Psychiatric Patient Pitfalls in the ED: What to Catch, When to Release

By N. Beth Dorsey, RN, Esq., and Elizabeth Trende, Esq., Hancock, Daniel, Johnson & Nagle, PC, Richmond, VA.

A National Hospital Ambulatory Medical Care Survey indicates that the number of medical emergency department (ED) visits for psychiatric-related reasons jumped from 17.1 to 23.6 per 1,000 population between 1992 and 2001.1 Just one of those visits led to a $13 million verdict against a defendant (ED) staff, when a patient who was evaluated in the hospital's ED, but who was not admitted, returned home and subsequently committed suicide.2 Multiply that figure by 4.2 million, the number of ED visits for which patients were primarily classified as having "mental disorders"3 in a recent Centers for Disease Control and Prevention (CDC) report, and one gets a sense of the magnitude of risks EDs face if their actions with regard to psychiatric patients are not in compliance with relevant federal and state laws.

This article provides an overview of some of those laws, and offers guidance for EDs seeking to evaluate their policies and procedures with respect to psychiatric emergencies. The guidance is presented with respect to three key areas: initial screening of the psychiatric patient in the ED; the decision of whether or not to admit the patient; and the decision to discharge the patient.

Initial Screening

A patient's arrival in the ED with psychiatric complaints triggers the ED's required compliance with federal law. Any hospital that participates in Medicare and has an ED must comply with the Emergency Medical Treatment and Active Labor Act (EMTALA). EMTALA requires that for any individuals who "comes to the emergency department" and requests treatment, the hospital must "provide for an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition [EMC]...exists."4 Psychiatric emergencies are included in the definition of EMC, and interpretive guidelines promulgated by the Centers for Medicare & Medicaid Services (CMS) demand a certain level of behavioral assessment when individual present with psychiatric symptoms: "... the medical records should indicate an assessment of suicide or homicide attempt or risk, orientation, or assaultive behavior that indicates danger to self or others."5 If a psychiatric EMC is detected, EMTALA triggers a second requirement, that the hospital provide treatment to stabilize the patient, or transfer of the patient to another facility.6

EMTALA guidelines demand that EDs screen, but offer little guidance as to what a screening must entail. Federal courts have found violations attributable to screening inadequacy, generally, in two circumstances: when a hospital's screening reflected an improper and discriminatory motive, or when plaintiffs demonstrated that a hospital deviated from its normal screening procedures. Improper motive may be "evidenced by the fact that the hospital treats patients differently based upon their characteristics, such as ability to pay, sex, race, national origin, financial condition, politics, and social status."7

Other courts have rejected an anti-discrimination test in EMTALA, and instead have held that the law is satisfied so long as hospitals are consistent in their screening procedures for similarly situated patients: "[a] hospital has fulfilled the Act's appropriate medical screening requirement if its treatment of a patient conforms to the hospitals standard screening procedures."8

A hospital cannot predict to what extent a court will apply either or both these standards in evaluating an ED's compliance with EMTALA, but it should ensure that the ED is vigilant about maintaining consistent screening procedures with each psychiatric patient, each visit. (Disparity may be found in the eyes of the court, for example, when one patient is screened by an in-house psychiatrist, but county mental health employees are called to perform a screening on another.9) The requirement of consistent, non-discriminatory treatment is particularly important in light of the fact that patients who visit the ED with psychiatric conditions often have high rates of recidivism10 (which could cause ED staff to take their complaints less seriously on subsequent visits), no insurance,11 or demonstrate behaviors that make screening and diagnosis difficult.

Admission Decisions

EMTALA was not intended to be a medical negligence statute; and, indeed, courts have been reluctant to extend its requirements over questions of medical judgment.12 However, physicians (who cannot be sued individually under EMTALA13) and hospitals are always subject to actions arising under state malpractice laws, in which their conduct may be alleged to have deviated from the standard of care. When a court finds that deviation led directly to harm of the patient or another party, the costs can be substantial.

The $13 million verdict described in the first paragraph of this article, Martino v. Illinois Masonic Med. Ctr., resulted from a state malpractice action, where a woman who arrived at the ED complaining of severe depression, but was refused hospital admission, later committed suicide. While the verdict was reduced by half in reflection of the patient's comparative fault, it is still significant, and remains demonstrative as to the magnitude of costs hospitals can incur if their failure to admit a psychiatric patient is viewed as negligent.

