Malpractice forums

ERDoc said:
I like to check out medical malpractice forums from time to time (know your enemy) and came across this interesting thread.
http://www.expertlaw.com/forums/showthread.php?t=196648&s=8aa3eccfa1366eff4c4b1b6c43f347b5
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Sticky situation for sure. I am not a legal expert but just based off that limited information if I was those EMT's or whatever level provider they actually were I would be a bit nervous and wishing I performed, or at least offered to do a full assessment on the patient unless he refused all care.

My refusals of service reports when I work FD are almost as long is not longer then a standard run report for this exact reason.
 
Kind of an odd forum to have, especially when it still consists of replies likes:

"Get a consult with a malpractice attorney. They will be able to give you a better idea if you have any cause of action."

At the end of the day there is only so much you can do. As mentioned, a competent adult, is, well, legally competent. You can ask your AnOx4 questions and warn of the risks including death of not going to the hospital. Here's to hoping the crew did and documented more than the OP is stating.

For fun... Is a STEMI patient who refuses treatment a danger to themselves? How does this differ from an AnOx4 patient overdosing in front of you also refusing?
 
Grimes said:
Kind of an odd forum to have, especially when it still consists of replies likes:

"Get a consult with a malpractice attorney. They will be able to give you a better idea if you have any cause of action."

At the end of the day there is only so much you can do. As mentioned, a competent adult, is, well, legally competent. You can ask your AnOx4 questions and warn of the risks including death of not going to the hospital. Here's to hoping the crew did and documented more than the OP is stating.

For fun... Is a STEMI patient who refuses treatment a danger to themselves? How does this differ from an AnOx4 patient overdosing in front of you also refusing?
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Depending on the state and laws someone on illicit substances isn't able to refuse and could be compelled to get medical treatment by law enforcement. Happens all the time. Emergency petition.
 
fascinating! Very surprised to see the rationality of the non-OP over there.
 
I dunno, asking just two questions is not a much of a mental status exam. Refusing someone who is not able to understand the risks of further care and transport is not a good move. Maybe he could maybe he couldn't, but they certainly didn't appear to find out on their own.
 
Informed consent/refusal requires more than just being A&OX4. They need to have the capacity to make the decision for themselves and must understand the potential diagnosis and the risks of not treating it. Based on the OP in that thread this was not done (obviously we are only getting one side of it). There also has to be harm done. It's hard to say in this case.

As for the scenario of refusing treatment for an MI and refusing treatment for an intentional overdose, it is a passive vs active situation. The MI pt did not cause the MI, it just happened and as long as they understand the situation and are determined to have the capacity to make a decision they don't have to agree to treatment. Someone who intentionally overdoses, in the eyes of the law, in not in their correct frame of mind and therefore lacks the capacity to make their own decision so they are unable to refuse.
 
Great post, ERDoc.

I've spoken to quite a few lawyers who deal with medical malpractice. What they all emphasize is that the healthcare providers who are most likely to get sued are the ones who come across as uncaring, arrogant, or rude.
Although certainly there are people ere who are just looking for someone to sue for monetary gain, most people don't sue doctors, hospitals, and EMS agencies for this reason. They sue because they think that they or their loved one has been treated badly.
 
Long ago I heard or read somewhere that "the best way to protect yourself legally is to just provide good care" and that has stuck with me and is always the basis for the way I think about these things. The rationale being that regardless of laws or policies or protocols or anything else, you will always be in the best position possible to defend yourself if you can argue that you did what you did because you honestly felt that it was in the patient's best interest.

Another thing I've learned is that people are much more likely to go after you if they think that you were a prick to them. Many people are rather forgiving if they feel like you were caring and tried to do a good job and just made a mistake. Even if they end up suing anyway, there might be a big difference between a lawsuit that just seeks to have damages covered vs. one that is motivated by a desire to ruin your life in the name of revenge. If someone feels like you were disrespectful to them or callous to their situation, they are much more likely to want to punish you somehow.

Applying either of those metrics to the scenario that was painted by the OP in ERDoc's post, the EMS crew is losing badly. Even if what they did was somehow technically legal and within protocol, it's going to be tough to convince anyone that asking a few questions and walking away when the wife was begging for help was actually in the patient's best interest, and they obviously made her feel like they didn't care what happened to her husband. That OP may very well not be looking at legal options if the crew simply showed more compassion, even if their ultimate actions were similar.

I'm no attorney, but simply asking a couple questions does not seem sufficient to establish competence, and given how low his BP was when the other crew found him, it may not be difficult at all to argue that the delay in his receiving care was the proximate cause of his current condition.
 
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Always worth noting that there's three sides to every story. My version, your version and the real version.

Without body cameras the only "real and truthful account" of what transpired is the documentation. Did the medics really only ask the guy once? Did they really do any further assessment aside from what the wife said, who, by her own admission,making a bit of a scene. "To clarify, I was protesting LOUDLY the whole time they were having him sign the refusal, that I was the one who called them and he had just collapsed, and he was in no position to refuse or even know what he was signing. They totally ignored me."

