EMTALA Lawsuits Involving Psychiatric Patients Held in ED Rarely Successful
Liability for suicide, harm to third parties are legal risks
The risk of an Emergency Medical Treatment & Labor Act (EMTALA) lawsuit involving a patient with psychiatric illness is low, according to a recent study.1 If emergency physicians (EPs) perform appropriate medical screening examinations, the lawsuit is rarely successful.
"We anticipated that the decline in inpatient psychiatric bed capacity would have resulted in an increasing number of EMTALA cases, as fewer beds would likely pressure emergency providers to dismiss, or board, patients with psychiatric illness," says Annie T. Sadosty, MD, one of the study’s authors. Sadosty is chair of the Department of Emergency Medicine and associate professor of emergency medicine at Mayo Clinic in Rochester, MN.
"While the trend line of EMTALA cases involving patients with psychiatric illness since 1986 — the year EMTALA was enacted — is positive, it did not reach statistical significance," she reports.
Successful Defense Strategies
Researchers analyzed jury verdicts, settlements, and other litigation from three legal databases involving alleged EMTALA violations related to psychiatric patients between 1986 and the end of 2012, and identified 33 relevant cases. Here are key findings:
Two cases were decided in favor of the plaintiffs, four were settled, 10 had an unknown outcomes, and 17 were decided in favor of the defendants.
Most of the plaintiffs were men, had past psychiatric diagnoses, were not evaluated by a psychiatrist, and eventually committed or attempted suicide.
The most frequently successful defense used was to demonstrate that providers used a standard screening examination, and did not detect an emergency medical condition that required stabilization.
The study is limited to lawsuits pertaining to alleged EMTALA violations, and should not be generalized more broadly, cautions Sadosty.
"Most providers defended themselves by arguing that they never identified a medical condition that needed stabilization and, therefore, had no further obligation to the patient under EMTALA," says Rachel Lindor, MD, JD, the study’s lead author. Lindor is former research director of the Center for Law, Science & Innovation at Arizona State University’s Sandra Day O’Connor College of Law.
To satisfy EMTALA, providers must apply a standard screening exam to all patients, says Lindor, and as long as that exam doesn’t detect an emergency medical condition, the EMTALA obligations are satisfied.
"That said, if providers or institutions develop a screening exam that is terrible, they may not face EMTALA liability when it misses ill patients, but they are still at risk for general medical malpractice lawsuits," says Lindor.
Only two cases in the study were deemed to be EMTALA violations. One involved a man in his 20s with a history of depression and several past suicide attempts. "He was brought to the ED by family after inflicting several shallow cuts on his wrist," says Lindor. In the ED, he was evaluated by a psychiatric nurse, who eventually discharged him home after having him sign a safety contract agreeing to stay with family until an outpatient appointment could be scheduled. "An emergency physician cosigned the paperwork, but never evaluated the patient," says Lindor. "The day after discharge, the patient walked away from a family gathering and hanged himself."
The other successful case occurred in 2000 and involved a female with a history of depression and alcohol abuse who presented to the ED intoxicated and with suicidal ideation. She was seen by an EP, who suggested that the woman speak to an ED-based guidance counselor. "The woman refused and after doing so, the emergency physician committed her to police custody," says Lindor. "She filed an EMTALA lawsuit after she was detained for a night in jail with no psychiatric care."
Improve Evaluation of Patients
According to an online survey conducted in April 2014 by the American College of Emergency Physicians, 84% of EPs reported that psychiatric patients are boarded in their ED, and 91% indicated that this practice has led to violent behavior by distressed psychiatric patients, distracted staff, or bed shortages.
"Boarding of psychiatric patients is a complex problem," says Jon Mark Hirshon, MD, PhD, MPH, FACEP, associate professor in the Department of Emergency Medicine and an attending EP at the University of Maryland Medical Center and Baltimore VA Medical Center. In March 2014, Hirshon testified before Congress about the issue of psychiatric boarding.
"Many individuals who need psychiatric care cannot adequately access either inpatient or outpatient services. They often end up in the ED seeking care," he says. EPs are supposed to take care of patients to the best of their ability, notes Hirshon, "but what can I do if there is no location for a patient who needs to be admitted?"
Hirshon suggests forming a committee to identify best practices involving ED care of psychiatric patients. "This might be an ongoing discussion where you meet on a monthly or quarterly basis with psychiatric professionals to discuss cases," he says. "Be proactive in terms of improving the care delivered."
Boarding Ruled Unconstitutional
In August 2014, the Washington State Supreme Court determined that boarding of psychiatric patients in the ED is unconstitutional and violates the state’s Involuntary Treatment Act. "The ruling should reduce the burden of dealing with long-stay psychiatric patients for most EDs in the state," says Paul S. Appelbaum, MD, Dollard Professor of Psychiatry, Medicine, & Law and director of the Division of Law, Ethics, and Psychiatry at Columbia University College of Physicians & Surgeons in New York, NY.
However, it will not alleviate the flow of acute psychiatric patients into EDs. "Unless new beds are created, the end result is likely to be diverting more people with serious psychiatric disorders to jails and prisons," says Appelbaum.
Liability for suicide and harm to third parties is among the most important liability risks likely to arise from the treatment of psychiatric patients in the ED, warns Appelbaum.
Busy EDs may be ill-suited to provide the kind of close observation and containment that some psychiatric patients require. "The arrival of cases needing emergent medical or surgical interventions can offer opportunities for a suicidal patient to slip past distracted staff, or for an assaultive patient to grab a dangerous implement left unattended," says Appelbaum. Here are some practices that may reduce liability risks:
Create special areas for the evaluation of patients presenting with psychiatric emergencies.
EDs that see large numbers of such patients often have separate "psych EDs." "At my institution, which is an academic medical center, we send them to a psychiatric ED which is just down the hall from our main ED," says Hirshon. "This allows us a separate place for psychiatric patients."
In smaller EDs without this resource, obtaining an evaluation from a psychiatrist via telemedicine is one good option, he suggests. "When these issues happen, you need to show that you are doing the best you can, given the limitations," says Hirshon.
"For smaller EDs that see psychiatric patients less frequently, designated evaluation rooms can be created with design features that minimize risk for psychiatric evaluations, but can swing’ to accommodate med-surg patients as well," says Appelbaum. Such features include recessed fixtures, closed circuit observation cameras, and secure storage spaces.
Develop procedures for continuous observation of patients likely to pose a substantial risk to themselves.
"Coordination with security is essential in planning to deal with patients who present an escape risk or pose risk to other people," says Appelbaum.
Get psychiatric patients out of the ED as quickly as possible.
"This is perhaps the best approach to minimizing ED liability risk," says Appelbaum. To do so, efficient procedures are needed for calling in mental health personnel to perform evaluations, and for prioritizing arrangements for transfer to inpatient units when patients require hospitalization.
Widespread shortages of inpatient psychiatric beds complicate this process. "But EDs are not the best places to hold psychiatric patients for prolonged periods," says Appelbaum. "Moving them rapidly to appropriate facilities remains key."
Lindor RA, Campbell RL, Pines JM, et al. EMTALA and patients with psychiatric emergencies: A review of relevant case law. Ann Emerg Med 2014;64(5):439-444.
Paul S. Appelbaum, MD, Dollard Professor of Psychiatry, Medicine, & Law/Director, Division of Law, Ethics, and Psychiatry, Columbia University College of Physicians & Surgeons, New York, NY. Phone: (212) 543-4184. Fax: (212) 543-6752. E-mail:email@example.com.
Jon Mark Hirshon, MD, PhD, MPH, FACEP, Associate Professor, Department of Emergency Medicine, University of Maryland Medical Center, Baltimore. Phone: (410) 328-7474. Fax: (410) 974-0819. E-mail: firstname.lastname@example.org
Annie T. Sadosty, MD, Chair, Department of Emergency Medicine/Associate Professor of Emergency Medicine, Mayo Clinic, Rochester, MN. Phone: (507) 255-2216. E-mail: email@example.com
Rachel Lindor, MD, JD. E-mail: Lindor.Rachel@mayo.edu.