This month we look at a case involving leaving the hospital against medical advice (often referred to as leaving ‘AMA’). Generally, if a patient leaves the health-system AMA, and it was thoroughly documented by the physician, then the physician is protected if the patient suffers consequences from his own actions. However, there are some instances where AMA is far less likely to work as a defense. This case is a good example of one of these instances.

Dr M, 42, was an emergency medicine physician working in the emergency department of a large and busy hospital. In his years in the emergency department, Dr M had seen almost everything, including several patients who were brought into the ED in police custody. Therefore, he wasn’t surprised when one afternoon the police showed up in the ED with an injured man in tow.

The police informed Dr M that the patient, a 24-year old named Mr G, had been the perpetrator of an assault and in the process was hit in the head with a blunt object by a bystander. The police were called, and found him lying on the street, clearly intoxicated and with a bloodied head. They took him to the ED, but Mr G was uncooperative and initially refused any treatment. 

“I don’t need anything,” the patient said belligerently to Dr M. “I just want to leave.”

Dr M calmly explained that a head injury could be dangerous and that some tests should be done. Eventually, Mr G consented to a skull x-ray and a blood test. The blood test showed that the patient was over the legal intoxication level. Dr M read the x-ray as normal but wanted to keep the patient for observation. However, Mr G was adamant that he did not want to remain in the hospital. The physician attempted to explain the reasons why Mr G should stay for further observation, but the patient remained insistent that he wanted no further treatment.

The physician noted in the patient’s file that the patient was leaving the hospital against medical advice. Mr G was released to the custody of the police and taken to jail. 

Later that day, a hospital radiologist read the patient’s x-ray and noted a markedly depressed left parietal skull fracture. The police were notified, and the patient was taken from jail back to the hospital. At the hospital, he was monitored for several hours and then taken to surgery where the depressed fracture fragments were elevated. However, Mr G ended up suffering a brain injury from the fracture which affected his cognitive abilities, and which prevented him from being able to hold down a job.

The patient and his family consulted with a plaintiff’s attorney who agreed to take the case. Dr M was stunned to find out that he was being sued for medical malpractice. The lawsuit claimed that Dr M had failed to recognize the patient’s skull fracture and improperly released him when he was intoxicated, and that the delay in treating the fracture was attributable for approximately half of the patient’s neurological deficits.

Dr M met with the attorney provided by his medical malpractice insurance.

“The patient’s injury was caused by the blow to his head,” said Dr M, “not the delay in treatment. The delay was inconsequential.”

The attorney agreed that the plaintiff might have difficulty proving causation, since he would have to prove that it was the delay in diagnosis that led to the injury. And indeed, causation is one of the required elements of a medical malpractice case (along with duty of care, breach of that duty, and injury). Without every required element, a malpractice case will fail. 

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However, the attorney was very concerned about the fact that the physician had let the patient leave the hospital against medical advice, while he was legally intoxicated. Although the physician was prepared to testify that although the patient was legally drunk, he was still lucid enough to make the “against medical advice” decision, the attorney advised him that this would be a dangerous course of action and that settling the case out of court would be wiser. The case settled out of court for an amount within the physician’s malpractice limits.

Legal Background

In general, the “against medical advice” defense is an extremely strong defense when used in the appropriate circumstances. In regular circumstances, where the patient has normal mental status and makes an informed refusal of care (which is noted in the patient file), the physician is protected from liability.

The AMA defense wins in almost every such case, even when a jury makes the decision. However, juries are much less lenient if there is a question about the patient’s ability to provide an informed refusal, and thus, an informed AMA. In general, the AMA defense is a good one, but only when there are no questions as to the patient’s mental capacity to make that decision.

Protecting Yourself

The old adage goes “you can lead a horse to water, but you can’t make him drink.” The same holds true for patients. You can recommend treatments, tests, screenings, but you can’t force a patient to accept a treatment or test they do not want. You cannot keep them in the hospital against their will. Usually.

In normal cases, simply documenting that the patient acted “against medical advice,” explaining what that advice was, and noting that the patient understood the possible consequences will generally shield you from liability. But this is not the case if the patient is intoxicated. If a patient’s blood alcohol level is above the local legal limit for driving, judges and juries will often conclude that a patient cannot make an informed decision.

Because of this, it is wise if you have a patient with a blood alcohol level above the limit to wait until that patient’s level is below the level of intoxication before allowing them to make an AMA decision. Do not release the patient until the blood alcohol is less than the legal limit of intoxication in that jurisdiction. And always be very clear on documenting that the patient understood the ramifications, that the patient was not intoxicated or impaired, and that the patient was acting against your best medical advice.