The whole thing reeks of he said/she said and the only thing that can offer salvation is good documentation.

FWIW, I took a really good workshop presented by Page Wolfberg & Wirth on defensible documentation. Setting a routine and carefully documenting that routine is a great way to keep yourself out of trouble. In the case of refusals, I always ask the patient three times, explaining the risks and dangers involved in refusal and then I document that refusal, noting that I asked the patient three separate times if he/she wanted to go to the hospital. I actually say to the patient once I start to initiate a refusal, "You say that you don't wish to go, but I'm going to ask you this several times so we all can make be sure that you are positive that you don't want to go the hospital". The same with putting a patient in a hospital bed at the ED. I say to my patient and partner once the patient is in bed, "I'm going to raise the side rails and lower the bed." Then I document that. A standard routine, followed by documentation.
 
I find it hard to believe that they really didn't take any vitals. Unless the pt answered all questions appropriately and absolutely refused assessment, I would agree that EMS was in the wrong.
 
There's a principle called autonomy. The pt refused. There is no "script" to follow when getting informed consent. Was two questions enough? Maybe, maybe not. However, the pt refused and SIGNED. Sounds like informed consent to me. Kidney failure? Serious, yes. Ambulance ride necessary? No.

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MackTheKnife said:
There's a principle called autonomy. The pt refused. There is no "script" to follow when getting informed consent. Was two questions enough? Maybe, maybe not. However, the pt refused and SIGNED. Sounds like informed consent to me. Kidney failure? Serious, yes. Ambulance ride necessary? No.

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Well, there's is also a principle called "competence", and it trumps autonomy legally.

A refusal itself means nothing - even if it is signed - if it can be argued that the patient was not competent.
 
Remi said:
Well, there's is also a principle called "competence", and it trumps autonomy legally.

A refusal itself means nothing - even if it is signed - if it can be argued that the patient was not competent.
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ANYTHING can be argued as ANYONE can be sued. The refusal, is the baseline for any defense of a legal action. Although there were two questions asked, they form the basis for a knowing, voluntary, intelligent refusal. I have had many refusals and my last question was "are you sure you don't want to go to the hospital?" If they said no again, I had them sign the refusal. I would tell the family to call his/her doctor ASAP. If this pt had good color and was speaking clearly, he was perfusing adequately, and could make the informed refusal. He was competent.

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MackTheKnife said:
ANYTHING can be argued as ANYONE can be sued. The refusal, is the baseline for any defense of a legal action. Although there were two questions asked, they form the basis for a knowing, voluntary, intelligent refusal. I have had many refusals and my last question was "are you sure you don't want to go to the hospital?" If they said no again, I had them sign the refusal. I would tell the family to call his/her doctor ASAP. If this pt had good color and was speaking clearly, he was perfusing adequately, and could make the informed refusal. He was competent.

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In your last post, you wrote (bolding is mine): "Was two questions enough? Maybe, maybe not. However, the pt refused and SIGNED. Sounds like informed consent to me. Kidney failure? Serious, yes. Ambulance ride necessary? No."

The whole point is that a signature does not imply informed consent, nor does it indicate that the patient was competent to refuse. People can be stoned, drunk, crazy, confused, stroking out, demented, overdosed, hypoglycemic, hypoxic, hyponatremic, encephalopathic, concussed, bleeding into their brain, or any combination of those things and still manage to scribble a signature on a refusal form. Every lawyer and medical-legal consultant knows that, so a signature actually means very little.

In order to prove that their refusal was in fact informed and that they did in fact appear competent, you have to document what happened and what was said and how you assessed the patient and the situation. If your documentation shows that your assessment of their competence was limited to two questions and you were only on scene for 5 minutes - when the person was clearly very sick and you should clearly have had reason to be suspect of their mental competence, and then they end up in the hospital a couple hours later, profoundly hypotensive and with severe uremic encephalopathy, you are pretty much screwed unless your documentation thoroughly outlines a very extensive assessment and attempts to convince the patient to change their mind. Because otherwise, it is going to look an awful lot to anyone looking at the situation that you were negligent in your assessment and in your attempt to get them to accept medical attention. The fact that they signed the form isn't going to help you much.

There is all the difference in the world between taking a refusal from someone who doesn't look sick at all and/or gives you no reason to question their competence, and taking a refusal from someone who is obviously very sick and may not really understand what is going on. Doing the latter without doing everything in your power to accurately assess their mental status and convince them that they really need medical attention is ethically questionable and legally risky, whether you have a signature or not.
 
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Remi said:
In your last post, you wrote (bolding is mine): "Was two questions enough? Maybe, maybe not. However, the pt refused and SIGNED. Sounds like informed consent to me. Kidney failure? Serious, yes. Ambulance ride necessary? No."

