Malpractice Consult

November 19, 2004

Your liability for noncompliant patients

Q One of my diabetic patients consistently fails to follow my advice on diet and medication. She's putting herself in serious danger, and, if something goes wrong, I could be blamed. How can I cope with such noncompliant patients, and also protect myself from liability?

When a doctor advises a new patient to stop smoking or alter eating habits, or see a specialist, but doesn't bring up the subject again in subsequent visits, the patient may reasonably conclude that the doctor doesn't consider the issue significant enough to warrant repeating. Misunderstanding and noncompliance may result if the doctor doesn't adequately explain the significance of certain test results or conditions, or the risks and benefits of different treatment options.

If a patient wasn't informed or didn't understand potentially serious side effects of a prescribed medication, and suffers a drug-related injury, the doctor may be liable. The same risk exists if the doctor fails to warn the patient of potential drug interactions, or to emphasize precautions to follow while taking the drug, such as not driving or abstaining from alcohol.

Another common problem is that noncompliant patients typically don't share the doctor's advice with their family. When the noncompliance leads to injury or death, the family may feel that the physician was at fault, claiming the patient never would have ignored such advice if the doctor had really given it.

You can reduce your liability risk by encouraging elderly and non-English-speaking patients, or others who have difficulty understanding your advice to bring a family member with them to their office visits. Make a point of asking those patients if they understand what you've told them. Put important instructions in writing, and tell them and their family to review it when they get home. That's particularly important with potent medications, and with newly diagnosed and complex conditions such as hypertension, heart disease, diabetes, and cancer.

Make sure you document examples of the patient's noncompliance. Ask your staff to record missed appointments, tests, or referrals in the patient's chart. That way you'll have some protection from liability if something goes wrong and you're sued for malpractice.

Ultimately, the best way to reduce your liability with persistently noncompliant patients is to simply discharge them. Patients who don't care enough about themselves to follow your instructions are often the first to sue when something goes wrong.

The author is a risk management and loss prevention consultant in Cloverdale, CA. He can be reached by email at lossprevention@earthlink.net
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This department answers common professional liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 973-847-5390 or e-mail it to memalp@advanstar.com