I have been asked many times about patient refusals and any liability it creates for emergency medical services providers. Refusals of treatment and/or transport present a delicate balancing act for EMTs. On one hand, the medics must respect a person’s rights in not having unwanted medical procedures performed. On the other hand, crews must weigh any potential liability for not properly assessing an individual who may have unknown serious injuries. When presented with a refusal, ambulance crews must undertake a thorough assessment of the patient’s capacity to make decisions about his or her health condition AND must thoroughly document the assessment and patient encounter to mitigate any potential liability if the patient has more serious injuries than initially indicated.
A 2003 study of EMS calls in Utah revealed a refusal rate of 5.1% of all calls made. See S. Knight, L. Olson, L. J. Cook, N. C. Mann, H. M. Corneli, and J. M. Dean, “Against all advice: an analysis of out-of-hospital refusals of care,” Annals of Emergency Medicine, vol. 42, no. 5, pp. 689–696, 2003. Other studies place the rate of refusal as high as 15% of all calls. See J. L. Burstein, J. Hollander, R. Delagi, M. Gold, M. C. Henry, and J. M. Alicandro, “Refusal of out-of-hospital medical care: effect of medical-control physician assertiveness on transport rate,” Academic Emergency Medicine, vol. 5, no. 1, pp. 4–8, 1998 and S. T. Moss, T. Chan, J. Buchanan, J. V. Dunford, and G. M. Vilke, “Outcome study of prehospital patients signed out against medical advice by field paramedics,” Annals of Emergency Medicine, vol. 31, no. 2, pp. 247–250, 1998. As a result, as many as one in every seven calls may result in a refusal. This rate leads to a greatly increased risk for EMS providers.
Liability for Healthcare Providers in Texas
First, it is important to consider what is at risk when a patient refuses medical care.
In 2007, the Texas legislature issued a sweeping round of tort reform related to medical negligence claims. Although the changes to the law contained narrow liability provisions for situations involving “emergency medical care,” the law limited those liability protections to care in “a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department….”
As a result, liability for emergency medical care in the field falls under traditional medical negligence analysis. To prove negligence in Texas, a plaintiff must establish the following elements:
(1) Existence of a duty. Did the EMS personnel in question have a duty to act?
(2) Breach of the duty. Did the care provided meet the standard of what a reasonably prudent EMS provider would do under similar circumstances?
(3) Harm. Did the breach of the duty cause harm to the plaintiff?
One provision of Chapter 74 of the Texas Civil Practices and Remedies Code does help EMTs related to informed consent. Texas law limits theories of recovery regarding informed consent to “negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.”
Even with the limitations on liability under Texas law, refusals present a high risk to EMS providers. Failing to properly conduct an assessment for consent/refusal AND failing to properly document the EMTs process for evaluating the refusal may lead to substantial losses – to the tune of millions of dollars in jury awards.
Note the law does not require a specific diagnosis – only disclosure of the risks or hazards that could influence the patient to seek transport to a hospital. In other words, a prudent EMT would likely take vital signs, the patient’s history, and current symptoms and then provide the patient with a laundry list of possible causes for the symptoms. Every effort should be made to err on the side of caution when a patient is refusing transport.
One of the duties imposed on healthcare providers, including EMTs, is adequately informing patients of the risks of treatment. The concept of refusal is related to informed consent. A patient must be adequately informed in order to properly refuse treatment.
There are several considerations for EMTs when assessing an informed refusal of medical care.
(1) Does the patient have legal capacity to consent/refuse?
(2) Does the patient have mental capacity to refuse?
(3) Has the patient been provided with enough information to adequately refuse treatment/transport?
The U.S. Supreme Court recognized the concept of patient refusal of unwanted treatments in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 269 (1990). In the Cruzan case, the Court said, “A competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment. Cf., e.g., Jacobson v. Massachusetts, 197 U.S. 11, 24-30.” In Texas, the age of majority – adulthood – is 18. If a person is over the age of 18, unless they are an emancipated minor (see below), they have the legal capacity to make their own healthcare decisions.
It is important to note the distinction between legal competence and medical capacity. Competence is a judicially determined state wherein a person is judge to have the mental faculties necessary to make their own decisions. A judge is the only person who can decide whether someone is a “competent person.” Capacity, on the other hand, is an assessment in which a clinician determines if a patient has the necessary state of mind to make their own decisions regarding their health.
It is virtually impossible to receive a judicial determination of competence when an EMT is dealing with an emergency situation. As a result, if the patient exhibits appropriate clinical capacity to make informed decisions, EMTs must assume a court will find them to be competent. However, if a patient refuses treatment and/or transport and exhibits signs of mental impairment, it is reasonable to assume the patient would be found incompetent in a court of law.
