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Claims & Litigation

Leaving against medical advice: Facing

the issue in the Emergency Department

By Edward P. Monico, MD, JD,

and Ian Schwartz, MD Patients leaving the emergency department (ED) against medical
advice (AMA) represent 0.1% to 2.7% of all ED patients. These
patients create significant angst for emergency physicians because
these patients frequently have serious underlying medical pathology
and tend to represent a higher-than-average source of medical-
legal liability than other ED patients. This article attempts to miti-
gate these risks by reviewing what we know about AMA encoun-
ters from the ED and providing documentation guidelines for the
encounter.

INTRODUCTION
Patients who leave the emergency department (ED) against medical advice
(AMA) represent 0.1% to 2.7% of all ED patients. Between 2006 and 2008,
the Yale New Haven Hospital ED experienced an AMA rate of approximately
1.6%. These numbers may seem relatively small, yet patients who leave the
ED AMA are the source of significant angst for emergency physicians because
they frequently suffer from serious underlying medical pathology. They also
tend to represent a higher-than-average source of medical-legal liability than
other ED patients.

Despite the medical and legal ramifications of AMA encounters, there has been
relatively little scholarly interest in the medical literature dedicated to risk
reduction through documentation strategies. This article explores how to miti-
gate the risks of treating these patients by reviewing what’s known about AMA
departures from the ED and providing documentation guidelines for the AMA
encounter.

AMA landscape
Phenomenon shows significant increases
The medical literature suggests an exponential rise in the rate at which patients
leave the ED AMA. Dubow, Propp, and Narasimham in 1992 were credited
with the first reported AMA rate, at 0.1%.(1) Now studies estimate the current
rate to be approximately 2.7%.(2) Although no single factor is responsible for
driving this increase, ED overcrowding, healthcare manpower shortages, and
lack of healthcare access and insurance probably all have their hands on the
wheel.

Other research reveals that patients who sign out of the ED AMA possess
serious medical pathology as reflected in return visits for asthma(3) and in

© 2009 American Society for Healthcare Risk Management of the American Hospital Association
Published online in Wiley InterScience (www.interscience.wiley.com) • DOI: 10.1002/jhrm.20009

6 JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 29, NUMBER 2

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the incidence of coronary artery disease.(4) They also
possess a penchant for litigation.(5) In fact, these
patients sue the emergency physician and hospital nearly
10 times as often as the typical ED patient, yielding a
rate of about 1 in 300 AMA cases and resulting in litiga-
tion versus the usual rate of 1 in 20,000 to 30,000 ED
visits.(6)
Understanding the terminology
Reputation notwithstanding, emergency physicians
possess relatively little knowledge about how to navigate
through an AMA encounter. The limits of knowledge
of AMA patients are perhaps most evident in the way
scholars and practitioners use the term against medical
advice. The term in practice and in the literature is used
to describe a range of patient dispositions regardless
of whether medical advice was rendered and without
regard to what, if any, information a patient drew on
to decide to deviate from the provided healthcare
advice.
While some academic scholars reserve use of the term for
encounters that involve an exchange of information
between patient and physician,(7) others tie its use on the
timing of discharge,(8) and some never attempt to define
the term at all.(9)
This article relates the discussion to patient dispositions
from the ED that occur after the patient is equipped with
sufficient information to allow him or her to make
informed decisions to reject recommended medical advice.
Informed consent and the origin of free choice
The origin of the informed consent doctrine that under-
lies a patient’s right to refuse medical treatment can be
traced to the intentional tort of battery. (See Exhibit 1.)
Under this rubric, failure to obtain informed consent
constituted an unlawful touching because the physician
was limited by the consent given.(10)
In the 20th century, courts further defined and expanded
informed consent doctrine to include negligence. The
common thread running from tort to battery lies in the
ancient Anglo-American prohibition of physical trespass
and the fundamental right of every individual to deter-
mine what will be done with his or her body.(11)
To the extent that the medical community has defined
any disclosure standard, that standard is based on profes-
sional consensus and custom, not an objective analysis of
patients’ informational needs.(12)
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Exhibit 1:
The Right to Say No

