Risk Management

No-Shows and Other Acts of Noncompliance

By Paul Weber, JD

Mr. Weber is OMIC’s vice president of risk management

OMIC wishes to thank John B. Howe, MD, of Harlingen, TX, for providing the general content of the sample Letter to Noncompliant Patient.

Digest, Winter, 2003

No-shows. Every ophthalmic practice has been vexed by patients who fail to show up for appointments without canceling or who repeatedly cancel and reschedule appointments. Often, these are the same patients who don’t follow prescribed treatment plans, setting themselves up for a poor outcome and their ophthalmologist for a lawsuit. It may be tempting when dealing with such patients to presume that the consequences of noncompliance are theirs alone. A jury might not see it that way, however, and may determine that while the patient is ultimately responsible for not following the physician’s advice, the physician is responsible for not informing the patient of the consequences of that behavior.

There is no one “right” risk management approach to patient noncompliance that will work in all situations and in all practices but, in general, physicians are considered to have a limited but essential duty to follow up with patients who fail to follow advice or return for recommended appointments. The following case study from OMIC’s closed claim files illustrates how an ophthalmologist’s duty to follow up on missed appointments can become a compelling issue during litigation.

A 29-year-old male patient with pressures of OD 37 and OS 31 and extensive cupping of the optic nerve was referred by his optometrist to the insured, a general ophthalmologist. At the patient’s first visit to the insured in January, visual fields showed peripheral vision loss of OD 50% and OS 5%-7%. IOP was OD 35 and OS 28. Corrected visual acuity was OD 20/20 and OS 20/20. The insured diagnosed bilateral open angle glaucoma and prescribed Betagan drops twice daily. When the patient returned nine days later for a second exam, IOP had dropped to OD 19 and OS 18. The patient was scheduled to return in four months in May but failed to show until the end of December, at which time his pressures were again elevated to OD 38 and OS 36. The insured again started the patient on Betagan and this time added Pilocarpine. He also referred the patient to a university glaucoma specialist who saw the patient a week later with pressures of OD 42 and OS 38. No nerve tissue remained in the right eye and 99% of the nerve tissue in the left eye was gone. Trabeculectomies were performed and pressures decreased over a period of several months. However, two years later, central and peripheral vision in the right eye had deteriorated to the point of legal blindness. Corrected visual acuity in the left eye was 20/25 with impaired central and peripheral vision. The patient filed a lawsuit against the insured ophthalmologist.

Testimony of the Parties

The plaintiff’s lawsuit centered on the issue of compliance and the insured’s duty to remind patients to return for office visits. At his deposition, the plaintiff testified that the insured never explained the seriousness of his condition, including the possibility of blindness, and never gave him a patient education pamphlet about glaucoma. Nor did he allegedly discuss the side effects of glaucoma or the need to return for a follow-up appointment in four months. The plaintiff claimed that this lack of discussion on the part of the insured prevented him from adequately understanding the seriousness of his condition. He denied receiving a reminder letter for his four-month appointment, but he produced a “super bill” from his first visit with the insured which indicated that he should return in four months. The plaintiff also denied that he was noncompliant about taking the prescribed eye drops.

The insured’s office manager testified that prior to leaving the office, patients routinely are given the option of scheduling a follow-up appointment up to twelve months in advance. Patients who choose not to schedule a follow-up appointment at that time are put into a recall system. One month before the recommended follow-up, a letter is sent out reminding the patient to call and schedule an appointment. No notation is made in the charts of patients who fail to come back for a recommended appointment. The practice had about 40,000 patients in its database at the time of the plaintiff’s treatment; approximately 500 to 700 reminder letters were being sent out each month.

The insured ophthalmologist testified that it is not normally documented if a patient is given a pamphlet explaining the risks associated with glaucoma; however, his entries in the patient’s chart made during the first two visits in January were extensive and stated that he’d had a discussion with the patient about glaucoma risks. The insured also testified unequivocally that the standard of care does not require a physician to follow up with a patient who does not return as instructed. He stated that his office protocol to send reminder letters was “above the standard of care” and that there was no reason for him to believe a reminder letter had not been sent to this patient.

Testimony of the Experts

The plaintiff’s expert witness was a board certified general ophthalmologist who had testified on behalf of plaintiffs in 75 cases and on behalf of defendants in only two cases. It was his expert opinion that four months was too long to wait to have a young patient with newly diagnosed glaucoma come back for a return visit. In his opinion, the patient should have been recalled in four to six weeks to monitor the effectiveness of the drops.

