• CMottHesse

Planning for Noncompliance?

Physicians know the scene all too well: After examination of a patient, a provider prescribes certain medications, refills others, advises the patient to stop smoking within the next 2 weeks in order to be nicotine-free for a month prior to a scheduled procedure, and orders the patient go in and have certain lab-work drawn during the next week; the patient's next follow-up visit is a pre-procedure visit in 6 weeks. At the follow-up visit, the patient did not pick-up the newly prescribed medications, has not stopped smoking, and did not present for lab-work. Nevertheless, the provider proceeds as previously anticipated. Unfortunately, complications arise during the planned procedure and the patient suffers a significant, adverse event, for which she later brings a cause of action against the provider. To what degree, if any, does the patient's non-compliance affect potential liability of the provider for an adverse outcome?


Why do patients fail to follow provider recommendations?

Patients with chronic conditions and complex drug regimens are at an especially high risk of not taking the medications they need to successfully treat their conditions. And, as former U.S. Surgeon General C. Everett Koop once reminded prescribers, patients and pharmacists, "Drugs don't work in patients who don't take them." Failure to follow a medication regimen is widely recognized as a top reason for treatment failures, serious adverse reactions and even deaths. In addition to poor patient outcomes, medication non-adherence can lead to hospital re-admissions and expensive treatments that drive higher downstream healthcare costs.


Some of the most common reasons patients fail to follow recommended treatment plans include:

  • Lack of understanding of the treatment, due to a language barrier or the use of medical terminology

  • Denial of the illness, especially if the illness doesn’t interfere with their daily life (e.g., high cholesterol or high blood pressure)

  • Inability to afford treatment, due to high co-pays or a lack of medical insurance

  • Difficulty following directions (e.g., “take medication every three hours”)

  • Fear of the anticipated side effects from treatment (e.g., pain from knee surgery) preventing the patient from agreeing to the treatment

  • Misunderstanding the importance of a treatment or the likelihood of its success

Recommendations for Treatment Providers

Patients who fail to follow instructions or recommended treatment plans (whether by choice or accident/oversight) pose a risk to themselves and to their treatment providers. When physicians deal with patients who will not follow their advice for further tests and follow-up visits, apprehension over liability is probably second only to concern over the patient's health. While there is only so much a physician can do to safeguard the health of these patients, protecting against a lawsuit is a matter of diligence and documentation.


The following strategies may be helpful in not only promoting patient compliance, but also minimizing potential risk from noncompliance:

  • Document everything! When treating a patient who doesn't follow treatment instructions, physicians should document their recommended treatment plans. If patients fail to show up for an appointment or to maintain regular visits, keep detailed notes, including reminders sent and/or phone calls made. Don't lose patience with documenting your efforts to encourage the patient to get appropriate tests.

  • Educate and encourage. Educate patients and family members about the patient’s medical condition so they can effectively participate in the patient’s treatment. New therapies begin with great hope for patients, but when a provider or pharmacy doesn’t fully prepare a patient for all potential outcomes, he or she may stop taking the drug. If a patient starts feeling better, he or she might think the drug is no longer needed, while if he or she feels worse, the patient could discontinue therapy to avoid side effects. Moreover, if the patient experiences no change, he or she may conclude that the drug isn’t working. The more time practitioners spend with a patient to explain his or her condition, how the drug works and why it is important to take the medication consistently (to a certain extent), the greater the likelihood that the patient will remain adherent to therapy. Encourage patients to personally and actively participate in developing their treatment plan to help them become further invested in the goals of the plan, understand the reasons behind the plan, both of which may increase the likelihood that they will follow it.

  • Listen and Advise.  Relaying clear instructions and asking for real-time patient feedback to evaluate the patient’s interpretation and understanding are paramount. For instance, rather than telling a patient “to lose some weight,” consider providing a specific goal, such as losing 10 pounds by the next visit.

  • Offer Written Instructions. Offer written instructions for patients to refer to later. Patients often don’t remember the verbal instructions they are given.

  • Empower. Establish guidelines for returning phone calls about prescription refills and lab results, and including patients in this process. For example, invite patients to take initiative and be an active participant in their care and treatment. Advising them it is not only alright to, but encouraged to, call the office for lab results if they have not heard back from your office within a specified time frame is often helpful.

  • Make it official. Obtain informed refusal from patients who admit they either can’t or won’t follow all or part of a proposed treatment plan. It is important to make sure that the patient’s medical record reflects these discussions, including the specific risks of choosing to forego a proposed treatment.

  • Document everything in the patient's chart. Again, the best offense is to document all instructions and discussions held with the patient about a proposed treatment, including the patient’s response, in their permanent medical record.

While patient non-compliance can pose challenges, providers can proactively help minimize risk of legal exposure while improving a patient’s health outcomes. The temptation to immediately "fire" noncompliant patients may, at times, be overwhelming. Firing or otherwise avoiding noncompliant patients, however, has been characterized as defying the norms of beneficence and non-maleficence, primarily because dismissing noncompliant patients results in discontinuity in care, which in turn leads to poorer health among noncompliant patients and higher medical spending. The rejection of noncompliant patients also lowers these patients’ trust in physicians and can leave patients feeling stigmatized and ashamed.


Though the first goal of any doctor's approach to a non-compliant patient is to motivate the individual to get the necessary care, the documentation of those efforts has the added benefit of helping to defend against a lawsuit that may still arise.


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