The competent adult patient has the right to refuse medical care at any point during the ED visit. The incompetent adult cannot consent to, or refuse medical care. Consent provided by a patient who is incompetent is not legally valid. Before a patient leaves the ED against medical advice, the EP must be sure that the patient is competent to refuse care. The physician must balance the patient’s right to informed consent and self-determination with his own ethical and legal responsibilities to treat illness according to accepted medical practice. The courts, while supporting patients’ rights to refuse recommended medical treatment, have found physicians negligent when they complied with incompetent patients’ refusal to receive treatment.


Case # 2 The Intoxicated Patient Signs out Against Medical Advice

The patient was in his twenties when he suffered blunt head injury during an assault. He was found by police and taken to the defendant hospital's emergency department. The plaintiff was uncooperative and initially refused treatment but eventually consented to an X-ray of the skull. The emergency physician read the X-ray as normal.

The patient was released against medical advice to the custody of the sheriff's department. The defendant physician claimed that the patient was legally intoxicated, but was lucid enough to make an "against medical advice" decision. The radiologist read the x-ray later that day and noted a markedly depressed left parietal skull fracture. The plaintiff was taken from jail to a hospital, monitored for several hours and then taken to surgery, where the depressed fracture fragments were elevated. The plaintiff suffered a brain injury from the fracture and suffers cognitive deficits which "prohibit gainful employment".

The plaintiff claimed that the emergency physician failed to recognize the skull fracture and improperly released him while he was intoxicated and that the delay in treating the fracture contributed approximately half of his neurological deficits. The defendants contended that although the fracture was present, it was not negligence to miss it and that any injuries to the plaintiff were caused by the blow itself and the delay in treatment was inconsequential.

According to reports, a $200,000 settlement was reached with the emergency physician paying the entire amount.


Case Commentary

This case presents several important issues. First, the blow probably caused the “brain injury” injury itself and any delay in treatment was inconsequential. Therefore, this case should have failed on the causation issue. That is, the injury would have been present anyway regardless of whether or not there was a breach in the standard of care. However, this case never made it to the jury, it was settled prior to arguments over the proximate causation issue.

This case presents an obvious issue of patient competence. If a patient has a normal mental status, and makes an informed refusal of care, then the AMA defense is quite strong. Although these issues must go to a jury, the jury tends to support the emergency physician. However, if there is a question about the individual's ability to provide an informed refusal and thus, an informed "AMA", juries are not nearly as lenient. In this case, the physician admitted that the patient was intoxicated, but noted that the patient was able to give a legitimate "AMA". The fact that the patient was intoxicated is certainly suggestive of impaired mental status.

An important related issue is the “legal limit” of intoxication. Judge and jury often think of intoxication as anything over the local legal limit for intoxication. The legal limit is typically used for driving under the influence cases, and should have no bearing on the medical management of the intoxicated patient. However judge and jury often use this level as a threshold level for decision making. If the patient's level is above the legal limit, they often feel that the patient cannot make an informed decision. Certainly, the plaintiff's attorney reinforces that point.

Emergency physicians know that the chronic alcoholic can present to with a normal mental status and significant elevation of blood alcohol. In these cases, it is appropriate to discharge a patient having documented a normal mental status through a formal mental status examination, document that the patient understands the risks of leaving the emergency department and make certain that you've documented an informed refusal. If there is no documented serum alcohol level, then the judge and jury must rely upon your clinical assessments, which is appropriate. If you've ordered a blood or serum alcohol, judge and jury may be swayed by the level and may not rely upon your clinical judgement.

The issue of appreciating one’s medical condition and the risks of not receiving treatment appears to be the critical dimension in legal proceedings regarding competence. In the case of Harvey “U”, a New York court addressed the situation of a homeless schizophrenic man with gangrene of both feet as a result of frostbite. The patient experienced hallucinations and paranoid delusions. The court determined that the patient was incompetent to make an informed decision since he did not comprehend that by refusing to undergo surgery he could die. In the case of Lane v. Candura, a patient’s periods of cognitive confusion and disorientation to time did not result in a determination of incompetence. The patient was a 77 year-old women with gangrene of her right leg. She initially consented to the operation but later changed her mind. The patient presented reasons for refusing treatment and demonstrated an understanding that her decision could lead to death.


The Mental Status Examination

The mental status examination is a useful starting point in assessing competence. The ability to process information, and thus to understand proposed treatments and available options may be impaired by: significant deficits in attention or concentration; extreme anxiety, delusions, or shock; dementia, psychosis, intoxication or other abnormalities identified on mental status examination. When discharging a patient AMA, the EP physician should document the fact that she performed a complete mental status examination. It is probably not necessary to document the details of that exam, but the EP may have to testify to those details during subsequent litigation.

The Reasoning Process

When a patient refuses a recommended course of treatment that has a high potential for saving or significantly prolonging life, or avoiding morbidity or disability, the EP should also examine the patient’s reasoning processes. Critical factors include whether the patient is aware that serious illness and/or death may result from treatment refusal and the rationale behind the decision. Patients who refuse recommended medical treatment may offer a rationale that is at variance with accepted medical knowledge. For example, the Jehovah Witness will refuse blood products, for fear of losing eternal life. The EP may not understand or agree with the philosophy. Even so, patients may be considered competent if their decision is consistent with a personally held philosophy, theology or value system.