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LEGAL EASE
The
Non-Compliant
Patient
By George F. “Rick” Evans Jr.
Evans, Rowe & Holbrook
Let’s start by making it clear this article is written solely from the a soft recommendation. Things like “perhaps you should consider a
lawyer’s perspective. Not from the eyes of a medical ethicist. Medical mastectomy instead of lumpectomy, or a CABG instead of a stent,
professionals may disagree and suggest a variety of educational and or being admitted rather than treated as an outpatient, etc.” And,
rehabilitative strategies intended to work with uncooperative pa- of course, it’s anything the patient was told to do (return appoint-
tients. You’re the one who ultimately makes the choice on how to ments, limits on activity, take these meds, etc.)
handle these patients, so let me share with you a legal viewpoint of
the subject. So, what do you do about this patient? Here’s my
laundry list. Compare it to your daily practice and
Why is non-compliance important to a lawyer? Two reasons. First, see how you score.
it frequently leads to bad outcomes when patients don’t do what
they should. And bad outcomes lead to lawsuits since, after all, no- All instructions of any kind to the patient should be documented
body sues over good outcomes, do they? Second, Texas law stops a in written format. Remember, instructions also include even your
patient from winning a lawsuit if the jury believes he was 51 percent recommendations or suggestions.
or more at fault for the outcome. Non-compliance is considered a
form of “patient fault” which is why it’s important to a defense at- Instructions further encompass pamphlets or videos given or
torney. We need to show the bad outcome was due to non-compli- shown to the patient. The fact it was shared with the patient must
ance instead of suboptimal medical care. be documented. A lawyer’s definition of pamphlets, by the way, is
pretty broad and would include things like physical therapy instruc-
Lawyers may have a slightly broader view of non-compliance than tion sheets, pre and post procedure take home instructions, wound
doctors. To us, it’s more than an intentional refusal to follow physi- care instructions, and even copies of the PDR cautionary statements
cian instructions. It’s any failure to do whatever the patient should to patients that many doctors give their patients along with the pre-
have done, whether intentional or not. It includes things like missing scription.
a scheduled appointment, not attending all the physical therapy ses-
sions, not losing weight or changing a diet when told to do so, and When patients don’t do anything that falls into this broad defini-
so forth. These are events that may be the result of absent minded- tion of instructions, it has to be documented. Bear in mind this in-
ness or lack of willpower, rather than intent, but it makes no differ- cludes even those times when the patient’s decision isn’t a failure to
ence in the eyes of the law. follow your instructions, but when it arguably may have been a rea-
sonable decision for the patient not to. For example, you may simply
Now let’s talk about what are “instructions”. Again, lawyers may offer a treatment or procedure for the patient’s consideration (al-
have a broader view of it than physicians. It’s more than just a clear though you don’t feel strongly about it), and the patient nonetheless
mandate from the physician to his patient (i.e. don’t eat anything declines (i.e. a cardiologist does a non-invasive nuclear stress test on
after midnight before you come in for your day surgery”). It’s every- the patient but suggests that a cardiac catheterization would provide
thing about which a patient is informed to better his condition. even greater accuracy. The patient declines because he thinks the
Lose weight, stop smoking, exercise more, eat less fat and sugar, wear stress test was sufficient and doesn’t want the risk of a cath.) The pa-
sunscreen and long shirts, etc. It’s also things that may not be an ac- tient’s decision may not rise to the level of non-compliance, but it
tual instruction by the physician, but fall more into the category of does have consequences. They should bear those consequences, not
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