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Despite improvements in patient flow, the creation of “fast track” services and other quality initiatives, a significant number of patients choose to leave hospital emergency departments prior to being seen by a physician or receiving treatment.
There are no state statutes or regulations on point and case law dealing with this specific question is virtually non-existent. The federal Emergency Medical Treatment and Active Labor Act (“EMTALA”) establishes requirements for processing and evaluating patients who present for care or treatment for emergency medical conditions at Medicare participating hospitals. It is one of the few Medicare provisions that pertain to all patients, not just Medicare beneficiaries. EMTALA regulations do not, however, specifically address what to do if the patient walks out of the facility’s emergency department without being seen. The most relevant guidance on the issue can be found in the Medicare Interpretative Guidelines of the State Operations Manual, Appendix VResponsiblities of Medicare Participating Hospitals in Emergency Cases (“SOM”).
The SOM guidelines are used by investigators to assist them in evaluating alleged EMTALA violations. The guidelines state that EMTALA is not violated if a patient leaves against medical advice (AMA) or leaves without being seen (LWBS), as long as the patient leaves of their own free will, without suggestion or coercion. It does not matter when in the standard emergency department process the patient leaves (i.e. before or after initial triage; the performance of a medical screening examination or treatment). The medical record should reflect that screening, further examination and/or treatment was offered to the individual, if it was possible to do so. If the patient simply leaves without notice to any physician or hospital personnel, that fact should be documented in the emergency room record.
If the patient approaches anyone and states their intent or desire to leave, reasonable efforts should be made to advise the patient of the benefits of receiving appropriate examination and treatment, and the risks associated with leaving without them. Ideally, the patient should receive that information from a physician, however, it may not, always be possible to find a physician not otherwise involved in the examination or treatment of another patient. A nurse or other healthcare worker can advise the patient of the general benefits to be derived from waiting to receive medical evaluation and treatment they sought in coming to the emergency department in the first place. Any information that is conveyed to the patient should be documented in the medical record, as well as any statements the patient made prior to leaving.
Documentation should include a description of the examination or treatment that was offered and the “Refusal of Hospitalization or Medical Treatment Against Medical Advice” form should be completed whenever possible which provides a good template for recording that information.
Additional direction can be found in the Shands Healthcare Core Policy 2.23 which includes the above referenced form as an appendix.
Please feel free to contact Shands Legal Services at 733-0030 with any questions you have or any specific issues you would like to discuss. 
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