Patrick J. Devitt, MB, MRCPsych

Anywhere from 1 in 651 and 1 in 1202 discharges from general hospitals are against medical advice. The literature identifies the characteristics of patients discharging themselves against medical advice. They are generally younger, male, and have emergency admissions;³ have been in hospital a shorter time; have been more frequently hospitalized; live alone; and have more severe symptoms at discharge than those released in the usual way.⁴ O’Hara and colleagues¹ have identified a higher rate of discharge against medical advice in the elderly. Schlauch and coworkers² have suggested that there may be collusion between the patient and the medical staff with the agreement that this is an appropriate method of discharge, especially in noncritical cases. When the medical staff perceived imminent and serious danger to the patient by discharge, steps were taken to obtain psychiatric consultations and to assess mental competency.² Psychosocial factors involved in the decision of a patient to leave against medical advice include anger, overwhelming fear, and psychosis. The threat to leave may be a last effort to communicate feelings.⁵ Patients leaving an emergency department against medical advice have prognoses between those for whom admission was not recommended and those who consented to admission.⁶ Patients discharged against medical advice might therefore be expected to have more adverse consequences (exacerbation of illness, death, injury to self or others), but information on this topic is only anecdotal. Even in the absence of negligence, adverse medical consequences occur and often lead to medical malpractice suits. The likelihood of legal action is increased by intense emotion,⁷ anger,^8,9 fear,⁹ and psychosis.^10,11

Does use of the term “against medical advice” by physicians confer some form of legal protection? The physician has advised the patient to remain in the hospital. Having rejected that advice, must the patient take the consequences? In a search of the literature, we could find no discussion of whether protection of any degree is afforded by use of this term. We studied case law in an attempt to discover clear criteria for when “against medical advice” may be protective, partially protective, or offer no protection at all.

Although decisions of courts in one state are not binding for another, cases from other states are often cited in an advisory way.

Methods

We searched the MEDLINE and PsychInfo databases for relevant articles. There was a significant degree of repetition, and articles were selected on the basis of frequency of citation and comprehensiveness of content. We found relevant legal cases through a search of the national medico-legal databases on the LEXIS-NEXIS on-line system. The “cases” and “review articles” databases were searched using the term “against medical advice.” Additional case law was obtained by searching for “against medical advice” in the West Premise CD-ROM database of New York State cases.

Results

We found only 8 civil cases in which the issue of “against medical advice” arose. Seven concerned medical malpractice, and in 4 cases^12-15 a defense of contributory negligence was employed. Two cases^16-17 involved psychiatric discharges. One case¹⁸ commented on the use of a signed waiver by a hospital, and one case¹⁹ concerned enforcement of a hospital retention order.

Contributory Negligence

In Weinstock v Ott,¹² the estate of Norma Ott successfully sued for medical malpractice claiming Dr Weinstock had breached a duty to refer Ms Ott for diagnostic consultation when he was unable to discover the cause of her disorder. Dr Weinstock had referred her to a hospital for tests, at which time the cause of her 4 years of abdominal problems was determined to be ischemic bowel disease. After 4 weeks of tests her condition deteriorated, and she discharged herself against medical advice to return to the care of Dr Weinstock before a definitive diagnosis had been made. Because of her husband’s dissatisfaction with her condition, she returned to the hospital, had further surgery in October, and died shortly thereafter. It was part of Dr Weinstock’s (the outpatient referring physician) defense that Ms Ott had contributed to her problems by discharging herself from the hospital against medical advice. However, she was found not to have been contributorily negligent. The general rule on a patient’s contributory negligence states that the patient must exercise that degree of care that an ordinary reasonable person, under the same disabilities and infirmities in like circumstances, would exercise.

Whether she acted unreasonably in discharging herself against medical advice was a question of fact for the jury. On appeal, the court held that since she had been ill for 4 years, had been in and out of hospitals, had a plethora of tests, and was frustrated from years of unsuccessful tests coupled with her extremely poor health, the jury found that Ms Ott did not act unreasonably when she discharged herself from the hospital.