The plaintiff in Martino asserted that the ED staff deviated from the requisite standard of care during the process surrounding its decision not to admit the patient. During screening, the patient had informed the ED staff that she suffered from bipolar disorder and had recently been released from a psychiatric hospital. Rather than obtaining the patient's psychiatric records from that hospital, the ED staff considered only the information the patient provided them, along with her statements that she was not suicidal, and released her. The plaintiff's expert later testified that the patient's history, coupled with her own request for hospitalization, should have alerted the hospital that the patient was a danger to herself.14 Thus, the hospital's failure to obtain thorough psychiatric records, which could have informed its screening and diagnostic process more effectively, constituted negligent treatment of an unstable patient. Martino is one of many cases in which ED physicians were found to have deviated from the requisite standard of care when they failed to obtain a psychiatric patient's records to inform their diagnoses.15

Stabilization and Release

When a patient presents with an EMC, psychiatric or otherwise, EMTALA demands that the EMC be stabilized before the patient is released. EMTALA deems an EMC "stabilized" when "no material deterioration of the condition is likely, within reasonable or medical probability, to result from or occur during" the patient's release from the hospital.16 The regulations further (but not entirely) illuminate the point at which a psychiatric patient may be considered safe for discharge: "[f]or purposes of discharging a patient (other than for the purposes of transfer from one facility to a second facility), for psychiatric conditions, the patient is considered to be stable when he/she is no longer considered to be a threat to himself/herself or to others."17

While the statute and regulations contain some helpful guidance, they still force ED providers to speculate; particularly when it comes to predicting the likelihood the psychiatric patients will demonstrate harmful behavior in the future. Even the CMS guidance pertaining to restraint of psychiatric patients concedes that the pathology of a psychiatric emergency is often unpredictable, and that exacerbation leading to recurrence must always be regarded as a possibility: "[t]he administration of chemical or physical restraints ... may stabilize a psychiatric patient for a period of time and remove the immediate EMC but the underlying medical condition may persist and if not treated for longevity the patient may experience exacerbation of the EMC...."18

Determining the "bright line" of when it is "safe" to let a psychiatric patient leave the hospital is difficult, but the consequences of a premature release can be disastrous. Last year, for example, a federal court considered the case of a Michigan hospital that admitted and later released a psychiatric patient who subsequently murdered his wife.19 The patient in question presented at the ED with symptoms of physical distress, as well as threatening behavior. ED physicians admitted him in order to perform more tests. After several days in the hospital, a treating physician documented that the patient was still unstable, and recommended that he be transferred to the hospital's psychiatric unit. Two days later, over the protests of his wife, the patient was released. He murdered his wife 10 days following discharge.

Representatives of the patient's wife's estate subsequently filed suit against the hospital and one of the patient's treating physicians, alleging violations of EMTALA and various other negligence claims. The court denied the hospital's motion to decide the case in its favor on summary judgment, and its opinion contained several stunning implications for EDs with respect to psychiatric patients.

First, the court denied the hospital's claim that, under EMTALA, only the patient who seeks treatment at a hospital has a right to sue that hospital. The court held firm to EMTALA's language, and found that "'any individual who suffers personal harm as a direct result of a hospital's EMTALA violation may sue."20

The court went on to eliminate what hospitals may heretofore have perceived as a legal safety net under EMTALA — the idea that a hospital's EMTALA obligations are satisfied once the patient is admitted to the hospital. Indeed, the CMS regulations provide that "[i]f a hospital admits [an] individual as an inpatient in good faith in order to stabilize the emergency medical condition, the hospital has satisfied its special responsibilities under this section with respect to that individual."21 The court, however, called the CMS regulation "contrary to the plain language of the [EMTALA] statute,"22 and set forth its own rule: "[a] hospital may not release a patient with an emergency medical condition without first determining that the patient has actually stabilized, even if the hospital properly admitted the patient."23

The court offered no guidance on how hospitals may locate (at least from a legal perspective) that elusive psychiatric stabilization point before releasing a patient who may have a history of unstable behaviors. But it did indicate that the hospital's efforts to defend its actions were hobbled by its own conflicting records. Just two days before the patient was released, a treating physician had expressed concerns that the patient was psychotic, and should be transferred to a unit of the hospital for psychiatric inpatients. Two days later, another physician determined that the patient was medically stable and released him. At trial, the plaintiffs produced a witness who testified that the degree of psychological problems the patient was experiencing could not have been resolved in two days.

