As a companion to this month’s article, “The Art of the Informed Refusal: A guide to when & how your patient can legally refuse care,” by William Selde, MD, we offer some tips on how to properly document a patient refusal of care.
Handling a refusal properly—and documenting it accordingly—is a critical skill for all EMS providers. At the outset, make sure your agency uses a good refusal form. An example can be downloaded for free on our firm’s website, www.pwwemslaw.com. Whether you use a separate refusal form, or whether it’s part of your standard PCR, a complete PCR should be documented for any encounter where care is refused.
Remember that documenting a refusal requires more than simply obtaining a signature. If you fail to inform the patient of the risks of refusing care, then it really doesn’t matter what they signed. A refusal form might have the most stringent language and bulletproof release of liability, but if the patient isn’t informed of the risks of their refusal, courts can give signed refusal forms little weight in malpractice suits against EMS providers. The real legal protection in a refusal case doesn’t come from the signature; it comes from having a detailed discussion with the patient, or their responsible decision-maker, and ensuring that they understand the risks and consequences of refusal. In fact, as a defense attorney, I’d rather have a narrative detailing the risks and consequences that were disclosed to the patient than a simple signature with no documentation of the risks discussed. Of course, I strongly advise that you do both—document that a detailed discussion took place, and obtain a signature!
Next, be sure to document the fundamentals of any refusal situation. These would include the patient’s presenting signs and symptoms, age, mental status, vitals, the provider’s clinical impression and a narrative detailing the specific risks of which the patient was advised, including the alternatives given. Legally, what risks need to be disclosed is always a matter of reasonableness under the circumstances. For instance, if a patient is experiencing chest pain, a prudent EMS provider should warn the patient that it could be a heart attack, and refusing care could lead to death (I call this the “duty to terrify”).
On the other hand, if the patient has a possible fractured toe, advising them of the risk of death for refusing care would be farfetched. As for alternatives, you should document that the patient was advised of options in the event they require care. For instance, they were told they could call 9-1-1 again, call their doctor, or go to an ED. A good refusal narrative should document that multiple alternatives were given.
If someone other than the patient is making the refusal decision, that person should be informed of the risks and consequences just as you would inform the patient. From a documentation perspective, in addition to documenting the risks and consequences as discussed above, be sure also to record the identity of the representative, including name and address, and their relationship to the patient—such as guardian, POA, family member, etc. Remember that state law may determine who can act on a patient’s behalf when the patient is incapable of doing so themself.
Whether the patient or a representative is making the refusal decision, always endeavor to have that person sign your refusal form. It may also be beneficial to have a witness sign the form. Though this is typically not a requirement, it can offer additional protection.
Finally, maintain a copy of your PCR, and separate refusal form if one is used, for at least as long as your state law requires it. If your records are kept electronically, there isn’t any reason not to keep them forever. Also keep in mind that if the patient was a minor, the statute of limitations in some states may not begin to run until they reach the age of 18.
This month’s Pro Bono was written by Doug Wolfberg, an attorney and founding partner of Page, Wolfberg & Wirth, the National EMS Industry Law Firm, and a longtime former EMS provider and administrator. Visit the firm’s website at www.pwwemslaw.com or find them on Facebook, Twitter or LinkedIn.