New York's High Court Rules Hospital Is Not Liable for Failure to Retain an Intoxicated Patient
By Robert A. Bitterman, MD, JD, FACEP, President & CEO, Bitterman Health Law Consulting Group, Inc., Contributing Editor
Since ancient times, caring for alcohol-intoxicated patients in the emergency department has always been troubling and risky for emergency physicians and hospital staff. In a high-profile case in New York, the state's highest court essentially held that physicians and hospitals are not thy intoxicated brother's keeper.
The Case of Kowalski v. St. Francis Hospital and Health Centers1
Facts. Kevin Kowalski was brought by a friend to the emergency department (ED) of St. Francis Hospital, seeking admission to its affiliated detoxification facility. He was evaluated by the emergency physician, who determined Mr. Kowalski was severely intoxicated from alcohol consumption due to "red eyes, garbled speech, a strong smell of alcohol," not to mention the very high blood-alcohol content of 0.369%.1,2 He was, however, "alert and able to walk" (though it wasn't documented if the "walk" was wobbly or steady) and had no evidence of suicidal ideation.1
After waiting four hours for transport to the detox unit, Mr. Kowalski removed his IV and told a nurse he intended to go home via taxi. The nurse recommended he call a friend to pick him up instead, and he agreed. The nurse left the room to inform the emergency physician of the patient's intentions, and when she returned, Mr. Kowalski was gone. Consequently, the nurse asked the physician if she should call the police. The physician said no, and instead notified hospital security.
Mr. Kowalski had left the ED unescorted, wandered onto a nearby highway, and was struck by a car, which left him paralyzed below the neck. He sued the hospital and the emergency physician for malpractice, claiming that even though he decided to leave the hospital on his own, the hospital and physician were negligent in not forcing him to stay based on his level of inebriation. In other words, the emergency physician should have kept him until his intoxication wore off.
Does a hospital or an emergency physician have a duty to retain an intoxicated patient who presented voluntarily to the ED and now wants to leave?
The Court's Ruling. The New York State Court of Appeals the state's highest court ruled that the hospital and emergency physician had no such duty and, moreover, if they kept the intoxicated patient against his will, it would constitute false imprisonment, a criminal act under New York law.1
The court looked to the state's mental hygiene law,3 which specifically addressed the issue of when a hospital may retain "a person whose mental or physical functioning is substantially impaired as a result of the presence of alcohol ... in his or her body."4 The statute distinguishes an intoxicated person "who comes voluntarily or is brought without his or her objection" to the hospital, from an intoxicated person "who is brought with his or her objection."5 In the latter case, the person "may be retained for emergency treatment" if examined by a physician and found to be incapacitated6 to such a degree that "there is a likelihood to result in harm to the person or others." The "likelihood to result in harm" to oneself must be "manifested by threats of or attempts at suicide or serious bodily harm or other conduct" that demonstrates a danger of self-injury.7 For persons such as the plaintiff, who come to the hospital voluntarily, the New York mental hygiene law contains no provision for involuntary retention.1,3
Mr. Kowalski conceded that he could not have been retained under the mental hygiene law and, instead, argued that the duty to restrain him stemmed from the hospital's and the physician's common law duty of care. The court made quick work of this assertion, stating that "there can be no duty to do that which the law forbids. To restrain the plaintiff on these facts would have exposed defendants to liability for false imprisonment."1
The court was divided, however. Two of the seven judges dissented, asserting that the hospital and emergency physician did indeed have a common law duty to an intoxicated patient and, therefore, it should be left to the jury to decide if they should have prevented the plaintiff from leaving the ED on the facts of the case. The court countered that in America, members of a free society may, with limited exceptions, "come and go as they please," and although some persons are so mentally impaired that they must be denied the right to "go as they please," that group does not include everyone who would be safer in a detoxification facility than on the street.1
In sum, the court determined on the facts of this case that a hospital or an emergency physician did not owe an alcohol-intoxicated patient a duty to prevent him from leaving the hospital.
Whether a hospital or an emergency physician has a duty to a patient is a question of law, and questions of law are decided by the court, not by a jury. Only questions of fact reach the jury.
