Are you responsible for a patient’s noncompliance? A plaintiff’s lawyer will try to convince a jury you are.

Dr. K was a board-certified family physician who operated a suburban walk-in clinic. His approach was to treat simple conditions and refer complicated ones, although he was willing to follow a patient for the long term, once he was satisfied that proper treatment had been initiated. It was a long-term patient with chronic coronary risk factors who involved him in a malpractice suit.

The patient was a white woman with hypertension whom Dr. K first began seeing when she was 50. She had a history of smoking and high cholesterol, as well as a family history of coronary artery disease. At Dr. K’s suggestion, she had an ECG; blood tests, including an assessment of her cholesterol level; and a stress test. The only positive finding was hypercholesterolemia, which Dr. K treated with a statin, renewing it as needed.

A year later, the woman reported episodes of shortness of breath. Dr. K diagnosed allergy-based asthma, which he treated with an albuterol inhaler. At later visits, she reported using the inhaler occasionally to good effect. Meanwhile, the statin therapy continued, and for the next year, Dr. K refilled this prescription at the patient’s request.


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When the woman’s cholesterol level was next measured, Dr. K found that it was still high, despite the medication. He recommended that she start a low-cholesterol diet and asked if she was taking her statin. She admitted that she had not been taking it recently. Dr. K then switched the woman to another statin and discussed referral to a cardiologist for further testing.

Over the next year, Dr. K continued to see the patient and refill her prescriptions, but she refused to take either of the statins he had recommended because, she said, they caused GI upset and side effects. He did not suggest an alternate treatment, nor did he offer a referral to another clinician. These omissions would lead to the lawsuit, based on the allegation that Dr. K had “neglected” his patient’s problems during this period.

Several months later, the patient returned to Dr. K’s office complaining of pain in her back and chest. As Dr. K was preparing to take an ECG, the patient collapsed and went into cardiac arrest. She died before the ambulance arrived.

The family soon consulted a plaintiff’s lawyer, who sent the patient’s chart to a general practitioner on the other side of the country for review. When the expert’s report criticized Dr. K’s management of the case, the lawyer filed suit.

Dr. K was in a defense lawyer’s office within 48 hours of being served with papers notifying him of the suit. The first question he asked the attorney was whether a distant general practitioner was qualified to testify about the local standard of care. The defense lawyer confirmed Dr. K’s doubts and filed a motion to dismiss the lawsuit based upon disqualifying the plaintiff’s expert witness because he was not familiar with the standard of care in Dr. K’s community. In addition, he argued, the witness was not a board-certified family physician and thus not qualified to testify against Dr. K. His arguments failed, and the judge allowed the plaintiff’s expert general practitioner to testify.

The case eventually settled for $75,000.

Legal background

Until the 1960s, expert medical witnesses had to be directly familiar with the standards of practice in the community where the alleged negligence occurred. In practical terms, this meant that the witnesses had to come from the same community as the defendant-clinician. Plaintiff’s lawyers complained that this requirement was too limiting and made objective expert witnesses hard to find.

Plaintiff’s lawyer organizations sought to change the rule from a local standard of care to a “national standard” that allows out-of-state clinician-experts to fly into town, testify, and fly out. In these days of videotaped depositions, experts don’t even have to make the trip; they can testify from a distance as to the “national standard of care.” The case presented here challenged this concept, but the trial judge allowed the expert to testify, reaffirming the “national standard” rule.

Protecting yourself

Plaintiff’s lawyers have worked hard to create an expectation among jurors that clinicians should take over what were previously regarded as patients’ responsibilities: taking medication, following up on referrals, making appointments, and renewing prescriptions.

It is good risk management to make a brief note—even if it’s only a single word that you can interpret later—to indicate that the patient was noncompliant and that this issue was addressed during the office visit.

This case illustrates how patient noncompliance can trap the clinician: When things go wrong, the patient and the patient’s family testify that the physician never mentioned the noncompliance and its significance was never explained. A simple note in the chart is usually sufficient to refute this assertion.

 

Dr. Starr is a retired physician and lawyer in the Austin, Tex., area. His legal practice included defending clinicians in malpractice litigation.