In Suria v Shiffman,¹³ the court held that the patient’s actions in leaving the hospital against medical advice did not afford a complete defense in a malpractice case (brought in connection with the administration of silicone injections to a transsexual male), but would warrant a reduction in damages to the degree that the patient’s actions increased the extent of the injury.

In Pollicina v Misericordia Hospital Medical Center and Hospital of the Albert Einstein College of Medicine,¹⁴ the patient discharged herself against medical advice from the Misericordia Hospital but was immediately admitted to Einstein Hospital. The patient died 1 week later of pulmonary thrombosis. In this medical malpractice case, the trial court granted motions to dismiss the complaint against Misericordia on the basis that the actions of the hospital had not led directly to the damage to the patient. The protective factor was that following her discharge against medical advice, she was admitted to another hospital.

In Hawkins v Brooklyn-Caledonian Hospital,¹⁵ the patient brought an action against the hospital claiming that the failure of a physician to obtain assistance inserting a subclavian catheter and to properly insert the catheter, the tip of which broke off inside the patient’s body during the procedure, was a departure from good and accepted medical practice. The patient was warned that physical activity could cause the tip of the catheter to migrate, causing his death. He also suffered the painful effect of thrombophlebitis and its continued consequences, including the use of illicit drugs after a period of sobriety in an attempt to self-medicate. Mr Hawkins left the hospital against medical advice, missed 2 scheduled appointments, failed to take his medication, and was later readmitted with another bout of phlebitis. He was discharged 2 days later but failed to keep his next clinic appointment.

In this case, although some of the damages claimed were the result of the patient’s failure to comply with recommended medical treatment, the court of appeals ruled in a 3 to 1 decision that the trial court’s verdict against the hospital and damages should stand.

Psychiatric Discharges

In Kelly v United States of America and John Doe, John Roe, and John Shoe,¹⁶ the decision of a Veterans Affairs Medical Center to release Arnold Shockley against medical advice was challenged. After Shockley was released, he stabbed Officer Kelly. The court held that there were no reasonable grounds for the treating psychiatrist to seek involuntary commitment of Shockley, and judgment was made in favor of the medical center.

In Solbrig v United States of America,¹⁷ the Solbrig family brought an action alleging that the veterans hospital in Milwaukee, Wisconsin, and 2 of its nonpsychiatric physicians should not have released Mr Solbrig because he was a clear suicidal risk. He died by suicide within hours of his discharge against medical advice. The court found that although Mr Solbrig had expressed suicidal tendencies in the past, he showed no signs of being a genuine suicidal risk on the morning of his discharge, and the physicians were not found negligent in their treatment of the patient.

The Use of a Waiver

A hospital may not, as a condition of allowing a patient to leave against medical advice, require the patient to sign a form releasing the hospital from liability for malpractice claims by the patient. In Dedely v Kings Highway Hospital Center,¹⁸ a mother requesting the release of her infant son was required to sign a form by which she assumed “all risks, responsibilities and liabilities, whatsoever” and released “Kings Highway Hospital Center, Inc, its physicians, surgeons, authorities, and employees from all risks, claims, responsibilities whatsoever.” The court found this type of form to be contrary to public policy and therefore worthless. It also observed that “a hospital’s failure to release a patient unless it sought judicial relief, would undoubtedly subject the hospital to an actionable tort.”

Hospital Detention Orders

In the matter of City of New York v Antoinette R,¹⁹ the New York City Health Commissioner sought enforcement of an order requiring forceful detention in a hospital setting of a person with active infectious tuberculosis to allow for completion of the appropriate regimen of medical treatment. The Supreme Court of Queens County decided that evidence that the patient had discharged herself against medical advice on a number of occasions justified detention, despite evidence of her recent voluntary cooperation in adhering to the recommended medication regimen.

