Whose responsibility?

Where does a hospital’s power or responsibility to detain a patient begin and end? HRMR examines a recent court case that tested the extent of a hospital’s responsibility towards intoxicated patients.

Risk managers may want to examine their organizations’ policies and procedures in relation to the handling of intoxicated patients following a recent court case in which a patient, Kevin Kowalski, sued Poughkeepsie-based St. Francis Hospital and Health Centers and a treating emergency room doctor for failing to prevent him from leaving the emergency room while drunk. After leaving the hospital he had walked on to a nearby highway and was struck by a car, leaving him paralyzed below the neck.

Kowalski maintained that based on his level of inebriation the hospital should have prevented him from leaving the hospital—and that had they done so, he would not have suffered those grave injuries.
In June 2013 the New York State Court of Appeals upheld a lower court’s dismissal of a 2007 lawsuit for medical malpractice and negligence. The court found that the defendants had no right and therefore no duty to confine Kowalski against his will; he came to the hospital voluntarily and could leave voluntarily.

“The court found that a basic and overriding principle of a free society is that, with limited exceptions, people may come and go as they please. No recognized exceptions to this principle were found to exist in this case and the court noted that to restrain the plaintiff on these facts would have exposed the defendants to liability for false imprisonment,” says Marshal Endick of Wilson Elser Moskowitz Edelman & Dicker, the attorney who defended the emergency room physician in the case.

SPLITTING LEGAL OPINION
Endick says that while he and his colleagues were confident in the strength of their legal arguments, they were also mindful that the Court of Appeals (New York’s highest court) had not previously ruled on these arguments and the possibility therefore remained that the court might interpret the law in a manner that was not consistent with their arguments. In fact, while the defendants did prevail in a majority decision, there were two judges who dissented.

Nevertheless, the outcome of the case should be reassuring for risk managers in the sense that it reinforces the principle that, absenting extraordinary circumstances, patients are free to come and go as they please and that healthcare providers are not held to such a standard as to become guarantors of a person’s safety after he or she has made a voluntary decision to refuse further treatment.

On the other hand, the case also raises the importance of reviewing and refining a hospital’s protocols relating to this type of situation.

“Most savvy plaintiffs’ attorneys will demand copies of the hospital’s rules and regulations relevant to the treatment at issue,” says Endick. “Their aim of course is to find some protocol that was not followed or that was inconsistently applied.

“In Kowalski, the claim was in fact made that the hospital’s rules would have required one-on-one monitoring of this patient. The court ultimately determined that, even if that were true, there was no causal connection between the alleged departure from protocol and the plaintiff’s injury. It nevertheless behoves hospitals and risk managers to regularly and carefully review their protocols to ensure that they are consistent with the standard of care, clear and unambiguous. It is equally important to ensure that the hospital’s staff members are educated as to those protocols on a regular basis.”

Endick says that when a patient leaves a hospital against medical advice (AMA), it is wise to fully document the patient’s condition and the fact that the patient left AMA. Caution should be taken not to simply rely on a pre-printed form or to merely check a box in the chart but rather to write a note describing that the patient decided to leave AMA, that the patient’s mental status was normal, and that the patient’s condition and risks of leaving AMA were explained to and understood by the patient.

The patient should be advised to promptly follow up with his/her private physician for further treatment and should be offered the opportunity to return to the hospital for further care at any time. All of these discussions should be fully documented in the chart.

“If possible, the patient should sign the AMA form,” he adds. “The discussion and signing of the form should be witnessed and the witness should also sign the form. Where the patient is unwilling to engage in these conversations, the attempts to have them should be documented, along with the fact that the patient would have been capable of participating in a formal discussion but chose not to do so.”

A SUBSTANTIAL RISK?
As a general rule and subject to what is proscribed by statute, the only circumstances allowing involuntary detention of a patient are those where the patient demonstrates a substantial risk of harm to himself/herself or others. Where such detentions are made, protocol must be strictly followed since (as this very case shows) the law favours a patient’s freedom over even a well-intentioned physician’s paternalistic detention.

It is worth noting that the law in New York draws a distinction between the intoxicated patient who is brought in voluntarily and one who is brought in with objection. In the latter case, New York’s Mental Hygiene Law holds that: “A person who is brought with his or her objection to any facility or treatment program in accordance with subdivision (c) of this section shall be examined as soon as possible by an examining physician. If such examining physician determines that such person is incapacitated by alcohol and/or substances to the degree that there is a likelihood of harm to the person or others, he or she may be retained for emergency treatment.”

“Emergency room physicians should be mindful of the distinction between voluntary and non-voluntary patients,” warns Endick. “In either case, the patient should be evaluated at regular intervals and his/her condition should be documented in the chart. Documenting that the patient is functioning well and able to speak with and understand the physician can be most helpful in disproving a subsequent claim that he/she was incapacitated to such a degree that there was a likelihood of harm to the patient or others.”