Patients Leaving Against Medical Advice Create Liability Risk
Patients who refuse care and leave against medical advice pose significant liability risks to hospitals and other providers. There must be a protocol in place for addressing patients who wish to leave, and following up afterward.
• Avoid confrontations and respect a patient’s right to refuse.
• Offer alternatives to the care being refused.
• Carefully document attempts to contact a patient who has left, including unsuccessful efforts.
Patients who leave against medical advice (AMA) create dilemmas for physicians and staff who want to provide the best care possible, and they pose major liability risks and require extra attention.
Healthcare organizations must have policies and procedures in place that formalize how clinicians respond to a patient refusal, including careful documentation processes and follow-up.
AMA actually can involve several different scenarios, and each requires a different sort of planning and response, notes Kevin Klauer, DO, EJD, FACEP, chief medical officer for hospital-based services and the chief risk officer for Knoxville, TN-based TeamHealth.
The scenario that comes to mind first for most people is one in which the patient has been seen by a clinician and then refuses further care or certain types of care, he says. In this case, there has been an interaction with the physician or other clinician and there is the opportunity to counsel the patient about the possible consequences of refusing care.
The focus in that situation would be on educating the patient about why care is necessary, trying to learn why the patient is refusing, and trying to address those concerns, he says.
“But often, particularly in emergency medicine, you also have people who have gone through triage, and maybe tests have been ordered, but then the person leaves without saying a word to anyone,” Klauer says. “There is no informed refusal. They just leave.”
Once a patient is examined beyond triage and tests are ordered, a departure at that point might be classified as left without completing treatment (LWCT), Klauer notes.
There also are patients who have been through triage, but no tests have been ordered and no formal examination has occurred. These patients are usually categorized as left without being seen (LWBS), but Klauer points out that they interacted with the hospital.
“They haven’t been seen yet, but the facility has touched them. They signed in and then they decided to leave,” Klauer says. “All of these can be considered AMA, but they are very different scenarios that involve a range of responsibilities, obligations, and potential for liability or other unfortunate results.”
Within each of those types of AMA, there may be further breakdowns in terms of why the person is leaving, he notes. The patient may not want any care of any kind, or the refusal may be more limited — refusing the particular type of care being offered, for instance, but still willing to be treated. The reasons for refusing also may be wide-ranging, everything from worries about the cost to fear about pain or dying, or dislike of being touched, shots, surgery, or drugs.
“It really is more complex than some people give this discussion credit for,” Klauer says. “Those complexities need to be considered because they all need to be addressed differently.”
Cannot Write Patient Off
When patients leave without telling anyone, the hospital and clinicians do not have an opportunity to intervene in real time and obtain any signed acknowledgment that they refused care. But that doesn’t mean there is no further obligation or risk of liability, Klauer says.
“The tendency in a busy facility is to say that person left, so OK, let’s move on to the next person who does want our care. It shouldn’t stop there,” Klauer says.
There should be a formal process for two things, Klauer says. First, the hospital must reconcile any outstanding diagnostics, because if any tests were ordered, the hospital is still responsible for checking the results to be sure nothing serious was identified, he says. If so, the patient must be contacted and informed.
Klauer recalls a patient from several years ago who presented with chest pains, and an ECG was performed at triage. The physician had not yet seen the patient, but the patient decided to leave. The abnormal ECG results were conveyed to the physician and patient, who followed up at a different facility the next day. That is the proper procedure, he says.
“Sometimes the staff gets the results back and since the patient is gone already, they see no reason to pass them on to the physician. Those positive test results just fall by the wayside,” Klauer says. “There must be a protocol that says all test results are provided to the physician, who must act to notify patients about abnormal results even if they are no longer present at the facility.”
At some hospitals, the staff removes AMA patients from the tracking board and the electronic tracking system once they leave the facility. This is bad practice, Klauer says.
