Should you restrain your patient? Know legal risks

ED doctors "walk a tightrope"

You find yourself wrestling with an uncooperative, intoxicated trauma patient who removes his own cervical collar. It's easy to see that this scenario is fraught with legal risks, but what is the right thing to do in this kind of situation?

"The issue is simple," says Sandra Schneider, MD, professor of emergency medicine at University of Rochester (NY) Medical Center. "You need to do what is in the best interest of the patient and for the safety of both them and the staff."

However, Schneider adds that restraining patients against their will is potentially a battery, while allowing patients to hurt themselves can be interpreted as malpractice.

Which is more likely to result in a lawsuit? ED physicians are more susceptible to being sued for not restraining a patient who falls and is injured as a result, according to Ken Braxton, a partner at the Dallas, TX-based law firm Stewart Stimmel. "A common scenario involves an elderly patient with some form of dementia who requires restraint to keep them from falling or wandering off — despite the efforts of the ER staff to instruct them and their family, if present," he says.

Edward Monico, MD, JD, assistant professor in the section of emergency medicine at Yale University School of Medicine in New Haven, CT, agrees that ED patients are more likely to sue if you don't restrain them and they are injured as a result, than for being restrained against their will. "There are clearly more cases on the books of patients entering litigation because of a failure to diagnose a condition that should have been diagnosed, than for the inappropriate use of restraints," says Monico.

The damages that flow from the failure to diagnosis a condition that resulted in the death of a patient are typically easier to measure, and more substantial than those resulting from restraints.

"The prospect of securing a significant damage award is clearly a carrot known to attract the attention of a trial lawyer," says Monico. "Damages, therefore, may not be the only thing driving these claims, but it certainly has its hand on the wheel."

Capacity is an issue

If an injured patient requires restraint because of a closed head injury, then the treating ED physician might rightfully conclude that the patient does not have the capacity to refuse treatment, says Monico.

"That physician would then turn to the substituted judgment doctrine to render the medical care the patient would have reasonably expected if he possessed the capacity to make health care decisions," says Monico.

Failure to recognize this would put the ED physician at risk for a claim for failure to diagnose the closed head injury. However, Monico cautions that the appropriateness of this response hinges on the physician's assessment of capacity.

"Patients with capacity to make decisions, even if those decisions seem clearly wrong, retain the right to dictate what happens to their body," he says. "Physicians who do not appreciate this balance walk a tightrope between the threat of civil litigation and the specter of the criminal prosecutor."

Intoxicated patients who are physically uncooperative may pose a foreseeable threat to their safety or the safety of others. "ED physicians can reasonably restrain these patients for their safety," says Monico. "Document serial assessments to demonstrate the absence of concomitant injury or a co-ingestion that might threaten the patient's safety and health."

ED physicians who allow patients with diminished capacity to refuse appropriate medical intervention are most likely to be liable for failure to diagnose a condition that caused the harm the patient realized. "Conditions that present with altered mental status, such as infection and closed head injuries, could mitigate a patient's decision-making capacity at the time of presentation and result in severe morbidity or death," Monico says.

Good documentation could save you

Careful documentation of the presence or absence of capacity is "a physician's best defense against later claims of medical malpractice," says Monico. "Absence of capacity, citing the suspected etiology of the diminished capacity and why this poses a threat to the patient's safety, should be the minimum required documentation."

Schneider says that the chart should accurately reflect why restraints were ordered, and that patients in restraints should be frequently observed, with their condition noted. Document what they are doing, why no chemical sedation is being used, and their current risk of hurting themselves or others.

Document the behavior of the patient that led to restraints, attempts made to control the patient's behavior without restraints, and a statement that the behavior was a danger to the patient and/or the staff.

"This will not protect the physician from being named in a suit, but it will clearly help to win it," says Schneider.

Good documentation on why a patient was not restrained can make or break the outcome of a lawsuit. Braxton defended an ED physician several years ago who was sued by a 78-year-old woman who owned her own business. After getting home from work, she began having transient ischemic attacks, so she called 911 and was transported to the ED. The triage nurse documented that she was alert and oriented, with a Glasgow Coma Scale (GCS) score of 15.

The ED physician was concerned about hypertension, so he placed the patient on cardiac monitoring. "He visited with her for about 20 minutes and documented her complete history, including her insistence on being discharged so she could see the U.S. president who was coming to town," says Braxton. "He explained that she would need to be monitored overnight and would probably go home the next morning."

When he left the room, despite the nurse's and doctor's warnings to stay in bed and call if she needed anything, the patient got out of bed to go to the restroom. She fell, causing significant injury, and subsequently sued the doctor and the hospital.

Her attorney argued, and her ED expert testified to the jury, that she had a stroke, was incoherent, needed to be physically restrained, and that warnings and side rails being raised were not sufficient. The nurse's timed documentation on educating the patient of the use of the call button and putting the side rails up, along with the extensive history elicited from the doctor, including the discussion of their mutual interest of the President, was blown up into a chart for the jury to view.

"This documentation evidence was all the jury needed to render a defense verdict," says Braxton. "They were sympathetic to the plaintiff because of her age and her work ethic, but could not ignore the written documentation by the defendants."

Sources

For more information, contact:

  • Ken Braxton, Partner, Stewart Stimmel, 1701 N. Market St., Suite 200, Dallas, TX 75202. Phone: (214) 615-2013. Fax: (214) 752-6929. E-mail: Ken@stewartstimmel.com
  • Edward Monico, MD, JD, Department of Surgery, Section of Emergency Medicine, Yale University School of Medicine, 464 Congress Avenue, Suite 260, New Haven, CT 06519-1315. Phone: (203) 785-4710. E-mail: edward.monico@yale.edu
  • Sandra Schneider, MD, Professor, Emergency Medicine, University of Rochester Medical Center, 601 Elmwood Ave., Room 2-1800, Rochester, NY. Phone: (585) 463-2970. E-mail: Sandra_Schneider@URMC.Rochester.edu