Page 59 - Occupational Health & Safety, April 2017

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 re- sponsibilities 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 enti- tlement 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 re- fuse emergency medical care, we should first focus on some definitions often used in tort law.
■ Consent. The Merriam-Webster dic- tionary gives the simple definition of con- sent 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 treat- ment 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 surround- ing 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 ut- tered. (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 sim- ply 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 intoxi- cated, suicidal, or unconscious persons, etc. In health care, any action including emer- gency medical care that is taken without the employee’s informed consent consti- tutes 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 prob- lems for the employer. Informed refusal is the opposite of informed consent. Simply put, a signed refusal of care form with- out documentation of the possible conse- quences 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 proce-
dures
■ Documentation of the patient’s re-
fusal
■ Documentation of Medical Depart-
ment 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 re- cordkeeping, the date and time of an in- cident 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 electroni- cally 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 trans- fer to a hospital for further treatment and care of the employee, should be spelled out in detail along with the need for any trans- fer. 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 pa- tient 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 ill- ness and all of the pertinent potential com- plications that could result from refusing care, up to and including the loss of func- tion or loss of life. Finally, the Medical De- partment 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 state- ments 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 re- port can become quite messy during litiga- tion, 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 medi- cal refusal is needed to prevent an injured employee from testifying that he didn’t know what he was signing or was too ill to
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