Any competent adult can say no to medical treatment, even if the physician believes the treatment is in the person’s best
interest. However, there are significant limitations to the right to refuse treatment relevant to the ED:
• A person must be competent to refuse treatment. This is not a psychiatric standard. The attending physician must
believe that the patient understands the situation and the consequences of refusing care.
• The patient’s desires and rationale for refusal of treatment must remain constant over time—at least long enough for
the interview to be completed.
• The patient’s refusal to cooperate with evaluation by not giving adequate history or allowing an examination may be evi-
dence of impaired capacity but is not conclusive. Patients do have the right to exercise unimpaired yet bad judgment.
• Impaired judgment may occur because of denial, psychiatric illness, cognitive impairment, or delusional states such a
paranoia or acute organic disorder. If the patient understands or has decisional capacity, a poor decision alone is not
grounds for a finding of incompetence.
• Impairment because of drugs, organic illness, dementia, or psychosis should trigger careful consideration of the
patient’s rights to refuse care in the emergency setting.
• In assessing decisional capacity, the ED physician should perform and document a screening medical exam, including
the patient’s ability to 1) render a choice, 2) understand relevant information, 3) appreciate the situation and its conse-
quences, and 4) rationally manipulate information.
• Staff should document any evidence of physical or psychiatric pathology or chemical impairment. These make it clear
that the patient doesn’t simply have bad judgment.
The ED physician should be aware of pertinent state statutes concerning the legal process that must be followed to have a
person adjudicated mentally incompetent or to request judicial approval to administer certain treatment over the objections
of a competent adult.

