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by William Sullivan, DO, JD, FACEP, FCLM, Contributing Editor
When a physician and patient disagree about medical testing and treatment, in most circumstances the patient has the right to refuse further care, even if that refusal may result in the patient's death. But a patient's refusal of care must be an informed decision, since both the patient and the physician may be at risk: Patients who leave AMA are seven times as likely to be readmitted in the following 15 days1 and physicians may be sued both for treating patients against their will and for allowing patients to leave without treatment.
Why do patients leave AMA?
No specific demographics identify patients who are likely to leave AMA.2 One study showed that lack of a primary care physician and previous AMA discharges were the only factors associated with leaving AMA. Similarly, patients who leave the emergency department (ED) without being seen are less likely to have insurance and are more likely to be younger in age, to have less severe medical problems, and to have left without being seen in the previous 12 months.3
Patients who leave AMA commonly cite one of several reasons for leaving, including personal or family issues, financial concerns, feeling well enough to leave, dissatisfaction with the physician or treatment received, becoming "fed up," and dislike of hospitals in general. Understanding the reasoning behind2,3 a patient's decision to leave AMA can be an important factor in helping to convince the patient that proceeding with proposed care is the most reasonable course of action.
What are legal issues regarding AMA discharges?
In a medical malpractice case, the patient alleges that the medical provider was negligent and that the medical provider's negligence caused the patient to sustain some type of injury. One way to counter the patient's allegations is to allege that the patient's actions (or inactions) caused his or her own injuries—in other words, alleging that the plaintiff was "contributorily negligent." Refusing to submit to recommended testing and treatment and leaving AMA may be the sole cause of a patient's injuries. Informed refusal of care may, therefore, mitigate or completely eliminate the healthcare provider's liability. But there are several requirements that must be met before a healthcare provider can successfully raise this contributory negligence defense.
Patients who refuse treatment must have the capacity to make a decision. Legal capacity generally requires that a patient be at least 18 years old or that the patient be an "emancipated minor." Each practitioner should be familiar with the definition of legal capacity used in his or her state. Clinical or "decision-making" capacity generally requires that a patient be able to understand the diagnosis, the proposed medical care, and the implications of proceeding with or refusing such care. While exceptions may exist (for example, "mature minors"), in general, patients should have both legal and clinical capacity before being allowed to leave against medical advice.
If a patient does not have decision-making capacity and chooses a course of action that may be potentially harmful, it is usually best to proceed with treatment that is in the patient's best interests. Consulting hospital legal counsel or a psychiatrist to determine whether a patient has capacity also may be of benefit.
A competent patient may make a decision against his or her interests, but first must be presented with information sufficient to make an informed decision. The information provided should be accurate, and in general should include that which a reasonable layperson would want to know in addition to any other information the patient reasonably requests.
The failure to disclose sufficient information to patients who leave AMA is the subject of most litigation regarding AMA discharges.
In Landon v. Zorn, 884 A.2d 142 (2005), a patient sought care in the ED for "flu-like symptoms" and leg pain. The physician wanted to perform a CT scan of the patient's leg, but the patient refused and was eventually discharged home. While the physician testified that the discharge was "against medical advice," no AMA form was completed pursuant to hospital policy. Twelve hours after being discharged, the patient returned to the hospital and was diagnosed with necrotizing fasciitis that required an amputation of the patient's entire leg.
During the subsequent trial, the jury determined that the physician was not negligent. The patient appealed the verdict, in part alleging lack of informed consent, stating that the physician did not explain the full extent of the risks the patient could face by not having the CAT scan done. While the Maryland Supreme Court decided in favor of the physician, it hinted that the outcome may have been different had the patient presented expert witness testimony that the physician should have discussed the risks and benefits of refusing the CT scan.
Sawyer v. Comerci, 2002 VA 411 (2002), involved a patient with right sided abdominal pain, an elevated WBC count, and blood in his stool. The emergency physician wanted to admit the patient, but the patient had a business appointment the following day and refused to be admitted. The emergency physician still believed that the patient required admission, but her notes stated that the patient and his wife "do not seem to understand the possibility of the seriousness of his condition." After the patient's primary care physician agreed to see the patient either the next morning or the following Monday, the patient was discharged. No AMA form was signed.
Several days later, the patient returned to the hospital by ambulance with dyspnea and diaphoresis. He was admitted, but died the following day. He had never attempted to make a follow-up appointment with his primary care physician.
The case was decided in the physician's favor at trial, but was appealed. One of the issues on appeal was whether the patient was contributorily negligent for leaving the hospital on the first ED visit. The Virginia Supreme Court noted that the emergency physician never noted in the patient's medical chart that the patient should have been admitted to the hospital on the first visit. In addition, the emergency physician presented no evidence that the patient "understood the severity of his condition and the consequences that might ensue if he were not admitted … to the hospital." Because the patient was not provided with sufficient information, he could not be held responsible for his decision to leave against medical advice. Incidentally, the Supreme Court did hold that the patient's failure to make follow-up appointments may be used as evidence that he did not "mitigate" his injuries.
