Mental Health: Estate Cannot Use Privileged Communications To Sue Medical Providers.
(27)7 July 2019
Quick Summary: The mental health privilege applies to statements communicated by a patient to a psychiatrist, psychologist, clinical nurse specialist, social worker or therapist for purposes of mental health treatment. Such statements cannot be used in litigation.
The privilege survives the patientís death. The mental health privilege cannot be waived on behalf of a deceased patient by the patientís probate administrator for use in litigation for or against the estate or the heirs. A provider who furnished mental health care to the patient has the right to invoke the privilege to prevent the patientís statements from being used against the provider. COURT OF APPEALS OF GEORGIA June 17, 2019
The parents sued a behavioral health center for the alleged wrongful death of their son. A hospital emergency physician had certified him for an involuntary mental health hold and sent him to the center where he was held two days for evaluation and then discharged. Within hours of his discharge from the center he committed suicide.
The parents demanded a complete unredacted copy of the patientís treatment records from the behavioral health center. The center refused to comply on the basis of the mental health privilege.
The Court of Appeals of Georgia ruled that the mental health privilege shields from disclosure all communications by the patient to his mental health providers.
The behavioral health center itself has the right to invoke the mental health privilege even if one of the parents as administrator of the patientís probate estate wishes to waive the mental health privilege on the deceased patientís behalf.
However, caregiversí observations of the patientís actions, activities, behavior and demeanor, medication records, physical examinations, vital signs and lab work are not protected by the mental health privilege from disclosure and use in litigation, even if those matters are entered into a patientís chart at a mental health facility.Behavioral v. Cleveland, __ S.E. 2d __, 2019 WL 2497611 (Ga. App., June 17, 2019).
Emergency Psychiatric Detention: Legal Procedures Not Followed, Patient Can Sue.
(27)6 June 2019
Quick Summary: A nurse participated directly with a physician, hospital security and the local police in holding the patient against her will. The hospital can be held liable for the nurseís actions.
The hospital claimed as its defense that its people had probable cause to believe the patient was suicidal and argued that probable cause is legal justification to hold a person involuntarily in the emergency department. Probable cause is not the legal standard. That is a misstatement of the law.
Any involuntary detention of a person for mental health reasons must be carried out strictly according to the stateís Mental Health Code. If the Mental Health Code is not followed, the patient may file a civil lawsuit for false imprisonment. APPELLATE COURT OF ILLINOIS April 23, 2019
The patient visited her primary care physician in his office for pain and swelling in her leg that had been an ongoing problem for at least seven years. As the patient was leaving the office after her appointment she blurted out to the physicianís office nurse that she was so tired and frustrated from dealing with the problem that she felt like slitting her wrist.
The nurse left a note for the physician. When the physician saw the note the next morning he contacted the patient to urge her to seek counseling. She refused. The physician also spoke with her husband, but he insisted his wife was not suicidal.
Three days later the patient phoned the physician about the pain and swelling in her leg. He told her to go to the emergency room and said he was phoning ahead to schedule an MRI.
The patient went to the hospital, stayed in the emergency department a few hours and then walked out without getting the MRI or being formally discharged. Soon after she walked out a nurse ran to get her in the parking lot and told her she was not allowed to leave. The primary care physicianís nurseís note about the patient slitting her wrists had apparently just come to the emergency department nurseís attention.
The patient was detained in an exam room by the nurse, two hospital security guards and two local police officers. They told the patient she had to agree to psychiatric treatment and could not leave. She insisted she did not want to be treated and wanted to leave. A fight broke out in which she was injured. She was taken to jail from the hospital and charged with battery on a peace officer.
The Appellate Court of Illinois saw grounds for the patient to file a civil lawsuit against the hospital for false imprisonment.
The primary care physicianís nurseís note from three days earlier, which was relayed to the emergency room staff when they contacted the physician, was not a sufficient legal basis to hold the patient.
Any involuntary mental health detention must strictly follow the state mental health law. The law requires a finding of a current threat of harm to self or others borne out by a physicianís exam conducted as the hold is being initiated.
That finding allows a petition to the director of the hospital to authorize an emergency hold pending review of the facts by a designated mental health professional for a decision whether to authorize a seventy-two hour temporary hold pending a judgeís review.
In short, the patient was held against her clearly expressed wishes without the proper legal procedure ever being undertaken. Irvin v. Healthcare, __ N.E. 3d __, 2019 WL 1785130 (Ill. App., April 23, 2019).
Patient Suicide: Court Sees No Grounds For Wrongful Death Lawsuit Against Hospital.
(27)5 May 2019
Quick Summary: The patient told the nurses he was not suicidal and did not want to hurt himself or anyone else.
That occurred during the patientís initial nursing assessment in the emergency room two days before he actually did take his own life.
The patient had come to the emergency room voluntarily, albeit with an escort from a police officer, after he revealed to his nurse practitioner that day in an outpatient session that he had thought of committing suicide by overdosing on medications. He did not actually have the medications available but said there were other means.
The patient was considered not to be in imminent danger of self-harm and was released with a plan to continue outpatient care. UNITED STATES DISTRICT COURT OKLAHOMA April 8, 2019.
The fifty-three year-old patient had been admitted to the hospital on two previous occasions for mental health care.
Four months before his suicide he admitted himself voluntarily for stress, depression, anxiousness and feelings of being overwhelmed and powerless. Because he denied suicidal thoughts in his group and individual therapy sessions in the hospital his case manager determined he was not a suicide risk.
Two months before his death he came in again voluntarily for a mental-health admission. This time he revealed he had thought about suicide, but he denied he had a plan and said he had never actually attempted suicide in the past. He was again deemed not a suicide risk. However, while he was in the hospital his wife and sons removed the guns from the patientís home.
Two days before his death, when his mental health nurse practitioner directly asked him during an outpatient session, he admitted he was considering suicide by overdosing on medication, although he also said he did not have the medication available at that time.
The nurse practitioner insisted he let law enforcement take him to the hospital. The patient went voluntarily to the emergency room with a police officer as escort.
However, during his initial assessment with the emergency room nurses the patient insisted he was not suicidal.
The emergency physician had the staff psychologist see him and his prior records were reviewed. Their judgment was that the patient was not a current suicide risk. They discharged him with a plan for him to continue his outpatient appointments.
Two days later, while visiting a friendís home on a farm, the patient shot himself in the head.
The US District Court for the Northern District of Oklahoma could not fault the nurses, the physician or the psychologist at the hospital for discounting the patientís current suicide risk, based on their assessments and his past history.
The Court endorsed the guidelines at the facility, a Veterans Administration hospital, for management of patients with possible suicide risk.
A patient was not considered appropriate for inpatient psychiatric admission if the patient had no current suicidal intent, was not in an unstable psychological state and had demonstrated an ability and a willingness to abide by a safety plan and to comply with recommendations for outpatient follow-up care, like this patient.
Once the patient was appropriately allowed to leave the hospital, his further actions were no longer under the hospitalís control and the hospital was no longer responsible. Schulze v. US, 2019 WL 1526877 (N.D. Okla., April 8, 2019).
© 2019 Legal Eagle Eye Newsletter
PO Box 4592 Seattle WA 98194