Photo Credit: Andrey Zhuravlev
Patients are allowed to make their own medical decisions even if their physicians don’t agree with their choices, but try to intervene before a patient leaves against medical advice (AMA).
The most essential underpinning of modern medical practice is that, unlike the paternalism of the past in which doctors gave unopposed orders, patient autonomy matters.
Put more bluntly, patients have the right to make poor medical decisions. This goes straight to the situation in which a patient is leaving against medical advice. The basic rule is that a competent patient who knows the risks of leaving can leave. The practitioner or facility will not be liable for the poor consequences of that decision. To force a competent patient to stay or to impose unwanted care on them, even with the most beneficent of motives, could constitute false imprisonment or battery.
The first issue for the doctor is making sure that the staff keeps them aware of any developing AMA situations and that if they are unable to speak to the patient at the time that the patient is instructed that they will do so as soon as possible.
The next point is that not everyone who wants to leave AMA is just being unreasonable. The most important question, as simple practicality and as part of being a fiduciary for the patient’s welfare, is therefore “Why do you want to leave?” The reason may actually be that the patient is uninsured or fears losing their job if they don’t get to work on time or is the sole caretaker of a child or is simply terrified.
The doctor is not required to solve every problem but should offer any alternatives that will make it possible for the patient to stay. The only offset, is that the doctor cannot give inadequate care at the patient’s demand. However, doctors must not tell patients that if they leave AMA that their insurer will refuse to pay for the care they did get. It has long been adjudicated that insurers may not avoid paying for care already rendered based on the circumstances of the discharge.
There is also the countervailing issue of the circumstances of the visit, and these go to potential liability for the doctor or facility. Leaving AMA means that the patient was actually evaluated and offered a medical opinion. Leaving without being seen in a timely manner or leaving without being informed of results in a timely manner, though, go to practitioner or facility negligence. Obviously, in a busy ER patients may not be seen or informed according to their preference but a patient who leaves because they were not dealt with in a reasonable timeframe will have a case if they suffer harm as a result.
Capacity Vs Competency
But let’s say that the patient was seen appropriately and really just does not want to stay for the proposed care. What are the issues to be considered and the steps to be taken for the doctor to avoid liability?
The first matters will be capacity and competency. Capacity is the basic legal standing to engage in a particular undertaking. An adult or an emancipated minor will be presumed to have capacity. Capacity is the floor and competency is the ceiling. Competency goes to whether someone can actually make a reasonable decision under the circumstances. If they cannot, a practitioner or facility should not allow them to leave.
Capacity is a fixed issue once someone has reached legal status unless it is removed, as by adjudication that an older adult needs a conservator. Competency, though, can change, particularly in an ER, which deals with people who are injured or acutely ill or intoxicated. It may be temporarily lost due to conditions such as blood loss or high fever or inebriation and then return when the condition is treated or resolves naturally. In those situations, the patient can be prevented from leaving while substituted consent (contacting a relative, two physicians’ approval) is obtained because they cannot grasp the true gravity of their condition and how much they need care.
If there is a question about competence a psychiatry consultant should be called, and the doctor may rely on its assessment. However, merely disagreeing with what the doctor suggests does not show a lack of competence to decide to leave.
OK, so let’s assume that a patient who is insisting on leaving has capacity and is competent. What’s next? The patient must be informed of the risks and benefits in the situation and the process of doing so must be documented.
The Documentation Process
How to do that documentation has two camps of opinion.
Some defense attorneys suggest only saying that “risks and benefits were reviewed”. However, that approach limits the doctor, when they are deposed in a lawsuit or in front of a disciplinary panel and cannot remember the actual case, to claiming that they mentioned dizziness to the patient who then left and got dizzy and fell down the stairs and broke their femur and is now claiming that dizziness was never mentioned.
Most injuries due to untreated conditions will occur in expected ways. Listing the major points covered but noting that what was discussed “included but (was) not limited to” these points lock the doctor in on essential points, but allows room in future testimony.
This then brings us to the facts the patient needs to know. The legal term here is “material”, meaning what a reasonable person in their position would consider significant to their decision.
The liability point will be that the patient leaving AMA is only negligence on their part as a block to their case or an offset of damages, or even an assumption of the risk as an affirmative defense, if they knew what the hazards of doing so were.
For example, in a New Jersey case a patient who miscarried after experiencing abdominal pain, vomiting, and diarrhea wanted to go home to her family. She was told that she would have to sign out for AMA because of the recent miscarriage and did so. However, she was not told that she had an elevated white count and a fever that indicated a possible persistent infection. At home, she suffered a ruptured appendix with peritonitis. She was permitted to sue because while issues associated with leaving AMA after a miscarriage had been adequately discussed the potential consequences of a separate infectious process had not been. Similarly, in an Alabama case, the court found that just telling a patient “you could die” as a general statement was not sufficient even though the patient then did die after leaving AMA.
The doctor therefore wants to be specific and explicit on the important clinical facts. This then brings us to the most legally essential part of the documentation: that the patient understood what they were told about the AMA choice and its potential consequences.
The Consequences of Leaving AMA
In this regard, the trend to hospital speak like “Patient verbalized understanding” is a real impediment and odd phrases like “Patient endorsed their comprehension” are even worse.
The issue is a simple one: the doctor wants an eventual jury or disciplinary panel made up of people who speak normally to get that the patient said that he or she understood what they were told and that the doctor made sure that they really did. A statement such as “At the end of this discussion I asked Mr. Patient if he understood. He said that he did. I then asked if he had any questions or concerns that were not addressed. He said that he did not. He then stated that he still wanted to leave because (reason).” makes that presentation. This also actually goes to proof of competency because it records a substantive discussion.
Most hospitals will also have an AMA form that the patient signs indicating that they left despite a warning discussion. Ideally, this will be signed and witnessed before the patient leaves but if the patient refuses they cannot be held to make them do so. The refusal itself should just be documented.
Some facilities will overreach, and try to use the AMA form to pre-empt any future liability with a statement that by leaving the patient gives up all rights to sue. However, this will be held as unenforceable as against public policy. Good documentation that the patient was well-informed and made a harmful choice anyway will be the proper defense.
So, now we are at the point where a patient who can make a decision and has been informed of the risks of leaving still decides to do so. What about discharge instructions and prescriptions?
The patient is unilaterally terminating the doctor-patient relationship but the doctor’s duty of care stemming from the visit itself still requires them to close out their side of it.
They should advise the patient of symptoms to look for that should bring them back to the hospital. The doctor should document that they did so, including whether they gave any prepared materials, such as a headache sheet, to the patient.
The patient should also be offered a one-time prescription for medication required for their immediate stabilization that would have been provided while they were under active care, and whether they accepted that or not should be documented as well.
The last point is call-backs. The patient may have rejected staying but if results from testing that was done while they were still under care come in after they leave, and these are ones that the doctor would have discussed with them if they were still present then there should be a documented effort to contact them about those results and their significance and to encourage them to return if necessary. This does not re-establish the prior doctor-patient relationship or create a new one, it completes care that was already undertaken when the prior relationship was active. Then, since the doctor may not be present if the patient returns, they should add a note for a subsequent treater indicating why the patient was advised to do so that the next practitioner can pick the matter up seamlessly.
