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If I were to have polled Texas physicians two years ago there is little doubt that the threat of lawsuits would have led the list of triggers of professional anxiety. However, since then Chapter 74 has provided the proverbial Xanax for most practioners. True, it hasn't completely eliminated litigation but it has had a significant impact on blatantly frivolous claims. So what is it that gives many doctors palpitations today? I suspect that dealing with difficult and non-compliant patients is high on list. You've all been there - wondering what in the world is needed to get through to the patient who demands your help but just won't follow your advice. Perhaps others of you believe that "if a patient chooses to ignore my instructions it is his problem - not mine". Maybe, but that sentiment certainly won't dissuade a plaintiff's attorney from brining suit like a well documented chart!

In a previous piece I discussed the reality that terminating the physician/patient relationship is warranted in some instances of non-compliance. I continue to believe it to be worth considering but for our purposes here let's assume that you have elected to continue with the effort to care for and treat the patient who ignores your admonitions. What should you do to protect yourself in this context?

Consider the example that I used in the previous discussion of this subject:

Mr. P was a long-term diabetic followed by a number of physicians, including an endocrinologist, for several years. Although the severity of his symptoms vacillated from one point in time to the next, his condition generally continued to deteriorate over time. Notwithstanding repeated admonitions by the endocrinologist about lifestyle, and therapy, he remained generally non-compliant with dietary instructions, exercise recommendations, making/keeping scheduled and re-scheduled doctor's appointments, and taking his medications as prescribed - he routinely ran out of medications well before calling for refills. He also drank heavily despite warnings to avoid this activity because of his diabetes and diabetic medications.

Clearly all would agree that the patient described above is a train wreck waiting to happen. In this case he ultimately fell into a diabetic coma and died. While it seems obvious that defending a claim of failing to adequately monitor and or advise the patient can be much more difficult in the absence of specific charting relative to the non-compliance most physicians are lax about noting the behavior until the patient gets into dire straits. By then the note seems self serving. Although you should not hesitate to make specific entries in the chart to document the non-compliance and your admonitions to the patient, there is a good argument to be made that circumstances like that described in our example above justify going beyond the typical note. I have frequently advocated that clients utilize a document similar to an AMA form which provides for the patient's signature acknowledging the advice/admonitions in question. In addition to providing the defensive charting needed in the event of litigation this approach tends to drive home the point that the conduct in question is detrimental to the patient's well being. You may feel that this seems somewhat confrontational until you consider that the alternatives really boil down to terminating the relationship or suffering the criticisms of plaintiffs' counsel in the face of an adverse event. If you hesitate to confront the patient as suggested above I think it makes good sense to dictate your progress note and your instructions/warnings to the patient in his or her presence with a statement that you did this so that there is no question that the patient was aware of your admonition(s) contemporaneous with the visit.

Until next time remember: Non-compliance requires more than nonchalance on your part!