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More patients are leaving EDs against medical advice (AMA), and signed forms will not necessarily prevent malpractice lawsuits. This documentation makes lawsuits more defensible:
The number of patients leaving EDs against medical advice (AMA) is rising dramatically, according to a recent report.1 About 352,000 California ED visits ended before their medical care was complete in 2017, an increase of 57% since 2012.
“We have seen a significant increase in the number of patients who are leaving AMA,” reports Matthew DeLaney, MD, associate professor and assistant residency program director in the department of emergency medicine at UAB Medicine in Birmingham, AL. This is likely due to longer wait times.
AMA discharges can be “quite a dangerous situation, both for the patient and the provider,” says Christopher B. Colwell, MD, chief of emergency medicine at Zuckerberg San Francisco General Hospital and Trauma Center.
The potential for malpractice litigation exists anytime an adverse event occurs after an ED visit. “This potential increases when the encounter is not viewed by the public as ‘routine,” says Robert Broida, MD, FACEP. An AMA discharge is a prime example of this. “The three pillars of protection against patient refusal suits are a positive, understanding, and caring attitude; excellent communication; and proper documentation,” says Broida, COO of Physicians Specialty Ltd.
For patients leaving AMA, a signature on a form “is icing on the cake. But the other pillars must be present,” Broida stresses. The best way for emergency physicians (EPs) to avoid AMA lawsuits, says Broida, “is to understand that this is always going to be a part of our practice and to build proactive risk reduction techniques into your everyday routine.”
An EP offers a carefully considered recommendation: Further evaluation, or hospital admission, is needed. The patient’s response: “No, I really just want to sleep in my own bed tonight.”
This patient is “likely to be perceived as difficult,” says Jay M. Brenner, MD, FACEP. “These negative, subjective feelings can lead to litigation.” Most EPs are committed to shared decision-making, says Brenner, medical director of the ED at Upstate University Medical Campus in Syracuse, NY. When the patient’s reasoning seems questionable, though, EPs worry about both the medical outcome and the possibility of litigation. Some turn to empty threats, warning that insurance will refuse to cover the ED visit if the patient leaves AMA. “This is a myth and can be construed as coercion,” Brenner cautions.
Brenner says even handing the patient an AMA form to sign can create animosity: “It may stigmatize the patient such that they are less likely to return for further treatment.”
There are some factors making a malpractice claim involving an AMA discharge more defensible:
• Good documentation showing the patient had decision-making capacity. “What it really comes down to, for us in the ED, is determining whether a patient is able to make rational decisions,” Colwell says. Plaintiff attorneys can find many reasons to argue the patient lacked capacity (medical conditions, dementia, drugs, and alcohol among them). “There isn’t any one true objective measure or test we can do that legally defines capacity,” Colwell explains. “It comes down to the EP’s judgment.”
Many ED charts address the issue of capacity sparsely: “Alert and oriented × 3,” or “Awake and repeats my instructions.” This is not enough to refute an allegation that the patient was confused, intoxicated, or otherwise unable to make rational decisions. “You can be oriented and still not have capacity,” Colwell notes. “People can sign a form, but not have capacity.”
Nursing notes such as “the patient is acting confused” or “doesn’t answer questions appropriately” can contradict the EP’s charting. This is very problematic for the defense. “Statements like this in the nursing notes need to be directly addressed before signing someone out AMA,” Colwell cautions.
Also problematic are comments that make it seem the EP was angry at the AMA patient, such as “Patient continues to be very difficult, and won’t do what I tell him.”
“This is not a good look for the jury. The jury will then question the EP’s decision-making,” Colwell says. Simply noting that the patient “understood” offers little legal protection, according to DeLaney, who offers this example of good documentation as to capacity: “The patient is clinically sober, free of distracting injury, appears to have intact reason, insight, and judgment. In my view, the patient can make decisions.”
• Evidence that the EP encouraged the patient to stay. Finding solutions to practical problems is the safest approach, Brenner says: “Patients are more likely to heed your advice if you truly understand their perspective and respect them as an individual.”
If a chest pain patient wants to leave, DeLaney asks if they would be willing to stay for additional cardiac biomarkers. If the answer is no, he offers to arrange an appointment to see a primary care physician or cardiologist. If the ED chart is reviewed later, it reflects that the EP was “willing and able to come up with an alternative plan,” DeLaney says.
One patient with septic arthritis and a history of IV drug abuse was about to leave AMA. DeLaney asked why and learned the true reason was worry over what might happen to the patient’s dog if the patient was hospitalized. “We were able to call a neighbor who agreed to take care of the dog, and the patient agreed to stay in the hospital,” DeLaney recalls.
