Psychiatric Patients Pose Unique Legal Risks During Pandemic
If an emergency department (ED) is packed with respiratory patients, psychiatric patients could end up boarded for hours or days. This is not good for patients, and creates liability exposure for EDs. “If somebody does fall through the cracks, there’s potential for some really bad outcomes,” says Scott Zeller, MD, vice president of acute psychiatric medicine at Vituity in Emeryville, CA.
Telepsychiatrists can help emergency physicians (EPs) with risk assessment, disposition, and treatment, says Adrienne Saxton, MD, an assistant professor of psychiatry at Case Western Reserve University in Cleveland. Even if a bad outcome occurs, the consult shows the EP took the case seriously by seeking specialist advice. “That makes it more difficult to prove the EP’s care was negligent,” Saxton explains.
Due to recent telemedicine waivers for COVID-19, EDs can access mental health professionals easier.1 Previously, Medicare restricted this only to rural sites. Many urban EDs also needed teleconsults. “It always made sense for multiple settings. It should never have been restricted to rural settings. But that was all Medicare was permitting,” Zeller observes.
For now, telehealth is making it possible to better use the limited number of psychiatrists available to EDs. “Unfortunately, sometimes it takes a crisis for something to become obvious to the powers that be,” Zeller notes.
There are no current published data showing that higher numbers of patients with psychiatric conditions are presenting to EDs during the pandemic. “However, some predict a mental health crisis in the wake of COVID-19,” Saxton says.2
There are many reasons, including more domestic violence, massive unemployment, financial problems, and difficulty accessing outpatient care. If litigation against EDs arises alleging negligent care of psychiatric patients, there are some factors likely to become an issue:
• Some states have enacted liability protections for healthcare professionals during the pandemic, but psychiatric care is not specified.3 “One important question is whether all types of ED care would qualify, including psychiatric services,” Saxton says.
• Expert testimony would be required to establish the hypothetical standard of care for a psychiatric patient in an overwhelmed ED during a pandemic. “As in other malpractice cases, experts on opposing sides may disagree,” Saxton says.
• Arranging dispositions for patients with mental health and substance use concerns has become harder. Certain substance use treatment programs, intensive outpatient programs, and community mental health agencies have closed. Others switched to phone or virtual sessions.
Concurrently, group homes, nursing facilities, state hospitals, and other inpatient psychiatric units are increasingly scrutinizing admissions to prevent COVID-19 outbreaks. “Psychiatrists and social work teams can help overwhelmed emergency department physicians navigate these challenging issues,” Saxton says.
• Despite liability protections that are now in place, there are continued legal risks for EPs if a psychiatric patient is discharged and harms themselves or others. “Liability for patient violence is a complicated area of law,” Saxton says. Many states have enacted statutes addressing this, due to the well-established difficulty in predicting violence risk.4 “These may protect against liability,” Saxton observes.
Some statutes offer immunity for patient violence where there was no explicit threat, but how much protection varies. Also, certain statutes are specific to mental health professionals. “How much protection would be offered to ED physicians who are conducting mental health evaluations depends on a state’s specific definition of a mental health professional,” Saxton notes.
Statutes are subject to interpretation by courts. This means EPs could be held liable for violence that was reasonably foreseeable, even in the absence of overt threats. “ED physicians generally know how to manage patients making explicit threats of violence,” Saxton explains. Most EPs would consult psychiatry and/or arrange for inpatient psychiatric hospitalization for these patients. EPs probably face greater liability exposure for a different group of patients: those who do not make explicit threats, but remain at acutely elevated risk. “This may go undetected,” Saxton adds.
A good example is a case involving a young man brought to the police for barricading himself in his basement due to paranoid delusions. The patient’s history included schizophrenia, violence, and treatment non-adherence. “If he is calm in the ER, minimizes his situation, and promises to restart his medication, the EP may be tempted to discharge the patient,” Saxton says.
However, this patient clearly is at elevated risk of acting violently. “If a bad outcome occurs after discharge, the ER physician is at risk of liability, especially if he did not seek specialist consultation,” Saxton says.
Saxton recommends EPs consider a consult to psychiatry (for risk assessment and disposition) in these specific situations: patients with active psychotic symptoms, patients with agitation or mania, patients with some evidence of suicidality (e.g., recent suspicious ingestion or injury), patients who engaged in a recent violent act or have violent fantasies (despite denial of current plan or intent for violence), and patients with a psychotic disorder who present with medication side effects that necessitate a significant change in their treatment plan. “These changes could exacerbate symptoms and acutely elevate risk of violence,” Saxton reports.
ED charts often contain the words “patient denies suicidal/homicidal ideation.” This probably is not sufficient to justify discharging the patient.5 “If there are other factors going on that raise concern, consider a consult to psychiatry to investigate further,” Saxton says.
This may reveal previously unknown risk factors, such as a suicide note or escalating substance abuse. “Sometimes, the patients most in need of psychiatric assistance deny or minimize their symptoms in order to be discharged,” Saxton adds.
REFERENCES
- Centers for Medicare & Medicaid Services. Physicians and other clinicians: CMS flexibilities to fight COVID-19. April 29, 2020.
- American College of Emergency Physicians. Joint statement for care of patients with behavioral health emergencies and suspected or confirmed COVID-19.
- New York Gov. Andrew Cuomo. Executive Order No. 202.10: Continuing temporary suspension and modification of laws relating to the disaster emergency. March 23, 2020.
- Knoll IV JL. Psychiatric malpractice grand rounds: The Tarasoff dilemma. Psychiatric Times, Sept. 27, 2019.
- Resnick P, Saxton A. Malpractice liability due to patient violence. Focus (Am Psychiatr Publ);17:343-348.
If an emergency department is packed with respiratory patients, psychiatric patients could end up boarded for hours or days. This is not good for patients, and creates liability exposure.
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