We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult with an attorney licensed to practice in your state.
Now, for the story…
“Some workers from a local store brought a co-worker into our ER for treatment of multiple lacerations. The patient punched a glass window and tried to jump out. They said that he had been acting ‘weird’ for a few weeks and had smoked ‘wet weed’ (marijuana with PCP) on his lunch break. I was just getting ready to start evaluating him when he punched a nurse and started screaming ‘Let me go!’ and was trying to get to the door. I called for Security and two guards held him down while we restrained him. The end result was that he was sedated, the lacerations were treated, and he was put on a psych hold. He was eventually diagnosed with a likely manic episode complicated by drug intoxication. I just got a call from Risk Management that he filed a complaint with the state Medical Board against the hospital and against me personally as the ER attending because he sustained a non-displaced nasal bone fracture during the process of getting him restrained. He is claiming battery and false imprisonment and is also threatening a lawsuit. Now what?”
Let’s begin with the fact that while patients do not lose their Constitutional rights to personal liberty when they enter a hospital, you as a physician have the countervailing right to restrain a patient for their own good and/or the good of others.
Youngberg v. Romeo addresses a case about a severely mentally retarded man who was violent to himself and others. The patient was restrained, and injured by a state facility. The Supreme Court held that “We have established that the patient retains liberty interests in safety and freedom from bodily restraint. Yet these interests are not absolute, there are occasions in which it is necessary for the state to restrain the movement of residents – for example, to protect them as well as others from violence.”
In determining what force was appropriate, the Court held that “The proper standard for determining whether the State has adequately protected such rights is whether professional judgment, in fact, was exercised. And in determining what is ‘reasonable’, courts must show deference to the judgment exercised by a qualified professional, whose decision is presumptively valid.”
Your assessment of what was needed to get the situation in your ER stabilized for the safety of the patient as well staff and other patients, therefore, began with a presumption of validity.
Of course, a presumption is not inviolate and is, in fact, rebuttable.
Since your choice to use restraints may result in a complaint or a lawsuit there are several points to bear in mind to ensure you remain within legally-permissible limits.
The first issue to explore is the patient’s competence since restricting another’s freedom of action is a legal last resort.
If you find that you are saying something to a patient who keeps pulling out their IV line like “That is really not acceptable and if you continue we will have to put you in restraints” then you are potentially saying you consider the patient capable of understanding his medical situation and planning his actions accordingly. To lawfully warrant restraints, the situation must instead be one where the patient has revealed he is not making rational decisions. This does not require that he be raving, but it does require an intractable irrational approach to his situation, such as, in the IV line example, the patient denying that he even needs the critical medication being administered through the line or claiming that it is poison.
However, even in this setting, bear in mind that restraint is not a substitute for consent. In other words, you cannot tie someone down to force treatment on him.
Of course, in an emergency situation, consent to treatment is held to be implied. You, as the physician, can say that any reasonable person would allow you to proceed with the treatment and you can order restraints on the incompetent patient who is battling the staff trying to help him. In a non-emergency situation, however, consent for the treatment must be obtained from a proxy with legal standing or by an alternative mechanism such as a two-physician consent or a Court Order. Then and only then can restraints be used to allow the consented-for treatment to take place.
Restraints should also only be applied when medical reversal of an agitated condition, such as chemical sedation or correction of hypoxia, is not possible
Restraints also cannot be used (a) prophylactically on a currently cooperative patient who has a history of violent conduct; or (b) in a retaliatory manner against a difficult patient.
The restraint applied must also be appropriate in scope to the patient’s physical capacities taking the physical risks to the patient into account, an issue of particular concern with elderly patients who may suffer (a) bruising or skin breakdown from restraint cuffs; or (b) pressure ulcers from being held in one position.
In the illustration, the fact that there was a fracture during the restraint process will be analyzed in the context that the danger of using restraints was less than the danger of not acting. This will confirmed through witnesses testifying that this patient was irrational due to his mania and drug use and was aggressive and dangerous to himself and others. The minor fracture was an unavoidable consequence of the scope of the events rather than, say, an over-zealous security guard just cold-cocking him.
Restraints must also be removed as soon as they are no longer required because a liberty interest may not be constrained past necessity.
