Years ago, a patient in his 50s walked into my office without a prior appointment. He complained of neck and arm pain that had resulted from a fall a few days earlier. It was obvious from observation that he had a neurologic impairment. My concern was the most consequential differential diagnosis of an unstable cervical spine and cord/root injury.

I applied a soft collar and requested that the patient be transported by stretcher to the hospital next door. I asked the emergency department (ED) physician to arrange for radiographs and appropriate evaluation and to inform me of the results. However, when I checked back, I learned that the patient—who was a veteran—had decided to seek care at a nearby Veteran’s Administration (VA) hospital. He had declined the imaging studies as well as the offer of transport by ambulance to the VA hospital.

Did the ED doctor and I act in the best interest of the patient? Is either one of us legally liable for any additional injury the patient may have sustained? Did the parties fulfill their mutual responsibilities?

Shared responsibility
Orthopaedic treatment requires teamwork, and the patient must be an important and active team participant. There are gray zones, but it is not all gray. It is our responsibility, as physicians, to inform the patient fully and help him or her understand the condition, treatment options, and risks of treating or not treating. Although it is our job to help patients make informed choices, it is not our job to make decisions for them.

In more paternalistic days, many physicians would take exception to this approach. They felt that it was their duty to ‘tell’ the patient what treatment choice to make. In fact, some felt so strongly about this that they would consider anything less as dereliction.

In those days as well, some patients would say, “You are the doctor, you tell me what to do!” But norms are changing and patient autonomy is increasingly being acknowledged. Ethicists trace the trend to the book The Principles of Biomedical Ethics by Thomas Beauchamp and James Childress, the rise of the patients’ rights movement, and the value we place as a nation on the primacy of individual choice.

Respect for patient autonomy, however, has posed some conflicts with other principles of doing good, avoiding harm, and justice, creating the need for physicians to review their interactions with patients.

As orthopaedic surgeons, we’ve all seen patients who come to the office with a briefcase bulging with information about their condition that they have acquired from various sources, including the Internet, family and friends, and personal research. Some have already decided on the treatment they want. Others need help sorting out all the conflicting material. We’ve also seen patients who have little of their own information and look to us to inform and guide them, or even make the treatment decision for them.

Patients and society as a whole are trending toward increased patient autonomy and empowerment. Physicians are ethically, morally, and legally bound to act accordingly, helping each patient and family, when appropriate, make decisions based on information and guidance appropriate to their individual circumstances.

To patients who ask me what they should do, I respond: “I am only your doctor, but you live with your knee (or whatever) and you yourself are the expert on you. I can tell you what is possible and what to expect. So let us put these together and help you make the right choice for you.”

The distinction that must be made is between a choice of treatment for our own ailment or for an abstract patient and the best choice of treatment for this patient, given her or his personal considerations and values. No one choice is best for all patients, especially in elective orthopaedics.

Subsequent liability?
Patient autonomy comes with an implicit responsibility to adhere to the chosen plan. Helping patients adhere to the decided-upon plan must be individualized and not compromise their autonomy nor de-empower them, even if they decide not to adhere in an informed manner. Who should bear responsibility for the patient’s not adhering to the plan? How clear are the demarcations of responsibility? These are issues of consequence.

Tracking and reminder systems have added dimensions to physicians’ capabilities and liability. They have altered our patients’ and our peers’ understanding of mutual responsibilities with regard to encouraging patient adherence while safeguarding patient autonomy. Does a physician’s reminder system create undue pressure on the patient who is reluctant to follow a treatment plan after initially agreeing to do so? Does it compromise patient autonomy? Is it ethical? If non-adherence results in harm to the patient, is the physician responsible or partly responsible?

We have all faced these pesky, yet cardinal, considerations. Each patient is different and adherence management requires nuance.

As for the patient whom I mentioned earlier, I received a claim letter from his attorney months later for failure to treat his cervical spine fracture-dislocation which, he claimed, resulted in the need for surgery and permanent residual deficit. It appeared that the patient had decided not to seek treatment for several more days and then went to the VA Hospital. I never heard further about the claim against me after my attorney sent the information about what actually happened.

S. Jay Jayasankar, MD, has been a member of the AAOS Medical Liability Committee, responsible for planning and submitting articles for the “Orthopaedic Risk Manager,” for the past two years. He can be reached at jaymd@massmed.org

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

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

Email your comments to feedback-orm@aaos.org or contact this issue’s contributors directly.

New Shared Physician-Patient Responsibilities Position Statement
The AAOS Medical Liability Committee, chaired by Douglas W. Lundy, MD, studied this issue and developed a Position Statement on Shared Physician-Patient Responsibilities, which was adopted by the AAOS Board of Directors at their December 2011 meeting.

The position statement notes that the “AAOS believes that appropriately shared physician-patient responsibility in medical care is an essential ingredient for a successful outcome and patient satisfaction.” Both physicians and patients have responsibilities; “While physicians have the responsibility to provide health care services to patients to the best of their ability, patients have the responsibility to communicate openly, to participate in decisions about the diagnostic and treatment recommendations, and to comply with the agreed-upon treatment program.”

The statement goes on to outline the responsibilities of orthopaedic surgeons and their patients in the areas of patient autonomy and safeguards; informed shared decision making; and patient compliance. Readers are encouraged to consider the information presented and reach their own conclusions. Position Statement.

What do you think?

1. When a competent patient says, “You are the doctor, you tell me what to do!”
1. You make the decision for the patient.
2. You help the patient make the decision.
2. If your patient does not adhere to planned and agreed-upon treatment, is it your responsibility to ‘ensure’ adherence?
1. Yes
2. No
3. A patient refuses to adhere to the planned treatment or chooses treatment that is inappropriate for his/her condition. You believe that this materially and seriously compromises the patient’s wellbeing and treatment outcome. You explain this to the patient to no avail. Your next step is to:
1. Continue treatment as desired by the patient.
2. Follow ethical procedures to terminate your relationship with the patient and transfer care to another physician.

References

1. American Medical Association Journal of Ethics. August 2009, Volume 11, Number 8: 567-570.
2. Beauchamp TL, Childress JF. Principles of Biomedical Ethics. 5th ed. New York, NY: Oxford University Press; 2001.