Long ED waits for psychiatric patients can lead to lawsuits

Claims of overcrowding won't get jury's sympathy

After waiting 22 hours to be transferred to another facility, a homeless man committed suicide in a Douglasville, GA, ED seclusion room. An investigation by the Centers for Medicare and Medicaid Services (CMS) found that the man had not been properly monitored by ED staff.

The incident puts a spotlight on the legal risks of psychiatric patients restrained or secluded for long periods in EDs — an increasingly common scenario. To reduce risks, do the following:

  • Use "sitters" to monitor patients in restraint or seclusion.

This is the best way to prevent many adverse outcomes, says Susan Stefan, an attorney at the Newton, MA-based Center for Public Representation. Stefan is author of Emergency Department Treatment of Psychiatric Patients: Policy Issues and Legal Requirements (Oxford University Press, 2006).

"If a person is in dire enough straits to be in seclusion, he or she really should be monitored very regularly, if not constantly," she adds.

While the use of restraint and seclusion in psychiatric wards is closely regulated, EDs are much less regulated, even though staff usually have far less training and are at higher risk for inappropriately using restraints, notes Stefan.

National standards from CMS address monitoring obligations of patients who are in seclusion, including ED patients. "Those standards have unfortunately been weakened recently," says Stefan. Prior to December 2006, the condition of a patient in restraint or seclusion had to be "continually monitored," but now the condition must only be monitored "at intervals to be determined by hospital policy."

Your ED's policies should be consistent with current practice, advises Sandra Schneider, MD, professor of emergency medicine at University of Rochester. For example, if the policy says that all patients should be in a seclusion room with 1:1 sitter, but seclusion rooms are seldom available, and 1:1 sitters are not available in the ED, then the policy should be changed to reflect the reality of the ED.

  • Document your risk assessment and immediate steps taken to ensure patient safety.

Despite the ED's best efforts, some patients will still find ways to harm themselves. "A well-documented chart that outlines the things that were done to prevent the harm is the best defense," says Schneider.

  • Hold patients who are at risk for self-harm against their will if necessary.

"Patients should be held until their own ability to act in their own best interest is restored," says Gregory Luke Larkin, MD, MS, MSPH, FACEP, professor and associate chief of emergency medicine at Yale University School of Medicine in New Haven, CT. "This is one reason why it is important for EDs to be staffed with board-certified emergency physicians skilled in the ethical and efficient use of restraints, both physical and chemical."

Being sued for unlawful restraint or battery is far less likely to happen than being named in a lawsuit from an aggrieved family of a patient who left against medical advice and died, according to Larkin.

Documenting the risk of self-harm assures that the ED can place the patient in a secure situation, even against the patient's wishes. "This is the safest environment for the patient, although it obviously doesn't always prevent a bad patient outcome," says Thomas W. Lukens, MD, PhD, FACEP, operations director for emergency medicine at MetroHealth Medical Center in Cleveland.

Long delays in waiting rooms are high risk

"Being kept in the waiting room creates a high-risk situation," says Lukens. "Unfortunately, this is all too common with psychiatric patients due to the lack of facilities to hospitalize and further evaluate such patients."

A lawsuit could certainly be filed if a patient harms him or herself in your ED waiting room, but the bigger question is whether it could be defended, says Glenn Currier, MD, associate professor of psychiatry and emergency medicine at the University of Rochester (NY) Medical Center. "If a patient is through the triage process, and an issue of suicide is uncovered, it's hard to think of a good reason to park them in the waiting room unmonitored to await assessment," says Currier.

Even if everything was done "right" by the ED, a suit is likely to be filed if a patient harms him or herself. "Lawsuits can be brought forward based on the outcome, not just the treatment," Currier says. "It is then up to the ED to prove they acted within a reasonable standard of care."

Don't expect that lack of available inpatient psychiatric beds and a crowded waiting room will get a jury's sympathy. "The defense that the ED was too crowded could reasonably be used, but I don't think it would amount to anything at a trial," says Lukens. "Patient safety is the overriding issue, and needs to be maintained regardless of the volume."

System overload can certainly be used as a defense, but it's not likely to absolve the emergency physician and hospital of liability, however legitimate the claim. "EDs and the physicians therein may be sued for anything they do or don't do, so long as there are damages and a willing attorney to take the case," says Larkin.

Waits dangerous for many reasons

There are significant liability risks when any patient waits for hours in the ED, says Schneider. "Wait times have been the subject of news stories, and the public reacts with disdain as if the waits are caused by the providers being lazy," she says. "They don't understand that our spaces and our staff are caring for inpatients that cannot be placed in inpatient beds."

When patients wait to be seen, they become angry and frustrated, which is compounded for a patient with poor coping skills or a distorted reality due to mental illness, says Schneider. "Not only is there significant liability, there is also potential for injury to the staff."

Schneider says she knows of several instances where significant harm was done to ED staff by frustrated psychiatric patients who were kept waiting for hours. "Patients with medical conditions that deteriorate are usually, though not always, detected by the triage nurse. Those with mental illness are less obvious," she says.

If a patient with chest pain gets frustrated with the wait and wants to leave, the staff will rapidly try to stop him or her. "But unless a patient is suicidal or homicidal, the staff may actually be relieved when a mentally ill patient decides to leave," says Schneider. "However, the ED still can be, and has been, sued for any harm that comes to the patient." For example, if a mentally ill patient leaves the waiting room and is hit by a car while walking home, the ED could be held liable.

