Malpractice Consult

Malpractice Consult

By Will Osburn, JD

When a patient lies about his health history

Q: When I took the history of a new patient suffering from stomachand back pain, he denied having any cardiovascular problems or risk factors.A month later, he had a stroke, and later sued me. I've since learned thathe failed to tell me he'd had two myocardial infarctions and multiple clotsfrom a vasculitis. No physician should be held liable for a poor outcomewhen the patient has been untruthful. Could a form that the patient signsat the first visit block a lawsuit if he lies?

A: No. Almost all judges would rule any agreement, release, waiver, ordisclaimer of that kind invalid. Courts have consistently held that suchcontracts are inherently unfair to patients, who don't possess the sameknowledge and power as physicians. It's a longstanding principle of tortlaw that negligence cannot be waived—even if the patient signs a form.

Use of these agreements will also raise the subject of negligence andmalpractice litigation with patients before you render any treatment. Thatcould undermine patients' confidence in you.

There are a couple of steps you can take to protect yourself from a patientwho's noncompliant or less than candid:

• Confront him. If records you've received from his previous physicians conflict with what the patient is currently telling you, point out the discrepancies.
• Stress that the doctor-patient relationship is based on trust and open communication. Tell the patient that in order for you to make a valid diagnosis and render beneficial care, the information he provides must be complete and truthful.

Many physicians cite the need for candor—without mentioning its bearingon a possible lawsuit—in the language of the informed-consent statementthat patients sign before a procedure. A similar approach in the wordingof your initial registration form won't deter a patient who's determinedto sue, but it might dissuade a plaintiffs' attorney from taking the case.And if not, it will bolster your defense in court.

Ask each patient to sign the form, then place it in his medical record.The form should be reviewed annually and updated if necessary. If you suspectthat a patient isn't being candid, remind him of the form he signed, andof your need for truthful information.

No matter what you do, a minority of patients may continue to deceiveyou or refuse to comply with your advice. If you become aware that a patientisn't following your instructions, explain to him the risks of noncompliance,and document the discussion.

Keep thorough written records of follow-up treatment, and of any failureby the patient to make or keep appointments, take medication, or otherwisefollow your advice. Those records could be crucial in proving that the patient'snoncompliance, rather than your negligence, caused or aggravated a poorresult.

As frustrating as it is to deal with an untruthful patient, resist theurge to sever your relationship with him immediately. You could face abandonmentcharges if you abruptly terminated him from your practice. If you're treatingthe patient for an acute or episodic condition, you must continue untiltreatment is no longer required. You're also obliged to render emergencycare for a reasonable time (a month, usually) if the patient hasn't founda new doctor.

When it's legally safe to withdraw as his doctor, notify him by certifiedmail, return receipt requested. Keep a copy of the letter in your files.

The author is an attorney in the risk management department of FrontierHealthCare of White Plains, NY. This department answers common professional-liabilityquestions. It isn't intended to provide specific legal advice. If you havea question, please submit it to Malpractice Consult, Medical Economicsmagazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax yourquestion to 201-722-2688 or send it via e-mail to memalp@medec.com.



Will Osburn. Malpractice Consult. Medical Economics 1999;21:270.