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I would like to share with you some information related to a case that I recently testified in for the defendant RN in a hearing before the BRN, Department of Consumer Affairs by an Administrative Law Judge of the Office of Administrative Hearings. The BRN alleged that the defendant RN restrained a mentally challenged female patient in the prone position. The charges included "Unprofessional conduct" and "Incompetence and/or Gross Negligence." The BRN was seeking to revoke the defendant RN’s nursing license.

A 35 year old female was taken by ambulance to the hospital Emergency Room. The ambulance personnel charted dyspnea as the chief complaint and the vital signs showed an elevated heart rate of 116-122 and an elevated respiratory rate of 36 & 48. Her oxygen saturation was low at 92% despite the use of oxygen and 80% without oxygen. A breathing treatment was given enroute to the hospital. The patient is noted to be agitated & combative.

Admission time to the Emergency Room was 8:54 p.m. The chief complaint is noted to be shortness of breath. The triage nurse notes at 9:00 p.m. that the patient is agitated and non-compliant and "It is very difficult to obtain the vital signs." The patient is "wild, violent and refuses neurological assessment." The patient was seen by the ER physician and a progress note is written at 9:10 p.m. The patient is noted to have a history of heart surgery and Downs Syndrome. The physician notes that the patient recently had surgery which resulted in complications requiring an additional seven day stay in the ICU on the ventilator due to pneumonia.

The father reports that the patient was in the ER a few days prior for shortness of breath. During that ER admission the patient was given Haldol, Benadryl and Decadron. That ER physician notes that "due to her mental retardation it is very difficult to obtain her vital signs or pulse oximetry." The ER physician also notes that the patient required chemical sedation with Haldol and Benadryl. Upon discharge a prescription for Ceclor and Phenergan was given. The discharge diagnosis was bronchitis.

The father tells the ER physician in the second ER visit that the patient is "No better tonight" and that her breathing is worse and she is breathing fast. The home medications for the patient are noted to be Risperidal, Albuterol, Ceclor & Phenergan.

At 9:30 p.m. the patient was moved from Bed 4 to Bed 1. Her nurse is now the defendant RN. The defendant RN had worked at this hospital many times in the past. At 9:40 p.m. the defendant RN charts that the patient is agitated, wild, very strong and he is unable to get her vital signs. Per the physician orders the defendant RN gave the patient injectable Haldol and Benadryl for her agitation with the help of five other ER personnel.

The ER physician dictates that the patient is agitated and does not communicate. The ER physician notes that the patient is disturbed and cries out loudly throughout the ER. He also charts that the patient will not rest in bed and moves in the bed uncontrollably. The patient is noted to have a fast heart and respiratory rate. The physician notes that the patient is difficult to examine, so much so that a breathing treatment was difficult to be given. The physician also charts that the patient’s agitation precluded her from being fully monitored since her admission because the patient would not keep her EKG leads on. Orders were written for labs, chest x-ray and blood cultures. Due to the agitation and non-compliance of the patient the lab draw could not be carried out.

At 9:38 p.m. the respiratory therapist gave a breathing treatment of Proventil via a mask. The patient’s heart rate was elevated up to the 120’s before and after the breathing treatment. Her respiratory rate was elevated to 24 and her oxygen saturation was down to 87% after the breathing treatment. Right after 9:50 p.m. the respiratory therapist gave another breathing treatment and the patient’s heart rate and respiratory rate did not get any better and her oxygen saturation is noted to be at 86%. At 10:05 p.m., near the time the patient coded, another breathing treatment was given by the respiratory therapist and again the heart rate and respiratory rate were still abnormal and similar to the previous vital signs and the oxygen saturation was noted to be low at 87%.

The nursing notes at 10:00 p.m. show that the patient is "wild and thrashing about." The respiratory rate is high at 36-40 per minute. The defendant nurse notes that he is unable to obtain a pulse oximetry reading, blood pressure or heart rate. The defendant nurse notes that the ER staff, the physician and the father had all attempted at different times since 9:00 p.m. to calm the patient down but was unable. At 10:01 p.m. the defendant nurse charts that he is at the bedside with the father and that the patient stopped breathing. The defendant nurse had to turn the patient onto her back from her stomach. A code blue was called and the ER physician arrived. At 10:48 the patient was pronounced dead. The autopsy results stated that the cause of death was acute bronchitis, peribronchitis and focal bronchopneumonia.

