Patients Who Leave AMA: Understand Your Risks and Responsibilities
Patients Who Leave AMA: Understand Your Risks and Responsibilities
By Audie Liametz, MD, JD, Assistant Medical Director, Emergency Department, Chairman, Emergency Department Quality Improvement Committee, Winthrop University Hospital, Mineola, NY
Without question, any emergency department (ED) physician who has been practicing in just about any hospital setting has been faced with the patient who wants to leave against medical advice (AMA). In fact, probably sometimes, not too deep down, many physicians even hope that those occasional recalcitrant patients will ask to sign out, especially when the doctor is in the middle of a grueling night shift and the rack of "to-be-seens" seems unending. What better way to clear out the rack than to have a few sign out AMA? But emergency practitioners should be aware of the risks that the AMA patient may present, as well as their responsibilities to limit their liability and ensure the patient's best care.
While there are not many studies that have actually looked at the ultimate liability AMA patients present from a malpractice standpoint to the practitioner or institution, it is intuitively reasonable to assume that these patients do pose at least a moderate risk. The American College of Emergency Physicians (ACEP) and others consider AMA discharges to be high-risk events leading to malpractice litigation.1 These patients are usually disgruntled for one reason or another; their care has been incomplete, which does not permit the practitioner to get a complete picture of the clinical scenario; and it is questionable as to whether they will follow the advice you have given them. Of course, some may think that in the legal world of comparative negligence or contributory negligence that the practitioner is somewhat protected, but no physician should ever want to get that far in the discussion.
With AMA, physicians and nurses fear that a patient's condition will deteriorate as a result of incomplete treatment, and risk managers are concerned that the patient will suffer harm to themselves or to others. For these and other reasons, many hospitals have policies and procedures in place on how to deal with the AMA patient.2 Most hospitals have forms that the patient is requested to sign, and it is usually encouraged that a significant amount of time be spent with the patient who is contemplating AMA. In reality, the patient who is desirous of leaving AMA is generally not given the time that is needed to best protect both the patient and the practitioner/ institution.
For these reasons, it is prudent that the ED practitioner understand how best to deal with AMA. We will discuss AMA from the standpoint of informed consent, or more importantly, informed refusal. We also examine the concept of decisional capacity, go into some of the characteristics of the AMA patient, and finally, explain the medico-legal liability and the ethical obligations and responsibilities that the practitioner has to the AMA patient.
AMA vs. LWBS
First, it is important to make a distinction between AMA and leaving/left without being seen (LWBS). In one study, of 31,252 adult patients who presented during a one-year period, 3% left AMA, and 9% LWBS.3,4 The statistics vary based on type of hospital and patient population but it is generally found that the AMA rate is anywhere between 2% and 4%,5,6 and the LWBS rate can be as high as 9%. It is also noted that psychiatric in-patient units may experience AMA rates of 5% to 35%.5-7 LWBS almost always has to do with waiting times, and AMA has to do with the physician patient interaction.8
Informed Consent / Informed Refusal
Informed consent and informed refusal are the basic principles that guide the interaction between the patient and practitioner with respect to medical treatment and procedures. Informed consent is a process, not a form. This process includes the discussion between the physician and patient and the patient's agreement to the proposed intervention. Appropriate documentation of this interaction will help protect the physician in the case of the AMA patient.
In Schlondorf v. New York Hospital from 1914, Judge Cardozo stated, "[P]atients have a right to decide what is to be done to their own body and a physician who performs without consent may be liable for battery" and "[T]hose of adult years and sound mind can determine their own health care."9 This forms the basis of informed consent. The corollary to informed consent is informed refusal, which means that patients who refuse medical treatment or procedures must be informed of the consequences of that refusal.
The informed refusal process is as important, if not more so, than the informed consent process in the AMA patient, because failure to instruct the patient about the potential negative consequence of leaving and the potential determinant to his or her health can be a basis for subsequent litigation if a negative outcome should ensue.
