Articles: Medical Topics
The Uncooperative Plaintiff
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 Plaintiff
attorney Bob Arnold stared with dismay at his client who
had been injured in a motor vehicle accident. “What
do you mean, you have not been going to physical therapy?
What is the problem?” He thought to himself, “Are
we going to end up with an uncooperative plaintiff who won’t
mitigate his damages?” Lack of cooperation with the
medical treatment team and plan of care may occur in any
healthcare
or home setting. The medical term of “noncompliance”
defines a person who refuses to listen to the healthcare
providers, and displays behavior that is harmful to his
physical health and ultimately, to his legal claim. This
article focuses on the extrinsic and intrinsic reasons why
people do not cooperate with care recommendations after
an injury.
Extrinsic
factors, which are out of the plaintiff’s control,
include lack of resources. It has been our experience after
reviewing hundreds of medical charts of injured patients
that these individuals often get caught in a downward spiral.
The inability to work may result in the loss of a job, loss
of healthcare insurance, sometimes the loss of a car, and
greater difficulty affording medical care, insurance premiums,
or co-payments. Family
members may have to become the transporters, a role that
interferes with their own work and family responsibilities.
The needs of dependents may impinge on the patient’s
ability to participate in the medical plan of care. Childcare
or elder care responsibilities, for example, may conflict
with office and therapy appointments. Additionally, long
waits for care at doctors’ offices or therapy centers
or confusion about scheduling appointments discourage compliance
with treatment. Missed appointments can set up a climate
in the doctor’s office of annoyance and even hostility.
Patients may be punished by judgmental and negative healthcare
providers who are irritated by missed appointments. 1
Healthcare providers may be less than sympathetic to the
injured patient who displays stress or acts out when in
pain. Encountering negativity and punishment further discourages
the patient from keeping appointments. In extreme cases,
physicians discharge patients from their practices. This
usually results when the behavior of the patient is so out
of bounds as to be unacceptable. Patient behavior that may
result in being ‘fired’ by the medical practice
includes repeated instances of missed appointments, displays
of anger, failure to follow instructions, or abusive behavior
towards physician or staff.
Intrinsic
issues interfering with treatment are varied. Lack of knowledge
of the consequences of not following treatment recommendations
may factor into noncompliant
behavior. Some plaintiffs’ lack of understanding of
the nuances of the care that has been prescribed is due
to low education level or intelligence. The necessity to
follow a complicated course of treatment often dissuades
injured individuals. We have worked on cases involving people
who have had a near-death experience that renders them compliant,
at least for a time. This is the acceptance/denial phase
commonly experienced when confronted with certain injuries,
especially those that require changes in lifestyles, adherence
to protracted periods (perhaps a lifetime) of care, and
specific treatment. Individuals who have had the neardeath
experience may be so appreciative of their survival that
they vow to mend their ways, and they do, for a time. Most
patients, however, soon return to the business of living
and all it entails. Job and family stresses become their
primary concerns once again, and health matters fade into
the background. It is human nature, especially in our current
culture, to do what we want and to be in control of our
own lives. Anything that interferes with this, especially
a condition that requires ongoing attention, is deemed problematic.
That which necessitates our daily involvement frequently
is met with even more resistance. In our “instant
everything” society, we expect immediate results,
and we want them yesterday. 2
Energy
resources are limited by chronic pain. It is most difficult
to be an optimistic participant in care for a healthier
life when day-to-day stresses are overwhelming. Dysfunctional
families, difficult living situations, poverty, long working
hours in a tense environment, or problematic parenting issues
are examples of factors that can leave injured individuals
physically and emotionally exhausted. When patients face
these external challenges, they simply are unable to expend
either time or energy to manage complex or chronic conditions.
All of this becomes a vicious cycle of despair and withdrawal
from anyone who would try to intervene because even that
requires their time. When they feel hopeless, they fail
to return phone calls, skip medical appointments, and ignore
symptoms. 3 Many medications have unpleasant side
effects, discouraging adherence to a treatment regimen.
Individuals who have lost their independence, role identity,
and control may become depressed, resulting in lowered adherence
to the treatment plan. Flares of pre-existing mental illness,
such as bipolar disease, schizophrenia, or depression, may
paralyze the will to participate in therapy. Pre-existing
alcohol or substance abuse patterns may also worsen in the
face of injury.
The
stoic individual may be reluctant to seek treatment, believing
that it is better to tough it out rather than admit to what
is perceived as a weakness: needing help. This individual
is taught not to complain. As my stoic grandfather used
to say, “It does not make any difference whether you
complain or not- it won’t change a thing. So why complain?”
Religious
convictions may hold people back from taking advantage of
ordered therapy. Some individuals take a fatalistic view
of medical treatment. Cultural beliefs may conflict with
the treatment regimen. Language barriers impede understanding
of instructions for self-care. Faced with the experience
of having pain worsened by therapy, some patients opt to
not willingly place themselves in a setting where they will
feel worse- at least short term. Vigorous physical therapy
may cause pain to flare.
Close
inspection of medical records by a legal nurse consultant
provides the attorney with essential information about compliance
with the treatment plan. Our medical summaries include details
and reasons for noncompliance. Our ability to interpret
medical records encompasses the abbreviations used to record
missed appointments, such as “NS” (no show),
“DNKA” (did not keep appointment), and “NSNC”
(no show no call). The uncommon event of a physician discharging
a patient from the medical practice is invariably documented
in the form of a letter to a patient. Our summaries make
note of those occurrences.
Plaintiff
attorneys can’t afford to be uninformed about their
uncooperative clients. The emotional aspects of noncompliance
are more challenging to uncover and to resolve. Often, the
acknowledgment that others experience these roller coaster
feelings and that it is all right to be angry or depressed
moves the individual closer to acceptance and active participation
in care. 4 Defense attorneys can’t afford
to be unaware of such patterns of behavior. Reasons for
lack of cooperation need to be explored with the plaintiff,
and the implications considered as part of litigation. Identifying
the uncooperative plaintiff is the first step. Med League
can help you with that step.
References
1. Husain-Gambles, M. Missed appointments in primary care:
questionnaire and focus group study of health professions,
British Journal of General Practice, Feb 01, 2004: 54(499),
108-113.
2. Mullahy, C. The challenge of noncompliance for case managers,
The Case Manager, Volume 16, Number 2, March/April 2005.
3. Id.
4. Id.
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