EDs are well aware of the legal risks posed by patients who leave against medical advice, or “AMA.” But the opposite scenario — patients who stay in the ED AMA — carries significant legal risks as well.
Robert N. Swidler, vice president of legal services at St. Peter’s Health Partners in Albany, NY, says that, generally speaking, patients who refuse discharge fall into two categories: clinical and social. If a patient doesn’t believe he or she is well enough to go home, “the obvious legal risk in such a case is malpractice liability if the patient was right, was pushed out without adequate treatment, diagnosis or instructions, and was harmed as a result,” Swidler says.
A typical social reason is that the patient has no home, or views a hospital room as safer, more comfortable, or less lonely than going home.
“While there is no great malpractice liability risk in escorting this patient out, there could be regulatory consequences or reputational consequences if pushing the patient out would endanger the patient,” Swidler explains.
There also could be civil liability if the patient is harmed when he or she is escorted out. “But in simple cases where the ED patient would not be harmed by being escorted out, the regulatory, reputational, and liability risks are low,” Swidler says.
If a frequent ED visitor is escorted out, and while crossing the street is hit by a car, the hospital is not likely to have any liability because it was not foreseeable. On the other hand, if the patient has limited mobility, is pushed out into cold weather, and dies from hypothermia, “the hospital would almost certainly be held liable,” Swidler notes. “The hospital should have foreseen that risk and guarded against it.”
Regardless of the reason for refusal of discharge, EPs sometimes take an adversarial approach, says Andrew Lawson, MD, FACEP, acting director of quality assurance and quality improvement for the emergency physician group at Mission Hospital Regional Medical Center in Mission Viejo, CA. “We need to be more collaborative, not only with our colleagues, but also with our patients,” he offers.
When patients object to discharge, Lawson finds these approaches helpful:
• Give patients some time, while checking in frequently to repeat recommendations. “Oftentimes, that will lead them to the conclusion that it’s OK to go home,” he says.
Lawson recommends giving patients a two- to four-hour window of time to reassure them that their condition is not worsening, and it is safe for them to be discharged. “As always, it is imperative to carefully document the reasons for discharge, and explain why you believe it is safe for the patient to go home,” Lawson stresses.
• Convince others on the team to support the discharge decision. This protects the EP legally and reassures the patient that everyone agrees with the plan, Lawson explains. For instance, the EP might speak to the patient with an ED nurse present, and explain that he or she just spoke with the patient’s primary care physician, who has agreed to see them the following day. Instead of curtly asking the patient to leave, Lawson uses language such as, “Let’s have you sleep in your own bed tonight,” and, “We certainly don’t want to complicate anything by having you get the flu or an infection in the hospital.”
Involving a hospitalist, who can explain that he or she agrees with the decision to discharge, and that the hospital is not the best place for the patient to be, is helpful. That way, Lawson says, “if you do have to go to the point of security escorting the patient out, you’ve got a lot of support.”
The hospitalist, nursing staff, and social workers won’t necessarily document this interaction. “It is important, in this high-risk situation, to ask them specifically to document the reasons why we are all in agreement that the patient can go home,” Lawson adds.
• Give the patient options. Social workers can arrange for taxi vouchers or shelters. Mission Hospital’s acute care clinic is open two days a week, specifically for patients seen in the ED. “It gives them another touchpoint and place to go,” Lawson says. “It’s been very helpful when somebody wanted to be admitted.”
• Reassess the decision to discharge. Lawson recommends using extra caution to make sure that clinical decision-making is as good as it can be.
“If a patient is refusing to leave, I feel that’s a breakdown in communication,” he says. “It should be seen as a red flag that something is not right.”
The same is true for clinical assessment. “You do not want to sign somebody like this out with unexplained abnormal vital signs,” Lawson warns. “Make sure they are documented as normal, or explain why they are not.”
In performing quality assurance for his ED group, Lawson has seen one abnormal vital sign come up consistently in patients who are discharged home but return to the ED and are admitted: tachycardia. “If patient has a pulse over 100, they tend to bounce back,” he notes.
Keith C. Volpi, JD, an attorney at Polsinelli in Kansas City, MO, served as a consultant for two cases that involved an ED patient refusing discharge. “The patient in the first experience was homeless, but savvy. During a cold Midwest evening, he determined that his sore leg required emergency evaluation,” Volpi recalls.
The patient made it clear he was aware of EMTALA regulations that require a medical screening exam. The EP evaluated the patient and determined that he required no treatment or consultation. After the EP entered discharge orders and the ED nurse informed the patient of this, the man insisted on admission.
The providers were sympathetic to the patient’s situation, but compassionately explained to him that he could not stay the night, as there was no medical indication for admission. They also offered to ask a social worker to find shelter for the patient for the night. “Unfortunately, the patient insisted on admission and required a bit of encouragement by hospital security before he would leave,” Volpi says.
Volpi informed the hospital that there was little, if any, exposure to the hospital or EP for the discharge decision. “It was clear that there was no legitimate medical concern and that there was no concern for immediate decline in health status.”
The second case involved a pregnant woman who presented with severely swollen lower extremities. Although she understood that edematous lower extremities are common late in pregnancy, she had recently read that the condition also is associated with a pulmonary embolus. The EP evaluated the patient and determined that the lower extremity edema was simply the result of the patient experiencing a busy day on her feet late in pregnancy. But the patient demanded further evaluation and testing. In response, the EP ordered a chest CT and a D-dimer blood test, both of which were negative. Nonetheless, the patient insisted on staying for overnight observation.
“Although no one but the patient believed that she was in any danger, the EP agreed to place her on 23-hour observation status,” Volpi says.
Volpi thought this was reasonable under the circumstances, based on the fact that the worst-case scenario (the woman suffering a pulmonary embolism at home) presented both the EP and hospital with significant legal exposure.
According to Volpi, in any situation, the decision to discharge against a patient’s wishes must balance the responsible use of medical resources as well as the risk and exposure associated with a negative event shortly after discharge.
In the example of the homeless patient, Volpi says that valuable resources would have been used in a situation in which there was no risk of a negative event shortly after delivery. Thus, the patient was discharged.
In the example of the pregnant patient, although there was only a small risk of a negative event shortly after discharge, that event was potentially threatening to two lives. Thus, the patient was admitted for a brief period.
Volpi says that anytime a patient is discharged from the ED, an EP should ask himself or herself this question: “If something terrible and unforeseen happens tonight to this patient, does the chart show that I did everything necessary to identify and prevent it?”
“That, of course, doesn’t mean that an EP must do all kinds of unnecessary testing for every patient,” Volpi offers.
It does mean that in those situations in which an EP is considering a test but decides against it, the EP should chart in detail why it was unnecessary and not required by the standard of care.
“A contemporaneous entry in the chart is always better than a great explanation developed after a lawsuit is filed,” Volpi says.
- Andrew Lawson, MD, FACEP. Acting Director, Quality Assurance & Quality Improvement, Emergency Physician Group, Mission Hospital Regional Medical Center, Mission Viejo, CA. Phone: (949) 400-5216. Email: email@example.com.
- Robert N. Swidler, Vice President, Legal Services, St. Peter’s Health Partners, Albany, NY. Phone: (518) 525-6099. Email: firstname.lastname@example.org.
- Keith C. Volpi, JD, Polsinelli, Kansas City, MO. Phone: (816) 395-0663. Email: email@example.com.