EXECUTIVE SUMMARY

EPs face possible allegations of assault or false imprisonment if psychiatric patients are held involuntarily. This documentation can help the EP’s defense:

  • why the EP believed the patient needed restraints;
  • why the EP believed it was unsafe to discharge the patient;
  • quotes from the patient or family indicating the patient was a danger.

It was clear to EPs at a small rural hospital that a motor vehicle accident victim brought by ambulance was a danger to himself or others, and required hospitalization due to a psychiatric condition.

“Because the ER was not equipped with an appropriate locked room for this situation, they placed a security guard at the door,” says Derek S. Davis, RPh, JD, a defense attorney in the Dallas office of Cooper & Scully.

The man pushed the security guard aside, ran out of the ED, and was struck by a vehicle. The family sued, claiming that the EP was negligent in failing to restrain the patient. The malpractice suit also alleged that the hospital failed to maintain the appropriate security for a psychiatric patient.

“Unfortunately, these situations present difficult medical-legal choices for ER physicians at smaller facilities,” Davis explains.

If the patient is restrained, the EP faces possible claims of assault or false imprisonment. Conversely, Davis says, “the patient can be left in a secure space, risking that the patient remains potentially active for escape or other risks of harm to self and others.”

Sharon C. Peters, JD, a partner at Portland, OR-based Lewis Brisbois Bisgaard & Smith, says, “Because of the defunding of state hospitals over the last half-century and the lack of community mental health resources, often psychiatric patients truly have no place to go but the ED. The ED door is always open.”

EPs need to determine if the patient is safe to discharge, and, if not, the ED has an obligation to ensure patients held involuntarily receive proper care.

“Sitting in a holding room in the ED is not effective treatment for a psychiatric condition,” Peters says. “And I don’t think anybody would say that it is.”

Yet private and state psychiatric beds often are full, with a waiting list of several months. In some states, this has led to litigation. For example, in Washington state, a court commissioner recently threatened to put a state psychiatric hospital CEO in jail if she did not accept a psychiatric patient held in a community hospital.1

Michael Jay Bresler, MD, a clinical professor of emergency medicine at Stanford (CA) University School of Medicine, views the root of the problem as “an absolutely unethical, immoral lack of support for psychiatric patients. The whole problem is basically dumped on the ED.”

Although some EDs offer social services and psychiatric backup, many offer neither. Bresler says that whether the EP chooses to involuntarily hold or discharge the patient, “there is liability both ways.” Here are legal risks for EPs in each scenario:

  • The EP determines that the patient does not pose an imminent risk of harm to self or others, and discharges the patient.

If the EP turns out to be wrong, the family of a patient who commits suicide — or others harmed by the patient — can bring a claim for wrongful death against the EP. Megan Kures, JD, senior attorney in the Boston office of Hamel Marcin Dunn Reardon & Shea, says, “ED providers may find themselves facing claims that they failed to adequately assess the patient.”

Of course, plaintiff’s counsel has the benefit of hindsight in these cases.

“Although professional judgment plays a role in most medical care, it perhaps plays an even larger role in these cases,” Kures adds. “There is definitely no black and white scenario in these cases.”

Scott Zeller, MD, vice president of psychiatry at CEP America in Emeryville, CA, says including a standard mental status exam in the documentation can help justify the EP’s decision to discharge a psychiatric patient.

“One or two sentences saying, ‘The patient looks OK’ is probably going to be insufficient,” he warns.

The mental status exam should drive the EP’s disposition decision.

“An outside person should be able to look at your documentation and say, ‘Based on this assessment, this disposition is reasonable,’” Zeller explains.

Kures has defended several EPs against claims brought by patients alleging civil rights violations because they were held involuntarily, searched, or restrained.

“The patients claimed that they posed no risk and did not meet the criteria for involuntary holds or restraints,” Kures says.

Other cases have been brought by patients who were injured while resisting treatment or attempting to elope from the ED.

“These have resulted in assault claims and further negligence claims,” she says.

Liability fears make some EPs think twice before holding patients involuntarily. Zeller counters, “What I’ve seen is that lawsuits tend to be about EPs not providing emergency care, rather than providing care against someone’s will.”

