Non-compliance: Who's really taking the legal risk?

My lovely wife Mary recently threw me a giant 50th birthday party. While the gag gifts were entertaining, the conversations were enlightening.

It's amazing how many other professions wrestle with the same issues facing veterinarians. Let me explain:

My sister-in-law is a regional representative for a top pharmaceutical company. At the party, she told me an anecdote about one of her client medical offices.

While visiting the ophthalmology group in New York City, she asked the doctors why they had so many more prescriptions written for glaucoma medication than do most of her other customers. The doctors informed her that the practice achieves nearly 100 percent patient compliance on glaucoma-medication usage and refills.

How? Whenever a patient who is prescribed glaucoma medication fails to return for scheduled rechecks or fails to contact the doctor for a prescription refill, a certified letter with return receipt is mailed to the patient's home. The letter states in scary language that the physician's office will not accept liability for the multiple potential complications associated with the failure to correctly use prescribed glaucoma medication and/or the failure to return for examinations, pressure checks and other recommended diagnostics.

Apparently, this letter gets things hopping.

Patients are reminded that they are responsible for their own eyesight. Roughly translated:

Don't go blaming the doctor if your vision disappears because you failed to do as you were told.

Imagine the concept: Clients have to take personal responsibility for their own health; they are not able to leave it at someone else's doorstep.

The applicability of this story to our own profession is obvious. What is a doctor's liability for patient injuries attributable to client non-compliance?

How many times have you run into situations where clients were instructed on a certain protocol for the use of, say, methimazole, and their prescription miraculously lasts them months longer than the 30 days originally written? It happens too frequently and, of course, they have a million excuses:

• "Gee, Doc, little Cleo seems to throw up if I use the full pill but she does great when I give her a half every other day!"

• "That medicine is awfully expensive; but not so bad if I give it only when she seems to be having a bad day."

• And the worst: "Well, I used it like you said, and she got better so I stopped..."

So, now the legal question: Who is going to take responsibility for the cardiomyopathy or other complication associated with lousy compliance? Did the medical record indicate the owner was specifically told that repeat blood values were not optional? Does such medication go home with owners with the explicit understanding that the treatment regimen (with adjustments) is likely to be permanent? What proof is there that the client was so advised?

The problem isn't so bad with some medical therapies, however. Some owners are pretty good about making sure they come back for their bromide and pheno levels. If they don't, then their Schnauzer will suddenly remind them when it has a colossal seizure during a dinner party.

It's pretty much the same story for anxiety medications. Non-compliance means the cat starts peeing on the laundry again or the dog redecorates the house while the owners are at work.

But what do we do for instances where clients ignore, genuinely don't understand or simply forget our instructions concerning chronic therapy, follow-up blood values or other diagnostics?

I am not recommending that we send certified letters to all our non-compliant clients, although that probably wouldn't be a bad idea in some cases.

Logistically, however, it is a stretch.

The practice would be too costly in terms of time and postage. It has the potential to create guilt in the mind of the client. (Rough translation: "Who does that vet think she is? I'll just go somewhere else...")

Nonetheless, I do believe that certain steps should be considered when it comes to chronic medication use and compliance.

Here are a few ideas:

1. It might be worthwhile to draft a brief release form to be used when clients take home their first round of medications such as thyroxine, methimazole, enalapril, phenobarbital, etc. Such a form could briefly state the owner acknowledges she has been advised that treatment with the medication may be permanent and follow-up diagnostics must be scheduled in order to obtain refills.

2. Many practices already schedule automatic follow-up blood work and even arrange for a receptionist call to remind clients. Many practices do not follow up with a form letter, which might be advisable. The receptionist who mails it could rubber-stamp the medical record, stating "blood-work reminder mailed," followed by her initials.

3. Obviously, when a person comes in for a phenobarbital refill, we all know how many days of medication remain, right doctors? The same vigilance we exercise to keep our rear ends out of trouble with the DEA and state drug authorities when refilling scheduled substances should be employed when refilling other chronic medications. The take-home point in this regard is that we need to intervene when the refill request is too late as well as when it is too early.

Christopher J. Allen DVM, JD

Dr. Allen is president of the Associates in Veterinary Law P.C., which provides legal and consulting services exclusively to veterinarians. He may be contacted at (607) 754-1510 or info@veterinarylaw.com.