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InFocus

Standard AMAs Forms Offer No Real Protection

Roberts, James R. MD

doi: 10.1097/01.EEM.0000483183.81221.b9
InFocus

Dr. Robertsis a professor of emergency medicine and toxicology at the Drexel University College of Medicine in Philadelphia. Read the Procedural Pause, a blog by Dr. Roberts and his daughter, Martha Roberts, ACNP, CEN, athttp://emn.online/ProceduralPauseEMN, and read his past columns athttp://emn.online/InFocusEMN.

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Emergency clinicians have enough to worry about when it comes to diagnosing and treating ED patients. But we have all been in the situation where, after spending considerable time, effort, and resources, a truly ill patient decides he does not want to take our advice and decides to leave the hospital. This is a frustrating dilemma, one that is fraught with a plethora of potential and real complications for the patient and clinician.

It is human nature for the clinician and nursing staff to be frustrated after simply complying with the patient's wishes. Occasionally, the egress is actually suggested or supported by the frustrated caregiver. We all try to discuss the issues and dangers of leaving against medical advice (AMA) rationally, but once a patient makes up his mind he is going to leave, it may be difficult to dissuade him from this poor decision. A normal reaction from an overworked and frustrated medical staff is to ask the patient to sign an AMA form, and allow the patient to fend for himself while branding him ignorant or ungrateful. We all have certain tricks, negotiating tactics, and bargaining chips to play, but it's difficult to change the patient's mind. A “good riddance” reaction may seemingly temporarily settle the issue, but things can be much more complicated than they seem initially.

Patients discharged against medical advice have a higher rate of readmission and a twofold increased risk of death compared with those discharged by their physician. This month's column begins a series of discussions on patients who want to leave the ED against medical advice. I will discuss the value of the AMA form, what happens to patients after they leave, strategies to keep patients from being their own worst enemy, and how to protect the physician against the omnipresent legal ramifications.

This month's column discusses the true value of the standard AMA form. Contrary to popular belief, the AMA form does little to protect the hospital or physician when there is a bad outcome. It's difficult for the family or public to believe that something more could have been done to alter the irrational behavior of someone who was obviously ill or in need of hospitalization or further treatment. Many patients who leave AMA have serious problems and a bad outcome. Unfortunately, merely having them sign a piece of paper does not protect them or the emergency physician.

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Does Identifying a Discharge as “Against Medical Advice” Confer Legal Protection?

Devitt PJ, Devitt AC, Dewan M

J Fam Pract

2000;49(3):224

The authors from the department of psychiatry at the State University of New York Health Science Center in Syracuse noted that AMA discharge from general hospitals range between one in 65 and one in 120 ED visits. Patients most likely to leave AMA are younger, male, and seen in the ED. Many have been frequently hospitalized in the past and live alone. Other studies note a higher rate of AMA discharge in the elderly, in those with HIV, in drug/alcohol abusers, and in those with a lower economic status.

Occasionally, psychiatric consultations are obtained to assess mental competency when the medical staff perceives imminent or serious danger to the patient. Common patient factors involved in the decision to leave AMA include anger, fear, drug/alcohol use, religious values, economic issues, and psychiatric illness. Patients discharged AMA may have minimal or inconsequential medical problems, but many do have an underlying serious illness. Leaving the hospital can result in adverse consequences, including exacerbation of an illness, death, or injury to the patient or others. Even in the absence of negligence, an adverse medical consequence of an AMA discharge may lead to a malpractice suit.

An AMA form is thought by many physicians to confer overall or at least some sort of legal protection if a patient rejects advice on admission or other medical interventions. The literature is vague on this issue, and the authors attempted to determine whether an AMA discharge is protective, partially protective, or not protective at all. As of 2000, the authors found only eight civil cases in which an AMA discharge was a significant issue in a medical malpractice case.

A common defense tactic for an adverse outcome is to claim the patient contributed to the ultimate complications by discharging himself from the hospital against medical advice. This is termed contributory negligence. The authors briefly review the case of a woman who, after many years of chronic abdominal pain and four weeks of hospitalization, discharged herself AMA before a definitive diagnosis had been made. She eventually died from ischemic bowel disease. A jury — using a somewhat confusing explanation — found the patient did not act unreasonably when she discharged herself from the hospital. One would have to show the patient acted unreasonably to claim contributory negligence. The court found, for some bizarre reason, that it was not unreasonable for her to leave the hospital AMA because she was frustrated after being ill for a number of years and being in and out of hospitals and having had a number of tests. Therefore, the medical system was at fault.

A reduction in damages was awarded in another case, but the hospital was still found liable when a patient was discharged AMA. The court concluded that the patient's actions merely increased the extent of injuries, but did not cause them. A patient in yet another case left AMA, missed two scheduled appointments, failed to take his medications, and injected himself with drugs, but the court still somehow held the hospital responsible for adverse outcomes.

