Mitigating the Risk of Litigation When Treating Noncompliant Patients: Insights from Case Studies

Treating patients who are noncompliant with medical recommendations presents significant challenges for healthcare providers. Noncompliant patients not only are more difficult to treat but also often face poor health outcomes. For the provider, these challenges are compounded by the increased risk of subsequent litigation. There have been countless medical malpractice and negligence lawsuits in New York State where a failure to follow treatment recommendations is a factor in the outcome of the case.

The two cases summarized below, Perez v. Baez [2024 N.Y. Slip. Op. 50717 (U) (Kings Cnty. 2024)] and Pierre-Canel v. Eye Surgery Aesthetics, P.C. [2018 N.Y. Slip. Op. 31857(U) (Kings Cnty. 2018)] each involved an alleged delay in diagnosis of cancer. In Perez, the defendant’s summary judgment motion was denied, whereas in Pierre-Canel, it was granted. These opposite results highlight the ways in which providers can mitigate their risk of liability when treating noncompliant patients, namely by communication, documentation, and thorough follow-up.

Perez v. Baez

The plaintiff, the wife of the deceased, sued a pulmonologist and Forest Hills Hospital, claiming there was a delay in diagnosing cancer that ultimately led to Mr. Perez’s death.

Mr. Perez first came to the Forest Hills Emergency Department on July 30, 2013, showing confusion and low sodium levels. The pulmonologist, performed an endoscopic biopsy on August 1, 2013. Before the final pathology results were available, Mr. Perez’s condition stabilized, and he was discharged on August 2, 2013, with both written and oral instructions to schedule a follow-up appointment with the  pulmonologist within a week.

After discharge, the final pathology report arrived; it was negative for cancer, but recommended clinical correlation and possibly a repeat biopsy. The pulmonologist admitted he understood that cancer had not been definitively ruled out, yet he did not contact Mr. Perez to discuss these findings or urge a follow-up.
Mr. Perez never scheduled the follow-up. More than two years later, Mr. Perez was diagnosed with stage four bronchogenic squamous cell carcinoma, which had already spread to his liver. He died about a month after the diagnosis.

The pulmonologist sought summary judgment (asking the court to dismiss the case before trial), arguing it was Mr. Perez’s failure to follow discharge instructions that led to the delayed diagnosis. However, the court denied his motion.

Pierre-Canel v. Eye Surgery Aesthetics, P.C.

In this case, the plaintiff presented to Eye Surgery & Aesthetics in September 2013 with complaints related to her left eye, including tearing and discharge. The ophthalmologist diagnosed her with a symblepharon—an adhesion of the eyelid to the eyeball—and recommended its surgical removal with a biopsy to rule out cancer. Although surgery was initially scheduled, the plaintiff failed to obtain pre-operative clearance and subsequently missed follow-up appointments. When she returned in June 2014, the ophthalmologist again recommended the surgery. Despite receiving clearance and scheduling the procedure, the plaintiff cancelled the operation and failed to attend two more scheduled follow-ups.

In October 2014, the plaintiff returned with worsening symptoms. The ophthalmologist diagnosed cellulitis and prescribed antibiotics. When the symptoms persisted, the ophthalmologist urgently instructed her to visit the Emergency Department at New York Eye & Ear Infirmary. Despite being informed of the seriousness of her condition and receiving follow-up calls from the ophthalmologist, the plaintiff delayed seeking treatment and ultimately went to Kings County Hospital, where she declined recommended surgical intervention and again failed to follow up.

Over the following months, the plaintiff continued a pattern of seeking care for similar symptoms but not following through with recommended treatment. In May 2015, she was finally diagnosed with cancer and required surgical removal of her left eye at Sloan Kettering. Despite this outcome, the Court granted summary judgment in favor of the ophthalmologist and Eye Surgery & Aesthetics, holding that the defendants met their legal burden by clearly documenting patient communication, medical advice, and follow-up efforts.

The Court emphasized that the ophthalmologist thoroughly informed the plaintiff of the risks—including the possibility of cancer—and made repeated efforts to ensure compliance with treatment plans. The plaintiff’s consistent failure to follow medical advice, combined with detailed documentation from the ophthalmologist and corroborating deposition testimony, led the Court to conclude that the responsibility for delayed diagnosis lay with the plaintiff. In declining medical recommendations, she had accepted a significant portion of the risk associated with delaying care.

