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Published 3/1/2012

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.”

Such an opinion will certainly be used by plaintiff’s attorneys to argue that it sets forth a “standard of care,” which must be followed by all physicians, not just obstetricians and gynecologists, because the language, at times, uses the broader, more encompassing term, “healthcare providers.” For example, the Opinion states, “Healthcare providers’ offices should have procedures in place to track these events effectively and to enhance quality of care and patient safety.”

Plaintiff’s attorneys have expressly stated that they intend to use the ACOG Committee Opinion to challenge the tracking and reminder systems of all physicians. In general, the recommendations are very good suggestions which, if employed, might “enhance the quality of care and patient safety.” The challenge occurs when plaintiff’s attorneys use these suggestions to set forth an absolute “standard of care” that must be followed in every situation; for a physician to do otherwise would then be considered a breach of that standard of care and, thus, medical malpractice.

The ACOG Committee Opinion places a great deal of responsibility on a physician to “be the patient’s keeper” rather than placing responsibility on the patient to comply with reasonable physician recommendations. Although the ACOG recommendations are well intended, the way in which they have been published may lead plaintiff’s attorneys to argue that they should be mandatory in every situation. This suggests that any departure from the Opinion means the physician is at fault, even when the patient failed to follow the physician’s instructions.

In fairness, many patients have great difficulty in understanding medical matters and their own care, and increased communication between physician and patient to increase patient understanding about the importance of follow-up visits, referrals, or testing can only be a good thing. The difficulty lies in determining when the physician has done enough to appropriately inform and educate the patient about the need for and benefits of a follow-up visit, a referral or testing, and the potential risks of non-compliance. When does the burden of responsibility shift to the patient?

Obviously, the patient cannot be treated against his or her will; a patient has a right to refuse treatment. But the physician has a duty to provide adequate information to allow the patient to make an “informed refusal” of care, meaning the patient has been told the ramifications of refusing the physician’s recommendation. This discussion must be documented in the patient’s record; it can be integral to the physician’s defense in the event of a subsequent lawsuit.

The ACOG tracking and reminder system recommendations provide an excellent summary of systems that all physicians can use to assess current tracking and reminder procedures in their own practices. It would be wise for a physician’s practice to have thorough, fail-safe tracking and reminder systems in place and to incorporate as many of the ACOG Committee Opinion recommendations as possible. Most jurors will have sufficient common sense to recognize factual circumstances where the patient is the one who simply failed to comply with a physician’s reasonable recommendations; however, if the practice has solid tracking and reminder systems in place, the case will be much easier to successfully defend.

A summary of the ACOG Committee Opinion recommendations is as follows:

ACOG Committee Opinion #461 on Tracking and Reminder Systems

  1. Healthcare providers must explain to the patient the need for any tests, referral or follow-up, and the risk of non-compliance and document this discussion in the patient’s chart.
  2. Open items must be promptly logged into an electronic or paper tracking or reminder system that must be reviewed frequently and regularly in accordance with established practice policies and procedures.
  3. Physicians must schedule follow-up appointments when indicated and discuss with the patient the importance of keeping the follow-up appointment.
  4. If a patient does not appear for a scheduled appointment, the fact should be noted in the chart (eg, 3/8/11 – No show for 2PM appointment). Attempts should be made to contact the patient and reschedule the appointment, and those attempts should be documented (eg, 3/10/11 – Patient called re missed 3/8 appointment. Rescheduled for 4/2/11).
  5. If a physician refers a patient to another healthcare professional, the referral should be tracked in a tracking or reminder system. It should also be noted in the patient’s records whether the patient visited with the healthcare provider to whom the referral was made. If the consulting doctor provided a report, its receipt should be noted, and a system should be in place that ensures the report has been reviewed by a physician prior to being filed in the patient’s chart. All these components of a consultation or referral should be addressed by the practice’s tracking system.
  6. If a healthcare provider has a patient referred to him or her by another healthcare provider, the physician/consultant has an obligation to notify the referring healthcare provider once the patient has been seen and send a consultation report that includes the consultant’s findings and recommendations.
  7. When contacting patients via a practice reminder or tracking system, HIPAA regulations must be followed:
    1. Postcard communication of patient information is not HIPAA-compliant.
    2. Physician and staff must recognize that email communication is not HIPAA-compliant unless both the provider’s and the patient’s email systems are secure. Most personal email services are not secure.
    3. Physicians and members of their practice staff should limit the amount of information left on a patient’s answering machine or in messages when a person other than the patient answers the telephone. It is preferable to leave only a name and telephone number and ask that the patient return the call, without disclosing any specific patient information.
  8. Reminder systems should be set up to contain specific data and dates, including dates for receipt of information and timelines for notifying the patient. For example, if a patient is referred for a test, the practice tracking or reminder system should contain a date by which time the test should have been completed and the results received (eg, 2 to 3 weeks after referral). The length of time will vary depending upon the specific set of circumstances and the urgency of the patient’s needs. If a patient does not go for the recommended test in a timely manner, it is suggested that it is the responsibility of the physician to have a procedure in place to remind the patient either by telephone, letter, or some other form of notification.
  9. Physician practices should keep their tracking and reminder system in a physical or electronic location in the office that is readily accessible to all appropriate staff. The tracking and reminder system should not be the responsibility of only one person; several appropriate office staff members should be cross-trained in the system’s operation for maximum efficiency and reliability.
  10. All printed test results should be reviewed, initialed, and dated by a healthcare provider who has been designated to perform this function. Only then, should printed test results be filed permanently in the patient’s chart, along with a notation of what follow-up testing or procedures were recommended or required in light of the initial test results.
  11. Patients should be made aware of the office’s procedures for notification of test results; however, as a fail-safe, patients should also be instructed to call for test results if they are not received in a timely fashion or within the usual time parameters set by the practice.

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.