“You Can’t Take My Blood!”: Medicolegal Issues In The

Emergency Care of Psychiatric and Intoxicated Patients

Ryan N. Krech, MD JD FACEPTCEP

April 24, 2015

Overview• Decision Making Capacity is the ability to make

medical decisions due to a lack of understanding of risk & benefit.

• Incapacitated patients need someone else to make their decisions.

• In emergency, the physician makes the decisions, otherwise you need a “surrogate decision maker”

• There is no direct relationship between police hold status and capacity; these are related in that they address the same societal issues but have differing rules.

Case 1: Medicine Cabinet

• About 9pm, police arrive with a young woman brought in by police “under app” for a suspected ingestion. Her husband called because she had locked herself in the bathroom and wouldn’t come out. When she did, she had slurred speech and unsteady gait. She has a history of depression and suicide attempts. She has been seen and the usual tox labs are ordered. You are called back to the bedside after she has gotten upset at the tech who has come to try to draw blood. She is talking about lawyers and saying “I know my rights!” with slurred speech.

• What do you do as her physician? What are your options?

Informed Consent

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and any surgeon who performs an operation without his patient’s consent commits an assault.”

-Justice Benjamin Cardozo- Schloendorff v. Society of New York Hospital

211 N.Y. 125, 105 N.E. 92 (1914)

Capacity

• But what of patients without “sound mind”?• Texas Law defines “decision making capacity”

and “incapacitated”:lacking the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to any proposed treatment decision.

-Texas HS Code §313.002

Capacity

• Paraphrased, capacity is the ability to understand the risks and benefits inherent in making a particular medical decision, as determined by the physician.

• Orientation is neither necessary nor sufficient as a test of decision-making ability.

Deciding Capacity

• Evaluating whether a patient has decision making capacity is often difficult.

• There are some bedside decision tools that having been studied, including the MMSE, but none are in common use.

• Gold standard = expert opinion.• Most experts say there is no special role for a

psychiatrist in the determination of capacity. The law says nothing about any such role.

Deciding Capacity

• Note that the statute mentions “reasonable medical judgment.”

• The law effectively acknowledges the difficulty of the decision.

• To challenge a physician’s decision, a plaintiff would have to have experts saying not just that the decision was wrong but that it was unreasonable.

Deciding Capacity• There is extensive medical and psychiatric literature

taking the position that mental illness, depression, and suicidality may impair decision making capacity.

• Most experts suggest that capacity is not absolute but relative to the particular decision and the risks and benefits in the particular situation.

• A minority of commentators suggest that this makes the determination more about the value system of the physician, and argue for absolute capacity or incapacity only.

http://www.aafp.org/afp/2001/0715/afp20010715p299-f1.gif

Case 2: Are You Right Handed?A young man is brought in by his girlfriend with a perfectly linear laceration on the left wrist, into dermis but not tendon. He has a flat affect and when you ask about the injury he says its “not important” and says “just sew me up, doc.” You ask about suicidal ideation and he says “not really” and you ask about ingestions and he says “what’s it to you?” You ask to draw blood and he says, “No, everyone’s so rude here, I’m gonna go to [other hospital].”

Suicidality and Capacity• So we have a patient where there is a hint but no

admission of suicidality, and he won’t even talk enough to really see how rational he is.

• Did he take a whole bottle of tylenol before he cut his wrist? We don’t know.

• Is there enough here for it to be reasonable to draw blood against the patient’s will?

• There is no clear case law, but I will argue the case for YES on this patient.

• (But what if he says a clear no to any ingestion and says “I just did it to feel the pain…”)

Suicidality and Capacity• Points I would argue as your lawyer in favor of drawing this

patient’s blood (and checking EKG) against his will:– As a physician, you can examine someone and have an impression of

depressed mood without them having to say a word about it. Depression may impair capacity.

– The patient’s being withdrawn, which is a psychiatric symptom that may impair capacity also prevents him from giving informed consent to leaving AMA, because he will not interact.

