"How Could You Have Let This Person Leave Your ED?"
AMA patient doesn't necessarily assume all risk
Suppose a patient is being seen in your ED for an extremity injury resulting from a motorcycle accident, and chooses to leave right after his arm is put in a splint, although the emergency physician (EP) hasn't yet done a full examination.
"If that patient leaves and encounters a serious problem as a result, the patient may later say, 'The doctor didn't completely examine me,'" says Arthur R. Derse, MD, JD, FACEP, professor of bioethics and emergency medicine at the Medical College of Wisconsin. "When something bad happens, a patient may suddenly not remember that they were the ones to leave."
Derse says that one risk-reduction strategy is to be sure the patient leaving against medical advice (AMA) hears about the risks he or she is assuming by not completing the medical workup. Document that this discussion took place, and obtain the patient's signature.
"Even if they don't sign it, have someone else sign it as a witness that you gave them this information," he recommends. The form should contain language that acknowledges that the patient is leaving against medical advice and understands the risks of disability or death that may ensue from the patient's refusal.
"It is helpful to list specific risks that the patient may be assuming," adds Derse. "Even patients who are noncompliant are often willing to sign an AMA form to indicate that they no longer wish to stay in the ED and understand the risks of leaving against medical advice."
However, a subset of patients will refuse to sign any AMA form. "If a patient elopes without telling anyone before leaving, the ED physician should document as much as possible of any conversation of risks that had occurred," says Derse.
Patients who leave AMA without giving the EP an opportunity to discuss risks will have a difficult time establishing the EP's responsibility for discussion of risks, he adds. However, patients who might be an imminent danger to themselves or others should not be left unattended.
It is helpful if the ED patient has signed a form stating that he or she was informed of the risks of leaving the ED, says Derse, in the event the patient later sues, because it memorializes the conversation.
"But ultimately, the jury will decide the question of whether the patient was informed adequately that leaving would impair the EP's ability to make a diagnosis, and the patient could encounter disability or death," says Derse.
While it's possible that a jury would consider that an ED patient leaving AMA has assumed all of the risk of a future bad outcome, this isn't always the case.
In fact, says Derse, one of the most difficult legal scenarios is when a patient, such as a non-compliant substance abuser, refuses treatment and later dies. The jury will want to know "How could you let this person, in this state, leave your ED?"
"That's where it's important to have documentation or witnesses to the encounter," says Derse. "The plaintiff may have been unsympathetic. But now, it's a very sympathetic family member in front of the jury, wondering why their loved one's problems were missed."
There are many reasons why a patient would choose to leave the hospital AMA, but regardless of the reason, the ED physician needs to be aware that it is a patient's right to refuse treatment, according to Justin S. Greenfelder, JD, a health care attorney with Buckingham, Doolittle & Burroughs in Canton, OH. "This assumes that the patient is competent to make this decision," he adds.
If the ED physician has a question in his or her mind whether a patient is competent to decide whether to refuse treatment, the physician should document the incident well, says Greenfelder, and, if possible, obtain a consult from a psychiatrist or other mental health professional, as well as discuss the situation with the attending physician on duty.
If the patient is competent and refuses treatment, the patient should be asked to sign a form indicating he is leaving AMA and assuming the risks of such a decision, says Greenfelder. "While this would be a perfect situation, it is not always possible to obtain a signed consent or clear the patient before he leaves," he says. "Under any circumstances, the situation must be well documented."
Even a signed consent form will not insulate the ED physician from potential liability if the patient later suffers a bad outcome, says Greenfelder, and the lack of effective documentation, even in the absence of a signed consent, will weaken the defense position in a subsequent lawsuit.
"It is difficult to say how far a jury would expect the physician to go in keeping a patient there who wants to leave," says Greenfelder. "Much of this has to do with the patient and whether he or she is able to adequately explain why he or she wanted to leave without obtaining treatment."
If the ED physician has documented the situation well, and is able to explain what happened and why, a jury may be less likely to hold the physician accountable if the patient created the problems for himself, says Greenfelder. "It is likely that if the jury hears the physician say, 'I tried to help him but he just wouldn't let me,' it will shift the burden to the patient to explain his decision to leave AMA," he says.
A juror will typically put him- or herself in the patient's position, and if the juror would not have done the same thing, it is likely that the patient will not engender much sympathy, explains Greenfelder.
If a physician wants to admit a patient involuntarily, this should be a well-considered decision with independent corroboration from the attending or a consulting physician, says Greenfelder. "The quantity of testimony and documentation supporting that decision will make such a decision easier to defend in a subsequent legal proceeding," he adds.
Sources
For more information, contact:
Arthur R. Derse, MD, JD, FACEP, Professor, Bioethics and Emergency Medicine, Center for Bioethics and Medical Humanities, Institute for Health and Society, Medical College of Wisconsin, Milwaukee. Phone: (414) 955-8498. E-mail: [email protected].
Justin S. Greenfelder, JD, Buckingham, Doolittle & Burroughs, 4518 Fulton Drive NW, Canton, OH 44718. Phone: (330) 491-5230. Fax: (330) 252-5520. E-mail: [email protected].
Suppose a patient is being seen in your ED for an extremity injury resulting from a motorcycle accident, and chooses to leave right after his arm is put in a splint, although the emergency physician (EP) hasn't yet done a full examination.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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