ED Could Be Liable if Patient Harms Self Post-Discharge
Chart's contents take center stage
If a psychiatric patient harms himself or someone else after being transferred or discharged from your ED, can he or she successfully sue for malpractice? If so, would a jury agree that the ED was at fault? That depends, in large part, on the details contained in the patient's chart.
"If the examining physicians documented the patient's history and suicidal tendencies well, removed any potentially lethal objects, and made referrals to consulting physicians, all the better for defending the lawsuit," says Robert D. Kreisman, a medical malpractice attorney with Kreisman Law Offices in Chicago.
The medical chart will serve as the basis of the ED's defense, according to Kreisman, "and, as such, needs to document that the patient was medically stable at the time of discharge." He says that the ED chart should include these items:
- Evidence that the ED physicians, nurses, and clinicians were alert to the possibility of suicide attempts and carefully laid out the follow-up treatment plan.
- A detailed medical evaluation documenting the patient's subjective complaints and the physician's observations. "This can help support the ED's decision to discharge or transfer a psychiatric patient," says Kreisman.
- Resources for follow-up given to the patient, including telephone numbers for a suicide hotline, doctors, and therapists.
- Non-subjective reports, such as appropriate laboratory tests, radiology exams, or even a patient's vital signs. "These provide the hard evidence that can make or break a case where an underlying medical emergency had been missed," says Kreisman.
Risks Increasing
Eight percent of all ED visits in 2007 involved a mental health condition, according to the Agency for Healthcare Research and Quality's Nationwide Emergency Department Sample. "The number of psychiatric patients are increasing in the ED. This is a high-risk patient population," says Mariann Cosby, RN, principal of MFC Consulting, a Sacramento, CA-based legal nurse consulting firm.
Andrew Garlisi, MD, MPH, MBA, VAQSF, medical director for Geauga County EMS and codirector of University Hospitals Geauga Medical Center's Chest Pain Center in Chardon, OH, says that the "supply and demand imbalance" faced by EDs is increasing risks in this area.
"There is a growing and seemingly unlimited demand placed on the emergency teams, and a relative dearth of emergency department manpower and resources," says Garlisi. "Given this, it is no surprise that patients with certain psychiatric illnesses and emergencies may stress an already overburdened emergency system. They may fall through the proverbial ED cracks."
The biggest legal risks involving discharge of a psychiatric patient are anything that shows that the ED physician "knew, or should have known, that the patient was at risk," says Gregory P. Moore, MD, JD, an attending emergency medicine physician at Madigan Army Medical Center in Tacoma, WA.
Moore says that a plaintiff's lawyer will look for "clear evidence of danger that was not acted upon by the physician. ED physicians are notoriously not experts at predicting violence."
Subtle Presentations
Cosby says to remember that only a small percentage of psychiatric patients present to the ED with overt signs and symptoms of emotional or behavioral disorders, such as attempted suicide.
"The majority present with other issues, such as alcohol abuse, depression, or anxiety," says Cosby. "To reduce liability risks, ED nurses should be aware of these other signs of a potential underlying psychiatric problem, and intervene appropriately."
If the patient is deemed to be suicidal or homicidal based on the screening, then a safe environment must be provided to ensure the safety of the patient, staff, and visitors.
"The nurse should err on the side of caution if there is any doubt, and perform the screening rather than not," says Cosby. "Using this methodology, the ED nurse's legal risks associated with these type of patients can be reduced."
Psychiatric patients "can and do present with a constellation of signs and symptoms," notes Garlisi. "These presentations can be flagrant, such as violent acute psychotic episodes, suicide attempts, hallucinations, or delusions, but they can be relatively subtle."
Examples are mental status change in an elderly patient, anxiety symptoms masked as a physical complaint, and patients with vague symptoms caused by depression. "One of the biggest challenges and risks to the emergency staff is the assessment, diagnosis, risk stratification, and disposition of the patient who may be suicidal," says Garlisi.
The suicidal patient also may have coexistent alcohol and/or drug intoxication, adds Garlisi, or may deny suicidal ideation or intent in order to gain the freedom to follow through on the suicide plan. "Document the patient's remarks, using quotes whenever appropriate," he advises. To reduce risks, consider these practices:
Take precautions to prevent the patient from harming self or others.
"Psychiatric patients should not be able to complete a suicide while on the hospital premises, especially when in an ED 'safe' room," says Scott I. Palumbo, a health care attorney with Palumbo Wolfe in Phoenix, AZ. "EDs should consider having a designated security officer to watch the patient." The room should have no windows, no curtains, no call light cord, no sharps in the room, no sheets, and no access to roof through air vents, says Palumbo.
Garlisi says these interventions may be needed:
- Close observation in a room designed for safety;
- Removal of clothing;
- Searching the patient for weapons or drugs;
- Notifying security and/or police officers for added protection;
- Sedation or physical restraints.
Perform a thorough medical screening examination to rule out coexisting traumatic and/or medical conditions.
"Beware of the intoxicated violent patient with head injury, or the inebriated patient with hypomagnesemia, hypoglycemia, or a mixed drug overdose," says Garlisi.
Educate staff on how to safely search and restrain a psychiatric patient.
"Many psychiatric patients are combative, or arrive with sharps on them," says Palumbo. "During these efforts, the staff is exposed to injury. This creates significant workers' compensation liability for the institutions."
Ensure proper credentialing of mental health providers.
An ED may not have an in-house or on-call psychiatrist who can evaluate the patients and prescribe medications, says Palumbo. Instead, some hospitals contract with the local Regional Behavioral Health Authority to have masters-level social workers and counselors evaluate patients.
"Many of these providers do not have experiences with danger-to-self or danger-to-others patients," says Palumbo. "Many do not know the variables involved in the 24- to 48-hour hold options, restraint options, ability to transfer, and involuntary admission."
They also cannot prescribe medications, so they have to work with ED doctors to medicate those patients requiring medication. "To avoid liability exposure when treating a psychiatric patient, it is critical that the facility have a properly credentialed mental health provider reasonably available at all times," says Palumbo.
If a psychiatric patient harms himself or someone else after being transferred or discharged from your ED, can he or she successfully sue for malpractice? If so, would a jury agree that the ED was at fault? That depends, in large part, on the details contained in the patient's chart.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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