Use of Restraints and Seclusion in the ED
June 1, 1998 36 minutes read
Use of Restraints and Seclusion in the ED
By Marshall S. Salkin, MD, JD, FACEP, FCLM, Emergency Physician, Northwest Community Hospital, Arlington Heights, Illinois
"The true principals of managing the insane in a psychologically sensitive manner are also well understood. I mean a kind of supervision adapted to the danger of their madness, the prevention of dangerous consequences of their impetuous outbursts without any treatment. If a madman suddenly experiences an unexpected attack and arms himself, the director, always mindful of his maxim to control the insane without ever permitting that they be hurt, would present in the most determined and threatening manner but without carrying any kind of weapon. At the same time the servants converge on him at a given signal, from behind or sideways, each seizing one of the madman's limbs.
Thus, they carry him to his cell while thwarting his efforts and chain him if he is very dangerous or merely lock him up. The employees are expressly forbidden to retaliate even if they are hit."1
-Phillipe Pinel, 1794
Although written more than two centuries ago, Pinel's statement describes some of the current basic principles of controlling the unmanageable, dangerous, or violent emergency department (ED) patient. An estimated 500,000 people are physically restrained every day in hospitals and nursing homes throughout the United States,2 and many EDs have at least one patient in restraints daily.3 This review will discuss the prevailing concepts of the use of restraint, both physical and chemical, in the ED.
Definitions
In its broadest context, restraint is any method of physically restricting a person's freedom of movement, physical activity, or normal access to his or her body. In the context of the Joint Commission on Accreditation of Healthcare Organization standards, this does not include bed rails or IV boards. Chemical restraint is the use of medications to accomplish the same goals. Seclusion refers to the involuntary confinement of a patient alone in a room where that person is physically prevented from leaving.4
The Legality of Restraint in the ED
Legal considerations in the evaluation and management of ED patients whom the emergency physician feels might need restraints or seclusion pose special problems. Attention must be given to the rights of the emergency patient. The United States Supreme Court in Cruzan v. Director, Missouri Department of Health, a 1990 case, determined that a competent patient has a 14th amendment constitutional liberty interest and right to refuse any medical treatment, including life-saving therapy.5 This concept was previously succinctly stated by Justice Cardoza in 1914 in Schloendorf v. Society of New York Hospital by his comment: "Every human being of adult years and sound mind has the right to determine what shall be done with his body."6 Hence, a competent patient can refuse any form of therapy, and, in fact, is free to leave the ED at any time.
The problem with refusal of care arises because emergency physicians must balance the autonomy of the patient against the interests of the state in maintaining its citizens' life and health. The Supreme Court in 1982 in Youngberg v. Romeo supported the use of restraints to protect the patient and others if professional (medical) judgment was exercised in the determination of the need for restraints. The court stated: "We have established that Romeo [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. It is necessary to balance the liberty interests of the individual and the demands of an organized society."7
The state also has an interest in protecting the health and lives of innocent third parties, such as the fetus, children, "incompetents," and other individuals. This beneficence principle may also form the basis for the emergency physicians restraining the patient and forcing care against the patient's will. Balancing the patient's interests against the state's interests is the challenge for emergency physicians whenever the use of restraints or seclusion is contemplated.8
The emergency physician must always bear in mind that the inappropriately restrained patient may have grounds to bring a lawsuit against the physician and the hospital for battery and false imprisonment. Battery is an intentional tort that is defined as the intentional and non consensual infliction of harmful or offensive bodily contact.9 False imprisonment is defined as the intentional infliction of confinement.10 This has been interpreted as the unlawful detention of one person by another, for any length of time, whereby the restrained individual is deprived of personal liberty. The use of physical or chemical restraint is not necessary for litigation based on false imprisonment. If security is called to stand guard at a patient's bedside to prevent the patient from leaving, a false imprisonment claim is possible, even though no one has touched the patient.
The defense of suits for battery or false imprisonment generally are based on the lawful actions of the emergency physician. This defense is predicated on adequate documentation, as discussed below, of the reasons why the restraint was necessary, and well-charted evidence that the patient lacked normal capacity or competency and/or was "dangerous." In the balancing act between patient's and state's rights it is, in general, safer for the emergency physician to err on the side of restraint in borderline cases. A possible lawsuit for battery or false imprisonment is preferable to a malpractice suit for lack of restraint, with subsequent injury or death of the patient or foreseeable third parties. In addition, the Model Penal Code allows an exception for the assault and battery statute for physicians who act in good faith in restraining patients in accordance with accepted medical therapy.11
Competency, Consent, and Restraint Indications
Legally, competency can only be determined by the court. However the emergency physician can ascertain the capacity of the patient. Capacity is defined as the ability to understand the nature and effects of one's acts or decisions.12 A patient with normal capacity can understand the risks, benefits, and alternatives of contemplated therapy, including forgoing therapy. The court in In the Matter of Schiller stated: "The test for mental capacity to consent to medical treatment is whether the patient has sufficient mind to reasonably understand the condition, the nature, and effect of the proposed treatment, and the attendant risks in pursuing the treatment, and not pursuing the treatment."13
Adults are presumed competent to grant consent for proposed medical treatment and generally cannot be treated or restrained against their will.14 However, a patient lacking capacity/competence cannot legally either consent or refuse consent to any treatment, including restraints. The law usually implies consent during an emergency.15 The Restatement (Second) of Torts, Section 892D states: "Emergency action without consent does not make the actor liable." In these situations, the courts assume a competent adult would consent to treatment necessary to maintain health or life of the patient or others.
