Plaintiff Attorney May Decline to Pursue Claim if Patient Was Noncompliant
October 1, 2023 4 minutes read
By Stacey Kusterbeck
If a patient does not follow discharge instructions, and a bad outcome happens, the patient or family may decide to sue the emergency care provider. However, it may be difficult finding a lawyer to take the case. “Patient noncompliance, if contributory to the outcome, will chase diligent medical malpractice lawyers away from pursuing the case,” according to David Sumner, JD, a Tucson, AZ, medical negligence specialist with a multistate trial practice.
In some jurisdictions, plaintiffs are barred from recovery altogether if the patient is found to have been at least 50% negligent, even if there was some culpability on the part of the healthcare providers. In other jurisdictions, some recovery is possible, but juries can consider the patient’s negligence. “Even if the jury apportions less than 50% fault to the plaintiff or the plaintiff’s decedent, recovery is substantially reduced,” Sumner notes.
In jurisdictions where a verdict recovery is allowed despite 50% or greater fault attributed to the plaintiff, the award is reduced by the percentage of fault. For instance, a $100,000 verdict would be reduced to $30,000 if a jury found the plaintiff was 70% at fault and the defendant was 30% at fault. “Tort reform has already imposed draconian damages caps and special immunities, particularly in ER and OB cases,” Sumner asserts.
In some jurisdictions, juries can apportion fault against nonparties to the case. In those jurisdictions, plaintiff attorneys have to assess patient noncompliance and nonparty fault issues. “Verdicts and recovery can be extinguished, or hugely diminished, by juries apportioning fault against the plaintiff or nonparties in the case,” Sumner explains.
For example, a primary care physician might have missed the diagnosis 24 hours earlier; because of worsening symptoms, the patient went to the ED. If the primary care physician is not a defendant or a named party in the case, the named defendants can argue fault by the primary care physician (who is not at trial or defended by counsel). If the jury finds the primary care physician is 70% at fault for negligently missing the diagnosis 24 hours earlier, then an award against the remaining defendants is reduced by the nonparty apportioned fault of 70%.
“Defendants would have the burden of proof establishing medical negligence by the primary care physician in order to succeed with the ‘nonparty at fault’ defense,” Sumner explains.
Family members also can have fault apportioned against them. If a patient’s spouse forgets to fill a prescription for heart medications for the patient, and the patient suffers a cardiac arrhythmia before the prescription is filled, the spouse could be a nonparty at fault. In that hypothetical case, the jury could find the nonparty spouse was 80% at fault for the bad outcome. “This markedly reduces recovery, even if errors occurred during the prior ER visit,” Sumner says.
The plaintiff may have been prescribed medications that would have materially altered the outcome if diligently taken after discharge from the ED. A jury can apportion significant fault toward the plaintiff who failed to take the medications as instructed. “Patient noncompliance gives a jury an opportunity to exonerate a physician or providers, even if clear technical errors were made by medical providers and contributed to the outcome,” Sumner offers.
Weighing the impact of patient noncompliance depends on the situation. For example, a patient might present with chest pain, is misdiagnosed with gastroesophageal reflux disease (GERD) when the patient was experiencing a non-ST-elevation myocardial infarction. If the emergency care providers gave the patient a prescription for a proton pump inhibitor for GERD (an incorrect diagnosis), and the patient suffered a fatal cardiac event within hours of the ED visit, and never filled the prescription, then the noncompliance would not be consequential.
On the other hand, the emergency physician might prescribe antibiotics for a local infection, but the patient fails to fill the prescription and develops sepsis. “If the antibiotic would have been effective against the organism resulting in septic complications, the patient’s noncompliance in not filling the prescription and taking the antibiotics as instructed by the ED likely played a material role in the development of subsequent septic complications,” Sumner says.
In a case like that, a reputable malpractice attorney is unlikely to accept the case. “If such a case is pursued by less sophisticated plaintiff’s lawyers, then proof of meaningful noncompliance by the patient will usually sink the case at trial,” Sumner notes.
In the eyes of some emergency care providers, plaintiff lawyers are ambulance chasers advertising on city buses or billboards, who pay questionably qualified experts to say whatever is necessary to obtain a settlement or defense verdict. “This could not be further from the truth,” Sumner says.
Sumner says plaintiff’s lawyers are going to be wary of incurring litigation costs to pursue a malpractice claim if material noncompliance by the patient exists and contributed to the outcome.
Sumner goes through an exacting mental checklist when evaluating malpractice cases for merit. One key consideration always is noncompliance. A recent example: A patient who failed to take blood pressure medications and subsequently suffered an uncontrolled hypertension-related cerebral infarct. “If there is credible evidence of noncompliance contributing to the outcome, the case is declined,” Sumner says.
If a patient does not follow discharge instructions, and a bad outcome happens, the patient or family may decide to sue the emergency care provider. However, it may be difficult finding a lawyer to take the case.
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