We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.


You are a surgeon and were just called to the ER to see a new patient. He’s a nurse practitioner who walked in describing abdominal pain and a low-grade fever. You determine he is in the early stages of acute appendicitis. You recommend an immediate appendectomy.


He explains he just started his job at a clinic and his health insurance coverage has not been initiated. Oh, crap.

Because he believes the cost of care is likely to deplete his nascent bank account, he refuses immediate surgery. He wants to be treated with a trial of antibiotics based on an article identified demonstrating “good” results with such treatment. He pulls it up on his iPad for you to eyeball. That’s awkward.


All patients must informedly consent to treatment. Beyond that basic principle, this is a patient who is steeped deep in the healthcare world and he is armed with literature cites.


This is also not an incompetent patient. He is also not a patient making a decision so dangerous that it suggests an inability to comprehend his true peril. In such an unusual situation, a doctor might be obligated to request the hospital obtain a proxy or to seek a court Order to compel treatment.


However, you still think that the patient is wrong and you want to schedule him for the OR.


So – what do you do?


Your responsibility is to make a decision and to abide by it in the care that you render – or do not render.  While you must always involve the patient as an informed participant, it is not ever something that you can actually delegate to the patient. To do so – to make yourself a mere hand-puppet – would itself be an actionable breach of the duty of care.


Therefore you do only what you believe is in the patient’s best interests.


Under negligence law this means that you must be acting as is reasonable under the circumstances to serve those interests.


But how do you know what is reasonable?


After all, in this case the literature showed a failure rate of antibiotics in about a quarter of cases but “failure” only meant that the patients then went on to the appendectomy that they would have had anyway.  Of course, in some of those patients, the appendix ruptured, making the recovery longer than it otherwise might have been. But, nobody died.


However, that literature was also very limited and was apparently weighted by pediatric patients and your patient is 39.


The practical medicolegal answer when faced with such a conundrum – the one directed to the fear of a lawsuit for malpractice – is that you should reverse-engineer your decision from what you would ideally later want to be able to tell a jury that you did.


Therefore, in a case like this assume that the worst outcome will occur: the patient will die.


Then, knowing that blame is potentially allegeable either for being too slow to operate or for being too quick with the knife and denying the patient a chance to try a less extreme treatment, ask yourself which decision is better backed-up by:


  • your personal experience
  • the extant literature
  • the clinical status of the patient
  • the practical circumstances, such as the timing of  OR availability.


Note, however, what is absolutely not on that list but was a major factor in this patient’s desire to avoid surgery: the patient’s ability to pay.


Unless the hospital is literally refusing to let a treatment go forward based on payment issues, forcing you to (reasonably!) drop to a lesser version of care, whether or not the patient can pay, is medico-legally irrelevant.  In fact, if reasonable medical decision-making mandated an action and you placed your own fee above that, you will have just added another zero to the award that will come in against you. It is expected that you will do what is needed and will work out payment issues separately, such as from an uncompensated care fund or by a payment plan with the patient.


Since the decision to agree or not with what the patient wants is going to be based on the facts of each situation, the more critical question to be considered is how you deal with the patient who will not bend on their insistence on a treatment that you simply do not condone and will not undertake.


Many doctors will just let the patient go and then put a quick note in the chart stating that the treatment that was recommended was refused and that the patient left “AMA”.


This, however, is not just inadequate documentation of a situation fraught with medico-legal risk – it is actually useful as evidence of an actionable breach of the duty of care.


That is because, just like consent, refusal must be informed and it is your non-delegable duty to make sure that the patient understands the situation before they sever the doctor-patient relationship with you.


There is no evidence in a bare AMA note that that was the case.


What you want to do, instead, is to create a note that documents why you did not treat the patient.


The note should include:


  • The treatment that the patient asked to receive.
  • The specific reason(s) that you declined to render that treatment.
  • The treatment that you recommended.
  • The explanation that you provided to the patient of why the treatment that you recommended was preferable.
  • What the risks of not accepting the recommended treatment were and that these were explained to the patient.
  • That the patient was of legal age and was mentally competent to make the decision.
  • That the patient was not in a clinical state (e.g.; pain, high fever) that would impair their ability to make a competent decision or that required that they be treated against their will.
  • That the patient was informed of symptoms to watch out for (listing those symptoms specifically) and was instructed to return for treatment immediately if those occurred.
  • That the patient was informed that, even in the absence of such symptoms, if they changed their mind that they could return for treatment.
  • That the patient was asked if they had any further questions and stated that they did not.


The note should also list any patient education materials that were provided and a copy of such should be appended to the note.


You should then have the patient co-sign it under the statement “I have reviewed this note” and, as with a consent note, have a witness sign as well.


Will such a note in the chart prevent a lawsuit?  No, although it will certainly be a deterrent.


Its actual value is as evidence of three critical legal matters:


  • That you fulfilled your duty to fully inform the patient.
  • That you did not abandon the patient and that instead the patient terminated the doctor- patient relationship.
  • That the patient’s intentional conduct led to their condition, a necessary predicate for the defenses of contributory and comparative fault.


So, that all having been said, what do you do with your appendicitis patient?


You do what you believe is clinically correct. If it is not what the patient wants then you permit him to make an informed choice in that regard, documenting  that you did so.


In summary: While patients should be respected when they want input into their treatment the final decision of what treatment to render is not delegable to the patient. To do so would itself breach the duty of care owed to the patient and create a basis for a medical negligence action. If the patient persists in their disagreement over treatment a note documenting that as an informed process should be placed in the chart.


[Medical Justice note: So, if the patient wants a trial of antibiotics, and you, the surgeon, believe it is not in his best interest, who’s going to prescribe it for him? If the patient is hell-bent on avoiding surgery – at least for the moment – his logical choice is between receiving antibiotics or nothing at all. Some doctors would prescribe the antibiotics as an alternative to the patient’s informed (and documented) refusal to accept surgery. Others would tell the patient they will not do anything other than the gold standard of care – which is surgery.


This is not dissimilar to treating Jehovah’s Witness patients who refuse blood transfusions – even at the risk of exsanguinating to death on the operating room table. Some surgeons will perform such procedures; others will not. Those who perform such procedures believe the patient is making an informed decision – and it is better to give the patient the option of a cure as opposed to saying nothing can be done (unless the patient violates his principle of no-transfusions). The key take home message addressing patients who are looking for treatment that violates the traditional standard of care —  document why the patient is refusing that treatment – and why the requested – and informed – alternative approach is superior to no treatment at all. Not a road for the faint of heart.]