Defenses against medical non-compliance allegations

September 28, 2011

HealthcareAbout medical non-compliance.

      Medical non-compliance is acting or failing to act when the patient knows or should know this behavior could be harmful, or failing to follow a clinician’s instructions. It can strongly support comparative negligence.

Proper analysis of medical non-compliance requires investigation of potential defenses. These should be considered early in litigation to better estimate case value and to plan discovery.

Defenses.

The following defenses against non-compliance allegations should be considered when applicable:

1. Side effects of the treatment. Are they intolerable? Don’t ignore insomnia or aggravation of existing medical conditions like depression or chronic alcoholism.

2. Inability to afford the cost of the care. Is it fully covered by health insurance?

3. Reasonable inability to understand or remember the instructions. Patient instructions are often inadequate, confusing, conflicting, easily forgotten or even non-existent. Sometimes treatment is so complicated that an average patient could not carry it out. Was a printed instruction sheet provided?

4. Physical impairment preventing compliance. For example, poor vision causes difficulty reading instructions and medication labels. Arthritis may prevent opening childproof containers.

5. Insufficient assistance from family members or friends. Examples are transportation to the clinician’s office and help organizing and taking medications.

6. Not knowing the reasons for following instructions. Patients can reasonably misjudge the importance of following the treatment exactly, or can misinterpret how to follow it.

7. Not knowing the importance or urgency of the care recommended. Patients often delay obtaining recommended consultation or diagnostic studies.  Sometimes the patient mistakenly believed the care was optional.

8. Deciding that the medical benefits of the recommended care do not warrant its risks. This is the purpose for informed consent. Should patients be labeled non-compliant for reasonably exercising this right?

9. Contrary advice from family members, friends, or seemingly authoritative Internet sources. Who should the patient believe?

10. Strong beliefs that prevent following all elements of medical advice such as vaccination or receiving blood products.

11. Phobias about the risks or complications of diagnosis or treatment. These may be irrational, but still seem real to the patient. Common examples include: addiction, needles, pain, and radiation. Phobias also include fear of being diagnosed with dementia, cancer, AIDS, sexually transmitted infections, and diseases associated with aging or with a poor life-style choice like lung cancer in a smoker.

12. Distrust of medical care due to prior bad experiences with care or clinicians.

13. Reasonable mistaken belief that a symptom is due to a prescribed medication.

14. A personality disorder characterized by erratic or eccentric behaviors that interfere with compliance. These are surprisingly common. Is this type of non-compliance really comparative negligence?

15. Resolution of symptoms. If the symptoms are gone, is it unreasonable for the patient to assume that the disorder is cured and treatment can stop? Did the clinician inadequately instruct the patient?

16. Language barriers.

For a discussion of defenses against allegations of medical non-compliance, see Attorneys Medical Deskbook, 4th, § 31: 4.