EXECUTIVE SUMMARY

The number of patients leaving against medical advice may be increasing due to financial factors and long wait times. Hospitals can face liability if these patients are not handled appropriately.

• Remember that patients are allowed to decline necessary care.
• Communicate thoroughly about recommend care.
• Use caution when involving family members.

Patients who leave against medical advice (AMA) can be frustrating to clinicians who want to provide the best care and to risk managers who worry that the patient will blame the hospital if the decision leads to a bad outcome. The best way to avoid potential liability is by ensuring that clinicians understand the need to communicate effectively and document thoroughly.

Involving the patient’s family members may not always be a good idea, and the risk manager should be careful about intervening.

AMA patients account for 0.8-2.2% of discharges at acute care hospitals in the United States, according to information from the Agency for Healthcare Research and Quality. Patients who leave AMA are twice as likely to die within 30 days, according to research from Montefiore Medical Center in New York City. The researchers found that 1.3% of AMA patients died within one month, almost twice the rate of planned discharge patients. (The study is available online at: https://bit.ly/2YSjtFs.)

A report from the California Office of Statewide Health Planning and Development showed that in 2017, an estimated 352,000 California ED patients left AMA, an increase of 57% from 2012. Long wait times and other forms of patient dissatisfaction often are to blame for patients leaving AMA. In California, ED wait times are higher than the national average, but in 2017, Maryland, New York, New Jersey, and Delaware had longer wait times, the office reported. (More information can be found at: http://bit.ly/325i0hy.)

Risk managers look at AMA patients as potential liabilities because they or their families may sue if the patient suffers from not accepting the offered care. The hospital may have a strong defense if the physicians and staff addressed the AMA patient appropriately. Even then, the hospital can face the costs of defending itself in court, plus the potential damage to reputation if the plaintiffs take their case to sympathetic media outlets.

The hospital’s defense will depend on whether clinicians and administrators communicated effectively with the patient, respected his or her wishes, and documented the exchange thoroughly, says Sharona Hoffman, JD, LLM, SJD, professor of law and bioethics, the Edgar A. Hahn Professor of Jurisprudence, and co-director of the Law-Medicine Center at Case Western Reserve University in Cleveland.

Hoffman also serves on the ethics committee of a hospital that addresses AMA patients, finding that their reasons for leaving include financial concerns, distrust of the medical community, disinterest after pain is relieved, and worries about police discovering a warrant for their arrest, among many other reasons.

The first thing for medical professionals to remember is that patients do have the right to leave, even if it clearly is not in their best interest, Hoffman says. Clinicians may try to persuade patients to stay and accept treatment, but ultimately they must respect the patient’s decision unless the patient is deemed legally incompetent, she says.

“People have an absolute right to refuse care and leave the hospital. There shouldn’t be liability from that action alone,” she says. “There may be costs because the patient will come back sicker, but the patient’s decision to leave against medical advice does not have to create liability as long as the hospital responds appropriately.”

The question of how much to try to change the patient’s mind can be difficult, Hoffman says. Clinicians should not just casually accept a patient’s refusal of care, especially when the consequences could be serious or life-threatening, but neither should they insist that the patient stay or browbeat him or her for making a bad choice.

Trying to understand the reason a patient wants to leave often is at the core of these interactions, she says.

“We also advise that you bring in social workers or the ethics committee, because it could just be a trust issue or the person may be cognitively impaired,” Hoffman says. “There may be a language barrier, or the person doesn’t understand the technical terms the doctors are using. If you bring in someone who can speak in more accessible language, maybe have more time and patience — that can be helpful.” A clergy member also may be brought in to help discuss the patient’s concerns, she says.

Risk managers should remind clinicians that the patient’s decision may be entirely reasonable from the patient’s perspective, even if it is not apparent to those who want to provide care. For example, a kidney disease patient may have seen a relative suffer the ill effects of dialysis and chooses to forgo that treatment. It can be difficult for clinicians to accept that choice when the standards of care clearly indicate dialysis, but they are not the ones who must accept the potential consequences, Hoffman says.

Interaction with a patient who wants to leave AMA must be thoroughly documented, Hoffman says, with detailed accounts of what was said to the patient and the patient’s response. A cursory “advised the patient to stay but he refused” is insufficient. Liability can arise when the documentation does not show that hospital staff made a reasonable effort to explain the need for care and accommodate the patient’s concerns, Hoffman says.

“Ultimately, if the patient says ‘I can’t afford this anymore’ or ‘I have kids to take care of,’ or whatever the reason is, the hospital should be protected as long as the record illustrates that exchange,” she says.

Another difficult issue is just how much to push the patient to change his or her mind, and how long clinicians should spend on the effort. There is no bright line that defines too little or too much, but Hoffman says there should be a reasonable effort to convey the care team’s advice and to understand the patient’s objections.

However, it is clear that directing a single doctor to engage the patient in one conversation is not enough, she says.

“If they appear to be mentally competent, and you have brought in others, like clergy members or social services, to talk to them but they still refuse care, then there is a point at which you have to be satisfied that you have done all you can,” she says. “You do want to have more than one conversation and feel confident that they are mentally competent.”

Often, there is a gray area in which you are not sure if the patient is mentally impaired. In those cases, you may have to talk to family members to get a better assessment of the patient’s ability to make decisions, she says. They can sometimes be difficult to track down. Involving family members may introduce new complications to the situation, she says.

Particularly when the patient appears competent to make care decisions, it can be a mistake to involve family members, Hoffman says.

“Involving family members can actually complicate things,” she explains. “You might have a Jehovah’s Witness who absolutely refuses blood transfusions, but the family members don’t agree with the religion. That can lead to a big hullabaloo that complicates everything. Even if the family members are on your side, so to speak, the competent patient has a right to refuse care.”

Similarly, it might not always be a good idea for the risk manager to get involved, Hoffman says. The risk manager should be involved if, for example, family members are disagreeing with the patient’s decision and threatening to sue the hospital if the patient is allowed to leave. But in other situations in which the patient is simply not agreeing to the recommended course of care, it might be best for the risk manager to stay out of it, she says.

The risk manager may, consciously or unconsciously, urge the patient to do what minimizes the potential liability for the hospital, she says. That is not necessarily in the best interest of the patient.

“We often find that involvement by the risk manager complicates matters,” Hoffman says. “If they do get involved, they should remember that there are legitimate reasons for patients to decline care and leave AMA. The risk of liability should not always be the first and foremost concern when it comes to respecting a patient’s decision.”

SOURCE

• Sharona Hoffman, JD, LLM, SJD, Professor of Law and Bioethics, Edgar A. Hahn Professor of Jurisprudence, Co-Director, Law-Medicine Center, Case Western Reserve University, Cleveland. Phone: (216) 368-3860. Email: sxh90@case.edu.