DISCUSSION

Since patients are admitted voluntarily to a general hospital, a discharge against medical advice is merely a withdrawal of the original consent. All competent adults possess the autonomy to make this decision. However, physicians and medical authorities have a responsibility to ensure, before discharging against medical advice, that: (1) the patient’s withdrawal of consent is fully informed with respect to risks and alternatives; (2) the patient possesses the mental competency to make a reasoned decision on the basis of adequate information; and (3) the patient does not meet the state standard for involuntary psychiatric hospitalization. Discharging against medical advice without documentation that the physician conscientiously addressed these 3 issues will leave the physician and the hospital authorities legally unprotected in the event of an adverse consequence.

Even if these 3 safeguards are in place, the cases in the literature illustrate that the term “against medical advice” is not necessarily protective. It might appear that a competent patient not meeting criteria for involuntary hospitalization who has received all relevant information and then suffers an adverse event causally related to an “against medical advice” decision would have no claim against the physician or the medical authorities. But as noted in Weinstock v Ott,¹² the physician has a duty of care which, in that case, included a duty to refer the patient for a diagnostic consultation. The patient’s decision to leave against medical advice may be regarded as reasonable in certain circumstances, and if so, this type of discharge offers no protection.

In Suria v Shiffman,¹³ the issue of contributory negligence arose again. In that case, the patient was held responsible for a proportion of the damages suffered and, while the defendant was ruled against by the court, the liability for the full extent of the damages was reduced accordingly. This may be regarded as a partial protection, but courts and juries are reluctant to invoke this against a patient who is seen as the underdog. That was the situation in Hawkins v Brooklyn-Caledonian Hospital.¹⁵ The dissenting judge in that case bore no sympathy for Mr Hawkins, who was a drug addict and caused most of his own misfortune. However, the other 3 judges, who ruled for the plaintiff, were more sympathetic.

The psychiatric cases cited^16,17 show that if the criteria for involuntary commitment are not met, “against medical consent” appears to provide a comfortable degree of legal protection.

Pollicina v Misericordia Hospital Medical Center14 suggests that a patient’s duty is to seek alternative care when leaving against medical advice. When this duty is ignored, protection exists for the physician or hospital.

City of New York v Antoinette R19 illustrates, in a tuberculosis case analogous to the psychiatric cases, that a third party subsequently infected by a patient who should have been detained under a city order could have grounds for a successful suit against the physicians and medical authorities who failed to protect the community.

Conclusions

There is no substitute for good clinical care and thorough documentation. Before discharging a patient “against medical advice,” a physician should ensure that the patient is mentally competent, fully informed, and does not meet the criteria for involuntary psychiatric hospitalization. We offer guidelines for physicians in the Table.

Anywhere from 1 in 651 and 1 in 1202 discharges from general hospitals are against medical advice. The literature identifies the characteristics of patients discharging themselves against medical advice. They are generally younger, male, and have emergency admissions;³ have been in hospital a shorter time; have been more frequently hospitalized; live alone; and have more severe symptoms at discharge than those released in the usual way.⁴ O’Hara and colleagues¹ have identified a higher rate of discharge against medical advice in the elderly. Schlauch and coworkers² have suggested that there may be collusion between the patient and the medical staff with the agreement that this is an appropriate method of discharge, especially in noncritical cases. When the medical staff perceived imminent and serious danger to the patient by discharge, steps were taken to obtain psychiatric consultations and to assess mental competency.² Psychosocial factors involved in the decision of a patient to leave against medical advice include anger, overwhelming fear, and psychosis. The threat to leave may be a last effort to communicate feelings.⁵ Patients leaving an emergency department against medical advice have prognoses between those for whom admission was not recommended and those who consented to admission.⁶ Patients discharged against medical advice might therefore be expected to have more adverse consequences (exacerbation of illness, death, injury to self or others), but information on this topic is only anecdotal. Even in the absence of negligence, adverse medical consequences occur and often lead to medical malpractice suits. The likelihood of legal action is increased by intense emotion,⁷ anger,^8,9 fear,⁹ and psychosis.^10,11

Does use of the term “against medical advice” by physicians confer some form of legal protection? The physician has advised the patient to remain in the hospital. Having rejected that advice, must the patient take the consequences? In a search of the literature, we could find no discussion of whether protection of any degree is afforded by use of this term. We studied case law in an attempt to discover clear criteria for when “against medical advice” may be protective, partially protective, or offer no protection at all.

