​In August 2015, ECRI Institute's Physician Practice E-News published the following account of a jury verdict against a Pennsylvania physician:

A Pennsylvania jury has awarded $7.4 million in a malpractice lawsuit alleging that a physician was negligent in failing to treat a patient's hypertension, which led to his paralysis as a result of a stroke, according to a report (login required) from the July 2015 Medical Malpractice Verdicts, Settlements, and Experts. The 61-year-old patient sought treatment for high blood pressure from the defendant physician. He received treatment in the hospital and treatment intended to be continued at home, and was expected to follow up in four weeks. Two days after the visit, the patient had a "large hypertensive stroke" that paralyzed his legs and right arm. Because of the paralysis, the patient was unable to help his wife when she had an asthma attack and died while caring for him. The plaintiff alleged that the physician's failure to treat his high blood pressure led to his stroke. The defense claimed that the patient was negligent for years in failing to comply with medical advice regarding his smoking, high cholesterol, diabetes, and hypertension. The defense alleged that the patient smoked a pack of cigarettes daily and did not take his prescriptions for diabetes, hypertension, and hyperlipidemia. The jury award of roughly $7.4 million included $350,000 for future loss of earnings, $3.5 million for pain and suffering, about $2.6 million for future medical expenses, and $950,000 for the estate of the patient's wife.

In response, a physician wrote to Healthcare Risk Control (HRC) to ask how the jury could reasonably find fault with the physician if the patient had failed to comply with his instructions. Equally important, he asked how a physician can protect him- or herself after documenting a patient's repeated noncompliance.

In our response, ECRI Institute notes that it is certainly challenging for physicians to treat patients who do not follow their physicians' instructions. When such cases come to litigation, juries in malpractice cases are charged with the responsibility of listening to testimony of "fact" and medical expert witnesses and deciding, based on their own experiences, the credibility of each witness in light of the facts and circumstances as the jury interprets them.

Typically, the jury will hear opinion testimony from medical expert witnesses (usually a physician in the same specialty) regarding the standard of care expected of the defendant physician under the circumstances, and whether the alleged "failure of the physician to adhere to that standard" contributed substantially to the patient's poor outcome. In most malpractice cases, this boils down to a "battle of expert witnesses"—with each member of the jury having to use his or her best judgment in determining which of the medical expert witnesses' opinions to believe.

In many states, the patient's failure to follow physician instructions may be used as a basis of "comparative negligence," such that if the jury finds the patient was to some degree responsible for his or her own poor outcome, and the physician was also negligent, the jury must determine who was at greater fault. If the patient is found to be at lesser fault than the physician, the court may reduce the damage award proportionally, in terms of percentage.

Often, in cases in which the patient was noncompliant, the plaintiff attorney will tell the jury that although the patient may have been noncompliant, the physician had the "last chance" to save the patient—and failed to do so. The exact facts and circumstances of each case are different, and the human drama and dynamics in the courtroom are different in each case. The system of "justice" by lay jury trial in cases involving complex medical issues is hardly perfect. But if the trial judge determines that the jury has reached a verdict that is clearly against "the weight of the evidence," the court may order a new trial.

The physician who submitted the query to HRC also asked how a physician may protect him- or herself other than by documentation of a patient's repeated noncompliance. An expert with more than 22 years' experience defending physicians in medical malpractice cases, in approximately 100 jury trials, suggests that it is not simply "documentation" but the quality of the documentation that reflects to the jury that the physician really cared about the patient—in other words, this is what shows that the physician provided "patient-centered care."

Often, noncompliant patients are not intentionally noncompliant. Patients may lack health literacy and may hide their ignorance or their lack of even a basic understanding of what they are asked to do and why it is important to do it. Asking a patient with low health literacy to "teach back"—to tell you what they understood you to say, what they are supposed to do, and why it's important—can be a helpful communication tool.

Some patients may face social or practical barriers (e.g., lack of transportation prevents them from keeping appointments, getting their prescriptions refilled, or following up on tests). Patients may also have psychological or emotional problems accepting their illness and remain in chronic denial.

It is extremely challenging for physicians, especially in the limited time available during patient visits, to get to the heart of why a patient is repeatedly noncompliant. Still, ECRI Institute believes that it is time well spent to sit down with a repeatedly noncompliant patient, to ask probing, nonjudgmental questions and try to get to the root of the problem. A problem cannot be remedied unless it is identified. Documentation of such interaction and discussion with the patient would reflect to a jury that the physician was caring, competent, and concerned.

The recommendations contained in Ask HRC do not constitute legal advice. Facilities should consult legal counsel for specific guidance and develop clinical guidance in consultation with their clinical staff.