Fortunately for the defendants in this case, the majority of the judges on the court ruled that no duty exists on the facts presented. However, had the argument of the dissenting judges prevailed (which has occurred in other jurisdictions, so hospitals and emergency physicians shouldn't feel too secure because of the Kowalski decision), the case would have gone to the jury, who may have found the hospital and emergency physician liable for failure to hold the patient until sober and capable of safe ambulation.
The hospital and emergency physician essentially argued that they lacked the authority to restrain the plaintiff that he did not meet the "legal standard" for involuntary confinement under state law. They claimed he was not in "imminent danger" to himself or others, and because he was not in such danger, they owed him no duty. Therefore, he was free to leave and there was nothing the defendants could have done to legally stop him. Really?
There Is a Strong Counter Argument. Does a patient with a blood-alcohol concentration of 0.369% have an emergency medical condition? At that level of inebriation, is the patient an "imminent threat to the health and safety of himself or others?" Is it not entirely foreseeable that someone with that degree of intoxication could fall down or wander in front of traffic or otherwise place himself or the unsuspecting public at risk of great bodily harm?
Furthermore, the hospital had a written ED policy that stated that "potentially unstable patients by history will not be left unattended while in the ED." Instead, they must be assigned "one-to-one watch," as most hospitals do for suicidal psychiatric patients. In this case, the assigned nurse left the patient unattended to go speak with the emergency physician. Did the hospital fail to abide by its own policies ("failure to follow its own rules")? It depends on how one interprets and determines whether the patient was "potentially unstable by history."
The common law has always recognized the power to restrain mentally incapacitated individuals, although that power is to be exercised only when necessary to prevent the individual from doing some immediate injury to him- or herself or others, and only when the intervention needs to occur promptly.8
Was Mr. Kowalski "mentally incapacitated?" Was he mentally capable of deciding whether to go home and determine the methodology of getting there (walk home, take a taxi, or let a friend or family member drive him home, or drive home himself)? Did he have the decision-making capacity to refuse the recommended treatment of the emergency physician and leave the ED of his own free will?
That's exactly what he was doing refusing treatment. In this case, IV fluids, observation (and hopefully the bed rails were in the up and locked position), and time time to metabolize the intoxicant until he reached a state of being capable of caring for himself without a likely or foreseeable hazard, or time until an appropriate party would accept responsibility for him (such as a family member or the professional staff of the detox unit).
There was absolutely no medical decision-making analysis of whether Mr. Kowalski was competent/capable to make these decisions, either in the medical aspects of the case or in the court's analysis (i.e., to refuse the recommended treatment and leave of his own free will).
Every competent adult has a constitutionally protected right to refuse medical care, as confirmed by The U.S. Supreme Court in the infamous Cruzan case.?9 However, the right to refuse treatment is not absolute. Exceptions include compelling state interests, such as the preservation of life (prevent suicide) or the protection of third parties (prevent intoxicated persons from driving and mowing down children in the street). It has often been said that "intoxication is not in and of itself enough to warrant involuntarily confining a patient." But, indeed, it may be enough, depending upon the circumstances. EDs retain the suicidal patient because it's foreseeable that if the patient is allowed to leave, he or she may try to kill him- or herself. Isn't it certainly foreseeable that if a severely intoxicated patient is allowed to leave unattended that he or she could seriously injure him- or herself or others trying to walk across a busy highway?
What if when leaving, the patient told the nurse he intended to drive his car home, rather than take a taxi? In the actual case, the plaintiffs claimed the emergency physician was negligent in rejecting the nurse's suggestion to call the police. The court ruled that there was no statute or regulation that authorized the emergency physician to call the police. Furthermore, according to the court, the police could not, on the facts known to the emergency doctor, "have forced plaintiff to return."1
If the patient expressed intent to drive in his highly inebriated condition, then the emergency physician would have the option (but not the duty) to call the police (depending upon state law), since the patient was about to commit a crime and endanger the community. The physician would have no legal duty to stop the person from driving/committing a crime, but, as noted below, the physician should do everything possible to prevent the person from leaving so intoxicated as to be dangerous. Hold the patient until you can find one of his or her friends or a family member to take the patient home, or, alternatively, pay for a taxi to drive the patient home. Springing for taxi fare is much less expensive than defending litigation.
