Friday, July 19, 2013

Who is at fault if a patient doesn't follow up?

In keeping with the mind-set of most Americans today, the answer to the question posed in the title of this post is, "the doctor."

American Medical News reports that "Medical liability experts say missed appointments and failures to follow up pose some of the greatest legal risks for physicians." And these problems are increasing with more hand-offs and more people being involved with the "team" taking care of the patient.

The article began with an anecdote about a patient who needed at cardiac catheterization but wanted to think about it. He went home and died. The family sued and said the doctor did not tell "them how critical it was for him to have the procedure.”

The doctor did not document the conversation about the need for the procedure in the chart and lost the case.

Failure to make sure that appropriate follow-up was done and failure to contact patients about missed appointments are among the most frequent deficiencies cited as big legal risks for physicians.

Get this. "A common claim in lawsuits that involve missed appointments is lack of informed refusal. The allegation arises when patients admit they declined or ignored treatment recommendations, but allege they were not adequately educated about the medical risks of their decision."

Lack of informed refusal. That's a new one on me.

The article says that adequate documentation by the doctor will support his version of events.

What is to prevent any patient, who is explained any plan or procedure and declines, from simply saying, "I didn't realize how serious this was"?

And where does this end? Should a doctor call all her patients every day to ask if they took their medications?

"Hello, Mrs. Balotelli. Did you take your Placebolol today?"
"No, I didn't think it was important."
"Mrs. Balotelli, I wouldn't have prescribed it for you if I didn't think you needed it. I told you that you have to take it to prevent you from having a stroke."
"Well, doctor, I didn't understand that a stroke might be a bad thing. And I don't think my blood pressure is that high today anyway."

Whatever happened to personal responsibility?

I guess it's always someone else's fault when anything goes wrong.

The article ends with a list of 16 things that a doctor and her staff should do for every patient to try to counter this disturbing trend.

Here are a few of them:

    Maintain a current list with dates of problem identification, reviews and resolutions.
    Use the patient's own words when documenting.
    Indicate in writing or electronically that all results of tests, consultants and referrals were reviewed.
    Document all after-hours patient calls.
    Document all advice in the patient's record.
    Detail the patient's level of understanding during the informed consent process.

I'm sure these tasks won't take much time or effort.

And some lawyer will probably say that what the doctor wrote on the chart is not what the patient remembers him saying.

See  this follow-up post on following up.


Libby said...

I agree personal responsibility is needed. And how can another person accurately assess someone's level of understanding when the person is only saying "ok" or "yes". If asked to repeat back in their own words & they do, that doesn't mean it has really sunk in.

Besides, you can tell someone it is critical to have or do something and they still should or have their autonomy, or in jargon, 'self- determination'. Without that we're not human or living in humane circumstances. You can't force someone to do something, although there are ways to entice or word it so they agree, but that isn't respectful in my opinion (even as a parent or child developmentalist worker).

As humans sometimes we aren't as emphatic as we should be when we counsel someone to do something that can save, enhance or extend their life.

LadySurgeon said...

We doctors can only do so much. The patient needs to be the person who cares most about what happens to them, not me or my staff.

dhmosquito said...

Is Placebolol a beta blocker?


cheerio; I enjoy your blog!!


RuggerMD said...

This won't be a problem when there are no more doctors left.
Back in the day, people thought highly of physicians and appreciated them. It seems that is decreasing more and more.
So I am not sure as our youngsters are growing up that there will be anybody left to help direct them toward an honorable profession, as many just don't see the practice of medicine as very honorable any more. IMHO

Skeptical Scalpel said...

dh, yes Placebolol is a new beta blocker. Good name , don't you think?

Rugger, several recent studies show that many docs share your pessimism about the future.

Skeptical Scalpel said...

Libby, I agree, but in today's world, it's always someone else's fault.

DD said...