Although decisions of courts in one state are not binding for another, cases from other states are often cited in an advisory way.

Methods

We searched the MEDLINE and PsychInfo databases for relevant articles. There was a significant degree of repetition, and articles were selected on the basis of frequency of citation and comprehensiveness of content. We found relevant legal cases through a search of the national medico-legal databases on the LEXIS-NEXIS on-line system. The “cases” and “review articles” databases were searched using the term “against medical advice.” Additional case law was obtained by searching for “against medical advice” in the West Premise CD-ROM database of New York State cases.

Results

We found only 8 civil cases in which the issue of “against medical advice” arose. Seven concerned medical malpractice, and in 4 cases^12-15 a defense of contributory negligence was employed. Two cases^16-17 involved psychiatric discharges. One case¹⁸ commented on the use of a signed waiver by a hospital, and one case¹⁹ concerned enforcement of a hospital retention order.

Contributory Negligence

In Weinstock v Ott,¹² the estate of Norma Ott successfully sued for medical malpractice claiming Dr Weinstock had breached a duty to refer Ms Ott for diagnostic consultation when he was unable to discover the cause of her disorder. Dr Weinstock had referred her to a hospital for tests, at which time the cause of her 4 years of abdominal problems was determined to be ischemic bowel disease. After 4 weeks of tests her condition deteriorated, and she discharged herself against medical advice to return to the care of Dr Weinstock before a definitive diagnosis had been made. Because of her husband’s dissatisfaction with her condition, she returned to the hospital, had further surgery in October, and died shortly thereafter. It was part of Dr Weinstock’s (the outpatient referring physician) defense that Ms Ott had contributed to her problems by discharging herself from the hospital against medical advice. However, she was found not to have been contributorily negligent. The general rule on a patient’s contributory negligence states that the patient must exercise that degree of care that an ordinary reasonable person, under the same disabilities and infirmities in like circumstances, would exercise.

Whether she acted unreasonably in discharging herself against medical advice was a question of fact for the jury. On appeal, the court held that since she had been ill for 4 years, had been in and out of hospitals, had a plethora of tests, and was frustrated from years of unsuccessful tests coupled with her extremely poor health, the jury found that Ms Ott did not act unreasonably when she discharged herself from the hospital.

In Suria v Shiffman,¹³ the court held that the patient’s actions in leaving the hospital against medical advice did not afford a complete defense in a malpractice case (brought in connection with the administration of silicone injections to a transsexual male), but would warrant a reduction in damages to the degree that the patient’s actions increased the extent of the injury.

In Pollicina v Misericordia Hospital Medical Center and Hospital of the Albert Einstein College of Medicine,¹⁴ the patient discharged herself against medical advice from the Misericordia Hospital but was immediately admitted to Einstein Hospital. The patient died 1 week later of pulmonary thrombosis. In this medical malpractice case, the trial court granted motions to dismiss the complaint against Misericordia on the basis that the actions of the hospital had not led directly to the damage to the patient. The protective factor was that following her discharge against medical advice, she was admitted to another hospital.

In Hawkins v Brooklyn-Caledonian Hospital,¹⁵ the patient brought an action against the hospital claiming that the failure of a physician to obtain assistance inserting a subclavian catheter and to properly insert the catheter, the tip of which broke off inside the patient’s body during the procedure, was a departure from good and accepted medical practice. The patient was warned that physical activity could cause the tip of the catheter to migrate, causing his death. He also suffered the painful effect of thrombophlebitis and its continued consequences, including the use of illicit drugs after a period of sobriety in an attempt to self-medicate. Mr Hawkins left the hospital against medical advice, missed 2 scheduled appointments, failed to take his medication, and was later readmitted with another bout of phlebitis. He was discharged 2 days later but failed to keep his next clinic appointment.

