Risk experts offer tips for managing difficult patients

Few things are more aggravating for physicians than patients who refuse to follow their medical advice.

Aggravation turns to infuriation when the patient suffers the exact bad outcome the doctor had warned about. It’s even worse when the patient turns around and blames the doctor, and it becomes a full-fledged nightmare if the ensuing med-mal claim drags out for years.

That’s exactly the situation Martin Foster’s clients faced. The Cambridge attorney recently wrapped up a trial where he represented two pediatricians who provided care in the early 1990s to a boy with an eye condition that could have been treated.

According to Foster, the mother repeatedly disregarded treatment instructions. As the pediatricians had both warned, the boy lost his vision in his right eye.

The mother, who reportedly failed to follow the pediatricians’ instructions because she was “too busy,” sued both doctors in 1999.

The case took seven years to get to trial. It ended in a winning verdict for the physicians, largely because they thoroughly documented in the patient’s chart all communications with the patient and his mother, including treatment advice, the associated risks and benefits, and the risk of noncompliance.

“The three biggest mistakes doctors typically make in dealing with noncompliant patients are documentation, documentation and documentation – or lack thereof,” says Foster.

Foster’s clients suffered the ordeal of living with a med-mal case for several years. But many other physicians are even less fortunate.

According to lawyers, doctors and liability experts, missteps in dealing with noncompliant patients are one of the most fertile sources of successful malpractice suits and disciplinary actions before the state Board of Registration in Medicine. In malpractice cases with a particularly severe patient outcome, damages can run well into the seven figures.

As a result, it’s critical for a doctor dealing with a difficult patient to:

• Try to diagnose and address possible reasons for noncompliance;

• Thoroughly document all interactions with the patient;

• Maintain systems to identify noncompliance and act on it;

• Watch out for special issues related to elderly and minor patients; and

• Terminate the physician-patient relationship if necessary, but in a manner that does not constitute abandonment.

“The ultimate responsibility lies with the doctor to foster a therapeutic alliance with the patient,” says Philip Burke, a Boston physician. “Patients are likely to come to the doctor frightened or apprehensive of medicine. So if factors exist that are getting in the way of the physician helping the patient, it’s the physician’s responsibility to recognize and address those factors.”

Sources of the problem

From a risk management perspective, it’s critical for physicians to think of noncompliance as a clinical issue, says Boston lawyer Judith Feinberg, who practices with Adler, Cohen, Harvey, Wakeman & Guekguezian.

“The first question to ask is, ‘Why is the patient noncompliant?’” she says.

Any number of things, including language and cultural barriers, neurological issues, psychological concerns or toxicological issues, could be at the root of the problem.

“If there’s a clinical issue that can be successfully addressed and turn a noncompliant patient into a compliant one, it’s a win-win for everyone,” Feinberg says.

Here are some common examples of noncompliance and suggestions for dealing with them:

• Language barriers.

When dealing with a language barrier, the key is to realize the problem and provide a translator.

“There are cases out there finding lack of informed consent where the patient wasn’t provided a translator,” says Kelly Testolin, a lawyer who practices with Hale Lane in Reno, Nev., who represents health care providers in malpractice and disciplinary actions. “If you have a patient who’s not speaking the language and is noncompliant, you’d better provide a translator and get documentation that proves you have an ‘informed refusal.’”

• Drug reactions.

Burke, the Boston doctor, says that a patient may stop following a treatment protocol when there is an undesirable side effect to a particular drug. “But there are ways to work around this,” he says.

Possible adjustments include changing the amount of the dose, the time of the dose or the class of medicine being used.

“The key is working with the patient to adhere to the plan that you and he or she have agreed on,” Burke says.

• Rude treatment by physicians or staff.

Rudeness or arrogance is a big risk-management issue that can often trigger noncompliance.

For example, if patients feel office staff are treating them rudely or ignoring them – or if they get frustrated with the maze of options on the practice’s phone system – they might stop following their treatment protocol rather than telling the doctor why they’re angry, says Bonnie Ellis, senior clinical risk management representative at ProMutual Group in Boston.

