Physicians are At Risk When Patients Refuse to Listen

By Robin Diamond, MSN, JD, RN | Published 11/1/2017 8

Stressed doctor standing against wall in hospital 2048 x 1365

More than ever, physicians are focusing on treatment plans that include the kind of care patients need at home. However, physicians face potential liability when patients refuse help that is offered or neglect to follow up as instructed.


A case of failure to follow instructions

If a patient sues, even a verdict in favor of the physician does not negate the time, expense, and emotional impact of a lawsuit. Consider this example: A 67-year-old male with a history of obesity, hypertension, high cholesterol, atrial fibrillation, and cardiovascular disease had seen the same physician for 20 years. During one hospitalization, the patient was put on the blood thinner Coumadin. The physician and the discharge nurse both educated the patient and his wife about the risks of Coumadin use and the importance of having blood work done every month.

Nevertheless, the patient did not keep the first appointment for the monthly blood test (INR). The physician’s staff called to schedule a follow-up visit, but the patient did not return the call. Two days following the call, the patient fell at home. His wife took him to the emergency department, where she told the staff that she had been unable to drive him to his appointment for blood work, but she had made sure he took his Coumadin as prescribed. The patient’s INR was extremely elevated, with a reading of 8.8. The patient was diagnosed with a bilateral subdural hematoma and underwent a bilateral craniotomy. He was discharged home but due to problems with his coordination and confusion, he visited the emergency department several more times over the next few months.

The patient sued for malpractice, claiming the physician failed to properly manage the medication regimen and failed to monitor blood levels, resulting in the fall, subsequent injury, and poor recovery. He also claimed the doctor failed to warn him of the risk of bleeding from the Coumadin.


Patient behaviors contribute to bad outcomes

The case went to trial. Because of the doctor’s thorough documentation, the jury agreed that he had properly educated the patient and made the right resources available to monitor the effects of the Coumadin. The jury found that the patient’s failure to schedule his lab appointments and follow-up appointment caused the injury and, therefore, found in favor of the physician.

While this patient failed to follow physician instructions, other homebound patients simply refuse any help. A recent study found that between 6% and 28% of patients eligible for home healthcare refuse these services, and similar trends are seen with other types of assistance for patients at home. Patients often say they are managing just fine and don’t need help, while others don’t want strangers in their homes or they worry about the cost of co-pays for home care. That means some patients are not getting the follow-up and supportive care that the doctor outlined in the care plan. And when the patient doesn’t follow up, it can put the physician at risk.

Patient behaviors were contributing factors in 25% of internal medicine closed claims studied by The Doctors Company. Of these factors, noncompliance with the treatment plan was the most common, accounting for 9% of internal medicine claims. This was followed by 7% of claims resulting from patients failing to make a follow-up appointment or referral, and 4% of claims resulting from patients failing to take medications as prescribed.


Tips to reduce risk

The potential malpractice risks to physicians are increasing as more care is moved from a healthcare setting to the patient’s home. The following are tips to reduce risks when treating homebound patients:

  • Conduct a risk analysis to determine how likely the patient is to comply with instructions. Consider the following: patient’s age, ability to drive, socioeconomic status, whether the patient lives alone, and history of failing to comply with appointments or medication instructions.
  • Document that:
    • The patient received proper discharge instructions.
    • Resources were made available to overcome compliance challenges. The physician or practice made a good-faith effort to follow up and intervene if the patient was not in compliance.
  • Schedule the follow-up appointment before the patient leaves the office. Give the patient contact information for community home health resources.
  • Educate the patient about why community resources are provided and draw a distinction between what is and is not offered.

Patient reluctance to follow the discharge plan is often caused by lack of understanding about what type of follow-up care is needed. Taking time to document patient discussions gives homecare providers valuable information to ensure patients are following the plan—and will also demonstrate, in the event of a lawsuit, the high quality of care provided.


This post was sponsored by The Doctors Company, the nation’s largest physician-owned medical malpractice insurer.


Robin Diamond, MSN, JD, RN


Robin Diamond, MSN, JD, RN has over 37 years of experience in healthcare administration, including nursing, quality, medical-legal consulting, and risk management. She frequently speaks at national conferences on risk management and patient safety and is the author of nursing textbook chapters, along with other publications on the topics of nursing leadership, risk management, and patient safety. In 2010, she served as an examiner for the Baldrige Performance Excellence Program. For the past 16 years, she has worked in the medical malpractice insurance industry and now leads strategic planning and operations at The Doctors Company for the Department of Patient Safety and Risk Management. In addition to her legal experience, Robin Diamond has a master’s degree in psychiatric nursing from Vanderbilt University.


  • Regarding this case, I’d have prescribed Apixaban that doesn’t require monitoring. Regarding another case, a patient is seen by telemedicine and has vague sharp chest pain, no shortness of breath, and the pain is alleviated with positional changes and reproducible with chest palpation. Due to vague symptoms, unclear medical history (patient has not seen a physician for 7 years), patient is nonetheless referred to in-person urgent care that day for in physical exam, EKG and CXR, and immediately to ER if patient acutely worsens. Patient agrees to go to urgent care on verbal recording, but actually doesn’t go to urgent care at all. Three days later, patient dies of a sudden perforating heart attack. Wife sues the telemedicine doctor that referred the noncompliant patient to urgent care. Is there a case here for exonerating the telemedicine physician?

  • I actually really liked looking at this and thanks for the
    tips – bookmarked!

  • It’s worrying to learnt that people who are eligible for home healthcare tend to refuse the help that they can get to make their lives a little bit better in the middle of an illness. My grandmother has been getting weaker and weaker ever since the year began that she’s practically bedridden at this point. Perhaps I should consult a medical legal consulting service to know what actions could be done in order to improve her state somewhat.

  • Really a nice blog to share and discussing the caregiver problem when patients are not ready to listen. Thanks for the tips for same. Keep sharing such more blogs.

  • Normally one would monitor INR’s daily or qod for a week or so to determine stable levels, then weekly for a few cycles before going to monthly IF patient is otherwise medically stable. Fluctuating kidney and cardiac function, not to mention changes in diet from hospital to home can all have significant effects on warfarin metabolism. Not knowing all the details of the case, it would appear that the patient did have a valid case.

  • If this patient’s INR was 8.8 two days after his first monthly test was scheduled, it was already catastrophically high the day before it was scheduled, and he might have begun a spontaneous hemorrhage at any second. It seems obvious that the doctor prescribed an overly high starting dose of warfarin because of excessive fear of natural stroke, ignoring the facts that even for a person with active AF and a medium-high CHADS2 score, the chance of having an ischemic stroke in a four-week period is a fraction of 1 percent, while the chance of harm from a month of severe warfarin overdose is far greater. Because this poor patient had something else going on in his life on the wrong day that seemed more urgent than scuttling to testing appointments, he gets all the blame for having been gorked and his doctor is off the hook. But what if he had gone to be tested on the correct day and gotten immediate results – would that have guaranteed he was spared a bleed? He might have slipped and fallen in the lab parking lot while leaving. Or would they have demanded that he be taken to the hospital by ambulance at his own expense or be responsible for whatever happened? The doctor should then have been liable for his financial toxicity, even if suing for it was practically impossible.

    • When my husband was on warfarin temporarily – it would have been for life if up to the idiot who prescribed it – his first test was scheduled after one week, if I recall. And the dose was dialed back then, since his INR was already over 4. Four weeks is a long time when they had no idea how the pharmacokinetics would be for a new user.

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