Shortly after treating a patient at your ED, you hear news reports that he committed a mass shooting. What are the liability risks for the emergency physician (EP) who cared for this patient?
“In this era of violence and terrible mass shooting incidents, EDs are vulnerable as being a point of contact for dangerous psychiatric patients,” says Jonathan D. Rubin, JD, an attorney at Kaufman Borgeest & Ryan in New York City.
Eric J. Neiman, JD, an attorney in the Portland, OR, office of Lewis Brisbois, says there is currently a “troubling” case before the Washington Supreme Court.1 The case involves a man who murdered his former girlfriend and one of her children. He had not indicated violent intent toward a specific victim to his psychiatrist.
“Nevertheless, the Washington Court of Appeals decided there was enough evidence to send the case to trial against the psychiatrist,” says Neiman. If the court upholds this decision, he warns, it could expand the potential liability of many mental health and medical professionals, including EPs.
“There could be a new wave of litigation around the country regarding medical professionals’ liability for violent acts of their patients,” Neiman says.
The challenges of psychiatric assessment in EDs typically reflect system problems, says Richard J. Bonnie, director of the University of Virginia School of Law’s Institute of Law, Psychiatry, and Public Policy.
“That is clearly true of psychiatric boarding due to delays in obtaining the necessary psychiatric assessment or in locating an acute care bed or alternative placement for stabilizing the patient’s psychiatric condition,” Bonnie says.
For a patient whose main presentation is a psychiatric crisis, Bonnie says an ED often is a clinically unsuitable location and exacerbates the patient’s psychiatric problems. The challenge is to facilitate access to alternative locations for such assessments, he says, such as separate facilities for psychiatric emergency services and crisis stabilization units.
“A very high policy priority, especially in a state with large rural areas, is removing impediments to tele-psychiatric assessments,” Bonnie says.
From a professional liability standpoint, Bonnie explains, “one of the complicating factors is the interaction between professional liability law, including EMTALA [the Emergency Medical Treatment and Labor Act], and the state statutes that govern involuntary detention and hospitalization of patients experiencing psychiatric emergencies.”
Inadequate Assessment
The most common allegation Neiman sees in claims involving psychiatric patients is that the EP failed to adequately assess the patient for a mental disorder, making the patient unstable and dangerous, and failed to detain the patient for treatment.
“This allegation results in the most serious claims, in which the patient harms self or harms others. The harm can occur in the ED or in the community after discharge,” Neiman says.
If an ED prematurely or improperly discharges a patient who goes on to commit violence, “liability would definitely boomerang back to the ED and the hospital,” Rubin warns. A plaintiff attorney would likely allege that the EP performed an inadequate mental health evaluation, or that the EP should have kept the patient involuntarily.
“[Plaintiff attorneys] would look at how the workup is done, who did it, if the patient refused treatment, and if there were grounds to keep [the patient],” Rubin says.
If a patient reports recent psychiatric care, whether inpatient or outpatient, Rubin says it can be legally protective for EPs to consult with the psychiatrist.
Mitigating many liability issues boils down to obtaining a consult from a mental health professional such as a psychiatrist, psychiatric nurse practitioner, psychologist, or social worker, Neiman says.
“Unfortunately, this resource is not available in many hospitals, especially smaller and rural ones,” he says.
Here are some risk-reducing approaches for EPs caring for psychiatric patients:
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Utilize telepsychiatry if consults are unavailable.
“This is rapidly becoming more available, and will make a big difference in both diagnosis and treatment, especially medication decisions,” Neiman says.
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Consider a physician hold, authorized by most states’ civil commitment laws, and request an assessment by the court investigator.
EPs often worry about a claim of false imprisonment when assessing whether to involuntarily detain a patient.
“Depriving a patient of liberty is a serious matter, with ethical and licensing concerns in addition to liability risk,” Neiman says. However, statutory immunity generally protects decisions pursuant to civil commitment laws.
In addition, EMTALA requires stabilization before discharge of a patient who is dangerous to self or others because of a psychiatric disorder. In terms of legal risk, Neiman emphasizes, “the most important consideration in the moment is ‘safety first.’”
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When the decision is made to discharge a psychiatric patient, verify that there is a strong safety plan in place.
This includes involving family, friends, and outside providers to the extent possible.
“The plan should include directions about what to do if the patient’s condition worsens,” Neiman says. “As always, good documentation must be emphasized.” He says these items can help the EP’s defense:
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Detailed discharge instructions, both in the ED chart and the written plan given to the patient;
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Documentation of the last assessment before the patient leaves;
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Documentation that the patient was asked about suicidal and homicidal ideation and that someone followed up on positive responses.
“It’s important to ask about access to firearms and have an action plan for follow-up when [the patient is] present, but this is a topic of much discussion,” Neiman says.
Evaluations Outsourced
Some EPs believe that outsourcing psychiatric evaluations insulates them from liability, but this isn’t the case, according to Leslie Zun, MD, MBA, chair of the Department of Emergency Medicine at Mount Sinai Hospital in Chicago.
“How is the psychiatric patient different from any other patient?” Zun asks. “Are you going to say, ‘I don’t do stroke evaluations,’ and wait for somebody else to come in and do that?”
Zun says it’s legally risky for an EP to allow an outside service to assume responsibility for determining if the patient requires admission or finding an appropriate transfer location.
