EPs often put too much faith in having patients who leave the ED against medical advice (AMA) sign an “AMA form,” says William C. Gerard, MD, MMM, FACEP, chairman and professional director of emergency services at Palmetto Health Richland in Columbia, SC.
“An AMA document should be analogous to an informed consent form, which is signed before a procedure. Neither one is really a form, nor a signature,” Gerard says. “It is a dynamic process.”
This requires documentation about the events surrounding the patient’s unanticipated departure from the ED.
“Beside the obvious, which is declaring the patient has medical decision-making capability, there should be a clear story articulated about the events,” Gerard says.
The ED chart should convey the patient was informed of the risks of leaving and other potential options for treatment. It should also explain what precipitated the situation and what was done to rectify the trigger.
“Documentation should also be clear the patient understood, and even verbalized back, the risks and options,” Gerard adds. “Any relatives or significant others present should be included in the process, and their presence documented.”
Gerard says EPs commonly fail to give AMA patients discharge instructions or a prescription for a medication that may be beneficial.
“The patient should also be encouraged to return, and told the door is always open and the light is always on,” Gerard notes. “We need to be less judgmental in these cases. We need to give more options and less orders.”
Gerard reviewed a recent malpractice case that involved an intoxicated patient with a scalp laceration who left an ED AMA. There was sufficient documentation the patient had decision-making capability. However, during the EP’s deposition, the actual signatures were compared from when the patient entered the ED and consented for treatment to when he signed the AMA form.
“There was a truly marked difference. Impairment was obvious, as there was a clear decline in motor skills over time,” Gerard explains. “The patient died; the case settled prior to a court hearing.”
If the chart doesn’t show the EP had a conversation with the patient about the risks of leaving, offered alternatives, and welcomed a return visit, Gerard says, “it most likely doesn’t matter whether the patient signs an AMA form, or not.”
AMA Forms Don’t Always Help
Prolonged wait times, inadequate initial triage, and lack of periodic reassessment are three damaging allegations in many cases against EPs involving patients who leave AMA.
“In the event the patient leaves before being seen by a physician, the physician should review the chart and have a call placed to the patient advising them to return for treatment,” advises Erin L. Muellenberg, JD, a partner at Arent Fox in Los Angeles. This should be documented in the ED record. “The additional review and call will assist in any necessary claim mitigation,” she adds.
EPs sometimes fail to properly document the patient was warned that failure to intervene in an evolving disease process could have significant and life-threatening results.
“This becomes an issue of whether there was adequate explanation of potential consequences for failure to be seen,” Muellenberg says. “The documentation should be specific to the differential diagnosis, which may be involved.”
AMA forms don’t always help the EP’s defense.
“This is very fact-dependent,” Muellenberg says. “Only sound medical judgment with documentation of medical rationale for the action will help defend a claim.”
The ED documentation should be clear and record the circumstances leading to the patient leaving AMA, she adds, as well as the actions of the EP to inform the patient and persuade the patient to remain for diagnosis and treatment.
Even if a patient signs an AMA form, the patient may later claim he or she lacked capacity due to medications administered in the ED.
“Again, it is up to the EP to document the process and complete a medical assessment,” Muellenberg says.
If the assessment concludes there is impairment, then the impairment should be documented with the EP’s response.
EPs must also consider the Emergency Medical Treatment and Labor Act (EMTALA) requirement for any patient who chooses to refuse care, says William M. McDonnell, MD, JD, clinical service chief of pediatric emergency medicine and medical director of the ED at Children’s Hospital & Medical Center in Omaha, NE.
The ED must do the following: Offer the exam or treatment; inform the patient about the risks and benefits of the exam or treatment, document this discussion with the patient, and make reasonable attempts to obtain the patient’s written informed refusal of the exam or treatment.1
The AMA form must contain documentation of these elements.
“This will serve the dual purposes of meeting EMTALA requirements and of providing a reasonable explanation of the informed refusal process for defending against malpractice claims,” McDonnell says.
Pediatric Patients
The primary rationale for AMA discharges — to clarify that a patient with decision-making capacity is exercising his or her right of informed refusal of care — is absent in the setting of a pediatric patient, according to McDonnell. Pediatric patients lack the legal capacity to provide informed consent for care and to exercise informed refusal of care, except for specific circumstances defined under state law, such as emancipation, and specific categories of medical care, such as psychiatric care, reproductive health, and substance abuse.
“Instead, the pediatric patient’s legal representative, most often the parent, makes informed consent and informed refusal of care decisions on the child’s behalf,” McDonnell says. In those cases in which the legal representative disagrees with the medical team’s recommendations, one of these two situations occurs, he says:
- The parent’s rejection of recommended care falls within the parent’s area of reasonable medical decision-making authority.
In such cases, the parents’ decision to refuse treatment is an honest difference of opinion with the EP, but lies within the legitimate decision-making authority of the parent.
“The patient can be discharged normally, and the EP should describe in the chart the disagreement regarding medical management,” McDonnell advises. “Note that the parent’s decision is within his or her decision-making authority and does not rise to the level of abuse or neglect.”
- The parent’s rejection of recommended care is unreasonable, and presents an unreasonable risk of harm to the child, thus qualifying as medical neglect or abuse.
Under such circumstances, EPs are required to report the neglect or abuse to the appropriate child welfare authorities and/or law enforcement, depending on state law.
“In most states, it is clear the physician has no independent authority to assume custody of the child,” McDonnell notes. “In only a small minority of states does the physician herself have the authority to take custody.”
In neither of the above scenarios is an AMA form appropriate, nor is it protective for the EP, McDonnell warns.
“An AMA form simply opens the physician up to liability, from both mandatory abuse reporting statute violations and for malpractice claims,” he says.
AMA forms are designed for adult patients, who have legal decision-making capacity and can refuse care on their own behalf. Children, except in very specifically defined cases, cannot.
“No AMAs for children, except in very unusual circumstances,” McDonnell emphasizes. “Discharging a child AMA can be viewed as declaring, ‘This child is not receiving necessary medical care.’”
A decision to refuse “necessary medical care” generally meets the definition of child abuse or neglect under state laws, requiring the case be reported to child welfare authorities.
“Although violation of mandatory reporting laws is not often enforced against physicians, such enforcement actions can and do happen from time to time,” McDonnell says.
For example, in 2012 a Connecticut physician was arrested for failing to comply with the Connecticut mandatory child abuse reporting statute when he did not report the suspected abuse of a 4-year-old girl.2
“Such a violation of mandatory reporting laws has also been used by plaintiff’s attorneys as the basis for malpractice claims,” McDonnell warns.3
REFERENCES
- 42 U.S.C. §1395dd(b)(2).
- http://patch.com/connecticut/mansfield/case-continued-for-mansfield-doctor-c04f86f6.
- Black L. Liability for failure to report child abuse. Virtual Mentor 2007;9:819-822.
SOURCES
- William C. Gerard, MD, MMM, CPE, FACEP, Chairman/Professional Director, Emergency Services, Palmetto Health Richland, Columbia, SC. Phone: (803) 434-3319. E-mail: [email protected].
- William M. McDonnell, MD, JD, Clinical Service Chief, Pediatric Emergency Medicine/Medical Director, Emergency Department, Children’s Hospital & Medical Center, Omaha, NE. Phone: (402) 955-5140. E-mail: [email protected].
- Erin L. Muellenberg, JD, Arent Fox, Los Angeles. Phone: (213) 443-7595. Fax: (213) 629-7401. E-mail: [email protected].
It’s a process, not a form.
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