If psychiatric patients are discharged or elope from the ED and harm themselves or others, a wrongful death lawsuit is possible. To reduce risks, EPs can:

  • document that there was no evidence of homicidal or suicidal ideation at the time of the ED visit;
  • contact a psychiatrist to support the decision to discharge;
  • keep the patient secure until the evaluation is complete;
  • take reasonable precautions when patients are transported to another facility.

If a family member reports that a teenager overdosed on pills after an argument, but the patient, now in your ED, adamantly denies intent to harm himself or herself, can the patient be discharged safely?

“It becomes a judgment call,” says Bruce Janiak, MD, a professor in the department of emergency medicine at Medical College of Georgia in Augusta.

EPs can conduct a thorough evaluation, document “no evidence of homicidal or suicidal ideation,” and contact a psychiatrist to consult on the patient to support the decision to discharge the patient.

“But no one can predict the future,” Janiak adds.

When a woman was brought to an ED by her husband due to the recent onset of bizarre behavior, the EP correctly diagnosed acute psychosis. The treatment plan was appropriate: admit the patient to a psychiatric facility. Yet, the patient was discharged home from the ED at her request and that of her husband.

“Unfortunately, the patient ended up beating their 16-month-old son to death,” says Scott L. Zeller, MD, chief of psychiatric emergency services at the John George Psychiatric Hospital of the Alameda Health System in Oakland, CA.

The family sued the hospital and the EP, alleging that the EP failed to properly diagnose, treat, and hospitalize the patient.1

The trial court granted summary judgment for the defendant hospital and physicians, but this was reversed on appeal. The South Carolina Court of Appeals held that the EP’s inadequate treatment of the patient’s psychosis in the ED was the proximate cause of her fatal assault on the child. During the litigation, the plaintiff attorney focused on the EP’s failure to obtain a psychiatric consultation.

“Assessment and diagnosis of acute psychiatric conditions is complicated and involves a multitude of specific criteria,” Zeller explains. He encourages EPs to consider consulting a psychiatrist when a patient presents to the ED with a mental health crisis. If an in-person psychiatric consult is not available, telepsychiatry is another good option. “A board-certified psychiatrist, who might be many miles away, can evaluate the ED patient at practically the speed of light,” Zeller offers.

The process works this way: Within an hour, the psychiatrist responds and speaks to the patient via secure two-way video conferencing. After a thorough evaluation, the psychiatrist advises the EP on diagnosis, treatment, and disposition.

“This lends itself to decreased ED length of stay, short evaluation times, and earlier diagnosis and therapy,” Zeller adds.

Lack of security to keep psychiatric patients from eloping is a significant legal risk for EDs. “If that isn’t in place, the patient can escape. And whatever damage the patient does to himself, herself, or others then becomes the liability of the ED staff,” Janiak warns.

One ED group found itself named as defendants in a highly publicized lawsuit that involved a patient who left an ED before a mental health evaluation was completed.2 The patient presented to a small community ED and told the triage nurse he was suicidal. The EP conducted a brief evaluation and called a psychiatric technician, who evaluated the patient and left to consult his psychiatric supervisor. After about an hour of waiting, the patient stated he wanted to go out for some fresh air.

“The staff let him do that, which was the big error,” Janiak says. The patient got behind the wheel of a running fire engine and killed a pedestrian. The man’s family sued, alleging that the EP failed to keep the patient secure until the psychiatric evaluation was completed. “They were actually planning on admitting the patient to a psychiatric unit in an accepting hospital,” Janiak notes. “However, he eloped before that because they just let him go.”

The case illustrates the ED’s significant legal exposure during the period when patients are under evaluation for suicidal or homicidal ideation.

“In a small ED without security, this means keeping the patient in the room and not allowing him or her to leave until such time as the patient is deemed capable of taking care of himself,” Janiak says.

Once a patient reports suicidal or homicidal ideation, “the person is no longer in charge of themselves. But the patient may not voluntarily agree to be hospitalized,” Janiak notes. If the patient becomes violent when the ED attempts to initiate the commitment process, the patient or others may be injured. “When a patient is fighting back against people trying to hold them down, the patient can become acidotic and go into cardiac arrest,” Janiak adds.

Many EDs don’t have a psychiatric facility in their hospital. This means psychiatric patients are held for extended periods while waiting for a facility to accept the patient. “There is a lot of pressure on EPs to discharge these patients because they are occupying beds in the ED,” says Alan Gelb, MD, clinical professor in the department of emergency medicine at UCSF School of Medicine. EPs face significant legal exposure in this all-too-common scenario.

“If you let someone like that go, not only do you risk a med/mal case, but some of these cases have gone to federal court because of perceived EMTALA violations,” Gelb says. A recent record $1.29 million EMTALA fine involved psychiatric patients boarded in the hospital’s ED for extended periods.

In Janiak’s experience, it’s not unusual for psychiatric patients to be held in EDs for several days. “Sometimes, you are working your next shift, and the patient is still there days later.” The question is how to ensure safe custody of the patient until a definitive disposition can occur. “This is one of the biggest problems in emergency medicine right now,” Janiak laments.

Pediatric psychiatric patients are particularly challenging because few institutions accept them. “We’ll have a kid who is just sitting there for three or four days doing nothing,” Janiak explains. “It’s a very rare shift when my ED is not boarding a psychiatric kid.”

Safety During Transport

A suicidal patient is medically cleared in the ED and is finally accepted by psychiatry. However, there is still a legal landmine to navigate: the timeframe from when the patient leaves the ED to the patient’s arrival at the psychiatric facility. “You send the patient with transport by whatever means, and the patient escapes,” Gelb says.

As the sending facility arranging the transportation to the receiving facility, he explains, the ED is responsible for taking reasonable precautions to ensure the patient is not going to escape. “These are not the kind of cases where you discharge the patient to the family to take the patient somewhere else,” Gelb notes.

Gelb uses the analogy of transporting a critical care patient, who would require a critical care transport ambulance as opposed to a basic life support ambulance. The same is true for a psychiatric patient who required restraints in the ED setting to prevent the patient from eloping or harming self or others.

“Whatever was in the ED should be available in the transport,” Gelb says. “You wouldn’t take them out of restraints and have them in the ambulance unrestrained.”

It’s important to remember that the psychiatric patient still is under medical care during transport, Gelb explains. However, this period often is overlooked by ED staff.

“The mindset is that the ED staff are so glad the patient is finally leaving they don’t think about the transport,” he says. “Transfers have to be safe for the patient.”

At Zuckerberg San Francisco General Hospital, the psychiatric ED is located in a separate building from the main ED. When psychiatric patients are transferred there, a sheriff’s deputy escorts them.

“A lot of the patients are on an involuntary hold because they are suicidal,” Gelb notes. “If they elope and kill themselves, it’s a wrongful death lawsuit.”


  1. Brown v. Carolina Emergency Physicians, 2001, P.A., 560 S.E.2d 624.
  2. Delaney v. CasePRO, Inc. No. 9:13-CV-00476-DCN, 2013 WL 3328686.


  • Alan Gelb, MD, Clinical Professor, Department of Emergency Medicine, UCSF School of Medicine, San Francisco. Phone: (510) 790-2784. Email: alan.gelb@ucsf.edu.
  • Bruce Janiak, MD, Professor, Department of Emergency Medicine, Medical College of Georgia, Augusta. Phone: (706) 721-1005. Email: brjaniak@gru.edu.
  • Scott L. Zeller, MD, Chief, Psychiatric Emergency Services, John George Psychiatric Hospital of the Alameda Health System, Oakland, CA. Email: szellermd@gmail.com.