Legal Exposure for ED When Overdose Patients Refuse Care
Someone overdoses on opioids and is brought to an ED unconscious. Naloxone is administered, and the patient wakes up — and immediately starts walking out of the ED.
“This is becoming a bigger issue,” says Christopher B. Colwell, MD, chief of emergency medicine at Zuckerberg San Francisco General Hospital and Trauma Center.
Colwell has seen many such cases in his ED recently. After they are revived with naloxone, overdose patients then refuse all care. One concern is that whatever the patient overdosed on, which often is unknown, will outlast the duration of the reversal agent. “So 20 minutes after they leave, they might go right back to being in a life-threatening situation,” Colwell explains.
For EPs facing this difficult situation, Colwell says “it all comes down to legal assessment of capacity.” The overdose patient may have capacity to make the decision, it is just not a decision ED providers agree with. “Now, you are dealing with a conflict. Do you let them make a decision that you are really worried will result in the patient’s death?” Colwell asks.
The EP must balance the patient’s right to make decisions with the knowledge that the decision he or she is making might be harmful. “You may have a strong suspicion something bad is going to happen. But the patient is free to make what you see as a bad decision,” Colwell says.
If the patient understands he or she could be disabled permanently or even die after leaving the ED, “we still worry, but essentially we are done,” Colwell notes. “From a medical/legal standpoint, that’s as complete as you can be.”
If the patient does not have capacity, that is an entirely different situation. “Then you have a responsibility — medically, ethically, legally, and morally to provide a safe environment for that patient until they do have capacity,” Colwell adds.
W. Ann Maggiore, JD, says, “it is always concerning if a patient absconds after an opiate overdose and a trip to the ED. The danger is that the patient looks like they are OK. Then, the [naloxone] wears off.”
If someone sues for malpractice later, documentation on two points becomes important, according to Maggiore:
- The patient was warned about the dangers of experiencing another respiratory arrest;
- The patient’s understanding of these risks.
“This can avoid a claim for failure to warn,” says Maggiore, an attorney at Butt Thornton & Baehr in Albuquerque. Maggiore also is a practicing paramedic and clinical lecturer in the University of New Mexico’s department of emergency medicine.
Overdose patients leaving the ED against medical advice (AMA) are “difficult cases,” says Ann Lambrecht, RN, BSN, JD, FASHRM, a senior risk specialist at Coverys, a Boston-based provider of medical professional liability insurance.
When the EP must decide between holding the overdose patient or allowing him or her to leave, there are a few practices that can reduce risks, according to Lambrecht:
• Ask another physician to assess the patient, make an independent determination, and document the findings. “At times, it may be possible to release the patient to a responsible adult who agrees to remain with the patient,” Lambrecht says.
• Create a protocol for AMA patients. This type of protocol should require documentation of the patient’s medical condition and decision-making capacity, the treating physician’s and other consultants’ determinations, opinions of any committee and courts of proper jurisdiction, available options, and final decisions.
• When appropriate, enlist hospital legal counsel to obtain a court order to hold the patient. “In some organizations, it is customary to engage the on-call administrator to assist in the decision to retain or release the patient,” Lambrecht says.
Patients are “not on an equal playing field to deliberate the merit of medical interventions,” says Edward Monico, MD, JD, assistant professor in the section of emergency medicine at Yale University School of Medicine. The responsibility lies with the ED provider to give enough information for the patient to make an informed decision. “If the fully informed patient wants to leave the ED, they have the right to do so,” Monico says.
Overdose patients leaving the ED are “not substantially different from other AMA scenarios,” Monico suggests. In all AMA encounters, EPs should document foreseeable risks of leaving prior to completion of an ED evaluation and treatment.
In the case of an overdose patient, this means making clear that the drugs ingested may have a half-life longer than the naloxone. Patients need to understand that this could result in respiratory depression after leaving the ED.
Still, even the best documentation on these points does not stop injured overdose patients or their families from suing. The plaintiff attorney can argue that the patient’s decision to walk out of the ED fell short of an informed decision. “That can be all that is needed to pursue a claim for liability,” Monico cautions.
The overdose patient can testify, “Had I only known what I was risking, I would have stayed for more treatment,” or “I did not have the ability to make that decision, and I was allowed to leave negligently.”
John Davenport, MD, JD, physician risk manager of a California-based HMO, says the EP’s best defense against these kind of statements is to “truthfully document that the patient was informed he or she may have a recurrence of overdose symptoms and die.”
Stephen Shows, JD, says refusal of treatment forms should include three items: that the patient was informed of the physician’s recommendation, the reason for the recommendation, and the risk of refusing the recommended treatment. Not all overdose patients are willing to sign such forms. “But the record should still be clear,” says Shows, a senior risk resource advisor for ProAssurance Companies, a Birmingham, AL-based healthcare professional liability insurer.
If the overdose patient leaves before the EP can discuss the risks, the ED record should clearly say so. Simply documenting “Patient left AMA” may be accurate enough. “But it’s not as defensible as ‘Patient left ED 10 minutes after [naloxone] was administered and before physician could explain the risks of leaving against medical advice,’” Shows explains. Recently, Shows defended a case filed by the estate of a 35-year-old man who left a hospital AMA, and later died from injuries after a vehicle struck him.
The patient was admitted voluntarily for alcohol detoxification and was compliant and cooperative, at least initially. Later, the patient became agitated, refused to accept medications, and at one point attempted to leave.
“Hospital employees convinced him to stay, but he later became adamant about leaving,” Shows says. The man signed a Release from Responsibility for Discharge Form. However, plaintiff attorneys argued the patient did not have sufficient capacity to sign such a form. However, the hospital’s defense did not rely only on the signed form as its only hope.
“Nurses and other witnesses provided testimony to demonstrate he fully appreciated the risks of leaving AMA,” Shows recalls. “The jury returned a defense verdict.”
One concern is that whatever the patient overdosed on, which often is unknown, will outlast the duration of the reversal agent.
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