Refusal of Medical Aid

Refusal of Medical Aid

EMS PATIENT REFUSALS Amy Gutman MD EMS Medical Director [email protected] OVERVIEW Informed Consent Refusal of Care Transport Decisions Patient Restraint Non-Transport of Patients INFORMED CONSENT Protects medical decision

making autonomy Allows for legal information exchange between patient & provider If cannot make an informed choice, cannot refuse transport INFORMED CONSENT Patient permission legally required prior to any evaluation Expressed Consent Must be obtained from all physically or mentally able adult patients or emancipated minors Expressed consent must be informed consent Patients must understand risk:benefit ratio of refusing care vs consenting to care

Implied Consent Unconscious patient, minor or not competent Consent assumed based upon idea that a rational person would consent to treatment if they were conscious INFORMED CONSENT LEGAL HISTORY 1215 Magna Carta Right of personal security & freedom from non-consensual bodily invasions 1767 Slater v. Baker & Stapleton Required physicians to gain consent from pts prior to surgery 1912 Schloendorff v. Society of NY Hospital

Every human of adult yrs & sound mind has a right to determine what shall be done with his own body 1957 Salgo v. Leland Stanford Jr. University Board of Trustees Providers duty to disclose procedures nature, purpose, risks, alternatives 1960 Natanson v. Kline Disclosure of what a reasonable medical practitioner would make under similar circumstances 1982 Making Health Care Decisions (President Commission for Study of Ethical Problems in Medicine) Shared decision making is the ideal for patient-professional relationships that a sound doctrine of informed consent should support. CHILDREN & INCOMPETENT ADULTS

Cannot provide consent or refuse medical care / transportation Legal authority to give consent: Parent, Guardian, Power of Attorney, Next of Kin If life-threatening illness or injury when parent or guardian not present, care may be given based on implied consent If you believe parent / guardian denying care to a minor or incompetent adult, may involve police as well as medical control i.e. suspected abuse EMANCIPATED MINOR May give informed consent Person <18 years old who is: Married

Pregnant or a parent A member of the armed forced Financially independent & living away from home May still be considered a pediatric patient even if emancipated PATIENT REFUSAL There are many reasons for patient refusal, including denial, fear, failing to understand the seriousness of the situation, intoxication, etc. If you err on the side of providing patient care, your agency and medical director can justify your actions Criteria For Informed Consent & Refusal: Patient benefit

Patient Patient given complete & accurate information about risks for refusal & of treatment able to understand & communicate these risks & benefits able to make a decision consistent with their beliefs & life goals (cont.) ELEMENTS OF INFORMED CONSENT REQUIRED FOR A REFUSAL

ACDC Determining Comprehension / Capacity Autonomous decision Capable individual Disclosure of adequate information by provider Comprehension of information by individual Sliding Scale standard ~ the more serious the risk posed by

patients decision, the more stringent the standard of comprehension (capacity) required Refusal of EMS transport generally considered high risk COMPETENCY VS CAPACITY Competence is a 3 step legal test determined by a judge in court of law Can individual retain & comprehend relevant information? Can individual believe information? Can individual use information to make a rational choice? Capacity is a presumptive determination of competence If patient refuses & evidence indicates a capacity impairment, EMS may conclude patient would be found incompetent in a court of law Impairment determined by patients actions or information from caregivers, family, witnesses

CAPACITY Altered capacity Intoxication Certain psychiatric illness Dementia Mentally disabled Certain neurologic disease Normal capacity includes absence of deficits in: Cognition Judgment Understanding Expression of choice Mental stability

Determining capacity Talk to patient Can they process information? Observe for odor of ETOH or signs of intoxication / impairment Glasgow Coma Scale Normal vitals & glucose Absence of injury or AMS CAPACITY & REFUSAL OF CARE Disagreement with provider does not necessarily constitute lack of capacity Must consider patients capacity on every call If patient has capacity, provider must respect wishes even if contrary to educated medical opinion

Lane v. Candura Patient refused treatment despite physician advice Court ruled the irrationality of the decision did not justify a conclusion of incompetence TRANSPORT DECISIONS Patient requests, EMS agrees Easy decision, no liability regarding transport decision Patient requests, EMS disagrees Dangerous situation with enormous liability if patients condition deteriorates Always legally safer to transport Patient refuses, EMS disagrees Must ensure informed consent & if competent / has capacity High liability ~ always legally safer to transport

Patient refuses, EMS agrees Easy decision if patient competent with capacity Still with some risk for patient deterioration & liability DO ALL PATIENTS REQUIRE TRANSPORT? When do patients become patients? At entry into 911 system Zepeda v. City of Los Angeles (1990) Once EMS begins exam & treatment, a duty of reasonable care is owed to the patient Exam includes introduction of

self, as it is the 1st assessment of mental status & capacity How much RISK is your agency comfortable with? LAWSUITS & MALPRACTICE Negligence includes medical malpractice To prove negligence the plaintiff (patient) must prove that the defendant (provider) had a duty to the patient, breached that duty by not observing the required standard of care, & the failure of the defendant to comply with the standard of care was the cause of damage or injury to the patient If the plaintiff (patient) received no injury, negligence cannot be proved. EMS personnel have a duty to act, that is a duty to evaluate all patients requesting treatment because they present themselves

as providing that service Protect yourselfif you dont have personal malpractice YOU SHOULD!!!! PATIENT RESTRAINT False Imprisonment Restraint without proper justification or authority Intentional & unjustifiable detention of a person without consent Assault Unlawfully placing a person in apprehension of immediate body harm without consent Battery Unlawfully touching an individual without consent Abandonment Premature termination of provider:-patient relationship or failure to follow steps to ensure definitive care Reasonable Force

