Non-compliant patient: Court absolves doctors

04 February 2020 | Hishani Dassanayake, LLB, Senior Solicitor, Avant Law, NSW

The traditional model of primary care, where one doctor treats a patient for most of their lifetime, is occurring less frequently in modern day practice.

With patients becoming increasingly likely to visit multiple doctors, it is vital to find ways to ensure continuity of care to improve their health outcomes.

Patient alleges failure to properly manage conditions

Avant member, Dr Magenta*, was the primary GP who treated the patient, Mr Evans*, at a suburban medical centre during 2002 and 2007.

At least five other general practitioners at the same practice also treated the patient at various periods between 2002 and 2012, including Avant member Dr Blue*.

Years later, a claim for compensation was brought by Mr Evans against all of the six GPs involved in his care at the practice, as well as other doctors he had seen up until 2012. He alleged they had failed to properly manage his diabetes and hypertension over various periods, resulting in chronic renal disease and depression.

Compliance an issue from the onset

The GP practice did not allow for booked appointments. Patients saw whichever GP was next available, although if they wanted to see a particular GP, they could wait to do so.

Dr Magenta first saw Mr Evans in 2003 for worsening psoriasis. He sent him for a full blood and urine screen.

When Mr Evans returned for his results, he saw Dr Blue who diagnosed him with type 2 diabetes. He started Mr Evans on medication and referred him to an endocrinologist, but the patient did not pursue the referral.

Shortly afterwards, at another consultation, Dr Magenta noted the diagnosis of diabetes and that Mr Evans was only partially compliant with his medication. He reinforced the importance of managing his diabetes.

A few months later, Dr Blue noted Mr Evans was no longer taking his medication. He encouraged him to do so.

One year after the original referral, Dr Magenta referred Mr Evans to a diabetes clinic because he noted the patient had not acted upon the earlier referral and he was concerned about his diabetes management. Mr Evans did not attend the clinic.

Another year passed and Dr Magenta gave the patient another referral to an endocrinologist. This time the patient attended. The endocrinologist considered, amongst other things, that Mr Evans’ blood pressure needed to be monitored.

Numerous doctors become involved in care

Mr Evans was seen at the practice by three other doctors during this period, all of whom treated Mr Evans for various ailments such as the flu and work-related stress. They noted the patient’s diabetes, arranging for further blood tests and checks of his blood pressure.

After Dr Magenta left the practice in 2007 a sixth practitioner, Dr Green*, became the patient’s primary GP until 2012, but again the patient saw other GPs in between. Around this time, the patient’s blood pressure started increasing. This coincided with some further work stress, which became the focus of treatment.

In 2012, the patient decided to go to another GP practice. He was diagnosed with Stage 4 chronic kidney disease shortly after.

The defence approach

The claims against Dr Magenta and Dr Blue were defended on two bases – first, that the members did not breach their duty of care to the patient and second, that it was unlikely there would have been a different outcome had he been managed differently.

In relation to whether there had been a breach of duty of care, supportive peer expert opinions were obtained. However, despite the patient’s non-compliance at times, there was an issue with continuity of care at the practice given the number of doctors involved in the patient’s treatment.

As to causation, the medical experts retained to assess this considered the treatment did not cause the injury and did not alter the outcome of the patient’s medical condition. This led to Mr Evans’ lawyers conceding there was no case against our members and three of the other GPs, who each received a judgment in their favour.

However, they did proceed with their case against Dr Green, claiming the results of his investigations warranted referral to a specialist. They amended their causation case during the trial to plead that, as a result of Dr Green’s management, there had been a failure to slow the progression of renal disease. This was successful at first instance.

Dr Green appealed the decision. Even though he admitted he should have referred the plaintiff to a specialist earlier, the Court of Appeal found that any different outcome would have been negligible. Further, the court was not convinced the plaintiff would have been compliant in any event, given he had not been compliant previously.

How to manage a non-compliant patient

Dr Richard Wilson, OAM, MBBS, DObstRCOG, FRACGP, FACRRM, Senior Medical Adviser, Avant, SA

We regularly come across complaints where a patient claims “The doctor didn’t tell me that”. Understandably, doctors can’t remember what they have said at each consultation, and so we often rely on the ‘usual practice’ defence if there are insufficient notes in medical records.

In this case, the patient was frequently non-compliant with medications, management tools and referrals. If you get a hint of such behaviour, make an effort to take particular care to record the advice given, frank discussions you had about the importance of compliance and the likely outcomes from non-compliance at each visit.

Other steps that can help:

  • Discuss other reasonable alternative management plans with the patient, but explain why the recommended management plan is preferable.
  • Supply further information for the patient to take away and read, and ask them to return for a second appointment to decide on treatment.
  • Consider advising them to seek a second opinion.
  • You may wish to seek permission from the patient to discuss your concerns with their family members and involve them in the treatment discussion.
  • Despite the patient’s non-compliance, initially strive to keep the relationship going ­­­– suggest the patient come back and see you again.

By taking these actions, you will be able to better demonstrate all reasonable steps were taken to provide appropriate care and that the patient made an informed choice not to undertake treatment.

Key lessons

Fragmented care is a recipe for sub-optimal treatment when dealing with chronic illness. Ideally, the sole treating doctor is in a good place to be able to build trust, give consistent messages, titrate medications, orchestrate regular investigations and arrange appropriate referrals. Only then can the patient receive the care that will optimise their progress through the course of their chronic disease.

The lessons from this case include that a patient’s non-compliance doesn’t discharge a practitioner’s duty to ensure they receive adequate care. Where a patient may be seeing multiple doctors for a chronic or serious condition, a situation many doctors face, the patient should be encouraged to see one doctor to better manage their condition.

If this isn’t possible and there are questions around the patient’s medical condition or compliance, the records take on even greater importance and should be read carefully to get a better picture of the situation. Measures, such as a central recall system and an ‘alarm bell’ system for non-compliant patients, could also be put into place and should be used consistently.

Useful resources

Are we all clear? Multidisciplinary care

When is it okay to end a doctor-patient relationship

*Names and some details in this case have been changed.

This article was originally published in Connect magazine issue no. 13.

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