By Doug Wolfberg
When I was starting out as a young pup in EMS in the late 1970s, I remember listening to the experienced vets of the EMS trenches at my volunteer station in small-town central Pennsylvania. They told stories and waxed philosophical about the profession that I was to make my life’s work. I was hooked, and absorbed everything I could.
One of the supposed EMS truths that was often bandied about was the iron-clad “rule” that you could only hand off a patient to a person with equal or higher training than you. If you didn’t, well then – you committed patient abandonment. This conventional wisdom was as entrenched as the use of MAST trousers and long backboards. It was true because everyone said it was.
In what must have been one of my first forays into independent critical thinking, something about the accepted wisdom of patient abandonment never sat right with me. It just didn’t make sense to my teenage EMS-neophyte ears. After all, if a healthcare provider could never hand off a patient unless the next provider was of equal or higher training, then what on earth would physicians do when they were done caring for patients? Did doctors keep handing off patients to one another so they could go home and sleep? Were their waiting rooms packed with patients who could never go home, since there wasn’t anyone “higher” to hand them off to?
Someday, I will investigate this further, I thought. I tucked it away and did my best to never commit patient abandonment in the years I worked as a provider. And then when I got older, I dug in on my efforts to confront my lifelong tormentor, patient abandonment. I went to law school.
OK, finding the truth about patient abandonment wasn’t the only reason I decided to become a lawyer. But it nagged at me the whole time.
Having now been a practicing EMS attorney for almost 30 years, it’s time to confront this boogeyman: EMS patient abandonment is a bucket of warm hogwash.
What is and isn’t patient abandonment?
What rekindled my antipathy about patient abandonment enough to write this article, some 45 years after the topic first piqued my interest? Two recent bouts of patient abandonment nonsense:
- Hospital staff members claiming that EMS practitioners can’t leave even low acuity patients in the emergency department until the hospital physically “accepts” care of the patient, or the providers have committed patient abandonment.
- A new set of EMS protocols that I recently reviewed that expressly incorporate the tired and never-true maxim, “it’s patient abandonment if you don’t hand off care to someone of equal or higher training than you.”
Let’s stop the nonsense right here and now. What is patient abandonment, exactly? And more importantly, what isn’t patient abandonment?
Well, you might be surprised to learn that there is no universally accepted legal definition of the term. Many legal terms do have precise definitions that legal scholars, legislative drafters and others have agreed on over decades, even centuries. Like negligence, for example. But patient abandonment “definitions” largely come from published medical literature where researchers, physicians and other medical academics advance rehashed recitations of the conventional wisdom – even though that has always lacked any viable foundation. The regurgitation of these supposed legal definitions over the years has strayed far from the legal truths.
Here’s my working definition:
Patient abandonment is a form of medical negligence based on the unilateral withdrawal of care by a provider without proper notice to the patient or without affording the patient the opportunity to obtain substitute care when there is still the necessity of continuing medical attention.
Let’s take this apart for a closer look.
First and foremost, patient abandonment is not its own, separate legal cause of action. It’s a form of medical negligence, i.e., malpractice. Right off the bat, that means, like any other negligent action, it’s a question of whether the provider acted reasonably under the circumstances. The four elements of negligence (i.e., 1. legal duty, 2. breach of duty, 3. proximate causation and 4. damages) apply in malpractice cases alleging abandonment as they do with any other type of negligence case.
Abandonment also requires a unilateral withdrawal of care without making the possibility of alternate care. And it only applies in cases where the patient needs continuing care.
Learn more: On-Demand webinar: Ambulances held hostage. Strategies to unilaterally reduce ED wait times and get back into service
Knowing the legal fundamentals, let’s look at what patient abandonment is not.
Patient abandonment is not “handing off care to a provider of lower training.” In many common situations, the patient simply does not clinically require the care of the higher level practitioner and transferring care to a lower level practitioner is perfectly reasonable and within the standard of care. For instance, an assessment by an ALS practitioner that a patient is stable and requires no ALS interventions, with a release of care to BLS providers, is not the tort of patient abandonment.
Patient abandonment is not a clinically appropriate decision to terminate healthcare for an individual who does not require any healthcare. Somewhere along the line, the conventional wisdom has become institutionalized that once EMS practitioners make patient contact, they cannot terminate or withdraw care unless the patient refuses care or transport. The term “provider-initiated refusals” has become a flash point in EMS, with many medical control and regulatory authorities taking a dim view of the practice, wrongly believing it constitutes abandonment. Maybe it’d be more palatable if we called it what it really is, such as “clinically appropriate conclusion of an EMS interaction.”
