Section 1 Introduction

• Library: Mental Health 2006

It is well-established law that hospitals, like health care professionals, owe a duty of reasonable care to patients.

[T]he professional duty of a hospital . . . is primarily to provide a safe environment within which diagnosis, treatment, and recovery can be carried out. Thus if an unsafe condition of the hospital’s premises causes injury to a patient, as a result of the hospital’s negligence, there is a breach of the hospital’s duty qua hospital.

Murillo v. Good Samaritan Hosp. of Anaheim, 99 Cal. App. 3d 50, 56–57 (Cal. Ct. App. 1979). The hospital owes the patient a level of care proportionate to the patient’s needs as the patient’s known condition requires. Stacy v. Truman Med. Ctr., 836 S.W.2d 911, 922 (Mo. banc 1992). Breach of this duty results in liability being imposed on the hospital.

One author has identified four basic duties owed to the patient by a hospital: “(1) to use reasonable care in the maintenance of buildings and grounds for the protection of the hospital invitees; (2) to furnish the patient supplies and equipment free of defects; (3) to select its employees with reasonable care; and (4) to supervise all persons who practice medicine within its walls.” Joel D. Cunningham, Comment, The Hospital-Physician Relationship: Hospital Responsibility for Malpractice of Physicians, 50 Wash. L. Rev. 385, 412 (1975).

The court in the landmark case of Darling v. Charleston Community Memorial Hospital, 211 N.E.2d 253, 257 (Ill. 1965), clearly delineated the hospital’s independent duty to patients:

The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact. Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment.

Darling, 211 N.E.2d at 257.

Encompassed in the scope of the duty of the hospital is to:

• meet the standard of care in maintaining its facility
• provide and maintain medical equipment
• hire, supervise, and retain nurses and other employees; and
• have in place procedures to protect patients

Hospitals are generally held to a national standard of care for hospitals of their size and treatment category. The standard is based on what a reasonably prudent hospital would do under the same or similar circumstances.

Hospital liability for its own negligence has been termed “corporate negligence.” Liability for corporate negligence will result when a hospital, entrusted with the task of providing accommodations necessary to carry out its purpose, fails to follow the established standard of conduct to which it should conform. Johnson v. Misericordia Cmty. Hosp., 294 N.W.2d 501, 506 (Wis. Ct. App. 1980).

Yet while there is a recognized duty of hospitals and health care professionals to protect patients, mental health care and treatment are not an exact science, as recognized by Chief Justice Warren Burger. Warren E. Burger, Psychiatrists, Lawyers, and the Courts, 28 Fed. Prob. 3, 7 (1964). Predicting actual specific violent behavior is virtually impossible. Timothy E. Gammon & John K. Hulston, The Duty of Mental Health Care Providers to Restrain Their Patients or Warn Third Parties, 60 Mo. L. Rev. 749, 762 (1995). As the United States Supreme Court has reasoned, the “subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations.” Addington v. Tex., 441 U.S. 418, 430 (1979). Mental health diagnoses cannot be verified by CT scans, MRIs, x-rays, blood tests, and surgeries like most other diagnoses. Boynton v. Burglass, 590 So. 2d 446, 450 (Fla. Dist. Ct. App. 1991). It is not uncommon for psychiatrists to disagree on what constitutes mental illness, on the appropriate diagnosis to be attached to a given behavior and symptoms, on treatment, and on the likelihood of future dangerousness. Ake v. Okla., 470 U.S. 68, 81 (1985).

The potential ramifications of hospitals and mental health professionals making decisions out of fear of liability are that mental health patients will be more restricted in their movement and that releasing mental health patients from hospitals will occur infrequently. Thus, the statutes and caselaw have established that hospitals and mental health professionals will not be liable for mere mistakes in judgment in deciding whether to release or restrain patients. In effect, there is a different standard of care as it relates to mental health patients.

