When an Employee Says No

Proper documentation is needed to protect your organization from liability when an employee refuses emergency medical care during work related and non-work related illness and injury.

• By James Dziendziel
• Apr 01, 2017

You are a supervisor at a large assembly plant. Paul, your afternoon maintenance technician, smashes his right index finger between a part and an impact wrench and suffers a bloody wound to the fingertip. Paul reports to the Plant Medical Department and asks for a Band-Aid. The occupational health nurse quickly assesses the bleeding open wound and summons the plant physician, who advises Paul that he needs to be sent to the hospital emergency room for more advanced treatment and possible x-rays and sutures. Paul states that he doesn’t want to go to the emergency room and leaves Medical. Three months later, Paul notifies your company that he has to have a distal fingertip amputation and is suing your company and the Medical Department staff because his finger tip developed an infection that was not treated properly.

A review by your organization's legal department found little or no documentation of Paul’s injury and, worse yet, there was no documentation of Paul’s refusal of medical care against medical advice! Now OSHA wants to get into the act because your plant didn’t record the case within seven days of the injury.

Or . . .
You are a supervisor at a small injection molding plant. Emily, your third shift press operator, began complaining of chest pains and trouble breathing shortly after returning from lunch. Your operation does not have a Plant Medical Department, and you check on Emily to see whether she is all right. Although she is pale and sweaty, Emily insists that she is okay, and even after vomiting twice in your presence, she refuses to allow you to call 911 and insists on driving herself home. Emily was later found deceased in her car in the employee parking lot and now, a year later, her family wants to bring suit against you and her employer. Your employer never had a policy covering this type of event and there are no records to prove that you were not negligent in not calling 911.

Recordkeeping Requirements
Every employer regardless of size must have a policy and procedure in place to cover the eventuality when an employee will refuse emergency medical care for an occupational or non-occupational illness or injury. Today’s litigious society has created a false sense of worker entitlement for damages when an employee makes a rash judgment that results in a permanent loss of lifestyle or function. Statutes of limitations can vary from state to state, and often an employer may not receive news of a lawsuit until many months to many years after the event, when records have been lost, destroyed, or never kept at all. The employer may even be liable for workers’ compensation disability benefits and OSHA recordkeeping violations long after the employee terminated employment from the organization. Section 381 of the Michigan Workers Compensation Act (WCA), for example, requires a worker to notify his employer of an injury within 90 days after the injury or within 90 days after the worker knew or should have known of the injury. The employer usually is not free from responsibility because the WCA allows the worker up to two years after the injury to make a claim for compensation benefits (Michigan, 2000).

OSHA has often proposed to add additional language to the existing employee and illness recordkeeping rule (29 CFR 1904) that all covered employers must accurately record all employee injuries and illnesses for up to five years after an incident. OSHA further states that employers who discover previously unknown employee injuries or illness within five years of any incident would be required to revise their OSHA records to include this information or face possible OSHA enforcement for recordkeeping violations (OSHA, 2015). OSHA also holds employers responsible for recording occupational illnesses and injuries where employees were offered medical treatment above first aid but the employee clearly and voluntarily refused the medical treatment (OSHA, Standard Interpretations, 2007).

Employee perceptions of employer responsibilities are changing with the passing of the Baby Boomers into retirement. With the changing social demographics of the workforce, employers are now facing more millennials with a perceived sense of entitlement and a lack of personal responsibility for making inappropriate personal choices. The aging Generation X workers are more apt to be responsible for their actions but so value their privacy that they will staunchly not want to divulge any personal medical information to the employer or even to the employer’s Medical Department physicians or nurses. Both ends of the spectrum are apt to make decisions to refuse emergency medical care and later regret their decision. So how does an employer protect himself and his business and reduce personal and corporate liability? How does bad decision making on the part of an employee make the employer liable?

In order to understand the right to refuse emergency medical care, we should first focus on some definitions often used in tort law.

• Consent. The Merriam-Webster dictionary gives the simple definition of consent as to agree to do or allow something: to give permission for something to happen or be done (Merriam-Webster, no date).
• Informed consent. According to Cornell University Law School, informed consent is an agreement to do something or to allow something to happen, made with complete knowledge of all relevant facts, such as risks involved or any available alternatives. In health care, a patient may give informed consent to medical treatment only after the health care professional has disclosed all possible risks involved in accepting or rejecting the treatment. A health care professional may be held liable for an injury caused by an undisclosed risk (School, no date).
• Implied consent. Cornell defines implied consent as consent when surrounding circumstances exist that would lead a reasonable person to believe that consent had been given, although no direct, express, or explicit words of agreement had been uttered. (School, Implied Consent, no date).
• Battery. Cornell defines battery as a physical act that results in harmful or offensive contact with another’s person without that person's consent (School, Battery, no date).