Generally, restraints are indicated in the ED when a patient is perceived as an emergent or immediate danger to self, other patients, health care providers, or to third parties. Common law provides the legal premise for restraints in these cases under a state's "police power," which allows the state to ensure the safety of its citizenry. In addition, a separate doctrine of "parens patriae"(literally "parent of the country;" referring to the traditional role of the state as sovereign and guardian of persons) holds that under such circumstances an incompetent person may be cared for and restrained by the state, even against his or her will.16
Such situations can occur in the following patients: violent, suicidal, intoxicated, and mentally ill. In these patients the same behavior that suggests the possibility of "dangerousness" usually indicates lack of capacity and competency as well, enough to justify restraint pending further evaluation. Many emergency physicians request a responsible family member to authorize treatment in these circumstances. Such authorization has no legal force, unless the jurisdiction has a specific family consent statute, although it may, on a practical basis, protect the emergency physician from a suit based on failure to obtain informed consent. In some states, a family consent statute allows a specific family member to legally control the medical care of the patient, including consent to any proposed treatment. Finally, it is suggested that if restraints are used and there is no family of the patient present to consult with, it is prudent to obtain the concurrence of another physician and document this agreement.
Violent and Potentially Violent Patients
A survey on ED violence revealed that 32% of EDs had at least one verbal threat daily, and 18% had at least one threat with a weapon daily. There had been a violent death in the ED within the previous five years in 7% of these institutions, and 80% had a staff person injured during this period of time.17 It should also be emphasized that 53% of all physical attacks on hospital staff occur in the ED. It is apparent that violence in the ED should be prevented whenever possible. Therefore, restraints may become necessary when the "early warning signs" of potential violence are present. (See Table 1.)
In addition to the recognition of these early signs of potential violence, there are general approaches to these patients which the emergency physician can adopt to minimize the likelihood of actual violence. (See Table 2.)
If, in spite of reasonable measures by the ED staff, the patient's conduct continues to escalate, the ED physician should try to enlist the help and influence of the patient's family or friends. If this is not helpful, a show of force should be used. This includes placing 4-5 security officers in clear view of the patient, but at a distance of 10-15 feet. If this show of force does not result in the patient's cooperation, physical restraints should be used, as discussed below.
Suicidal Patient
Nearly 2% of closed claims against emergency physicians involve psychiatric issues, especially the failure to prevent suicide.18 Beginning in the 1970s, physicians were successfully sued for failing to recognize the suicidal risk and neglecting to take appropriate action, such as civil commitment and/or restraint, to prevent suicide.19 The failure to prevent suicide results in the highest average indemnity in emergency malpractice cases; an average of $400,000 per closed claim.20 It has been stated that "a suicide attempt is prima facie evidence of patient incompetence."21 Thus, if the emergency physician has determined the patient is suicidal and/or a danger to himself, he is legally liable if the patient elopes and either commits suicide or harms a third party.22 Commitment with restraints in the ED is the safest course for both patient and emergency physician when suicidal ideation is recognized. However, it is often difficult to predict suicide in a given individual, especially in a short ED encounter. A system, called the SAD PERSONS SCORE, can be useful in this determination.23 (See Table 3.)
If the total score of the patient is 6 or greater there is a increased risk of suicide, and the ED use of restraints is justified to prevent elopement with subsequent harm to the patient or others. The actual method of physically restraining a patient is discussed below.
Table 1
Early Warning Signs of Potentially
Violent Patients
· The patient exhibits or threatens violence.
· The patient makes the ED staff anxious or fearful. The ED staff must learn to trust their "gut feelings." This is countertransference and is an important factor in recognizing a potentially violent patient.
· The patient's behavior is labile and erratic, alternating between cooperation and belligerence.
· The patient may express directly that he fears he is losing control.
· The patient is intoxicated with drugs or alcohol.
· The patient has a history of violence; he is a "frequent flyer" in the ED and is known for past violent behavior either in the street or in the hospital.
· The patient has a tattoo that suggests a relationship to a violent organization or gang.
Drug or Alcohol Intoxicated Patient
The intoxicated patient may present to the ED with suicidal ideation, violent behavior or altered mental status; all of which may be an indication for the ED use of restraints. In addition, the chemically impaired patient often has other underlying traumatic or medical problems. One must always assume that these patients are "hiding" some potential life-threatening pathology.24 Hence, a thorough evaluation is mandatory, and this often cannot be accomplished without the use of physical or chemical restraints or both. In general, intoxicated patients who present to the ED with a significant alteration in mental status are deemed incompetent to make medical decisions. Technically, as stated above, only the courts can declare incompetence, but if the patient cannot understand the risks, benefits, and alternatives of therapy, an informed decision cannot be made. The emergency physician, on a case by case basis, can regard the intoxicated patient as lacking capacity and, hence, restrain, evaluate, and treat as necessary in order to perform a competent medical evaluation.
