A patient at a Virginia ED seeking help with a psychological disorder was paralyzed after sustaining four gunshot wounds during an altercation with a security guard in the hospital’s psychiatric emergency center.1
A Texas hospital was threatened with loss of its CMS funding after off-duty police officers working as hospital security officers shot a mental health patient.2 Shelly Garzon, JD, an attorney in the Tacoma, WA, office of Fain Anderson VanDerhoef Rosendahl O’Halloran Spillane, explains, “Staff could not get the patient to stay in his room.”
These two cases illustrate the increasing legal risks faced by hospitals involving patients who suffer injury or death when taken down or restrained by ED security. “The stress of being in a bright, busy, noisy ED can worsen a patient’s psychiatric crisis, requiring lengthy use of restraints, resulting in behavior that leads to injuries,” Garzon says.
Not surprisingly, this sometimes leads to litigation, although not as often as some expect. John Burton, MD, chair of the department of emergency medicine at Carilion Clinic in Roanoke, VA, says, “My general impression of this area of risk is that I have always been surprised that we do not have more cases than I have historically seen.”
Burton has seen only a handful of “excessive force” cases against EDs in 25 years of practice. “That is probably because of the type of patients typically involved, as well as the fact that security, police, EMS, and emergency staff tend to have the same story in response to the complaint,” he says.
“Excessive force” cases typically involve psychiatric patients and intoxicated patients presenting to EDs with violent or bizarre behavior. “Such presentations immediately attract the attention of police, EMS, hospital security, and ED staff as a risk to the environment,” Burton explains. To remove the threat of violence, staff members restrain the patient.
“Suits are then later filed alleging inappropriate, disproportionate responses, or unwelcome and unnecessary treatment against the will of the patient,” Burton says. “In rare instances, a claim for damages is included.” The plaintiff may claim damages due to a minor or moderate physical injury, such as a hand neurapraxia or fracture from handcuffs or restraints, or a more significant injury, such as death from hypoxemia and ultimately asphyxia. “This latter group is really rare, although it becomes the stuff of urban legends, driving future policies,” Burton notes. These factors become key areas of focus in “excessive force” cases:
- Hospital and ED policies, and whether staff complied with them.
“These patients are so common, and such high-risk, that it should be routine for any ED to periodically review policies,” Burton says. Plaintiff attorneys will scrutinize ED and hospital policies on response to violent patients and monitoring of patients in restraint. “Recovery of patients from restraints and cessation of restraint policy are typical areas that undergo a great deal of scrutiny,” Burton explains. This evidence helps the defense:
- Compliance with requirements for repeat assessments of the patient during the restraint period;
- ED staff tried to remove restraints as quickly and as reasonably possible.
However, such documentation often is lacking in the ED chart. This allows plaintiff attorneys to convincingly allege that the ED was non-compliant with its own policies on restraint monitoring. “The charting is often deficient in repeat assessments,” Burton explains. “And the policy is often out of date or out of sync with actual ED practice.”
- Training — or lack thereof.
Bonnie Michelman, CPP, CHPA, executive director of the police, security, and outside services department at Massachusetts General Hospital, sees good de-escalation training as the most important tool to avoid violence and legal issues. Well-trained ED staff can identify behavior that is escalating, she says, allowing them to intervene “to avoid injury or worse,” Michelman says.
Rodney K. Adams, JD, an attorney at Richmond, VA-based LeClairRyan, has seen several cases involving patients injured by ED security. All these cases involved patients presenting with behavioral health problems. “These are often mentally handicapped patients or psychiatric patients who suffer a sudden collapse and are not able to be resuscitated,” he says.
One case against a hospital involved an ED patient who stopped breathing while security sat on him to apply restraints. He could not be resuscitated. “The case was framed as a denial of civil rights action for using excessive force,” Adams recalls. “The case didn’t get very far before it was settled.”
The case highlighted the potential added exposure of state-affiliated hospitals when it comes to denial of civil rights claims. “Attorneys are often able to find an expert who will contend that the situation could have been de-escalated without physically subduing the mentally handicapped patient,” Adams explains.
Reasonable Force?
An ED patient was put on an involuntary hold following a suicide attempt, but family members snuck into the ED through a locked door, attempting to leave with the patient. When security asked them to leave, they became verbally combative, and a physical altercation ensued.
“Effectively, those people were trespassing. In that circumstance, security has the authority to remove the trespasser from the property — especially when they are interfering with patient care,” says Michael T. Belisle, JD, an attorney at Lewis Brisbois in Portland, OR.
One of the family members sued the hospital, but the claim was dismissed on a statute of limitations issue. “Ultimately, we would have had a comparative fault analysis. The plaintiff had some fault in creating that whole situation,” Belisle says.
Whenever a patient’s interaction with security becomes physical, there’s a risk the patient or family will allege that security used excessive force. “Anytime you have to put hands on somebody, a melee can ensue,” Belisle says. “The question then becomes: Was the use of force reasonable?”
Of course, there also are legal risks for failing to hold the patient. “If the patient made overt threats, was discharged, and then did something bad after they left, there could be a foreseeable risk of harm for someone else,” Belisle says.
Another malpractice case involved an intoxicated man who suddenly decided to leave the ED despite an open head wound. “He started fighting with the EMTs who brought him in. Ultimately, the security officer had to restrain him,” Belisle says. He recommends EDs educate staff and security officers on these things:
- what constitutes reasonable force;
- the circumstances under which they’re allowed to hold people involuntarily.
Real-time documentation can be a life-saver for the defense in “excessive force” cases, which usually involve multiple witnesses. “If you have six security officers and they all have a story that supports your case, that’s obviously a good thing,” Belisle says.
REFERENCES
- Trent A, Roy E. No criminal charges in Lynchburg General Hospital shooting. The News & Advance, June 3, 2016. Available at: http://bit.ly/2msMszS.
- Rosenthal E. When the hospital fires the bullet. The New York Times, Feb. 12, 2016. Available at: http://nyti.ms/2lw7bDM.
SOURCES
- Rodney K. Adams, JD, LeClairRyan, Richmond, VA. Phone: (804) 343-4173. Fax: (804) 783-7637. Email: [email protected].
- Michael T. Belisle, JD, Lewis Brisbois, Portland, OR. Phone: (971) 712-2810. Fax: (971) 712-2801. Email: [email protected].
- John Burton, MD, Chair, Department of Emergency Medicine, Carilion Clinic, Roanoke, VA. Phone: (540) 526-2500. Fax: (540) 581-0741. Email: [email protected].
- Shelly Garzon, JD, Attorney, Fain Anderson VanDerhoef Rosendahl O’Halloran Spillane, Tacoma, WA. Phone: (253) 328-7806. Email: [email protected].
- Bonnie Michelman, CPP, CHPA, Executive Director, Police, Security, and Outside Services, Massachusetts General Hospital, Boston. Email: [email protected].
ED restraint policies will undergo ‘a great deal of scrutiny.’
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