In health care, it is not enough to simply gain a patient's consent; the health care provider needs to obtain informed consent. Implied consent is used in instances when emergency rescue personnel do not need informed consent such as severely intoxicated, suicidal, or unconscious persons, etc. In health care, any action including emergency medical care that is taken without the employee's informed consent constitutes battery and is subject to civil and in some cases criminal prosecution.

How Do These Definitions Apply to Employee Refusal of Care?
All workers throughout the United States have the right to refuse medical care at any time without fear of retribution by the employer. But simply having the employee sign a standardized form for refusing care may not be enough to prevent future problems for the employer. Informed refusal is the opposite of informed consent. Simply put, a signed refusal of care form without documentation of the possible consequences of refusal can legally be the same as no informed refusal of care protocols at all. In Paul's case, the Medical Department staff needs to have protocols requiring full documentation of the incident, including:

• Date and time of the incident
• Nature of the incident
• Observation and findings of injury or illness
• Patient's level of consciousness
• Vital signs
• Recommended treatment or procedures
• Documentation of the patient's refusal
• Documentation of Medical Department staff's efforts to inform the patient of the dangers of refusing care.
• Witness statements and signatures
• Patient's signature on an approved Refusal of Medical Care Against Medical Advice form

With today's reliance on electronic recordkeeping, the date and time of an incident is automatically recorded for most Medical and Safety Departments during the reports. The nature of the incident should include whether the incident was occupational or non-occupational, with a detailed synopsis as to what, when, where, why, and how the incident occurred. Often, this information can be shared electronically with Safety.

Witness statements can be included and are very valuable if the case is litigated. Vital signs should always be recorded to document the severity or stability of the employee's condition. Any recommended treatment or procedures, including transfer to a hospital for further treatment and care of the employee, should be spelled out in detail along with the need for any transfer. The Medical Department staff should then document the circumstances of the patient's refusal, including behavior or any signs of incompetence (drooling, slurred speech, smell of alcohol, etc.).

The Medical Department staff should carefully document any statements the patient makes as to why he is refusing care and any statements made in the presence of others. The Medical Department staff also should clearly document any and all patient teaching given. The Medical Department staff should document that the patient was informed of the severity of his injury or illness and all of the pertinent potential complications that could result from refusing care, up to and including the loss of function or loss of life. Finally, the Medical Department staff should try to obtain signed witness statements to the event.

But what are we to do if the employee refuses to sign a refusal form or supply any information and leaves the Medical Department? The Medical Department staff should follow the same procedure as above but also include documentation of any statements the employee made upon leaving Medical, along with signed statements from any witnesses. An employee has the right to not sign any forms, but this does not preclude the Medical Department from writing a detailed report of the event. Deletions or omissions in the incident report can become quite messy during litigation, especially if a long period of time has elapsed since the incident or if Medical Department staff members are no longer employed by the company or are otherwise unreachable for testimony. Informed medical refusal is needed to prevent an injured employee from testifying that he didn't know what he was signing or was too ill to understand the form.

The proper documentation of refusal for medical care is no less important at facilities that don't have a Medical Department. All supervisors in addition to the safety manager should be trained in what to do and what to document in these events. Let's go back to Emily, our third shift press operator. Although there are no qualified or licensed health care professionals in your operation, a layman can generally determine when an employee is acutely ill or injured. In essence, our Emily probably looks very sick, possibly to the point of being "death warmed over." Most likely she is ashen, gasping for air with sweat pouring down her, and only able to speak two or three words at a time without stopping for air. The company still needs to have a Refusal of Medical Care form in the supervisor’s toolbox for situations like this, although by her presentation she may be unable and unwilling to sign a form. Proper documentation is still needed to protect the supervisor and the company from a wrongful death lawsuit. Emily's supervisor needs to complete a detailed incident report, including similar information that the Medical Department collected on Paul, including:

• Date and time of the incident
• Nature of the incident
• Observation and findings of injury or illness
• Patient's level of consciousness
• Documentation of the patient's refusal
• Documentation of the Supervisor or Safety Manager's efforts to inform the employee of the dangers of refusing care
• Witness statements and signatures
• Employee's signature on an approved Refusal of Medical Care Against Medical Advice form

The supervisor should document in clear, concise, and easy-to-understand terms, painting a word picture of the event. Unless the supervisor is medically trained, he or she should refrain from using medical terms and try to document in a layman’s manner the event, his or her observations, and the course of action taken

What Else Can We Do to Protect Ourselves?
In Paul's case, little more can be done beyond the documentation. A determination of workers’ compensation benefits will most likely include the documentation your Medical Department made. In citing Emily as our model, an additional step can be taken when an employee is acutely ill or injured and may die or have serious long-term effects from the illness or injury. In Emily’s case, the supervisor should still activate the 911 system, even if Emily objects.