In this case, although some of the damages claimed were the result of the patient’s failure to comply with recommended medical treatment, the court of appeals ruled in a 3 to 1 decision that the trial court’s verdict against the hospital and damages should stand.

Psychiatric Discharges

In Kelly v United States of America and John Doe, John Roe, and John Shoe,¹⁶ the decision of a Veterans Affairs Medical Center to release Arnold Shockley against medical advice was challenged. After Shockley was released, he stabbed Officer Kelly. The court held that there were no reasonable grounds for the treating psychiatrist to seek involuntary commitment of Shockley, and judgment was made in favor of the medical center.

In Solbrig v United States of America,¹⁷ the Solbrig family brought an action alleging that the veterans hospital in Milwaukee, Wisconsin, and 2 of its nonpsychiatric physicians should not have released Mr Solbrig because he was a clear suicidal risk. He died by suicide within hours of his discharge against medical advice. The court found that although Mr Solbrig had expressed suicidal tendencies in the past, he showed no signs of being a genuine suicidal risk on the morning of his discharge, and the physicians were not found negligent in their treatment of the patient.

The Use of a Waiver

A hospital may not, as a condition of allowing a patient to leave against medical advice, require the patient to sign a form releasing the hospital from liability for malpractice claims by the patient. In Dedely v Kings Highway Hospital Center,¹⁸ a mother requesting the release of her infant son was required to sign a form by which she assumed “all risks, responsibilities and liabilities, whatsoever” and released “Kings Highway Hospital Center, Inc, its physicians, surgeons, authorities, and employees from all risks, claims, responsibilities whatsoever.” The court found this type of form to be contrary to public policy and therefore worthless. It also observed that “a hospital’s failure to release a patient unless it sought judicial relief, would undoubtedly subject the hospital to an actionable tort.”

Hospital Detention Orders

In the matter of City of New York v Antoinette R,¹⁹ the New York City Health Commissioner sought enforcement of an order requiring forceful detention in a hospital setting of a person with active infectious tuberculosis to allow for completion of the appropriate regimen of medical treatment. The Supreme Court of Queens County decided that evidence that the patient had discharged herself against medical advice on a number of occasions justified detention, despite evidence of her recent voluntary cooperation in adhering to the recommended medication regimen.

DISCUSSION

Since patients are admitted voluntarily to a general hospital, a discharge against medical advice is merely a withdrawal of the original consent. All competent adults possess the autonomy to make this decision. However, physicians and medical authorities have a responsibility to ensure, before discharging against medical advice, that: (1) the patient’s withdrawal of consent is fully informed with respect to risks and alternatives; (2) the patient possesses the mental competency to make a reasoned decision on the basis of adequate information; and (3) the patient does not meet the state standard for involuntary psychiatric hospitalization. Discharging against medical advice without documentation that the physician conscientiously addressed these 3 issues will leave the physician and the hospital authorities legally unprotected in the event of an adverse consequence.

Even if these 3 safeguards are in place, the cases in the literature illustrate that the term “against medical advice” is not necessarily protective. It might appear that a competent patient not meeting criteria for involuntary hospitalization who has received all relevant information and then suffers an adverse event causally related to an “against medical advice” decision would have no claim against the physician or the medical authorities. But as noted in Weinstock v Ott,¹² the physician has a duty of care which, in that case, included a duty to refer the patient for a diagnostic consultation. The patient’s decision to leave against medical advice may be regarded as reasonable in certain circumstances, and if so, this type of discharge offers no protection.