Duty to Treat

(§5.2) Emergency Medical Treatment and Active Labor Act

If a patient presents to a hospital with an emergency department or to a hospital that offers emergency services for medical, psychiatric, or substance abuse emergency conditions, such as a psychiatric hospital, the patient must be examined and treated in accordance with the Emergency Medical Treatment and Active Labor Act (EMTALA). Congress passed EMTALA as part of the Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, 100 Stat. 82, which became effective August 1, 1986. Pub. L. No. 99-272, § 9121, 100 Stat. 164-67 (1986) (codified at 42 U.S.C. § 1395dd); see also 42 C.F.R. § 489.24. EMTALA was enacted in response to reports of a widespread practice of “patient dumping.” EMTALA imposes two fundamental requirements on hospitals with regard to patients requesting emergency care.

First, the hospital must conduct an appropriate medical screening examination to determine if an emergency medical condition exists. 42 C.F.R. § 489.24(a). “[E]mergency medical condition” means a condition requiring acute care hospitalization because the patient has acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably be expected to result in:

1. Placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy
2. Serious impairment to bodily functions; or
3. Serious dysfunction of any bodily organ or part; or

2. With respect to a pregnant woman who is having contractions—

(i) That there is inadequate time to effect a safe transfer to another hospital before delivery; or

(ii) That transfer may pose a threat to the health or safety of the woman or the unborn child.

42 C.F.R. § 489.24(b).

Emergency medical condition includes:

• the lack of a diagnosis;
• severe pain;
• acute substance abuse;
• suicidal and homicidal ideations; and
• physical, sexual, and emotional abuse.

Second, if the hospital determines that an emergency medical condition exists, it must either provide the treatment necessary to resolve the emergency medical condition or appropriately transfer the patient. If the patient’s emergency medical condition cannot be treated at the hospital, arrangements must be made for the transfer of the patient to a hospital that has the capabilities needed by the patient and available space. An “appropriate transfer” as defined under EMTALA includes the following:

• The transferring hospital provides the medical treatment within its capacity that minimizes the risks to the patient’s health.

• The receiving facility has available space and qualified personnel for the treatment of the patient and has agreed to accept transfer of the patient and to provide appropriate medical treatment.

• The transferring hospital sends to the receiving facility copies of all medical records related to the emergency medical condition for which the patient has presented, available at the time of the transfer, which includes the name and address of any on-call physician who, when requested, has refused or failed to appear within a reasonable time to provide an examination or stabilizing treatment.

• The transfer is effected through qualified personnel and transportation equipment, including the use of necessary and medically appropriate life support measures during the transfer.

42 C.F.R. § 489.24(e)(2).

EMTALA further provides that a hospital may not delay the provision of an appropriate medical screening examination or treatment of an emergency medical condition to inquire about a patient’s method of payment. 42 C.F.R. § 489.24(d)(4). Any delay because of attempting to obtain pre-authorization to examine or treat a patient is a violation of EMTALA.

If a hospital or physician does not fulfill EMTALA’s requirements, the Centers for Medicare & Medicaid Services (CMS), formerly known as the Health Care Financing Administration, has the authority to terminate a hospital’s Medicare and Medicaid provider agreements, while the United States Department of Health and Human Services, Office of the Inspector General (OIG) has the authority to exclude physicians from participation in the Medicare and Medicaid programs. Additionally, the OIG may impose civil monetary penalties on both hospitals and physicians. 42 U.S.C. § 1395dd(d)(1). The maximum penalty for physicians and hospitals with 100 beds or more is $50,000 for each violation, with a maximum penalty of $25,000 per violation for hospitals with fewer than 100 beds. Additionally, an individual who suffers harm as a result of an EMTALA violation may sue the hospital for damages. 42 U.S.C. § 1395dd(d)(2). Therefore, hospital employees, medical staff members, and independent contractors must be very familiar with EMTALA and with the policies and procedures within the hospital that implement the requirements of EMTALA.

The responsibilities under EMTALA are in addition to any state responsibilities, such as for involuntary commitments. If a patient presents to a hospital and is determined to meet the criteria for a civil detention and the hospital does not have the mental health services that are needed by the patient, the patient must be transferred in accordance with EMTALA requirements. For example, although under Missouri law, if the mental health coordinator or a mental health professional initiates the involuntary...