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Legal Risks in Patient Non-Compliance

Michael Smith, JD, RRTPatient noncompliance is a recurring problem for healthcare providers. We all have seen COPD patients who continue to smoke and diabetic patients who don't follow prescribed diets. Some of us may even be noncompliant with our doctor's orders to eat less and exercise more. Minor instances of noncompliance like these usually are overlooked by health care providers. But more serious instances cannot be ignored because they pose grave consequences for the patient and may result in claims against the health care provider.

To protect themselves against these legal consequences, health care providers may tell noncompliant patients to find a new provider. Private physicians have significant latitude in terminating non-compliant patients from their practices. Facility-based providers, including most RTs, do not have the same discretion. They cannot refuse treatment or terminate patients simply because the patient engaged in a counterproductive or even dangerous activity. Facility-based providers even have a difficult time terminating belligerent patients.

Often, a practitioner's only recourse is to attempt to educate the noncompliant patient and convince them to follow an appropriate course of treatment. If patient education fails, the practitioner should obtain a signed waiver or acknowledgment from the patient indicating they were appropriately advised of the risks of noncompliance and knowingly accept responsibility for the consequences. Not surprisingly, belligerent patients are resistant to signing waivers.

The problem can be even more complicated for practitioners in long-term care settings. Very often, their patients have multiple medical conditions and varying degrees of diminished mental capacity. Legally, they may not have the mental competency to agree to the waiver or acknowledgment.

Even if a patient signs a waiver or acknowledgment, it is not an absolute defense in a lawsuit. Every health care provider should thoroughly document their attempts to educate the patient on why the recommended course of treatment is appropriate and why the patient's noncompliance is detrimental. The practitioner also should try multiple approaches to assist the patient in compliance and document all those attempted modalities.

Patients have a right to accept or reject the care recommended by their practitioners, including lifesaving treatments. But to avoid legal repercussions, facility-based providers must show that they educated patients about the importance of following their recommended treatment plans.

Michael L. Smith, JD, RRT, is board certified in health law by The Florida Bar and practices at The Health Law Firm in Altamonte Springs, Fla. This article is for general information only and is not a substitute for formal legal advice.

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