Primary Care, Nursing, Physician Voice

As health care has evolved from a paternalist, physician centric model to a team-based, patient-centered model reliant on shared decision making, so too has the terminology used to describe contrary behavior.

The term “difficult” that had been applied to patients who didn’t obey their doctor's orders was first modified to “noncompliant,” then, more recently, to “non-adherent.” Such changes acknowledge patients own the right to follow (i.e., adhere to) or ignore your advice regarding lifestyle choices, treatment regimens, and prescriptions.

What hasn’t changed, however, is clinician angst that they work in a health care delivery system that limits their ability to convey to patients concerns that their decisions or disengagement may pose serious consequences. In a 2011 Consumers Report survey of 660 primary care physicians, patient noncompliance was the top complaint, and that sentiment seems to be increasing.

Time constraints, communication barriers, and “Dr. Google” are ubiquitous hindrances. Imparting your recommendations is often a challenge; being able to engage in a meaningful discussion about why those recommendations matter to the patient’s health is a much bigger challenge. On top of that, clinicians worry that an adverse health outcome will somehow be attributed to their inability to convince a patient to follow their advice.

The clinical coders who assign contributing factors to medical malpractice cases housed in CRICO’s national Comparative Benchmarking System (CBS) recognize that some adverse events are impacted by patient decisions contrary to sound medical advice or behavior outside any clinician's influence or control. To capture relevant instances of non-adherence with recommended treatment, follow up, or medication regimens, the coders may assign one of the following codes:

  • Patient noncompliance with a recommended treatment regimen
  • Patient noncompliance with follow-up calls or appointments
  • Patient noncompliance with medication(s)

For all CBS cases asserted from 2007–2016, 11 percent had one or more of these contributing factors (12 percent of the high-severity cases). Of those, 29 percent involve a medical treatment allegation and 23 percent allege a diagnostic failure. Not surprisingly, the vast majority involve outpatients and primary care providers are the most commonly named.

The presence of these issues does not, of course, suggest that other factors did not substantially contribute to an adverse outcome, nor do they preclude a case from being brought forth. While the reasons cases are closed with an indemnity payment go far beyond the coded contributing factors, cases that do include one or more “patient noncompliance” factor closed with a payment at a rate (25 percent) below the 34 percent rate for all CBS cases closed from 2007–2016.

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Data for Cases With Non-Adherent Patients: Click to enlarge.

Wary or disengaged patients who have serious health issues will, nevertheless, continue to require and seek care. While non-adherence can be exasperating when you have a broader view of the consequences of such decisions, you may ultimately be able to help those patients by seeing their decisions as detours rather than dead ends. Probing for the reason a patient rejects treatment, misses appointments, or neglects medications may expose underlying issues that you can then address. Reframing the situation (especially for patients with low health literacy), realignment of expectations, or engagement of family members or social services, are strategies that may help your patients make better informed decisions.

Obviously, you can only devote so much time to patients who resist your help. Record your education efforts (and materials provided) and document a patient’s refusal of strongly recommended care. If necessary, follow established protocols for transferring care to another provider. While such actions may not prevent a malpractice claim or lawsuit, they demonstrate your efforts to adequately explain or emphasize the importance of recommended care plans, and to guide the patient toward appropriate care.

Additional Material


April 2, 2018
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