Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

Case Reviews involving Restraints and Seclusion of Involuntarily Committed Patients

Cynthia Cambron, Esq Cristina Palacio, Esq.
Senior Associate General Counsels Shands Healthcare
5-3-3 On December 8, 2006, the Centers for Medicare and Medicaid Services (CMS) finalized the Patients’ Rights Conditions of Participation applicable to all Medicare and Medicaid hospitals. The purpose of the rule is to require minimum protections for patient’s physical and emotional health and safety. The regulation specifically supports patients’ rights to be free from inappropriate use of restraint and seclusion.  It does, however, recognize that there are legitimate uses for restraint and seclusion. In light of these regulations, this comment will review and discuss two cases where restraints were used on involuntarily committed mental health patients and one case where seclusion was improperly used on a mental health patient. The regulations provide, in part, that “The use of a restraint or seclusion must be in accordance with the order of a physician or other licensed independent practitioner who is responsible for the care of the patient…and authorized to order restraint or seclusion by hospital policy in accordance with state law.” It also states, “when restraint or seclusion is used, there must be documentation in the patient’s medical record of the following: (i) the 1-hour face-to-face medical and behavioral evaluation if restraint or seclusion is used to manage violent or self-destructive behavior…”  The following cases discuss restraint and seclusion and point out the liability of hospitals and providers when they do not comply with the patient protections provided in the regulations.   Rohde v. Lawrence General Hospital (Mass. Ct. App. 1993) On Nov. 12, 1987, believing him to have “some kind of mental problem” after being found at the scene of a minor car accident expressing “strange and irrational” thoughts, the local police brought Mr. Rohde into the hospital ED.  While being examined, Mr. R jumped off the carrier and assaulted a clinician, after which he was handcuffed to the bed by the police. After being successfully examined, he was diagnosed as having an acute psychotic episode.  The examining MD admitted him to the hospital pending return of certain test results before transferring him to a mental health facility and entered an order for leather restraints.  The primary nurse on duty at the time of his admission documented the removal of handcuffs and placement of 4-point leather restraints. A little over an hour later, Mr. R managed to free himself from the restraints and he left the hospital, hopped into an unlocked parked car in the hospital lot with the engine running, drove off, and crashed into a fence causing himself serious injuries. Then he sued the hospital for negligently failing to secure the restraints, and failing to supervise him. The court stated that “the case could hardly be clearer for the responsibility of the hospital to place restraints on Rohde, as ordered by [the physician], and to provide the necessary supervision of Rohde while under restraints. This is a ‘garden-variety case where…attendance was needed but lacking at the time.’”   Marvel v. County of Erie (N.Y. App. Div. 2003) Mr. Marvel was involuntarily committed to Erie County Medical Center in July 1997. In the ED of ECMC, a nurse assessed Mr. M, found him to be intoxicated and since he was in involuntary status and threatening to leave, placed him in wrist restraints until he could be seen by a physician. After spending some time in restraint, Mr. M was examined by a resident; 15 minutes after which he freed himself, ran through the hospital, hung off the balcony, and fell 20 feet to the ground, injuring himself. While the RN was aware of the hospital’s policy requiring “constant supervision,” she alleged that “constant supervision” did not require 1 on 1 supervision, merely that the patient be “in eyesight.” Nevertheless, she admitted that Mr. M had not been continually kept in view of the staff prior to the physician’s arrival. Hospital policy also required that restraints be checked every 30 minutes and an assessment of the patient condition be made at least every 15 minutes and recorded. No such documentation was made. Further, contrary to both hospital policy and state law, the RN did not immediately summon a physician upon initiating the restraint. When the resident did arrive, he did not check the patient’s restraints while with him. Additionally, the resident testified he was not even aware that the hospital had a restraint policy. Considering both the statutory requirement for constant supervision of involuntarily committed patients in restraints and the hospital’s policies, and based on the nurses testimony and other evidence that Mr. M was left alone for a period long enough to undo his restraints and run through the hospital to the balcony, the court found that the hospital did not provide the requisite constant supervision.   Dohilite v. Maughon et al (11th Circuit, M.D. Alabama 1996)   David Dohilite, the minor son of the plaintiffs, was involuntarily committed to a state mental health facility because of problematic behavior at school and at home.   During his initial assessment it was determined that David reported having attempted suicide, had frequent suicidal ideations, was obsessed with writing poetry about death, and had some family history of suicide. After his initial evaluations, David was assessed as giving the “diagnostic impression of conduct disorder solitary aggressive type.”   The patient exhibited self-destructive behavior while at the facility, including making suicidal threats and gestures. At one point David told the nurse that he “was going to cut his arm off and kill himself.” David was placed on continuous observation, i.e., one-on-one observation, until the next day when he was seen by a social worker who moved him to close observation with one-hour checks. In David’s Progress Notes, the social worker indicated that his reported suicidal thoughts were intermittent and without genuine intent and that he continued to enjoy the “shock value” of talking about suicide.   On numerous occasions, David was placed in seclusion after he destroyed facility property, threatened to cut himself with a piece of glass, and stated he was going to hurt himself if he got the chance. While in seclusion, David beat his head on a wall, cursed loudly and was described as “totally out of control.”   The record reflects that during David’s days at the facility, he was secluded for a period of fourteen hours, on dorm restriction for ten days, and in timeout for sixty-four hours. He was only seen by a psychiatrist twice. About 70 days after his admission, he hung himself. He was resuscitated, but his injuries left him severely brain-damaged. His parents brought suit against the facility and all health care providers involved in his care for denying their son his constitutional rights. The case centered around the issue of whether the defendants actions were within their discretionary authority and so protected by sovereign immunity. The court allowed the case to proceed as to one of the defendants who, it determined, was not protected by immunity because of her failure to properly monitor the patient.   Risk Reduction Tips:   The primary risk reduction tip to be learned from these cases is to follow your hospital policy, which should reflect the governing legal and accreditation standards.  The policy should specify, among other requirements, who is allowed to order restraints and seclusion for a patient, the monitoring requirements, and that least restrictive interventions are attempted and documented. It is also important to be especially careful with patients who are involuntarily committed for mental health treatment.  The threat of escape and injury, not injury from the restraints but from subsequent behavior, are elevated. Always provide appropriate supervision of at-risk patients.  When necessary, go up the chain of command in the facility to ensure that the patient and the hospital are protected.