Recent lawsuits allege that patients who sought help at an ED for clinical reasons were held involuntarily because they were at homicidal/suicidal risk.1
Gail Langendorf, JD, litigated one such claim, which recently settled. The claim involved an ED patient who initially was admitted to a hospital’s mental health unit voluntarily after making general statements regarding how her co-worker made her want to hit him in the head. “Her diagnosis was not homicidal, but, rather, was depression. The involuntary commitment issue arose after she wanted to leave the hospital,” Langendorf says.
The mental health unit nurses testified that there was a policy that prevented a voluntary patient from leaving until the on-call psychiatrist could be reached. The hospital denied there was such a policy. “The on-call psychiatrist said to put her on a 72-hour hold,” Langendorf explains. The mental health nurse testified he did not believe the on-call doctor asked any questions and that, typically, he did not ask questions; rather, he would order a voluntary patient held until the following morning. “The mental health nurses’ evaluations, after voluntary admission, determined [the patient] was not a danger to herself or others,” Langendorf says.
The 72-hour-hold form was erroneously signed by the doctor who released the patient the following morning. The patient stated her doctor told her he didn’t know why she had been held. “The on-call psychiatrist who was called had no memory of ordering the 72-hour hold,” Langendorf notes.
The EP also was named in the lawsuit because he was listed as the admitting physician. The EP eventually was dismissed from the claim. “After taking his deposition, it became clear he had no liability. He did not have admitting privileges, and could not have admitted the patient,” Langendorf explains.
State law varies regarding requirements for involuntary holds. “Before any patient is involuntarily committed, their mental status should be evaluated by a medical provider who should consider all the facts, including the evaluation of the nurses,” Langendorf advises. In Kentucky, within 24 hours of the commitment, a provider must certify in the medical record that:
- the patient needs continued hospitalization because he or she is mentally ill and presents a danger or threat because of the illness;
- the patient can reasonably benefit from treatment at the hospital;
- hospitalization is the least restrictive alternative mode of treatment available.
“Certainly, an on-call psychiatrist should not make a determination, over the phone, to deprive someone of their liberty solely because they have been voluntarily admitted for treatment,” Langendorf says.
Is Detention Unlawful?
Mary C. Malone, JD, a partner at Hancock Daniel in Richmond, VA, says that to prevail in a false imprisonment claim involving an ED patient, the plaintiff would need to prove that:
- he or she was held at the hospital against his or her will;
- there was no legal order in place (such as a detention order) preventing the plaintiff from leaving.
ED policies must follow state law on involuntary holds, Malone says. Policies should advise that patients who are not subject to such holds cannot be detained in the hospital against their will.
“Usually, no one is authorized to hold a patient except through the legal hold mechanism, or perhaps through law enforcement placing a patient under legal custody,” Malone notes.
If the patient is not competent for medical or psychiatric reasons, it would not be considered false imprisonment, says Leslie Zun, MD, MBA, system chair for emergency medicine at Sinai Health System in Chicago. “This evaluation must be documented.”
Scott Zeller, MD, vice president of acute psychiatric medicine at Vituity in Emeryville, CA, has encountered several malpractice claims in which EDs allowed a psychiatric patient to leave, and there was a bad outcome. Both the hospital and ED providers were sued for malpractice and/or failure to adequately assess risk.
“I have not encountered the opposite, where facilities were sued for false imprisonment, but it is certainly possible,” Zeller offers. EPs must recognize that if they do not have sufficient grounds to detain individuals, they must be released, he adds.
The key is to fully understand the laws regarding involuntary detention for psychiatric evaluation in one’s state, region, and/or county. “Who is authorized to detain? Does the facility have the authority to detain?” Zeller asks. These basic concepts can vary widely by state and even across county lines.
“With that being said, there is usually an understanding that a patient within the ED is not permitted to leave until the attending physician or licensed independent practitioner has evaluated the patient and determined there are no grounds to hold a patient involuntarily,” Zeller says.
EPs sometimes don’t have sufficient grounds to detain a behavioral health patient, but believe that the patient needs treatment. In such cases, says Zeller, “it will be helpful to document that a patient is being discharged against medical advice.” Zeller would like to see EPs document as follows: “In my medical judgment, the patient would benefit from further psychiatric treatment, but the patient is requesting to leave. In my estimation, the patient is not acutely a danger to him/herself or others, and appears fully able to care for him/herself in the community. The patient will thus be discharged against medical advice.”
In false imprisonment lawsuits, both parties usually agree that the patient was detained against his or her will. “Where most false imprisonment claims arise in connection with hospital cases is whether the detention is unlawful,” says Stephen Shows, a senior risk resource advisor at ProAssurance Companies in Birmingham, AL.
One way for a detention to be lawful is through involuntary commitment. “Any hospital policy regarding involuntary holds should at least be consistent with whatever the state rules are for involuntary commitment,” Shows says. Hospital policies should allow the ED providers to use their education, training, and experience to determine whether those criteria are met, he adds.
In Alabama, this requires showing that:
- the patient is mentally ill;
- because of his or her mental illness, the person poses a real and present threat of substantial harm to self or others;
- the patient will continue to experience mental distress and deterioration of ability to function independently if not treated;
- the patient is unable to make a rational decision regarding treatment.
“If you can successfully petition for involuntary commitment, then the detention is not unlawful, and there is no false imprisonment,” Shows says.
- Unger T. Lawsuits: Patients held against their will at Dallas Behavioral Hospital. WFAA Dallas, Jan. 18, 2018. Available at: . Accessed Aug. 1, 2018.
- Gail Langendorf, JD, Attorney, Busald Funk Zevely, Florence, KY. Phone: (859) 371-3600. Email: firstname.lastname@example.org.
- Mary C. Malone, JD, Hancock Daniel, Richmond, VA. Phone: (804) 967-9604. Email: email@example.com.
- Stephen Shows, Senior Risk Resource Advisor, ProAssurance Companies, Birmingham, AL. Phone: (205) 877-4487. Email: StephenShows@proassurance.com.
- Scott L. Zeller, MD, Vice President, Acute Psychiatric Medicine, Vituity, Emeryville, CA. Email: firstname.lastname@example.org.
- Leslie Zun, MD, MBA, System Chair, Emergency Medicine, Sinai Health System, Chicago. Phone: (773) 257-6957. Email: email@example.com.