In general, it is not practical to draw a blood alcohol level on every patient who presents to the ED with suspected alcohol consumption. Intoxication, by blood alcohol level, is also not synonymous with incompetence; the patient's clinical capacity is more important than the specific level of alcohol. From a legal standpoint, it is better to err on the side of paternalism and restrain the intoxicated patient. In some jurisdictions, in addition to liability for the intoxicated patient, the emergency physician may also have a legal duty to protect third parties, such as individuals injured by an unrestrained intoxicated patient who leaves the ED and attempts to drive home.25 Some states have specifically legislated that there shall be no legal recourse against physicians for examining and treating a patient, without consent, if the patient is intoxicated, under the influence of drugs, or otherwise incapable of providing informed consent.26
Table 2
General Approaches to Potentially
Violent Patients
· Avoid eye contact with the patient.
· Place the patient in a room, preferably with two exits, which has all sharp or dangerous instruments removed.
· Do not block the exits and leave the doors to the room open.
· Maintain a safe distance from the potentially violent patient; do not invade the patient's personal space.
· Adopt a passive, non-confrontational posture and attitude.
· Allow the patient to ventilate his feelings.
· Offer the patient food or drink.
· Do not make challenging, provocative, or belligerent remarks.
· Do not turn your back on the potentially violent patient.
In Illinois, the Alcohol and Other Drug Abuse Dependency Act provides that a person who appears unconscious or in immediate need of medical services while in a public place and shows symptoms of impairment related to drugs or alcohol may be taken into protective custody by emergency medical personal in the prehospital setting and brought to the ED for evaluation and management.27 Case law in some states supports the position that intoxicated patients are incapable of giving consent and, thus, cannot refuse treatment, including restraints if medically necessary in an emergent situation.28 In summary, it has been stated, "The emergency department staff may use reasonable methods to restrain a patient who has diminished capacity in order to protect the patient from harming himself or others . . . The duty of the emergency department staff to protect the patient creates the legal justification that prevents their actions from being considered false imprisonment."29
Mental Illness and Restraints
As the focus of treatment for psychiatric patients has shifted from large custodial state hospitals and long-term hospital care to community-based mental health centers and hospital stays of shorter duration, more of these psychiatric patients are seeking help in the ED. As a result, as many as 8.5% of patients who come to the ED present with neuropsychiatric symptoms. In addition, up to 65% of nighttime ED patients have current or past psychiatric illnesses.30 As a result, the emergency physician must be skilled in the assessment and management of these patients.
Adequate assessment of a patient who presents as a psychiatric emergency cannot occur when the patient is out of control and uncooperative. Situations that require emergency stabilization and possible use of restraints involve the psychiatric patient who is potentially or actually violent, suicidal, or is possibly developing rapidly progressive medical conditions causing the disturbed behavior (e.g., hypoglycemia, meningitis, CVAs, delirium, etc.).31
In addition, severe panic attacks and profound clinical depression, both of which are associated with a high likelihood of self-inflicted injury, may require the use of physical or chemical restraints. The use of restraints in these cases is predicated on the professional judgment of the emergency physician that the patient is so impaired as to present an acute danger to self or others, or is so uncooperative and/or violent that the emergency physician cannot comply with the standard of care in the evaluation of the patient's medical condition. It should be emphasized that in some jurisdictions, a patient must be both mentally ill and dangerous to self or others before restraints can be used. In most ED psychiatric situations, this two-pronged test of mentally ill and dangerous generally can be fulfilled and restraints used if deemed necessary.
Table 3
SAD PERSONS Score for Determining
Suicidal Patients
Points assigned
S = Sex-male 1
A = Age-less than 19 or over 45 1
D = Depression 2
P = Prior suicide attempts 1
E = Ethanol/Drug use 1
R = Rational thinking loss (psychosis) 2
S = Separated, widowed, or divorced 1
O = Organized plan or serious attempt 2
N = No social supports 1
S = Stated future intent or sickness 2
If the total score of the patient is 6 or greater, there is an increased risk of suicide, and the ED use of restraints is justified to prevent elopement with subsequent harm to the patient or others.
Physical Restraint Application-Basic Principles
Physical restraints should never be applied simply for the convenience of the staff or out of vindictiveness. However, when the emergency physician has elected to use physical restraints to control the patient's behavior, prevent harm to the patient or others, or to allow for a competent medical evaluation, it is useful to use a team approach, much like a cardiac code. The emergency physician as team leader assigns four team members to a specific extremity. At a prearranged signal, the team advances, at one time, from different directions; each member controlling their preassigned extremity while the emergency physician, as team leader, applies leather restraints to each extremity.
