Protecting EDs & Providers When Patients Leave Against Medical Advice

Recent studies suggest that as many as 2% of discharges from acute care hospitals and EDs in the United States are done against medical advice (AMA). For disadvantaged inner-city facilities, this figure can jump to 6%. “Patients who leave AMA have higher readmission rates,” says Darren P. Mareiniss, MD, JD. “They’re also at greater risk for adverse health effects.” The risk of emergent hospitalization appears highest in the first several days after an AMA discharge. Considering the prevalence and ramifications these discharges can have, Dr. Mareiniss says that “emergency physicians must make every attempt to prevent patients from leaving AMA.”

In the Journal of Emergency Medicine, Dr. Mareiniss and colleagues and the Johns Hopkins Center for Medicine & Law at the Department of Emergency Medicine recently published an article that reviewed legal requirements of the AMA process and examined how properly executed AMA discharges can protect institutions. “In situations when AMA discharge is unavoidable, the key is to optimize legal protection,” Dr. Mareiniss says.

Capacity & Disclosing Risks

When patients sign out AMA, they must first be deemed as having decision-making capacity. “The assessment of decision-making capacity focuses on a patient’s ability to understand and communicate rational decisions,” explains Dr. Mareiniss. “They need to be able to express their choices and demonstrate an understanding of relevant information. They must also appreciate the significance of this information and its consequences.”

Usually, determining capacity is relatively straightforward. However, if capacity is unclear and patients wish to leave AMA, emergency physicians should consult psychiatry whenever feasible. Prolonged observation may be necessary in some situations. In cases of intoxication, mental capacity often returns as patients become sober. If intoxication persists and hampers capacity, involuntary admission may be the only remaining course of action.

“A patient’s signature on an AMA form, by itself, doesn’t indicate informed consent,” says Dr. Mareiniss. “Before executing AMA forms, it’s important to talk to patients thoroughly about the risks and consequences of leaving AMA. Patients should receive all information relevant to an AMA decision, including their medical condition, therapeutic options, and the risks and benefits of accepting or refusing treatment. Having patients confirm their understanding of this information and demonstrate reasons for deciding to leave AMA is also critical. Failure to do so may create legal liability even if patients refuse care.” The elements noted in Table 1 should be discussed in detail.

Proper AMA Documentation

If patients show that they have capacity and have been adequately informed of their risks but still insist on leaving AMA, emergency physicians should document the discharge. Table 2 lists some key elements of a comprehensive AMA form. Proper documentation can be done in patient charts and should include information on decision-making capacity, the risks that were disclosed, decisions made by patients, and both patients’ and providers’ signatures. Emergency physicians should assess the AMA form for adequacy and write in any items that may be missing. If patients refuse to sign the AMA form, physicians should read it aloud, document the refusal to sign, and note that the patient was made aware of the risks of leaving AMA.

Important Legal Protections

AMA forms are not a legal panacea and will not always provide total immunity from lawsuits. These forms and procedures do not completely insulate emergency physicians from liability in a medical malpractice action. However, properly executed AMA forms and procedures can provide physicians and EDs important legal protections.

There are three ways that properly executed AMA forms can provide protection, according to Dr. Mareiniss. First, some courts have found that a proper AMA discharge terminates the physician–patient relationship. With that, signing out AMA terminates legal duties of physicians to treat a patient and avoids any claim of liability. However, this protection is dependent on the governing law of the state. Second, AMA forms may entitle providers to an additional defense of assumption of risk. This affirmative defense can excuse liability in certain state jurisdictions where patients are found to have assumed undue risk. Third, the AMA records evidence of refusal of care. These forms are not required, but having them can help refute allegations of negligent or improper discharges.

“AMA documentation can provide vital evidence for any ensuing litigation,” says Dr. Mareiniss. “Emergency physicians should take the additional time that’s needed to execute AMA discharges so that they’re afforded these added legal protections.”