We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult with attorney licensed to practice in your state.

“Doctor, the pneumonia patient in cubicle 4 is trying to get up and leave!”

Now what?

Here’s another scenario: You do an EKG on a patient complaining of occasional dizziness and are shocked to see a serious arrhythmia. You tell him he needs to go to the ER, where your colleague, a cardiologist, will meet him. He refuses and heads to the front desk to sign out.

Now what?

The short answer in both situations is that a competent patient who knows the risks can leave Against Medical Advice (AMA) and that neither you nor a hospital will have liability for what comes next. Forcing unwanted care on the competent patient might actually constitute battery, but in medico-legal reality there are quite a few layers in that simple answer.

Let’s take a look at those.

1. Does the patient have the capacity to make the decision to leave AMA?

Legal capacity is the standing to engage in a particular undertaking or transaction.

For the purpose of an AMA discharge you can assume that an adult or emancipated minor will have this.

2. Is the patient competent to make the decision to leave AMA?

Capacity is the floor but competency is the ceiling.

A patient who has capacity is entitled to refuse medical care if he is also competent to make that decision. Determine the patient can reasonably make this decision. If the patient is not capable of making a reasonable decision, then a practitioner cannot ethically or legally allow a discharge that could result in harm.

Of course, disagreeing with what the doctor suggests is not inherently unreasonable to the point of demonstrating a lack of competence to make a decision to leave.

An assessment of the patient’s ability to be rational under the circumstances includes whether the patient can understand the nature of his condition and the risks and benefits of treatment versus the refusal of treatment

A patient who is intoxicated, suffers from a psychiatric disorder, or is simply very sick is not solely by virtue of that condition incompetent to make a decision about whether to accept care. The inebriation may be mild or the mental illness may be encapsulated. So while the patient is certain that he is Napoleon, he might be able to also understand the gravity of appendicitis.

These are case-by-case assessments in which your own standard is that of the reasonably prudent physician. If you can document objective rationality on the patient’s part as to their medical care then the competency standard is met.

However, a critical caveat is the treating doctor should not determine competency in truly questionable cases because of the obvious conflict of interest. If you are really uncertain, get a psych consult because, in any later action, you will be able to claim reasonable reliance on what the psychiatrist finds.

3. Was the patient properly informed of the consequences of leaving AMA?

Leaving AMA is the strongest expression of refusal of care. For that refusal to be one that you can legally and ethically sign off, it must be informed.

As with informed consent, the patient’s signature on a form is merely a memorialization of a process of informing that must itself be documented.

Informed refusal and informed consent are actually two sides of the same coin and so they use the same criteria: the discussion should be of the risks and benefits of stopping treatment.

How to document this discussion is a matter of varying opinion.

Some defense attorneys suggest merely saying “risks and benefits.” But from the plaintiff’s side, I believe this to be a strategy far more risky than beneficial. It limits you to claiming that you probably mentioned dizziness when you are later being sued by a patient-now-plaintiff who got dizzy and fell down the stairs and broke three vertebra and is, of course, now claiming that you never mentioned dizziness.

Since most injuries due to untreated conditions will occur through expected routes – horses rather than zebras – it’s best to specifically list the major points that you covered. Those will have been the most important ones. Do so within the statement that the risks discussed “included but (were) not limited to…”. It gives you room to maneuver in your testimony, particularly if you really do not remember what you said, but it locks you in on points that any reasonably prudent physician would have covered and any reasonably prudent patient would have wanted to know.

Take a look at a case from New Jersey:

The pregnant plaintiff experienced abdominal pain, vomiting and diarrhea. She came to the hospital and later miscarried. She then felt better and said that she wanted to go home to be with her family. She was told that she would have to sign out AMA and did so. However, she was not told that she had an elevated white count and a fever that indicated persistent infection. She eventually suffered a ruptured appendix with peritonitis. She sued arguing the doctors failed to disclose the material hazards of not staying in the hospital. While they had discussed issues related to the miscarriage, they had not discussed potential consequences of infection. The plaintiff’s ability to sue was upheld on appeal.

The next issue is documenting the patient’s understanding of what they were told.

Don’t use hospital-speak like “Patient verbalized understanding”.

