Discharge of Psychiatric Patients Is Legal Landmine for EDs
When someone visits an ED with psychiatric symptoms, providers have to consider multiple legal requirements before discharging the person.
“Medical liability may be significant under this circumstance,” says Todd B. Taylor, MD, FACEP, a Phoenix-based EMTALA compliance consultant.
If a patient with psychiatric symptoms experiences a poor outcome shortly after discharge from an ED, allegations of inadequate medical screening are possible. Good documentation is the best protection against these allegations. “Post-discharge events are subject to the proverbial Monday morning quarterbacking,” says Mary C. Malone, JD, a partner at Hancock Daniel in Richmond, VA.
One central consideration is EMTALA, which requires the hospital to provide an appropriate medical screening exam (MSE). “Documentation of the examination, thought process, and medical judgment can help from both EMTALA compliance as well as professional liability perspectives,” Malone offers. For psychiatric patients, the MSE includes two components:
- A medical portion to determine whether there is an organic cause for psychiatric symptoms.
Malone gives this example of good charting to show there was no apparent organic cause for the patient’s psychiatric symptoms: “The patient is diabetic and presents with slightly elevated blood sugar. Otherwise, seems generally medically healthy. There is no indication a physical process is causing psychiatric symptoms.”
- A psychiatric portion to determine whether there is a psychiatric emergency condition that requires stabilizing treatment and/or transfer.
During this part, note any relevant history of behavioral health disorders and anything relevant the patient or family discussed (e.g., as the patient is anxious, the patient indicated she cannot eat or sleep, or the patient is hearing voices).
“In simple terms, a patient has a psychiatric emergency if he or she has a behavioral health condition that renders the patient a threat to self or others,” Malone explains.
Determining this is can be difficult. The chart should specifically indicate whether the patient is considered a threat to self or others:
- “Patient expresses active suicidal ideations.”
- “Patient has no psychiatric history, recently separated from his wife. Indicates that while he is experiencing periodic anxiety attacks, he is not actively suicidal or otherwise a potential harm to himself.”
Even if the chart indicates there is no apparent threat at the time of the visit, “it is best to ensure, in addition to a psychiatric screening assessment, that there is some period of observation of the patient prior to discharge,” Malone suggests.
A patient with a psychiatric complaint can be discharged from the ED with instructions for follow-up outpatient care under these circumstances:
- The screening evaluation does not reveal a psychiatric emergency condition, and there is no concomitant medical emergency medical condition;
- The psychiatric emergency condition resolves itself, or intervention is taken to alleviate these symptoms, and the patient is no longer considered a threat to self or others. “This requires very careful consideration, and should not be done quickly,” Malone cautions.
Providers must determine whether an emergency medical condition (EMC) exists as defined by EMTALA. “For mental health conditions, this usually means [patients] may be a danger to self or others, or perhaps are gravely disabled, such that they cannot care for themselves safely,” Taylor explains.
Other conditions could cause an EMC, such as an acute overdose, chronic medication toxicity, or other medical condition resulting from the underlying mental health illness. If a provider determines the patient exhibited no EMC or the EMC was stabilized before discharge, the EMTALA obligation ends, according to Taylor. That does not mean there will not be an investigation.
“It may be determined by the CMS physician reviewer that these were not reasonably determined, resulting in possible citation and sanctions,” Taylor says.
Mental health is particularly difficult in this regard. Many patients are chronically ill, with sometimes rapidly changing symptoms. “A patient prone to suicidal ideation may seem perfectly fine at discharge. Then, shortly afterward, some unanticipated event triggers a suicide attempt,” Taylor observes.
If an EMC is identified, the hospital must provide stabilizing treatment within their capability to stabilize. If the facility lacks the capability or capacity, staff must transfer the patient to a hospital that does. That hospital is obligated to accept the patient. “If the patient is able to be stabilized, they may be discharged home or to another appropriate setting,” Taylor adds.
A psychiatric consult is not required, so long as the physician performing the MSE is qualified to assess for a mental health EMC. “However, as with any other EMC, if the examining physician requires assistance from a specialist, the on-call specialist is required to respond appropriately to complete the medical screening exam and/or provide stabilizing treatment,” Taylor says.
If the hospital does not provide psychiatric services, or they are unavailable, and providers determine the patient needs those services, then the patient must be transferred to a setting that can provide a similar level of care. If no appropriate mental health services are available within a reasonable distance, the patient may need to be boarded in the ED or placed in a monitored observation or inpatient setting until transfer is possible.
In addition to the typical ED history and physical exam, Taylor says mental health patients also require an assessment of mental status, social situation, substance abuse, and safety. “Lab and radiology are often unnecessary without specific indication,” Taylor notes.
As with any test, the EP should ask, “What am I going to do with the resulting information?” Sometimes, there is no clear answer. “Drug screens and ethanol levels are particularly unhelpful, yet almost routinely obtained,” Taylor says. “However, in this age of COVID, it may be reasonable to obtain a COVID screen, especially if transfer is anticipated.”
Follow-up arrangements for discharged patients are particularly important. “Most mental health patents have chronic symptoms which can easily deteriorate,” Taylor says.
Social support, or lack thereof, is an important factor. A patient with chronic suicidality with a good support system may never come to an ED or be admitted. “The same patient, without a good support system, may be a revolving door of ED visits and admissions,” Taylor laments.
Many patients who present with suicidal ideation can be discharged after effective ED treatment, says Kimberly Nordstrom, MD, JD, an emergency psychiatrist at the University of Colorado Anschutz Medical Campus. Stabilization may occur through sobering from alcohol or drugs, a brief family meeting/therapy session, or quick, individual, supportive, or solution-focused therapy. Nordstrom says it is problematic when an EP documents “schizophrenia” in the chart when the sole evidence is current psychosis. The problem is many issues could be causing the psychosis — drug intoxication, delirium, or dementia — not just schizophrenia.
“Once in an electronic medical record, it is difficult to get rid of an incorrect diagnosis,” Nordstrom says.
The diagnosis is removed from the problem list, but stays in the notes, on which future providers rely. “It affects next steps in treatment when providers rely on false information,” Nordstrom adds.
If a patient with psychiatric symptoms experiences a poor outcome shortly after discharge from an ED, allegations of inadequate medical screening are possible. Good documentation is the best protection against these allegations.
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