2010.01.26

2008 (Ju) 2029

Minshu Vol. 64, No. 1

Judgment concerning the case wherein the court ruled that the act of the night shift nurses to have restrained an inpatient's arms to the bed using mitten restraints, is not in breach of duty under the medical care contract, nor can it be deemed to be illegal under tort law

Case to seek damages

Judgment of the Third Petty Bench, quashed and decided by the Supreme Court

Nagoya High Court, Judgment of September 5, 2008

The act of the night shift nurses to have restrained an inpatient's arms to the bed using mitten restraints (an instrument like long round gloves without separate fingers, with strings for binding attached thereto), given the factual circumstances mentioned in (1) to (3) below, is an act that was conducted as an urgent and unavoidable means to prevent the risk that the patient would fall down or fall off the bed and suffer a serious injury, and it is not in breach of duty under the medical care contract, nor can it be deemed to be illegal under tort law:
(1) on the day when said act was conducted, the patient was in a state of delirium, and she repeatedly called nurses frequently late at night, visited the nurse station by wheelchair and requested the nurses to change her diaper, and shouted loudly, and also in an excitement, repeatedly tried to sit up in bed; at that time, the patient was very old (80 years of age), and she had fallen down and broken a bone at another hospital four months ago, and also at the hospital in question, about ten days before the incident, she had fallen down while repeating said behavior in a state of delirium;
(2) despite the nurses' efforts over about four hours to try to calm down the patient by changing diapers at her request even when they were not wet and giving her some tea, the patient's excitement did not subside at all; and in light of the nurses' working conditions, it was difficult for one of the nurses to attend the patient through a long period of time late at night; and
(3) since the nurse took off the mittens quickly after confirming the patient's having fallen asleep, the patient was under restraint due to said act only for about two hours.

Article 415 and Article 709 of the Civil Code

Article 415
If an obligor fails to perform consistent with the purpose of its obligation, the obligee shall be entitled to demand damages arising from such failure. The same shall apply in cases it has become impossible to perform due to reasons attributable to the obligor.

Article 719　
(1) If more than one person has inflicted damages on others by their joint tortious acts, each of them shall be jointly and severally liable to compensate for those damages. The same shall apply if it cannot be ascertained which of the joint tortfeasors inflicted the damages.
(2) The provisions of the preceding paragraph shall apply to any person who incited or was an accessory to the perpetrator, by deeming him/her to be one of the joint tortfeasors.

The judgment in prior instance is quashed with respect to the part for which the appellant of final appeal lost the case.
The claims of the appellees of final appeal with respect to the part mentioned in the preceding paragraph are dismissed.
The appellees of final appeal shall bear the cost of the appeal to the court of second instance and the cost of the final appeal.

Concerning the reasons for petition for acceptance of final appeal argued by the appeal counsels, NAKAMURA Katsumi, et al.
1. In this case, the appellees of final appeal, who are the children of the plaintiff in the first instance, X, seek damages for a default or tort against the appellant of final appeal, who operates Hospital E (hereinafter referred to as the "Hospital"), alleging that the appellant committed an illegal act in breach of duty under the medical care contract by reason that the night shift nurses restrained X's arms to the bed while X stayed at the Hospital.