“When we call an office we’re consulting with, we’re sent through the litany of options,” she says. “The frustration of a patient trying to get through is even higher, since their anxiety is already up when they’re dealing with a medical problem.”

Similarly, patients may become noncompliant when they’re put off by their doctor’s demeanor.

“There are excellent doctors who unfortunately attract a disproportionate number of complaints because they don’t know how to deal with patients as well as others,” says Boston lawyer Paul Cirel, a partner with Dwyer and Collora.

The root of the problem can be anything from seeing too many patients in a day, allowing phone interruptions in the exam room, running consistently late or seeming arrogant.

To avoid these problems, Feinberg recommends focusing carefully when speaking to a patient.

“If you tell someone something they don’t want to hear but you’re an active listener and respectful and polite, you’re much less likely to ultimately find yourself the target of a complaint than if you come across as rude and condescending,” she says.

Paper trails

When doctors get into trouble, it’s usually due to a failure in documentation, says Burke, “which leaves them open to someone scrutinizing and then misinterpreting [their] thought process, judgment or rationale for doing what they were doing.”

When it comes to noncompliance, it’s particularly crucial that physicians document not just the noncompliance itself, but also the fact that the patient is giving the equivalent of informed consent with respect to his or her refusal.

“The patient has the right to refuse care,” says Cirel. “But if you can’t demonstrate informed refusal through your record, then you have a potential liability risk for failure to diagnose, failure to treat and failure to monitor treatment. If you can document it, you’re prepared for the malpractice suit that’s coming.”

Feinberg stresses that when documenting noncompliance, physicians should do so without using language that comes across as judgmental or condemning of the patient. “When any of us is frustrated, it’s very easy to make word choices that are harsh or even punitive when read back later, and those word choices can often come back to haunt us,” she says.

All systems check

Ellis advises that all practices maintain systems to identify and address patient noncompliance. That way it’s harder to accuse the physician of failing to properly follow up with the patient.

First, she suggests that physicians have a system to handle no-show patients. The system should identify on a daily basis which patients didn’t come, review the reasons for their appointment and decide how to attempt to bring those patients into the office.

“This could be as simple as an office staff person making a phone call to the patient. If a follow-up is necessary and important and a call doesn’t work, it might mean following up with a written letter,” she says.

In addition, physician practices need a system to schedule the next visit whenever follow-up treatment is necessary. Ellis recommends having patients schedule follow-up appointments before they leave the office.

Finally, it’s important to maintain a system to track patients’ recommended follow-up outside the office.

In many offices, says Ellis, whenever a doctor orders a lab test, an x-ray or a visit to a specialist, the recommendation is entered into a computer tracking system.

This allows the office to print out a periodic report with a list of patients who have been sent for tests to determine if they have received the results and respond accordingly.

Special cases

Unique noncompliance issues arise when dealing with patients who are minors or elderly.

With minors, as in Foster’s case, the noncompliance generally comes from the parent, not the patient.

If noncompliance results in a child not receiving proper care, it can rise to the level of abuse. Under Massachusetts law, doctors are required to report abuse to child-welfare authorities.

The reporting requirements are similar for the elderly.

“If you have an elderly patient who’s not competent and there’s a caretaker who’s probably the reason the patient isn’t getting to his appointments or getting his prescriptions filled, that’s probably going to be reportable elder abuse or neglect,” Testolin says.

Even in cases that don’t rise to the level of abuse, when noncompliance is involved, doctors need to be sure the person who is giving informed refusal has the legal authority to do so – and that they can document their authority.

In most situations that involve the elderly, you’re dealing with a relative, says Testolin.

In some circumstances, the relative might even want the patient to die because his illness is making the relative’s life difficult, financially or otherwise.

As a result, when a relative or other caretaker asserts informed refusal of care, doctors must insist on proof of guardianship or a durable power of attorney.

“Without it, you won’t be able to demonstrate informed refusal,” Testolin says.

Questions or comments can be directed to the editor at: reni.gertner@lawyersusaonline.com