– The very fact that the patient will not allow a blood draw increases the pre-test probability that he did take something, which would be a suicide attempt implying lack of capacity.

– The risk of blood draw is essentially nil. The benefit is potentially lifesaving. The burden of proof should be high to show capacity.

• I would not make the same argument in favor of a catheterized urine tox screen. The risk is higher, and the benefit is low or nil.

Public Policy• I would also argue about the Texas “public policy” in favor of

checking the blood. – Texas has a statute that makes the use of force to prevent

suicide a defense against allegations of assault: A person is justified in using force, but not deadly force, against another when and to the degree he reasonably believes the force is immediately necessary to prevent the other from committing suicide or inflicting serious bodily injury to himself. -Texas Penal Code § 9.34

– Texas has the law that allows a police officer to hold a person who seems at risk of self harm (more on this later) for 72 hours. A blood draw is no more of an intrusion on personal autonomy than this, and a physician is more qualified than a police officer to determine the risk of self-harm.

Public Policy– Texas also has a

public policy of involuntary legal blood draws on persons suspected of DWI, suggesting that the risk of harm to self or other in that case merits a blood draw.

Public Policy

• All these arguments I believe justify a relatively low threshold to find incapacity to refuse a blood draw in the group of patients who have something raising suspicion of suicidality, even in the absence of present intoxication.

• However, if you believe otherwise, you should be protected by our strong medical malpractice protection in the ED if you let the wrong one go untested…

• So there is probably a fairly wide range of medicolegally safe approaches to these patients.

Holding for Evaluation

• Can you hold someone for a period of time in order to evaluate their capacity?

• One could argue that implicitly you must be able to, but there is no clear answer.

• In such cases, best semantics would be to argue that the best available information suggests that the patient lacks capacity, and that the patient is uncooperative to assist any further with the determination.

“Two Doc” Solution

• There is a custom of having a second physician two is not previously involved in the patient’s care assess capacity.

• The origins of this practice are unclear, but it has become statutory law in certain settings in certain other states, such as Maryland, Ohio, and New York.

• There is no statutory role of the “two doc” in Texas.• It appears in hospital policy in many other places,

including certain Texas hospitals.

“Two Doc” Solution• HOWEVER, having the contemporary

documentation of a second physician that he or she also felt the patient lacked capacity, would be the best possible evidence that the decision was reasonable.

• Almost as good would be corroboratory documentation by the patient’s nurse of observations that support the finding of lack of capacity.

Documentation

• It is critical to get all members of the team on board with same approach to the patient.

• These are difficult issues, the rules are complex, and ethical dilemmas and uncertainty are frequent.

• Avoid charting discrepancies, both among the different team members and in your own documentation. (Watch that psych exam on your macro!)

Bad DocumentationThis is an actual posting on the free legal advice website avvo.com by someone in Houston looking for legal advice to sue an Emergency Physician:

“During an ER visit at the Hospital, I was unlawfully detained. After testing, while heavily medicated I woke up having to use the restroom. I was shocked to find out I was locked to the bed…. A nurse finally came in. I told her I was about to urinate on myself. She didn’t remove the restraints. She went to get a bucket for me to urinate in. I was rushed out to drive myself home. Discharged while still chemically restrained. Minutes after leaving, I wrecked and totaled my truck…. I drove myself to the ER for having really bad headaches. According to my medical records, there is no prescription of restraints, which is required by law… I have my medical records. There is no mention of restraints. Which is required by law. My medical records state that I was a "well developed, well nourished patient who is awake, alert, and in no acute distress.” Psych: Awake, alert, with orientation to person, place and time. Behavior, mood and affect are within normal limits.”

http://www.avvo.com/legal-answers/any-lawyers-interested-in-emergency-room-false-imp-1739746.html

Incapacity

• (a) If an adult patient … in a hospital … is … incapacitated … and, according to reasonable medical judgment, is in need of medical treatment, the attending physician shall describe the:

• (1) patient's … incapacity …in the patient's medical record; and

• (2) proposed medical treatment in the patient's medical record.

