Bucks County Physician Hospital Alliance

Non-Compliant Patients:

How Much Follow-Up Is Enough?

By William L. Weiner, Esquire

As someone who represents many healthcare providers, one of the most frequent and vexing questions posed by clients relate to those actions they can and should take when dealing with non-compliant patients.  Regardless of the extent to which a patient is non-compliant, such non-compliance does not preclude the patient from bringing a claim against a provider, alleging malpractice or other wrongdoing. However, there are a number of proactive measures providers can take in order to protect themselves from such claims, including the following:

1. Explain and Document.

Any patient whose condition requires some form of follow-up should be instructed by the provider as to the reasons for and importance of such follow-up, including the potential health consequences of failing to comply with such follow-up instructions—all of which should be documented in the patient’s chart.    In this way,  providers can effectively rebut the common allegation by noncompliant patients, often in the context of a lawsuit, that they would have returned for further treatment or testing if they had been told of its importance, or been made aware of the potential adverse effects of failing to do so. 

2. Follow-Up Procedure

Even if the need and significance of a subsequent appointment are impressed upon the patient and documented, every provider should have and adhere to a standard protocol for contacting patients, either directly or through staff members, to remind them of upcoming appointments and to follow-up with them if they miss a return appointment.   Again, all such follow-up should be documented in the patient’s chart, including any evidence of non-compliance that may be revealed by such follow-up: for example, a patient who says that he or she was too busy to keep their appointment or was feeling better so felt there was no reason to return.

In addition, by promptly contacting patients that miss their appointments, providers can sometimes identify patients that are dissatisfied with their care or have other complaints that the provider can address in an effort to resolve such issues at an early stage. 

3. Telling a Patient: “You are fired”

In rare instances, and after all other less severe methods have failed, one may have no other recourse in dealing with a non-compliant patient than to terminate the professional relationship.  However, before actually sending a “termination” letter, the practice should have and follow a standard procedure, including the physician personally contacting the patient to determine his or her reasons for non-compliance.  As part of such contact, the physician should again inform the patient of the medical ramifications of the patient’s non-compliance and the need for follow-up care – all of which should be documented in the patient’s chart, together with a notation by the physician that the patient was lucid and was told and acknowledged his or her history of non-compliance.

If the relationship cannot be salvaged and the physician determines, based upon a review of all relevant factors, that such relationship must be terminated, the physician must send a properly worded letter to the patient, advising him or her of the physician’s intent to terminate the relationship.  In order to protect oneself against a charge of abandonment or other claims that sometimes arise out of a provider terminating the patient relationship, any such termination letter should, among other things, provide the patient with the following: (i) reasonable advanced notice of such termination—typically, 30 days is sufficient, subject to any extenuating circumstances such as those relating to the patient’s medical condition or the terms of any provider or managed care agreement that may be relevant (discussed below); (ii) assurances that the physician shall be available to treat the patient up until the termination date, including with respect to any emergencies that may arise during that time; (iii) information as to where the patient can obtain the names and addresses of other physicians that can provide care; (iv) an offer to transfer, free of charge, copies of the patient’s chart upon receipt of written authorization to do so; and (v) the reason for discharging the patient (e.g., non-compliance), which should be stated in a succinct, matter-of-fact, albeit self-serving, manner, provided that such reason is supported by documentation in the patient’s chart. 

Any such termination letter should be sent contemporaneously by first class and certified mail, return receipt requested.  In this way, if the patient fails to claim the certified mail and the first class mail is not returned as undeliverable, the physician will have a means of establishing that the patient received the termination notice.  In addition, the physician’s appointment staff should know of the termination notice and relevant termination date so as not to schedule any appointments for the patient after such date.

Finally, and as alluded to above, before discharging a patient, a physician should carefully review the terms of any applicable provider or managed care agreement so as to confirm that the termination procedure and any proposed termination do not run afoul of the terms of such agreement.  Any failure to comply with such terms, could lead to a claim by a third-party payor that the physician’s discharge of the patient constitutes a breach of the provider agreement.

Mr. Weiner is a partner of Fox Rothschild LLP, and a member of its Health Law Group, resident in its Bucks County office.  He may be reached at 215-918-3635 or wweiner@foxrothschild.com