2. The outline of the facts legally determined by the court of prior instance is as follows.
(1) X (born in February 1923) had been hospitalized at the orthopedics department of Hospital F for her pains in both sides of her chest since June 20, 2003 (hereinafter the dates in 2003 shall be indicated without the year). On July 16, while walking in a state under the influence of a sleep-inducing drug, X fell down in the bathroom and suffered a fracture in the left side of her pubic bone.
On August 1, X was hospitalized at the department of internal medicine of the Hospital in order to receive medical treatment for intercostal neuralgia and a fracture in the left side of her pubic bone, and was discharged therefrom on September 12.
(2) On October 7, X was diagnosed as suffering osteoarthritis of the spine, renal failure, angina pectoris, etc. and was hospitalized at the department of surgery of the Hospital. Although X had difficulty walking due to lower-back pain just after being hospitalized, her condition took a turn for the better gradually, and she became able to move from the bed to the wheelchair and go to the bathroom, and stand up by holding the handrail. However, according to the nursing plan, there were instructions that X should not try to go to the bathroom when her pain was heavy, but should wear disposable underwear at daytime and diapers at nighttime.
(3) During the period from October 22 to November 5, X showed restlessness at night, touching a dustbin while shouting nonsense, and had symptoms of delirium (reversible disturbance of consciousness that varies within a short period of time, accompanied by clouding of consciousness, psychomotor excitement, illusion, hallucination, etc.), such as calling a nurse when she was suddenly unable to stand up while in the bathroom, or throwing the used toilet paper in front of herself instead of disposing it of in the toilet. On November 4, X called nurses repeatedly and requested them to put a diaper on her, and without understanding the nurses' explanations in response to her request, X went to the bathroom by herself and then stumbled and fell while walking by pushing the wheelchair on the way back.
(4) The Hospital is a designated emergency hospital, and has clinical departments including internal medicine, gastroenterology, surgery, rehabilitation, etc.
From the night on November 15 until the morning on the next day, there were three night shift nurses, B, C, D, in the ward where X was staying (the authorized number of beds: 41). These night shift nurses were supposed to attend 27 patients; among them, there was no patient with a serious illness but one "special patient (requiring special attention)" who was receiving drainage treatment.
(5) Although X had a sleep-inducing drug called Rize before lights out at 9:00 p.m. on November 15, she called nurses repeatedly even after that time and requested them to change her diaper. The nurses checked the diaper, and as it was not wet, they explained X to that effect and let her touch it, but she was not satisfied. Therefore, they changed X's diapers even when they were not wet, trying to calm her down.
Around past 10:00 p.m. on that day, X visited the nurse station, riding in a wheelchair pulling herself along using her feet, and complained with a loud voice that reached throughout the ward, "Please check my diaper" and the like. The nurse who attended X took her back to her room, pushing the wheelchair, changed the diaper and advised X to go to sleep. However, X repeated coming to the nurse station by wheelchair many times, and insisted that her diaper was wet. Every time X came, the nurses took her back to her room and changed her diaper even when it was not wet.
The nurses considered that giving X a psychotropic drug, which is more effective, was dangerous because of the bad conditions of her kidney function, and treated X in the manner described above.
(6) On November 16, around 1:00 a.m., X visited the nurse station by wheelchair again, tried to stand up from the wheelchair, and shouted, "My diaper is soaked with urine. Please change it," "My head is clear" and the like. Nurse C took X to her room, which is a four-person room, but thinking that X might make troubles for her roommates and that X was highly likely to repeat the same conduct and had a risk of falling down while doing so, Nurse C, with the help of Nurse D, moved X together with her bed to Room No. 201, which is a private room close to the nurse station.
Since X continued to complain, "Please change my diaper," even after moving to Room No. 201, Nurse C and Nurse D (hereinafter referred to as "Nurses C and D") tried to calm down X by talking to her and giving her some tea. However, X's state of excitement did not subside at all, and she still repeated trying to get up from bed. Therefore, Nurses C and D, using mitten restraints (an instrument like long round gloves without separate fingers, with strings for binding attached thereto), tied X's right hand to the right side of the bed frame and her left hand to the left side of the bed frame, respectively (this act shall hereinafter be referred to as the "Act of Restraining").
X untied the string of one of the mittens by pulling it with her mouth, but soon began to sleep. Nurses C and D checked X's state from the nurse station at intervals, and around 3:00 a.m. on November 16, after confirming that X had fallen asleep, they took off the other mitten, and took X back to her original room at dawn. X had subcutaneous /bleeding on her right wrist and abrasions on her lower lip, which seem to have been caused when she tried to take off the mitten.
(7) On November 21, X left the Hospital in order to receive medical treatment for renal failure at City Hospital G.
(8) X filed this suit on November 1, 2004, and then died on September 8, 2006, after oral argument in the first instance was concluded. The appellees, who are X's children, succeeded to X's rights and obligations.