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Patients are generally admitted voluntarily to a hospital, and an AMA discharge is merely withdrawal of original consent for treatment. Competent adults possess the ability to make this decision, but physicians and hospitals must ensure the patient is fully informed of the risks and alternatives to treatment, possesses mental competency to make a reasonable decision based on accurate and complete information, and does not meet standard criteria for involuntary psychiatric hospitalization. Physicians and hospitals may not be legally protected in the event of an adverse outcome unless all three of these are documented. Importantly, the term “against medical advice” is not by itself protective. The authors stress that physicians should ensure and thoroughly document that a patient is mentally competent, fully informed, and does not meet the criteria for involuntary hospitalization.

The authors found no consistent evidence that a patient discharged AMA would not be able to sue a hospital or a physician successfully for a subsequent adverse outcome. Careful and thorough documentation is the first line of defense, but sufficient details are often lacking and numerous intricacies often are not in place. Physicians must be able to show that patients are fully informed of the risks of leaving the hospital. Failure to attempt to arrange follow-up or alternative care also can be considered malpractice. Essentially, the authors believe that requiring a patient to sign a waiver releasing the hospital from responsibility, a so-called AMA discharge, should be considered legally worthless. The AMA form may provide partial protection, but it is not a guarantee of legal immunity.

Comment: Dealing with AMA discharges requires diplomacy, compassion, sensitivity, a cool head, and sufficient knowledge of medicolegal issues. It is essentially a medical myth that having a patient sign a standard AMA form completely protects the physician or hospital from successful litigation when the patient, or someone else, suffers an adverse outcome. A common scenario is a patient who injures someone else, such as driving a car while intoxicated or under the influence of a medication given in the ED or has a psychiatric illness that is underestimated or unappreciated.

I could find little in the medical literature that offered the physician particularly stellar advice about AMA discharge. I have developed some criteria, caveats, and seemingly common-sense rules about AMA discharges over the year. I offer them to the prescient clinician who wants to stay out of court or wants to win a case if he finds himself in such a situation.

As with many things, it's all about the paperwork. I think the standard AMA form that is hurriedly signed by the patient as he is leaving the hospital is essentially a worthless document. Try reading the one your hospital uses, and then show it to a layperson (jury candidate) for his opinion. Generally, it's an entire paragraph consisting of one sentence, print too small to be seen without a magnifying glass, and some unintelligible legal mumbo-jumbo written by a hospital lawyer 10 years earlier. It's essentially a one-size-fits-all document, and we all know that most such forms simply don't make it. I believe that every case is different and every patient should be individualized, and therefore everyone should have his own specific personalized AMA form. With a little bit of additional paranoia, I have included an example that meets most of the criteria for a personalized document. At least this one has specific areas of cognition, comprehension, and risks that can be documented for individual situations. Simply stating that the mental status is intact or that the patient appears to understand is minimally sufficient.

Better yet, write your own additional AMA note on every patient to fit the specific scenario, and make sure you include the required documentation. Oriented times three is not a complete mental status examination, but unfortunately that is all that appears in many records. Because many patients who decide to leave AMA have psychiatric, drug, alcohol, or language issues, these subgroups require special attention. It is difficult to convey on paper the fact that a patient with a positive drug screen, an elevated alcohol level, or a past history of psychiatric disease completely understands complex medical terminology or the consequences of leaving the hospital. The best AMA form is one that is handwritten, simple, and signed by the patient. “Dr. Roberts told me that I might die if I leave the hospital, I understand all that he has told me, and I am willing to take the chance” can be signed and scanned into the electronic medical record.

Psychiatric patients are particularly problematic. They are impulsive, difficult, argumentative, and often know how to manipulate the medical system. They are also cognizant of the plaintiff-oriented legal system. Most clinicians are more than happy to have them leave the ED. But psychiatric patients can have an MI, kill themselves, and kill and injure other people. If an AMA-discharged bipolar patient kills someone within a few hours of ED discharge or commits suicide soon after leaving your ED, it would be difficult to convince anyone that he had a normal mental status or was not suicidal or homicidal when you last saw him. The general public expects these patients to receive a psychiatric consultation, but I have not found that to be particularly useful. I believe, in fact, our psychiatric colleagues are even less tuned into the ED patient. I also don't know how they could be more astute in determining subsequent behavior than an emergency clinician who likely has spent more time with the patient. Having a psychiatrist clear a patient for discharge AMA may save the emergency physician from some portion of the litigation and it should be liberally used, it is not the ultimate answer.

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It's also helpful to involve other individuals, an action that clearly states you are the patient's advocate and have done everything possible to keep this patient from making the wrong decision. It's a good idea to offer treatment by another physician, transfer to another facility, make a call to the patient's physician, or speak to a family friend or relative. Some of these things may be questionable because of HIPAA regulations, but I have no qualms about calling the emergency number on the patient's chart before I let him go or about going to the waiting room to confirm a friend or relative is there. Often a son, daughter, or spouse can convince a patient to stay when the physician has been unsuccessful. If you can talk to someone on the phone, such as the patient's physician or a relative, hand that phone to the patient and document that you did so.

