What are your risks when a patient does not follow treatment advice?

December 18, 2009

Your level of risk in practice is a function of the complexity of care required, your ability to deliver that care, and the success of your treatment regimen.

Key Points

As with all other aspects of medicine, your subsequent level of risk from a legal standpoint is a function of the complexity of the care required, your ability to deliver that care, and the success of your treatment regimen.

Patients who are successful in meeting all of the nationally recommended targets by following your treatment advice pose the least risk. Patients who do not meet these targets-and patients with CMDW often fail to meet targets-pose greater risk. When those patients subsequently experience cardiovascular events or develop diabetes, your failure to have successfully lowered their risks can lead to litigation.

Your level of risk will vary depending on the options available to you. A patient who simply defies your recommendations and refuses a referral to an accessible specialist, specialty clinic, or treatment center may prove to be the least-problematic patient from a liability perspective. Carefully document the chart to reflect that the patient has decided against any treatment for his or her condition, and list each of the recommendations was rejected. Incorporate in the chart copies of written instructions for diet, exercise, smoking cessation programs, or Alcoholics Anonymous meetings, as applicable. Also document patient non-adherence or non-acceptance of your recommended drug regimen and failure to see the specialists you recommend. Additionally, detail the warnings you have given to the patient concerning the significant increased risks associated with rejection of your recommendations. Have the patient sign your office note, acknowledging these facts. If properly documented, these steps should protect you against potential litigation.

The more problematic situation occurs with a patient who is unable to adhere to your recommendations and is amenable to specialized care but is unable to avail himself or herself of that care. No resources may be available locally, the patient may be unable to afford the available resources, or the patient may be unable to travel to a distant location to access these resources. In such cases, as the primary care physician, your best protection is good documentation. Your chart should detail a discussion with the patient listing the options that you have recommended, the fact that you have informed the patient of the limits of the care you are able to provide, the fact that the care you have provided and are able to provide is insufficient to meet recommended targets, and the risks associated with failure to obtain specialized care. Your note also should document the reasons the patient is unable to follow those recommendations, and it should be acknowledged by the patient's signature.

Some specialty societies suggest that patients with CMDW be treated in specialized clinics or by practitioners with special expertise in the area. Given the difficulties associated with treating these patients, the ever-evolving care guidelines, and the resources necessary to properly treat these patients, referring these patients to appropriate specialists may be wise, especially as these specialty clinics become more readily accessible.

Medical Economics Consultant Steven I. Kern, JD, is a health law attorney with Kern Augustine Conroy & Schoppmann in Bridgewater, New Jersey; Lake Success, New York; and Philadelphia. He can be reached at kern@drlaw.com. Malpractice Consult deals with questions on common professional liability issues. If you have a general question or a topic you'd like to see covered here, please send it to memalp@advanstar.com
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