Special Report: Psychiatric Emergencies: A Medical-Legal Minefield
Special Report
Psychiatric Emergencies: A Medical-Legal Minefield
by Gregory P. Moore and James A. Pfaff, authors
There is no area of Emergency Medicine that incorporates as many associated unique legal issues as that of psychiatric emergencies. Not only is there responsibility for medical care and diagnosis but also specific legal concepts. This occurs in a setting which lacks optimal patient/physician communication. The following is a brief presentation of ED cases that illustrate these concepts.
Medical Management Issues:
a) Medical Clearance:
Case: A 43-year-old male with paranoid schizophrenia and diabetes presented to the ED. Before his examination, he disrobed. The police were called, and the patient was arrested for indecent exposure. A mental health evaluation was set up for two days later. The patient did not inform staff about his history of diabetes. He was found dead on the floor during his second day of incarceration. The cause of death was diabetic ketoacidosis. A verdict of $28 million was returned.1
Case: A 37-year-old woman was brought to the ED by ambulance after taking a reported 20 Darvon and 12 Vicodin. The patient was allowed to leave the ED on two occasions unsupervised. Her belongings were not checked. While on these breaks, it was alleged that she took 10 more Darvon tablets. No charcoal or lavage was done. The patient was transferred to the psychiatric ward. Forty minutes after arrival, she became comatose and died. Autopsy revealed death due to propoxyphene overdose. A settlement was reached via mediation for $475,000.2
When psychiatric patients present to the ED, they are frequently disruptive and consume an inordinate amount of staff resources. Thus, the physician is often pressured to superficially evaluate and prematurely dispose the patient. However, the incidence of organic disease in patients presenting with psychiatric complaints has been cited in the literature as varying from 19% to as high as 80%.3,4,5 Disastrous outcomes, with resultant liability may ensue if organic disease is missed. In the emergency department setting, drug and alcohol intoxication and withdrawal are the most common diagnoses in combative patients.6 Infectious disease, especially of the CNS, must be considered as well.
A thorough physical examination should be performed to search for an organic cause of violent behavior and uncover any resulting injury. Patients with persistently abnormal vital signs, a clouding of consciousness, disorientation, or focal neurologic findings are more likely to suffer from organic disease and require further diagnostic evaluation.
The ordering of diagnostic studies is controversial. Some recommend a variety of panels of lab and x-ray studies for psychiatric patients. Most recommend an individual approach, with diagnostic ordering dependent on suspicion of particular illness. A check of blood sugar and pulse oximetry should be obtained for all combative patients. Patients younger than 40 years with a prior psychiatric history and normal physical examination, including vital signs, who are also oriented and regain a calm demeanor without medical management, are unlikely to require further diagnostic testing.7
b) Appropriate Dispositions to avoid "Practicing Psychiatry"-
Case: A psychiatric patient with a history of schizophrenia and psychotic symptoms, moved to Los Angeles. He presented to the ED, relating that he was suffering from auditory hallucinations and depression and had prior suicide attempts. The patient was almost out of his medication, Zyprexa, and asked for a refill of his usual dose of 20mg taken daily. The ED physician decided to refill it at half of the previous dose. The physician noted it was his policy to only refill medication at typical doses when he was unfamiliar with the medication. Eight days later, the patient hanged himself. He now requires 24-hour care due to anoxic brain damage. The physician was sued for decreasing the dose of medication without a careful examination or psychiatric consultation. The ED physician settled for $1 million.8
Case: A husband noticed his wife Donna was acting depressed and lethargic just prior to his leaving on a two-week National Guard deployment. He asked his commander for permission to stay home. The commander told him he would have to get a doctor's statement, so the couple went to the ED on a Friday. The ED doctor diagnosed her with delusional psychosis and recommended admission. They refused this advice. So the ED physician arranged psychiatric follow-up 3 days later and prescribed vistaril. Two days later, Donna attacked her husband with a closet rod, threatening to kill him. As he went into another room to call 911, Donna beat and killed their 16-month-old son. At trial, she was not guilty by reason of insanity. The couple filed suit against the ED physician. A lower court granted summary judgement (Note: Summary Judgement is when a judge takes all of the evidence, and reviews it in the most favorable way for the plaintiff, but still decides that there is no case to pursue.) for the defendants but an appeals court over-ruled this decision and ordered a new trial. Expert testimony noted the standard of care is to get a psychiatry consult or admit a newly delusional patient, and that vistaril is not standard treatment for psychosis.9
It is well known that violence is very difficult to predict and assess, even in the psychiatric literature. The consequences of misdiagnosis may be catastrophic, as these cases illustrate. A low threshold for consultation should be maintained. Admission should be considered for violent patients who state specific intentions to hurt themselves or others, refuse to answer questions, are under the influence of drugs or alcohol, are psychotic, have an organic brain syndrome, or refuse to cooperate. A violent psychiatric patient should not be discharged without psychiatric consultation and documented agreement with discharge.10
Duty to Warn:
Case: A paranoid schizophrenic was admitted to a day hospital. During group meetings he voiced fears of hurting himself or others. He later shared that he was having thoughts of stabbing his mother. Later that day he was released to home, where he stabbed his father to death and stabbed his mother, with serious injuries resulting. The plaintiffs sued for failure to warn them of the threat from their son. The defense claimed that the family was aware of the patient's violent potential via prior events and there was no further duty to warn. The jury awarded $2 million to the patient's mother.11
Previously, physicians had a duty to care for and protect only the patient they had an established relationship with. This was dramatically changed by the famous court case of Tarasoff v Regents of California in 1976. In that case, a man confided his intent to kill a woman to his psychologist. The psychologist called the police, who briefly detained the man and then released him. Two months later, he killed the woman, and her parents successfully sued the psychologist for not warning her of the danger. From this case, a "duty to warn" arose. The court stated that if a provider is aware of a "foreseeable" harm, the provider must either control the conduct of the potential offender or warn the intended victim. The courts have held that this duty to warn supersedes physician-patient confidentiality.12
