EMTALA and Retention Over Objection

[aim-agm]

Does EMTALA itself create any obligation to prevent a patient from leaving the ED of their own accord (i.e. involuntarily hold them), particularly incapacitated and dangerous persons? If so, does this obligation extend beyond other applicable statute (e.g. mental health law) and common law?

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[WilcoWorld]

I'm not an attorney, but I don't think so. There remains civil liability and criminal statues (in some states) that you could be charged with, but I don't think it would be an EMTALA violation if a patient eloped.

 

[RoyBasch]

This is not an EMTALA violation but could be considered malpractice if harm comes to a patient who is allowed to elope despite a lack of capacity to make medical decisions and lack of competence to understand the consequences of those decisions (including the consequences of forgoing care).

That being said the operative word here is “could.” This varies hugely on case by case basis and from different jurisdictions to jurisdictions. You will not find completely consistent interpretation.

An example that comes to mind is alcohol intox patients.

In one case that comes to mind the patient was allowed to leave the ER despite being intoxicated and was promptly struck by a vehicle resulting in quadriplegia. The discharging er physician was found liable for damages.

In another very similar case the physician was found not liable.

 

[Tiger26]

It really varies based on the laws of your state. In WI, I can put someone on an alcohol incapacitation hold but I can’t involuntarily hold psych patients unless I get it approved by police or a specified mental health worker from the county.

 

[thegenius]

Wait a second. It’s a pretty easy law to read. If you think there is an emergency medical condition you are obligated to stabilize the patient. This includes psychiatric emergencies.

Patients can refuse treatment under section (b)(2) of the statue, and you have to do all reasonable attempts to secure that refusal in writing. You must also talk about the risks and benefits. The actual text reads: “informs the individual (or a person acting on the individual’s behalf) of the risks and benefits to the individual of such examination and treatment, but the individual (or a person acting on the individual’s behalf) refuses to consent to the examination and treatment.”

I think while not explicitly implied in this text, I believe the doc must make sure the patient can make informed medical conditions, and if they cannot them they cannot let the patient go.

For instance, theoretically, if a patient comes to the ER with a knife impaled in his neck, and he later says “I don’t care about the knife, it’s not a problem, and I don’t want to miss my haircut appointment in the next 2 hours”, it is reasonable to assume this patient for whatever reason cannot make an informed medical decision or does not have capacity to make an informed medical decision, and must be offered stabilizing treatment.

That’s my belief. I think this could be an EMTALA violation among other legal problems.

 

[aim-agm]

This is not an EMTALA violation but could be considered malpractice if harm comes to a patient who is allowed to elope despite a lack of capacity to make medical decisions and lack of competence to understand the consequences of those decisions (including the consequences of forgoing care).

Thanks! I couldn't find resources particularly if EMTALA had particular intersection with involuntary hold, so this is helpful. The reason I'm looking into (as a psychiatrist) it is the thought occurred to me that when consulting or liaising with ED regarding holds that I'm not missing something, as I've gathered that EMTALA can be full of nasty surprises.

Relatedly, in your example, at least in my state, that is (in a vacuum) malpractice but if that incapacitated patient isn't imminently dangerous then it can be argued (or is the case) that it would be an act of felony false imprisonment to physically prevent them from leaving. Of course everyone does it anyway because it is what is right by the patient, but there are significant implications.

 

[aim-agm]

Wait a second. It’s a pretty easy law to read. If you think there is an emergency medical condition you are obligated to stabilize the patient. This includes psychiatric emergencies.

Patients can refuse treatment under section (b)(2) of the statue, and you have to do all reasonable attempts to secure that refusal in writing. You must also talk about the risks and benefits. The actual text reads: “informs the individual (or a person acting on the individual’s behalf) of the risks and benefits to the individual of such examination and treatment, but the individual (or a person acting on the individual’s behalf) refuses to consent to the examination and treatment.”

I think while not explicitly implied in this text, I believe the doc must make sure the patient can make informed medical conditions, and if they cannot them they cannot let the patient go.

For instance, theoretically, if a patient comes to the ER with a knife impaled in his neck, and he later says “I don’t care about the knife, it’s not a problem, and I don’t want to miss my haircut appointment in the next 2 hours”, it is reasonable to assume this patient for whatever reason cannot make an informed medical decision or does not have capacity to make an informed medical decision, and must be offered stabilizing treatment.

That’s my belief. I think this could be an EMTALA violation among other legal problems.

I read the law, while it is easy to read and is fairly clear when the patient (or decision maker) is capacitated but much less so when they are not.