There are three types of informed consent: express, implied, and implied-in-law. Express informed consent is the affirmative granting of authority to render treatment. Implied informed consent is derived from the conduct of the involved parties (e.g., when a patient holds out an arm to have blood drawn). Implied-in-law consent is for patients unable to give consent when emergency treatment is indicated to save life or preserve health.
There are two general standards of informed consent: the professional standard, which states that the physician is required to disclose to patients that information that a reasonable minimally competent physician would disclose; and the material risk standard, which states that the physician needs to disclose that which a reasonable patient would consider to be material in making a medical treatment decision.10,11
What Needs to Be Disclosed?
The practitioner needs to disclose "that which would be disclosed by the reasonably prudent MD under the same or similar circumstances" that is, the "reasonably foreseeable" risks and hazards of the proposed treatment, such as:
The alternatives to that treatment,
Results likely if the patient remains untreated,
Dangerousness of procedure, with its incidence of injury and degree of harm threatened, etc., and
The risk of NOT having the procedure.
There are exceptions to informed consent, as in the case of:
An emergency where
Consent is not practical,
The patient is incompetent,
No alternative decision maker is available, or
In the case of the reasonable prudent patient, where the patient had knowledge about the risk or would have undergone the procedure even without informed consent;
Common knowledge-that is, any reasonable person has knowledge about the risk;
Waiver-the patient indicates desire to not want to know; and
Therapeutic privilege-where the physician decides it is in the best interest of the patient (Caution: You need an expert to testify that "almost no one could handle this information" and that the physician was justified in using the therapeutic exception).10
As with informed consent, informed refusal is a process, not simply a signature on a form. The practitioner must:
Make a determination of decisional capacity;
Deliver the appropriate information, including risks of refusing treatment; and,
Most importantly, document the process.
Simply because a patient elects to leave AMA does not mean that he or she is always entitled to do so. In fact, there are situations in which the practitioner is mandated to override the patient's refusal to stay (i.e., not permit a patient to leave AMA), such as when the patient is: expressing suicidal ideation, lacks decisional capacity, is a danger to others, or poses a public health risk (e.g., active tuberculosis and refusing treatment).
Decisional Capacity
The most important factor in determining whether a patient can leave AMA is deciding if he or she has decisional capacity. Capacity is an essential element in the process of informed consent and informed refusal. It involves the concepts of competency and capacity. Competency is a legal term, and technically, a patient is competent until a court says otherwise. If the patient is deemed incompetent, the court then appoints a guardian. Capacity is a decision that is made by a physician and is a subjective determination based on an evaluation.
Decision-making capacity refers to a patient's ability to make an authentic choice. It reflects cognitive and affective functions, which are clinically manifest in intellect, memory, judgment, insight, language, attention, emotion, calculation, and expressive and receptive communication skills.5 The patient must be able to receive information; process and understand the information; and evaluate, deliberate, and then articulate and communicate a decision.5,12
In addition, there is a "sliding scale" of decisional capacity ranging from those with complete capacity (i.e., the adult with normal mental status), to those with some capacity (i.e., patients at the end of life with metabolic abnormalities, disorientation, or early dementia), to those with no decisional capacity (i.e., the comatose patient, infants, and the profoundly mentally disabled). It should be noted that intoxication, whether influenced by drugs or alcohol, is NOT an absolute bar to capacity.
Some have even argued for a flexible standard when it comes to decisional capacity, such that as the risk of harm increases, the criteria for decisional capacity should increase and become more stringent.13
When faced with this capacity issue, the practitioner should use a stepwise approach, as follows:
1. Ensure the ability to communicate.
2. Correct reversible environmental, metabolic, mental and physical challenges to capacity.
3. Utilize standardized tests of competency, when appropriate.
4. Survey patient goals and values using open-ended questions about the choices (including risks and benefits), and alternatives (including the option not to treat), and consequences.