What if the patient's wife appeared in the ED, in a non-intoxicated state, and granted the emergency physician permission to keep the man until he sobered up? It may surprise some emergency physicians to learn that consent for treatment by a family member, even the patient's spouse, is not acceptable under U.S. law unless the individual has been appointed legal guardian by a court of proper jurisdiction.10 Marriage does not confer one spouse the legal capacity to consent to medical treatment for the other spouse, even when the spouse is incompetent or incapacitated.
Some states recognized this problem and enacted "family consent statutes," which outline a hierarchy of family members who can legally provide consent when the family member becomes incapacitated.11 Naturally, even when families have no legal standing to consent for the incompetent relative, it is always wise to involve the family in the medical decision-making process. Communication and concern for the family avoids misunderstandings, surprise, and anger, which are the primary sources of litigation.
The "When in Doubt Rule." Emergency physicians rarely have time to seek legal consultations, let alone wait for a court to render a decision concerning the legal nuances of when to keep a patient from leaving the ED against his or her will. In these situations, it is helpful for physicians to use a "when-in-doubt" rule to guide their immediate actions. This rule simply states that when physicians are in doubt regarding the legality of a situation, "they should do what they believe to be in the patient's best interest and worry about the legal consequences later."
It's true that the emergency physician and the hospital risk criminal and civil charges of false imprisonment when detaining patients against their will. However, the courts almost universally bend over backward to rule in favor of physicians who act in good faith on behalf of their patients in such emergency situations. Documentation of the physician's concerns will weigh greatly in the court's determination of whether the physician acted appropriately to protect the patient and/or others. Physicians can also further protect themselves by obtaining a second opinion from another physician confirming that their action is appropriate under the circumstances.
Which would you rather defend to a family or a jury? "Yes, I knew your loved one was very drunk, had a blood alcohol level of 0.369%, which is nearly five times the legal limit, and walked wobbly, but he said he wanted to leave, so legally I had to let him go." "How was I supposed to know he or she would try to jaywalk across a busy highway?" Or, "Your loved one was very drunk, and I was extremely concerned that he would stumble in the parking lot and break his neck, so I forced him to stay to keep him safe until you could arrive and take him home."
Recommendation. Keep alcohol-intoxicated patients until you believe it is safe for them to leave. Make it very difficult for them to get away: Plug them into an IV and/or a cardiac monitor, place them in a secure location in the ED, ask security to keep vigil, judiciously use restraints, and involve the family and even the dog if necessary just do what it takes to keep them there until the time is clinically ripe to let them go. Rarely will it become a contentious issue; in fact, in the morning, most patients won't even remember that you "forced" or "convinced" them to stay!
Managing the alcohol-intoxicated patient in the ED is a difficult, high-risk encounter. The court's ruling in Kowalski should not lead ED leadership, emergency physicians, and hospital risk managers to become complacent. Rather, it should stimulate a wise and careful review of their hospital's practices, policies, and professional as well as legal obligations in dealing with intoxicated patients.
1. Kowalski v. St. Francis Hospital and Health Centers, 2013 N.Y. LEXIS 1677 (N.Y. Ct. App. June 26, 2013).
2. This blood alcohol concentration is similar to the physical effects of surgical anesthesia: you may stop breathing! A blood-alcohol concentration of 0.400% to 0.500% usually induces coma and may be fatal.
3. NY Mental Hygiene Law § 22.09 et seq.
4. NY Mental Hygiene Law § 22.09(e).
5. NY Mental Hygiene Law § 22.09(a)(1). "Intoxicated or impaired person" means a person whose mental or physical functioning is substantially impaired as a result of the presence of alcohol and/or substances in his or her body.
6. NY Mental Hygiene Law § 22.09(a)(2). "Incapacitated" means that a person, as a result of the use of alcohol and/or substances, is unconscious or has his or her judgment otherwise so impaired that he or she is incapable of realizing and making a rational decision with respect to his or her need for treatment.
7. NY Mental Hygiene Law § 22.09(a)(3). "Likelihood to result in harm" or "likely to result in harm" means (i) a substantial risk of physical harm to the person as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or herself, or (ii) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.
8. Cruzan v. Director, Missouri Department of Health, 497 US 261 (1990). See also Schloendoff v. The Society of New York Hospital, 211 NY 125 (NY 1914).
9. In re: Quinlan, 335 A2d 647 (1976).
10. Ark Stat Ann 41-41-3 (1984); Idaho Code 39-4305 (1975); Wells v. Van Nort, 125 NE 910 (Ohio 1919).