Incapacity

• (b) The attending physician shall make a reasonably diligent effort to contact or cause to be contacted the persons eligible to serve as surrogate decision-makers. Efforts to contact those persons shall be recorded in detail in the patient's medical record.

-Texas HS Code §313.005

• Surrogate decision-makers are basically family (more on this later).

• For now, what do we do in the meantime?

Emergent Consent

• Under common law principles and principles of medical ethics, under the doctrine of “emergent consent,” an incapacitated patient without an available surrogate decision maker should be treated for possible emergencies until a surrogate is found.

• Unfortunately, this is not clearly delineated in the Texas Code.

Emergent Consent

• There is a separate section (§733.008) that states that consent is not required if a patient is “unable to communicate because of an injury, accident, or illness or is unconscious” and has “what reasonably appears to be a life-threatening injury or illness”

• However, this section is primarily concerned with paramedics, and seemingly avoids speaking of capacity because there is no physician on scene.

Emergent Consent• In spite of the lack of clear statute in Texas,

the common law is clear that incapacitated patients should be given emergency care without consent.

• There are not very many cases reported on the issue, but plenty of law treatises and medical texts cite the principle.

• The best case on the topic is the following from Rhode Island:

Miller v. Rhode Island Hospital625 A.2d 778 (1993)

• Adult male MVC unrestrained intoxicated with visible facial lacerations. ETOH 233.

• Physicians determined patient lacked capacity. Fiancee is present but has no authority. Sister has been called and is on her way.

• Remember, this is 1993. CT is not the standard.• Dr Vigilante (appropriately named) proceeds with

DPL on the awake intoxicated patient who says “I don’t want you to do that” and I can “feel my body perfectly well.”

• Court found for defendant physicians.

Miller v. Rhode Island Hospital625 A.2d 778 (1993)

• Court agreed with several other (non-Texas) courts that “[t]he mental capacity to give consent to a surgical procedure is the same as that required to enter into a contract.”

• “a contract-based test of mental capacity that includes an assessment of the patient's understanding of the risks and consequences”

• Alcohol intoxication does not necessarily incapacitate, but may.

Emergent Consent

• One commentary on Miller: “[T]he actual application of the emergency exception includes procedures to determine whether the patient might need medical care. This comports with the usual emergency room practice of evaluating all patients who are unable to consent to determine if they are in need of emergency care. It is not unusual for patients, especially drunks, to fight the evaluation. It is likely that if the emergency room let a very drunken and potentially seriously injured patient leave without evaluation, and that patient died from lack of care, the emergency room would be sued for failing to restrain the patient.”

-LSU Public Health Law Map http://biotech.law.lsu.edu/map/WhenDoestheEmergencyExceptionApply..html

What is an emergency?

• There needs to be some reasonable medical suspicion of a process that would result in a significant bad outcome without testing and treatment.

• The Miller case suggests rather wide latitude in my view. Could have kept him for serial abdominal exams?

• I think the Miller case probably supports the routine blood draw on the suicidal patient who is not presently intoxicated, but I would personally not test it unless the patient has a toxidrome.

Case 3: Meth on a Plane

A young man was acting erratic on a layover at DFW and was brought to the ED for agitated behavior by the airport police under “app” for risk of harm to others. He admits to methamphetamine. He is not diaphoretic but has some mild mydriasis and a HR in the 140s.

Two Doc Again

• A second physician who has looked at the clinical scenario in real time can be strong evidence in the assessment of whether there is an emergency.

• Given the ready availability of multiple physicians in our department, I would suggest that the rather routine use of the “two doc” approach for both the capacity and emergency decisions is highly commendable from a risk management standpoint.

• Moreover, we are a teaching institution and this approach is consistent with promulgating an academic dialogue about why we do things the way we do.

Non-Emergent But Incapacitated • So, can you hold the non-emergent but incapacitated

patient until you find a surrogate (and after, with their consent)?

• Yes, legal summaries and medical texts agree not only that you can but that you should or even must.

