Patient Non-compliance: The courtroom ambush

September 20, 2011

HealthcareWhat is patient non-compliance?

Patient 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.

Non-compliance is present to some extent in almost all litigation that has medical issues. It’s frequently overlooked as a weapon by the defense, but when used, often surprises the plaintiff.  Resulting comparative negligence issues can deprive the plaintiff of sympathy, substantially reduce case value, and complicate settlement efforts.

Careful analysis of medical non-compliance should be conducted early in litigation to better estimate case value and plan the non-compliance aspects of discovery. If the defense wants to make a case more complicated, confusing or expensive, a non-compliance issue can accomplish this.

Looking for evidence of non-compliance.

Clinicians usually document non-compliance in the medical records to show the need for more careful monitoring, more careful patient education, and using a treatment alternative that reduces non-compliance risks.  Clinicians also want to shift blame for a bad outcome away from themselves.

Look for terms like “non-compliant,” “non-adherent,” “poor adherence,” “careless,” and “uncooperative.”

Evidence of non-compliance may sometimes be found in the clinician’s choice of words.  For example, the clinician wrote: “still weight bearing” regarding a patient on crutches for a fractured ankle.  This means the patient failed to use the crutches properly.

Another common form of non-compliance is the patient’s failure to return for follow up.  Look for terms like “FTKA” (“failed to keep appointment”) and “NS” (“no show”).

Non-compliance can also be:

  • failure by the patient to timely obtain recommended diagnostic studies or consultation;
  • giving an inaccurate medical history; delay in seeking medical care for worrisome symptoms;
  • treating serious symptoms with herbal remedies or non-prescription drugs;
  • seeing alternative care providers (like homeopaths);
  • “doctor shopping;”
  • continuing unhealthy life styles like smoking or poor diet;
  • obtaining Internet medications (see Attorneys Medical Deskbook, 4th § 38: 2.1); etc.

Family members frequently observe patient behavior and should be questioned about non-compliance.  Patients almost always vehemently deny non-compliance.

Comparison with patient instructions.

Investigate instructions given to the patient to compare with the patient’s actions.  Clinicians cannot have reliable independent recollections of instructions given on specific occasions, so evidence will take the form of usual and customary practices in similar circumstances.  If the patient was given printed instructions, obtain these.

Frequently, an office nurse or assistant gives the instructions, or a nurse provides “discharge teaching” in a hospital.  The medical record seldom contains enough detail to reconstruct the instructions.  The person who did the teaching will need to be found and questioned about their customary teaching practices.

Causation issues for non-compliance theories.

Failure by the patient to follow medical advice may be negligence, but may not be the proximate cause of the injury.  While it would then not play a comparative negligence role, it could still prejudice the patient’s case.

For a full discussion of patient non-compliance, see Attorneys Medical Deskbook, 4th, §§ 31: 1, 2, 3, 5, 7, and 8.