If a violent patient communicates intent to harm a foreseeable victim, the emergency physician should notify both law enforcement officials and the intended victim. For example, if the patient states, "I'm going to kill Sally Jones," or "I'm going to kill someone in the psychiatry clinic," a duty to warn is established. On the other hand, if the patient states, "I'm going to kill someone in the army," this does not represent an identifiable or foreseeable victim; thus, there is not a duty to warn.13
Not all states recognize the duty to warn. It is important to know what the courts require in the state of practice to comply with the law but it is very simple to warn those who are in danger and completely avoid the issue.
False Imprisonment and Battery:
Case: A 34-year-old homemaker presented to a community mental health center for counseling after being violently raped that same day. The staff felt she should stay at the facility but she decided to leave. Thus, she was held there by force, put in restraints, medicated and held by a physician's order over the phone. There was no physician on site to examine the patient. The next day, a physician examined the patient and she was released. She litigated and claimed that she was falsely imprisoned without mandatory state commitment proceedings as provided by law. The defendants claimed they had the legal and ethical right to hold the patient. The jury awarded $100,000 of punitive damages and $50,000 of general damages.14
Case: A 45-year-old woman voluntarily admitted herself to a psychiatric hospital for treatment of depression due to the trauma of a hot air balloon crash. Later that day, she asked to be released but was refused. Seven days later she asked again and was released. The patient sued, claiming she was falsely imprisoned. A jury awarded her $50,000.15
False imprisonment is when an actor intends to confine another person within fixed boundaries and accomplishes it with resultant awareness of the other party that they are confined and to their harm.16 Damages may be awarded, even in the absence of physical harm, for inconvenience, mental suffering, and humiliation. A standard medical malpractice insurance policy may not cover this area, leaving a physician personally liable. All states have laws defining the procedure for holding patients against their will, and the emergency physician should become familiar with the statutes of the state in which he or she practices. When physicians comply with state law and procedural paperwork, they are given great latitude in holding someone for a period of time to evaluate further and assess the danger. It is imperative to complete required forms when restraining or involuntarily committing a violent patient. Documentation should include that 1) an emergency existed, 2) there was inability to obtain consent, and 3) the treatment was for the patient's benefit.10,13
Battery is a closely related issue to false imprisonment when psychiatric emergencies occur, and when patients litigate in one area, they usually include the other. Battery is the intentional infliction of a harmful or offensive bodily contact. Victims of battery do not necessarily have to be physically injured and may merely suffer damage to their dignity. "Intentional" simply implies that the actor wanted to do the action, regardless of whether they were trying to help the patient. (For example: a surgeon who operates without consent and is trying to actually help the patient can be sued for battery.) Courts are very protective of the "sanctity of the person," "bodily integrity," and "personal autonomy" as a fundamental personal right. A competent patient should never be touched or have a procedure done without their consent, or liability for battery may follow. Damages awarded may include, "general," such as compensation for the harm done, and "special," such as compensation for medical charges, lost wages, and other expenses. These damages, like false imprisonment, may not be covered by standard medical malpractice insurance.14
Battery may be legally allowed when a patient is in an emergency situation and incompetent or represents a danger. In 1982, the Supreme Court supported the use of restraints to protect patients and others if it was in the best interest according to reasonable medical judgment.17 In this case; a young, mentally handicapped male with repeated episodes of violence was restrained and involuntarily committed. The court stated, "We have established that the patient retains liberty interests in safety and freedom from bodily restraint. Yet these interests are not absolute, there are occasions in which it is necessary for the state to restrain the movement of residents — for example, to protect them, as well as others from violence." The Model Penal Code allows "an exception from the assault statute for physicians … who act in good faith in accordance with accepted medical therapy."18
4) Duty to Protect:
Case: A 32-year-old homeless man was taken to the ED after he threatened to kill his psychologist. It took six police officers to confine him on a gurney in four-point restraints on a back board. He continued his aggressive behavior and was seen by the ED physician. The patient was given a sedative to control his behavior. He was turned on his stomach with the backboard on top of him. He complained of inability to breath. A towel was loosely placed in front of his mouth to prevent him from further spitting on personnel. A sheet was placed over top of him to prevent further stimulation. When the patient was wheeled down the hall for placement in an ambulance, it was noted that his hand was blue. He was noted to be in respiratory and cardiac arrest, and was unable to be resuscitated. Autopsy revealed death due to positional asphyxia. A verdict for $2 million was returned.19
The taking of one's liberty via restraints is considered significant, according to the courts. However, once an authority has taken another's liberty, then they become responsible for their health and well-being. An analogy would be a person sent to prison. The jail is now responsible for the nutrition and health of that person via the fiduciary relationship created. There have been a number of complications that have been reported with the use of restraints. These include aspiration pneumonia, circulatory obstruction, cardiac stress, skin breakdown, poor appetite, dehydration and accidental death.20 Most sudden death occurs when a patient is restrained in the prone position, with their hands behind their back. This should be avoided. Table 1 summarizes key points in restraint usage, and follows federal guidelines.