5. Communicate with the patient and his/her health care advocates, if present.
6. Document essential elements of capacity or its impairment in the medical record.
Sometimes there exist true barriers to a patient's decisional capacity, such as: status as a minor; advanced age or dementia; intoxication and/or psychiatric conditions; the patient in extremis; cultural or language barriers; physical communication impairments; severe pain; and organic disease states.5 When a patient's capacity is impaired, there is a hierarchy of who makes the decisions for the patient: Spouse, then children, then parents, and then siblings. If none of these exist, the court will appoint a guardian for the patient and will use the legal term "substituted judgment" to have someone act in a way that is deemed in the best interest of the patient.
AMA Characteristics and Myths
Most patients believe that the insurance company will not pay for their visit if they leave AMA. This is a myth; however, insurance may not pay for a repeat visit for the same symptoms.14
Multiple studies have shown that there are certain characteristics of the AMA patient. These patients are generally younger males, the uninsured, those with past histories of leaving AMA, those with histories of drug or alcohol abuse, and those with psychiatric diagnoses.4,5,15,16 With respect to inpatient AMAs, there also seems to be a correlation with dates of issuance of welfare or relief checks, and there is a preponderance of AMAs during the evening and night shifts. As far as the provider relationship, there is a direct relationship between the failure of establishment of a supportive provider-patient relationship and increased AMA rates and a failure to orient patients to the hospitalization.5
It is also seen that AMAs have higher death rates, worse health outcomes, higher rates of future admission/ readmission, longer subsequent stays, and higher resource utilization.5,7,17,18 One study revealed that subjects who left AMA were significantly more likely to have an emergent hospitalization within the first nine days compared with subjects who LWBS. During the 30-day follow-up period, subjects who left AMA were significantly more likely to return to the study ED and be emergently hospitalized (4.4%) compared with those who LWBS (2.6%).4
There are a number of reasons that patients choose to leave AMA, including:
Noncompliance with exams, tests, procedures;
Family pressures/responsibilities;
Drug/alcohol dependence;
Feelings of panic;
Personality disorder;
Preference for treatment elsewhere;
Psychotic behavior;
Phobic feelings; and
Other reasons (e.g., financial concerns, anger, disagreement with the treating physician, fear of expense, fear of pain, and fear of serious diagnosis.5,6,15
A study conducted at the medical service of a Canadian urban hospital found that patients left due to personal or family matters, feeling well enough to leave, dissatisfaction with treatment received, feeling bored or fed up, dislike of hospitals in general, and miscellaneous other reasons.6
The top diagnoses of the AMA patient were found to be: nausea and vomiting, abdominal pain, nonspecific chest pain, alcohol-related mental disorders, headache, including migraine, other lower respiratory disease (e.g., dyspnea, lung abscess, and so on), other connective tissue disease (e.g., rheumatism), spondylosis, intervertebral disc disorders, other back problems, other nontraumatic joint disorders (e.g., arthropathy, joint effusion), and asthma.4
Medico-legal Risks of AMA
Gregory Henry, MD once said that one of the major purposes of the patient chart is to turn the white paper into green money for the practitioner and hospital, and that it can also be said that the plaintiff's attorney has the same goal in mind; that is, to turn the white paper of the chart into green money for himself and his client.14 The practitioner must be aware of this and do all that is possible to limit liability exposure and best serve the interests of his or her patients.
It has been estimated that 1 in 300 AMA patients will file a lawsuit.2 It is generally felt that these suits fail because courts are not sympathetic to those who refuse medically recommended treatment. However, the best way to protect oneself down the line is through appropriate, contemporaneous documentation in the chart. Doing so can provide partial or complete protection from a lawsuit.14,19
So why are these claims brought? Usually, it is due to the haste; the busy ED practitioner fails to do what needs to be done in the AMA case. This may be due to the fact that the AMA form was given by a nurse or physician's assistant with no physician involvement; the patient was not warned about his/her specific medical condition and the risks of leaving AMA; there was inadequate documentation of the process; no family involvement in the process; questionable medical competence of the patient; inappropriate aftercare instructions; or any combination of the above.20
It has been shown that, for the most part, physicians typically do NOT document assessments of capacity in AMAs.7 In one study, AMA documentation was noted in 82% of cases reviewed; however, only 23% included documentation regarding the patient's decisional capacity.5,21 This failure to document capacity is often the basis of a plaintiff's verdict in AMA cases.
