BACKGROUND: One in every 65 to 120 discharges from general hospitals are against medical advice and have an expected increased risk of adverse consequences and subsequent litigation. Does the term “against medical advice” confer legal protection?
METHODS: We searched the MEDLINE and PsychInfo databases for relevant articles. We also searched the national medico-legal databases of LEXIS-NEXIS. Additional case law was obtained through a search for “against medical advice” in the West Premise CD-ROM database of New York State cases.
RESULTS: We found 8 relevant cases. There was no case in which “against medical advice” was entirely protective, though partial protection existed in some cases.
CONCLUSIONS: Since patients are admitted voluntarily to a general hospital, a discharge against medical advice is merely a withdrawal of the original consent.
Anywhere from 1 in 651 and 1 in 1202 discharges from general hospitals are against medical advice. The literature identifies the characteristics of patients discharging themselves against medical advice. They are generally younger, male, and have emergency admissions;3 have been in hospital a shorter time; have been more frequently hospitalized; live alone; and have more severe symptoms at discharge than those released in the usual way.4 O’Hara and colleagues1 have identified a higher rate of discharge against medical advice in the elderly. Schlauch and coworkers2 have suggested that there may be collusion between the patient and the medical staff with the agreement that this is an appropriate method of discharge, especially in noncritical cases. When the medical staff perceived imminent and serious danger to the patient by discharge, steps were taken to obtain psychiatric consultations and to assess mental competency.2 Psychosocial factors involved in the decision of a patient to leave against medical advice include anger, overwhelming fear, and psychosis. The threat to leave may be a last effort to communicate feelings.5 Patients leaving an emergency department against medical advice have prognoses between those for whom admission was not recommended and those who consented to admission.6 Patients discharged against medical advice might therefore be expected to have more adverse consequences (exacerbation of illness, death, injury to self or others), but information on this topic is only anecdotal. Even in the absence of negligence, adverse medical consequences occur and often lead to medical malpractice suits. The likelihood of legal action is increased by intense emotion,7 anger,8,9 fear,9 and psychosis.10,11
Does use of the term “against medical advice” by physicians confer some form of legal protection? The physician has advised the patient to remain in the hospital. Having rejected that advice, must the patient take the consequences? In a search of the literature, we could find no discussion of whether protection of any degree is afforded by use of this term. We studied case law in an attempt to discover clear criteria for when “against medical advice” may be protective, partially protective, or offer no protection at all.
Although decisions of courts in one state are not binding for another, cases from other states are often cited in an advisory way.
Methods
We searched the MEDLINE and PsychInfo databases for relevant articles. There was a significant degree of repetition, and articles were selected on the basis of frequency of citation and comprehensiveness of content. We found relevant legal cases through a search of the national medico-legal databases on the LEXIS-NEXIS on-line system. The “cases” and “review articles” databases were searched using the term “against medical advice.” Additional case law was obtained by searching for “against medical advice” in the West Premise CD-ROM database of New York State cases.
Results
We found only 8 civil cases in which the issue of “against medical advice” arose. Seven concerned medical malpractice, and in 4 cases12-15 a defense of contributory negligence was employed. Two cases16-17 involved psychiatric discharges. One case18 commented on the use of a signed waiver by a hospital, and one case19 concerned enforcement of a hospital retention order.
Contributory Negligence
In Weinstock v Ott,12 the estate of Norma Ott successfully sued for medical malpractice claiming Dr Weinstock had breached a duty to refer Ms Ott for diagnostic consultation when he was unable to discover the cause of her disorder. Dr Weinstock had referred her to a hospital for tests, at which time the cause of her 4 years of abdominal problems was determined to be ischemic bowel disease. After 4 weeks of tests her condition deteriorated, and she discharged herself against medical advice to return to the care of Dr Weinstock before a definitive diagnosis had been made. Because of her husband’s dissatisfaction with her condition, she returned to the hospital, had further surgery in October, and died shortly thereafter. It was part of Dr Weinstock’s (the outpatient referring physician) defense that Ms Ott had contributed to her problems by discharging herself from the hospital against medical advice. However, she was found not to have been contributorily negligent. The general rule on a patient’s contributory negligence states that the patient must exercise that degree of care that an ordinary reasonable person, under the same disabilities and infirmities in like circumstances, would exercise.