Legal Issues in ED Discharge of Psychiatric Patients

1. Legal Issuesin ED Discharge of Psychiatric Patients Susan Stefan, Esq. National Association for Rights Protection and Advocacy Portland, ME Sept. 9, 2017

2. ED REALITIES: LIVED EXPERIENCE • “I've noticed a very peculiar practice, both of the times I was held in the ER waiting for a bed in a psych facility. This is the tendency of ER staff to lock someone in a room with none of their personal belongings and no human contact for a prolonged period of time and then show up periodically to ask if that person is feeling better. I've always wanted to ask these staff members what being locked alone in a little room was expected to do to improve my state of mind.”

3. Purpose • Examine newly emerging clinical and legal standards in emergency department care of people in the ED primarily for psychiatric reasons • Discuss ways to use these standards to both increase willingness to discharge psych patients from the ED and improve on the care they receive during their stay

4. Traditional Views of ED Practice Toward People w/Psych Disabilities • ED responsibility to assess and determine disposition • Doctor/Specialist knows best • Hospitalization is the gold standard: “find a bed” • Psychiatric crisis inherently threatens patient’s and family’s capacity to make informed decisions • Risk focused care and clinical care do not conflict

5. The New Paradigm • Hospitalization can be regressive, traumatizing, and cost inefficient • Hospitalization is more often treatment of last resort • Good clinical care may involve taking risk and it is the thoroughness and communication of awareness of risk that protects patients and treaters alike • Responsibility for care of self and avoidance of risk is shared by patient provided he or she is not grossly psychotic or cognitively impaired

6. An Alternative PES Paradigm cont. • Crisis evaluation focuses on engaging patient and family in treatment • Crisis evaluation is not solely triage but rather treatment • The best crisis work reveals and utilizes patient’s strengths, inspires hope, and meets patient where he or she is

7. Alternative Paradigm Rationale • “ER staff should remember that people in emotional crises are still people. If they treat such individuals as if they are incompetent and violent, they are more likely to act as such. It may feel less risky to forcibly hospitalize someone who mentions a desire to hurt themselves, but this risk must be weighed against the risk that acting against the will of a person who already feels hopeless is likely to accomplish little more than causing more self-destructive thoughts and encouraging that person to remain silent about such thoughts in the future.”

8. Liability Myths & False Frameworks • Discharge decision rather than assessment process drives liability • Liability can be avoided by admitting psychiatric patients • Discharging psychiatric patients is the only risk/liability concern • Bad outcomes inevitably lead to liability • ED has absolute responsibility for psychiatric patient safety

9. Realities of Legal Liability • It’s not the outcome that drives liability, it’s the quality of the assessment process • Discharge-related bad outcomes are not the only liability risk: EMTALA, ADA, negligence related to use of force in the hospital, including restraint • Liability is generally found only for gross errors or violations of federal, state or hospital regulations and policies

10. Cerbelli v. City of New York, 600 F.Supp.2d 405, 414 (E.D.N.Y. 2008) • “If liability were imposed on the physician or the State each time the prediction of future course of mental disease was wrong, few releases would ever be made and the hope of recovery and rehabilitations of a vast number of patients would be impeded and frustrated. This is one of the medical and public risks which must be taken on balance, even though it may sometimes result in injury to the patient and others.”

11. Sheron v. Lutheran Medical Center, 18 P.3d 796, 799 (Colo.App. 2001) • “Defendants argue that…plaintiff’s case was premised on alleged negligence in discharging Sheron…This argument mischaracterizes plaintiff’s claim. Rather than focusing on the discharge itself, plaintiffs more specifically argue defendants breached their duty to perform an adequate mental status exam and risk assessment.”

12. Examples of findings of liability • Woman w/bipolar disorder recently d/c from psych hospital, went off meds, asks for admission for severe depression; when ED staff find she has no health insurance, they don’t seek recent hosp. records; instead offer her cab fare to state hospital (13 million dollar verdict reduced by 50% for decedent’s comparative fault ) (Illinois)

13. More…. • ED psychiatrist signs blank discharge papers; man kills himself w/in 24 hours of d/c which no one present at the hospital had authority to grant; no liability for ED psychiatrist (330,000 liability for doctors who were present) (Mass.)

14. Underestimated Liability Risks • Changing/reducing/eliminating patient’s regular psychiatric medication • Use of force/restraints • Failure to diagnose medical problems • Lack of communication = Bad Outcomes • Involuntary detention or medication based on inadequate evaluation • Seeking consultation and then proceeding without regard to it • Ignoring salient facts presented by accompanying family/friends

15. EMTALA: The Anmed Case • ED must not only screen for EMC but stabilize (i.e. treat) those conditions…. • The days of people on Medicaid waiting days in the ED when the hospital has a psychiatric unit upstairs staffed with mental health professionals may be over

16. Detention of DW v. DSHS (Wash. 2014) Violation of the state’s commitment statute to board psychiatric patients in emergency departmentsHow does your state statute compare?

17. EDs AND CIVIL COMMITMENT • THESE CASES TURN ON STATE LAW, BUT PROVIDE INTERESTING IDEAS: • Earle v. City of Huntington, (S.D.W.Va. 2016) • Newton-Wellesley v. Magrini (Mass. 2008) • Commonwealth v. Accime (Mass. 2017) • Kowalski v. St. Francis Hospital and Health Centers (New York 2013)

18. EDs and ImmunitiesClifford v. Maine General Medical Center (Me. 2014)Williams v. Peninsula Regional Medical Center (Md. 2014)Pena v. Dallas County Hosp. Dist. 2013 U.S.Dist.LEXIS 190160 (N.D.Tx. 2013)

19. Joint Commission Sentinel Alert #56: Detecting and Treating Suicidal Ideation in All Settings 1. Increased requirements of what must be provided to suicidal patients on discharge2. Increased requirements of suicide risk assessment3. Increased requirement of staff education about de-escalation and care of patients