FOCUS ON RISK MANAGEMENT
Dealing with the Noncompliant Patient
To minimize legal risk, you must communicate, document and follow-up.
BY ANNIE PENA, R.N., M.S.H.A.

Some physicians believe that patients themselves should be responsible for following and adhering to the prescribed recommendation and treatment plan. They feel that once the patient leaves the office, physicians should not be accountable for "hand holding," that is, making sure that patients have followed instructions.

It is true that patients should be encouraged to assume responsibility for their own care as much as possible. But not every patient will be compliant. Some may ignore or forget their instructions, increasing the possibility for personal injury to themselves, and thereby presenting a liability risk to the physician. If you take a passive approach to follow-up and fail to be proactive in building the patient/physician relationship. you're practically inviting litigation, particularly from noncompliant patients. The current risk-management climate requires well-documented doctor/patient communication. The physician who understands the value of carefully communicated instructions, thorough follow-up procedures, and precise documentation can practice with relative peace of mind. Improved doctor/patient communication can also help in reducing noncompliance.

In this article, I'll recommend a number of steps you can take to minimize the legal risk that noncompliant patients can present to a practice.

Dealing with Noncompliance

Patients may be noncompliant for a variety of reasons, ranging from lack of comprehension, to a problem in the relationship between the physician and the patient. Some may refuse to follow the prescribed course of treatment because they disagree with the chosen treatment, or because of cultural or spiritual values.

Completely eliminating such situations would be ideal, but a more realistic objective is to decrease the incidence of noncompliance by taking the appropriate steps.

Communication is the first step needed to ensure that the patient understands the appropriate information. You should provide clear, easy to understand, thorough explanations. Pre-printed instructions should be provided and compliance issues should be reviewed. The significance of the diagnosis, benefits, potential problems and alternatives should be discussed. You should also provide the patient additional time if needed to ask questions, and then verbally address the patient's concerns. Furthermore, you should encourage the patient to repeat the instructions. If patients have additional questions regarding their condition after they leave the office or hospital setting, they should be encouraged to call the office, where medical personnel will answer their questions.

If the patient's primary language is not English, someone with medical training should be available to translate. Document the name and relationship of any individual who interprets for the patients. Written instructions are available in English and in Spanish from pharmaceutical companies and some medical associations.

Patients who understand their conditions will have a better outcome and are inclined to be more satisfied. Taking the time to talk to the patient and the family in a caring way is a major step in reducing malpractice risk. Data shows that patients don't sue physicians they sincerely like and trust. If needed, additional visits should be scheduled to monitor the patient's compliance.

Follow-Up On Tests and Referrals

Follow-up tracking systems should be used to ensure that the patient has followed your recommendations for diagnostic testing and physician referrals. A tickler file or a logbook with the patient's name, date, test to be performed, date the results are received with staff member signature, and the action taken, are simple steps an office can implement to make certain the patient has received the prescribed testing. The logbook or tickler file should be checked daily to monitor results and alert the physician to any outstanding tests that have not been received. Many electronic medical records have software that will alert you if there is an item outstanding or needs to be reviewed. If the patient is referred to another physician, it is better to have someone in the referring physician's office make the appointment for the patient, if possible.

A notation should be made in the medical record if the patient misses or cancels an appointment. Patients should be contacted by phone and reminded to reschedule. If the patient cannot be reached, a letter should be sent stressing that continued care is important to his or her health condition. The importance of the follow-up appointment should be emphasized. Missed appointments can lead to delays in diagnosis and treatment.

Document Thoroughly

As healthcare providers, we have heard that the best way to protect ourselves is to "document, document, and document." Good documentation can prevent or minimize the potential adverse consequences of malpractice litigation. Documentation in the medical record should provide a clear and detailed plan that states relevant information related to the patient's health status and that credits competent care.

This helps form a tight defense against allegations of malpractice, by supporting the expectations of the patient and provider. If documentation is not dictated, be sure that all entries are clear and legible. Documenting the patient's poor compliance or refusal to consent to treatment is vital.

If all efforts fail to convince the noncompliant patient to follow your advice, consider discharging the patient from your practice. Your malpractice insurance carrier can provide discharge Against Medical Advice (AMA) and Refusal of Consent forms, and a sample discharge letter.

Creating a Bond of Trust

Ultimately, the most important factor in determining patient compliance is the bond of trust developed by the physician. Good communication skills promote positive interpersonal relationships and enhance the exchange of information between patients and physicians. This results in increased patient satisfaction and potentially improved clinical outcomes. Providing good quality continuum of care can minimize legal risks.

Annie Pena, R.N., M.S.H.A., is Director of Loss Control and Risk Management for NJ PURE (New Jersey Physicians United Reciprocal Exchange), a not-for-profit medical malpractice insurance provider. Pena, a registered nurse, has been in the healthcare field for 25 years and served as a consultant for the Johnson & Johnson Company. The information in this article is intended solely to provide risk management recommendations. It should not be relied upon as a source of legal advice.