Having worked as a nurse practitioner in the emergency department for more than 10 years, there have been plenty of times patients have chosen not to follow my advice. Whether for financial, work-related or other personal reasons, sometimes patients decide to forgo the advised course of medical treatment and make an alternate decision.
This puts me in an awkward place as a healthcare provider. On one hand, patients have the right to make their own choices (even the right to make bad choices). On the other hand, I worry about my legal liability when my well-intentioned medical advice is rejected or ignored. So, how do you protect yourself as a nurse practitioner in these situations?
According to the American College of Emergency Physicians, such scenarios are not unique. An estimated 1-3% of patients leave the ED against medical advice amounting to approximately 500,000 patients annually. This doesn’t begin to include those patients who choose not to follow the recommendations of their primary care providers and specialists. Documentation is your best bet for protection when a patient chooses not to follow your medical advice or rejects your plan of care.
Yeah, yeah, yeah.
While we all learned in school that documentation is key when it comes to legal liability for medical providers but we’re simply falling short in this arena. One study demonstrated that decision making capacity was only documented in 22% of cases where the patient refused care. Decision-making capacity, however, is a critical if not the most critical component in documenting refusal of care.
Alright, so what am I supposed to do.
Rather than throw your hands up, roll your eyes, or even respect the patient’s right to make a decision, you need a plan of action when patients choose a path other than the one you’ve identified as their best, safest, healthiest, most risk-averse course of action. You need to document. Taking the time to note the specifics of the situation will absolutely be your best bet in avoiding liability should your actions or the patient’s ever be called into question. This requires extra time and effort but it’s worth it.
What do I need to document?
When a patient rejects your medical advice, discuss with the patient and document the following:
The patient’s current condition, treatment options and expected outcomes
The primary/recommended treatment plan that was offered
Steps that were taken to educate/facilitate the best possible treatment plan and discussion of the consequences of refusal
Patient’s concerns about taking this course of action
Any alternate treatment plans offered
Any involvement from other medical professionals, family members or other third parties
Patient’s decision making capacity
Remember, if it wasn’t documented, it didn’t happen. Don’t forget to memorialize conversations with the patient, family members and other delegates of care in your chart.
If refusal of care results in a decline or change in the patient’s condition, the patient should be reassessed and a fresh care plan recommended. This may mean repeating and re-documenting the above steps if the patient continues to refuse the course of action you’ve recommended.
What does ‘decision making capacity’ actually mean?
Only patients who have the capacity to make decisions and understand the risks of refusal of care can properly refuse care. Proper decision making capacity means:
The individual can understand the information you’re sharing
The individual must apply how this information relates to his/her situation
The individual must be able to reason to make an informed decision
The individual must be able to communicate that decision
Remember, a difference in opinion or the fact that the patient may not be making the decision you think is best does not equate to impaired decision making. Patients are allowed to make ‘bad’ decisions. Using a tool like the Mini Mental Status Exam (MMSE) can help boost your documentation in this area. State laws vary as to the appropriate course of action when the patient is not capable of making his/her own decisions.
I’m off the hook. We use AMA and/or Refusal of Care forms – right?
While AMA or Refusal of Care forms give providers comfort and appear to protect from legal liability when patients refuse care, in reality these documents offer little protection and don’t equate to much more than false comfort. Past precedent shows that juries don’t place a lot of weight on such forms rather, thorough documentation provides significantly better protection to healthcare providers.
Patients do have the right to refuse treatment even if it’s to the detriment of their health and well being. Proper documentation in these circumstances may not prevent a medical malpractice lawsuit, but it can leave you as well positioned as possible when it comes to your legal liability.