The restraint team members should have previously removed objects that could be used as a weapon by the patient (e.g., bandage scissors, reflex hammers, neckties, jewelry, etc.) The team members should also wear protective gear-at a minimum, gloves. The patient should be restrained on the side or prone to minimize the possibility of aspiration. When possible, a fifth team member should be assigned to control the head to minimize the possibility of biting or spitting. Never apply only one restraint or only leg restraints. Generally, four limb leather restraints should be used. If you have decided that restraints are called for, then restrain fully and adequately with four point restraints. Better that too much physical restraint be applied than too little, with subsequent escape of the patient.32
Even if you believe the patient cannot understand you, explain to the patient that the restraints are being applied for his own protection, for the protection of others, or to help control behavior. Applying a cervical collar may limit range of motion of the neck and thus minimize head banging, spitting, and biting. The restraints must be applied tightly enough to prevent escape, but loosely enough to allow circulation to the extremity.
Once the patient is restrained, the patient should be undressed and searched carefully, looking for weapons, drugs, or other contraband. The patient should be monitored frequently and the extremity and restraint position changed to prevent neurovascular sequelae and to avoid the rhabdomyolysis that can be associated with continued combativeness.33
After the procedure is completed the restraint team should review and discuss the effectiveness of the effort. There should be scheduled education and rehearsals by the staff, much like a cardiac code team.34 It should be remembered that periodic reassessment of the need for restraints is mandatory. The patient cannot be restrained indefinitely for earlier lack of capacity or dangerousness. If the patient regains control or capacity, is no longer a danger to himself or others, and does not interfere with the ongoing medical evaluation, the restraints must be removed. All hospitals should have policies and procedures for emergency application of restraints; most have their own forms for physicians and staff to use to document restraint use. Compliance with these policies and procedures will prevent a per se violation of the hospital's established standard of care.35
Documentation
It cannot be overemphasized that documentation is the key to an emergency physician's defense in any medical malpractice suit, and this is very much the case in litigation involving the use of restraints in the ED setting. The chart should reflect: the indications for the use of restraints, including the competence/capacity of the patient; the "dangerousness" of the patient to self or others; the inability to perform an adequate evaluation without the use of restraints; the means and measure used in applying the restraints, including the aforementioned team approach; comments that no injuries to the patient resulted from the use of restraints; orders for frequent reassessments of the patient's restrained extremities; orders for frequent change in position of the restraints; orders for repeat vital signs; statements that more passive measures (e.g., talk-down, show of force, etc.) were not remunerative in this patient; comments on why the restraints were removed if this is the case; and finally a specific order for the use of the restraints, including a definite schedule for reassessment of the need for continued restraint use.
Chemical Restraint
If the patient continues to struggle against physical restraints and remains too uncooperative, violent, or combative to be adequately evaluated, the need for chemical restraint should be considered. When one reads the Supreme Court decision in Youngberg7 together with a lower federal court decision in Rennie V. Klein,36 one concludes that the forcible administration of antipsychotic agents is a valid practice.37
In spite of the fact that many states (e.g., Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kentucky, Nebraska, Nevada, New Hampshire, New Mexico, Tennessee, and Virginia) have created a specific right to refuse antipsychotic medications by legislative enactment, this right of refusal does not extend to the emergency situation where life or limb may be threatened by failure to sedate. ED patients who are acutely psychotic and uncontrollable cannot refuse tranquilizing medication. If the emergency physician clearly documents the need for chemical restraint, medication can be safely given from a legal perspective.38 The Illinois Supreme Court in In re C.E. stated that the Illinois Mental Health Code, which provided for forced administration of psychotropic medications to patients exhibiting disruptive or threatening behavior, was not unconstitutional and did not impermissibly overburden the patient's fundamental liberty interests.39
Generally, chemical restraint should be administered after gathering as much information as possible to allow at least a provisional diagnostic assessment. In the past, either amobarbital (Amytal) or chlorpromazine (Thorazine) were used; at present the newer neuroleptics and the benzodiazapines are employed in these situations. Neuroleptics, also called antipsychotics or major tranquilizers, are the primary class of drugs used to facilitate cooperation and to calm the agitated, violent patient. Haloperidol (Haldol) is the recommended neuroleptic at the present time. It can be given by the oral, intramuscular (IM), or intravenous (IV) route. For most adult patients who require rapid tranquilization, the dose is 5-10 mg IM or IV, repeated every 30-60 minutes until the desired effect is obtained.40 The use of IV halperidol has not been approved by the FDA, but several investigators have shown the drug both safe and effective when given by this route.41 Halperidol should be avoided in pregnancy, during lactation, and in a patient who has ingested phencyclidine(PCP).
