The almighty pen: liability and patient refusals


CarolinaFireJournal - Bradley Dean
Bradley Dean
04/29/2011 -

“EMS told us ... that she was not sick enough to transport and they would just take her to triage, and it was cheaper for us to take her by car,” was one of the quotes from a family member after a crew looked at her on scene and she was complaining of nausea, vomiting, and diarrhea for the past day or so.

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This is one situation of an increasing number where EMS providers are being challenged by an ever more aware public concerned about the healthcare they receive, whether it be from a personal physician, an emergency department nurse or the local EMS service.

Over the last few years I have reviewed many calls for quality assurance and improvement purposes and it seems that the root cause of documentation problems many times has to do with apathy and attitudes. The main intervention we provide to patients is human interaction, and if providers do not communicate well with patients, or do not care much about the paperwork necessary to document their care, it is likely that the documentation will suffer. Documentation is an important aspect in our patient care. While documentation alone may not stop a lawsuit, it can certainly shorten it and strengthen the EMS provider’s standing in court.

Most of the time when complaints come in over issues you will find that while reviewing the patient records, there is no documentation to disprove any of the complaints. It is a very unfortunate set of circumstances for a chief officer to be put into position of being unable to defend a provider due to inaccurate, incomplete, or just absent documentation.

As lawsuits go, there are several areas that tend to affect us, and refusals are at the top of the list. In researching information on EMS liability, refusals led to more than half of EMS litigation. While you may not be aware of any issues in your jurisdiction, they may be occurring without your knowledge, leading to your community settling large sums of money out of court.

A quick reminder that any money spent on lawsuits and settlements is money your jurisdiction no longer has available to pay for raises for EMS providers who try to do the right thing for the community’s patients.

Given that refusals are such an important part of what we do, let us consider some of the factors that go into writing a legally defensible refusal.

Preparation and Payment Issues

Expect the unexpected. If you are in management and know that your organization has never suffered through a legal proceeding, congratulations! Keep in mind, just because you have never been on a seizure call does not mean you should disregard it as a possibility that you agency will have to face. It is imperative that agency leaders understand the issues that go into a patient refusal and prepare for the day it happens in your jurisdiction.

We should train providers that payment is not the basis for emergency service; the patient is the basis for emergency service. Somewhere in the past decade, EMS has become about pay for service instead of people receiving prompt transportation to the emergency department for significant medical challenges they are facing. We are letting the “tail wag the dog” in that if insurance will not cover it we assume it is not a needed service. We must understand that insurance and Medicaid dictate what they pay for, not what service we render.

Stories about EMS providers not taking patients, either because their injury or illness is not serious enough, or because they may not be able to pay, casts EMS in a negative light. In most cases, the street providers do not collect funds for transport, so it seems odd that they would be involved in helping the patient make financial decisions. It is important to note, that idle organization management leads to negligence being imputed to the employer.

Mental Capacity

In another case recently reviewed, a seizure patient who lived at home with his parents had a seizure. The patient had episodes in the past and they were generally controllable by medication, and though the family could not verify that the patient had taken his medication, the EMS crew accepted a refusal even though their own documentation noted he only responded to verbal stimuli and was “disoriented/confused.” The crew documented that the patient refused care and that the patient’s father also requested no transport.

The same crew returned about four hours later for an additional episode, the same crew this time transported, noting that the patient had seizures earlier in the day and EMS did not transport per the father’s request. The crew spoke with the patient’s father later, and he noted that it had happened so often he thought it was the standard procedure for seizure patients to not be transported the first time the ambulance arrived at their house.

The ability to make decisions is not only determined by the patient’s orientation level, but also their competency. Whether the patient is under the influence of alcohol or drugs that would impair their judgment could make an informed refusal impossible. Generally speaking, a competent adult is one who is lucid and able to make an informed decision about his or her medical care. When we treat adult patients we must always consider competency, and that means more than just whether the patients know who they are, where they are and the time of day. In addition to assessing the patient’s level of consciousness, the patient should be free of intoxicants, be mentally sound and not suffering from an illness or injury that could impair judgment.

While paramedics may not be psychiatrists, obvious mental illness or those who are mentally challenged may have additional factors to consider when determining whether a patient is competent to refuse care. Additionally, injuries and illness that affect judgment tend to surround neurologic issues such as head injury, seizures, and stroke. In these cases, your medical direction team can be of assistance in guiding who may refuse care and under what circumstances.