Some of this hinges on the statutory definitions, which I've included below. On the one hand, the definition of "Transfer" excludes elopement. On the other hand, the (1)(a) obligation is to provide "such treatment as may be required to stabilize the medical condition." Although the definition of "to stabilize" references transfer, it appears to relate to a hypothetical transfer (i.e. if they transferred, would there be deterioration) which could mean that if a patient elopes. While this interpretation would mean that there is a failure meet the obligation "to stabilize" even if the patient that eloped is capacitated, it is more significant for incapacitated patients for whom involuntary holds may be part of necessary medical treatment.

The (b)(2) exception appears inapplicable in the case of an incapacitated patient (in absence of capacitated decision maker) as they can only be objecting/nonobjecting, rather then consenting/nonconsenting. Another issue is that the (a) requirement for an MSE doesn't have any exceptions in the statute, as the (b)(2) exception only applies to (b)(1).

Further problems arise because the EMTALA requires a negative assertion (expectation they won't deteriorate) while commitment laws require positive assertions (expectation they are dangerous), potentially leading to conflict in ambiguous cases.


DEFINITIONS:

(4)The term “transfer” means the movement (including the discharge) of an individual outside a hospital’s facilities at the direction of any person employed by (or affiliated or associated, directly or indirectly, with) the hospital, but does not include such a movement of an individual who (A) has been declared dead, or (B) leaves the facility without the permission of any such person.

(A)The term “to stabilize” means, with respect to an emergency medical condition described in paragraph (1)(A), to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or, with respect to an emergency medical condition described in paragraph (1)(B), to deliver (including the placenta).

 

[southerndoc]

An example that comes to mind is alcohol intox patients.

In one case that comes to mind the patient was allowed to leave the ER despite being intoxicated and was promptly struck by a vehicle resulting in quadriplegia. The discharging er physician was found liable for damages.

In another very similar case the physician was found not liable.

In general, EDs and its staff have no obligation to hold an intoxicated patient against his or her will. In fact, it could be a violation of the person's civil rights to do so.

I am not aware of a single case where an ER physician or the ER was held liable for not holding an intoxicated patient. On the contrary, there have been several cases where courts have found that the ER has no obligation to hold an intoxicated person.

The most prominent case that comes to mind is Kowalski vs St Francis Hospital and Health Centers (2013). This is the one you reference where the patient eloped from the ER, was struck by a vehicle, and became quadriplegic. The New York Court of Appeals held that the ER had NO duty to prevent the intoxicated patient from leaving the hospital.

 

[southerndoc]

Wait a second. It’s a pretty easy law to read. If you think there is an emergency medical condition you are obligated to stabilize the patient. This includes psychiatric emergencies.

Patients can refuse treatment under section (b)(2) of the statue, and you have to do all reasonable attempts to secure that refusal in writing. You must also talk about the risks and benefits. The actual text reads: “informs the individual (or a person acting on the individual’s behalf) of the risks and benefits to the individual of such examination and treatment, but the individual (or a person acting on the individual’s behalf) refuses to consent to the examination and treatment.”

I think while not explicitly implied in this text, I believe the doc must make sure the patient can make informed medical conditions, and if they cannot them they cannot let the patient go.

For instance, theoretically, if a patient comes to the ER with a knife impaled in his neck, and he later says “I don’t care about the knife, it’s not a problem, and I don’t want to miss my haircut appointment in the next 2 hours”, it is reasonable to assume this patient for whatever reason cannot make an informed medical decision or does not have capacity to make an informed medical decision, and must be offered stabilizing treatment.

That’s my belief. I think this could be an EMTALA violation among other legal problems.

CMS EMTALA and litigation are two different things. However, a patient has the right to refuse treatment. It is a gray area for what intoxicated patients can and cannot do. We've all seen intoxicated patients who are clinically sober at 200 and would withdraw at 100. Then we've seen those at 150 who are so inebriated they can't make a decision to save their life.

The situation you cite is not a good example. This patient may seem irrational to us, but he has articulated that he knows the knife is there, and he is giving you a reason why he cannot stay. It has foresight to think that he has consequences for missing his hair appointment, and as such, it can be argued that he has foresight into the consequences of his refusal. I once had a STEMI patient refuse to go to the cath lab because it was "just anxiety" and he had a court appearance to go to. He signed out AMA only to return 90 minutes later after suffering cardiac arrest on his way to court. I cannot force someone to go to the cath lab just as I can't force someone to undergo removal of a knife from their neck. Just because their decision seems irrational to us does not mean they don't have capacity to make decisions.