Dependent on force required to ensure patient does not cause injury to himself or others Excessive force is a high liability area ASSAULT & BATTERY If patient competent & refuses assessment, treatment or transport, you must respect their wishes Transporting competent patient against their will is false imprisonment Unlawfully touching competent patient without their consent is battery Treating a competent patient without their consent is battery A form of assault is in information released to the public in written or spoken format construed to be damaging to that persons character, reputation or standing within the community Defamation of character is assault The spoken form of defamation is slander, the written form is libel

False information found to be slanderous or libelous is highly litigious; rarely do courts rule in the offending persons behalf Remember this when vocalizing your opinions about patients or peers on a chart or in correspondence (i.e. Facebook) especially if based upon rumor & not fact WEBER V. CITY COUNCIL (OHIO 2001) 911 call re: patient having a stroke Providers told patient he was having a panic attack Documentation: Vital signs normal, Squad not needed Box checked for transport not needed Next morning patient found by family with significant neurological deficits, diagnosed with stroke at hospital

Agency & providers found liable for 3.5 million dollars Lead provider permanently lost license to practice Secondary provider fired, then voluntarily gave up license KYSER V. METRO AMBULANCE (LA 2000) 52 yo M found by girlfriend unconscious on floor called 911 EMS arrived, found patient conscious but still on floor Patient answered questions appropriately, allowed exam, refused transport Vitals abnormal x 2 (HTN, tachycardic) Paramedics followed refusal protocol

Contacted medical control who approved refusal Patient signed refusal Providers documented on-scene time of 45 minutes Girlfriend insisted on transport, but medics told her they could not without his consent KYSER V. METRO AMBULANCE Paramedics left patient with girlfriend. When his parents later arrived (called by girlfriend), patient still refused to go to ED During night, patient vomited & had seizure. Girlfriend re-called 911 & patient was transported to ED & diagnosed with ruptured cerebral aneurysm Louisiana provides for EMS liability only in cases involving gross negligence

Trial court dismissed case Appeals court affirmed no gross negligence as refusal was valid, State & regional protocols followed, medical control contacted & EMS thoroughly documented efforts to convince patient to be transported GREEN V. CITY OF NEW YORK (2009) Failure to determine if ALS patient had capacity to refuse treatment formed basis for a claim EMT-P failed to follow NYC protocols for communicating with disabled patient Patient rationally communicated by blinking & by computer EMT-P forced transport despite familys protests Family claimed patient denied ability to refuse care after new caregiver panicked & called 911 when patient had coughing episode Paramedic found negligent & charged with both assault & batter to failure to follow protocols, failure to contact medical control &

transport of a competent patient against their will WEAVER J. PREHOSPITAL REFUSAL-OFTRANSPORT POLICIES: ADEQUATE LEGAL PROTECTION? PEC 2000. (CITY OF BOSTON EMS) OBJECTIVES: Determine % of EMS systems utilizing formal refusal policies RESULTS: 78 of 86 EMS services (91%) utilize formal refusal-of-transport policies 83% mandated establishment of competence, 97% orientation x 3, 66% lack of intoxication, 58% comprehension of condition, 48% comprehension of treatment risks & benefits, 42% clear speech, 3% lack of head trauma, 2% age-appropriate behavior, emotional control & no loss of consciousness 15% of 65 policies required MD contact, 5% supervisor contact, 1% police contact 99% policies required patient to sign a statement of refusal 81% required documentation of vitals signs Only 32% policies contained all elements recommended in medicolegal literature

CONCLUSION: Majority of EMS systems surveyed have policies to guide providers in refusal management. <1/3 policies contain all elements protective against legal challenges DOCUMENTATION POINTS Competency and Mental Status A & O X 3 & Cooperative? NO coercion to refuse (i.e. police) Suspected presence of alcohol / drugs Conditions precluding competence or a reason why cannot be determined 911 call information Who called & Why?

HPI, PMH, Medications, Physical Exam 2 sets of vitals 15 mins apart ensures on scene long enough to examine discuss informed consent Contact with Medical Control (if obtained) DOCUMENTATION POINTS Describe conversation with patient, family, bystanders Document person signing refusal (i.e. self, parent, guardian) Neutral party should witness if family unavailable EMS personnel should witness only as a last resort Document suspected diagnosis, limitations of EMS diagnosis & consequences of refusal explained to patient

Document patient understood conversation including potential consequences of refusal (always include loss of life or limb) Document patient advised to call EMS if they changed their mind or if condition changes Document patient advised to contact their physician or seek further medical care on their own Patient Refusal Checklist Utilized with PCR report

Patient given a copy REFERENCES Carolines Emergency Care in the Street. Jones & Bartlett. 2012 Limmer et al. Emergency Care 11th ED. Brady. 2009. Page, Wolfberg & White Website (www.pwwemslaw.com) www.NAEMT.org www.NAEMSE.org

www.iaff.org SUMMARY [email protected] Patient refusals among the highest liability cases & as such require the most through documentation Generally the only way the CQI officer or Medical Director knows about these cases is if patient ends up in the ED with a bad outcome Hiding calls a great way to lose your license No documentationno defense in court Understand concepts of informed consent Competent, adult patients have the right

to refuse care even if you disagree Make sure you document thoroughly including involvement of the medical director

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