The authors of this study suggest that one make a genuine attempt at providing follow-up or alternative care for the patient who is leaving AMA. Failure to do so can be interpreted as a breach of duty of care. Just because a patient with chest pain, suspected unstable angina, or MI wants to leave the hospital is no reason to withhold nitroglycerine, beta blockers, or aspirin or not to provide the patient with a cardiologist's phone number. Similarly, providing the patient with a prescription for oral antibiotics with an infection that is better treated in the hospital could certainly be considered proactive and patient friendly.

It should also be made crystal clear on the chart that the patient has the ability to return to the ED at any time should he change his mind or get worse. It may be difficult to have an amicable separation under AMA circumstances, but it is best to maintain an open and supportive environment. It's human nature for a disgruntled patient to feel ashamed, embarrassed, or too angry to return to the hospital that provided the primary evaluation, but if he leaves on friendly terms, he may be more likely to return when he rethinks his decision or when a pain, infection, or shortness of breath persists or becomes worse. The door to the ED should always be open, and the patient should not feel the ED will hold anything against him simply because he chose to leave.

Many patients may leave the ED because they fear a large medical bill or because they have no insurance. The ability to pay should never be an issue with any emergency care, and it should be explicitly stated in the medical record that patients are not discriminated against because they do not have cash or the right insurance. That may be a luxury of the private physician or consultant, but the ED must make it crystal clear that money is not a barrier to health. I prefer to address it up front with a preemptive strike, and state in no uncertain terms that the ability to pay for medical care has not clouded my decision nor blocked access to the system.

The issue of restraining patients against their will is omnipresent. Most physicians will agree the patient has the ability to make a poor decision that may ultimately affect his health in a significant manner, but I believe this is only partly true. Many cases are borderline, complex, and fraught with a variety of subtleties and nuances that are impossible to convey in the medical record. Therefore I always ask the question, “What would I rather defend?” Is it restraining a patient, sedating a patient against his will (AKA assault), or sending home a patient with a medical condition that I thought could kill him or leave him significantly impaired? Concerns of unlawful restraint rarely go further than a nasty letter to the administrator.

One can always rationalize the use of lorazepam or morphine as a method to reduce anxiety or pain, and therefore allow the patient to think more clearly or make a more rational decision by relieving stressful factors. Often a little bit of sedation goes a long way in resolving the issues. At least it buys the physician time to garner reinforcements, rethink the strategy, or obtain additional data. Patients have the ability to make their own decisions, but often they need a little pharmacologic help and a gentle hand on the shoulder. You must also make certain that the blood pressure, pulse oximetry, and glucose are normal, that the alcohol level and drug screen are acceptable, and that patients are not leaving AMA because you refuse to treat their pain. A food tray also does wonders and buys time.

Every patient does not need an alcohol level or drug screen prior to an AMA discharge, but you must be certain the nurse has not put down AOB, that you have not documented needle tracks, or that a well-meaning triage nurse has not noted bizarre or irrational behavior prior to you entering the room. With any AMA discharge, coordinate nursing and physician notes so they are consistent.

Unfortunately, the physician just can't win in many areas of medicine today. AMA discharges are high on the list. If a patient leaves AMA, it is often the failure of the physician to establish good patient rapport, the inability to convey the seriousness of a disease, or the inability to understand the patient's viewpoint and address issues that can be easily corrected. It doesn't make sense that the patient in the throes of a myocardial infarction wants to go home to feed his cat, but instead of reaching for the AMA form when this excuse is given, offer to call a neighbor and let him feed the feline. You can also involve social services to help with child care at home, a visiting nurse for a sick relative, or some such careful, conscientious, and prudent interaction.

Finally, don't allow nurses and residents to navigate AMA discharges by themselves. The physician in charge must always personally interact with and document the chart of all patients before they leave. If the patient refuses to sign the AMA form, always fill it out completely and simply document that the patient refused to sign it.

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AMA Guidelines

  • Careful and thorough documentation is the best defense in all cases.
  • The patient must be fully informed of the consequences about the decision to leave the hospital.
  • AMA forms should be personalized to the individual scenario.
  • The patient's competency to make this decision must be assessed and documented in detail.
  • Be certain that laboratory tests and vital signs do not question the patient's ability to understand the issues.
  • The patient must not meet criteria for involuntary commitment.
  • A psychiatric consultation should be sought if unsure about the patient's competency or whether he meets the criteria for involuntary commitment.
  • Failure to make a genuine attempt at follow-up or alternative care may be interpreted as breach of duty of care.
  • Always leave open the option for the patient to return without penalty.
  • Documentation waiving the hospital from any responsibility if the patient leaves against medical advice should be regarded as worthless. (J Fam Pract 2000;49[3]:224.)
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