It is a bizarre and off-putting way to say what you want an eventual jury of people to understand: that the patient said that he or she understood what you said.

It also leaves out the legally important point that the patient was actually asked if they had any questions. After all, “verbalizing understanding” could be just going “Uh, huh” as you talk but it would not satisfy the ethical or legal mandates that you are under.

Instead, consider writing “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).”

This also takes you back to proof of competency – that you could have a substantive back and forth discussion with the patient and while you may not agree his decision was ideal, it was also not so unreasonable as to vitiate decisional competence.

If your hospital has an AMA template you can use it. But if it leaves out these issues then you should consider adding them by hand or by free-texting. 

4. Trying to prevent the AMA discharge

A physician’s duty of care requires him to act reasonably under the circumstances.

When confronted with a patient insistent on leaving despite what the doctor believes is a serious health matter an essential part of reasonable conduct is ascertaining why he wants to leave.

What may appear voluntary may actually reflect the fact that the patient is uninsured, fears losing his job, is the sole caretaker of a child or elder, or is simply terrified of finding out that he has a serious illness. Even the archetypal AMA patient – the young male substance abuser – inherently has the issue of that substance abuse, likely compounded by poverty.

It is absolutely not the standard of care that a doctor become a social worker who solves every patient’s issues. What is required – and should be documented: the doctor at least tried to ascertain the reason the patient was trying to leave and to offer alternatives if such are available.

The patient who leverages a threat to leave AMA into care to a level the doctor believes is dangerous is asking that doctor to violate his duty to act for the patient’s benefit.

The doctor who agrees to do so may actually be falling below the Standard of Care, thereby engaging in actionable professional negligence.

You will get no credit for being caring when you give an oral antibiotic to a patient whose pneumonia meets the criteria for inpatient treatment or give a prescription for warfarin to an alcoholic with a DVT who then gets drunk and falls and suffers an intracranial bleed.

What you will get is a Summons and Complaint, the opening of a case that you may lose.

In other words, if the situation is severe enough so that you cannot safely let the patient go do not consider reducing your own care to a substandard level. Instead, contact the Legal Department and have it dealt with as a situation in which AMA discharge cannot be permitted.

Before we proceed, a brief reminder: Medical Justice is equipped to help doctors address a bevy of medico-legal threats, including those propelled by patients who are determined to evade necessary care. Schedule a free consultation with our Founder and CEO, Jeff Segal, MD, JD, using the tool below – or by visiting our consultation page. With that said, we return to the article.

5. Dealing with a lack of cooperation by the patient

If the patient refuses to sign the AMA form this refusal should be documented (with time and date) and witnessed.

6. Advice and prescribing

You have an established physician-patient relationship with the patient who is leaving AMA and this is now being formally terminated through the AMA discharge.

Unlike the ending of such a relationship from a practice at the doctor’s behest, there is no requirement of a period of bridging care. In this case it is the patient who is terminating the relationship.

Your duty of care still requires you to advise the patient to be vigilant of symptoms that should bring him back to the hospital and provide a prescription for medication required for his stabilization.

That latter point is where hospitals often drop the medico-legal ball. Risk managers are aware that courts and medical boards look at prescribing as strong evidence of an ongoing physician-patient relationship so they advise that prescriptions not be given to patients leaving AMA. However, this makes no sense when we consider that when a patient is discharged with the doctor’s approval they are typically given needed prescriptions. Those do not create an ongoing relationship.

Given what is standard conduct at the time of discharge, treating the AMA patient differently would not sit well with a jury in a later case if the lack of medication caused a serious harm.

If you are not holding the patient against his will because his condition is so serious that he cannot be allowed to leave — then you are in a situation comparable to a standard discharge and should be prescribing equivalently. Typically this will be for medications like pain killers and antibiotics. Of course, if you would not be sanguine to prescribe a medication with serious side effects or that must be monitored to a patient you are discharging willingly then you should not be prescribing those to the AMA patient.

7. Liability

A properly executed AMA discharge fundamentally counters physician liability in several ways:

(i) Termination of the duty to treat

The duty to treat is one of the basic predicates of a medical malpractice claim. A properly executed AMA discharge terminates it.