Managing Liability Risk When Treating Noncompliant Patients

The decisions in Perez and Pierre-Canel highlight the importance of communication, documentation, and follow-up for providers when treating noncompliant patients. Both cases dealt with an alleged delay in diagnosing and treating cancer, and both cases involved situations where the cancer likely would have been diagnosed earlier had the patient followed their treatment instructions. Yet, the defendants in Pierre-Canel were granted summary judgment while the defendants in Perez were not. These opposite results illustrate the need for communication, documentation, and follow-up when managing noncompliant patients, for the purposes of both improving patient outcomes and limiting the risk of liability for providers.

Communication

Clearly communicating specific treatment recommendations, the reasons why such recommendations are being made, and the treatment’s urgency to the patient and, with permission, the patient’s family, not only increases patient compliance but also serves to limit liability of a provider if a subsequent lawsuit results. Focusing on patient education, addressing any questions the patient has, and providing information on resources available to the patient can help mitigate many of the reasons that patients give for not following a doctor’s instructions, which can include financial anxiety, fear of the procedure or diagnosis, or a misunderstanding of the need for care.

In Pierre-Canel, summary judgment was partially based on the fact that the medical records showed that the ophthalmologist clearly communicated to the plaintiff that her eye condition could be a malignancy and removal with a biopsy was necessary. The ophthalmologist also documented her telephonic communications to the plaintiff, explaining that follow-up treatment at the New York Eye & Ear Infirmary was urgent. In Perez, on the other hand, there was no documentation regarding whether the pulmonologist provided the plaintiff with the necessary information to understand why a follow-up appointment was necessary, and in the face of conflicting deposition testimony on that issue, summary judgment was denied.

Documentation

Obviously, documentation of noncompliance helps protect providers in the event of a lawsuit, as it can serve to break the causal nexus between a provider’s care and the patient’s outcome. However, detailed documentation of the substance of treatment plan instructions is critical. In the absence of such documentation, healthcare providers are left with conflicting deposition testimony and no further evidence that could confirm that a patient was properly informed (as in Perez). This documentation should include what treatment recommendations were made, that the rationale for these recommendations was communicated to the patient, and the basis for concluding that the patient understood the instructions. The opposite results in Perez and Pierre-Canel illustrate the importance of documenting these discussions.

Follow-Up

Lastly, healthcare providers should have policies in place for identifying patients who have been given recommendations for follow-ups as an outpatient, whether arranging further diagnostic studies or scheduling a follow-up appointment. One of the key differences in the analysis of the Courts in Perez versus Pierre-Canel is that the physicians in Pierre-Canel followed up with the plaintiff over and over, despite her serially failing to comply with her treatment instructions or present at scheduled visits. The ophthalmologist even called the plaintiff twice to ensure she had reported to New York Eye & Ear Infirmary as recommended and documented these calls. This diligent follow-up clearly had an impact on the Court’s willingness to grant summary judgment. In Perez, on the other hand, the Court rejected the argument of the defendant’s expert that the pulmonologist “had no duty to chase after” the plaintiff to schedule a follow-up.

Conclusion

It is extremely challenging to predict or control what a patient does when they are no longer confined to a hospital bed and within the direct view of their care providers. However, having in place established policies for following up with patients is a best practice that both mitigates potential liability and achieves better results. If a provider ensures that they are notified of all missed or cancelled appointments, then either that provider or a representative of their office can follow up with the patient as appropriate depending on the severity of the situation. If a reason for the patient’s noncompliance is identified, then the provider can make efforts to mitigate those barriers to care. Lastly, if a provider is unable to contact a patient for follow-up, despite multiple (well-documented) attempts, these attempts can be memorialized in a letter to the patient and sent via certified mail. If this correspondence includes an explanation of the recommended treatment and the potential risks of the patient’s failure to comply, it will serve as both better evidence of noncompliance and, hopefully, encourage the patient to undergo the recommended treatment.

Meet the Author

Kara Eyre

Kara Eyre has extensive experience defending against medical malpractice, nursing home negligence and general liability claims. Kara represents individual providers and institutions in medical claims across a full spectrum of medical specialties. In the nursing home and long-term care area, she handles the defense of matters alleging violations of the New York Public Health Law section 2801-d.

Kara capably handles matters from their inception through trial and appeal. She focuses on collaborating with clients to develop a three-dimensional litigation strategy that considers the strongest possible defenses against claims, minimizing overall exposure and promoting efficient resolution of cases. Kara has given presentations on COVID-19 liability immunity as it applies to long-term care and nursing home facilities.