EDs report high volumes of psychiatric patients who often are held for hours, days, or even weeks awaiting transfer. EPs are eager to transfer the patient out of the ED into an appropriate facility, but what are the legal risks?

“Properly transferring a psychiatric patient should reduce the risk for an ED. But the emphasis is on properly,” says Mary Jean Geroulo, JD, an attorney at Wilson Elser Moskowitz Edelman & Dicker in Dallas.

The Emergency Medical Treatment and Labor Act (EMTALA) applies to psychiatric patients, just as it does to typical medical patients.

“Medical screening exams need to be performed to determine if an emergency medical condition exists,” Geroulo says, noting that the patient should be stabilized within the scope of the hospital’s services prior to discharge. “If the hospital has no psychiatric services, it is appropriate to transfer the patient to a facility with the capability to care for the patient.”

Scott L. Zeller, MD, vice president of psychiatry at CEP America, an Emeryville, CA-based provider of acute care management and staffing solutions, stresses that a psychiatric emergency, such as when patients are dangerous to themselves or others, is recognized as an emergency medical condition under EMTALA. For the transfer of a psychiatric patient to be appropriate, Zeller says EPs should ensure these things:

  • that all non-psychiatric emergency medical conditions are stabilized;
  • that the transfer is the appropriate treatment for the psychiatric emergency condition;
  • that the transfer process occurs in accordance with EMTALA, with an accepting hospital and physician.

However, lack of inpatient psychiatric beds often prevents the transfer from happening at all.

“It is sometimes very difficult to accomplish a transfer quickly. This is where EDs and EPs are subject to potential risk,” Geroulo says.

ED Dangerous for Patient

Most EDs lack the facilities to properly care for emergency psychiatric patients. This is of particular concern if the patient was brought to the hospital on a legal hold, or if one was imposed after the patient arrived at the ED, Geroulo explains.

“Holding an involuntary patient in the ED while waiting for a transfer can be dangerous for the patient, other patients in the ED, and the staff,” she warns. Geroulo adds that resorting to physical or chemical restraint does not usually qualify as appropriate stabilization or treatment of the patient, according to the Centers for Medicare & Medicaid Services’ interpretation.

“This can implicate the Medicare Conditions of Participation, or EMTALA,” Geroulo adds.

Transferring the patient to an inpatient bed, when there are no psychiatric services available in the hospital, can result in the same problems.

“Admitting the patient can sometimes make it more difficult to find a facility willing to accept the transfer,” Geroulo says.

Regulatory agencies have sanctioned some hospitals for transferring psychiatric patients without adequately stabilizing the emergency psychiatric condition, notes Shelly Garzon, JD, an attorney in the Tacoma, WA, office of Fain Anderson VanDerhoef Rosendahl O’Halloran Spillane.

“Even though these regulatory issues relate to the hospital, plaintiff attorneys may use them to try to establish the standard of care in a malpractice case,” she warns.


  • Shelly Garzon, JD, Attorney, Fain Anderson VanDerhoef Rosendahl O’Halloran Spillane, Tacoma, WA. Phone: (253) 328-7806. Email: shelly@favros.com.
  • Mary Jean Geroulo, JD, Wilson Elser Moskowitz Edelman & Dicker, Dallas. Phone: (214) 698-8027. Fax: (214) 698-1101. Email: maryjean.geroulo@wilsonelser.com.
  • Scott L. Zeller, MD, Vice President, Psychiatry, CEP America, Emeryville, CA. Phone: (510) 350-2777. Email: szellermd@gmail.com.