In Taylor v. Steinberg, 2002 OH 2928 (2002), a surgeon performed a cholecystectomy on a patient. Postoperatively, the patient developed a bile leak that went undiagnosed despite much diagnostic testing. The surgeon wanted either to repeat an ERCP (endoscopic retrograde cholangiopancreatography) in a week or to perform an immediate reoperation, stating that he believed a bile duct leak was present. The patient became angry that no definitive diagnosis had been made and wanted to leave the hospital. No AMA forms were signed and the discharge papers said that the principle diagnosis was "abdominal wall hematoma." The patient was later admitted to another institution where five liters of bile were drained from his abdomen. He eventually died.
In the ensuing litigation, the surgeon alleged that the patient left AMA and was, therefore, responsible for his own injuries. A verdict of $1.2 million was entered against the surgeon. The Ohio Appellate Court noted that the surgeon showed no evidence that he informed the patient of the seriousness of his condition. The surgeon's notes showed no "reservations" about the patient leaving the hospital. In addition, no AMA form was completed and the absence of an AMA form "undercut [the surgeon's] claim that he recognized the seriousness of [the patient's] situation" and "created the inference that [the patient] was not informed of the seriousness of his condition such that his decisions about his own care were fully informed." The verdict was upheld.
Mueller v. Auker, 04-399-S-BLW,4 is a 2007 Idaho Federal Court decision holding that an emergency physician may be liable for exaggerating the risks involved with refusing care. A 5-week-old child was brought to the emergency department with a 100.8° F fever. After examining the child, the emergency physician believed that a spinal tap and intravenous antibiotics were necessary. The mother refused. The physician explained the risks of refusing such treatment, but whether he cited a 5% risk of death or a 5% risk of meningitis is a disputed fact. After the mother's repeated refusal of further treatment, a social worker declared the child in "imminent danger." The State took custody of the child and the physician performed a spinal tap which showed no signs of meningitis. The child was returned to the custody of her parents the following day.
The child's parents then sued multiple parties, including the physician, whom they accused of conspiracy to deprive the family of their constitutional rights by grossly inflating the risk of refusing treatment in order to get the State to take custody of the child. While Idaho statutes provided immunity for physicians who report suspected child neglect or abuse, the Federal Court noted that if the physician knowingly exaggerated the risk of danger to the child, the statutory immunity would not apply and the physician could be held liable. The Court held that some of the defendants had violated the constitutional rights of the family as a matter of law and set the remaining issues, including the physician's liability, for jury trial.
How do physicians protect themselves?
1. Many patients leave AMA for reasons unrelated to their medical care. Address patient concerns if possible. For example, if a patient is unable to afford treatment, reiterate that finances are not taken into consideration for emergency care and offer to have the patient meet with a hospital financial counselor to make payment arrangements if they need hospitalization. If the patient doesn't have someone to take care of their animal at home, offer to call a neighbor or family member. If the patient feels well enough to leave, help the patient understand why allowing the proposed treatment is in their best interests. Inform them of the possible risks, even if they feel well. Give the patient articles to read if available. Document your attempts to mitigate the patient's circumstances.
2. According to one British study, many physicians could protect themselves by better documenting the AMA interaction.5 In this study, half of "self discharge" patients were under the influence of drugs or alcohol (raising issues as to their decision-making capacity). Prior to study intervention, none of the charts documented the patient's decision-making capacity and only 58% of the charts contained a signed AMA form.
3. A signed AMA form isn't essential, but it creates a "rebuttable presumption" that the patient was presented with and understood the information contained on the form. The patient must then present evidence to overcome the presumption that refusal of care was an informed refusal. If a patient refuses to sign an AMA form, the physician should note the interaction on the chart, and may even want to include a copy of the unsigned AMA form that was presented to the patient.
4. Give the patient the same medical care you would give any other patient with the same condition. It would be hard to defend a decision not to renew a patient's albuterol inhaler and prednisone if the patient left AMA and later died from an asthma attack. While discussing the case of Drummond v. Buckley, 627 So. 2d 264 (1993), the Mississippi Supreme Court stated that "Surely, it cannot be suggested that supposed medical professionals would withhold proper service because a patient … exercised his prerogative not to follow medical advice."
When patients refuse medical treatment, both the potential for bad outcomes and the potential for a liability increase. Taking the extra few minutes to communicate the implication of a decision to leave AMA with the patient and fully documenting your discussions may save the patient's life and also may save you many years in court trying to defend a lawsuit.
1. Hwang SW, Li J, Gupta R, et al. What happens to patients who leave hospital against medical advice? CMAJ 2003;168:417-20.
2. Jeremiah J, O'Sullivan P, Stein MD. Who leaves against medical advice? J Gen Intern Med 1995;10:4035.
3. Ding R, McCarthy ML, Li G, et al. Patients who leave without being seen: their characteristics and history of emergency department use. Ann Emerg Med 2006;48:686-93.
4. Copy of complaint can be downloaded at http://www.cir-usa.org/legal_docs/mueller_v_idaho_amcplt.pdf. Copy of decision can be downloaded at http://www.onpointnews.com/docs/taige.pdf. Accessed on May 3, 2007.
5. Henson VL, Vickery DS. Patient self discharge from the emergency department: who is at risk? Emerg Med J 2005;22:499-501.