Within a few days the Department of Health Services (DHS) received a complaint from the CNO (Chief Nursing Officers) of the hospital. The CNO reported that a patient was admitted to the ER and was "agitated and so uncooperative that it was difficult to deliver care." The CNO informs DHS that after the death of the patient they implemented an "in-depth root cause analysis." The CNO believes a nurse restrained the patient in the prone position.

DHS presented to the hospital a few days later to carry out an investigation. After the investigation DHS considered the complaint to be "unsubstantiated, unable to verify, lack of sufficient evidence." However, DHS did cite the hospital for not having a restraint policy that included the application of restraints only in the supine position and also for not having a nursing competency checklist for restraints to include proper positioning.

A letter was sent by the DHS to the Board of Registered Nursing (BRN). DHS informs the BRN that according to the hospital staff who were interviewed the patient would not allow herself to be examined and she was "flailing" her arms and legs. DHS reports that while the patient was on her stomach on the gurney the nurse fastened both legs and one arm down leaving the patient in the prone position. DHS states they interviewed the Director of the ER and the Risk Manager. DHS concluded that the patient was restrained in an "unconventional" position.

In the declaration of the defendant nurse he states that the father was with the patient the entire time of the incident. The patient is noted to be uncooperative and would scream and flail about anytime a staff member would come near her. The father told the defendant nurse that "You will have to tie her down for any treatment to be done." The defendant nurse states that it required four people, 3 ER personnel & the father, to hold the patient down in order to restrain her due to her wild thrashing. The three ER personnel had applied two soft ankle restraints and one arm restraint (the right arm) when the patient flopped herself over onto her stomach. She was screaming and yelling when suddenly she stopped breathing. The defendant nurse was at the head of the bed and checked her and then untied her and turned her over onto her back. At this time resuscitation was started.

In a note prepared by the defendant nurse he describes that each time a staff member approached the patient she would be wild and would thrash about. At approximately 9:45 p.m. the defendant nurse, another nurse, the ER tech and the father placed the soft restraints on the patient’s ankles and her right arm. She was screaming, fighting, rolling over and over, wild, thrashing and twisting. The fourth restraint was being applied to the left wrist when it was noticed that the patient was not breathing. She was immediately untied and she was log rolled from her stomach to her back with the help of multiple ER personnel. A code blue was called.

Upon my personal phone interview with the defendant nurse he explains that the patient was yelling, screaming and flip-flopping around. The defendant nurse was unable to use his stethoscope to assess the patient and the defendant nurse was not able to put the EKG leads on the patient. The father was trying to calm the patient down but was not able to. The defendant nurse states that both ankles and the right wrist were retrained at the time that the patient turned herself over on the gurney. The defendant nurse states that someone else was holding the patients legs down and that the restraints were tied to the frame of the bed. The defendant nurse states that the patient was never completely on her stomach and that she was only partially on her stomach which was a result of her thrashing and flip-flopping around. The defendant nurse states that the patient was restrained in the supine position but while being restrained she was able to partially reposition herself onto her abdomen since the left wrist restraints had not yet been tied down to the bed frame.

It was my expert nursing opinion based on record review and the statements and/or interviews that the patient was capable of positioning herself onto her abdomen face down with the three restraints applied while she was in the supine position, by turning herself to her left side while the left wrist was being restrained.

I was able to show this to the BRN judge at the hearing, by doing a reenactment of the events that occurred that evening according to various witnesses. The reenactment was video taped. I asked five of my co-workers to help me with the reenactment. We used a gurney that was similar to that used in the ER and we used soft restraints similar to that used that evening. One of the co-workers acted as the patient and one acted as the father. The others acted as the two nurses (one the defendant nurse) and one acted as the ER tech. I was able to clearly show that the patient was able to turn herself from the supine position over to her left side onto her abdomen with her face down with two ankle and one wrist restraint secured in place.

