Duties and responsibilities

Expectations of physicians in practice

Medico-legal risks in busy and overcrowded emergency departments

An article for physicians by physicians
Originally published September 2010


A review of some of the medico-legal risks related to the use of medical directives in emergency departments, and patients who LWBS by a physician or sign out AMA.

Emergency department (ED) busyness and overcrowding is an established reality in Canadian hospitals. The demand for care now exceeds many EDs' resources and ability to provide care in a timely fashion.

Many EDs now attempt to expedite care using a number of beneficial approaches, including more rapid triage and/or medical directives that allow nursing staff to begin initial investigations and treatments before a physician sees a patient.

Despite many such improvements and approaches, wait times often remain long. Predictably this leads some patients to leave without being seen (LWBS) by a physician or before being given their test results. Even if placed in a bed and assessed by a physician, frustrated patients may discharge themselves against medical advice (AMA).

The following scenarios illustrate some of the realities of Canadian emergency departments. Each of these situations poses unique medico-legal risks to physicians and hospitals.

Case 1

An emergency physician arrives 30 minutes before his shift and apprehensively accesses the electronic patient tracking system. There are 35 patients waiting to be seen, and the average wait exceeds five hours.

The physician later telephones the CMPA asking whether he owes a duty of care to any of the patients by having viewed the electronic list of waiting patients. The CMPA medical officer answers that it would be unlikely that simply viewing the list would create a duty of care to a particular patient.

However, when might a duty of care be created? A court will determine whether a duty of care is created (and the scope of that duty) based on the specific circumstances. Typically, a duty arises when a physician assesses a patient, or expressly or implicitly agrees to assume responsibility for a patient's care. For example, in previous cases, courts have found a duty of care was created when physicians took a referral telephone call from a clinic, interpreted an ECG from a patient in the waiting room, or were notified by nursing or other paramedical staff of an ill-appearing, but unplaced patient. For triage physicians in EDs, a duty of care is likely created at the time of the initial assessment.

Duty of care: The doctor-patient relationship creates a series of obligations including the requirement, as appropriate, to attend, diagnose, advise, treat, and seek consultation.

A court may view that a duty of care has been created when a physician has knowledge of a patient and provides an opinion that he or she ought to know will be relied on. In these situations, physicians should attempt to obtain sufficient information at the time to provide professional advice.

Case 2

Follow up of a LWBS patient
A 61-year-old woman with hypertension presents with a sudden onset of a severe headache. At triage she has a blood pressure of 230/150 mmHg and a Glasgow Coma Scale (GCS) of 15. No medical directives are started. Although the patient appears well, the experienced triage nurse is concerned. The nurse briefly discusses the patient with the emergency physician and documents that conversation. There is no assessment room or bed immediately available in the department, but the patient is prioritized in the queue. A CT scan is ordered. Several hours later, the ED staff cannot locate the patient.

Another patient in the waiting room volunteers that the patient in question left 30 minutes previously. None of the patient's contact telephone numbers are in service. The nurse documents that the patient LWBS, discharges her from the electronic bed board system, and closes the medical record.

Discussions between physicians and other health professionals are an important and necessary part of an efficiently-functioning emergency department. However, if in the conversation with the triage nurse the physician gives advice that will be relied on, it is probable a duty of care is owed to the patient, even though the physician did not directly assess the patient. Further, depending on what care was provided while in the hospital, the duty may require that the physician take certain follow-up steps despite the patient having voluntarily left the hospital.

Depending on the clinical circumstances, follow up with a patient who has LWBS may be important, even urgent. Ideally, the patient's contact information is accurate and getting in touch with him or her is possible. Follow up is facilitated if the department has a records system capable of identifying and flagging LWBS patients and their investigations. Accurate patient contact information is necessary for follow up.

It is prudent to document the efforts made to contact the patient.

  • A duty of care may require that the physician take follow-up steps despite the patient having voluntarily left the hospital.
  • Consideration should be given to implementing a system capable of identifying and flagging LWBS patients.
  • Accurate contact information facilitates follow up.

Case 3

Medical directives and challenging follow up
A 47-year-old man who is homeless and has a history of substance abuse presents at 1500 hours with pleuritic localized left chest pain of three hours duration that has now resolved. A medical directive is initiated and the ECG is shown to the emergency physician. He initials it and interprets it as being normal with the exception of benign early repolarization. The patient, who has not been seen by the physician, is assigned back to the waiting room. Two hours later, his initial troponin T is entered into the computer system and is elevated. The laboratory does not have a policy to report elevated troponins as a critical value. After nursing and physician shift change at 1900 hours, a new triage nurse cannot find the patient in the waiting room. The patient has no fixed address and there are no contact phone numbers in the medical record, although he has accessed social services and a primary care clinic downtown. The patient is discharged from the electronic system and the medical record is sent to medical records for filing.

Medical directives are issued in advance by physicians. Through these, physicians delegate to other health care professionals the authority to perform certain controlled acts. Although staff can initiate some investigations or treatments, the on duty physician is still responsible for further assessing the patient, ordering investigations or treatments, and arranging follow up, as appropriate or necessary.