If psychiatric patients are mixed with medical patients, they may leave without being noticed. "Some ED's give 'flight risk' patients a different color gown or booties and secure their regular clothing," says Schneider. "The entire staff then can detect a patient who is leaving the premises."

Anywhere from 8% to 12% of non-psychiatric ED patients harbor thoughts of self harm without disclosing this, according to a 2005 study. Of 1590 patients screened, 31 reported planning suicide, and 25 of these went undetected during their ED visit. Of this group, four attempted suicide within 45 days of the ED visit (all survived).1

"Indeed, we found at a major urban trauma center that 1-2% of ED patients have a plan to harm themselves, but we completely missed the majority of them as we do not screen for suicidal ideation on any routine basis," says Larkin, who co-authored the study.

Therefore, any patient who leaves your ED without being treated is a potential victim of suicide, and a potential plaintiff. "ED physicians are currently being asked to screen for over a dozen risks from latex allergies and tetanus to smoking and partner violence, but suicide, despite its gravity, hasn't yet made the screening list," says Larkin.

Who will be liable?

Mentally ill patients who harm themselves while waiting in the ED can clearly sue the hospital, but once the patient is actually seen, the process "gets even muddier," says Schneider. In many facilities, after-hours evaluations are performed by a non-physician, such as a psychiatric social worker or psychologist.

"The training and supervision is usually not from the ED. Most of them are in fact excellent clinicians," says Schneider. "However, their evaluation is in essence advisory to the physician. The ED physician can clearly be liable if there is a bad outcome — for example, if a patient commits suicide after being cleared by a mental health worker."

Since the ED physician often writes the prescription for any medications recommended by the mental health worker, the doctor-patient relationship is established, Schneider says.

When an admitted psychiatric patient is held in the ED, a different legal issue can ensue. The admitting physician is not in the ED and may have never have seen the patient, whereas the ED physician remains in proximity and has seen the patient.

"Legally, it is not always clear which of the physicians bears the responsibility for the patient," says Schneider. "Once the patient has been seen and a note is written by the admitting physician, things are a little clearer — but there is still room to sue the ED doctor."

Patients may deteriorate

ED policies, practices, and conditions can exacerbate a patient's psychiatric condition or cause it to deteriorate, warns Stefan.

"If a person seeks help in an emergency department because of severe depression and emotional distress and is contemplating suicide, a long, solitary wait in a small ED cubicle is probably not going to help," she says.

Many EDs require patients to remove their clothing, which could cause severe distress for psychiatric patients who have sexual abuse histories. "Some EDs then forcibly restrain and strip these psychiatric patients who are, at this point, in much worse psychiatric condition than when they arrived," Stefan says.

Stefan currently represents a Boston woman who is suing an ED nurse and hospital for this practice, which is still in active litigation. She also notes that a previous case involving this scenario was settled for an undisclosed amount after the court found that the plaintiff could proceed with her discrimination and negligence claims.2,3

Stefan says she doesn't think litigation against EDs is likely to be about wait times of psychiatric patients. "It's far more likely to be about restraint, such as physical restraint involved in forcible clothing removal," she says. "Also, a significant number of EDs are sued because of physical force used by security guards."

Juries are more likely to be sympathetic to claims of medical conditions that deteriorated in ED waiting rooms, such as a heart attack, rather than a more intangible psychiatric condition, says Stefan.

"Nevertheless, I think juries might be able to understand how hours and hours of unending and unfamiliar noise, lights, chaos, and hubbub of an ED might exacerbate someone's psychosis, or how the long hours in a lonely little room with no one to talk to might make a depressed person more suicidal," she says.

References

1. Claassen CA, Larkin GL. Occult suicidality in an emergency department population. Br J Psychiatry 2005;186:352-353.

2. Sampson v. Beth Israel Deaconess Medical Center, No. 06-CV-10973-DPW (D. Mass. filed June 5, 2006).

3. Scherer v. Waterbury, No. CV-97-0137073 (Waterbury Sup. Ct. filed Dec. 9, 1996).

Sources

For more information, contact:

  • Glenn Currier, MD, Associate Professor of Psychiatry and Emergency Medicine, University of Rochester Medical Center, Department of Psychiatry, 300 Crittenden Blvd., Rochester, NY 14642-8409. Phone: (585) 275-9908. E-mail: glenn_currier@urmc.rochester.edu
  • Gregory Luke Larkin, MD, MS, MSPH, FACEP, Associate Chief, Emergency Medicine, Yale University School of Medicine, New Haven, CT 06519. E-mail: GLuke.Larkin@yale.edu
  • Thomas W Lukens, MD, PhD, FACEP, Operations Director, Emergency Medicine, MetroHealth Medical Center, 2500 MetroHealth Drive, Cleveland, OH 44109. Phone: (216) 778-3537. Fax: (216) 778-5349. E-mail: tlukens@metrohealth.org
  • Sandra Schneider, MD, Professor, Emergency Medicine, University of Rochester Medical Center, 601 Elmwood Ave., Room 2-1800, Rochester, NY 14642. Phone: (585) 463-2970. E-mail: Sandra_Schneider@URMC.Rochester.edu
  • Susan Stefan, Center for Public Representation, 246 Walnut St., Newton, MA 02460. Phone: (617) 965-0776. E-mail: sstefan@cpr-ma.org