The trial's analysis leaves the question of whether the hospital's case could have been strengthened, had the treating physicians' documentation regarding the patient's mental status been consistent, and had the rationale behind their decision to release him been more thoroughly substantiated in his chart. EMTALA-related concerns aside, the failure to keep a thorough, informed record on a psychiatric patient has, in itself, been regarded as a deviation from the standard of care for a psychiatric patient.24

Going Forward

These suggestions may help EDs protect themselves against common pitfalls in the psychiatric screening and decision process:

• Clear screening procedures must be in place for psychiatric patients, and those procedures must be applied consistently.

• A screening should not be considered complete until a thorough psychiatric history is obtained. Records from previous providers should always be requested.

• Physicians must do more than document their conclusions with regard to a patient's psychiatric condition or stabilization. The rationale behind those decisions should also be thoroughly explained in the record.

• Even though the CMS rule still stands regarding the end of a hospital's EMTALA obligations as soon as a patient is admitted, at least one federal district court has disagreed with it. In any event, bad faith admission-and-release should not be used to avoid liability.

• Most laws (including EMTALA), refer not to preventing death, but to preventing harm to the patient or another human being. A patient who is released on the grounds that he is not a suicide risk may nonetheless be capable of doing harm, and hospitals must evaluate this possibility before his discharge.


1. Larkin GL, Claassen CA, Emond JA, et al. Trends in U.S. emergency department visits for mental health conditions, 1992 to 2001. Psychiatr Serv 2005;56:671-677.

2. Martino v. Illinois Masonic Med. Ctr, Ill., Cook County Cit. Ct., No. 97 L 874, July 26, 1999.

3. Pitts SR. National Hospital Ambulatory Medical Care Survey: 2006 Emergency Department Summary. Natl Health Stat Report 2008;7:1-38.

4. 42 U.S.C. §1395dd(a).

5. State Operations Manual Appendix V – Interpretive Guidelines – Responsibilities of Medicare Participating Hospitals in Emergency Cases, page 12.

6. 42 U.S.C. §1395dd(b)(1).

7. Gossling v. High Plains Community Mental Health Center, 1995 U.S. Dist. LEXIS 5765, *22-24, citing Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 271 (6th Cir. 1990).

8. Gossling, supra at 24; Vickers v. Nash Gen. Hosp., Inc., 78 F.3d 139, 144 (4th Cir. 1996); Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1258 (9th Cir. 1995).

9. See, e.g., Baker v. Adventist Health, Inc., 260 F. 3d 987, 994-95 (9th Cir. 2001).

10. See, e.g., Dhossche DM, Ghani SO. A Study on Recidivism in the Psychiatric Emergency Room. Ann Clin Psychiatry 1998;10:59-67.

11. Steinwachs DM, Kasper JD, Skinner EA. Datawatch: Patterns of use and cost among severely mentally ill people. Health Affairs 1992;11;178-184.

12. See Eberhardt, supra note 8 at 1258; Baker v. Adventist Health, Inc. 260 F. 3d 987 (9th Cir. 2001).

13. 42 U.S.C. §1395dd(d)(2)(A).

14. See Analysis of Case No. 97 L 874, Medical Litigation Alert (May 2000).

15. See, e.g., Gaido v. Weiser, 227 N.J. Super. 175 (1988); aff'd. 115 N.J. 310 (1989).

16. 42 U.S.C. §1395dd(e)(3)(B).

17. 42 C.F.R. §489.24(c)(1).

18. State Operations Manual Appendix V – Interpretive Guidelines – Responsibilities of Medicare Participating Hospitals in Emergency Cases, page 49.

19. Moses v. Providence Hospital and Medical Centers, 561 F.3d 573 (6th Cir. 2009).

20. Id. at 580.

21. 42 C.F.R. §489.24(d)(2)(i).

22. Moses, supra note 19 at 583.

23. Id.

24. Abille v. United States, 482 F. Supp 703 (1980).