Legal Pearl: Will “Against Medical Advice” Protect You From Liability?

One afternoon, a 28-year-old man presented to the emergency department. He told the triage nurse that he had stomach pain and nausea and repeated the same complaints to Dr V when she came in to examine him.

The physician’s initial diagnosis was gastritis, but she ordered a full lab work up on the patient. However, the patient said he had to get back to work and wanted to leave the hospital.

“If you leave,” said the physician, “it will be against my medical advice. I’m warning you that it could be dangerous to leave without having your condition fully checked out.”

Dr V noted in the file that the patient was leaving the hospital against medical advice, and prior to lab work being performed. She wished him well and watched him walk out the door. The next time she would see the patient would be in court.

Was Dr V negligent?

(Answer and discussion on next page.)

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association and editor of Pharmacy Times.

In this Legal Pearl we look at the term “against medical advice,” which is often used as a defense in medical malpractice cases. In this case, however, the clinician also misdiagnosed the patient’s condition before he left the hospital. Does “against medical advice” protect the clinician?

Clinical Scenario

Dr V, aged 52 years, was an emergency medicine physician who worked in the emergency department of a hospital in a large urban area. The emergency department was constantly busy–day and night–with very rare periods of quiet, but Dr V enjoyed the challenge. The pace of the emergency department meant that initial assessments had to made quickly to rule out the most serious conditions.

One afternoon a 28-year-old man presented to the emergency department. The patient was not a native English speaker–he had come originally from El Salvador–but his English was quite good due to having lived in the country for the past decade. He told the triage nurse that he had stomach pain and nausea and repeated the same complaints to Dr V when she came in to examine him.

The physician’s initial diagnosis was gastritis, but she ordered a full lab work up on the patient. However, the patient said he had to get back to work and wanted to leave the hospital.

“We need to do lab work,” said Dr V. “I can’t confirm the diagnosis without getting some bloodwork done.”

He still refused to remain at the hospital, have his blood taken, or have any further examination or testing. He insisted that he wanted to leave the hospital.

“If you leave,” said the physician, “it will be against my medical advice. I’m warning you that it could be dangerous to leave without having your condition fully checked out.”

The patient was still insistent on leaving. Although the patient seemed to understand her warnings, Dr V asked a Spanish-speaking nurse to repeat the warnings about leaving the hospital without a full workup to the patient in Spanish to be sure he understood. The patient reiterated that he wanted to leave.

Dr V noted in the file that the patient was leaving the hospital against medical advice, and prior to lab work being performed. She noted that he had been advised that leaving was against medical advice, and that he had been advised this both in English and Spanish and had indicated that he understood.

Before he left, Dr V warned him that if the pain worsened he should return to the hospital or a clinic.  She wished him well and watched him walk out the door. The next time she would see the patient would be in court.

Two days after he saw Dr V, the patient presented at the emergency department of another hospital where he was diagnosed as having a ruptured appendix. The patient underwent surgery, but suffered a prolonged hospitalization, post-appendectomy scarring of his abdomen, and residual pain.

On the advice of friends, the patient sought the counsel of a plaintiff’s attorney. He told the attorney that the doctor at the first hospital had discharged him with a diagnosis of gastritis and had not diagnosed his appendicitis. “If she had treated me at the first hospital, I wouldn’t have had such a long recovery and this continual pain,” said the patient. The attorney took the case and sued Dr V for malpractice, alleging that she was negligent in failing to diagnose appendicitis.

The Trial

At trial, the plaintiff argued that he had been misdiagnosed with gastritis and that Dr V had not suggested that he might have appendicitis. He was not told that the condition could be life-threatening, the patient testified. He had lost his job because he missed so much work due to his prolonged recovery, and he had not yet found a replacement.

Dr V testified that she had only been able to do a brief exam before the patient announced his decision to halt further examination and lab work. Without lab work, she explained, it was hard to make a diagnosis with something as generalized as stomach pain which could indicate a variety of conditions.

Dr V’s notes in the medical record were introduced as evidence, and clearly indicated that the patient had been advised, more than once, that leaving would be against medical advice and that he might be endangering himself by doing so. Dr V also testified that she asked a Spanish-speaking nurse to repeat the warnings in Spanish as well, to ensure that the patient understood.

The jury deliberated for only a short time before coming back with a verdict in favor of Dr V.

What's the Take Home?

Unfortunately, while you can give advice, you can’t force anyone to take it – whether it is in their best interests or not. All you can do is clearly warn the patient and make sure to document everything. This was a fairly typical “against medical advice” malpractice case. The patient had a serious problem but decided to leave the emergency department prior to a complete evaluation and management of the condition. The emergency medicine physician should not be held liable for injuries which result from his decision to leave the hospital against medical advice.

As a general rule, the “against medical advice” defense works well unless the patient has a questionable mental status, or does not understand the language, and has a less than clear understanding of the potential consequences of leaving against advice. Dr V protected herself by making sure that the patient was told in both English and Spanish what the dangers might be of leaving without a complete work up.

Bottom Line — Documentation is crucial here. If your documentation is adequate, the patient has a normal mental status, and the patient understands the risk of leaving, there should be no liability against a clinician who uses the “against medical advice” defense