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.