Some side effects of Haldol, most of which will not be seen acutely in the ED, include: 1) dystonia, in which the patient has muscle spasms of the neck, face, or back, which may be associated with torticollis, tongue protrusion, or oculogyric crisis. This usually occurs in young males during the first few days of therapy and be treated with either Benztropine (Cogentin) or diphenhydramine (Benadryl); 2) extrapyramidal side effects such as a Parkinsonian-like syndrome or akathisias (a feeling or anxiety or inner tension, manifested by motor restlessness and the inability to sit still). These can be treated with either trihexyphenidyl (Artan) or cogentin; 3) tardive dyskinesia, which is the involuntary repetitive movements of the mouth and tongue. This is seen after long-term therapy and is often resistant to therapy; 4) autonomic, anticholinergic symptoms including dry mouth, blurred vision, urinary retention, constipation, etc. Treated by discontinuation of the medication and supportive, symptomatic therapy; 5) neuroleptic malignant syndrome, which is fortunately rare, but can be life-threatening. Characterized by rigidity, fever, tachycardia, diaphoresis, fluctuating blood pressure, and alterations in level of consciousness. Seen most often in men younger than than 40. Treatment is beyond the scope of this article.
Another neuroleptic, droperidol (Inapsine) has a shorter half-life and a more rapid onset of action than halperidol. It is given as 5 mg IM, doses and some articles suggest it is superior to Halperidol for chemical restraint in the agitated, combative psychiatric patient.42 Benzodiazepines, also called sedatives or hypnotics, can be used for chemical restraint. The most commonly used benzodiazapine is lorazepam (Ativan). This can be given by the oral, IM, and IV routes. The IV or IM dose is 1-2 mg every 30 minutes until effect. The primary side effects of lorazepam are somnolence, ataxia, hypotension, and respiratory depression. The benzodiazapine antagonist flumazenil (Romazicon) can be used to treat lorazepam side effects or overdose. Some articles suggest the use of a combined regimen of halperidol 5 mg and lorazepam 2 mg IM for chemical restraint.43
Restraint Litigation
Case #1
The patient was a middle-aged women with a history of mental illness. She was brought to the ED because of unusual behavior, including striking herself repeatedly on the chest while shouting "Jesus saves." In the ED, the patient made inappropriate comments to the nursing staff and attempted to stand up on the ED cart. The patient was seen by the emergency physician who made the diagnosis of "paranoid schizophrenic exacerbation" and placed the patient in four-point soft restraints and left her unattended in a room.
It is unclear if the patient freed herself from the restraints or had the restraints removed by the ED personnel. However, the security officers stated that the patient was either observed or escorted from the main information desk to a public bus. Somewhat later, she was seen shouting at cars and hitting them with her hands on a busy street. Subsequently, she was hit by a vehicle and killed. Her children brought suit against the hospital and the emergency physician. A jury verdict found the defendants negligent in not properly applying the restraints and in failing to observe her. The jury awarded her three children $33,492.33, $44,936.33, and $51,265.33, respectively, based on the children's ages at time of incident.44
Although the emergency physician did apply four point restraints in this case, they were soft restraints which are much easier for the patient to remove than leather restraints. In addition, the patient was placed in a room out of sight of the nursing station and no one checked on the patient for more than one hour. The jury felt that either a ED staff person or the patient's relatives should have been assigned to stay with the patient and monitor her behavior. On appeal, the verdict was affirmed. The court stated: "We conclude that the failure to monitor or detain the patient was negligence. From this negligence, it was readily foreseeable that the patient, after being left on her own, would pursue a course of her own self-destruction." If there is sufficient evidence to restraint a patient, do it completely and securely with four-point leather restraints. Legally, there is more exposure for restraining improperly than not restraining at all. If you don't restrain at all, you can defend with the statement that the patient did not require restraint. That defense is not possible in an improperly, poorly restrained patient. After restraining the patient, make sure the patient is placed in clear view of the ED staff and not left alone and unattended in a room, where she can either elope or harm herself.
Case #2
The patient, a 37-year-old male, was found by the police on a street in a catatonic state and taken to the local ED where he was seen by the emergency physician. The patient made no response during the examination either to the questions of the physician or to manipulations of his body. The patient's father was contacted and informed the ED physician of the patient's psychiatric history including VA hospital psychiatric admissions. The patient remained in a catatonic state and was not restrained while transfer to his VA hospital was arranged.
Approximately five hours after admission, suddenly and without notice, the patient "bolted upright on his stretcher" and ran out of the ED. Security guards and medical personnel pursued the patient but were unable to apprehend him. Shortly thereafter, the patient was brought back to the same ED as a DOA having been struck by a motor vehicle. The family brought suit against the hospital and the emergency physician, alleging negligent failure to restrain. However, in their pleadings, the plaintiff stated the alleged negligent acts of the defendants fell within the common-knowledge exception to the need for expert testimony and thus no expert witnesses were submitted by the plaintiff. The trial court stated that whether or not to restrain a catatonic patient was not within the common-knowledge exception, and, since no expert witnesses were forthcoming, summary judgment for the defendants was entered. This was affirmed on appeal.45
This is a case that could have gone either way had the plaintiff used expert witness testimony. The patient was obviously mentally ill and had a history of mental illness. The prudent and reasonable course would be to restrain the patient to prevent the foreseeable events, which actually occurred. If the patient is catatonic, what is the danger of restraints? Probably none, and by restraining you have control over the actions of a patient about whom you know very little; other than his history of mental illness. When dealing with mentally disturbed patients, the emergency physician must consider the "worst case scenario." Will the patient injure himself or other patients? Will the patient escape and injure or kill himself or third parties? Obviously, the emergency physician is not prescient, but by restraining such patients, the emergency physician can obviate potential and foreseeable disasters.