1. Protection and preservation of patient rights, dignity, and well being. 2. Use based on patient's assessed needs. 3. Use of least restrictive methods. 4. Safe application and removal by competent staff. 5. Monitoring and reassessment of the patients during use. 6. Meet patient needs during use. 7. Time limitation of orders that are provided by licensed practitioners. 8. Documentation of the medical record. |
References
1. Estate of Reverend Ronel Huggins v Eastern Health Care Medical Malpractice: Verdicts, Settlements, and Experts. V 22, N 6, p 24, July 2006
2. Anonymous v Anonymous Hospital, Anonymous Emergency Room Physician, Anonymous Nurse and Anonymous Psychologist. Medical Malpractice: Verdicts, Settlements, and Experts. V 21, N 6, p18, June 2005
3. Tintinalli JE, Peacock FW, Wright MA: Emergency medical evaluation of psychiatric inpatients. Ann Emerg Med. 23:859 (1994)
4. Hall RCW, et al: Physical illness manifesting as psychiatric disease: Analysis of a state hospital inpatient population. Arch Gen Psychiatry. 37:989 (1980)
5. Zun LS, Leiken JB,Stotland N, et al: A tool for the emergency medicine evaluation of psychiatric patients. Am J Emerg Med. 1994; 24:672-677.
6. Dubin WR, Weiss KJ: Emergency psychiatry. In Michels R, et al (eds): Psychiatry, vol 2. Philadelphia, Lippincott-Raven, 1997, pp 1-15
7. Korn CS, Currier GW, Henderson SO: "Medical clearance" of psychiatric patients without medical complaints in the emergency department. J Emerg Med. 18:173 (2000).
8. Doe Patient v Roe Hospital, Roe Emergency Physician and Roe Psychiatrist. Medical Malpractice: Verdicts, Settlements, and Experts V 20, N 5, May 2004
9. Brown v Carolina Emergency Physicians, P.A. No.97-CP-23-1347, Dec 17, 2001
10. Rice MM, Moore GP: Management of the violent patient: Therapeutic and legal considerations. Emerg Med Clin North Am. 9:13 (1991)
11. Dorothy Mcgrath, Judith Guthrie, Estate of Robert B. McGrath v. Barnes Hospital, Washinton University, Washington University Medical Center, Micaheal R. Jarvis, John Zempel, H. Ying, Kent Greenberg, E. Nelson, MD et al. Missouri Circuit Court Case No. 992-00130
12. Tarasoff v Regents of University of California 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14; 1976.
13. Louis Kao, Gregory P. Moore. The Combative Patient in Rosen's Emergency Medicine: Concepts and Clinical Practice MOSBY ELSEVIER, Philadelphia, PA 2006 p 2969
14. Janice Barker v. Netcare Corporation, Liberato Dasobas MD, Ruby Scott, and Patrick Jones, RN Franklin County Court of Common Pleas Ohio 98 CV-09-7239
15. Lynn G. Lenfestey vRobert T. Held Broward County FL Circuit Court Case No. 96-10332 05
16. Restatement (Second) of Torts
17. Youngberg v Romeo 457 U.S. 307; 1982
18. Wexler DB: Seclusion and restraint: Lessons from law, psychiatry, and psychology. Int J Law Psychiatry. 5:285 (1982).
19. Estate of Doe v ABC Ambulance Co. et al. Medical Malpractice: Verdicts, Settlements, and Experts V 17, N 3, March 2001, p 20
20. Zun LS: A prospective study of complication rate of use of patient restraint in the emergency department. J Emerg Med. 2003;24:119-124.
There is no area of Emergency Medicine that incorporates as many associated unique legal issues as that of psychiatric emergencies.Subscribe Now for Access
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