Courts have found that a duty of care is created when a physician accepts responsibility for a patient's care. This could include initial care through a medical directive, regardless of whether or not the physician has directly assessed the patient. For example, it may be necessary for the physician to reasonably attempt to follow up not only the patient but also any tests or investigations ordered as part of a medical directive.

If contacting a patient directly is challenging, physicians may try contacting the patient through other avenues such as the primary care physician, a clinic the patient has attended in the past, social workers in the hospital or community, or even the police. The hospital administrative staff may also be able to help. In some situations, contacting the patient is impossible.

A court may also find, depending on the circumstances, that it was reasonably foreseeable that attempts to follow up a patient should have taken place urgently.

  • An immediate duty of care for the physician may be created with the use of a medical directive.
  • There may be an urgent need to follow-up some patients who have LWBS.
  • Consider the use of alternative resources to help in follow up.

Case 4

Another example of the use of medical directives and the need for follow up
A 23-year-old man presents at 0200 hours on the first day of a long weekend with a left ankle injury. A medical directive is implemented and the X-ray shows a trimalleolar fracture. The patient returns to the waiting room. The triage nurse notes that the patient left the department at 0600 with the aid of his friends before being assessed by a physician. His X-rays are in the PACS system. He is discharged from the electronic system and the medical record is sent to medical records for filing. The films are not reviewed by the radiologist until 72 hours after discharge. Although there is no ED interpretation attached to the images, the radiologist assumes it would be difficult to miss the fracture and hence notification to the ED did not occur.

An immediate duty of care may be created with the medical directive. As the interpretation of X-rays falls outside most nurses' scope of practice, then it would be expected that the physician would perform that task. In some centres, the absence of an emergency department interpretation may prompt the radiologist to call the ED, at which time it would likely be discovered that the patient had left without being seen by a physician.

  • An immediate duty of care for the physician may be created with the use of a medical directive.
  • Is there an appropriate feedback mechanism between the diagnostic imaging department and the emergency department so that abnormal imaging results are acted on in a timely way?

Case 5

Leaving AMA
An 85-year-old woman with no significant medical history presents to the ED with a two-day history of fever, cough, and shortness of breath. She is high functioning and lives independently. On admission her oxygen saturation on room air is a little low. A chest X-ray shows a dense right lower lobe pneumonia. Based on her overall clinical assessment, the physician recommends she be admitted to hospital. She is upset by the "long wait" and adamantly refuses admission because of a much anticipated upcoming visit with her only granddaughter. She appears fully cognizant of her disease and the risk of discharge, but she remains unyielding and asks to sign an AMA form.

Many physicians believe they are absolved of any legal duty of care when mentally capable (competent) patients discharge themselves against medical advice. It is true a patient may be judged to have negligently caused or contributed to the clinical outcome if he or she failed to act as might generally be expected of a reasonable patient in the circumstances. However, it is uncommon that a court will find the patient wholly responsible for an adverse outcome due to his or her own contributory negligence.

To improve care and lessen medico-legal risk, the physician should pay attention to several issues when patients sign themselves out AMA.

The physician should make reasonable attempts to confirm that the patient understands the potential consequences of refusing the recommended investigations or treatments. Consider the patient's mental capacity (competency). If the patient appears to understand the nature of his or her disease and the consequences of accepting or refusing treatment, then he or she is likely capable. This assessment is based on the overall clinical picture. In some situations, obtaining a consultation from another physician may be helpful in determining the patient's mental capacity.

Even if a mentally capable patient refuses treatment, the physician should explain why more observation, investigation, treatment, and/or follow up are recommended. This discussion may help alleviate the patient's concerns or fears. It may also be helpful to ask if the patient has any other social concerns, for example, responsibility for the care of a spouse at home or a pet left unattended. There may be a way to resolve such issues. It is generally useful, when possible, to include family members (with the patient's permission) in the discussion. Depending on the apparent seriousness of the clinical condition and available resources, it may be helpful to ask another physician to see the patient to reinforce the need for the recommended investigations or treatments.

Follow up and discharge instructions
The physician should also advise the patient leaving AMA on any necessary follow up. Discharge instructions can still be provided. There is an increasing expectation that physicians should educate patients on what symptoms and signs should prompt them to seek further medical attention. The patient should be made to feel welcome to return to the emergency department and seek

The recommendations for care, the mental capacity assessment, the patient's reasons for refusing investigation or treatment, and the follow up and discharge instructions should be documented in the medical record. The signed AMA form is potentially useful if issues about the assessment and informed discharge arise later. Some physicians ask that nursing staff witness that an assessment and discussion have occurred.

  • When a patient leaves against medical advice there is still an expectation that discharge instructions be provided if possible. Document these.
  • A signed AMA form is an acknowledgement that a discussion with the patient of the risks of discharge has occurred.


Demand for emergency care is likely to continue to build in the foreseeable future and situations such as those described here may become ever more common. These can represent substantial clinical risks for patients and medico-legal risks for physicians and hospitals.

DISCLAIMER: The information contained in this learning material is for general educational purposes only and is not intended to provide specific professional medical or legal advice, nor to constitute a "standard of care" for Canadian healthcare professionals. The use of CMPA learning resources is subject to the foregoing as well as the CMPA's Terms of Use.