Source: Risk Management Pearls for the Emergency Department (2nd ed.). © 2007 American Society for Healthcare Risk
Management of the American Hospital Association.
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Liability
It is not difficult to advance the notion that AMA
encounters provide the perfect medium to foster litiga-
tion. First, patients who leave AMA from the ED fre-
quently have serious underlying pathology.(13,14)
Second, their departure from the ED is frequently acri-
monious. Patients prone to experience adverse outcomes
who leave angry often seek legal redress to remedy their
situation.
Liability frequently rests on whether the negative outcome
is viewed as flowing from physician negligence or the
assumption of risk that patients accept when exercising
their right to make healthcare decisions. Two areas may
dictate which way the pendulum will swing in any given
outcome in AMA cases.
First, liability may attach if the documentation
indicates a patient was discharged when, in fact, the
patient left AMA. Second, even when patients
ostensibly leave AMA, liability may arise if it can
be shown that the patient relied on insufficient infor-
mation to make the decision to leave. Insufficient
information includes failing to inform a patient of
foreseeable risks, failing to provide information regard-
ing treatment or diagnostic alternatives, and a failure
to document what transpired between provider and
patient.
Documentation Recommendations
Documentation is frequently viewed as the sine qua non of
risk management. Nowhere is this more important than
when memorializing the AMA encounter. The ability to
demonstrate that patients were informed of the risks of their
decisions goes a long way to limit liability for adverse events
occurring after an AMA disposition.
The following seven points should serve as a medical-legal
floor for constructing AMA documentation:
1. Document that a patient possesses the competence and
capacity to make healthcare decisions. Competence
refers to the ability to make a healthcare decision rec-
ognizable at law.(15) Capacity speaks to having the
medical understanding to make such a decision.(16)
In this regard, simply stating the patient “under-
stood” what was discussed without elaboration may
be difficult to substantiate in court. Instead, physi-
cians should document the patient’s ability to provide
a lucid history and demonstrate the ability to reason,
as well as exam findings such as Glasgow coma scores
to contribute to an assessment of competence and
capacity. The lack of mitigating factors such as
intoxication and distracting injury should also be
documented.
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2. Document that the patient was informed of the
extent and limitation of the evaluation conducted up
to the point the patient expressed the desire to make
an AMA decision. For instance, documentation
that a patient was informed that a negative ECG
and cardiac enzymes does not conclusively eliminate
the possibility of an acute coronary syndrome would
be of paramount importance when a patient with
chest pain refuses further evaluation for that
symptom.
3. Document that the patient and physician were in
agreement during discussions of the presenting signs
and symptoms and that the patient was made aware of
the specific concerns the physician had regarding the
presentation.
4. Demonstrate that the patient was informed of the risks
of forgoing treatment. This includes, for example,
informing the patient with a headache of the risk of
death from an intracranial hemorrhage if he or she
leaves AMA. Other required documentation includes
enumerating reasonably foreseeable complications such as
notifying a patient with asthma leaving AMA of the
risk of out-of-hospital respiratory arrest or the risk of
prolonged hospitalization.
5. Alternatives to the suggested treatment, if they exist,
should be discussed and documented. Continued
observation in the ED or an observation center are
examples of alternatives that patients should be
offered.
6. Explicitly state and document that the patient left
AMA as well as the specific care and treatment that was
refused. Simply writing “patient refused care” may be
legally insufficient and construed as a conclusion with-
out the contextual reference of what care the patient
was offered but refused.(17)
7. Mention that the patient was provided the opportunity
to ask questions, offered timely follow-up, and received
discharge instructions. Each patient leaving the ED
AMA should be urged to return to the ED if he or
she has a change of mind regarding the initial refusal
of care.
CONCLUSION
Patients who leave the ED AMA may represent an
increasing liability risk to emergency medicine physicians
continued on page 15
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in light of the current healthcare crisis and the burden
that crisis places on emergency care.
Acknowledging this group of patients through increased
academic interest and risk management endeavors is nec-
essary to enable the medical community to better under-
stand what these patients mean in terms of healthcare risk
and liability potential.
REFERENCES
1. Dubow D, Propp D, Narasimham K. Emergency
department discharges against medical advice.
J Emerg Med. 1992;10(4):512–516.
2. Ding R, Jung JJ, Kirsch TD, Levy F, McCarthy ML.
Uncompleted emergency department care: Patients
who leave against medical advice. Acad Emerg Med.
2007;14(10):870–876.
3. Baptist AP, Warrier I, Arora R, Ager J, Massanari
RM. Hospitalized patients with asthma who leave
against medical advice: Characteristics, reasons,
and outcomes. J Allergy Clin Immunology.
2007;19(4):924–929.
4. Lee TH, Short LW, Brand DA, et al. Patients with
acute chest pain who leave emergency departments
against medical advice: Prevalence, clinical character-
istics, and natural history. J Gen Intern Med.
1988;3(1):21–24.
5. Devitt PJ, Devitt AC, Dewan M. Does identifying a
discharge as “against medical advice” confer legal pro-
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6. Bitterman RA. Against medical advice: When
should you take “no” for an answer? Lecture pre-
sented at the ACEP Scientific Assembly. Chicago,
Oct. 30, 2008.
7. Ding R, Jung JJ, Kirsch TD, Levy F, McCarthy ML.
Uncompleted emergency department care: Patients
DOI: 10.1002/jhrm AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 29, NUMBER 2
who leave against medical advice. Acad Emerg Med.
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9. Solomon R. Ethical issues in emergency medicine.
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10. Shugrue RE, Linstromberg K. The practitioner’s guide
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11. Schloendorff v New York Hospital, 211 N.Y. 125, 105
N.E. 92 (1914).
12. Canterbury v Spence, 464 F2d 772 (DC Circ. 1972).
13. Baptist AP, Warrier I, Arora R, Ager J, Massanari RM.
Hospitalized patients with asthma who leave against
medical advice: Characteristics, reasons, and outcomes.
J Allergy Clin Immunology. 2007;19(4):924–929.
14. Lee TH, Short LW, Brand DA, et al. Patients with
acute chest pain who leave emergency departments
against medical advice: Prevalence, clinical character-
istics, and natural history. J Gen Intern Med. 1988;
3(1):21–24.
15. Black’s law dictionary. 7th ed. 1999. West-Thomson
Reuters, St. Paul, MN.
16. Parker M. Patient competence and professional
incompetence: Disagreements in capacity assessments
in one Australian jurisdiction, and their educational
implications. J Law Med. 2008;16(1):25–35.
17. Miller S. Obtaining a valid AMA. JEMS. 1996;
21(2):54–55.
THE AUTHORS
Edward P. Monico, MD, JD, Yale University, New Haven,
CT; Ian Schwartz, MD, Yale University, New Haven, CT.
15