In one such case, a delusional patient was discharged from the ED, and later harmed himself and others. The EP didn’t believe the patient met the criteria for involuntary care.

“The whole litigation was about whether it was an accurate assessment, and why the ED doctors did not intervene when they had the opportunity,” Zeller says.

  • The patient is held involuntarily.

In many jurisdictions, EPs do not have the authority to place patients on involuntary holds.

“In some cases, they need to engage police or a magistrate, or have a mental health professional initiate it,” Zeller explains.

In other jurisdictions, EPs can put patients on an involuntary hold if certain criteria are met. Bresler notes, “Of course, that opens you up to false imprisonment claims, or whatever lawyers want to allege.”

Most jurisdictions use a good faith standard for statutory immunity for providers making decisions about involuntary holds under civil commitment laws. Peters notes, “Good documentation can maximize the chance of being within the immunity.”

One recent malpractice case involved an ED patient on an involuntary hold who was admitted to the psychiatric service. The patient, who had been calm for many hours, was not restrained. A security guard was stationed outside the door.

“After many hours waiting for an inpatient psychiatric bed, the patient bolted from the room, ran into a random patient’s room, and assaulted a 90-year-old woman,” Bresler says, noting the woman’s family sued the hospital. Though the case was ultimately dismissed, Bresler adds, “From the woman’s and family’s point of view, you can understand their feeling that the hospital was responsible.”

What’s Best for Patient?

Though cases are fact-specific, Zeller says the overriding issue always is what’s best for the patient at that point in time.

“There are times when the right to treatment can exceed the right to refuse treatment,” Zeller says. “This is a concept that is difficult for EPs to grasp.”

Some patients are too impaired or confused to make a decision in their own best interest.

“Based on a reasonable person standard, this person clearly needs help to prevent danger to life and limb,” Zeller explains. He gives this example: A patient goes into shock after a car accident. Clearly disoriented, he tells a paramedic he doesn’t want any help. “Will the paramedic let the patient bleed to death or take them to the hospital?” Zeller asks. “It’s a very similar thing with somebody who is impaired by an acute psychiatric condition.”

If the patient is not giving consent but is a clear danger to self or others, the EP has an obligation to treat that patient, just as the EP would with a confused trauma patient.

“People sometimes confuse long-term consent issues with what needs to be done in an emergency,” Zeller says.

If the document clearly shows that the patient didn’t meet the criteria to give consent, and the findings of the EP’s examination support that, “it should mean you are in pretty good shape,” Zeller says. The same is true if a psychiatric patient is sent home. Bresler suggests this charting: “Long discussion with patient. Adamantly denies being suicidal. Does not seem overtly depressed. Promised to return to ED if feeling worse.”

Such clear documentation might even deter a plaintiff attorney from taking a case in the first place.

“An ethical expert witness will give an honest opinion,” Bresler explains. “It should be obvious that you did the right thing, regardless of the outcome.”

REFERENCE

  1. O’Sullivan J. State to fight ‘frustrating’ order to jail Western State psychiatric hospital’s CEO. The Seattle Times, June 13, 2016. Available at: http://bit.ly/2gYD5pr.

SOURCES

  • Michael Jay Bresler, MD, Clinical Professor of Emergency Medicine, Stanford (CA) University School of Medicine. Email: bruzl@aol.com.
  • Derek S. Davis, RPh, JD, Cooper & Scully, Dallas. Phone: (214) 712-9537. Fax: (214) 712-9540. Email: derek.davis@cooperscully.com.
  • Megan Kures, JD, Senior Attorney, Hamel Marcin Dunn Reardon & Shea, Boston. Phone: (617) 482-0007. Email: MKures@hmdrslaw.com.
  • Sharon C. Peters, JD, Partner, Lewis Brisbois Bisgaard & Smith, Portland, OR. Phone: (971) 712-2807. Fax: (971) 712-2801. Email: Sharon.Peters@lewisbrisbois.com.
  • Scott Zeller, MD, Vice President, Psychiatry, CEP America, Emeryville, CA. Phone: (510) 350-2777. Email: szellermd@gmail.com.