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InFocus

Lack of Liability Protection with Standard AMA Forms

Roberts, James R. MD

doi: 10.1097/01.EEM.0000655020.15674.65
    liability, against medical advice. Good charting usually leads to good medicine.
    Figure
    Figure

    Emergency physicians have enough to worry about when it comes to treating difficult ED patients, and we have all been in the situation where, after spending considerable time and resources, a patient decides he does not really want to take our advice and announces, often abruptly, his exit from the ED.

    This is a frustrating dilemma fraught with potential and real complications for the patient and physician. After expending tremendous effort, it is human nature for the medical staff to be frustrated and simply comply with the patient's wishes. We all try to discuss the dangers of leaving against medical advice, but once a patient makes up his mind, it may be impossible to dissuade him.

    A normal reaction from an overworked, frustrated medical staff is to ask the patient to sign an amorphous form, branding him ignorant and ungrateful and letting him fend for himself. We have negotiating tactics, but it's difficult to change a patient's mind. Although a “good riddance” reaction may seem to settle the issue, things are much more complicated. You are dead wrong if you think a simple signature on a patient's chart under the against medical advice (AMA) moniker is a free pass for the clinician and hospital.

    Contrary to popular belief, the garden-variety AMA form does little to protect the hospital or physician when there is a bad outcome. It's difficult for the family or general public to believe something more could not have been done to ameliorate the irrational behavior of someone obviously ill who did not comprehend the need for urgent treatment. While some are obnoxious or sobered-up alcoholics, many AMA patients are scared, confused, or in denial, but they still can have serious medical problems and experience a bad outcome.

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

    Devitt PJ, et al.

    J Fam Pract 2000;49(3):224

    These psychiatrists from the State University of New York noted that AMA discharge from general hospitals ranges between one in 65 and one in 120 encounters. Patients are most likely young and male, live alone, and have been hospitalized frequently. Some studies note a higher AMA discharge rate in the elderly. Occasionally, psychiatric consultations are obtained to assess mental competency when the medical staff perceives imminent danger to the patient. Patients also leave AMA because of anger, frustration, and fear. Patients discharged AMA may have inconsequential medical problems, but many have a serious illness, and leaving the hospital will result in adverse consequences, including exacerbation of illness, injury to the patient or others, and even death. Even lacking physician negligence, an adverse medical consequence of the AMA discharge may lead to a malpractice suit.

    If a patient rejects admission or interventions, many physicians and nurses think the AMA form confers legal protection. The literature is vague on this, and the authors attempted to determine whether an AMA discharge is totally protective, partially protective, or not protective at all. Using a computer literature search, the authors found only eight civil cases in which AMA discharge was significant in a medical malpractice case.

    A common defense tactic for an adverse outcome is to claim that the patient contributed to the complications by discharging himself AMA; this is termed contributory negligence. The authors cited a woman who, after many years of chronic abdominal pain and four weeks of hospitalization, discharged herself AMA before a definitive diagnosis was made. She eventually died from ischemic bowel disease. In a somewhat confusing explanation, a jury said the patient had not acted unreasonably when she discharged herself, and to claim contributory negligence, one has to show the patient acted unreasonably. For some bizarre reason, the court found that because she had been ill for years, had been in and out of hospitals, had a number of tests, and was frustrated, it was not unreasonable for her to leave the hospital against medical advice. In another case, the court found the adverse outcome was the hospital's responsibility, although the patient left AMA, missed two appointments, failed to take his medications, and abused drugs.

    As a rule, patients are admitted voluntarily to an ED or hospital, and an AMA discharge is merely withdrawal of consent for treatment. Competent adults possess the legal ability to make this decision, and physicians and hospitals must ensure the patient is fully informed of the risks and alternatives to treatment, possesses the mental competency to make the decision, and does not meet criteria for involuntary psychiatric hospitalization. Unless all three are documented, physicians and hospitals may not be legally protected if an adverse outcome occurs. The term “against medical advice” is not protective. Physicians should thoroughly document that a patient is mentally competent and fully informed. Unless documented, the courts assume that did not occur.

    Figure
    Figure:
    A quick perusal of this standard AMA discharge form used in most hospitals leads one to conclude that using it is a recipe for a medicolegal disaster if there is a bad outcome.

    The authors could not find consistent evidence that a patient discharged AMA lacked the legal ability to sue a hospital and physician successfully for adverse outcome. Thorough documentation is the first line of defense, but the requisite nuances often aren't in place. Physicians must be able to show that patients were fully informed of the risks of leaving, and that alternative venues of care exist. Failure to try to arrange follow-up or alternative care can be considered negligent. The authors believe requiring a patient to sign a waiver releasing the hospital from responsibility is legally worthless. The AMA form may provide partial protection, but it is not a guarantee of legal immunity.