In Suria v Shiffman,¹³ the issue of contributory negligence arose again. In that case, the patient was held responsible for a proportion of the damages suffered and, while the defendant was ruled against by the court, the liability for the full extent of the damages was reduced accordingly. This may be regarded as a partial protection, but courts and juries are reluctant to invoke this against a patient who is seen as the underdog. That was the situation in Hawkins v Brooklyn-Caledonian Hospital.¹⁵ The dissenting judge in that case bore no sympathy for Mr Hawkins, who was a drug addict and caused most of his own misfortune. However, the other 3 judges, who ruled for the plaintiff, were more sympathetic.

The psychiatric cases cited^16,17 show that if the criteria for involuntary commitment are not met, “against medical consent” appears to provide a comfortable degree of legal protection.

Pollicina v Misericordia Hospital Medical Center14 suggests that a patient’s duty is to seek alternative care when leaving against medical advice. When this duty is ignored, protection exists for the physician or hospital.

City of New York v Antoinette R19 illustrates, in a tuberculosis case analogous to the psychiatric cases, that a third party subsequently infected by a patient who should have been detained under a city order could have grounds for a successful suit against the physicians and medical authorities who failed to protect the community.

Conclusions

There is no substitute for good clinical care and thorough documentation. Before discharging a patient “against medical advice,” a physician should ensure that the patient is mentally competent, fully informed, and does not meet the criteria for involuntary psychiatric hospitalization. We offer guidelines for physicians in the Table.

Anywhere from 1 in 651 and 1 in 1202 discharges from general hospitals are against medical advice. The literature identifies the characteristics of patients discharging themselves against medical advice. They are generally younger, male, and have emergency admissions;³ have been in hospital a shorter time; have been more frequently hospitalized; live alone; and have more severe symptoms at discharge than those released in the usual way.⁴ O’Hara and colleagues¹ have identified a higher rate of discharge against medical advice in the elderly. Schlauch and coworkers² have suggested that there may be collusion between the patient and the medical staff with the agreement that this is an appropriate method of discharge, especially in noncritical cases. When the medical staff perceived imminent and serious danger to the patient by discharge, steps were taken to obtain psychiatric consultations and to assess mental competency.² Psychosocial factors involved in the decision of a patient to leave against medical advice include anger, overwhelming fear, and psychosis. The threat to leave may be a last effort to communicate feelings.⁵ Patients leaving an emergency department against medical advice have prognoses between those for whom admission was not recommended and those who consented to admission.⁶ Patients discharged against medical advice might therefore be expected to have more adverse consequences (exacerbation of illness, death, injury to self or others), but information on this topic is only anecdotal. Even in the absence of negligence, adverse medical consequences occur and often lead to medical malpractice suits. The likelihood of legal action is increased by intense emotion,⁷ anger,^8,9 fear,⁹ and psychosis.^10,11

Does use of the term “against medical advice” by physicians confer some form of legal protection? The physician has advised the patient to remain in the hospital. Having rejected that advice, must the patient take the consequences? In a search of the literature, we could find no discussion of whether protection of any degree is afforded by use of this term. We studied case law in an attempt to discover clear criteria for when “against medical advice” may be protective, partially protective, or offer no protection at all.

Although decisions of courts in one state are not binding for another, cases from other states are often cited in an advisory way.

Methods

We searched the MEDLINE and PsychInfo databases for relevant articles. There was a significant degree of repetition, and articles were selected on the basis of frequency of citation and comprehensiveness of content. We found relevant legal cases through a search of the national medico-legal databases on the LEXIS-NEXIS on-line system. The “cases” and “review articles” databases were searched using the term “against medical advice.” Additional case law was obtained by searching for “against medical advice” in the West Premise CD-ROM database of New York State cases.

Results

We found only 8 civil cases in which the issue of “against medical advice” arose. Seven concerned medical malpractice, and in 4 cases^12-15 a defense of contributory negligence was employed. Two cases^16-17 involved psychiatric discharges. One case¹⁸ commented on the use of a signed waiver by a hospital, and one case¹⁹ concerned enforcement of a hospital retention order.

