Is it negligence if the patient elects not to “follow doctor’s orders”?

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

A common theory of negligence raised against physicians, including orthopaedic surgeons, is the doctrine of informed consent. That a doctor has a duty to explain, in terms understandable to the patient, what he or she intends to do before a patient begins a course of treatment is well known. To comply with the doctrine of informed consent, physicians must present patients with the information necessary for them to make a truly informed decision, including the intended benefits of, alternatives to, and the possible risks and complications of that treatment or procedure.

A lesser-known counterpart to the doctrine of informed consent is informed refusal. In medical liability cases, informed refusal cases arise out of situations where patients claim that they were not made aware that refusing the proposed medical or surgical treatment or consultation was a risky proposition. Patients allege that their physician did not inform them of the potential harm that could result from not undergoing the recommended treatment or consultation; and, that if their physician had appropriately informed them of the ramifications of refusal, they would have realized that the benefits outweighed those risks and would have consented to having the recommended treatment/procedure.

The issue of informed refusal, then, adds another informational component that physicians must discuss and patients must consider—the risks and potential consequences of electing not to proceed with the recommended treatment or procedure.

A case example
The following case illustrates the concept of informed refusal. A patient had an infection develop on her big toe after some podiatric work for an ingrown toenail. She was being seen by an orthopaedic surgeon for another problem, but showed him the toe during her appointment and asked him if it “looked right.” She was advised by her orthopaedic surgeon that the toe was badly infected and that she should go to the hospital for admission and a course of intravenous (IV) antibiotic treatment.

The patient elected not to go to the hospital and continued to treat the infection herself with a generic topical antibiotic. The infection subsequently progressed to osteomyelitis, resulting in an amputation of the toe, and, ultimately, a below-the-knee amputation. She sued the orthopaedist, contending that if she had been told that she could lose her leg if she did not receive IV antibiotics for her infected toe, she certainly would have gone to the hospital. She said that the orthopaedist did not convey the seriousness of her infection and the consequences of her decision not to follow his recommendations.

Informed refusal cases have also involved patients who had left the hospital against medical advice and then suffered an injury as a result. These patients subsequently claimed that they were not informed about how potentially detrimental it would be to leave the hospital sooner than their physicians recommended.

Managing the risk
Not many cases of informed refusal come to trial, probably because they can be difficult for patients to win once the jurors are made aware of the patient’s failure to follow medical advice. Nevertheless, physicians should understand the concept of informed refusal and how to protect themselves from such claims. The following recommendations may be helpful:

• The potential risks of declining the recommended course of treatment should routinely be discussed with patients, along with the risks and potential complications of the procedure/treatment itself.
• The patient should be given ample opportunity to raise any questions or concerns about proceeding or not proceeding with the recommended course of treatment.
• If the patient decides to refuse the treatment, the physician should not assume that the patient understands the consequences of that refusal and needs no further explanation. The physician should always verbally confirm that the patient understands and has no questions about the proposed procedure or treatment and/or the potential risks of refusing it.

Patients may have many reasons for refusing treatment. The patient may not understand the importance of the treatment or the consequences of noncompliance. He or she may fear the procedure or its associated risks or complications. The patient may not be able to afford the cost of the procedure. Religious, language, or cultural issues may be behind the refusal.

Rather than just writing off the patient as noncompliant or as a problem patient, the physician should attempt to find out the reason(s) for the refusal. Once the underlying cause is identified, the physician may be able to address it specifically and find an effective alternative that is mutually agreeable to both the patient and physician.

Physicians should remember, however, that it is the patient’s right to refuse treatment. A physician cannot force a patient to undergo a procedure or treatment against his or her will.

Although complete, detailed documentation is most protective of the physician’s interests, the simple notation “Full RBAQ,” indicating a complete discussion of Risks, Benefits, and Alternatives with the patient and the answering of all Questions may be sufficient for a defense. For example, in the case example, the orthopaedic surgeon would have noted “Full RBAQ regarding patient’s refusal to go for infectious disease consultation and IV antibiotic therapy.”

In today’s medicolegal climate, physicians must make informed refusal an integral part of their informed consent process. It is protective and beneficial for patients because it helps to reduce patient morbidity and mortality and improve patient safety and treatment outcomes. It is also protective and beneficial for physicians because it can reduce their risk of being sued and improve their ability to defend themselves.

E. Burke Giblin, Esq., is the founding partner and Christina M. Scarpa, Esq., is an associate in the office of Giblin & Combs, LLC (Morristown, N.J.), a full-service law firm with extensive litigation experience.

Editor’s Note: Articles labeled Orthopaedic Risk Manager are presented by the Medical Liability Committee under the direction of contributing editor David H. Sohn, MD.

Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional.

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