The inebriated patient who wishes to leave the emergency department against medical advice, should be considered analogous to any patient who wishes to leave but has an altered mental status. There is a duty to protect patients who cannot make an informed decision. From a legal standpoint, it is better to err on the side of paternalism. Protect the patient who may not be competent to make decisions from harming himself or others. In some states, the EP may also have a legal duty to protect third parties, outside of the patient-physician relationship. For example, if an intoxicated patient leaves the department and drives home, injuring a pedestrian, in some states, the third-party pedestrian may have a cause of action against the emergency physician for negligent discharge of an intoxicated patient.

For medical purpose we agree with one author who suggests “alcoholic patients who have ethanol blood levels above the legal limit but who show no evidence of concurrent significant illness or injury and are functionally sober can probably be safely discharged.” These patients are not clinically intoxicated and discharge is appropriate. For those patients who are to be discharged and have a relatively high blood alcohol (meaning above 0.08 or 0.10 “the legal limit”), extensive documentation of capacity needs to be done and special discharge arrangements must be made. It is this situation where judges and juries will rely on the numerical value rather than the physician’s assessment of ‘functional sobriety’ or clinical intoxication. It would be extremely difficult to prove a patient was functionally sober at a level of 250 or 300, particularly if they were discharged and had a bad result, therefore, if a level is drawn, legal liability and risk would be reduced if discharge is delayed until the blood alcohol is at or near the legal limit.

An error on the side of missing a diagnosis in an alcohol impaired patient may be devastating in terms of patient death or disability, with the possibility or resulting litigation. Erring on the side of restraint and continuing patient management has received support by state legislatures and courts in many jurisdictions. The legal downside of this course of action would be a suit related to assault, battery or false imprisonment, or perhaps an administrative action brought by a state Human Rights Commission or other similar entity. In general, the EP will fare far better in these latter actions, asserting his dedication and concern for the patient’s wellbeing.

Finally, if the patient is permitted to leave AMA, the emergency physician must provide clear documentation of clinical capacity prior to discharge. Discharged patients should always have arrangements for support and follow-up and should be offered the option of substance detoxification.

Case # 1

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 X-ray was read as normal by the emergency physician. The patient was released to the custody of the sheriff's department, against medical advice. 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 “medical negligence” to miss it. Further, 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 injury was probably caused by the blow itself and any delay in treatment was inconsequential. Therefore, this case should have failed on the causation issue. Causation is one of the essential elements of a medical malpractice action. The plaintiff must prove that a breach in a standard of care caused the patient’s injury. If the injury occurred unrelated to a breach in a standard of care, as in this case, then an essential element of the action is missing, and the lawsuit should fail. Based on the medical facts, this case should have failed. However, the discharge of an intoxicated patient with a skull fracture is somewhat inflammatory, and the defense team may have been hesitant to bring this case before a jury. Therefore, the case never made it to the jury, it was settled prior to arguments over the causation issue.

A review of recent "against medical advice" cases indicates that the AMA defense is an extremely strong defense when used in the appropriate circumstances. If a patient has a normal mental status, and makes an informed refusal of care, then the AMA defense wins in almost every case. 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", the 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".

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 our medical management of the intoxicated patient. However, in fact, judge and jury often use this level as a threshold level for decision making, even the in recent years the “legal limit” has become a moving target. The legislative limits of intoxication have been reduced in several states in the last several years. Regardless, if the patient's level is above the legal limit, they often conclude that the patient cannot make an informed decision. Certainly, the plaintiff's attorney reinforces that point.

As emergency physicians we know that some of our "regulars" can walk into the emergency department and have a normal mental status with a blood alcohol level well over the “legal limit” of intoxication. In these cases, it is appropriate to discharge a patient having documented a normal mental status through a formal mental status examination, and document that the patient understands the risks of leaving the emergency department (i.e. 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 not on your clinical judgement.