Does Patient Responsibility Still Exist?

E. Burke Giblin, Esq., and Christina M. Scarpa, Esq.

A common theory of negligence raised against physicians, especially against orthopaedic surgeons, is a claim of negligence in failing to track and monitor the follow-up care required by the patient, resulting in a delay in diagnosis or treatment and injury to the patient. For years, plaintiff’s attorneys have creatively argued that a patient’s failure to follow-up for additional treatment is the physician’s responsibility. This attempt to shift responsibility for a patient’s non-compliance to the physician prompts me to wonder whether patients have any responsibility for compliance.

In August 2010, the American College of Obstetrics and Gynecology (ACOG) offered a Committee Opinion that appears to bolster the argument that physicians are required to “assure” patient compliance. ACOG Committee Opinion #461 on Tracking and Reminder Systems includes a disclaimer that it should not be construed as “dictating an exclusive course of treatment or procedure to be followed.” However, the language in the Opinion is replete with statements such as physicians “should” take multiple tracking and reminder measures to “enhance quality of care” or assure “patient safety.”

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