Further, the plaintiff expert opined that the defendant did not have an adequate recall system because the defense could not reproduce a copy of the reminder letter it claimed to have sent to the patient. When reminded that the patient had a piece of paper (the super bill) instructing him to return in four months, the plaintiff expert conceded that the patient was partly at fault for failing to return as instructed. However, the expert testified that ophthalmologists are on notice that patients “are notoriously noncompliant with appointments and taking medications for a variety of reasons” and, therefore, the standard of care is to have recall protocols in place to mitigate patients’ well known lack of compliance and understanding.

The defense retained a board certified glaucoma specialist. He testified that the insured’s evaluation, diagnosis, treatment, and recall of the patient in four months were all within the standard of care. He disagreed with the plaintiff expert that there is an assumption in the medical community that patients are noncompliant as a rule. He maintained that after providing patients with pertinent information about their condition, physicians have no way of determining and are not required to evaluate whether a particular patient comprehends the information and will comply with treatment. Finally, he testified that a physician has no duty to track down a patient by phone call or letter if the patient fails to return.

The Jury Trial

This case was evenly balanced on both sides. Besides the question of the standard time frame in which to recall a newly diagnosed glaucoma patient (six weeks versus four months), the jury was confronted with two plausible but diametrically opposed standards regarding a physician’s duty to recall and follow up with a noncompliant patient as well as conflicting testimony about whether the patient ever received an appointment reminder letter from the insured. There was sufficient evidence to support either side’s argument about how well (or how poorly) the practice informed the patient of the risks of glaucoma and how much (or how little) information was provided during the two office visits in January. All jury trials are a contest of impressions and this one was no different. The issue of credibility can be impacted by a small piece of evidence.

At the patient’s first appointment in January, the insured had given him a prescription for a six to eight month supply of Betagan drops. During the trial, the plaintiff testified that he had the prescription refilled six times and that each bottle lasted approximately 60 days. The pharmacist who filled the prescription was called and testified that if the patient had used the drops as instructed, each bottle would have lasted 35 to 40 days and the first refill would have been needed in early April. In fact, the pharmacist’s records showed that the patient’s first prescription refill was not until August.

This fairly conclusive evidence that he was not taking the drops as prescribed hurt the patient’s credibility and convinced the jury that he was noncompliant. The jury found for the defendant ophthalmologist.

Risk Management Strategy

While it may be the patient’s responsibility to keep appointments, juries will look more favorably upon a physician who has demonstrated an effort to find out why appointments were missed. All practices should have a written office policy for follow-up of missed appointments whereby all “no-shows” (as defined in the policy) are brought to the physician’s attention. The extent of the ophthalmologist’s response to missed appointments should be determined by the answer to two questions: (1) How severe is the patient’s illness/problem? The sicker the patient, the more timely and intensive the effort should be to address the problem. (2) Is there a good reason not to contact the patient? Most important, in terms of liability protection, all follow-up efforts should be documented in the patient’s medical record.

Vexing situations arise when patient noncompliance becomes a burden on the ophthalmologist’s staff. Some ophthalmologists are now sending what is in effect a “final notice” letter to patients who fail to reschedule missed or canceled appointments or who have canceled or no-showed multiple times and presumably will not be returning to the office. OMIC has developed a sample letter that may be adapted and used by ophthalmologists to make noncompliant patients aware of the risk of visual loss or blindness and the need to contact the practice within a specified period of time or be deemed to have terminated the relationship with the practice (see sample Letter to Noncompliant Patient). OMIC encourages insureds to call the Risk Management Department for guidance in setting up a recall protocol and dealing with noncompliant patients.

Letter to Noncompliant Patient

(Date)

Dear (Patient):

You have canceled your follow-up appointment on (date) without rescheduling. We have tried multiple times to reschedule your missed appointment. To date, you have not responded to our efforts. It is our understanding that you may have terminated your care with our office.

Continued care is essential to the health of your eyes. You have an eye condition which will worsen without proper care. Permanent damage may occur, resulting in visual loss or blindness. Kindly realize this letter is not meant to alarm you. We only wish to inform you of the seriousness of your condition, as it was also explained during office visits, and encourage you to seek proper care.

If we have not heard from you within three weeks, we will assume that you have transferred your care to another physician and have terminated your relationship with this office. We will transfer a copy of your medical records to your new physician upon receipt of a signed authorization to do so.

With best regards,

(Physician’s Signature & Name)

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