How to Limit Liability
So what is the best way to limit one's liability? Simply put, the single best way is by proper documentation in the medical record-regardless of the extra time required. In fact, a Georgia case demonstrated that documentation could be an issue in refusal of care. The court said that "failure to make a notation of such an important event as refusal of necessary treatment casts doubt upon... contention that it did in fact occur."22
In addition, most institutions have forms releasing hospitals and providers from liability. The practitioner should be aware that these boilerplate forms have been deemed invalid and against public policy.5 It is therefore recommended that in addition to having the patient sign the standard form on the chart, the physician should spend the brief amount of time necessary to write out the AMA language and have the patient and witness(s) sign the note.
It is not too difficult to document the basic elements of an appropriate AMA discharge, including:
1. Decisional capacity;
2. The physician's opinion regarding why the patient should stay;
3. The physician's ongoing concern about the patient leaving;
4. The informed refusal, including possible outcomes and alternatives;
5. Family who are present and aware of the condition;
6. Any other efforts: i.e., family, social work, nursing supervisor involvement, etc.; and
7. Signatures from the patient and witness(es).20 (See Table 1 for a sample AMA statement.)
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To reiterate, when a patient refuses care, the wise practitioner can and should:
1. Ascertain adequate decisional capacity;
2. Assess patient's values and application to the situation at hand;
3. Address the patient's concerns;
4. Inform the patient of the risks of refusal of care;
5. Involve other parties, when appropriate (family, social work, patient advocate);
6. Consider alternative treatment(s);
7. Provide appropriate care and follow-up information, when possible;
8. Avoid punitive statements and scare tactics;
9. Document the informed refusal discussion and outcome; and
10. Consider telephone follow-up.5,23
Ethical Considerations
What are the physician's ethical obligations? For example, how does the physician respect patients' choices and prevent harm? What are the physicians' obligations to their patients who leave with inadequate treatment plans or no treatment at all? When should the physician question the decision-making capacity of the patient who makes the AMA decision? As a hypothetical, does the debilitated, dependent, yet competent patient have the right to return home to an unsafe situation?
Physicians are faced with two confronting ethical obligations: the duty to promote a patient's well-being and protect them from harm, and the duty to respect the wishes of the patient. The viewpoint on this has changed from 100 years ago, when it was felt that the patient should be obedient to the wishes of the physician. Most recently, in 2001 the American Medical Association's Principles of Medical Ethics state that, "A Physician shall respect the rights of patients."13
However, to understand these rights we need to understand that the decisions of patients are different than what drives the decisions of physicians. The patient's decisions are often driven by their personal values and their broader interests, whereas, by and large, the physician's decisions are driven by well-defined medical goals. The physician has the overall responsibility of promoting patients' welfare, beneficence (while respecting their autonomy), serving the patient's self-defined best interests, maintaining dignity, and providing objective assessments of harm and benefit.7
In making a proper assessment, the physician should identify the patient's compelling reason for leaving. Is there an ill or demented spouse alone at home? Are there cultural or religious requirements that they perceive cannot be met while hospitalized? Is there a concern about loss of employment? What about an important family obligation that needs to be fulfilled, such as a wedding or funeral? Are there overriding financial concerns? Only when you truly get to the source of the reason can you be the best assistance to your patient.
Some argue that there is an ethical obligation to treat a patient who has a high disease risk, where the treatment efficacy is high and the treatment risk is low. In contrast, there is an ethical obligation to NOT treat where the disease risk is low, the treatment efficacy is low, and the treatment risk is high; and then there are the permutations somewhere in between. (See Table 2.) Different scenarios will dictate the decisions; it is unlikely that there is an absolute right or wrong answer in this regard.
