EXECUTIVE SUMMARY

Malpractice litigation involving patients who leave EDs against medical advice (AMA) frequently allege the patient wasn’t fully informed. Documentation that can help the EP’s defense should include:

  • that the EP encouraged the patient to stay;
  • that risks specific to the patient’s condition were discussed;
  • specifics on what the patient was told.

A patient with a known 2.75 cm thoracic aortic aneurysm presented to the ED complaining of unusual heartburn. A CT showed that his aneurysm had grown by 1.3 cm in the previous nine months; there was no dissection or bleeding.

The EP contacted the on-call thoracic surgeon, who recommended that the patient be admitted for observation overnight or, if the patient wished, see his or her own surgeon the next day.

“The patient chose to go home, and was found deceased the next day of an autopsy-proven tamponade,” says John Davenport, MD, JD, physician risk manager of a California-based HMO.

The malpractice trial focused on two things:

  • whether the EP’s recommendation was appropriate;
  • whether there was informed refusal.

The ED chart only documented the recommendation and the advice to “RT ER if worse.” The EP testified that she told the patient of the significant risk of leaving the hospital, including death.

“But her chart and the patient’s family did not support her testimony,” Davenport says. After a large settlement, the EP also faced a hearing before her state medical board to determine if discipline was warranted.

“Patients leave AMA [against medical advice] for a variety of reasons: human frailty in making bad decisions, concern about cost of care, fear of learning something they don’t want to know, psychiatric issues, and others,” Davenport notes.

ED patients have a right to decline treatment, even if the decision might harm them. Edward Monico, MD, JD, assistant professor in the department of emergency medicine at Yale University School of Medicine, says, “All I can do as an EP is to inform patients of what I am thinking and why, and enable them the best I can to make an informed decision, even if I think that decision ultimately is wrong or dangerous.”

Informed Refusal

If a bad outcome occurs after a patient leaves the ED AMA, patients or family often claim they really didn’t understand the risks. Malpractice cases often hinge on whether the EP informed the patient of potential consequences of leaving AMA. “This is the concept of informed refusal,” Davenport says. EPs must tell the patient about any risk of death, serious injury, or significant potential complications that may occur if the patient refuses care.

Davenport says the easiest way to understand informed refusal is to consider what the ED patient would testify to in court. The patient must prove that, “Had I only been told of the consequences of my not following doctor advice, I would have certainly followed it, and thereby not been injured.” The most obvious defense for the EP is, “I did tell you, and you left anyway.”

“It’s very helpful if this is documented in the chart,” Davenport advises.

Such documentation recently helped an EP defend against a malpractice suit filed by a patient who left AMA, refusing a CT scan to rule out appendicitis. “The chart noted the patient ‘was told he risked death by refusing the CT,’” Davenport says. “The patient was readmitted with ruptured appendix, and had a prolonged hospital stay.”

Protocols and Templates

Monico likes to see EDs use a standardized AMA discharge protocol.1 “This ensures important steps are carried out,” he says, noting the protocol should include this information:2

  • a statement that the patient had decision-making capacity;
  • an explanation of the extent and limitation of the ED evaluation;
  • presenting signs and symptoms and their significance;
  • risks of forgoing or delaying the recommended medical interventions;
  • alternatives to suggested interventions;
  • an explicit statement that the patient is leaving AMA;
  • the patient was provided an opportunity to ask questions.

Robert Broida, MD, FACEP, director of Canton, OH-based US Acute Care Solutions’ risk management department, and chief operating officer of Physicians Specialty Ltd., a South Carolina-based captive insurance company, says a good informed refusal form is essential.

“This replaces the old AMA form, and can be used for refusal of exams, tests, procedures, admission, and transfer,” Broida says. The form documents that the patient has medical decision-making capacity, with a section clearly describing the risks and benefits.

“Some basic ones, such as ‘loss of life or limb’ or ‘access to specialty care,’ are commonly used. But it is best to add some disease-specific information that is pertinent to that particular patient,” Broida says, noting this documentation tends to be more legally protective. “Our group addressed this specifically in the setting of stroke.”

EPs may be sued after an adverse outcome regardless of whether tissue plasminogen activator is administered. “Patient teaching provided during the consent discussion could be critical in the defense of the claim,” Broida explains.

The ED group developed a standardized patient education tool and matching consent/refusal form, just for stroke patients, which includes very simple graphic representations of the risks and benefits.

“In this manner, the defendant physician can prove what was communicated during this stressful time for the patient and family,” Broida says.

REFERENCES

  1. Hwang SW. Agency for Healthcare Quality and Research. Discharge Against Medical Advice, May 2005. Available at: http://bit.ly/2hz8Fv1.
  2. Monico EP, Schwartz I. Leaving against medical advice: Facing the issue in the emergency department. J Healthc Risk Manag 2009;29:6-9.

SOURCES

  • Robert Broida, MD, FACEP, Director, Risk Management Department, US Acute Care Solutions, Canton, OH. Phone: (941) 960-1695. Email: rib@ed-qual.com.
  • John Davenport, MD, JD, Irvine, CA. Phone: (714) 615-4541. Email: Doctordpt@cox.net.
  • Edward Monico, MD, JD, Department of Emergency Medicine, Yale University School of Medicine, New Haven, CT. Phone: (203) 785-4710. Email: edward.monico@yale.edu.