The Refusal

It is fair for the competent adult patient to refuse care. This could happen because of personal or religious beliefs, socioeconomic concerns on the part of the patient, or denial that the illness or injury is actually an issue that needs to be addressed right away.

It should also be noted that refusals do not have to occur at a specific time in the call. The classic case of this may be the diabetic patient whom you find incoherent with a blood sugar of 41. Recognizing that his problem may be sugar related, the airway is intact, an intravenous line is started, and the patient receives 50 percent dextrose in accordance with protocols. In this instance, the paramedic is acting on implied consent to initiate treatment. After correction of the underlying issue, the patient regains consciousness and objects to further treatment or transport. After some gentle coaxing the patient agrees to let the crew check his blood glucose and it is recorded as 174. The patient’s other vital signs all appear normal or within normal limits and he refuses further care.

It should be understood that several factors go into documenting a patient refusal. The first, document the patient’s condition accurately and adequately. This means excellent documentation is required for who and what you are seeing.

  • Is this patient sleepy or awake, do they appear cold, clammy and confused?
  • Have you documented why you were called, the issues leading up to the condition and what is being described to you?
  • Is this a patient whose wife says he is having chest pains, or does he admit that he has chest pain that radiates to his left arm, the pain is an eight on a 10 scale, and he is diaphoretic, but he is sure the pain “will go away on its own”?

What are you telling the patient at this point? Document what you say to persuade the patient to allow you to transport him or her to the emergency room. You should also document the patient’s response. Does the patient understand the implications of denying you the chance to help? You should make it clear that your goal is to give the assistance that is needed.

Let us revisit the question of competency. Document your reasons for believing this patient is competent. Again, this likely involves more than just an AVPU level of consciousness or GCS. You should make sure you tell the patient and document possible issues with the medical condition. On the other hand, do not mislead the patient by creating false senses of deterioration that do not fit.

For instance, if someone sprains their ankle and wants to refuse care, it is probably not reasonable to tell the patient that if he does not go with you he may deteriorate and die.

Are you sure this patient needs to go to the hospital, but the patient is sure she does not need to go? Now might be the time to be humble and invite medical direction into the discussion. While many in the general public treat us with great deference and respect, others still view us as “those ambulance drivers.” Obviously, with all our training we are not ambulance drivers, but perhaps bringing our medical direction team into the discussion and asking them to help convince our patient to go to the hospital will make a difference.

According to one study, we tend to under-triage patients. This makes medical direction involvement in refusals a valuable tool in protecting ourselves from liability issues and allowing the medical directors out there to reinforce the image of professional EMS providers by supporting our suggestions against the patient refusing our care.

Ultimately the patient may sign a patient care refusal, but do not consider this release of liability to be a true release of liability in and of itself. Certainly have the patient sign a release and have a witness sign it. Whenever possible, a disinterested third party would be the best for the witness. When at an accident scene, I tend to use a police officer if available. At the patient’s home, a family member or close neighbor is someone you should consider if immediately available. At work, coworkers and supervisors are an excellent choice.

In addition to these basic signatures, make sure that you document all the issues associated with the refusal. Document the circumstances you see and explained to the patient, what conditions might cause the problem, and reasonable expectations of possible deterioration.

Perhaps as important, tell the patient you are willing to transport them to a local emergency department. If they do not want to go now, tell them you are happy to come back if they change their mind and document, document, document. Remember, if you did not write it down, it did not happen. Therefore, document that you told the patient you were willing to transport him or her now or later if they change their mind.

These are just some of the concerns in completing appropriate refusals of medical care, and hopefully it will help you understand some tools that can assist in overcoming liability issues. EMS providers should remember that public complaints and newspaper articles about providers who do not provide service would alarm many in our community. The public-relations consequences could be significant. Responsive elected officials who control already-tight budgets will likely answer the alarms of the public. Before this happens, we in the EMS community need to consider this and answer the alarms with professionalism, speed and the degree of humanity you would expect an ambulance crew to deliver to your family.

Dean currently works as one of the Assistant Regional Emergency Response and Recovery Coordinator for the Triad Region of North Carolina through Wake Forest University Baptist Medical Center Trauma Department. He is a faculty member for the EMS Programs at Alamance Community College, a paramedic with Davidson County Emergency Services and a volunteer with Thomasville Rescue, and Holly Grove Fire Department.
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Issue 28.4 | Spring 2014

Keeping First Responders Safe
Ideas to improve safety on the job, leadership, serving our community and keeping the desire to serve others...