Contributory Negligence

In Weinstock v Ott,¹² the estate of Norma Ott successfully sued for medical malpractice claiming Dr Weinstock had breached a duty to refer Ms Ott for diagnostic consultation when he was unable to discover the cause of her disorder. Dr Weinstock had referred her to a hospital for tests, at which time the cause of her 4 years of abdominal problems was determined to be ischemic bowel disease. After 4 weeks of tests her condition deteriorated, and she discharged herself against medical advice to return to the care of Dr Weinstock before a definitive diagnosis had been made. Because of her husband’s dissatisfaction with her condition, she returned to the hospital, had further surgery in October, and died shortly thereafter. It was part of Dr Weinstock’s (the outpatient referring physician) defense that Ms Ott had contributed to her problems by discharging herself from the hospital against medical advice. However, she was found not to have been contributorily negligent. The general rule on a patient’s contributory negligence states that the patient must exercise that degree of care that an ordinary reasonable person, under the same disabilities and infirmities in like circumstances, would exercise.

Whether she acted unreasonably in discharging herself against medical advice was a question of fact for the jury. On appeal, the court held that since she had been ill for 4 years, had been in and out of hospitals, had a plethora of tests, and was frustrated from years of unsuccessful tests coupled with her extremely poor health, the jury found that Ms Ott did not act unreasonably when she discharged herself from the hospital.

In Suria v Shiffman,¹³ the court held that the patient’s actions in leaving the hospital against medical advice did not afford a complete defense in a malpractice case (brought in connection with the administration of silicone injections to a transsexual male), but would warrant a reduction in damages to the degree that the patient’s actions increased the extent of the injury.

In Pollicina v Misericordia Hospital Medical Center and Hospital of the Albert Einstein College of Medicine,¹⁴ the patient discharged herself against medical advice from the Misericordia Hospital but was immediately admitted to Einstein Hospital. The patient died 1 week later of pulmonary thrombosis. In this medical malpractice case, the trial court granted motions to dismiss the complaint against Misericordia on the basis that the actions of the hospital had not led directly to the damage to the patient. The protective factor was that following her discharge against medical advice, she was admitted to another hospital.

In Hawkins v Brooklyn-Caledonian Hospital,¹⁵ the patient brought an action against the hospital claiming that the failure of a physician to obtain assistance inserting a subclavian catheter and to properly insert the catheter, the tip of which broke off inside the patient’s body during the procedure, was a departure from good and accepted medical practice. The patient was warned that physical activity could cause the tip of the catheter to migrate, causing his death. He also suffered the painful effect of thrombophlebitis and its continued consequences, including the use of illicit drugs after a period of sobriety in an attempt to self-medicate. Mr Hawkins left the hospital against medical advice, missed 2 scheduled appointments, failed to take his medication, and was later readmitted with another bout of phlebitis. He was discharged 2 days later but failed to keep his next clinic appointment.

In this case, although some of the damages claimed were the result of the patient’s failure to comply with recommended medical treatment, the court of appeals ruled in a 3 to 1 decision that the trial court’s verdict against the hospital and damages should stand.

Psychiatric Discharges

In Kelly v United States of America and John Doe, John Roe, and John Shoe,¹⁶ the decision of a Veterans Affairs Medical Center to release Arnold Shockley against medical advice was challenged. After Shockley was released, he stabbed Officer Kelly. The court held that there were no reasonable grounds for the treating psychiatrist to seek involuntary commitment of Shockley, and judgment was made in favor of the medical center.

In Solbrig v United States of America,¹⁷ the Solbrig family brought an action alleging that the veterans hospital in Milwaukee, Wisconsin, and 2 of its nonpsychiatric physicians should not have released Mr Solbrig because he was a clear suicidal risk. He died by suicide within hours of his discharge against medical advice. The court found that although Mr Solbrig had expressed suicidal tendencies in the past, he showed no signs of being a genuine suicidal risk on the morning of his discharge, and the physicians were not found negligent in their treatment of the patient.

