Psychiatric Patients Pose Many Legal Risks for EDs; Creative Solutions Needed
April 1, 2023
By Stacey Kusterbeck
EDs continue to see a surge of psychiatric patients while facing staffing shortages. The legal exposure is significant, and leaders must find creative ways to reduce these risks, according to Leslie Zun, MD, professor in the departments of emergency medicine and psychiatry at Rosalind Franklin University School of Medicine and Science/The Chicago Medical School. Zun presents several scenarios that are central liability risks for EDs:
• Suicidal patients may harm themselves while in the ED. “The issue is that we need to maintain safety while the patient is in the ED,” Zun says. Staff must be cognizant that suicidal patients can injure themselves in unexpected ways. Zun is aware of a patient who drank a bottle of topical antiseptic while waiting to be admitted. “We need to ensure that the patient is watched, that there is no material they can harm themselves with, and if they go to the bathroom that anything with ligature risks is removed,” Zun offers.
Reassessment of suicidal patients also is important. Typically, a psychiatrist, social worker, or mental health technician handles this task. But ongoing reassessments are difficult if the ED is short-staffed. Some departments are using telepsychiatry to fill this gap. “But EDs may not have that resource, or it may be very limited,” Zun laments.
One alternative is crisis stabilization units that allow for 23-hour observation of psychiatric patients.1 However, not all EDs can manage that unit. “That is part of the dilemma of emergency medicine these days. You do your best to see the patient and re-evaluate them, but sometimes that is delayed,” Zun says.
Some patients initially report they are suicidal, but improve at some point during the ED visit. “Just because a patient says, ‘I’m suicidal’ doesn’t mean they need to be hospitalized,” Zun explains.
It is possible some suicidal patients can be discharged safely. “For the low-risk suicidal patient, there’s a whole plan that you have to follow if you’re going to send them home. But with appropriate follow-up, that may be a reasonable alternative,” Zun adds.
• Psychiatric patients may leave without notifying anyone. Patients may walk (or run) out the door at any point during the visit. To prevent this, one-on-one observation is ideal. If departments are short-staffed, “then they have to be a little bit more creative,” Zun says.
Perhaps an observer could monitor two patients simultaneously by sitting in front of multiple cameras. Some EDs place psychiatric patients close to the nurse’s station. “These are not perfect alternatives. But they are reasonable alternatives,” Zun says.
If administrators need additional staff to help with psychiatric patients, one approach is to use peer support specialists.2 “These are individuals with lived experience who are provided with training and certification as mental health workers who can assist in the ED,” Zun explains.
Regardless of exactly how suicidal patients are observed — by sitters, peers, security, or others — EDs “must find the appropriate staff or must look at reasonable alternatives,” Zun stresses. “Doing nothing is not OK.”
• Some psychiatric patients tell staff they want to leave against medical advice. The first concern is whether the patient has decisional capacity to leave the ED without completing treatment.
“Just because the patient is able to answer some questions doesn’t mean that patient is competent,” Zun cautions.
To determine if the patient has decision-making capacity, a more in-depth evaluation is needed. Decision-making capacity is an important consideration if the patient is clinically intoxicated, or there is a question of intoxication. A psychiatric consult is not necessary to ascertain decision-making capacity. “Most EPs have the ability to determine if somebody is competent or not, meaning they don’t have significant dementia or delirium, or other disorders of substances that would impair their ability to make judgments,” Zun says.
EDs can use screening tools (e.g., the Mini-Mental State Examination) to assist in making this determination. If the patient is competent to make the decision to leave, clinicians need to discuss what could happen; provide the patient with risks, benefits, and alternatives; and ensure the patient actually understood this information. If the provider concludes the patient is not competent, Zun says clinicians should do what is in the patient’s best interest. “For the most part, that would be to ensure that they stay in the ED to get properly admitted or cared for, or whatever they might need,” Zun suggests.
Reduce Risks
Common allegations in malpractice litigation involving patients with a psychiatric complaint are failure to properly diagnosis, treat, or hospitalize, reports Rebecca Summey-Lowman, senior advisor for risk solutions at Curi Advisory. “Misdiagnosis of aberrant behavior in a patient with a known psychiatric pathology is a common cause of litigation,” she says.
