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Psych Eval

Legal Landmines for Patients Referred to ED for Psychiatric Evaluation

By Stacey Kusterbeck, Special for

Some patients who present to emergency departments (EDs) with psychiatric complaints were referred by someone else. It may have been a primary care physician, a therapist, or suicide prevention hotline. Regardless, there are some additional liability implications for emergency providers.

“Legal risks when a psychiatric patient is referred to the ED by another healthcare provider relate to information-sharing for care coordination and continuity of care,” says Sandra M. Douglas, Esq., a partner in the Richmond, VA, office of Hancock, Daniel & Johnson.

When the ED clinician is communicating with the referring provider regarding sensitive information, such as mental health information, the Health Insurance Portability and Accountability Act (HIPAA) must be considered. The law permits healthcare providers to disclose to other medical providers protected health information (PHI) contained in the record about an individual for treatment, case management, and coordination of care.

“The EP [emergency physician], however, should be mindful of federal alcohol and drug abuse confidentiality regulations, heightened protections afforded to psychotherapy notes, and state laws that may provide more stringent protection,” Douglas cautions. The ED provider should consult the hospital’s privacy officer, as necessary, for guidance.

The patient’s physician or therapist may know concerning information of which the emergency providers should be aware. Ideally, the ED clinician should contact the referring provider for coordination and continuity of care. This practice ensures the safest and best treatment for the psychiatric patient, and also the safety of others.

“The ED provider should speak directly with the referring provider, if possible, and document these efforts and information received,” Douglas says. All this must be handled in compliance with HIPAA and state privacy laws.

Douglas says that in and of itself, the fact that an outside entity — a primary care physician, therapist, or mental health counselor — concluded the patient needed an immediate ED evaluation expands legal risks for the emergency provider. A plaintiff attorney will compare the medical records of the referring provider with the medical records of the ED clinician, and ask questions based on comparison of the two.

For instance, the plaintiff attorney will scrutinize any differences in the subjective and objective findings, the assessment, and treatment plan of the two providers. “As in any medical malpractice litigation, any third-party provider could be called as a witness and deposed during litigation,” Douglas says.

(Editor's Note: The upcoming April 2023 edition of ED Management is a special issue on psychiatric patients. In this single-topic issue, we will report on the biggest challenges EDs nationwide are facing and offer solutions for improving care, operating efficiently, and mitigating safety and legal risks.)