• Documentation that the patient knew it was possible to return to the ED anytime. A patient with intact medical decision-making capacity has a right to refuse any evaluation, test, or procedure. “Patients exercising that right should not be automatically perceived as confrontational,” Broida says.
It is important to convey that the patients’ wishes are respected and that the ED remains available to care for them should they change their minds, Broida adds.
Of 194 ED patients who left AMA, 31 returned to the ED within 72 hours, according to the authors of a recent study.2 Of that group, 15 were found to have significant clinical findings, including pulmonary embolism and further progression of cardiac ischemia. The findings were not too surprising to David Jerrard, MD, the study’s lead author: “It just verified that these were patients we were concerned about. We wanted to continue the workup, and for the vast majority, to admit them to the hospital.” Notably, 25 of the AMA patients reported reluctance to return to the same ED for fear of embarrassment. Jerrard routinely reminds AMA patients that the ED is always open, and they can come back at any time.
• Evidence showing that patients and/or family truly understood the risk of leaving. Patients cannot be expected to possess the same level of medical knowledge as ED providers. “It is essential to clearly communicate the importance of medical tests or treatment when these are believed necessary,” Broida advises.
The ED chart should reflect that the EP “had a fairly involved discussion with the patient on the risks they face should they leave,” says Jerrard, an associate professor of emergency medicine at University of Maryland School of Medicine.
Ideally, nursing and physician notes agree on this point. “It is a very tough case for the plaintiff to win when all of the clinicians chart the risk/benefit discussion and the ED’s desire to care for them,” Broida says.
• Evidence that the EP did everything possible for the patient. “EPs should do whatever possible to limit bad medical outcomes of patients leaving AMA,” DeLaney says.
Some EPs worry that if they arrange care outside the ED for an AMA patient, it increases legal risks. The opposite is true, says Laura Pimentel, MD, clinical professor in the department of emergency medicine at University of Maryland School of Medicine. The EP facing an AMA discharge will reduce risk, she says, “by arranging the most effective and expeditious outpatient care possible.” Well-documented attempts to make a follow-up appointment, answer questions, or provide medications are good examples. These efforts are not always in the ED chart.
“It is important that the medical record reflects the sincere efforts of the physician to continue to care for the patient even if the patient insists upon leaving,” Pimentel stresses. DeLaney says statements like this can help the ED defense team: “I offered to provide more pain medication to the patient. I asked the patient to stay in the hospital for serial abdominal exams. I offered to perform an ultrasound instead of a CT scan. I discussed these concerns with the patient’s daughter, who is at bedside. She cannot convince the patient to stay for further evaluation.”
• A good AMA form. A shared decision-making approach goes beyond just signing an AMA form, Jerrard says: “That is really not sufficient to protect you from a legal standpoint.”
If the plaintiff’s expert finds a well-designed, completed AMA form in the ED chart, it could dissuade the attorney from pursuing a malpractice case that was not very strong to begin with. “But nothing is airtight,” Pimentel says. If the case is compelling, the form is not enough to stop a lawsuit, especially if the form was poorly executed.
“The worst example of an AMA form that I recall is one that was very minimal,” Pimentel says. The succinct form stated: “I acknowledge that I am leaving the hospital at my own insistence and against the advice of my attending physician.” The form included signature lines for the patient and a witness, but nothing else. Another problematic AMA form attempted to list every bad outcome one could imagine: death, heart attack, stroke, blindness, disability, paralysis, and more. “To me, that was too contrived and not at all customized to the patient’s actual condition and situation,” Pimentel says.
Some ED charts state, “Patient was told he could die if he leaves.” Better documentation, according to DeLaney: “I told the patient that if he leaves and has appendicitis, he could become critically ill, which could lead to disability or death.”
There are many ways the plaintiff attorney could bring the hospital into litigation involving an AMA discharge. “The plaintiff may use the actions or inactions of hospital staff that contributed to the patient’s decision to leave AMA.” Some examples: Failure of the hospital staff to recheck vital signs or perform neurological checks, or failure to follow up on orders placed by a provider at triage. If hospital factors contributed to delays in care or unacceptable waits, the hospital will “definitely be a named defendant,” Pimentel warns.
There always is a risk of a successful AMA lawsuit. The best way to prevent it, Broida says, “is proper care and documentation so the plaintiff attorney will choose not to pursue the case in the first place.”
Financial Disclosure: Kay Ball, PhD, RN, CNOR, FAAN (Nurse Planner), is a consultant for Ethicon USA and Mobile Instrument Service and Repair. The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor), Stacey Kusterbeck (Author), Jonathan Springston (Editor), Jill Drachenberg (Editor), Amy M. Johnson, MSN, RN, CPN (Accreditations Manager), and Leslie Coplin (Editorial Group Manager).