“I’ve seen a lot of EPs basically wash their hands and say, ‘I don’t evaluate the patient.’ That just opens up huge risks for the EP,” Zun warns.
If an ED discharges a suicidal or homicidal patient who goes on to commit violence, the question is, “Who is liable?”
“The EP is always going to be liable,” Zun says. “It’s the same issue as when you call a consultant in the ED — who is ultimately responsible? The EP has the ultimate responsibility.”
If the outside service determines that the patient can go home, and the patient later commits a mass shooting, “there is a huge liability in that for EPs,” Zun says. “Is there a blanket immunity clause in the contract that says, ‘When a patient presents with a psychiatric complaint, we take on all liability?’”
In some EDs that lack proper resources, patients are sent home without any psychiatric evaluation or follow-up at all.
“I’m surprised that anyone could think that is good practice,” Zun says. “There is no other patient type ... that it’s OK to send home without seeing a consult.”
Many EPs lack training and experience in psychiatric assessments.
“There aren’t great tools, like we have to assess STEMI [ST-elevation myocardial infarction] or PE [pulmonary embolism] risk,” Zun says. “But that doesn’t mean we shouldn’t do our best, with a well-defined protocol. If you are not comfortable evaluating the patient, then get the knowledge to do that.”
While EPs don’t have an obligation to admit the patient, there is an obligation to conduct a thorough psychiatric assessment, Zun says, “and the EP then needs to document how he or she came to his or her decision.”
The ED chart should document recommended follow-up care, such as an appointment with a primary care physician or admittance to a substance abuse treatment center, to address the patient’s underlying disorder.
If the ED discharges the patient, Zun advises telling the patient who to contact if they’re feeling worse.
“In the ED, we tend to say, ‘come back if your condition worsens,’ but for psychiatric patients, it’s better to say, ‘here is a safety plan,’” Zun says. “It’s not just assessing them, but also providing them with appropriate follow-up as needed, and a good plan.”
REFERENCE
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Volk v. Demeerleer, 184 Wn. App. 337 P.3d (2014).
SOURCES
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Richard J. Bonnie, Director, Institute of Law, Psychiatry and Public Policy, University of Virginia School of Law, Charlottesville. (434) 924-3209. E-mail: [email protected].
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Eric J. Neiman, JD, Lewis Brisbois, Portland, OR. Phone: (971) 712-2802. Fax: (971) 712-2801. E-mail: [email protected].
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Jonathan D. Rubin, JD, Kaufman Borgeest & Ryan, New York City. Phone: (212) 994-6515. Fax: (212) 980-9291. E-mail: [email protected].
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Leslie Zun, MD, MBA, Chair, Department of Emergency Medicine, Mount Sinai Hospital, Chicago. Phone: (773) 257-6957. Fax: (773) 257-1770. E-mail: [email protected].
Common Allegations in Psych Med/Mal Suits
Here are some common allegations in suits involving psychiatric patients seen in EDs, according to Eric J. Neiman, JD, an attorney in the Portland, OR, office of Lewis Brisbois.
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Misdiagnosis or failure to diagnose the patient’s medical condition;
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False imprisonment for detaining a patient in the ED due to the danger posed to self or others;
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Failure to detain the patient per civil commitment laws, resulting in self-harm or harm to others;
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Failure to warn a potential victim of risk of harm from a patient;
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Patient harmed self or others in the ED due to inadequate safety plan;
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Patient eloped from the ED while waiting for assessment or admission to treatment bed, resulting in harm to patient or others;
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Unreasonable delays in admission or transfer.
“This claim really is directed to the hospital and is a function of a lack of community resources and inpatient treatment beds,” Neiman says. “But often, the emergency physician is pulled in.”
Paul S. Appelbaum, MD, Dollard Professor of Psychiatry, Medicine, & Law at Columbia University College of Physicians & Surgeons in New York City, is unaware of emergency physicians (EPs) being targeted by lawsuits arising out of any of the recent highly publicized mass shootings.
“In general, should such a case arise in the future, EPs will be held to a standard of care related to their specialty,” Appelbaum says. He adds that the likely focus of such a lawsuit would center on:
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whether the EP obtained or performed an adequate mental health evaluation;
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if the EP failed to do so, whether the performance of such an evaluation would more likely than not have led to actions, such as involuntary hospitalization, that would have avoided the subsequent harm the patient caused.
“In general, specialists are held to the standards of care of their specialty,” Appelbaum says. If something went wrong with the care of an ED patient, the question would become: “Was the care rendered by this EP within the standard of care for EPs in similar situations?”
“Framed in this way, the standard takes into account the constraints of the setting, which are outside the control of the physician,” Appelbaum notes. For instance, prompt psychiatric consultation may not be available.
“The major exception to this rule is that specialists who hold themselves out as providing the services of another specialty, such as an EP who undertook a course of psychotherapy with a patient, will be held to the standards of the second specialty,” Appelbaum says.
Such claims would be unlikely to arise during a short-term ED visit, when it’s clear that only urgent evaluation and care are being provided. “However, when patients are boarded in EDs for extended periods of time, ongoing treatment may be held to a higher standard, and should involve consultation from a psychiatrist or other mental health professionals,” Appelbaum says.