When you deprive someone of his liberty and ability to determine his own outcome, you take on an enhanced fiduciary duty for their safety. This can go to the restraint itself (in Gazda v. Pima County, a patient died of asphyxia while being held facedown by multiple staff members) or to improper monitoring (in Estate of Doe v. ABC Ambulance, a patient placed in 4-point restraints with a towel over his mouth was ignored when he complained of inability to breathe and died of cardiopulmonary arrest.)
Based on the facts as the opening case notes, the ER physician met the essential criteria for the use of physical restraint and so can begin with the presumption that his conduct was legally valid.
We now have to look at the specific claims of wrongful action: battery and false imprisonment, claims that are potentially serious because, as intentional torts, they may not be covered under professional negligence policies.
Battery is an intentional infliction of an offensive bodily contact without consent.
The good intentions of the batterer do not change this analysis. That is why a case about lack of consent for treatment may be based on a battery claim.
In Pugsley v. Privette, a patient consented to surgery on the understanding that a general surgeon be present along with the gynecologist. The patient was anesthetized over her protests when she learned the general surgeon was unavailable at the time of the procedure. She suffered a ureteral injury and sued for both malpractice and battery. The malpractice claim failed but the battery claim was upheld because while the gynecologist had intended only a good outcome for her when he operated, the patient had technically withdrawn her consent to the surgery when the conditions defining her expectations had changed.
This is also why surgical consents often include “springing” provisions to allow the surgeon to extend the procedure based on what is found intra-operatively. This avoids having to close and re-consent the patient for a separate procedure on another day.
However, those situations are based on the liminal fact of the patient being competent to consent or to withhold consent. In the opening vignette, the opposite was true – the patient was both actively mentally ill and intoxicated by a powerful drug.
As long as the physician stayed within the criteria for legally-permissible restraint – as it appears he did – any battery claim should fail.
False imprisonment is the intentional infliction of confinement, whether by actual physical restraint or by a de facto prevention of the subject leaving (e.g.; a locked door, a posted guard), without consent or justification.
As with battery, concern for the patient does not mitigate the charge.
An example of false imprisonment is the case of Barker v. Netcare Corp. There, a distraught patient was restrained chemically and physically over a period of days because staff was concerned she would harm herself. But emergency involuntary commitment was not sought even though there was ample time to do so. This detail changed the facility’s actions to being considered unjustified because while it may have been able to demonstrate, in a hearing, that the patient was incompetent, it failed to seek such a hearing and merely held her against her asserted will.
Again, however, such a situation is the opposite of what the doctor in the vignette faced. There, he was confronted with an acutely violent, incompetent patient and so was justified in keeping him from leaving.
Since incidents like this are not uncommon in an ER, it is a good idea to review the American College of Emergency Physicians Model Policy on restraints:
The American College of Emergency Physicians (ACEP) supports the careful and appropriate use of patient restraints or seclusion. ACEP recognizes that patient restraint involves issues of civil rights and liberties, including the right to refuse care, freedom from imprisonment, and freedom of association. However, there are circumstances when the use of restraints is in the best interest of the patient, staff, or the public. Patient restraint should be considered when a careful assessment establishes that the patient is a danger to self or others by virtue of a medical or psychiatric condition and when verbal de-escalation is not successful.
ACEP endorses the following principles regarding patient restraints:
- Restraints should be instituted only after verbal de-escalation has been attempted.
- Restraint of patients should be individualized and employed in a manner that makes all reasonable attempts to maintain the patients’ privacy and dignity.
- The method of restraint should be the least restrictive necessary for the protection of the patient and others.
- Staff should be properly trained in the appropriate use and application of restraints and in the monitoring of patients in restraint and seclusion.
- Protocols to ensure patient safety should be developed to address observation and treatment during the period of restraint and periodic assessment as to the need and means of continuing or discontinuing restraint.
- The use of restraints should be carefully documented, including the reasons for and means of restraint, alternatives to restraint, and the periodic assessment of the restrained patient.