This does not, of course, vitiate a claim of negligence as to the prior care or as to actually letting the patient leave but it can cut off claims that arise immediately after the AMA discharge.

For example, in a case from Georgia a woman was injured when she tried to assist her daughter who had fainted after signing out AMA. The court held there was no obligation for the ER doctor to provide a wheelchair or personnel assistance for the daughter once she had signed out AMA. So there was no obligation owed to the mother who had to help the daughter when she then fainted.

The facts of the case do suggest short-sightedness in terms of letting a woozy patient struggle out on her own. But a lawsuit based on the duty of care that existed until the AMA discharge but not beyond it could not be maintained.

This principle may seem at variance with the previous discussion of the fact that the AMA patient should be given needed prescriptions. But the two cases are different. Providing the prescriptions would a culmination of prior care during a then-extant physician-patient relationship. The wheelchair case would be the start of a new relationship after an AMA discharge.

(ii) Proof of patient negligence

That the patient’s leaving AMA was a full or partial cause of a medical harm they suffered can be raised as a bar to proceeding at all in a contributory negligence state and as an off-set of damages in a comparative negligence state.

(iii) Assumption of risk

This is an affirmative defense in some jurisdictions to offset a finding of liability.

In an AMA case, the defendant doctor/facility would assert that the patient who chose to leave AMA thereby voluntarily assumed the risk of their subsequent injury.

This defense has 3 elements in an AMA case:

The patient was aware of the dangerous health condition.

The patient understood this danger because it was properly explained to them

The patient, in leaving AMA, failed to exercise care to avoid the danger.

The critical point in establishing this defense is that the patient actually had to know the risk with enough specificity to be held to the decision they made to leave. For example, the Alabama Supreme Court found that just telling a patient “you could die” as a general statement without any clinical facts was not sufficient even though the patient then did later die after leaving AMA.

This issue again therefore emphasizes the necessity of documenting informed refusal of care with appropriate specificity.

8. Payment issues

It is a common belief that an insurer may refuse to pay for all care if the patient leaves AMA, leaving the patient with the full bill. They can’t.

Insurers did try this in the past but it has long since been adjudicated that it is not possible for them to avoid paying for care already delivered based on the circumstances of the discharge. In fact, a 2012 study of 526 patients who left AMA from University of Chicago hospitals found that the 18 payment refusals that then occurred were all due to administrative issues and clerical errors and none were based on the AMA discharge.

It is therefore inappropriate to try to convince a covered patient to stay by telling him that he will otherwise have to pay in full out-of-pocket and it is unwarranted to be concerned that your hospital will disfavor you if patients leave AMA on your watch because they won’t get paid.

In summary: AMA situations account for only a small percentage of hospital discharges but they do present disproportionate liability risks unless handled appropriately. The process should be well-documented and include evaluation of capacity and competency and a discussion of risks and benefits that the patient understands and acknowledges. Properly executed, an AMA discharge significantly limits liability exposure and also offers important defenses.

[Medical Justice notes: This vignette inspired heated debate. A patient has early appendicitis. He is uninsured. The patient is concerned about cost. He pulls out a peer-reviewed paper suggesting that some subset of these patients can be successfully treated with antibiotics alone. He wants to try this as an outpatient and promises to return for surgery if his condition worsens. He also agrees to assume the risk if the should develop complications or die. As a surgeon, you want to provide definitive care – namely surgery. This is the best approach. But, the patient is currently refusing that option, and he is competent. The patient is signing out AMA. In that scenario, the option is to provide no prescription for antibiotics – and just let him leave – or to provide a prescription, with the understanding that approach is suboptimal statistically, but, he individually might improve. My personal opinion is to inform on the 3 options, surgery, antibiotics alone with possible surgery if no improvement, and no care. Document the risks and benefits of each approach. Since antibiotics with potential later surgery is better than just letting him leave AMA, I would favor providing the prescription. But, you’d have to document that the patient was informed of the best option, was competent, and refused the best option. Further, that approach (providing antibiotics prescription) is better than the worst option; an option that is likely to be implemented if the patient does not get what he wants.

There is no perfect answer to this conundrum.]

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Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.