Case #3
The patient escaped from the mental ward of a county hospital and approached a police officer with complaints of feeling "sick." He told the officer he had escaped from the mental ward. Although it was December and very cold, the patient was only wearing khaki pants, a white T-shirt, and no shoes. He was taken to an ED by the police officer who explained the history of the patient to the ED nurse. She took the patient's vital signs and left the patient alone in the ED. The hospital record indicates that he was there from 9:41 to 9:55a.m. He testified that he walked out at that time because he felt that the nurse and the officer were "talking about him."
He walked home, changed his clothes, and walked to a subway station four blocks away, where he jumped in front of a train. His right leg was crushed and ultimately required amputation. The patient sued both the city and the hospital. The court found for the plaintiff and against the city and awarded $300,000 to the plaintiff. The city sought contribution from the hospital, but, on appeal, contribution was denied because "the injuries were not sustained until sometime after plaintiff had left the hospital, returned home, changed his clothes, and walked to the subway station."46
Obviously, this case also could have gone the other way if the patient had not gone home and changed clothes before leaping in front of the subway train. This is also another example of trying to envision the "worst case scenario," which is usually injury or death to the patient or foreseeable third parties. The patient here gave a history of escaping from a mental ward and was inappropriately dressed. Restraint and close observation would have obviated the patient's elopement arising from his paranoid delusions. I know you can't foretell the future, but that is precisely the point! Since you know the patient has a history of a mental disorder and has just escaped from an institution for this problem, it is not unreasonable to believe he may, if left alone and unfettered, escape from your institution with undesirable results. In order to mitigate this potential disaster, consider restraint and observation in these psychiatric ED encounters.
Case #4
A 13-year-old boy attempted suicide by ingestion of an unknown quantity of aspirin. The patient was transported to the ED by the police. He was examined by the emergency physician and a psychiatrist. The emergency physician stated that the child should be admitted. The psychiatrist concluded that the patient did not require admission. The emergency physician was advised of the psychiatrist's position, but charted that he felt uncomfortable sending the child home because the child needed in-patient psychiatric evaluation and therapy. The patient's mother was advised of the desire of the emergency physician to hospitalize her son, but she refused to admit the patient. The emergency physician initiated an emergency commitment under state statutes. The mother attempted to surreptitiously escort her son out of the ED. Eventually, the patient was admitted over the objection of his mother, and the mother filed a petition to declare the involuntary commitment null and void.
The court denied the petition, stating: "Provisions for involuntary emergency examination and treatment directs a physician to determine if the patient is severely mentally disabled and in need of immediate treatment . . . A person is severely mentally disabled when, as a result of mental illness, his capacity to exercise self-control, judgment, and discretion is so lessened that he poses a clear and present danger of harm to others or to himself . . . Clear and present danger shall be shown by establishing that within the past 30 days the person has attempted suicide." Thus, "involuntary treatment of a minor patient following suicide attempt was not an unconstitutional infringement upon his mother's right to determine appropriate treatment."47
The emergency physician has to stick to his guns. If he feels the suicidal patient should be admitted, he should admit. If he acquiesces to another physician, and the patient is discharged from the ED, goes home, and is successful on the next suicide attempt, the emergency physician will absolutely be named as a defendant in any subsequent litigation. Legally, it will not help you to state that you felt the patient should be admitted but deferred to the psychiatrist. You are the emergency physician and have the authority and responsibility to admit or discharge. If your consultant does not agree with you, do what you believe is in the best interests of the patient and document, document, document. Here, restraints were not an issue, but I review this case to illustrate that most, if not all suicides require admission, and that restraints are often a part of involuntary commitment actions.
Case #5
A 22-year-old male was found by his parents staggering and with slurred speech. He said that he had taken an overdose of Quaaludes. His parents knew he was depressed and had previously talked with them about suicide. The patient was brought to the ED, where this history was discussed with the emergency physician. After his physical exam, the emergency physician diagnosed a drug overdose and depression and concluded that the patient should be admitted for 72 hours. The admission was blocked because the hospital could not verify the patient's health insurance.
In such a situation, hospital policy required a $400 deposit that the family did not have. However, hospital policy also allowed the physician to waive this requirement when the patient is a true emergency. Three nursing personnel in the ED advised the emergency physician of this fact but the patient was discharged home with his parents.
