When a patient doesn't follow a doctor's instructions or treatment plan, that's called "noncompliance," and it is a common defense in medical malpractice cases. Legal experts are warning doctors that noncompliance is becoming a non-starter in court, and patient non-adherence is likely to get worse as the new federal health care reform laws kick in.
In many malpractice cases, patients complain that their doctor didn't adequately explain the importance of having certain tests, completing a course of treatment, or taking medication as prescribed. Chart notes were often brief, such as "Patient did not comply." After losing more than a few rounds in court, physicians responded by meticulously documenting everything they said to patients about all of the above. They are being told to specifically explain the possible consequences of not doing as the doctor orders, in clear and unambiguous language. The jury still makes the final decision, of course, but physicians are trying hard to shift the blame for noncompliance to the patient.
Malpractice experts are warning doctors of an unintended consequence of the Affordable Care Act which could increase the number of malpractice suits. The law emphasizes preventive care and makes more tests and diagnostic procedures available at little or no charge. Additional tests will uncover more maladies to treat, and with each new treatment comes an additional risk of noncompliance. In other words, the very strategies that are intended to improve Americans' overall health multiply the risk of malpractice claims. No doubt doctors are thrilled at the prospect.
Patients should take it upon themselves to let their doctor know if a treatment plan or medication regimen is too much to handle. For example, someone who is out of work, without insurance, and struggling to make ends meet probably can't afford pills that cost $2 each, or ten physical therapy sessions, and so forth. If the physician's response is something along the line of, "Follow my advice or die," then it's time to find another doctor. It is still good to hold doctors responsible for their mistakes, but many of them are shifting their legal stance from defense to offense and will push back hard against patients who claim they didn't know or understand what was going on with their case.
Source: MedScape News, "Documenting noncompliance won't protect you anymore, "Mark Crane, Nov. 12, 2012