    Comment: I found this article difficult to decipher, but agree with its conclusions. It is a myth that having a patient sign an AMA form protects the physician or hospital from successful litigation when the patient or someone else suffers an adverse outcome. Not only are there consequences for the patient, there may be collateral damage when a patient injures someone else (driving a car while intoxicated), is under the influence of a medication given in the ED, or a psychiatric illness is underestimated or unappreciated.

    These authors found only eight cases, but I know of three malpractice cases involving bad outcomes in patients who left AMA. To my analysis, there was no physician negligence, but the impression of the injured party and family was that the AMA discharge should not have been allowed. All cases involved signing AMA forms, and some forms were better than others, but clinicians nonetheless found themselves in court on the wrong end of a medical disaster. If you think the AMA form is an easy way out, get ready to spend your vacation in front of a jury.

    About one percent to two percent of ED patients leave AMA. The number is relatively constant, and occurs almost every shift. Those most likely to leave tend to be male, younger, substance abusers, lacking insurance, and from a lower socioeconomic class. (Mayo Clin Proc 2009;84[3]:255.) Others found the lack of a primary physician, prior AMAs, or having HIV associated with AMA discharges. (J Gen Intern Med 1995;10[7]:403.) Under the law of patient autonomy, competent individuals are allowed to make decisions about their health and about the medical welfare of their children, and the American College of Emergency Physicians clearly states that clinicians must respect their autonomy. (Code of Ethics for Emergency Physicians, January 2017; http://bit.ly/2PxBPZA.)

    There is no law against making a bad decision if the issues are straightforward. It's easy to prevent someone from making the wrong decision if he is drunk, drugged, or mentally impaired. Such patients are simply not allowed to leave, and often they have to be restrained, a gargantuan but common occurrence in most EDs. Despite our best efforts, some crafty elopers make it out of the ED. I had one inventive patient who climbed into the ceiling, and crawled to another room to make his escape. If patients do elope, efforts should be made to find them, even calling the police.

    I could find little in the emergency medicine literature that offered stellar advice about AMA discharge. I have developed some experience-based concepts about AMA discharges over the years, and I think they will help you stay out of court or win a case if it comes to that.

    It's All about the Medical Record

    Chart documentation is key, especially three years later when reconstructing the AMA scenario you diligently pursued. Good charting usually leads to good medicine. The current standard of care appears to allow a hospital-wide AMA form to be universally used in the ED. You might conform to the current standard, but you should be paranoid about every AMA discharge and document the heck out of the chart. Not all patients have known life-threatening problems, and those who need observation or testing also fit the AMA bill.

    In my opinion, the standard AMA form hurriedly signed by the patient as he is leaving is worthless. Try reading the one that your hospital uses, and then show it to a nonmedical neighbor or lawyer friend for an opinion. Generally, it's one long sentence in print too small to read without a magnifying glass and some unintelligible legal mumbo-jumbo written by a hospital lawyer 10 years ago. A one-size-fits-all document might be what everyone uses, but it might not play well in court. It certainly does not force you to comply with my appropriate paranoia. Every case is different and every patient is an individual, and each patient should have an individualized AMA form. A template meets most of the criteria for a personalized document, but customize it to address patient cognition, risk comprehension, ability to make an informed decision, follow-up, and your attempts at defining specific risks. Better yet, write an additional AMA note every time to fit the specific scenario—and have him sign it again. “Oriented x 3” is a common expression well appreciated by the medical profession, but a more complete mental status examination would be better for laymen.

    Patients with psychiatric or substance abuse issues who decide to leave AMA require special attention. It is difficult to convey on paper that a patient with a positive drug screen, elevated alcohol level, or past history of psychiatric disease on multiple medications completely understands medical terminology or the consequences of leaving. Psychiatric patients are impulsive, argumentative, and adept at manipulating the medical system to their advantage, but they do kill themselves and kill and injure others. If a paranoid schizophrenic patient kills someone or a bipolar patient commits suicide soon after leaving your ED AMA, it would be difficult to convince anyone that he had a normal mental status or was not suicidal or homicidal in the ED.

