If a patient wants to leave the ED against medical advice (AMA), he or she typically has to sign the “AMA form.” But how much legal protection does this really provide the EP? “Very little,” without any additional supporting documentation, Marc E. Levsky, MD, warns.

“A case where the plaintiff left AMA is most defensible if there is a thoroughly documented medical record that shows a clear, informed consent process regarding the patient’s departure,” says Levsky, the vice chair of the board at the Walnut Creek, CA-based The Mutual Risk Retention Group, and an EP at Marin General Hospital in Greenbrae, CA.

Levsky advises including these notes in the ED chart:

  • The patient possessed the capacity to refuse further care;
  • The patient understood the possible consequences of his or her departure;
  • How the EP established that the patient demonstrated normal mental status, was not intoxicated, and was not psychotic or suicidal;
  • Which person discussed the possible diagnoses and recommendations with the patient;
  • How the patient responded to the recommendations;
  • Efforts made to convince the patient not to leave;
  • The patient was advised to return at any time if further care is desired;
  • A short-term follow-up plan.

“If the medical record for the AMA departure is appropriately documented, it is likely that the defense will prevail,” Levsky says.

Nan Gallagher, JD, is an attorney who has defended many medical malpractice claims alleging improper AMA discharges. She urges EPs to “be specific and verbose. A patient’s signature on an AMA form is not enough anymore.”

Gallagher encourages EPs to do more than simply complete the AMA form. She likes to see “a robust amount of details in progress notes and discharge summaries. Plaintiffs’ attorneys and juries are delving deeper.” They’re looking at the totality of circumstances — patient capacity, documentation, and quality of communication — before deciding if the EP properly discharged a patient.

“In our litigious society, there is a growing trend toward patients disputing the authenticity of the signatures on an AMA form and challenging the quality of informed consent communications,” Gallagher warns.

‘Informed Refusal’ Form

Laura Pimentel, MD, a professor at the University of Maryland, agrees that relying on the AMA form alone is a weak defense. A well-constructed narrative in the ED record is much more effective. However, she always has the patient sign the form if the patient is willing and able.

“A well-executed AMA or informed refusal form is helpful, though it certainly does not inoculate an EP from a claim or lawsuit,” Pimentel explains. “The worst form that I have seen is one that only focused on the risk side from the hospital’s perspective.”

She says the form consisted of only one sentence. The form stated that the patient acknowledges that he or she is leaving at his or her own insistence and against the advice of the attending physician. Further, the form reads that the patient assumes all responsibility for the consequences of the decision, with a blank line for the EP to fill in with the risks of leaving.

“Most people would write ‘death and disability,’” Pimentel says. “This was followed by signature lines for the doctor, the patient, and a witness.”

Instead of an AMA form, Pimentel notes that the University of Maryland’s ED uses an “informed refusal” form.

“In addition, I document my conversations and efforts to convince the patient to stay in my ED note,” she adds.

The informed refusal is designed to educate the patient about two things: the benefits of completing treatment, and the risks of leaving before treatment is complete. It asks the EP to document that the patient appears to have the capacity to make an informed decision.

“It is a better approach, because it is very patient-centered,” Pimentel argues. “The form is designed to convey the important information necessary to reach an informed decision.”

Here are some steps EPs can take to reduce risks when patients leave AMA:

1. Inform the ED patient of the risks of leaving, including worsening or complications of the acute medical condition, permanent disability, or death, when these are real considerations.

“I believe that an attempt to individually list every possible complication or poor outcome from the patient’s condition is weaker than the narrative that the patient was counseled about the potential for deterioration, disability, or death,” Pimentel says. If the EP lists all the possible risks that come to mind, but omits something that ends up occurring, she explains, “it opens the door for the plaintiff attorney to argue that the EP didn’t properly inform the patient.”

2. Determine that the patient has the capacity to make the decision to be discharged AMA.

If a patient is not capable of making a decision, then a provider cannot ethically or legally allow a discharge that may imperil the patient’s life or health, according to Gallagher.

“EPs must make a reasoned assessment of a patient’s decision-making capacity before deciding to proceed down this path,” she explains.

3. Educate the patient on the potential benefits of completing evaluation and treatment, and document the discussion.

“The patient should be given the opportunity to ask questions,” Pimentel advises.

4. Inform the patient that he or she may return at any time.

5. Give the best possible care to the patient before discharge, including recommendations for outpatient care and prescriptions.

“The old-time practice of not prescribing medications to patients who leave AMA is inappropriate,” Levsky says.

Instead, EPs should give patients appropriate treatment for their condition, within the limits of what was known about their condition at the time of departure.

“This shows a future reviewer or court that the physician did his or her best to care for the patient,” Levsky says. “It speaks against an adversarial relationship between the physician and patient.”

One of Levsky’s patients left AMA instead of being admitted or transferred, as the MRI needed for evaluation of his back pain with new leg weakness was not readily available. Levsky prescribed appropriate pain medications, intended to last the patient until his planned follow-up appointment on the next business day. In the interim, the patient returned to the ED with worsening symptoms, and was admitted.

“When he returned, he stated that he was grateful for the thoughtful care during his first visit to the ED,” Levsky notes.

6. Include nurses and family members in discussions with patients about the benefits of completing treatment and the risks of leaving.

“Failing to document the inclusion or presence of witnesses to the informed refusal discussion is a pitfall that may weaken the EP’s defense,” Pimentel explains, noting that nursing documentation of the discussions can help the EP’s defense. “Nurses may be persuasive and are good witnesses of your efforts to care for the patient.”

An ED nurse recently documented: “Patient states desire to leave AMA at this time. He states that Dr. Levsky told him that he might die from his condition if he leaves. He states that he must leave anyway due to personal matters, but will return when he can, and he appreciates care provided.”

While this documentation didn’t involve a litigated case, Levsky believes it would have helped the defense in the event a malpractice suit was filed.

“If the documentation is good, the plaintiff has little chance of success. It is relatively unlikely that the case will be litigated,” he adds.

7. Make an effort to convince the patient to stay.

Hospital social workers and family members sometimes can persuade the patient to complete treatment in the ED.

“They may be able to mitigate reasons that a patient wants to leave, such as concerns regarding childcare or other responsibilities,” Pimentel says.

8. Contact patients who leave AMA by telephone, and document the call.

Levsky typically does this eight to 24 hours later, depending on the time of day the ED staff saw the patient.

“If the patient left before being seen by a provider, we try to call them back within one or two hours,” Levsky says, which allows the EP to improve the relationship, to briefly reassess the patient’s condition, and to again offer further treatment.

Levsky recently saw an older woman who presented with generalized weakness.

“She appeared ill, but without focal signs of a source, and had a slightly elevated white blood cell count, but no other significant laboratory findings,” he recalls.

Levsky recommended admission, which she declined. During a follow-up phone call eight hours later, her daughter reported her mother had developed a high fever.

“I recommended that she return. She did return, and she was found to have meningitis,” Levsky says.

SOURCES

  • Nan Gallagher, JD, Kern Augustine, Mineola, NY. Phone: (800) 445-0954. Fax: (800) 941-8287. Email: NGallagher@drlaw.com
  • Marc E. Levsky, MD, The Mutual Risk Retention Group, Walnut Creek, CA. Phone: (925) 949-0100. Fax: (925) 262-1763. Email: levskym@tmrrg.com.
  • Laura Pimentel, MD, Vice President/Chief Medical Officer, Maryland Emergency Medicine Network. Phone: (410) 328-8025. Email: lpimentel@umem.org.