Despite parental supervision, the patient escaped and shortly thereafter died of a self-inflicted gunshot wound to the heart. The parents brought a wrongful death suit against the emergency physician and the hospital. At trial, the emergency physician testified that this was his first night as the ED physician. He further testified that the patient gave him the impression that this was recreational drug use and not a suicide attempt. He also testified that the combination of drugs and depression creates a suicide risk. In spite of this, the emergency physician stated that he did not believe the patient presented an emergency or was suicidal. The court found the emergency physician negligent. "He knew that this combination (drugs and depression) was dangerous and creates a suicide risk." A jury verdict for $300,000 was upheld on appeal to the Supreme Court of Louisiana.48
This is another case where peripheral issues inhibited the emergency physician's decisions. If it is your professional opinion that the patient should be admitted, it is very difficult, if not impossible, to defend the discharge of the patient for non-medical reasons, especially if financial considerations were the basis for the lack of admission.
Perhaps the emergency physician here, the new kid on the block, so to speak, did not want to offend and push too hard to get the patient admitted. Whatever the reason, if you have already stated that patient should be admitted . . . admit . . . and the same is true for restraints!
Case #6
The patient ingested approximately 12 alcoholic beverages and was involved in an auto accident. He was taken to the ED with a blood alcohol level of 233 mg%. He was combative and uncooperative. Because of the nature of his injuries, a diagnostic peritoneal lavage (DPL) was thought to be indicated. The patient vigorously refused this procedure. Because the physician considered the patient to lack capacity and because it was felt the situation represented an emergency, the patient was restrained, and the DPL was performed which was negative. The patient left the hospital against medical authorization the next morning.
Subsequently the patient brought a battery action against the hospital. At trial the defendant's expert witness, a physician, attempted to testify concerning the patient's intoxication and the determination of a medical emergency, requiring a DPL. The trial judge ruled that this testimony was inadmissible. He stated that medical competency was entirely different than legal competency, which was required here. He stated that legal competency was a determination that the patient was of "unsound mind." In addition, the judge stated that intoxication does not affect the patient's competency to consent. "A person who is of sound mind is not rendered of unsound mind by reason of intoxication."
As you would expect, a jury verdict in excess of $10,000 was awarded to the plaintiff. Appeal was taken and on appeal the court stated: "The trial justice's presumption that a patient must be legally incompetent or of unsound mind in order for a hospital to dispose of the informed-consent requirement is too broad . . . A finding of legal incompetence is not a prerequisite to determine that a patient lacks the ability to make decisions regarding treatment . . . Mental capacity is not necessarily synonymous with sanity . . . The test for mental capacity is whether the patient has sufficient mind to reasonably understand the condition, the nature, and the effect of the proposed treatment and the risks." In regard to intoxication, the court stated: "Intoxication is a condition that courts have found may impair an otherwise competent patient's capacity to consent or to object to medical treatment . . . We believe that the effect of intoxication does not render every patient incapable of providing informed consent. Whether intoxication affects a patient's capacity to make medical decisions is instead a question of fact for the jury." The lower court's decision was vacated.49
In this case there were two steps to validate the use of involuntary restraints and to perform a procedure against the wishes of the patient. The first step was determining the patient was intoxicated, and in the professional opinion of the emergency physician, so intoxicated the he lacked capacity to refuse treatment. The second step was the decision, again in the medical opinion of the emergency physician, that an emergent situation was present. Once these two steps are authenticated and well-documented, the physician can legally restrain and treat in order to comply with the standard of care for patients in the same or similar condition. You must remember that not all intoxicated patients are A priori incapacitated and that the emergency physician must document the reasoning behind the decision that this intoxicated patient lacked the capacity to either consent or refuse consent to treatment. Also remember that even if an emergency is present, if the patient is competent, the emergency physician must respect the refusal of treatment, even if a life-threatening situation exists.
Case #7
A 21-year-old female was brought to the ED in a "highly intoxicated state with a scalp laceration on the back of her head." She was abusive, combative, uncooperative and resisted the ED staff's efforts to keep her there. Substantial evidence was introduced concerning the patient's inability to provide an adequate history and to aid the ED team in its diagnostic efforts. The emergency physician was unable to either suture the wound or to evaluate whether the patient's symptoms were the result of the head injury or the patient's intoxication. As a result the patient was restrained and treated. She later brought suit for battery and false imprisonment. The court stated: "Symptoms of extreme intoxication coupled with head trauma warranted the patient's admission for examination and observation . . . and that holding of the patient's head and suturing of the laceration was privileged in order to prevent further harm to herself or others . . . and was not false imprisonment . . . and that the scope of that privilege was commensurate with the consent implied for necessary treatment of the plaintiff's medical condition." The trial court rejected plaintiff's allegation of false imprisonment and this finding was upheld on appeal.50
The court here stated that there was a legal privilege to confine the patient because of her intoxication, head injury, and the existence of an emergent medical condition. Both parties introduced evidence concerning professional standards of care that should be followed in diagnosing and treating intoxicated persons, and the difficulty involved in distinguishing whether the patient's symptoms were the result of the head trauma or of intoxication. It is important to understand that the emergency physician will be held to the standard of care of patients in the same or similar circumstances, here, a patient with head injury, regardless of the presence of intoxication. Thus, if the patient will not cooperate in her evaluation, in order to comply with the standard of care for the work-up of head injured patients, the emergency physician may have to use restraints and has the legal privilege to do so; this is therefore not false imprisonment.
