ED Patients May Sue for Injuries Arising from Restraint
ED Patients May Sue for Injuries Arising from Restraint
Patients may claim assault or false imprisonment
Use of excessive force. Misapplication of restraints. Failing to follow standards from the Centers for Medicare & Medicaid Services (CMS) or The Joint Commission. Any of these practices can result in a liability claim from an ED patient for injuries arising from restraint.
"Using restraints, or not using restraints, can lead to litigation, just as any encounter in emergency care," says Matthew Rice, MD, JD, FACEP, an ED physician with Northwest Emergency Physicians of TEAMHealth in Federal Way, WA.
A patient may be injured when they should have been restrained for evaluation and treatment. On the other hand, staff or another patient could be injured by a patient who should have been restrained, but wasn't. To make things more complicated, a patient may claim they were physically assaulted if restraint is used.
ED staff could be liable for a patient's injury resulting from the use of restraints if it can be shown that the use of a particular restraint fell below the standard of care, says Edward Monico, MD, JD, assistant professor in the section of emergency medicine at Yale University School of Medicine in New Haven, CT.
"The use of restraints could fall below the standard of care if patients suffer injuries such as peripheral nerve palsies from inappropriate positioning, fracture and or dislocations, falls from stretchers, or prolonged restraint without reassessment," says Monico.
The type of injury resulting would depend on the type of restraint used. "For instance, liability could arise out of the use of chemical restraints if injury followed from the incorrect dose or a failure to properly monitor a sedated patient," says Monico.
According to Stephen A. Frew, JD, vice president and risk consultant with Johnson Insurance Services, a Madison, WI-based company specializing in risk management for health care professionals, "The ultimate liability risk in all circumstances is the risk of claims for injury to the patient and to other patients and visitors from a hospital failure to properly secure and protect the patient themselves and others from reasonably foreseeable violence by the patient."
Both CMS and The Joint Commission have extensive requirements regarding restraint and the circumstances under which it can be applied and maintained. "These rules define when physical or chemical restraint may be used, medical protocols for prompt assessment, documentation requirements, and requirements for monitoring and release," says Frew.
Frew says that liability risks involving restraint are best addressed by policies and procedures, familiarity with de-escalation techniques, training, adequate staffing, and an effective security plan.
Rice notes that restraint is an important tool for emergency physicians, and if used properly, assists in providing appropriate and safe care to patients and those around the patient. "Some of the considerations are determining which patients meet the criteria to be restrained for their best interests in receiving care and in protecting the patient and others around the patient," says Rice.
Here are ways to reduce risks involving restrained patients in the ED:
Choose the right method of restraint.
"Careful consideration of underlying causes of abnormal behavior can assist in selecting the right method of restraint," says Rice. At times, both chemical and physical restraints may be necessary, he adds.
"Restraining the patient also incurs risk if the 'wrong' method or inappropriate form of restraint was chosen," says Rice. For example, side effects of various chemical restraint medications can lead to litigation, such as complications from antipsychotics. Some medications can cause amnesia, or physical accidents due to the drug's side effects.
"Even the right method for the right reasons can lead to risk," says Rice. "For example, there are cases of individuals litigating for 'false imprisonment' when confined to locked rooms for their safety."
Document the reasons for restraint, and why a method of restraint was chosen.
"Using the least restrictive method that provides the needed results and documenting this reasoning is important for good team communications, as well as for any after care review that may occur," says Rice.
Give staff appropriate training.
"It is not uncommon for medical staff to be threatened or physically abused by agitated patients," says Rice. "Thus, appropriate training for unusual patients and their management by the ED team is necessary."
Monico says that individuals involved in restraining violent patients must be properly trained in how to do so. This intent of this training should be to mitigate risk to the patient and the ED staff.
"ED policies should reflect the notion that restraining violent patients is performed only by trained personnel," says Monico. "ED policies should reflect the medical literature's recommendations and The Joint Commission's desire that physical restraints only be used only after other maneuvers, such as one-to-one observation or distraction, have failed. "
Perform careful monitoring of restrained patients.
"This is critical to avoid complications, or add additional measures if needed to protect the patient, staff and others in the ED, as well as manage the underlying patient's condition," says Rice.
Could ED Staff Sue?
As for potential liability risks if an ED staff person, nurse or physician employee is injured while attempting to restrain a patient, Frew says that while there is always a serious risk of harm in any physical confrontation with a patient, in most states this risk is already addressed from the employer's perspective through worker's compensation laws which typically limit employee recovery to state-defined benefits.
"The employee may potentially have a claim against the patient for injuries sustained, but these violent patients are not likely to have substantial assets or insurance to pay damages for the injuries they caused," says Frew.
The employer does, however, face potential investigations and fines from the Occupational Safety and Health Administration if they fail to provide appropriate training, equipment, and security, notes Frew.
"The liability risks flowing from injury to personnel is largely fact-dependent," says Monico. For instance, the hospital, ED physician, and medical director could face liability if an ED staff person, improperly trained in the use of restraints, was requested to restrain a violent patient and an injury manifested out of that request.
"Similarly, ED staff enjoy rights protecting their body from physical injury that results for another's negligence," says Monico. "This negligence, for example, could include a patient's use of alcohol. Many of these protections are state-specific."
Failure to have in place protocols which address how violent patients are to be made safe and how to protect ED staff in these situations could result in liability for those obligated to provide such policies, says Monico.
"ED medical directors, department chairs, ED contractors and hospital medical directors might be most at risk," says Monico.
Sources
For more information, contact:
Stephen A. Frew, JD, Vice President-Risk Consultant, Johnson Insurance Services LLC, Madison, WI 53717. Telephone: (608) 245-6560. Fax: (608) 245-6585. Email: [email protected].
Edward Monico, MD, JD, Department of Surgery, Section of Emergency Medicine, Yale University School of Medicine, New Haven, CT 06519-1315. Phone: (203) 785-4710. E-mail: [email protected]
Matthew Rice, MD, JD, FACEP, Northwest Emergency Physicians of TEAMHealth, Federal Way, WA 98003. Phone: (253) 838-6180, ext. 2118. Fax: (253) 838-6418. E-mail: [email protected]
Use of excessive force. Misapplication of restraints. Failing to follow standards from the Centers for Medicare & Medicaid Services (CMS) or The Joint Commission. Any of these practices can result in a liability claim from an ED patient for injuries arising from restraint.Subscribe Now for Access
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