“It’s out of sight, out of mind. No one is aware that there are outstanding diagnostics for this patient, and no one is responsible for this patient anymore,” Klauer says. “My recommendation to risk managers is that you have a policy in place that no one can be removed from the tracking boards or electronic records until all outstanding diagnostics have bene reconciled. That is a critical action item to avoid the failure to follow up on results for people who leave before completing treatment.”
Reach Out After AMA
Second, the hospital must reach out to people who left and invite them to come back for care, Klauer says. The degree to which you try to convince them might vary according to what is known about the patient’s health and how much intervention already took place.
“Those efforts will be greater for those who had care initiated already, and they certainly will be greater when you have a positive result. There have been more cases than I can count where the patient initiated care [and] then decided to leave, and the test results came back positive,” Klauer says. “Those are the cases that are hardest to intervene in, because they’re not in front of you anymore, giving you a chance to convince them about the right course of action. You have to do due diligence in trying to find them, and with some patients that is not a simple task.”
Documentation is especially important when trying to contact patients who left AMA without discussing the matter or signing forms acknowledging their refusal of care, Klauer notes. Be sure to document every instance of trying to locate and contact the patient, including unsuccessful attempts.
Be specific, noting that someone called a certain phone number or sent an email to a specific address, and where you obtained that information. Note the result, such as the number being invalid or no one answering. If leaving a message on voicemail or talking to the patient, document what was said.
“What you often see in the record is only documentation of when the patient ultimately was contacted. That might be a day or two later, but in fact there might have been four or five attempts before that,” Klauer says. “Those attempts are very important to show you were trying to do the right thing for the patient. If the final discussion is the only one documented, it looks like you waited a long time. Or if there was no successful contact and nothing is documented, it looks like there was no effort at all to contact the patient.”
Even when the patient voices an intention to leave AMA but still is present, the physician and staff can face significant challenges, Klauer says. This can easily develop into a hostile confrontation, with well-meaning clinicians insisting the patient accept treatment or demeaning the patient’s choice to refuse, while the patient gets angry and perceives his or her rights are not being respected. It should never escalate to that, Klauer says.
“If a patient is difficult, angry, and upset, the patient can still have the medical capacity to consent and refuse. If they know what day it is, who they are, they understand the risks and benefits of what you’re offering and alternatives, they can leave. It is their right to leave,” he says.
“If they will allow you to have a conversation prior to leaving so that you might convince them otherwise, all the better. But you can’t detain a patient to have that conversation, unless you feel they do not have the medical capacity for informed consent and refusal.”
Klauer points out the informed consent documents also cover informed refusal. Whether someone wants to consent to treatment or refuse it, the ideal procedure is to document that decision in the same way, he says.
“If someone doesn’t want to be treated for chest pain, and you are worried and think they need a diagnostic evaluation for that chest pain, you should offer them the opportunity to discuss it, and talk about alternatives like not being admitted but following up with your own physician tomorrow,” Klauer says. “But you clearly state that our recommendation is to admit you because that is the best plan. Once the patient understands that and says, for whatever reason, that he or she doesn’t want that plan, you must respect that decision.”
Don’t Show Patients the Door
However, that does not mean abruptly ceasing all treatment. Klauer notes that, too often, physicians or administrators grow frustrated and take the refusal personally, responding with an almost spiteful cessation of care. They may say, “Fine, if you don’t want to be admitted, we’ll just send you home,” and then expedite getting the person outside the facility.
That is the wrong response, Klauer says. The patient’s decision to refuse the best plan of care must be respected, but the physician still can suggest a second best plan.
“‘If you don’t want our recommended care, can I follow up with your cardiologist tomorrow? Can I do X, Y, and Z with your treatment plan as long as I still discharge you? I’ll give you the same care I would give anyone else in this situation, but modified to what you want,’” Klauer says. “Even when patients don’t want the plan you recommend, they are still entitled to care.”
One of the most important things for clinicians to remember with AMA patients is to state that they are welcome to return for care, Klauer says. Actively refute any impression that patients have acted badly or made themselves unwelcome at the facility because they refuse care, he says.