The whole point is that a signature does not imply informed consent, nor does it indicate that the patient was competent to refuse. People can be stoned, drunk, crazy, confused, stroking out, demented, overdosed, hypoglycemic, hypoxic, hyponatremic, encephalopathic, concussed, bleeding into their brain, or any combination of those things and still manage to scribble a signature on a refusal form. Every lawyer and medical-legal consultant knows that, so a signature actually means very little.

In order to prove that their refusal was in fact informed and that they did in fact appear competent, you have to document what happened and what was said and how you assessed the patient and the situation. If your documentation shows that your assessment of their competence was limited to two questions and you were only on scene for 5 minutes - when the person was clearly very sick and you should clearly have had reason to be suspect of their mental competence, and then they end up in the hospital a couple hours later, profoundly hypotensive and with severe uremic encephalopathy, you are pretty much screwed unless your documentation thoroughly outlines a very extensive assessment and attempts to convince the patient to change their mind. Because otherwise, it is going to look an awful lot to anyone looking at the situation that you were negligent in your assessment and in your attempt to get them to accept medical attention. The fact that they signed the form isn't going to help you much.

There is all the difference in the world between taking a refusal from someone who doesn't look sick at all and/or gives you no reason to question their competence, and taking a refusal from someone who is obviously very sick and may not really understand what is going on. Doing the latter without doing everything in your power to accurately assess their mental status and convince them that they really need medical attention is ethically questionable and legally risky, whether you have a signature or not.
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Remi, you always seem to want to challenge anything I post. Good for you. There is a plethora of differential dx's that could be involved. Bottom line is the pt refused and signed. As I stated, if pt refused, offer alternatives as I said, and move on.

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There was nothing in the OP that indicated a clear reason to suspect incompetency. Not doing an assessment is not indicative of malfeasance or malpractice. If the pt refused, they REFUSED. As I said, offer alternatives to the distraught spouse. Call their MD, call EMS back if the pt changes their mind, etc. I have had pt's refuse assessment, rx, or transport and refuse to sign. Yes, you need to document. That goes without saying. I have testified in court and good recall is reinforced with documentation. Thanx for the unnecessary schooling, Remi. You sometimes seem to forget that others are experienced as well. And if you decide to peremptorily transport a pt, you are liable for charges of false imprisonment or kidnapping. I had a pt who wouldn't talk to me when I arrived. The family called. I told him if he didn't talk to me, he was going on the stretcher to the hospital. He looked at me and said "I'm fine. I'm not going to the hospital'. he wouldn't sign the refusal form. The family and PD insisted on transport. I said no. My supervisor arrived and told them the same thing. Nothing happened. You do what you can do, based upon each unique situation.
 
Interesting discussion.

As far as competency goes, patients are assumed competent until proven otherwise. For a patient to be assessed as "not competent" they must reasonably appear to be unable to understand information provided to them on proposed treatments, or unable to understand the consequences of their decisions, or unable to remember information given to them.

Provided they can do those three things they are competent. This principle extends to children and young persons, and patients who have expressed thoughts of self-harm provided these thoughts are not "serious". Children and young persons are included because the law does not specify a "cut off" age under which a child is not competent unlike in some jurisdictions. As for patients who are expressing thoughts of self-harm, this is a tricky one however in the majority of cases the patient will agree to be seen by the Community Mental Health Team (which includes a Duly Authorised Officer who can section people under the Mental Health Act if required and most of the time this happens in the community, however sometimes it will happen in ED or the police cells.

Advance directives, living wills and allow natural death orders are ace for people who want to express their wishes but cannot do so anymore. Most often these are in writing, but sometimes they are oral (for example a discussion between Great Aunt Hortetz and the family is all that took place). Case law has established a clearly described oral directive is just as valid as one written down.

Malpractice, in the American form, really doesn't exist. It is not possible to be sued. There are remediation measures through the Accident Compensation Corporation (universal government accident insurance scheme) or Health and Disability Commissioner but in the purist "suing somebody for damages" sense no, that is not possible.

The nice thing with the new ePRF tablets is taking of photos and recording of audio. For patients who decline whatever recommendations ambulance personnel make to them, particularly if clinically significant, a quick recording of the discussion can be made so then it's clear what transpired.
 
MackTheKnife said:
There's a principle called autonomy. The pt refused. There is no "script" to follow when getting informed consent. Was two questions enough? Maybe, maybe not. However, the pt refused and SIGNED. Sounds like informed consent to me. Kidney failure? Serious, yes. Ambulance ride necessary? No.

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How is that possibly informed consent? That doesn't make any sense. I could easily tell an Alzheimer's or head injured patient to sign and they would do it, that doesn't mean that they understand what they're signing.
 
Everyone has their own interpretation of informed consent. Hypotheticals like Alzheimer's or head injury is not germane to this discussion as none of these issues were part of the OP. IMO, pt gave informed consent. You can disagree.

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