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So what should the physician provide for a patient who wants to leave AMA? From a best-practice standpoint, if possible: Give the patient a specific follow-up appointment at the time of departure; ensure that the patient receives appropriate prescriptions (or, preferably, the medications themselves); provide the patient with appropriate discharge instructions; and if feasible, a follow-up by telephone call would be desirable, since patients who leave AMA often lack a primary care provider and are likely to miss follow-up appointments.18
Summary
The AMA patient may, on first glance, be a relief to the busy ED practitioner. However, the future implications of the AMA patient may cause the physician to have unnecessary anxiety, lost sleep, fear of litigation, and concern about the ultimate welfare of the patient. The prudent physician would be wise to do all that he or she can to ensure the proper information has been communicated to the patient. Proper and appropriate documentation of decisional capacity and the other steps enumerated above will go a long way in protecting the practitioner from subsequent litigation, and also will protect the AMA patient from potential subsequent harm.
References
1. Dubov D, et al. Emergency department discharges against medical advice. J Emerg Med 1992;10:513-516.
2. Quinlan WC. Patients Leaving Against Medical Advice: Assessing the Liability Risk, J Healthc Risk Manag 1993;13:19-22.
3. Birnbaumer D. Risks of leaving against medical advice. Journal Watch, Dec. 7, 2007. (Covering Ding R et al., Acad Emerg Med, 2007;14:870.)
4. Ding R, et al. Uncompleted emergency department care: Patients who leave against medical advice. Acad Emerg Med 2007;14:870-876.
5. Marco CA. Against Medical Advice: When Should You Take "No" For an Answer? Presented at ACEP Scientific Assembly, Oct. 10, 2007, Seattle, WA.
6. Hwang SW, et al. What happens to patients who leave hospital against medical advice? Canadian Med Asso J 2003;168: 417-420.
7. Berger J. Discharge AMA ethical consideration and professional obligations. J Hosp Med 2008;3:403-408.
8. Audio-Digest Emergency Medicine, December 7, 2006; Vol. 23, Issue 23.
9. See Schlondorf v. New York Hospital, 211 N.Y. 125 (1914)
10. Curran W, et al. Informed Consent. In: Health Care Law and Ethics, 5th ed. New York: Aspen Publishers; 1998:246.
11. Meisel A, et al. Legal and ethical myths about informed consent. Arch Intern Med 1996;156:2521-2526.
12. See Moskop J. Informed consent in the emergency department. Emerg Med Clin North Am 1999;17: 331-334.
13. Carrese JA. Refusal of care: Patients' well-being and physicians' ethical obligations. "But Doctor I want to go home." JAMA 2006;296:691-696.
14. Audio-Digest Emergency Medicine, December 7, 2006; Vol. 23, Issue 23.
15. Jeremiah J. Who leaves against medical advice? J Gen Intern Med 1995;10;403-405.
16. Franks P, et al. Discharges against medical advice: Are race/ethnicity predictors? J Gen Intern Med 2006;21:955-960.
17. Outcomes/Effectiveness Research, Leaving Hospitals Against Medical Advice Puts Heart Attack Patients at Substantial Risk for Rehospitalization or Death Within 2 Years, Agency for Healthcare Research and Quality, May 2008; at http://www.ahrq.gov/research/may08/0508RA16.htm.
18. Saitz R, et al. The impact of leaving against medical advice on hospital resource utilization. J Gen Intern Med 2000;15:103-107.
19. Bonner S. Reduce risks of patients who leave the ED. ED Management 1999;11:75.
20. Leaving Against Medical Advice, at www.nbgh-er.com/LEAVING_AGAINST_Medical_Advice.doc, or http://www.nbgh-er.com/Riskmanagementpage.html.
21. Seaborn MH, et al. Discharges against medical advice: A community hospital's experience. Can J Rural Med 2004;9:148-153.
22. See Kirby v. Spivey, 307 S.E.2d 538, 539 (Ga. Ct. App. 1983).
23. Strinko JM, et al. Reducing risk with telephone follow-up of patients who leave against medical advice or fail to complete an ED visit. J Emerg Nurs 2000;26:223-232.
Emergency practitioners should be aware of the risks that the AMA patient may present, as well as their responsibilities to limit their liability and ensure the patient's best care.Subscribe Now for Access
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