• If necessary, this is a valid use of restraints for patient safety (or safety of others). But, you should attempt other measures to keep the patient preferably (sitter, wander band, etc).

• This is not “false imprisonment” because by definition, false imprisonment is holding someone without their consent, and these patients lack the capacity to consent.

“Chemical Restraints”• NEVER use the term “chemical restraints” anymore. • CMS defines chemical restraints as “any drug that is used for

discipline or convenience and not required to treat medical symptoms.”

• I would argue this definition is inappropriate, because, as I understand it, the phrase chemical restraint first appeared in medical literature describing the dangers of physical restraints in unmedicated agitated patients and the superiority of chemical restraints, and comparing which chemical restraints are safest.

• So now we have to explain that we use medications to treat the toxidrome, the mania, the anxiety, or the agitation, or to enable a test to be tolerated, but not “chemical restraints.”

Surrogate Decision Makers

• [A]n adult surrogate from the following list, in order of priority, who has decision-making capacity, is available after a reasonably diligent inquiry, and is willing to consent to medical treatment on behalf of the patient may consent to medical treatment on behalf of the patient:

Surrogate Decision Makers• (1) the patient's spouse;• (2) an adult child of the patient who has the waiver and consent of

all other qualified adult children of the patient to act as the sole decision-maker;

• (3) a majority of the patient's reasonably available adult children;• (4) the patient's parents; or• (5) the individual clearly identified to act for the patient by the

patient before the patient became incapacitated, the patient's nearest living relative, or a member of the clergy.

-Texas HS Code §313.004• A separate statute effectively adds to the top of the list:

“(0) the patient’s properly executed medical power of attorney;”

An Approach to Recalcitrant ODs

• Your typical overdose with stable vitals has hours before the occult tylenol OD must be treated, and will become more altered or somnolent or have vital sign abnormalities before you must act on other common serious overdoses.

• Exceptions might be clear histories of toxic amounts of ingestion of very dangerous meds, such as BB or TCA, and tylenol at more than 4 hours out.

An Approach to Recalcitrant ODs

• In general, the case against you will be weaker if the patient cannot later argue whether there was an emergency or not.

• If you can get consent from a surrogate, that is one less issue to litigate.• In the case of Miller, I wonder if the case

would have gone to court if the doc had consented the sister on her cell phone.

• But it was the early 90s…

Case 1: Medicine Cabinet

• The physician in this case called the husband who seemed concerned about his wife and gave consent to draw blood.

• The physician also spoke to the patient in a conciliatory way, offered some food, and the patient allowed the blood draw without any need for restraints or sedation or force.

• However, had this not occurred, the next option would be to act against the patient’s expressed wishes under the consent of the husband.

Surrogate Decision Makers• Suppose we had not had the husband

available. • We have a stable overdose with no serious

toxidrome or vital sign abnormalities, and are reluctant to act under the emergent consent doctrine.

• The last person listed in the Texas statute for a surrogate decision maker is a member of the clergy.

• So naturally my thoughts turn to…

Member of the Clergy

Member of the Clergy• The hospital chaplain has the legal

authority to stand as a surrogatedecision maker for the patient.

• The Chaplain is a outside person with a strong ethical footing, taking the role of surrogate family.

• Remember, the chaplain is not assessing capacity, but rather standing in as a family member, and you should keep that role in mind as you explain the situation.

• Similarly to a family member, it would be acceptable to consent the chaplain entirely by phone.

Summary Review• A patient who does not understand risks & benefits, as

determined by the reasonable judgment of the physician, is incapacitated.

• An incapacitated patient refuse care, but must be held to be treated either emergently or according to the consent of a surrogate decision maker.

• If family is not available, the surrogate decision maker can be the chaplain.

• The decisions of incapacity and emergency can be supported by agreement of a second physician.

• The most ironclad way to support a decision to draw blood against the expressed wishes of a rule-out suicide attempt patient in a gray-area case who is uncooperative and has no family available would be to get both a second physician to agree as to capacity and chaplain to consent.