When a Patient is Noncompliant, are you Negligent?
Here are situations where you are considered negligent in treating glaucoma patients and some strategies to avoid legal action.
BY CELIA SANTANDER, ESQ.

Certain legal principles that are well-developed in the context of medical negligence can pose special problems when combined and applied to glaucoma cases. In particular, the concept of comparative negligence has the potential for being upended in the most Abbott and Costello (who's on first?) fashion when juxtaposed with the standard of care applicable to ophthalmologists and glaucoma patient noncompliance. This can lead to an increased liability risk for doctors, and result in a greater need for strict treatment protocols and practices.

Understanding Comparative Negligence

With these concerns in mind, ophthalmologists are devising new, more effective strategies to encourage patient compliance. In attempting to encourage patients to comply with glaucoma treatment regimens, ophthalmologists inexorably take on greater responsibility for the actions and inactions of their patients. The question then becomes, "to what extent can the ophthalmologists' standard of care include responsibility for the patient's compliance?" Unfortunately, this question is beginning to be answered in courtrooms.

The legal theory of comparative negligence is based — perhaps surprisingly — upon the real-world rational idea that rarely is any bad event the entire fault of only one person. Usually, more than one person has been at fault contributing in some measure to the harm that eventually befalls. Comparative negligence looks at all parties involved in creating the harm and apportions responsibility for damages among all parties who contributed to that harm.

For example, a woman breaks her arm in a car accident with a reckless driver, and then subsequently suffers permanent deformity as a result of her physician setting the break incorrectly. A court applying the theory of comparative negligence would first start with 100% of the resulting harm (the deformity) being caused by the reckless driver and the negligent physician together, and would then determine to what degree the reckless driver caused the deformity (the initial break), and to what degree the physician contributed to the deformity (the bad set).

A possible outcome would be that the reckless driver was 40% negligent and the physician 60% negligent. If damages were assessed at $10 million, the reckless driver would be responsible for $4 million, and the physician for $6 million. Comparative negligence can be applied not only to multiple defendants, but also to the plaintiff if the plaintiff has contributed to his or her own injury. The result in such a case is that damages are reduced by the percentage of negligence attributable to the plaintiff.

Comparative negligence should not be confused with contributory negligence, which has a similar analytical basis, but a very different outcome. The contributory negligence theory looks first to whether or not the injured party who has brought suit (i.e., the plaintiff) contributed to his or her own injuries. If the answer to this question is yes to any degree, even 1%, the plaintiff is barred entirely from recovering any damages whatsoever under any claim of negligence.

Only five states in the U.S. apply this theory — Alabama, District of Columbia, Maryland, North Carolina and Virginia. It is understandable why so few states use this legal theory since it leaves the injured plaintiff with no means of recovery even though they are only partially at fault, while the other negligent party gets off scot-free. Most states adopt the principle of comparative negligence, which has frequently been applied in medical negligence cases.

Comparative negligence in glaucoma cases has taken two approaches. One approach evaluates the percentage increase in risk, and apportions fault and damages according to that percentage. Another focuses on available opportunities to avert damages, ignoring comparative fault on the patient's side if the physician missed such an opportunity. While the former approach results in a fairly predicable result — a percentage of comparative negligence assigned to the noncompliant plaintiff patient — the second approach results in a surprising dismissal of any fault on the part of the patient, even when that patient has been noncompliant.

A Case In Point

The case of James H. Smith vs. Wilbert Washington, M.D., illustrates the first approach, in which fault and damages were apportioned between the two negligent parties — patient and physician.3 In this case, James Smith suffered injury to his right eye in a car accident and was subsequently examined by Dr. Washington, who correctly diagnosed his condition as glaucoma. Dr. Washington treated Smith from July 10, 1990 until at least June 13, 1992, prescribing eye drops and performing two laser surgeries in attempts to reduce Smith's IOP. The result of the treatments was unsuccessful, and Smith lost all light perception and all useful vision in his right eye.

Smith presented evidence at trial that Dr. Washington had breached the applicable standard of care. Dr. Washington asserted that Smith's negligence in failing to take prescribed medication and refusing to undergo additional surgery contributed to his ultimate loss of vision. The trial court agreed with both arguments and found both Smith and Dr. Washington negligent in equal measure. While the court of appeals reversed the decision, the Indiana Supreme Court eventually upheld the trial court's verdict and held Dr. Washington responsible for only 50% of the damage to Smith's right eye.

Of particular interest in this case is the thought process that led the trial court to the 50% conclusion. The court determined from the evidence presented that the probability that Smith would have lost his vision in any case, even if Dr. Washington had not been negligent at all, was 50%. The trial court evaluated Smith's comparative negligence first, and did so by calculating the percentage probability that the entire damage would have occurred solely by Smith's actions.

In upholding this rationale, the Indiana Supreme Court approached the problem from the other direction to reach the same conclusion. The court explained that the plaintiff is entitled to receive the "proportion of damages traceable to the defendant's act or omission," and that the "amount of damages recoverable is equal to the percent of chance lost multiplied by the total amount of damage."3 Another way of wording the decision is if the physician worsens the situation by 40%, the physician will be liable for 40% of the overall damages.

