Written by: Brett Cohen, MD (NUEM PGY-3) Edited by: Will Ford, MD, MBA (NUEM ‘19) Expert commentary by: Larry Weiss, MD
Background
Leaving the ED prior to a completed workup is relatively common and can place both providers and patients at risk.
AMA discharges make up about 2% of all discharges in the USA [1]
Patients that are discharged AMA are associated with a higher mortality than planned discharges [2] (ORadj 2.05; 95% [CI 1.48-2.86])
Patients that are discharged AMA are more likely to initiate lawsuits against their providers [3], some studies suggest that they may be up to 10 times more likely to sue the Emergency Physician compared to other ED patients [5]
Despite these risks, patients have a fundamental right to refuse medical care, even when doing so may not be in their own best interests.[4]
Risk Factors for an AMA Discharge [1, 5]
Left Without Being Seen
In this scenario, the patient has not yet interacted with a physician. There is not much to do here as long as the provider never met the patient, if so, they would be in a different category. There are no known cases where the ED, or ED Providers, have been sued and found to be at fault or responsible for an outcome. People have the right to walk in and walk out as they choose.
The Eloped Patient
If the provider has met the patient and they leave the department before completion of their work-up or before having had the AMA discharge conversation, they are considered to have eloped. Most departments have their own policy for this situation, it is recommended to follow your own departmental policy. If not, here are a few things to do:
Look for the patient a few times (once every 20 minutes for an hour)
If witnessed by RN, have them document the time the patient left as well as the status of their IV. If an IV is still in place, first try to contact the patient and then their emergency contact. If no success, contact the police non-emergently to aid in locating the patient.
Review sent labs, if there are any critical values contact the patient or their emergency contact and advise to return to this or the closest ED. If there are any life-threatening findings and the patient is unable to be contacted, contact the police non-emergently.
Document the time you were made aware the patient left as well as your attempts to contact them. If prior to desertion the patient was awake and alert and appeared to have capacity, document this. If the patient is at risk and you are truly uncertain of capacity, notify the police and document as such.
How to Navigate an AMA Discharge in the Emergency Department
The capacity of a patient to make the decision to leave the hospital against medical advice is the most important feature of the AMA discharge process. There are four basic elements to capacity: [1]
The ability to communicate with the provider
The understanding of treatment options including the option of refusal
The ability to reason and explain ‘why’ he or she is making the choice
The understanding of consequences of choices
A conversation with a patient that desires to be discharged AMA is one of the most important parts of this process. Through the IDEA method, the physician will be able to assess the capacity of the patient, reinforce the need to continue care if clinically indicated, as well as lay a foundation for follow-up care:
Investigate
Investigate barriers to communication (and resolve them if able)
Investigate patient’s rational for wanting to leave AMA
Investigate if anyone else can help convince the patient (family, friend, PCP)
Discuss
Discuss working or actual diagnosis and findings
Discuss recommended course of treatment including alternatives and comfort measures you can provide
Discuss risks of refusing treatment, including disability/death
Evaluate Understanding
Have the patient explain their diagnosis/findings in their own words. “I understand” is not enough
Have the patient explain the consequences of them leaving AMA
Allow the AMA
Go over discharge instructions including reasons to return
Ensure the patient understands that they can return at any time
Have the patient sign the AMA form. For a witness, use a family member if possible, or an RN
Patients that Lack Capacity
Patients have a fundamental right to refuse care, however those that lack decision-making capacity or are at risk for harm to self or others cannot refuse treatment, and therefore cannot leave AMA. The ED provider has an obligation to try and restore decision-making capacity as soon as possible. Some steps to do this include:
Locating a surrogate decision maker
If there is no designated healthcare POA, in most states the hierarchy is: Adult Spouse > Adult Children > Parents of Patient
Locating an Advance Directive
Reassessments of Capacity over time (sober reassessments)
A common dilemma arises when the right to refuse care is taken away from a patient, and there are two laws which protect the ED physician in these cases:
Emergency Consent: Physicians are authorized to provide treatment to a patient without capacity when interventions are needed to prevent serious physical harm or death, and the need is certified by at least two physicians writing in the medical record [7]
Federal law allows for restraint or seclusion only when needed to ensure the immediate physical safety of the patient, a staff member, or others and must be discontinued at the earliest possible time based on an individualized patient assessment and reevaluation [8]
Documentation
A well written addendum for an AMA discharge will include the following:
Discussion of the treatment(s) offered
Discussion of the risks/benefits of further treatment and for no treatment
Reasons for refusal
Efforts taken at negotiating with the patient including possible alternative treatments, risks/benefits of alternative courses as well as comfort measures offered
Steps taken to secure a written informed refusal
An assessment that the patient has capacity to make the decision, and if there are concerns or gray areas involving capacity note what they were and why it was resolved in the manner chosen
Example Addendum
The patient expresses the desire to leave against medical advice (AMA). Their reasoning for leaving AMA is due to ***. They presented with a chief complaint of *** and I have explained my concern that based on their complaint in addition to my history, physical exam, and studies returned to date that this may represent ***. In addition, I explained that their work-up is currently incomplete and I would recommend *** to complete it. I also explained my concern that leaving at this time places them at risk for their condition worsening, critical illness, and death or permanent disability including ***. I have also offered an alternative treatments options including ***.
