One of the most common sources of EMS litigation is cases in which a patient refuses treatment and/or transport. Fueled by personal injury attorneys seeking to represent potential allegations of medical malpractice, claims against EMS providers have been rising for the last three decades.1–3 Refusals occur in 5%–20% of EMS patient contacts and in some systems may make up as much as 30% of the call volume.4
Competent adults, with a few exceptions, maintain the right to refuse treatment. The goal of refusal documentation is to limit liability.
Documentation needs to show the duty to act was fulfilled, prove the patient’s capacity and competence, and demonstrate their informed consent. This can be accomplished by using the CASE CLOSED acronym for bulletproof documentation of a refusal.5
C = Condition, Capacity, and Competence—The documentation should include the patient’s chief complaint(s) in the patient’s own words. A thorough assessment is important during the process. The assessment must evaluate the patient’s neurological and mental status. Documenting that the patient is conscious, alert, and oriented is not sufficiently defensible. Other items that should be documented are the patient’s cognitive function, any signs of drug or alcohol use, and the patient’s behavior and speech patterns.
You can determine a patient’s decision-making capacity, but competence is a global assessment and legal determination (made by a judge). Capacity is a functional assessment and clinical determination that can be made by any EMS professional familiar with the patient and their issues. There are four key components to evaluating capacity:6
Communication—The patient must be able to communicate choices without extreme indecision.
Understanding—The patient should be able to understand by recalling conversations about treatment and able to process the possibilities of outcomes. Any problems with memory, attention span, or intelligence can affect the patient’s understanding.
Appreciation—The patient should be able to identify the illness and outcomes as things that will affect him or her directly.
Rationalization/Reasoning—The patient must be able to weigh risks and benefits and come to a conclusion in keeping with his or her goals and best interests. A patient’s ability to reason can be affected by psychosis, depression, anxiety, phobias, delirium, and dementia.
Determining a patient’s decision-making capacity requires professional judgment and an objective assessment. Should you conclude a patient lacks the capacity to make a healthcare decision, you must thoroughly document the facts that brought you to that conclusion.
A = Assessment—As part of the refusal process, you should adequately explain, in nonmedical terms, your assessment findings to the patient. This allows the patient to process the information and your recommendations and to appreciate the outcome. During the process you must conduct an excellent patient assessment and thoroughly document the following:
History of present illness or injury;
Past medical history;
S = Statements—As you interact with the patient about their injury or illness, note any specific statements the patient makes. Document these statements carefully to demonstrate they understood their condition in their own words. Their documented statements should also reflect that they’re refusing care and understand the risks involved. The refusal form they sign should acknowledge they’re taking responsibility for the consequences for refusing care.
E = Educate—Educating patients about treatment options helps them make better medical choices. Provide all the information a reasonable person would find necessary and relevant to medical decision-making. This means enough to understand what would be in their best interest. Patients have a right to be informed of their options and alternatives.7
C = Consequences—Discuss with the patient the potential risks and consequences of their refusing treatment and/or transport. The patient should be able to evaluate the consequences, weigh the risks and benefits, and reach a conclusion in keeping with their goals and best interests.
L = Limitations of EMS—EMS personnel must educate patients about their own limitations as well. For example, you can utilize a 12-lead ECG to rule in a myocardial infarction, but it can’t be used to rule one out. Ruling out an MI requires serial blood labs and ECGs performed under observation at a facility as a part of a process within the continuum of care.
O = Offer Transport—Always offer transport to the hospital, but how you offer that transport is an important part of the process. The patient’s perception often drives the decision. There is a big difference between “Will you go with me to the hospital?” and “You don’t want me to take you to the hospital, do you?” The first question lets the patient make the decision without undue negative influence. Document the number of times the patient refused your offer of transport.
S = Signature—The patient refusal form is a legal document and must be signed by the patient. The refusal form or part of the report should also be signed by you and dated. A best practice is to have another person also sign the form, attesting they observed you explain the risks of refusing care and/or transportation. This individual should preferably be someone besides another member of your crew.
In some cases, despite your best efforts, the patient or their representative may refuse to sign the refusal. In this case document in the refusal form that the person refused to sign and what was stated during the process.
E = Educational Material—When you encounter a patient, conduct an assessment, and offer care, you have established a relationship of patient and provider. Prior to the termination of this relationship with a refusal, you have educated the patient about their condition and informed them of the risks of refusal. At this point you are essentially discharging the patient as if you had cared for them at a facility.
At a hospital the patient would receive discharge instructions and information about their condition. Ideally your EMS system should also have a discharge instruction form you can write on or use to highlight information for the patient.
D = Dial 9-1-1—At the conclusion of the process, inform the patient or family to call 9-1-1 for EMS immediately if there is a change in the patient’s condition. Include this in your documentation as well.
When patients refuse emergency medical treatment, communicate with them about their condition, recommended treatment and/or transport, risks, benefits, and alternatives when appropriate. Documentation of the refusal of treatment and/or transport should include an assessment of the patient’s capacity, your delivery of information, and the patient’s autonomous choice. This will help ensure your documentation is CASE CLOSED.
1. Morgan DL, Wainscott MP, Knowles HC. Emergency medical services liability litigation in the United States: 1987 to 1992. Prehosp Dis Med, 1994; 9(4): 214–20.
2. Soler JM, Montes MF, Egold AB. The 10-year malpractice experience of a large urban EMS system. Ann Emerg Med, 1985; 14: 982–5.
3. Goldberg RL, Zaitche JL, Koenigsber MD, et al. A review of prehospital care litigation in a large metropolitan EMS system. Ann Emerg Med, 1990; 19(5): 557–61.
4. Hipskind JE, Gren JM, Barr DJ. Patients who refuse transportation by ambulance: A case series. Prehosp Dis Med, 1997; 12: 278–83.
5. Snyder J. Chapter 10, EMS Documentation. Pearson, 2008.
6. Appelbaum PS, Grisso T. Assessing patients’ capacities to consent to treatment. N Engl J Med, 1988; 319(25): 1,635–8.
7. Collopy, KT. Processing the Patient Refusal. EMS World, www.emsworld.com/article/10448486/processing-patient-refusal.
Bradley Dean, MA, NRP, is a battalion chief for the training division at Rowan County Emergency Services in Salisbury, N.C.