Summey-Lowman advises EDs to reduce risks in a few ways:
• Consult a psychologist or psychiatrist when managing patients with a new significant psychiatric condition.
• Perform a psychiatric assessment and a physical exam. “Medical conditions can be overlooked that are the primary or secondary cause of behavioral health conditions,” Summey-Lowman warns.
The ED medical record should reflect the fact the evaluation showed no evidence that an acute medical condition caused or contributed to the patient’s behavior.
• Ensure psychiatric patients are screened not only for suicidal ideation upon admission, but also are re-evaluated at intervals while boarded in the ED. “Results of the suicide risk screening should drive the patient monitoring and observation plan,” Summey-Lowman says.
Although risk assessment is an inexact science, the goal is to assess the patient’s history, current mental state, home environment, and specific suicidal thoughts or behaviors. “It is imperative to gather as much history from the patient, family, authorities, and records,” Summey-Lowman stresses.
That includes information from first responders, and noted concerns of family or friends at triage. “In a legal case of malpractice involving suicide, issues of foreseeability will be examined,” Summey-Lowman adds.
Remember EMTALA Duties
EDs also face liability exposure related to transferring psychiatric patients to other facilities. Some of those risks stem from EMTALA requirements to arrange an appropriate transfer to a receiving facility. “The detention process, which is usually the first step toward involuntary commitment, often determines where and how a psychiatric patient will be transferred to an inpatient facility for the involuntary behavioral health commitment,” explains Mary C. Malone, JD, a partner in the Richmond, VA, office of Hancock Daniel.
Generally, detentions are legal holds of patients who are considered a threat to self or others. Thus, the patient can be evaluated for involuntary commitment. A detention order may be issued when the patient already is at the ED, or may be issued before arrival to the ED. State laws vary on those issues. “But CMS expects hospitals not to let state laws interfere with the hospital’s EMTALA responsibilities,” Malone says.
Regardless of state law, hospitals must determine if the receiving facility is appropriate for stabilization of the psychiatric emergency, and whether the mode of transport is appropriate. Malone offers some examples of transfers that would not be “appropriate” under EMTALA:
• Transfer to a freestanding psychiatric hospital when the patient also needs medical services the receiving hospital cannot provide;
• Transfer to a facility that has not accepted the patient before transport;
• Depending on the patient’s condition, transport by private care or in a law enforcement vehicle may not be appropriate.
If the patient’s psychiatric condition qualifies as an emergency medical condition, EMTALA requires the hospital to stabilize that patient or transfer the patient for an inpatient admission. “With respect to EMTALA risks, CMS frowns on the boarding of patients in the ED,” Malone notes.
The expectation is the patient be transferred as quickly as possible. If the patient’s transfer is delayed, he or she must be continuously monitored and provided with whatever treatment is available to the hospital until the transfer can happen.
The continuous monitoring of behavioral health patients who cannot be timely placed is “a huge burden on the ED,” Malone admits. However, the ED must continue to provide services within its capacity and capability until the patient is stabilized or discharged.
Even though the decision was made to transfer the patient for inpatient admission, it is important for emergency providers to know the hospital remains responsible for the patient until arrival at the receiving hospital. It is possible a patient with no history of cardiac problems and no symptoms indicating the presence of a possible cardiac issue suffers a heart attack en route to the accepting facility.
In a case like that, if the ED maintained good documentation to show there was no reason to suspect the patient might experience a cardiac event, then the hospital’s EMTALA liability should be unlikely, according to Malone.
On the other hand, hospitals may face major EMTALA issues if the provider’s exam was inadequate. It also is problematic if clinicians identified medical issues that could not be appropriately treated in a psychiatric facility with no acute care services, but transferred the patient anyway. In such cases, says Malone, “the transfer is considered inappropriate under EMTALA — and the receiving facility has an obligation to report the sending hospital to CMS for that inappropriate transfer.”
REFERENCES
1. The Council of State Governments Justice Center. Tips for successfully implementing crisis stabilization units. October 2021.
2. Heyland M, Limp M, Johnstone P. Utilization of peer support specialists as a model of emergency psychiatric care. J Psychosoc Nurs Ment Health Serv 2021;59:33-37.
Crisis stabilization units, peer support specialists, and targeted screening tools can help leaders fill some gaps.
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