This month, we examine the issue of patients not following a doctor’s instructions. The plaintiff in King v Clark, 709 N.E.2d 1043 (Ct. App. Indiana, 1999), consulted the defendant regarding a lump in her right breast. The doctor diagnosed fibrocystic disease, ordered a mammogram, and rescheduled the patient to discuss the results; the patient did not come in. About a week later, the patient returned, and a needle aspiration was done, but no malignancy was found.
Four years later, the patient returned again, this time complaining of a lump in her left breast. Mammography was again recommended, a slight delay occurred, the patient returned a few weeks later, and fibrocystic disease was again the working diagnosis, with no abnormal growth seen. There were also no changes from the 4-year-old mammogram.
A 2-month checkup showed no changes, and a 4-month recall was recommended. The patient returned 6 months later, and again the same diagnosis was made. Four months later, the patient returned because of breast pain, swelling, and redness, and this time the diagnosis was mastitis; another mammogram and an ultrasound were ordered. The patient returned in a month but had not had the tests done. The tests were reordered, but the patient again did not have them performed.
The patient then went to a different doctor, who, suspecting a malignancy, performed a mammogram. He told the patient that he thought the lesions were cancerous, and apparently this was enough to convince the patient to have a biopsy, which confirmed the malignancy. The patient then went to an oncologist, who recommended 6 cycles of chemotherapy followed by a mastectomy, radiation, bone marrow transplant, and additional chemotherapy.
The patient sought another opinion, and 6 cycles of chemotherapy were once again recommended. She completed only 4 of the recommended treatments and sought yet another opinion. This time, the recommendation was for a different protocol of chemotherapy supplemented with vitamins. The patient once again did not complete the entire recommended protocol.
Six months later, the patient finally contacted a surgeon to discuss the mastectomy. She refused the recommended surgery and instead opted for a lumpectomy. At this point, she sued the original doctor, claiming that he failed to timely diagnose the breast cancer, and his misdiagnosis resulted in a decreased chance of cure, and much pain, suffering, and mental anguish; of course, her husband claimed lack of consortium. The plaintiff tried to have the defenses of contributory negligence and incurred risk struck, but the court refused, and a verdict was entered in favor of the defendant. This appeal ensued.
The appellate court noted that as far as contributory negligence is concerned,
It is the duty of the patient to use such care as a person of ordinary prudence would ordinarily use in circumstances like her own, and if the patient fails to do this, and the failure is the proximate cause of the injuries for which she seeks to recover, she cannot hold the physician answerable for the consequences of her own lack of ordinary care.
As to the issue of incurred risk, the court stated,
The doctrine of incurred risk is based on the proposition that one incurs all the ordinary and usual risks of an act upon which she voluntarily enters, so long as those risks are known and understood by her. The doctrine is applicable when two elements are met. First, the plaintiff must act voluntarily. Secondly, she must know and understand the risk to which she voluntarily exposes herself.
Finally, the court defined contributory negligence as:
The plaintiff must exercise that degree of care that an ordinary reasonable man would exercise in like or similar circumstances. Contributory negligence is conduct on the part of the plaintiff, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection.
The court looked at the evidence of contributory negligence on the patient’s part and summarized the acts as (1) waiting 3 to 4 weeks before seeking a medical evaluation of the symptomatic left breast, (2) not reporting all of her symptoms when she came in for a recall appointment, (3) delaying an additional 5 weeks before obtaining diagnostic testing from a subsequent treating doctor, (4) waiting over 2 months to begin the recommended 6 courses of chemotherapy, (5) after beginning chemotherapy, completing only 4 of the 6 recommended doses, and (6) even though she had 4 opinions recommending a mastectomy, opting for a lumpectomy. All of these were voluntarily done in the face of a very aggressively growing cancer.
The court concluded that the evidence as presented supported the reasonable inference that the plaintiff might have delayed in seeking proper treatment; she might have delayed in undergoing the recommended diagnostic testing; she might have failed to follow through with the recommended treatment; her conduct might have demonstrated a flagrant disregard for the risk she was facing; and, she certainly and voluntarily disregarded the recommendations of 4 doctors to undergo a mastectomy. All in all, it was not unreasonable for the jury to conclude that there was sufficient evidence that the plaintiff engaged in acts of contributory negligence; therefore, their finding in favor of the defendant should be upheld.
How often do we come across patients for whom we recommend certain x-rays, and they refuse to have them taken? How often do we have patients for whom we recommend a consultation with an oral surgeon regarding an impacted or unerupted tooth who don’t follow through with the recommendation? How often do we have patients for whom we recommend a periodontal evaluation before orthodontic therapy, only to learn that they have put it off over and over again? How often do we encounter patients who won’t have recommended restorative procedures completed either before, in the middle of, or after treatment? How often do we encounter patients who refuse to follow through with our recommended retention protocols? How often do we have patients who consistently do not keep their appointments so that when you add up all of the time missed and all of the time spent recovering from the adverse tooth movement the patient experienced, it often runs 6 months or longer? How many more similar questions can we come up with?
The bottom line is, for all of us, contributory negligence by our patients is a part of clinical reality that we must face. Fortunately, most of our patients are cooperative. Fortunately, most follow our advice, recommendations, and instructions. Fortunately, even if they don’t do everything we ask of them, most of the time the resulting negative sequela doesn’t rise to the level of clinical significance… except when it does.
When that happens, we need to be sure that we have practiced prudent risk management. First, we need to ensure that we have documented all acts of contributory negligence in the patient’s record. You can never write down too many instances of noncooperation. Second, you need to document in some fashion that the patient was informed of and understands that negative consequences can actually result from these instances of noncompliance. Third, make sure to advise the patient’s general dentist, pediatric dentist, periodontist, oral surgeon, or whoever of the patient’s noncooperation and the potential consequences, and ask him or her to reinforce this message to the patient. Finally, meet the hard choice head on. Do you, or do you not, want to assume a share of any potential risk relative to the patient’s noncompliance? The bottom line is that, if you choose to continue treatment in the face of patient noncompliance, you are basically supervising the neglect, fiddling while Rome burns, rearranging the deck chairs on the Titanic, or any number of other analogies. You are choosing to be part of the problem.
The choice often comes down to deciding whether to continue treating the patient in the face of acts that are detrimental to his or her own best interests. You are under no obligation—legal, moral, or ethical—to continue to treat noncompliant patients whose self-destructive behavior causes the risk-benefit ratio for continued treatment to not be in their favor. If you choose to accept the potential risk that you might be sued for negative results because of and to a noncompliant patient, then manage those risks appropriately.
We might as well address another issue: today, we have a number of appliances and techniques that are dubbed noncompliant mechanics. In other words, our vendors and collegial gurus have developed certain appliances that “take patient cooperation out of the picture.” Don’t be so quick to drink the Kool Aid. Even when you use these so-called noncompliant widgets, gizmos, and approaches, things can still go wrong. Patients can still miss lots of appointments, and oral hygiene can still be at the bottom of the list in importance for a recalcitrant teenager. Periodontal compromise and breakdown can still occur. Appliances can break. In addition, some of these noncompliant mechanics carry other distinct and unique risks because of the procedure or appliance in question.
If you are using truly noncompliant mechanics and something goes wrong, you have no one to point the finger at except yourself because, obviously, the patient could not have contributed to his own detriment. If you-know-what hits the proverbial fan, I want the ability to point the finger in some direction other than the one the mirror posits. Ideally, that direction should be toward the patient. It might just be the ticket to surviving a lawsuit.