Case #8
The patient was a disabled veteran whose wife called the paramedics because of her husband's unusual behavior. He was brought to a VA hospital where he was found to be agitated and "suffering from acute and chronic alcoholism." Because of his agitation, he was given a sedative and went to sleep. Because this VA hospital's regulations precluded admission of a patient with alcoholism, the patient was transferred to a second hospital where he was seen in the ED.
The emergency physician at the second hospital found the patient "unconscious" and in no apparent distress. The emergency physician called the VA doctor and was told that the VA hospital could not admit alcoholic patients. The emergency physician informed the VA doctor that he intended to turn the patient over to the police department. The VA doctor did not protest this proposal. Subsequently, the patient was indeed transferred to the police. He was taken to the police department and placed on the floor, where he vomited, aspirated, and died. The patient's wife brought suit against the VA physician (it is not clear why others were not named).
The plaintiff alleged that having induced the patient's "comatose state" by his use of a chemical restraint, the VA physician was obligated to see that the patient was not turned over to the police, but should have insisted that the patient be observed in the ED of the second hospital until he was awake and alert. The trial court found for the plaintiff for damages for the patient's death on the asserted grounds that the death was due to the neglect of the VA hospital physician. The government appealed, the decision was reversed, and the award vacated.51
The lower court here found that the chemical restraint of the patient was both indicated and proper, but they held that the responsibility of the VA doctor extended to the patient's care at the second institution. This is manifestly not the case, and the finding was reversed by the Court of Appeals. However, the VA physician was indeed fortunate that nothing adverse occurred during the transfer of this unconscious patient. Obviously, if you use chemical restraints, as was reasonable in this case, you must not discharge the patient until the patient is no longer under the influence of the medications and also has recovered from whatever prompted the use of the chemical restraints originally. Under proper conditions (intubation, correct transfer personnel, etc.) transfers of such patients might be appropriate, but require very careful planning and consideration.
Case #9
The patient was 41-years-old when he entered the ED. He came to the hospital because of depression, which was precipitated by the death of his son the prior year. The emergency physician referred the patient to a psychiatric institution. He was seen there later that day by a psychiatrist.
After admission to the psychiatric institution, the patient's blood pressure was found to be elevated and he was reported to be confused and alternating between "grabbing at staff and somnolence." He was placed in wrist and chest restraints and transferred by ambulance back to the ED at the original hospital. The ED nursing notes state that the patient was awake and alert, but combative and restless. He was expressing suicidal ideation with requests to be "put to sleep."
He was seen by the ED physician, who continued the wrist and chest restraints and obtained a history, physical examination and various laboratory tests. The emergency physician notes state that the patient was awake, irritated, and combative. The patient had an IV access route started and was given 5 mg of valium IV for agitation. The patient's admission was scheduled with the diagnosis of 1) acute psychosis, rule-out drug withdrawal and 2) poorly controlled hypertensive cardiovascular disease.
Subsequently, the ED nurse loosened or removed one of the patient's wrist restraints so that he could use a urinal. This nurse stated that she reapplied the restraints afterward. An intern was called to the ED to perform an admitting history and physical exam. The patient was in restraints during and following this examination. Sometime after the completion of the admitting history and physical exam, the patient and/or his wife asked the intern if the patient could use the bathroom facilities. The restraints were removed and the patient went to the bathroom from which he eloped. In the parking lot of the hospital the patient attacked a woman and attempted a carjacking of her vehicle. This woman subsequently brought suit against the hospital and the emergency physicians.52
This is a companion case to the last case on chemical restraint. Just as you should not transfer or discharge a patient who has been chemically restrained until the effects of the medication are gone and the reasons for the original use of the drugs no longer exist, you must not remove the physical restraints from a patient when the condition for which the restraints were used persists. In this case the patient was physically restrained because of mental illness with potential dangerousness to himself or others. There is no evidence that the patient was sufficiently recovered from these conditions to warrant release of the restraints. It was foreseeable that this patient, if unrestrained, would escape and injure himself or third parties. Whereas you cannot keep a patient in restraints indefinitely, you cannot remove the restraints until the reason/s for the initial use of restraints no longer are operative.
Summary
A primary responsibility of the emergency physician is to ensure the safety of the patient, other ED patients, the ED staff, and foreseeable third parties. This will often require the use of restraints in the incompetent and/or "dangerous" patient. In addition, it is often necessary to use restraints to exclude an emergent medical condition in a patient who is combative and uncooperative.
However, it must also be remembered that the ED patient has certain constitutional rights and that lawsuits against the emergency physician for battery or false imprisonment are possible in these situations. Thus, one should never restrain an ED patient thoughtlessly or for convenience.
Notwithstanding patient rights, the take-home message for emergency physicians is that it is better to err on the side of restraint. Historically, more suits are brought and won for failure to restrain a patient than are brought for improper detention/restraint and the monetary exposure is usually much greater for the former than the later.
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52. Litigation in progress, personal communication
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