​A risk manager recently sought guidance on handling situations in which a resident falls and an organization's clinical staff recommend that the individual be taken to the hospital, but the individual's family and physician disagree with that assessment.

In our response, we note that provider organizations face this type of scenario often with regard to transfers to higher acuity settings for evaluation, diagnosis, or treatment. Because of the legal aspects to this question, ECRI Institute recommends that the organization involve its legal counsel, preferably someone with regulatory experience, for an additional objective review.

The two vested parties (physicians and family members) mentioned in the scenario may have different reasons for not supporting a transfer, so that should be taken into account when considering risk, quality, and safety practices to help address these situations. For example, the family member might be influenced by factors such as believing that their loved one would not want the transfer and additional treatment. This is a complicated and complex issue and needs to be addressed from such a perspective. With the overall focus on reducing readmissions and hospital transfers, the organization may be concerned that a physician's efforts to reduce readmissions might be influenced by the national initiative to reduce unnecessary hospital admissions and readmissions. The physician might feel pressure to take the risk-laden approach to “wait and see" after an adverse event or when a resident experiences a change in condition. While there are some benefits that might be realized when avoidable admissions or readmissions are circumvented, there is also a corresponding risk associated with such situations if a resident or patient has a serious undetected or underlying condition.

It is important to explain the risks and benefits of transferring the patient/resident to the hospital and the risks associated with not transferring the patient/resident. These conversations should be documented. Moving ahead with a transfer against the patient/resident's wishes may disrupt the provider-patient relationship going forward. The guidance article Managing Complaints and Grievances includes help on this topic.

The following four risks should be considered when evaluating these scenarios:

• Harm to the resident or patient due to delay in acute care treatment
• Possible increase in hospital admissions or readmissions deemed unnecessary
• Potential for family grievance if their wishes are overridden
• Potential for attending physician grievance if the provider organization transfers the resident or patient to the hospital against the physician's wishes
  

Note the physician's recommendation against a transfer is not an order in the medical or legal sense, and so can best be characterized as "wishes" or "recommendations." Additionally, family requests must be considered in light of known resident or patient wishes and the families surrogacy decision-making rights as outlined by medical power of attorney.

Organizations should consider developing a written guideline or decision tree to help guide staff when this situation arises. If the organization has multiple campuses, a corporate-level guideline would help ensure that staff in each location act consistently. Developing such a guideline can be viewed as a quality improvement project with input from multiple disciplines who analyze and prioritize risks throughout the process. For example, the process should include discussions that weigh risks associated with a potential increase in hospital admissions or readmissions, not following a families' wishes, and not following a primary care physician's wishes against the potential risks in harm to a resident or patient.

The organization should establish a performance improvement team (PIP) team sanctioned at the corporate level to develop this written guideline to be rolled out to all campuses. For this topic, important PIP team members could include the risk manager, clinical operations, executive directors from the campus level, and licensed administrators; involvement from the medical director  is particularly important because the issue involves the primary care physician. Others can and should be added to the PIP team as necessary.

The organization's medical director is a primary stakeholder for situations like this, when a provider feels it is medically indicated to override a treating physician's or family's wishes. However, the potential for a conflict of interest to develop exists when the medical director for a campus is also a treating primary care physician for the location. Ultimately, the medical director should be a primary resource for the organization to negotiate, implement, and enforce medically related guidelines. Additionally, their role should include participation in addressing treating physician-related issues that arise. See the guidance article Medical Director Roles and Responsibilities for assistance on this topic.

A key aspect of the proposed guideline is identifying and documenting that a transfer to a higher acuity setting, like a hospital, is medically indicated and in the best interests of the resident or patient. If the decision to transfer is executed and eventually contested, a provider organization's ability to demonstrate that the transfer was medically indicated and done in the best interest of the resident or patient will be important. Documentation of discussions with the patient/resident, their family, and the treating physician, are critical to support this contention.

Developing a decision-making process (e.g., decision tree) to assist staff with determining whether to override a physician's or family's wishes is helpful. Timing is often a crucial element with regard to medically indicated transfers and change in condition. Nevertheless, organizations should identify one or two additional employees who should participate in the discussion and decision to override the family's or physician's wishes, when involving them is possible while maintaining the overall safety and welfare of the resident or patient. The included decision-makers need to be selected in light of the ability to reach them in a timely manner during regular business hours and non-business hours such as evenings, nights, and weekends. Participants might include the director of nursing, nursing home administrator or licensed assisted living administrator, and as a back-up the executive director. Staff responsible for resident care on each shift should know that if time does not permit additional decision-making involvement or identified persons cannot be reached, then appropriate clinical staff have the authority to make the decision if they determine the need for transfer is medically indicated and that failure to make such a transfer would put the resident or patient in danger and is not in the best interest of their well-being from a medical perspective.

Consider including specific criteria to help staff execute associated decisions to override physician and/or family wishes about transfer to a hospital during a specific situation. Consider detailing issues such as:

• Medically indications to transfer: for example, with regard to post fall incidents, (e.g.,  a change in mental status, or physiological changes to pupils, etc.) See Focus On…After a Fall for more information.
• Limitations in scope of services provided by the organization may leave resident or patient needs unmet; such clinical needs may only be met at a hospital.

Include a means to verify and honor the stated wishes of the resident or patient, as conveyed in a living will, advanced directive, physician order for life-sustaining treatment (POLST), or other credible means recognized by the organization.

Another consideration that could complicate a decision whether to transfer the patient or resident to the hospital is whether the patient or resident is a hospice patient or receiving hospice services. When developing a policy and procedure, be sure to include guidance about the effect of the hospice care designation on the decision. See the guidance article Hospice Care for more information.

The organization should be prepared to address complaints or grievances that arise out the decision to transfer the patient/resident against their wishes. See the guidance article Managing Complaints and Grievances and Self-Assessment: Managing Complaints and Grievances for more help on this topic.

Once developed and implemented, the organization should review associated policies and guidelines and amend as necessary. The guideline should be distributed to all physicians who treat patients/residents at the organization.

The recommendations contained in Ask ECRI do not constitute legal advice. Facilities should consult legal counsel for specific guidance and develop clinical guidance in consultation with their clinical staff.