The Verdict is In
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Brief visits with limited documentation: A disaster for patient safety and legal defense

Intoxicated patients dropped off by ambulance or police is a common emergency department presentation that raises an important risk topic for all specialties. Decisional capacity. A clinically sober patient generally has the right to decide whether to stay or go once brought to the ED. While a patient's decisions after a clinical encounter are not within our control, the attention still shifts to us, the care team, when severe harm or death occurs close in time to the encounter. A plaintiff's attorney will focus the jury on the EMR documentation and expert testimony to judge our medical decision making before the encounter ended. Specifically, did the patient have decisional capacity?

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Decisional capacity refers to the patient's ability to understand, appreciate and communicate healthcare decisions (even poor ones) that align with their life. The case and learning points below will highlight when a capacity assessment is required, how to conduct one, and why documenting patient-specific detail is imperative.

TAT: 20 Minutes

1:42 am: A 29-year-old is brought to the ER by PD for public intoxication. He is ambulatory into the ED and triaged. The nursing chief complaint is "ETOH Intoxication. Too drunk for jail - per PD." RN documentation notes the patient can walk a straight line down the hall with a steady gait.

1:55 am: The patient is seen by the ED physician. Over the next minute, the physician's heavily templated note conveys: The patient has no physical complaints or injuries. ROS: All other systems reviewed and negative. Exam: The patient is wet and smells of alcohol, answers questions loudly but appropriately. Skin has no rashes or pallor. Lungs are clear to auscultate. Cardiovascular exam has a RRR and no murmur. Abdomen is nontender, has normal bowel sounds, and no masses. Back is nontender. Extremities have no tenderness, no edema, full ROM, normal pulses and cap refill. MDM: Reviewed and agree with vitals, nursing notes and assessment. No symptoms or objective findings that are life or limb threatening. Medically screened and stable for disposition. Discussed and answered questions in layman's terms. Understands importance of follow-up care as directed. If worsening symptoms or problems, return to ED. Acknowledges/agrees with disposition. Based on the clinical picture and results of a medical screening exam, there is no emergent medical condition present at this time. The patient is stable for discharge with agreed upon follow-up plan and return precautions. He can walk a straight line without issues.

1:56 am: Impression: Alcohol abuse. Dispo: Home. Condition: Stable.
2:02 am: Nursing note conveys the patient eloped and no further actions were taken.
Several hours later: Code 3 trauma activation. 29-year-old male brought in by ambulance for bilateral leg amputations status post being run over by a train.

The unexpected sequence of events, including the subsequent verdict in favor of the plaintiff at trial, left many Vitans disconcerted when we presented this case at Spring Symposium. A pivotal factor hindering the defense was the 20-minute turnaround time and lack of patient-specific evidence supporting the patient's decisional capacity when he eloped.

Did this patient have decision-making capacity?

Based on analysis of the ED documentation and events that followed, the jury believed the answer was "no." Many case examples like this one (spread across different practice lines and scenarios) illustrate the need for patient-specific documentation in a world where plaintiff counsel wants to convince a jury that care delivery systems and your care are unsafe. These allegations are more easily defeated when documentation has specific details about the patient's decision-making capacity.

Physicians and advanced providers assess decision-making capacity of every patient in all types of clinical encounters. The process is usually spontaneous, automatic, and straightforward. Yet, in a subset of patients, assessing capacity becomes more nuanced and evidencing the assessment is required. The following patients may still be able to make their own decisions, yet the provider is responsible for assessing and documenting why they can.

  • Intoxicated patients brought to EDs for medical clearance.
  • Patients attempting to leave prior to a medical screening exam (MSE).
  • Patients who refuse recommended treatment.
  • Patients with psychiatric disorders.
  • Patients with altered mental capacity, i.e., age, illness causing acute delirium or exacerbation of chronic neurologic or psychiatric conditions, trauma patient with an obvious head injury, etc.

Capacity assessments are not a GCS score. You must address key components of the patient's decision process. Whether or not you're a fan of acronyms, CURVES is one we recommend. The first four letters assess decision-making capacity, and the last two assess whether emergency treatment can be delivered without Informed Consent.

  • C – Choose and Communicate. Can the patient make a choice and communicate that choice?
  • U – Understand. Does the patient understand the risks, benefits, alternatives, AND appreciate the consequences of the decision?
  • R – Reason. Can the patient provide logic or reason behind their decision?
  • V – Values. Is the decision consistent with the patient's values?
  • E – Emergency. Is there a serious or imminent risk to the patient's well-being?
  • S – Surrogate. Is there a surrogate decision maker available?

Details matter because brief encounters can lead to poor outcomes and potentially, a lawsuit. At the very least, physicians and advance providers should specifically state in the medical record a capacity assessment was performed.

Risk management tips:

  • Document a patient-specific capacity assessment, capturing as much as you can glean from an interaction where the patient is not cooperating.
  • Always document why you cannot complete your MSE if the patient refuses.
  • Use quotes to document the patient's reasoning.
  • Document your attempts to address concerns and questions.
  • If a patient elopes, follow your facility's elopement protocol, and document that you did.

Survey Questions

1. A 19-year-old male is transported to your emergency department after falling off the top of an RV while watching a NASCAR race. He is intoxicated, has obvious head trauma with a contusion on his forehead and 3 cm scalp laceration. He refuses your suggested work-up, imaging and sutures, and wants to leave. He is unable to express a rational explanation and potentially lacks capacity, but it’s unclear. How would you not proceed?

  1. Have the patient sign an AMA form before he leaves.
  2. Locate a surrogate, i.e., family, to make decisions for this patient.
  3. Do what you believe is medically necessary for the patient's safety.
  4. Request a psych or ethics consult to help determine capacity.

2. Detailed discussions and objective documentation are essential to evidence your professional determination of patient medical decision-making capacity. At the bare minimum, document a capacity assessment was performed:

  1. True
  2. False

3. Brief visits coupled with minimal documentation can hinder defense if your care is called into question:

  1. True
  2. False