“It doesn’t matter if the patient has been unpleasant in refusing care — your obligation is still to tell that patient he or she is welcome to come back at any time for further care,” he says. “There have been many, many malpractice cases where the patients said they didn’t think they were welcome and didn’t think they could come back, particularly when it was some negative interaction when they refused care.”
Failure to properly handle AMA patients brings significant liability risk, Klauer says. The basis for a malpractice lawsuit is an unhappy patient with a bad outcome, the result of many AMA encounters, he says.
“People who decided to present to a hospital and then decided to leave, all too often, did so because their expectations were not met or they had some kind of negative interaction, like a delay in care, that made them change their mind. They left unhappy,” Klauer says. “If they left unhappy, without a diagnosis and maybe with unresolved tests results, the consequences can be devastating for the patient and the hospital.”
Klauer notes that in such litigation juries will resist any implication that the resulting injury is the patient’s fault for leaving. The clinicians who offered care may feel strongly that they did their best and any poor outcome is strictly the patient’s fault for refusing what was offered, but a jury is likely see the hospital and physician as having a greater responsibility than an individual who may not have understood the implications of that decision.
That makes it imperative to handle AMA patients carefully, going beyond what might at first seem necessary for someone refusing care, Klauer says.
“It is very, very difficult to convince a jury of laypeople that it was the patient’s fault, and of course you would never say in those terms anyway,” Klauer says. “Trying to convince them that it was anyone’s fault but the hospital will be an uphill battle — very challenging.”
AMA Form Not Enough
Even when clinicians and administrators do their best to counsel a patient who wishes to leave AMA and have signed documents acknowledging that exchange, the patient sometimes still will sue the hospital, says Howard M. Merkrebs, JD, an attorney with the Rivkin Radler law firm in Uniondale, NY.
“The form in and of itself does not prevent a lawsuit. The lawsuit would not be dismissed on a motion of summary judgment by the hospital just because the patient signed the form,” he says. “If that were the case, there would never be any lawsuits in which the hospital has a signed form, and there certainly are.”
That does not negate the value of those documents, but they should not be the sum total of the hospital’s evidence showing efforts to provide care.
“The nurse can’t just say, ‘If you want to leave, here’s a form. Sign it and you can leave,’” Merkrebs says. “That’s a problem.”
As with any medical malpractice case, the best way to avoid liability is with documentation, Merkrebs says. That documentation can show that you did everything in your power to inform the patient and offer the best care available, and that it was the patient’s decision to leave. The patient may still sue, but that documentation is then your best defense, he says.
Establishing the patient’s decision-making capacity is a crucial element in the process, he says. If the physician suspects the patient is not legally competent to make a decision about accepting care, it may be appropriate to call in a psychiatrist for a consult, he says.
The documentation also should detail the discussion with the patient regarding potential risks from leaving AMA, Merkrebs says. Do not rely on a form’s general comment that “risks of leaving were discussed with the patient,” he says.
“The chart should reflect what was told to the patient about exactly what could happen if he or she leaves the hospital without the care you’re recommending,” he says. “If there are family members present, use them to try to convince the patient to stay and document that you made that effort.”
The biggest liability risk is posed in situations in which the healthcare professionals have an opportunity to explain the risks of leaving AMA, Merkrebs says. When a patient elopes without warning, it will be harder to prove that the hospital was negligent, he says.
“The hospital or medical facility is less likely to have liability in that situation. It is not up to the hospital to have a security guard standing at the bedside, preventing the person from leaving,” he says. “That would be too high a bar. A hospital has an obligation to keep an eye on people, but not an obligation to have a security guard on every hallway making sure nobody pulls out an IV and walks out the door.”
• Kevin Klauer, DO, EJD, FACEP, Chief Medical Officer for Hospital-based Services, Chief Risk Officer, TeamHealth, Knoxville, TN. Phone: (800) 342-2898.
• Howard M. Merkrebs, JD, Rivkin Radler, Uniondale, NY. Phone: (516) 357-3051. Email: [email protected].
Patients who refuse care and leave against medical advice pose significant liability risks to hospitals and other providers.
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