The patient explained in their own words all of my concerns including the consequences of refusing further treatment including death or permanent disability. I have also discussed my concerns with *** who was also unable to convince the patient to stay. The patient is clinically sober and has no injury that would affect their cognition. In addition, they appear to have intact insight, judgement and reason and in my opinion has the capacity to make their own healthcare decisions.
Given that the patient was unwilling to stay I *** to increase the probability of a good outcome. I ensured there were no communication barriers with the patient by ***. A written informed refusal document was *** signed by the patient after our conversation. Outpatient follow-up was offered with ***. The patient was encouraged to seek care immediately if they would like to complete the work-up or if they have any new concerns.
This conversation was witnessed by ***
AMA paperwork was*** completed and signed.
References
Ethics Seminars: A best practice-approach to navigating the against-medical-advice discharge. Acad Emerg Med. 2014 Sep;21(9):1050-7. doi: 10.1111/acem.12461
Increased Risk of Mortality and Readmission among Patients Discharged Against Medical Advice. Southern, William N. et al. The American Journal of Medicine , Volume 125 , Issue 6 , 594 – 602
Monico EP, Schwartz I. Leaving against medical advice: facing the issue in the emergency depart- ment. J Healthcare Risk Manage 2009;29:6–15.
Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990); Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914).
Bitterman RA. Against medical advice: When should you take “no” for an answer? Lecture presented at ACEP Scientific Assembly. Chicago, Oct. 30, 2008.
The importance of a proper against-medical-advice (AMA) discharge: how signing out AMA may create significant liability protection for providers. Frederick Levy, Darren P. Mareiniss, Corianne Iacovelli. J Emerg Med. 2012 Sep; 43(3): 516–520. Published online 2011 Jun 28. doi: 10.1016/j.jemermed.2011.05.030
Georgia Department of Human Resources. O.C.G.A. §§ 37-3-163(e), 37-7-163(e). Jun 29, 2014.
U.S. Government. Federal Register 42 C.F.R. § §482.13(e). Available at: http://www.gpo.gov/fdsys/pkg/CFR-2010-title42-vol5/pdf/CFR-2010-title42-vol5-sec482-13.pdf. Accessed Jun 29, 2014.
Expert Commentary
Brett and William provided a truly outstanding summary of the AMA process and its risks. I’ll just emphasize a few things. When allowing a patient to refuse recommended care and leave the ED, the single most important thing to document is the capacity to understand. The U.S. Supreme Court stated that patients have a liberty interest (i.e.: the right to be left alone) in refusing medical care.[1] Many legal authorities argue that liberty is our most important fundamental right. Therefore, we must be very careful when forcing unwanted medical care on any patient. As Brett and William stated, the two exceptions to the informed consent doctrine are suicidal patients and those who lack the capacity to understand. These patients lose the right to refuse necessary emergency care.
As Brett and William stated, patients who sign out AMA are more likely to sue physicians. An honest plaintiff attorney will tell them they do not have a viable case because they refused medical care, unless they argue the patient was too confused to refuse care. The burden will be on you to document such confusion. In one third of cases, emergency physicians fail to document anything about capacity to understand. [2]
One may document capacity in a number of ways. The ACE Test is a quick way to provide such documentation.[3] Other options include the Folstein Mini-Mental Status Examination, several different “mini mini” batteries, or writing a simple conclusory statement. During the course of my career, I often only had enough time to use the latter option. A conclusory statement is a statement with only a conclusion and no evidence. For example, “The patient clearly has the capacity to understand.” This is far better than writing nothing about the mental status. Such a statement reflects the art of medicine, which often carries a lot of weight in most courtrooms.
Finally, some very prominent academicians in EM now recommend not using the AMA form because it is too confrontational and it does not provide complete protection from litigation. The AMA process should never be confrontational. Remember, patients usually refuse medical care for non-medical reasons unrelated to your plan of care. [4] We practice in the world’s most dangerous legal environment. It would be reckless not to use the AMA form because courts expect us to use these forms. [5-7] A number of state Supreme Courts rendered decisions against physicians in AMA cases because they did not use the proper forms.,, Regarding protection from litigation, nothing provides complete protection. After all, up to 83% of all lawsuits against physicians are groundless, having no basis in fact. [8] Using an AMA form may not prevent a groundless lawsuit, but it may prevent you from losing the lawsuit.
References:
Cruzan v Director, Mo. Dep’t of Health, 497 U.S.261 (1990).
Dubow et al. Emergency department discharges against medical advice. J Emerg Med 1992; 10:513-516.
Jerrard DA, Chasm RM. Patients leaving against medical advice (AMA) from the emergency department: Disease prevalence and willingness to return. J Emerg Med 2011; 41:412-417.
Sawyer v Comerci, 563 S.E.2d 748 (Va. 2002).
Drummond v Buckley, 627 So.2d 264 (Miss. 1993).
Thomas v Sessions, 818 S.W.2d 940 (Ark. 1991).
Localio AR et al.Relation between malpractice claims and adverse events due to negligence.Results of the Harvard Medical Practice Study III.New Engl J Med1991; 325:245-251.
Larry D Weiss, MD, JD, FAAEM, MAAEM
Professor of Emergency Medicine
University of Maryland School of Medicine
How to Cite This Post
[Peer-Reviewed, Web Publication] Cohen B, Ford W. (2019, Oct 28). Leaving Against Medical Advice. [NUEM Blog. Expert Commentary by Weiss L]. Retrieved from http://www.nuemblog.com/blog/ama.