A few years ago, I was doing a presentation
on medical errors and came across this article;
[Gandhi, T.K., Kachalia, A., Thomas, E.J., Puopolo, A.L., Yoon, A., Brennan, T.A. & and Studdert, D.M. (2006) Missed and delayed diagnoses in the ambulatory setting: A study of closed malpractice claims. Annals of Internal Medicince, 145:488-496.] Which revealed that in 307 cases, 59% resulted in "serious harm" and the reasons were: 55% failure to order appropriate testing; 45% failure to create a proper follow up plan; 42% failure to obtain adequate H&P; 37% incorrect interpretation of diagnostic testing. I mention the study because it touches on your question of accountability for follow-up. In this study the culprits were physicians (failure in judgement 79% vs patient-related factors total 46%) That 46% included "nonadherence" by patients and accounted for 22% of the errors. So the responsibility is shared.

Anonymous said...


May I suggest that we consider the sources utilized in the American Medical News article?

John Davenport, MD remembers a recent case…
…,” said Dr. Davenport, a physician risk manager and attorney in Irvine, Calif.

Medical liability experts say…

In a survey of 723 patient care sites by medical liability insurer The Doctors Company…

The survey found…

A separate review of 2,466 claims between 2007 and 2011 by The Doctors Company found…

… said Beth Cushing, vice president of claims for CRICO, a professional medical liability insurer in Massachusetts.

…said Daniel Wright, vice president of patient safety for The Doctors Company

…said Nancy Lamo, RN, an attorney and clinical risk consultant for Lockton, an international insurance broker.

…said Richard F. Cahill, vice president and associate general counsel for The Doctors Company.

…said Dr. Volpe, medical director of professional liability and risk management for the Medical Group of Ohio.

Source: “Frequent Malpractice Risks Faced by Office Practices Revealed in Survey,” The Doctors Company, May 23

It would seem that medical malpractice companies stand to reap financial benefit from fear mongering physician beliefs of imminent legal ruin.

The Ann Intern Med article cited by DD utilized data pulled from 4 medical malpractice liability insurance companies, whereas the Doctor’s Company conducted “a survey of 723 practice sites” (I’m guessing their clients). However, a rigorous analysis is time consuming, and therefore costly. A medical malpractice company exists primarily to make profit, not beneficently inform physicians of practice pitfalls. Indeed, they stand to profit from a more uncertain physician practice environment, or at least the perception of instability.

I raise the question out of sincerity. I truly hope this isn't practice reality in the current environment. There just isn't time in the day to document 16 points of liability coverage in every note. The suggested outcome of loosing a lawsuit as a result strikes me as equally ludicrous.

Skeptical Scalpel said...

DD, thanks for commenting. Certainly docs may be at fault at times. You will be relived to know that "medication nonadherence" is now a disease with 6 phenotypes.

Anon, excellent points. The article was all from the perspective of lawyers and malpractice insurance carriers. They set standards that are impossible to meet. It perpetuates the system which lines their pockets with money.

Although in fairness, you should know that The Doctors Company was established and is run by doctors. I don't know much about it. Here's a link to its home page

Anonymous said...

Would it help to have patients sign some type of disclaimer form stating that they understand the need to follow prescriptions, attend follow up visits &c?

Skeptical Scalpel said...

It would be nice but I doubt it would make a huge difference. Patients don't read or understand many of the things they sign. It might also put people off a little.

DavidP said...

I'm a well informed patient, but after a slightly elevated PSA "we'd better keep an eye on it" followed by neither myself or my PCP doing anything about re-checking my PSA for 5 years seems a) understated by the PCP and b) a failure by both of us, and has resulted in diagnosis of locally advanced prostate cancer that should have been picked up a couple of years earlier. Here in Australia women get sent reminders about pap smears and mammograms, but nothing happens for prostate, even after a confirmed abnormal PSA test at 47.

Not quite the same, as no appiontment was made and no interval was ever mentioned, but disappointing and I'm desperately hoping the surgery is curative.

Skeptical Scalpel said...

Sorry to hear about your problem. Maybe the answer is that a specific follow-up plan should have been arranged at time of the first elevated value.

I hope things turn out OK for you.

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