Paramedics, fire rescue, and first responders across the United States operate under printed Standard Operating Procedures (SOP) enacted by their governing Medical Control Authority (MCA). Among these SOPs is included an SOP regarding refusal of medical care. These highly trained emergency medical service (EMS) personnel deal daily with persons who refuse treatment or transportation to the hospital. By following their SOP, they can provide a level of protection from liability in an organization without a Medical Department by simply documenting that your supervisor did everything humanely possible for Emily, up to and including calling EMS. If Emily refuses medical care or transportation at this level, your supervisor should document in the incident report that he or she called EMS, what time they arrived, and that Emily refused their services.

The EMS personnel, on arrival, will talk with Emily and most likely provide her with an assessment of her condition.  In addition, the EMS personnel are in two-way communication with an emergency center physician at their base hospital who can talk to Emily over the cell phone or radio speaker and give a medical opinion of her condition and why she needs to go to the hospital. In many cases, the employee relents in the presence of EMS and agrees to transport. In the event that Emily continues to refuse, your supervisor has documented that everything possible was done for Emily by your company and the EMS crew follows their SOP for documentation of refusal.

But isn't this buck passing? Although at first glance this may appear as an abuse of the EMS system, almost every emergency health care provider will graciously respond to your call. Professional paramedics and fire rescue personnel understand that your supervisors are not qualified health care personnel. They also understand that not everyone wants to go to the hospital or be transported by ambulance. This is a daily occurrence for them, and they are highly skilled in informed medical refusal and will do their best to convince an employee to seek treatment after your efforts have failed. Moreover, this is a part of the duty they are sworn to perform, and they will do everything to help your ill or injured employee. Exhaust every resource at your disposal, but don’t be afraid to use the trained medical professionals who still make house calls.

Summary
Whether your operation is large, medium, or small, it needs to have an SOP regarding employee refusal of medical care. Accidents, illnesses, and injuries are often unpredictable, and planning ahead for refusal of care is just as important as planning ahead for any other incident that may occur at your operation. Medical, Safety, and Legal should meet to draw up an SOP and a standardized Refusal of Medical Care form that is readily accessible to supervisors in operations without a Medical Department. The plant medical director should regularly review the plant’s SOP regarding refusal of care and hold updates with Safety and Legal as needed.

Remember that all life-threatening emergencies require 911. Strive for consistency to avoid confusion when emergencies occur. Debrief and analyze how an emergency was handled and whether the appropriate methods for handling refusal of care were used. Refine your plan as needed and clarify any confusing points or issues. Work with the outside providers—the fire chief, the ambulance company’s operations manager, the Medical Control Authority, and your local emergency department—and revise your plan again if needed. And always keep those in your company who need to be informed up to date on your operations. You may find yourself lowering your liability risks and overall improving the health and safety of your workforce. [OHS endbug]

References
1. Michigan, S. o. (2000, November). An Overview of Workers' Compensation in Michigan. Retrieved November 2016, 2016, from Michigan.gov: http://www.michigan.gov/documents/cis_bwuc_over698_30939_7.pdf
2. Merriam-Webster. (No date). Simple Definition of Consent. Retrieved November 11, 2016, from Merriam-Webster Dictionary: http://www.merriam-webster.com/dictionary/consent
3. OSHA. (2015, 7 29). Clarification of Employer's Continuing Obligation To Make and Maintain an Accurate Record of Each Recordable Injury and Illness. A Proposed Rule by the Occupational Safety and Health Administration on 07/29/2015. Retrieved November 7, 2016, from Federal Register The Daily Journal of the United States Government: https://www.federalregister.gov/documents/2015/07/29/2015-18003/clarification-of-employers-continuing-obligtion-to-make-and-maintain-an-accurate-record-of-each
4. OSHA. (2007, February 6). Standard Interpretations. Retrieved Nov. 11, 2016, from U.S. Department of Labor.
5. School, C. U. (No date). Battery. Retrieved Nov. 7, 2016, from Wex Legal Dictionary: https://www.law.cornell.edu/wex/battery
6. School, C. U. (No date). Implied Consent. Retrieved Nov. 11, 2016, from Wex Legal Dictionary: https://www.law.cornell.edu/wex/implied_consent
7. School, C. U. (No date). Informed Consent. Retrieved Nov. 7, 2016, from Wex Legal Dictionary: https://www.law.cornell.edu/wex/informed_consent

This article originally appeared in the April 2017 issue of Occupational Health & Safety.