In general, CMS will default to a person's civil rights. Holding someone against their will with questionable capacity will almost always err on the side of the medical staff. It's a huge issue to take someone's civil rights away (you're taking away their freedom to leave), and as such, it must be carefully justified and clearly documented.

 

[thegenius]

Relatedly, in your example, at least in my state, that is (in a vacuum) malpractice but if that incapacitated patient isn't imminently dangerous then it can be argued (or is the case) that it would be an act of felony false imprisonment to physically prevent them from leaving. Of course everyone does it anyway because it is what is right by the patient, but there are significant implications.

I think there are gray areas that are not well defined by the law, and in extreme cases that might end up going to court, they would be adjudicated individually.

For instance, sometimes we get patients on a 5150 come into the ER and we need to medically clear them. So we need blood and urine. These patients are calm, not argumentative, and they refuse to cooperate with blood work and urine. Sometimes nurses want me to authorize them to "forcefully" get the blood and urine and I don't think that's right. Patients have a right to refuse medical care. Just because they are on a 5150 doesn't mean all of their rights are taken from them. So these situations are tough. Sometimes 5150 psych patients don't want to take their meds...and they are so debilitated that they need to take their meds but they refuse to. We don't have the authority to jam the pills down their throats. It's a real tough situation.

In the situation where 5150 patients don't give blood or urine, then I usually just deprive them of food and drink and/or barter with them. They get a meal once they give us blood and urine. Usually within 24 hours we get what we need.

 

[thegenius]

The situation you cite is not a good example. This patient may seem irrational to us, but he has articulated that he knows the knife is there, and he is giving you a reason why he cannot stay. It has foresight to think that he has consequences for missing his hair appointment, and as such, it can be argued that he has foresight into the consequences of his refusal. I once had a STEMI patient refuse to go to the cath lab because it was "just anxiety" and he had a court appearance to go to. He signed out AMA only to return 90 minutes later after suffering cardiac arrest on his way to court. I cannot force someone to go to the cath lab just as I can't force someone to undergo removal of a knife from their neck. Just because their decision seems irrational to us does not mean they don't have capacity to make decisions.

I think it's a reasonable example. It may not be perfect but the point is that it's not good enough for someone to say "Yes I see there is a knife in my neck but I don't think it's a problem" and you think you are off the hook if you let him go. I'm not sure it's EMTALA violation although a good lawyer would argue that there are multiple violations in this case and EMTALA might be one of them.

Reminds me when I was in residency. A young guy fell out of a tree or off a wall and landed on a sharp object on the ground and totally tore up his perineum, scrotum and penis. He needed emergency surgery to savage those parts. He refused citing nonsense reasons. I can't remember what they were but it was on the order of some nonsense like "I need to make my hair appointment" or "I have an errand to run or something." Clearly this guy could not make an informed medical decision. We obviously didn't let him go, emergently consulted psych and they deemed that he didn't have capacity to make an informed medical decision and only then was he taken to the OR to save his perineum. Urology would not have taken him without that documentation that he could not make an informed medical decision.

People can make dumb medical decisions but there is a point where they are so outrageously dumb that it would be very high risk for one not to intervene despite what they said. You don't want to go to court on these cases.

I agree these are touchy situations. I will always error on the side of reason in these cases...but even then it might be hard. I too have AMA'ed a STEMI before...he was so afraid of the procedure he felt like he would die if someone stuck a catheter in his heart. (Thankfully he didn't die.)

 

[aim-agm]

I agree these are touchy situations. I will always error on the side of reason in these cases...but even then it might be hard.

I agree. The issue with retention and/or treatment over objection is that not doing so can be morally and medicolegally fraught, but doing so can be criminal if you are not permitted to by law. The problem is the laws are often enigmatic and ambiguous, and we wind up in situations in which we muddle through and try to be reasonable and do right by the patient, and hope the terrifying civil and liability risk isn't realized.

I try to go the extra mile to help my EM colleagues, in part out of recognition of how severely you all are victimized by the law.

 

[TrailRun]

The point about intoxicated patients seems unclear. It would be nice if we didn’t have to keep them until they are “clinically sober” ie not slurring speech and ambulatory with steady gait, especially since being drunk isn’t a medical emergency. Often the nurses want me to just discharge them (because often they can be belligerent) but I was taught in residency they “lack capacity” and if they get hit by a car we will be sued - is there any uniform approach or protection for us with these patients?