    A psychiatric consultation is expected by the public under such circumstances, but I have not found that useful. ACEP says the EP should be an expert; I agree. No mere human can ultimately prevent suicide, and those intent on self-harm often don't telegraph their intentions loudly. I don't know how a psychiatrist would be more astute in predicting subsequent behavior than an EP who has seen the events unfold and spent more time with the patient. Having a psychiatrist clear a patient for an AMA discharge may save the EP from some portion of the litigation, but it is not standard nor the ultimate answer.

    It's also helpful to involve others in proving you are a patient advocate and did everything possible to keep the patient from making the wrong decision. It is often not feasible or HIPAA-compliant, but one can offer another physician evaluation, call the patient's physician, or speak to a friend or relative. With HIPAA rules, some of these interventions may be questionable. Having a drunk spouse or hostile boyfriend complicate matters is not helpful, but a relative or significant other can often convince a patient to stay. If the patient allows it, you can contact his doctor or relative. Hand the phone to the patient, and document that and who was on the line.

    The authors of this study suggest making a genuine attempt at follow-up or alternative care. Failure to do so can be interpreted as a breach of duty. Just because a patient with chest pain and suspected unstable angina or MI wants to leave, that's 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 an antibiotics prescription for an infection that should be treated in the hospital could be considered proactive and patient-friendly, albeit not a current ID recommendation.

    The departure should be friendly, if possible. It also should be made clear that the patient may return to the ED anytime if he changes his mind or gets worse: “No hard feelings, sir. Come back if you change your mind.” It may be difficult to have an amicable separation under AMA circumstances, but it's best to maintain an open and supportive environment. It's only human nature for a disgruntled patient to feel too embarrassed or angry to return to the hospital, but if he leaves on cordial terms, he may return when he rethinks the decision or when the problem persists or becomes worse. The door to the ED should always be open, and the patient should not feel that the ED will hold anything against him simply because he chose to leave.

    Patients also leave the ED because they fear a large medical bill or have no insurance. The ability to pay should never be an issue with emergency care, and it should be stated explicitly in the medical record that patients are not discriminated against because they do not have insurance or money. I state in no uncertain terms that the inability to pay has not clouded my decision, the patient's decision, or his access to the system. Don't try to save anyone's money (the patient's or Medicare's) by risky outpatient care. If the patient does not want a gargantuan hospital bill, that's fine. But a friendly “come back tomorrow for a recheck” on the AMA form goes a long way when he claims, “They did not admit me because I had no insurance.”

    Finally, the issue of restraining patients against their will is omnipresent. Most physicians will say the patient has the ability to make a poor decision that may ultimately affect his health significantly. While this is true, many cases are fraught with nuances impossible to convey in the medical record. Ask yourself this: Would you rather defend restraining a patient, sedating him against his will (AKA assault), or sending him home with a medical condition you thought could kill him or leave him significantly impaired? Concerns of unlawful restraint are not moot, however, and physicians have been sued for forcing a lumbar puncture on a child whose parents objected. Many voiced threats go no further than an angry outburst or a nasty letter to an administrator.

    Every patient does not need an alcohol level or drug screen before an AMA discharge, but you must be certain that potential issues raised on admission are addressed by the clinician at discharge. Conditions documented before you entered the room, such as alcohol on breath, needle tracks, or a triage note describing intoxication, slurred speech, prior psychiatric issues, unsteady gait, suicide ideations, or bizarre behavior, must be reconciled before discharge. Drunks do sober up, and irrational behavior can wane; just write a follow-up note to explain after observation.

    Unfortunately, physicians often just can't win, and AMA discharges are high on that list. No one wins if a patient leaves AMA and the outcome is not perfect. In today's guilty-until-proven-innocent medical milieu, the physician is often portrayed as a villain. Of course, any untoward outcome can be construed by a skilled attorney as the physician's failure to establish good rapport, inability to convey the seriousness of the condition, failure to obtain informed consent, inability to understand the patient's viewpoint, and failure to address issues that can be corrected. It's not fair—it's actually reprehensible—but a callous or nonchalant physician attitude is often assumed when a patient leaves AMA and the outcome is poor. We all wonder what became of individual responsibility and living with the consequences of bad behavior.

    It doesn't make sense that the patient in the throes of an MI wants to go feed his cat, but instead of reaching for the AMA form when this excuse is given, offer to call a neighbor to feed the feline. If the patient is determined to leave despite your efforts, it's his right. Just make sure the documentation clearly proves your prodigious attempts at righting the ship. Many hospitals allow nurses to orchestrate the AMA form. That may be standard, but I think this is the physician's responsibility. I suggest asking the nurse to write his version of your valiant attempts to provide informed consent, again emphasizing that the individual is capable of making an informed decision about his medical care.