In addition to showing the video of the reenactment my defense of the case also included the following:

1.) The people that the BRN and DHS interviewed included the triage nurse, the CNO (who was not the CNO nor an employee at the time of the alleged event), the ER director and the risk manager. None of these people were present during the alleged incident

2.) The BRN nor the DHS investigator or the BRN nursing expert interviewed any of the hospital personnel that were helping the defendant nurse apply the soft restraints, i.e. the ER tech and the other nurse. They also failed to interview the other ER personnel who were present at the time of the patients ER admission, i.e. the respiratory therapists, other nurses, the ER physician, the charge nurse, secretary and the house supervisor

3.) The hospital CNO reported the defendant nurse to the BRN for applying restraints to the patient in the prone position but did not report its own employees (one nurse and one ER tech) for helping with the application of the restraints. My opinion was that if the defendant nurse applied the restraints while the patient was in the prone position and the BRN was trying to revoke his license then why weren’t the two hospital employees having the same charges brought against them since they assisted in the restraining process.

4.) No where in the records or the interviews did anyone say that the patient was ever in the prone position while in restraints. In fact, all the information obtained during interviews and medical records review show that the patient was on his "stomach/abdomen or was face down." The BRN took these three descriptions of the patient’s position and adopted the word "prone" on its own. Again I was able to show on the video reenactment that the patient was able to flip herself over onto her stomach/abdomen with her face down while being restrained in the supine position.

5.) I was also able to show that the BRN nursing expert, who criticized the defendant nurse, adopted the word "prone" from the BRN report and did not find that description anywhere else in her investigation of the alleged incident.

6.) I was allowed to explain the pathophysiology to the judge based on my nursing experience and education related to the patient’s symptoms while in the ER, i.e. low oxygen saturation, elevated respiratory rate and heart rate. I explained that those symptoms would be worsened or exacerbated due to the patient’s kicking and thrashing around resulting in a even lower oxygen saturation, higher oxygen demand and an even higher heart rate and respiratory rate leading to a patient’s respiratory and/or cardiac arrest.

Though it took two months the judge was of the opinion that the defendant nurse did not restrain the patient in the prone position and no charges were brought against the nurse. He was able to keep his license without any restrictions or probation.

A copy of the judge’s "Decision and Order" was sent to me by the attorney who retained me. The judge indicates that the nursing expert for the BRN had not been provided all of the documents that I had been provided. Unlike me the nursing expert for the BRN did not interview the defendant nurse. The judge states that the DVD that was prepared by me "convincingly" supported the defendant nurse’s version of the events. The judge was also convinced after my testimony that there was no where in the medical records or in the interviews that the word "prone" was used when describing the patient’s position. The judge was also convinced after my testimony that it was unlikely that the other hospital employees that were caring for the patient would allow or be a part of applying restraints while the patient was in the prone position. Lastly, the judge understood my explanation of how a breathing treatment is given and since a breathing treatment was being given at the time of the code blue it would be unlikely that the patient would be in a prone position.

The judge’s final opinions were that my testimony was more "persuasive" because I had reviewed all of the documents. He concluded that I had conducted a thorough review of the records and I convincingly explained how the assumption that the patient was "prone" was made and how the evidence did not support that assumption. The judge determined that since I had reviewed all the documents and had completed a careful review of the records demonstrated that I was "much less an advocate than the BRN’s nursing expert, who was willing to express an expert opinion based on the limited evidence made available to her."


Laura Burchell-Henson, RN, CCRN, RCP, LCP, SANE has consulted on more than 350 cases since 1999. She has testified in deposition more than 90 times, trial more than 15 times, arbitration 5 times, mediation once and numerous BRN hearings for the defendant. She has been a Certified Legal Nurse Consultant (CLNC) since 1998 and has an independent practice as Medi-Legal Consultants, Inc.

*****

Medi-Legal Consultants, Inc.

Laura Burchell-Henson RN, CCRN, RCP, CLNC, LCP, SANE

P.O. Box 1229 Lakeside, Ca. 92040

Bus (619) 749-5476

Fax (619) 749-5185

E-mail: medi-legal@cox.net

www.medi-legal.org

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