 

[aim-agm]

The point about intoxicated patients seems unclear. It would be nice if we didn’t have to keep them until they are “clinically sober” ie not slurring speech and ambulatory with steady gait, especially since being drunk isn’t a medical emergency. Often the nurses want me to just discharge them (because often they can be belligerent) but I was taught in residency they “lack capacity” and if they get hit by a car we will be sued - is there any uniform approach or protection for us with these patients?

It depends on state law and in general you must have a specific statute that clearly establishes your power to hold the patient, or the patient must meet the common law standard. Failing that, as established in Kowalski you neither have legal right to prevent the patient from leaving, nor duty to do so...at least in NYS, and continuing a discussion of the laws in that state:

The only NYS statute that allows for retention of an intoxicated patient is MHY 22.09 (5), which requires that as a result of the substance use the person is (1) "unconscious or has his or her judgment otherwise so impaired that he or she is incapable of realizing and making a rational decision with respect to his or her need for treatment" AND (2) as a consequence of that there is "(i) a substantial risk of physical harm to the person as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or herself, or (ii) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm" AND (3) this is at a statuatorily defined "treatment center" THEN you can hold the patient for up to 72-hours or until (1) or (2) aren't true, whichever comes first.
(NOTE: As complicated as that is, it is actually dramatically ovsersimplified.)

The common law standard in NYS is established by Warner vs. State of New York (1948) which allows for retention of an "insane person...only where immediate and precipitate action is demanded to prevent present and imminent harm", and the court uses the illustrative case of a woman who was "actually in the act of throwing herself out of a window to escape fancied pursuers."

To answer the question: "is there any uniform approach or protection for us with these patients?"
Talk to your hospital counsel. Alternatively, have some of what the patient is having so that you are unfit for duty and it becomes someone else's problem.

 

[aim-agm]

Sooo....this got more complicated as HHS appears to be saying EMTALA obligations ignore state law. Does this change the landscape for involuntary retention from "retentions must meet state and Supreme court criteria" to just "retentions must meet Supreme Court criteria"?

From today's letter from HHS:
"The EMTALA statute requires that all patients receive an appropriate medical screening examination, stabilizing treatment, and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures. It is critical that providers know that a physician or other qualified medical personnel’s professional and legal duty to provide stabilizing medical treatment to a patient who presents to the emergency department and is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit such treatment. "

 

[thegenius]

Sooo....this got more complicated as HHS appears to be saying EMTALA obligations ignore state law. Does this change the landscape for involuntary retention from "retentions must meet state and Supreme court criteria" to just "retentions must meet Supreme Court criteria"?

From today's letter from HHS:
"The EMTALA statute requires that all patients receive an appropriate medical screening examination, stabilizing treatment, and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures. It is critical that providers know that a physician or other qualified medical personnel’s professional and legal duty to provide stabilizing medical treatment to a patient who presents to the emergency department and is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit such treatment. "

From my perspective being drunk is never an emergency medical condition unless they can't protect their airway...or have profound aspiration PNA, etc. If I could...I would discharge every drunk person to their bed immediately. They can just sleep there.

 

[Fox800]

So, your options are:
A. Follow EMTALA and risk imprisonment for breaking state law, potentially life imprisonment?
B. Violate EMTALA, stay out of state prison (think Angola), and face lawsuits, medical license discipline, fines from CMS, and bankruptcy?

BRB, moving to another state.

 

[allantois]

So, your options are:
A. Follow EMTALA and risk imprisonment for breaking state law, potentially life imprisonment?
B. Violate EMTALA, stay out of state prison (think Angola), and face lawsuits, medical license discipline, fines from CMS, and bankruptcy?

BRB, moving to another state.

How would the federal government discipline state-issues medical licenses?

 

[MechEDoc]

So, your options are:
A. Follow EMTALA and risk imprisonment for breaking state law, potentially life imprisonment?
B. Violate EMTALA, stay out of state prison (think Angola), and face lawsuits, medical license discipline, fines from CMS, and bankruptcy?

BRB, moving to another state.

Exactly. In Wisconsin and Kansas only allow for police to place patients on a mental health hold. Got an acutely psychotic patient at risk to themselves? EMTALA requires you to assault them and keep them against their will while the state forbids you from doing so... Thankfully EMTALA isn't enforced that well...

 

[Apollyon]

Exactly. In Wisconsin and Kansas only allow for police to place patients on a mental health hold. Got an acutely psychotic patient at risk to themselves? EMTALA requires you to assault them and keep them against their will while the state forbids you from doing so... Thankfully EMTALA isn't enforced that well...

9.45 in New York. So, that's another state, which means there might be others beyond WI and KS.

If you were using those as what you know, got it. However, if you are saying those are the only ones, no.