EPs Face These Legal Risks if Discharging Psych Patient

“Legal environment has changed”

Recent mass shootings have resulted in psychiatrists being sued for failing to prevent one of their patients from harming others. Could the same thing soon occur with emergency physicians (EPs)?

“A plaintiff lawyer will name as many defendants as possible while they are sorting things out to determine, ‘Of all the people who treated this patient in the days leading up to the event, where did things really go off the rails?’” says Martin G. Tracy, JD, ARM, president and CEO of Professional Risk Management Services, an Arlington, VA-based firm that manages professional liability insurance programs covering psychiatrists and neurologists.

Tracy recommends that EPs “look at the concept of a ‘dangerous’ patient broadly” when making the decision to discharge a patient. Whether a patient is discharged from the ED and has a myocardial infarction and kills several people driving home, or a discharged patient burns down a building in the middle of a psychiatric episode, “the fact remains that it’s a dangerous patient,” he says. “The greater amount of time between the ED encounter and the bad event, the less likely it is that the EP will be looked at as responsible.”

Know When to Notify

It would be easier to defend an EP motivated by concern for community safety for allegedly improperly notifying law enforcement of a patient’s threats of imminent harm, than to defend the EP after a community tragedy, according to Richard S. Lovering, JD, a partner in the litigation group of Bricker & Eckler in Columbus, OH.

“EPs would be prudent to notify law enforcement of threats of imminent harm made by patients in the ER,” says Lovering. “Although the law has not changed, I think the legal environment has changed.”

Lovering points to a January 15, 2013, letter from the Department of Health & Human Services (HHS) Secretary, which confirms the provisions of Health Insurance Portability and Accountability Act (HIPAA) do not prevent disclosure of patient information to law enforcement with jurisdiction to protect third parties, when a patient has made threats of imminent harm. (To view the complete HHS letter, go to http://www.hhs.gov/ocr/office/lettertonationhcp.pdf.)

“The HHS has gone out of its way to notify the health care community, including ER physicians and staff, that HIPAA does not prohibit taking steps to protect potential victims of patient threats of imminent harm,” says Lovering.

A jury verdict in a 1997 Ohio case involving a psychiatrist whose patient fatally shot his parents prompted the enactment of the immunity statute of R.C. 2305.51, which was upheld by the Ohio Supreme Court, notes Lovering.1

If threats of imminent harm are made by an ED patient, HIPAA does not prevent an EP from notifying law enforcement as to the nature of the threat, the identity of the patient making the threat, and the identity of each potential victim of the threat, says Lovering.

“If feasible to do so, HIPAA does not prohibit communication to each potential victim or victim’s parent or guardian if the potential victim is a minor,” he adds.

Know State Laws

There is often a distinction between involuntarily committing or “pink-slipping” a patient, and sending the patient to an ED in a regular hospital versus one certified by the state’s Department of Mental Health, says Samantha L. Prokop, Esq., an attorney with Brennan, Manna & Diamond, LLC, in Akron, OH.

“For example, I have clients in Ohio who are hospitals but not certified mental health facilities,” Prokop says. “The police will bring in a patient that they have pink-slipped.”

Most EPs believe they have 72 hours to hold the patient before a court makes a determination regarding involuntary commitment, but in actuality, Ohio laws and regulations state that you can only hold the patient for 24 hours in a non-mental health facility, says Prokop.

“The question commonly arises as to what to do when you can’t place a patient in that 24 hours and he or she demands to leave,” says Prokop. “Under Ohio law, you can’t issue another pink slip for the same episode.”

The EP’s dilemma is to determine whether to let the patient walk out with the potential that the patient will harm himself or others, or face potential civil or criminal liability by continuing to hold the patient against his or her will, says Prokop.

In a 2012 case, the spouse and children of a patient who committed suicide 36 hours after he was discharged from the ED brought a wrongful death action against the EP and the hospital.2

“A defense verdict was given at trial, and the plaintiffs appealed,” says Prokop. “The Supreme Court held that an evidentiary presumption with respect to causation does not exist in medical malpractice cases involving suicide.”

EPs need to know their state’s laws regarding what it takes involuntarily commit a patient, advises Tracy. “Some of these are quite broad, and some are very limited,” he says. “The standard of care doesn’t exist in a vacuum. It is determined on a case-by-case basis.”

Most states have some sort of statute or common law in place regarding a physician’s duty to protect people from dangerous patients, says Tracy. “There are two or three different flavors of these laws and each state has modified them a little bit,” he says. In some states, the physician has a duty only if the patient has identified a particular person or particular class of people, for instance.

If the EP decides to discharge the patient, the charting should answer questions such as, “What were the EP’s findings?” “What did the patient say?” and “Why did the EP elect not to refer the patient to the on-call psychiatrist?” says Tracy.

The EP should document any efforts made to obtain a proper referral for the patient, such as the fact that a supervisor was called after a lengthy wait and asked whether there was any other way to get a behavioral health consultant to come down to the ED immediately, he says.

“There is no perfect record, and you can’t provide a verbatim transcript of everything that went on,” says Tracy. “But documenting the important parts of the treatment go a long way toward protecting the EP if something happens down the road.”

References

1. Estates of Morgan v. Fairfield Family Counseling Center (1997), 77 Ohio St. 3d 284.

2. Almonte V. Kurl, 46 A.3d 1, Supreme Court of Rhode Island. No. 2010–315–Appeal. June 26, 2012.

Sources

For more information, contact:

  • Richard S. Lovering, JD, Partner, Bricker & Eckler, Columbus, OH. Phone: (614) 227-2307. E-mail: rlovering@bricker.com.
  • Samantha L. Prokop, Esq., Brennan, Manna & Diamond, LLC, Akron, OH. Phone: (330) 253-3766. E-mail: slprokop@bmdllc.com.
  • Martin G. Tracy, JD, ARM, President and CEO, Professional Risk Management Services, Arlington, VA. Phone: (703) 907-3872. E-mail: tracy@prms.com.