Stop Psych-related EMTALA Violations
Don't improperly assess as "stable"
Robert D. Kreisman, JD, a medical malpractice attorney with Kreisman Law Offices in Chicago, says that while the Emergency Medical Treatment and Active Labor Act (EMTALA) does not deal specifically with medical malpractice complaints, following its guidelines regarding psychiatric patients will help EDs avoid both EMTALA violations and potential medical malpractice.
Kreisman explained that, like any patient presenting to the ED, psychiatry patients are covered under EMTALA. As such, they are subject to the same requirements of an appropriate medical screening, stabilizing treatment, and appropriate transfer.
However, for psychiatric emergency patients, the medical screening must focus not only on the psychiatric emergency, but also document any contributing medical factors, such as chronic illness, trauma, or intoxication.
"In fact, other than the obvious liability that comes from discharging a mentally unstable patient, there is also the potential to miss a medical emergency, such as a stroke or drug overdose, that can be masked by the psychiatric symptoms," says Kreisman.
While EMTALA does not require the ED to rule out every possible diagnosis, it does require that the ED determine if the patient's presenting complaints/condition constitute an "emergency medical condition," as that term is defined by EMTALA; if necessary to determine if an emergency medical condition exists, this may include testing for potential medical, toxic, or traumatic causes for the patient's behavior.
"Similarly, under medical malpractice law, physicians are required to meet the medical standard of care," says Kreisman.
The medical standard of care for stabilizing psychiatric patients would be similar to the EMTALA requirements, adds Kreisman. "Any breach of that standard of care could be considered medical malpractice and expose the ED to legal risks," he says.
In terms of performing an adequate mental health exam, EMTALA requires that the ED assesses the patient's suicide or homicide risks, disorientation, or threatening behavior that makes them a danger to themselves or others.
"Under EMTALA, psychiatric patients are classified as 'stable' when they have been protected from hurting themselves or others, at which point they may be transferred to another facility," says Kreisman. "However, if the psychiatric patient is to be discharged rather than transferred, they must no longer be a threat to themselves or others in order to be ruled stable."
Improper Assessment
"Most of the liability risks for an ED involve the improper assessment of a psychiatric patient as stable," says Kreisman.
In order to back up the decision to transfer or discharge a psychiatric patient, Kreisman says that emergency physicians should document that the patient was deemed stable based on either a medical evaluation, chemical restraints, or physical restraints.
"However, when using restraints in order to stabilize a patient for transfer, make sure to document that no other less restrictive measures were available, such as admitting the patient to the initial hospital," says Kreisman. "Otherwise, the ED might be at risk for violating patient rights requirements."
Because of the heightened potential for missing a medical emergency when examining psychiatric patients, ED staff should take extra care when screening psychiatric patients for both psychiatric and medical issues, says Kreisman.
"In an attempted suicide case, the most damaging written documentation would be anything that supports a misdiagnosis of the patient's mental status," says Kreisman. "In this situation, the treatment plan would not correspond to the needs of the patient."
The danger is that the ED fails to recognize the patient's suicidal ideation, and the discharged patient successfully commits suicide within a relatively short time after discharge. "In this type of lawsuit, the ED records and the lack of follow-up would be significant," says Kreisman.
In a missed medical emergency lawsuit, Kreisman says the lack of an appropriate medical examination would be damaging evidence, as would a complete failure to correctly diagnose the medical information contained in the chart.
For example, if a psychiatric patient presents with a history of head trauma, the failure to obtain a CT scan of the head could be a violation of the standard of care. Similarly, if an ED physician discharges a psychiatric patient despite evidence of a subdural hematoma on that CT scan, this could also be a violation of the standard of care.
"So while the medical chart can provide evidence that an ED met all EMTALA requirements and acted within the appropriate standard of care, it can also be used to prove that EMTALA violations or medical malpractice did in fact occur," says Kreisman.
However, Kreisman notes that medical malpractice occurs when a medical provider fails to meet the appropriate standard of care. "Physicians are held to a reasonable level of care. It does not require physicians to be perfect in emergency medical situations," says Kreisman.
Update
Just days after the print version of the August 2010 ED Legal Letter went to press, the Wisconsin Supreme Court issued its decision in Wisconsin Medical Society, Inc. v. Morgan. In a "win" for the Medical Society and physicians, the court ruled that the state legislature violated the state constitution when it voted to take money from the malpractice patient compensation fund ("the Fund") to balance the state budget. The court determined that the legislative enactment of the Fund created an irrevocable trust protected by the Constitution's Takings Clause – prohibiting an unconstitutional taking of property without just compensation. Therefore, the court ordered the state to pay the money back to the fund, including interest and lost earnings.