The Use of a Waiver

A hospital may not, as a condition of allowing a patient to leave against medical advice, require the patient to sign a form releasing the hospital from liability for malpractice claims by the patient. In Dedely v Kings Highway Hospital Center,¹⁸ a mother requesting the release of her infant son was required to sign a form by which she assumed “all risks, responsibilities and liabilities, whatsoever” and released “Kings Highway Hospital Center, Inc, its physicians, surgeons, authorities, and employees from all risks, claims, responsibilities whatsoever.” The court found this type of form to be contrary to public policy and therefore worthless. It also observed that “a hospital’s failure to release a patient unless it sought judicial relief, would undoubtedly subject the hospital to an actionable tort.”

Hospital Detention Orders

In the matter of City of New York v Antoinette R,¹⁹ the New York City Health Commissioner sought enforcement of an order requiring forceful detention in a hospital setting of a person with active infectious tuberculosis to allow for completion of the appropriate regimen of medical treatment. The Supreme Court of Queens County decided that evidence that the patient had discharged herself against medical advice on a number of occasions justified detention, despite evidence of her recent voluntary cooperation in adhering to the recommended medication regimen.

DISCUSSION

Since patients are admitted voluntarily to a general hospital, a discharge against medical advice is merely a withdrawal of the original consent. All competent adults possess the autonomy to make this decision. However, physicians and medical authorities have a responsibility to ensure, before discharging against medical advice, that: (1) the patient’s withdrawal of consent is fully informed with respect to risks and alternatives; (2) the patient possesses the mental competency to make a reasoned decision on the basis of adequate information; and (3) the patient does not meet the state standard for involuntary psychiatric hospitalization. Discharging against medical advice without documentation that the physician conscientiously addressed these 3 issues will leave the physician and the hospital authorities legally unprotected in the event of an adverse consequence.

Even if these 3 safeguards are in place, the cases in the literature illustrate that the term “against medical advice” is not necessarily protective. It might appear that a competent patient not meeting criteria for involuntary hospitalization who has received all relevant information and then suffers an adverse event causally related to an “against medical advice” decision would have no claim against the physician or the medical authorities. But as noted in Weinstock v Ott,¹² the physician has a duty of care which, in that case, included a duty to refer the patient for a diagnostic consultation. The patient’s decision to leave against medical advice may be regarded as reasonable in certain circumstances, and if so, this type of discharge offers no protection.

In Suria v Shiffman,¹³ the issue of contributory negligence arose again. In that case, the patient was held responsible for a proportion of the damages suffered and, while the defendant was ruled against by the court, the liability for the full extent of the damages was reduced accordingly. This may be regarded as a partial protection, but courts and juries are reluctant to invoke this against a patient who is seen as the underdog. That was the situation in Hawkins v Brooklyn-Caledonian Hospital.¹⁵ The dissenting judge in that case bore no sympathy for Mr Hawkins, who was a drug addict and caused most of his own misfortune. However, the other 3 judges, who ruled for the plaintiff, were more sympathetic.

The psychiatric cases cited^16,17 show that if the criteria for involuntary commitment are not met, “against medical consent” appears to provide a comfortable degree of legal protection.

Pollicina v Misericordia Hospital Medical Center14 suggests that a patient’s duty is to seek alternative care when leaving against medical advice. When this duty is ignored, protection exists for the physician or hospital.

City of New York v Antoinette R19 illustrates, in a tuberculosis case analogous to the psychiatric cases, that a third party subsequently infected by a patient who should have been detained under a city order could have grounds for a successful suit against the physicians and medical authorities who failed to protect the community.

Conclusions

There is no substitute for good clinical care and thorough documentation. Before discharging a patient “against medical advice,” a physician should ensure that the patient is mentally competent, fully informed, and does not meet the criteria for involuntary psychiatric hospitalization. We offer guidelines for physicians in the Table.