In summary: Although patients have Constitutionally-protected liberty interests, physicians have a presumptive right, within their professional discretion, to restrain patients to protect the patient or others. That restraint must, however, be proportionate to the threat and cannot be retaliatory. The restraint must take any physical limitations of the patient into account. Physicians engaged in a restraint situation should keep in mind the intentional torts of battery and false imprisonment and make sure to confine the restraint to the minimum needed and to obtain any required authority for more extended restraint. Emergency facilities should have standardized protocols in place that follow the ACEP Model Policy on restraints.
Medical Justice notes: [Restraints are sometimes needed to protect mentally incompetent patients from harming themselves or others. While a doctor’s judgment will be held to be presumptively valid, if harm does come to the patient because of the restraint, that presumption may very well be rebutted.]
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It is interesting to read the ACEP “suggestions” on their so-called “principles” on restraining patients. One can read such “standards” and misinterpret them to be “safe-harbors” from court actions, government prosecutions and complaints of false imprisonment and battery.
It is my belief that although physicians may want to adhere to ACEP standards, they do not in any way represent a “safe-harbor” from any legal retaliative actions when the “victim” finally reaches the office of plaintiff’s attorney.
It’s not just a matter of your requirement to retain an enhanced degree of responsibility once you force care on them. It’s a matter again of the “Karpman Drama Triangle” and your efforts to “protect” people from their disastrous decisions.
After a consult with the hospital administrator and (awakening hospital counsel), you have the real possibility of simply turning these patients loose outside the doors of the ER. Naturally that response is also actionable. The patient may die and their family might sue you too.
I still consistently take a libertarian approach to these situations. You are, in my opinion NOT obligated as a physician or hospital to FORCE any patient to accept your treatment, in the obvious situation of their utter and obvious refusal to accept it. The more actions you take to apply your own behavioral standards, even to violent individuals, the more you expose yourself to legal retaliative actions.
To most Americans, I think the issue of “patient decision” is well enmeshed into our legal system, with informed consent and the stern requirement that patients agree and accept treatment prior to your instituting it. There is plenty of courts-history to back this.
Stephen Karpman, MD, the psychiatrist who “invented” this behavioral construct got it right. It is well past time to “excuse people” who create their own disastrous behaviors and rescue them from the consequences of their behaviors. Our Country itself is turning more and more toward “excusing and rescuing” disastrous behavior and this has become a cornerstone of Democrat liberal philosophy.
I am sick of trying. I am sure you are too.
Michael M. Rosenblatt, DPM
In the first case presented, no evidence was presented that the patient’s nose was broken during the restraint. The nose could have been broken by the patient before the hospitalization, or during the hospitalization. If the nose was broken during the hospitalization there is no proof that the restraints were the proximate cause. The patient could have broken their nose on the side rail while they were thrashing around so it was a patient caused injury.
It is extremely unfortunate that law has intruded into medicine in these situations, so that physicians who are trying to care for patients with the best of intentions wind up having to act like attorney’s. They have to know and understand the application of statutory law, regulatory law, and case law. Physicians are being held to a legal standard to perfectly apply in a rational and reasonable way what seems fine in a court room setting, but is not the reality of the situation in the ER. I would sentence each attorney and judge to a mandatory training period not to exceed 3 years in the busiest trauma ER settings in the US. After that perhaps we can have a reasonable and rational discussion about when the law and its punitive effects on physicians should be left at the ER door.
In a setting in the future where all physicians are employees of the government, no malpractice suits or other legal torts will be allowed to be brought. At that point the twisting around on the head of the pin debating fine points of law, as it applies to such situations will go away. Some day, one way or the other, hopefully the lunacy of needing physicians to be attorneys and interpret the law before treating patients will go away.
To the retired MD’s…..
Right on point. For the plaintiffs and their attorneys as well as the entire legal and regulatory system stacked against us, this system Is for them like shooting fish (us) in a barrel. When we r all gone and everyone is cared for by NP’s and PA’s. then and only then they will all be happy. Who is going to take care of us in our time of need?
It has been a while, so please correct me if I am wrong. In the version of healthcare reform put forth in 1993, the right to sue physicians was preserved. I do not believe that the powerful trial attorney lobby will quietly accept physician immunity if we move to single payer healthcare. The immunity in the VA system is a relic of earlier times when attitudes wer different and may be a product of the inertia of the VA system.