Informed Refusal: A Malpractice Landmine
By: Josè T. Brown, Esq.
One of the newest trends in malpractice litigation is the failure of the system to address informed refusal. The “system” refers to the medical practitioners who have recommended or suggested certain tests and/or procedures for the patient but such is refused by the patient. Once the malpractice litigation starts, selective memory blocks out suggested treatment which was not followed by patient. For example, there have been numerous lawsuits involving whether the patient wanted blood tests done but did not want the bad news regarding their homosexuality, the patient is a Jehovah witness and did not want blood borne products or heart catheterization to diagnose a cardiac condition, mother denies she was offered genetics counseling or amniocentesis to check her unborn child, patients do not wish to pay for such diagnostic tests such as ultrasounds, MRI’s, CT scans or have an annual physical because it requires co-payment or out-of-pocket payment. This brief article addresses the need and suggested format to perform an ideal informed refusal.
The real life examples are far too numerous to detail in this short article. The details of specific refusals are irrelevant, but most important, and the reader leaves this article with one particular head note, that is, document. A patient’s noncompliance is a common component of adverse healthcare outcomes. Such outcomes may develop into lawsuits. Documenting the patient’s decision, specifically, with regards to noncompliance or refusal is a helpful defense strategy.
Michigan has a system of comparative negligence which allows the jury in appropriate cases to apportion the responsibility of the plaintiff’s injury. In some instances the jury can reduce damages accordingly by a percentage basis of the patient’s negligence. The patient’s noncompliance or refusal to have certain tests is often excused due to a lack of education. Even when the patient is a nurse or physician, and even when the education has been provided, the patient will often claim they were not informed. Therefore, it is imperative that the medical record reflect the information provided to the family and to the patient’s family.
- Document the worries or concerns expressed by the patient or the family member.
- Document sources of information given to the patient (written materials, audio’s, video tapes).
- Document information given to the patient at the time of discharge, patient instructions.
- Document patient information communicated over the telephone.
One of the most critical portions of healthcare is reliance on the telephone and failure to document such into the office records or hospital records. Pertinent information with the patient over the telephone must be documented for complete records. Such documentation includes the refusal or the noncompliance of the patient.
- Prescriptions and prescription renewals
- Healthcare information, even if the information has been provided previously.
- Advice to proceed to the emergency department or call for an office appointment.
- Appointment cancellations.
- Attempts to contact the patient for follow-up care, along with the phone number, provisions, tests results, recommendations or suggestions for follow-up care.
Use plain language when explaining medical procedures to the patient. The law does not require physicians to give patients a mini course in medicine or to disclose every esoteric problem that could occur with a refusal. Encourage patients to ask questions. Don’t be offended if a patient requests a second opinion about the surgery or the tests you have recommended. Third party payer’s often require second opinions; support for your recommendation is a plus. Please train your staff to assist you to educate patients generally about treatment options or surgery. Use written materials, audio materials, models, audio visual aides to supplement discussions with patients and family. Document all educational efforts.
Following is an ideal informed refusal provided to a patient in a non-emergent situations, informed refusal should follow these five steps:
- Doctor/patient and family meet to discuss options of treatment and recommendations.
- Patient refused or is provided written material/audio material/video material or written brochures to be taken home.
- A second meeting occurs where the options are again discussed and the physician ascertain whether the patient understands the risks of the procedure or treatment, and the downside of refusal.
- Patient and doctor sign an informed refusal. The patient takes a copy home.
- Doctor writes a progress note, better yet, dictates in the patient=s presence the informed refusal. Patient can sign and date the doctors progress notes.
The counter-part to informed consent is informed refusal. For this reason, a form containing and addressing the doctors recommendations, suggestions and refusal by the patient is incorporated into this article for reference. As always, your concerns and suggestions are welcomed.
Josè T. Brown, Esq.
CLINE, CLINE & GRIFFIN
