As one of my favorite presidents (Bush-43) famously said, “When I was young and foolish, I was young and foolish.” An example of this occurred in my life when I was a novice attorney working in Huntsville and living in Austin. One night, I was driving my girlfriend’s (later she became my wife and ex-wife) so-called motorcycle – a 125-cc Honda – and collided with a guy in an intersection who made a left-turn in front of me. I was knocked unconscious and dragged for a long distance before the other guy dislodged me and vanished into the night.
Initially, my doctor thought I was only scrapped up, but later they discovered I had a non-displaced cervical fracture, which required extreme immobilization for a few days. As with most people, I became enormously anxious to get out of the hospital, and my doctor kept putting it off. Finally, on the day that I was certain to be discharged, my doctor never came by on his rounds. In a fit of frustration, I checked myself out and went home.
According to Wikipedia, there is a term for what I did – Against Medical Advice, or AMA:
- “Sometimes known as DAMA, Discharge Against Medical Advice, is a term used with a patient who checks himself out of a hospital against the advice of his doctor. While it may not be medically wise for the person to leave early, in most cases the wishes of the patient are considered first. The patient is usually asked to sign a form stating that he is aware that he is leaving the facility against medical advice, and the AMA term is used on reports concerning the patient. This is for legal reasons in case there are complications to limit liability on the part of the medical facility…. When a patient checks out against medical advice, the patient’s insurer may not pay for subsequent stays for the same condition.”
Although I earlier said that my personal DAMA was an instance of being young & foolish, I actually believe in the concept. I suspect this belief is rooted in my 60s, libertarian values. People from my generation don’t like big institutions telling us what to do, even if they are right.
Further, although the U.S. Constitution does not specifically address false imprisonment, the Fourth Amendment prohibits unreasonable search & seizure, which has been interpreted to mean that individuals have a valid cause of action if they can prove: (1) willful detention, (2) without consent, and (3) without authority of law.
So for years, I have been telling my DAMA story to anyone who will listen – i.e., “you don’t have to kowtow to the Man.” But my son, Mikey, who is now a resident ER doctor at the Mayo Clinic, recently told me that they actually have security to prevent people from discharging themselves if they are a risk to themselves or to the community. That sounds like a police state that I am unfamiliar with, something that certainly deserves more investigation.
Surprisingly, one of the best DAMA resources on the internet is an article on the Mayo website that discusses the scope of the problem – approximately 2% of hospital discharges are DAMA – the reason for them, and methods to minimize them, but nothing about police or security:
- “At the heart of the problem is an ethical dilemma for physicians. When a patient wishes to leave against medical advice, this may be contrary to the physician’s attempt to do what is believed best for the patient. The struggle is between patient autonomy and physician beneficence.”
After a painstaking search of the internet, I concluded that hospitals do not have a right to hold patients against their will unless they think the patients are mentally incapable of making their own decision. Patient autonomy wins over physician beneficence.
Following my search, I asked my son to validate my conclusion, and he confirmed, with one caveat (that drunk were mentally unsound) and with one exception – i.e., that hospitals were required to report gunshot wounds to the police and hold the patient until the patient arrived. We know that New York has a similar law because one hospital got in trouble for not following the law when a famous athlete was involved in a shooting:
- “On November 28, 2008, Burress suffered an accidental self-inflicted gunshot wound to the right thigh in the New York City nightclub LQ when his Glock pistol, tucked in the waistband of his sweatpants, began sliding down his leg; apparently in reaching for the gun he inadvertently depressed the trigger, causing the gun to fire. However, the Manhattan District Attorney stated Burress was in fact wearing jeans. The injury was not life-threatening and he was released from an area hospital the next afternoon. Two days later, Burress turned himself in to police to face charges of criminal possession of a handgun. It was later discovered that New York City police learned about the incident only after seeing it on television and were not called by New York-Presbyterian Hospital as required by law. New York Mayor Michael Bloomberg called the hospital actions an “outrage” and stated that they are a “chargeable offense”. Bloomberg also urged that Burress be prosecuted to the fullest extent, saying that any punishment short of the minimum 3½ years for unlawful carrying of a handgun would be ‘a mockery of the law.’ Burress had an expired (concealed carry (CCW)) license from Florida, but no New York license.”
Burress went to jail; how much you want to bet that no one from NY-Presbyterian did?