The term “provider-initiated refusal” is not accurate. An EMS clinician who assesses a person, follows protocols and makes an appropriate clinical determination (sometimes with the involvement of online medical control) that the individual does not require EMS care or ambulance transport, and concludes the EMS interaction (sometimes with a referral for primary care, social services or other non-emergent care or follow-up) is not “refusing” anything. Nowhere in any standards of care is a healthcare practitioner obligated to provide care to a person who doesn’t need it.
Once EMS fully embraces the concept that, like any other healthcare service, we are not obligated to provide EMS care to people who don’t need it, imagine how much more effectively we can deploy our resources and make them more available and responsive for the patients who truly need it for actual medical emergencies.
Patient abandonment is not leaving an ED prior to physical acceptance of a patient by hospital staff. Some ED staff are threatening EMS practitioners with vague and unspecified charges of “patient abandonment” if they leave a patient in the ED and return to service prior to “physical transfer of care” or “acceptance” of the patient by a hospital clinician. This resurrection of the patient abandonment boogeyman is being used to scare EMS providers, and in some cases, regulators, into open-ended, forced staffing of the ED by EMS providers after arrival at the hospital. As we wrote in 2021 in the Ambulances Held Hostage series, Federal law clearly and unequivocally imposes on the hospital a legal duty of care to the patient upon arrival on hospital property (which actually extends to areas within 250 yards of the hospital’s property).
Remember how we established that patient abandonment is really just a form of negligence? And what’s the first element of negligence? A legal duty. Hospitals claim that EMS providers somehow breach a legal duty of care by leaving a patient in the ED when the legal duty – under Federal law – now clearly rests with the hospital. As a matter of law, it cannot constitute patient abandonment when an EMS provider has brought a patient to a hospital – which by the way has capabilities of providing higher levels of patient care – and then leaves the patient with the facility, when it is the facility that now holds the legal duty of care.
Of course, we have also long said that in cases where a patient requires active care or monitoring and could suffer harm without it, and no hospital staff is immediately available to provide such necessary care, EMS providers should absolutely continue to provide uninterrupted care, whether they are in the ED waiting on the wall or anywhere else. But statistically, most EMS patients will not suffer harm or a negative outcome if EMS practitioners deliver the patient to the ED and then go back into service for the next ambulance call in the community. No harm = no damages. No damages = no tort.
After all, do hospitals assign a clinician to every patient sitting in the waiting room who didn’t come to the ED by ambulance? Of course not. So why is it that the hospital isn’t committing patient abandonment in this circumstance, but somehow EMS providers are committing abandonment if they don’t physically stay with a low-acuity, non-emergent patient the whole time until physical transfer of care occurs?
Patient abandonment is not at all a common or even likely type of EMS liability. I have been involved in EMS for over 45 years, with more than 27 of those years as a practicing EMS attorney. I’m often asked how many EMS patient abandonment cases I’ve seen over the years.
Not one.
I’ve not seen, handled or even heard of a tort case anywhere in the United States alleging, much less successfully proving, patient abandonment against EMS practitioners. Of course, this is my anecdotal experience, not an exhaustive research-based empirical conclusion, but just the same, it is experience of a lifetime spent in EMS and decades immersed in EMS law. If any readers know of any such actual, verified cases, decided by courts or juries, please share with us.
The risk of tort liability to EMS practitioners for patient abandonment is simply negligible – virtually non-existent – in the scope of risks that EMS providers face. Why a misunderstood and wholly misplaced fear of patient abandonment continues to play an outsized role in EMS protocols, continuum of care decision making, and EMS policy development is an ensuring mystery.
EMS in recent years has embraced evidence-based practice. This has been long overdue. We challenge conventional wisdom and seek objective, verifiable support for our practices and interventions. So why do myths like the supposed law of patient abandonment still pervade? It’s time we apply the same critical assessment to the long-held and unproven risks of patient abandonment in EMS.
Stop the nonsense.
Doug Wolfberg is an EMS attorney and founding partner of Page, Wolfberg & Wirth, the nation’s preeminent EMS law firm.