3. The court of prior instance upheld the appellees' claims to the extent that they sought payment of 350,000 yen each, holding as follows.
(1) Although X was in a state of delirium, she did nothing more than getting up from the bed and moving to the wheelchair and visiting the nurse station, and such behavior cannot be found to have involved the risk that X would fall down or fall off the bed and suffer a serious injury unless the Act of Restraining was conducted. In addition, X's state of delirium was induced by stress from insomnia and being forced to excrete using diapers combined with other factors. What is more, considering that the nurses' poor manner of treating X, i.e. in the beginning, they tried to make X understand that her diaper was not wet, can be found to have further excited X and intensified her state of delirium, and that it cannot be imagined that it was impossible for one of the nurses to stay with X for a while to make her feel easy and calm her down and wait for her to fall asleep, the Act of Restraining cannot be found to be urgent or insubstitutable. In view of the fact that X suffered injuries including subcutaneous bleeding on the right wrist when she tried to take off the mitten, the manner of restraining her cannot be found to be moderate. Furthermore, since the Act of Restraining was conducted as a measure to cope with delirium at night, it was not a mere "care for nursing" but an act in which a doctor should have taken part, and therefore the Act of Restraining is also illegal in that the nurses conducted said act without consulting with the night shift doctor.
(2) In consequence, the Act of Restraining is an illegal act in breach of duty under the medical care contract, and constitutes a default and a tort.

4. However, we cannot affirm the holdings of the court of prior instance mentioned above, on the following grounds.
(1) According to the facts mentioned above, X, in a state of delirium, repeatedly called nurses frequently from after lights out until late at night, visited the nurse station by wheelchair and requested the nurses to change her diaper, and further shouted loudly at the nurse station and in her room. Even after X was moved together with her bed to a private room, her excitement did not subside and she repeatedly tried to sit up in bed. Moreover, at that time, X was very old (80 years of age), and she had fallen down and had a fracture in her pubic bone at another hospital four months before, and also at the Hospital, about ten days before the incident, she had fallen down while walking by pushing the wheelchair, without understanding the nurses' explanations. Judging from all these circumstances, we should say that at the time of the Act of Restraining, there was an extremely high risk that X, being excited in a state of delirium, would fall down while walking or fall off the bed and suffer a fracture or other serious injury.
In addition, in view of the fact that despite the nurses' efforts over about four hours to try to calm down X, who requested them to change her diaper frequently, by changing diapers even when they were not wet and giving her some tea, X's excitement did not subside at all, it was unimaginable that X's condition would have improved if any of the nurses continued to stay with her. What is more, since there were only three night shift nurses who should attend 27 inpatients at that time, it may be difficult for one of the nurses to have attended X through a long period of time late at night. Besides, X had been diagnosed as suffering renal failure, and it was considered to be dangerous to give her a psychotropic drug. Judging from all these circumstances, we should say that at the time of the Act of Restraining, there was no appropriate alternative means to prevent the risk of A's falling down or falling off the bed.
Furthermore, the Act of Restraining was conducted by fixing X's arms to the bed using the mittens, and according to the facts mentioned above, X soon took off one of the mittens by pulling it with her mouth, whereas the other mitten was taken off by the nurse quickly after confirming X's having fallen asleep, and as a result, X was under restraint only for about two hours. Therefore, the Act of Restraining, in light of X's condition at that time and other factors, can be found to have been at the minimum required level for preventing the risk of X's falling down or falling off the bed.
(2) Restraining an inpatient physically is permissible only when there are circumstances where such measure seems to be necessary and unavoidable for, among others, preventing the patient from suffering an injury. According to the facts mentioned in (1) above, the Act of Restraining was conducted by the nurses, who were taking care of X for medical treatment, as an urgent and unavoidable means to prevent the risk that X would fall down or fall off the bed and suffer a serious injury. Such act is not in breach of duty under the medical care contract, nor can it be deemed to be illegal under tort law. The fact that X suffered injuries including subcutaneous bleeding on the right wrist when she tried to take off the mitten by pulling it with her mouth does not affect this determination. Also according to the facts mentioned above, we cannot find any grounding for judging the nurses' failure to consult with the night shift doctor beforehand to be illegal.

5. The holdings of the court of prior instance that contravene this reasoning contain violation of laws and regulations that apparently affect the judgment. The appeal counsels' arguments are well-grounded, and the judgment in prior instance should inevitably be quashed with respect to the part for which the appellant lost the case. Based on our holdings as shown above, the judgment in first instance dismissing the appellees' claims is justifiable, and therefore the appeals to the court of second instance filed by the appellees should be dismissed.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice KONDO Takaharu
Justice FUJITA Tokiyasu
Justice HORIGOME Yukio
Justice NASU Kohei
Justice TAHARA Mutsuo