    AMA Guidelines

    Competent patients have the ultimate right to make informed decisions about medical interventions, but consider the following:

    • Careful and thorough documentation is the best tactic for all involved and the best defense in cases with a bad outcome.
    • Good charting usually adds up to good medical care.
    • An individualized AMA form is better than the standard generic declaimer that attempts to provide blanket immunity to the hospital and physician.
    • The patient must be fully informed with regard to the consequence of his decision to leave the hospital.
    • The patient's competency to make this decision must be assessed and documented.
    • The patient must not meet criteria for involuntary commitment.
    • A friendly nonconfrontational AMA discharge, with the expressed ability of the patient to return if an alternate decision is reached, is the best policy.
    • Involving a family member, primary physician, or significant other demonstrates ultimate patient proactive efforts, but may not be possible under patient privacy laws.
    • Failure to make a genuine attempt at follow-up, temporary, or alternative care may be interpreted as a breach of duty of care.
    • Prior to discharge, reconcile any initial chart notes describing extenuating circumstances, such as alcohol/drug use, abnormal behavior, psychiatric issues, unusual thought processes, or conditions that might alter cognition or raise concerns about competency.
    • Never make finances an issue, and use the AMA form for everyone who does not allow testing, treatment, or admission.
    • Documentation waiving the hospital from any responsibility if the patient leaves against medical advice should be regarded as being unable to fully protect caregivers if there is a bad outcome, although attention to all details is extremely helpful.
    • Both physician and nurse should document the AMA details, with the physician taking the lead.

    Reader Feedback: Readers are invited to ask specific questions and offer personal experiences, comments, or observations on InFocus topics. Literature references are appreciated. Pertinent responses will be published in a future issue. Please send comments to emn@lww.com.

    Dear Dr. Roberts: I am very interested in emergency dental care, but do not agree with your comment that we should not give antibiotics in the absence of infection. (EMN. 2019;41[11]:8; http://bit.ly/36mbV2J.)

    While most tooth pain visits are related to pulpitis and Cochrane studies have debunked the idea that antibiotics help alleviate dental pain (Cochrane Database Syst Rev. 2018 Sep 27;9:CD010136), our DMD colleagues do not follow this evidence-based medicine. Maybe that's because they realize an early periapical abscess can be present without any clinical signs other than toothache!

    All too routinely patients finally save up enough money to seek dental care and are told an extraction or filling cannot be done until the infection “is cooled off” by a week's worth of penicillin VK.

    I agree that the scientific validity of this practice isn't sound, but I'm not about to refuse someone an antibiotic if it means it may hamper his access to definitive care. The typical EP is not trained to determine whether an early infection is present. We don't have bitewings to look for lucency at the apex of the tooth. When looking squarely at 32 severely carried teeth, we don't have the skill set to know which, if any, is the root of the problem. I think we should continue the status quo treatment of providing empiric antibiotics until definitive treatment can occur. If it's what the dentists are doing, shouldn't we be doing the same?—Jonathan Miller, MD, Boise, ID

    Dr. Roberts responds: You make some interesting comments about the use of antibiotics by dentists, citing that many dentists do not follow evidence-based guidelines. I am not so sure. In my experience, dentists do not provide antibiotics for a simple toothache, even when infection is found while treating a cavity. Even with most obvious dental infections and even for an acute apical abscess, antibiotics are not recommended and have not been proven useful. I don't see how antibiotics can even be introduced into pulpitis. If infection is obvious and dental care cannot be obtained, perhaps antibiotics can be supported. The following is the current stance on antibiotics taken by the American Dental Association, and just because dentists refuse to follow guidelines doesn't mean emergency physician should do the same.

    The 2019 clinical practice guidelines for dental pain and intraoral swelling from the American Dental Association: “The guideline recommends against using antibiotics for most pulpal and periapical conditions and instead recommends only the use of dental treatment and, if needed, over-the-counter pain relievers such as acetaminophen and ibuprofen.

    “Instead of prescribing antibiotics, dentists should prioritize dental treatments such as pulpotomy, pulpectomy, nonsurgical root canal treatment, or incision and drainage for symptomatic irreversible pulpitis, symptomatic apical periodontitis, and localized acute apical abscess in adult patients who are not severely immunocompromised.

    “If a patient's condition progresses to systemic involvement, showing signs of fever or malaise, then dentists should prescribe antibiotics.”

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    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, PNP, athttp://bit.ly/EMN-ProceduralPause, and read his past columns athttp://bit.ly/EMN-InFocus.

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