Perhaps even more interesting in this case is the juxtaposition of the standard of care introduced into evidence with the comparative negligence of the plaintiff. The trial court accepted as evidence Smith's noncompliance in taking the medication prescribed by Dr. Washington, and refusal for further surgery that might have saved his eyesight.

Yet the physician was still held 50% accountable for breaching the applicable standard of care. What was that standard? The Indiana Supreme Court quoted the medical review panel member who testified at trial regarding a standard of care: to maintain adequate recordkeeping; to establish, or take appropriate steps toward establishing, a specific diagnosis of Smith's type of glaucoma; to monitor the condition of Smith's optic nerve with appropriate testing; to gain control of Smith's glaucoma within a reasonable time frame, or alternatively, refer Smith to another ophthalmologist; and either to document advising Smith to have further surgery or to advise Smith of the risks and benefits of surgery.3

Viewing the standard of care, in light of the acknowledged facts that Smith refused to take medication and refused further surgery, we can deduce at least some of what Dr. Washington failed to do which cost him his 50%. In part, Dr. Washington was penalized for failing to "gain control of Smith's glaucoma" and to "document" his advice to Smith for further surgery. Apparently, the fact — affirmed by the trial court — that Dr. Washington recommended the additional surgery did not negate the 50% negligence in failing to document that advice. Moreover, Dr. Washington's failure to gain control of the disease despite the patient's noncompliance became a determining factor in his negligence, over and above the quality of the treatments attempted.

Another Comparative Negligence Approach

A second case, Clifton G. Richardson vs. Alvaro J. O'Byrne, M.D., Suzette S. Killeen, M.D., et al, adopts the second approach to applying comparative negligence with even more shocking results.4 In this case, Richardson was diagnosed by Dr. O'Byrne with retinal artery occlusion, and subsequently, with neovascular glaucoma.

Dr. Killeen administered a course of laser therapy, followed by cryotherapy. The therapy was unsuccessful and Richardson lost vision in his right eye. Experts at trial testified that treatment is necessary within 10 days for neovascular glaucoma. The facts indicated that Richardson failed to seek treatment within that 10-day period. Despite these findings, the court refused to assign comparative negligence to Richardson on the basis that Dr. Killeen had two opportunities to save Richardson's sight with proper treatment and failed to do so. The defendants were held 100% responsible for the damages to Richardson's eye.

The courts' analysis and the results in both of these cases imply that the standard of care for glaucoma treatment is evolving to include a measure of physician responsibility for patient noncompliance. Moreover, physicians can be held responsible for missed "opportunities" to avert damages caused by noncompliance. The result is that patient noncompliance may not only become meaningless as a comparative negligence defense to medical malpractice, but could itself evolve into a new basis for medical negligence claims.

Protecting Yourself

To avoid these risks, ophthalmologists treating glaucoma patients must adhere to a strict regimen that includes: establishing and implementing a plan for diagnosis of the specific glaucoma type; establishing and implementing a treatment plan that is adjusted in response to the patient's response to treatments; ongoing monitoring of the patient's condition; ongoing monitoring of and encouraging the patient's compliance with prescribed treatments; documenting in writing all of these steps — diagnosis and treatment plan, and ongoing monitoring of the patient's condition; documenting all treatment advice given to the patient; and documenting all incidents of patient's noncompliance and the effect of such noncompliance on the patient's condition, if determinable.

In extreme instances of patient noncompliance, the ophthalmologist has the option of terminating the patient-physician relationship, but this choice should be exercised only with extreme caution to avoid liability for abandonment. Termination of the relationship requires advance notice to the patient sufficient to allow the patient to obtain care from another physician.5 In addition, the physician should provide the patient with a list of alternative physicians, and should follow up to ensure the patient received the notice.

While these are extensive guidelines, the interests of the ophthalmologist and the patient alike are better served by following the steps for treatment and documentation. These guidelines, along with encouraging patient compliance can help protect you from legal action.

Celia Santander Esq., is a sole practitioner in private practice and an adjunct professor of law at Duquesne University School of Law. She serves on the board of directors of the Institute of Law and Technology, a subsidiary of The Center for American and International Law.

References

1. Nataloni, R. Delving into the Problem of Glaucoma Patient Noncompliance. Ophthalmology Management. August 2004.

2. Nataloni, R. Quoting Tsai JC, McClure CA, Ramos SE, et al. Compliance barriers in glaucoma: a systematic classification. J Glaucoma. 2003;12:393-398.

3. James H. Smith v. Wilbert Washington, M.D., 734 N.E. 2d 548 (Ind. 2000).

4. Clifton G. Richardson v. Alvaro J. O'Byrne, M.D., et al, 830 So. 2d 1013 (4th Cir. 2002).

5. Payton v. Weaver, 182 Cal. Rptr. 225 (Cal. Ct. App. 1982).