Malpractice Consult

By Lee J. Johnson, JD

"I'm a doctor, not a nanny"

• Make clear to patients why you want certain tests or consultations.

• Document that you took steps to follow up on tests.

• A tracking system is less expensive than defending a lawsuit.

Q: You attorneys keep telling doctors that we'll get sued unless we go to great lengths to make sure patients keep follow-up appointments, get recommended tests, and comply with sound medical advice. Your column in the June 20 issue, entitled "Keeping track of test results," suggests thatwe create a reminder system that sounds labor-intensive, time-consuming, and expensive. I'm a doctor, not a nanny. Shouldn't adult patients who've been properly advised and scheduled take some responsibility for their own health?

A: Your complaint is one I've heard hundreds of times, and I sympathize (although I disagree that follow-up systems need be as onerous as you describe). Nevertheless, in today's litigious world, physicians must demonstrate that they do all they can to make sure things don't fall through the cracks, even when patients are uncooperative. It may seem unfair, but many lawsuits are won or lost based on how much effort a doctor puts into following up with patients.

The legal theory of comparative negligence allows for the distribution of liability between the plaintiff and the defendant in a malpractice suit. The amount a plaintiff recovers can be reduced in proportion to his degree of fault in causing the damage. A doctor who's sued can make a counterclaim for comparative negligence. The physician's attorney can argue that the patient understood the diagnosis and the recommended course of treatment, but still failed to follow the doctor's advice.

If you've documented what you told the patient in your progress notes and informed consent forms, that argument may prove persuasive. But if the patient lacks capacity due to age or infirmity, a jury might not buy your defense. Even nurses or doctors who are sick may not absorb your instructions at the time. Juries usually assume that a physician has superior knowledge and should take steps to ensure that patients understand the importance of compliance.

Suppose you want a 50-year-old patient to go for his first colonoscopy. The patient has a family history of colon cancer. But you don't specifically mention that the purpose of the test is to check for polyps that could be cancerous, and that the patient is at higher than average risk. So your patient doesn't think the test is important, forgets about it, is diagnosed with cancer a year later, and sues you for missing the diagnosis. Such plaintiffs often successfully argue that if the doctor had only spent more time explaining the gravity of the situation and the need for tests or other follow-up, they certainly would have complied.

To avoid liability, be as candid as possible about the reasons for seeking tests or consultations. And like it or not, you must follow up with the patient if she doesn't keep appointments or you don't receive consults, X-rays, and labs you've requested. How far you have to go depends on the gravity of the situation and the capacity of the patient.

Your best defense against a lawsuit is to discuss your thinking and plan of action with the patient. Get him to understand that he's a partner in this process and the ultimate outcome, in large part, is his own responsibility. Encourage questions and urge the patient to let you know about any misgivings or worries. A fully informed patient will be more compliant and less likely to sue.

Yes, sometimes doctors have to do some hand-holding. Still, it's less costly than facing a jury.

 

Lee Johnson. Malpractice Consult: "I'm a doctor, not a nanny". Medical Economics Nov. 21, 2003;80:68.