Texas has statutorily adopted the concept of implied consent. For Texas EMS providers, a patient’s consent is not required if:
(1) the individual is:
(A) unable to communicate because of an injury, accident, or illness or is unconscious; and
(B) suffering from what reasonably appears to be a life-threatening injury or illness;
(2) a court of record orders the treatment of an individual who is in an imminent emergency to prevent the individual’s serious bodily injury or loss of life; or
(3) the individual is a minor who is suffering from what reasonably appears to be a life-threatening injury or illness and whose parents, managing or possessory conservator, or guardian is not present.
The Texas Family Code governs medical consent necessary for minors. Section 151.001(a)(6) states that parents have “the right to consent to the child’s … medical and dental care, and psychiatric, psychological, and surgical treatment.” Texas law (Texas Family Code Section 32.001) also allows certain non-parents to consent to treatment if the parents are unavailable for consent. Specifically, the law allows the following individuals to consent:
(1) a grandparent of the child;
(2) an adult brother or sister of the child;
(3) an adult aunt or uncle of the child;
(4) an educational institution in which the child is enrolled that has received written authorization to consent from a person having the right to consent;
(5) an adult who has actual care, control, and possession of the child and has written authorization to consent from a person having the right to consent;
(6) a court having jurisdiction over a suit affecting the parent-child relationship of which the child is the subject;
(7) an adult responsible for the actual care, control, and possession of a child under the jurisdiction of a juvenile court or committed by a juvenile court to the care of an agency of the state or county; or
(8) a peace officer who has lawfully taken custody of a minor, if the peace officer has reasonable grounds to believe the minor is in need of immediate medical treatment.
And, pregnant minors can consent to treatment, if the treatment is related to her pregnancy.
Another potential issue is a situation involving an emancipated minor. Texas law allows for individuals under the age of 18 to be judicially emancipated and become legally entitled to make all decisions affecting their health. A court may order emancipation if the minor is:
(1) a resident of this state;
(2) 17 years of age, or at least 16 years of age and living separate and apart from the minor’s parents, managing conservator, or guardian; and
(3) self-supporting and managing the minor’s own financial affairs.
If a minor is judicially emancipated, they are treated as an adult from a legal perspective. As a result, they can consent or refuse all of their own medical care.
Assessment of Mental Capacity for Refusal
One of the most important considerations when processing a patient refusal is the patient’s mental capacity. Many factors could influence a patient’s ability to provide an informed refusal including, but not limited to, psychiatric issues, dementia, intoxication, drug use, hypoxia, and fever.
Four elements to assess decision-making capacity are cited in the medical literature. They include:
(1) Does the patient understand all the information about the intervention?
(2) Does the patient appreciate how that information applies to his or her situation?
(3) Can the patient evaluate the information, comparing risks and benefits?
(4) Can the patient make a rational and consistent choice and communicate that choice?
Information to Disclose
EMTs must provide enough information to the patient that a reasonable person would find necessary and relevant to medical decision-making. This likely includes information such as the potential causes of symptoms. But, be careful not to diagnose the patient. Also, what risks are involved if the patient fails to accept transport to a hospital. EMTs should always offer to transport the patient – multiple times if appropriate. In addition, always inform the patient they can call 9-1-1 again for service.
Documenting a Refusal
The importance of proper documentation for refusals cannot be overstated. Having adequate documentation of the refusal process is key to avoiding liability in the event the patient turns for the worse. The statute of limitations for negligence claims in Texas is two years. Further, it may take up to 18 months for cases to get to trial. In that time, memories fade – especially in high volume services where medics run hundreds of calls every year.
Proper documentation of a patient’s informed refusal should include the following:
(1) describe the intervention offered;
(2) identify the reasons the intervention was offered;
(3) identify the potential benefits and risks of the intervention;
(4) note that the patient has been told of the risks — including possible jeopardy to life or health — in not accepting the intervention;
(5) clearly document that the patient has unequivocally and without condition refused the intervention; and
(6) identify why the patient refused, particularly if the patient’s decision was rational and one that could not be overcome.
Failing to properly assess a patient’s capacity to refuse medical treatment can lead to lawsuits which can utterly bankrupt 9-1-1 EMS providers. Even with liability protections under Texas law, patients who do not receive adequate assessment and information upon which to make an informed refusal may have a viable cause of action against the EMTs who failed in their duty of care and the EMS provider. Thorough documentation of the patient encounter – documentation which clearly shows a proper assessment of capacity, offered interventions, risks disclosed to the patient, and that the patient denied service – is the best evidence a provider has to defend against potential lawsuits. A good refusal report may be the difference between medics who retain their license to practice and a place to work and revoked licenses and shuttered doors for the agency.