Court Backs EMS Providers Who Accept Patient Refusal

A 2008 Kansas Court of Appeals case again demonstrates that the courts will uphold a patient’s refusal — and provide immunity for EMS — when EMS properly assesses a patient’s decisional capacity and follows protocols for refusals.

Alene Wilson, 68, fell on her kitchen floor the morning of Nov. 23, 2003, and was injured. Her son, James Wilson, was at home with her, and her daughter, Tamara Potts, drove to her home. The siblings carried their mother upstairs to her bedroom and placed her in bed. Alene refused to allow Potts to call for an ambulance, saying she did not need to go to the hospital. Potts called 9-1-1, and two volunteer EMTs arrived shortly thereafter, followed by county EMTs.

Potts advised the EMTs that her mother suffered from hallucinations, Alzheimer’s and paranoia and had previously suffered a stroke. She told them her mother was not competent and that Potts held a durable power of attorney that allowed her to insist that Alene be transported to a hospital against her will. Potts attempted to give the EMTs a document signed in 1994, but the EMTs insisted on seeing the patient.

Alene would not permit the EMTs to touch her or take her blood pressure, but she finally allowed one of them to perform a limited visual examination of her leg. The EMT did not see any rotation or shortening of the extremity to indicate a hip fracture. His report indicated that she had pain in her left hip and may have suffered a hip fracture, but that there was no gross deformity. In response to questioning, Alene told the EMTs she had slipped and fallen on her kitchen floor. She correctly stated her name and that of the U.S. president. She incorrectly stated the year as 2002, and then 2004, before correctly stating it was 2003.

The EMTs attempted to convince Alene to accept transport but she refused, saying that the last time she was hospitalized, “It cost me $700 for a headache.” The EMTs attempted to contact her personal physician but were unable to reach him. They contacted on-line medical control, and the physician advised them that Alene could not be transported against her will.

Someone at the scene then called the local police. The children tried to have the officer place Alene into protective custody, but he refused, stating that he did not believe her mental capacity was diminished. The responding officer was familiar with Alene.

The EMTs reported that the patient was alert, focused and aware of her surroundings and that she understood the consequences that could arise from her refusal of transport. They concluded that she had sufficient decisional capacity to refuse transport. However, they remained at the home for more than an hour, attempting to convince her to allow them to transport her to the hospital. Alene printed and signed her name on a refusal of transport form.

The next morning, the children transported their mother to her private physician, who took X-rays that showed she had not suffered a severe injury and had not fractured a hip. The physician released her to return home with after-care instructions. However, later that afternoon, the physician re-evaluated the X-rays and determined that Alene had, in fact, fractured her left hip. He admitted her to the hospital for surgery to repair her hip. Alene refused traction for her hip, refused to eat while hospitalized and refused oxygen. While hospitalized, she contracted a nosocomial pneumonia but was discharged from the hospital on Dec. 3 and returned home to receive hospice care. She died three days later; her death certificate listed pneumonia as the immediate cause of death.

The children filed complaints with the Kansas Board of EMS asking that the EMTs’ licenses be revoked. After an investigation, the board found no evidence of improper patient care and took no action. Subsequently, Alene’s children filed suit alleging federal civil rights claims. The court dismissed the claims, finding that the EMTs were immune from suit for the claims of wrongful death and negligence, and found that the plaintiffs had failed to state a claim for civil rights violations. The plaintiffs subsequently appealed, and the court of appeals issued a decision that affirmed the lower court’s decision.

The court’s decision relied heavily on the applicable EMS protocols, finding that the EMTs had no discretion under the protocols to transport the patient against her will. The plaintiffs argued that because Alene had not initially correctly identified the date, that she did not have sufficient mental capacity to refuse care. The court further discussed the “public duty doctrine” that establishes that governmental agencies owe a legal duty to the public at large, rather than to specific individuals, and that no legal duty toward a specific individual exists absence a special relationship that was not present in this case.

This case makes it clear that courts are willing to uphold patient refusals if certain criteria are met. EMS must assess and document the patient’s decisional capacity and show that they have informed the patient of the potential harm that can result from refusing to be transported and treated. However, when EMS providers follow protocols and perform the appropriate assessment and treatment, the courts will rule in their favor.

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