Malpractice Consult

By Lee J. Johnson, JD

When a patient refuses transfer

• Let patients know about the risks of their decisions.

• Encourage the patient's family to get involved.

• Ask non-compliant patients to sign a "refusal of treatment" form.

Q: I'm on staff at a busy hospital that has no cardiovascular surgery services. A patient who needs surgery and is awaiting transfer insists on going to a certain hospital, but it's full. If he were to have a complication before we could transfer him to this hospital, would I have any liability?

A: Physicians must use reasonable judgment in securing needed services. You have an obligation to inform the patient about available alternatives and to help him make an informed decision. For example, the patient must be told if the delay in waiting for a bed at his selected hospital will cause a risk. If that risk is serious, such as an MI or a stroke, then you must disclose the severity and probability of the risk.

Encourage the patient to accept immediate transfer if you think an MI or other compromise of the cardiovascular system could be imminent. Enlist the help of the patient's family if he agrees to let you talk about his condition. What is in the patient's best interest will also be in your best interest.

Of course, a patient may refuse a transfer to a different hospital, even in the face of serious risk. Neither state malpractice laws nor federal "antidumping" statutes require the transfer of a competent patient who refuses it.

While any patient with mental capacity has the right to refuse any recommended treatment, that refusal must be based on a full informed consent discussion. So first, you have to make sure the patient has capacity. If there's any question, get an evaluation by a psychiatrist.

A refusal of treatment form will be your best protection to a claim of lack of informed consent or refusal of consent. Have the patient sign the form, and ask a nurse to sign as a witness. Document your discussion of the risks and the patient's response in the progress notes. Note that all the "material risks" to the refusal of immediate transfer have been discussed.

These steps will protect you if the patient later claimed that he wouldn't have refused transfer to a hospital with bed space and the availability of cardiovascular surgery if he had understood that an MI could have occurred in the interim delay.

You must also be aware of the requirements under the Emergency Medical Treatment and Active Labor Act (EMTALA). The doctor's responsibility is to make a medical judgment that transfer is "in the best interests of the patient" given the facilities that are available. A physician's certification that the benefits of treatment elsewhere outweigh the burdens of the transfer is required. If your medical judgment is reasonable and the forms are filled out appropriately, there shouldn't be any liability on EMTALA issues.

The EMTALA laws that were designed to prevent emergency departments from "dumping" uninsured patients also apply to all hospital facilities. The law requires that a patient's condition be stabilized and that there be appropriate treatment available elsewhere before he can be transferred.

While EMTALA laws are aimed primarily at hospitals, a physician may be liable for a civil penalty for signing the medical certificate if he knew or should have known that the benefits of transfer did not in fact outweigh the risks of transfer, or if he misrepresents the patient's condition or the hospital's obligations under the statute. He can also be sued for malpractice.

 

Lee Johnson. Malpractice Consult: When a patient refuses transfer. Medical Economics Aug. 22, 2003;80:76.