Psych Patient Leaves AMA? Mental Capacity Will Be Issue

Poor charting can “doom the defense”

Malpractice litigation often arises from a psychiatric patient discharged from the ED against medical advice (AMA), according to Robert Berg, JD, an attorney at Epstein Becker Green in Atlanta, GA.

“Something bad happens, either to the patient or to others, and the plaintiff’s lawyer commences the search for the proper — or deep pocket — defendant,” he says. “Usually, that search focuses on or points to the ED and the emergency physician [EP].”

Plaintiff attorneys will look for discrepancies between what EPs are required to do in this scenario, according to the hospital’s policies and procedures, and the way the EP acted in the particular case, says Berg.

“The wider the gap, the more a good plaintiff’s attorney can pit one defendant against another, increasing the chances of obtaining a large damages verdict,” he says. “A lack of proper documentation can also doom the defense of an action challenging the AMA discharge of a psychiatric patient.”

Frequent ED users with psychiatric-associated visits were more likely to leave AMA, according to a study that looked at all ED visits at 18 San Diego hospitals occurring between 2008 and 2010.1

EPs might minimize the seriousness of patients with chronic psychiatric illness who use the ED frequently, says Ted Chan, MD, one of the study’s authors and medical director of the EDs at University of California — San Diego Hillcrest Medical Center and the Thornton Hospital in La Jolla.

“You can become somewhat cynical or jaded because they are coming so frequently,” says Chan. “You have to treat each patient as an individual, and try to get them to the resources that they need.”

In a 1987 case involving a patient who stabbed a police officer, the decision of a medical center to release the patient against medical advice was challenged. “The court held that there were no reasonable grounds for the treating psychiatrist to seek involuntary commitment of [the patient], and judgment was made in favor of the medical center,” says Berg.2

In a 1995 case, a family alleged that a veterans hospital and two of its nonpsychiatric physicians should not have released a patient who died by suicide within hours of his discharge against medical advice because he was a clear suicidal risk.3

“The court found that although the patient had expressed suicidal tendencies in the past, he showed no signs of being a genuine suicidal risk on the morning of his discharge,” says Berg. “The physicians were not found negligent in their treatment of the patient.”

Competence Is Issue

Because concern over a mental health condition raises the question of competence to make decisions, such as the decision to accept or refuse treatment and the decision to stay or leave AMA, the EP must quickly and efficiently determine whether the patient is competent to make his or her own decisions, says Bobbie S. Sprader, JD, an attorney with Bricker & Eckler LLP in Columbus, OH.

“Once the mental health assessment is complete, the conclusions reached will guide the care going forward,” she says. Sprader says that the ED’s policy should address these issues:

  • Who can trigger a mental health assessment?
  • What is the process for obtaining a mental health assessment?
  • Who will perform mental health assessments?
  • What is the timeframe for mental health assessments (stat, within 30 minutes, etc.)?
  • How do you contact the assessor (pager, phone, computer)?
  • What do you do on evenings and weekends?
  • What should you do until the mental health assessment is complete?
  • Can you prevent the patient from leaving? If so, how?
  • Can you restrain or sedate the patient?
  • Can you leave the patient unattended?

“If the policy is in place and is followed, hopefully lawsuits can be avoided altogether,” says Sprader. “If there is a lawsuit anyway, having a good policy, if it was followed, should prove very helpful for everyone.”

Berg says this documentation can help EPs defend themselves if a malpractice suit is filed:

• How the determination was made that the patient had the capacity to decide.

The decision to be discharged AMA is typically only valid if the patient has the capacity to understand the risks and make the determination to be discharged, Berg stresses.

“With psychiatric patients, there is always an issue involving mental capacity,” he says. “If the patient does not have the mental capacity to make that decision, the ED doctor may face significant risk of liability for allowing the patient to be discharged AMA.”

EPs should generally include more, rather than less, information concerning the patient’s evaluation, says Berg. “A thorough history and examination, as documented in the record, can help support the validity of the decisions made by the ED doctor regarding mental capacity,” he explains.

• That the patient was advised of the important points involved in the decision to be discharged AMA.

“Include a note that the patient was offered the opportunity to ask questions, and, at the end of the encounter, expressed a clear understanding of the items noted,” says Berg.

• That any alternative courses of treatment or alternatives to signing out AMA were conveyed to and understood by the patient.

If the EP’s actions are challenged after a bad outcome, proper documentation showing the lengths that the EP took in order to avoid an AMA discharge usually helps the defense, says Berg.

“Document confirmation that the patient clearly understood his or her medical condition, the risks of being discharged against medical advice, and the possible alternatives,” says Berg.


  1. Castillo EM, Brennan JJ, Chan TC, et al. Multiple hospital emergency department visits among “frequent flyer” patients with a psychiatric-associated discharge diagnosis. Presented at the 2012 ACEP Scientific Assembly, Denver.
  2. Kelly v. The United States of America and John Doe, John Roe, and John Shoe, civil action 86-2864 (U.S. Dist Lexis 2201, 1987).
  3. Solbrig v. United States of America, 92 C8249, 14-18 (US Dist Lexis 2201, 1995).


For more information, contact:

  • Bobbie S. Sprader, JD, Bricker & Eckler LLP, Columbus, OH. Phone: (614) 227-2315. E-mail:
  • Robert Berg, JD, Epstein Becker Green, Atlanta, GA. Phone: (404) 923-9050. Fax: (404) 923-9950. E-mail: