The Fear of Liability and the Use of Restraints in Nursing Homes

Routine use of restraints is that which is not supported by a diagnosis of the cause of the behavior to be restrained, by an assessment of the effectiveness of the restraint in modifying that behavior, the risks posed by the restraint and a consideration of alternatives that pose less risk to the patient. The Institute of Medicine study of nursing home care identified excessive use of restraints (judged by the number of residents restrained in a facility in light of the number of the facility's residents “at risk” for restraints) as a measurement of poor care. Institute of Medicine, Improving the Quality of Care in Nursing Homes 84, 116, 118, 121 (1986).

See discussion at notes 5–12, infra.

See discussion at notes 58–61, infra.

Ouslander J. , “Medical Care in the Nursing Home”, 262 JAMA 2582, 2587 (November 10, 1989)[hereinafter Medical Care]; Beers M. Avorn J. Soumeral S. Everitt D. ., “Psychoactive Medication Use in Intermediate Care Facility Resident”.”, 260 JAMA 3016 (November 25, 1988).

Snyder L. Ruprecht P. Pyrek J. ., 18 The Gerontologist 272 (May/June 1978); Strumpf N. and Evans L. , “Physical Restraints of the Hospitalized Elderly: Perceptions of Patients and Nurses”, 37 Nursing Research 132 (May/June 1988)

Evans L. Strumpf N. , “Tying Down the Elderly: A Review of the Literature on Physical Restraint”, 37 J. Am. Geriatric Society 65 (1989) [hereinafter, Tying Down]; Rubenstein H. Miller F. Postel S. Evans H. , “Standards of Medical Care Based on Consensus Rather Than Evidence: The Case of Routine Use of Bedrails for the Elderly”, 11 Law, Medicine & Health Care 271 (1983).

Dube A. and Mitchell E. , “Accidental Strangulation from Vest Restraints”, 256 JAMA 2725 (November 21, 1986).

Harper and Lyles , “Physiology and Complications of Bed Rest”, 36 J. Am. Geriatric Society 1047 (1986).

Cohen-Mansfield J. , “Agitated behaviors in the Elderly: Preliminary Results in the Cognitively Deteriorated”, 34 J. Am. Geriatric Society 722 (1986).

Examples of misdiagnoses attributable to the use of restraints include two described during hearings on the use of restraints in nursing homes. An 85-year-old woman who had fallen out of bed was returned to bed and restrained to prevent another fall. Her agitation and screaming over several weeks were “treated” with further restraints. Finally, it was discovered that the woman had suffered a neck fracture in the earlier fall. In another incident, a patient receiving multiple medications was diagnosed as psychotic and medicated with an additional drug, this time an anti-psychotic medication. After some time, it was discovered that she suffered from a drug-induced psychosis which would be treatable by altering her earlier medications. Drug Abuse in Nursing Homes, Hearings Before the Congressional Committee on Aging, 100th Congress, 1st Session (1980) at 86 and at 59.

Strumpf and Evans , “Physical Restraints of the Hospitalized Elderly: Perceptions of Patients and Nurses”, 37 Nursing Research 132 (May/June 1988).

Down Tying , supra note 6; Tiderksaar R. , “Geriatric Falls: Assessing the Cause, Preventing Recurrence”, 44 Geriatrics 57 (1989).

“[C]ontinued poor reimbursement to nursing homes and other long term care facilities — by the federal government in particular — very well may stop the move to a restraint-free environment in its tracks.” Brodeur , “Long-Term Care: How Necessary Are Physical and Chemical Restraints”.” 5 Issues 1 (Jan. – Feb. 1990).

Regulations relating to minimum space and design requirements may impede changes in environmental designs that will minimize dangers to ambulatory patients. See generally, Environmental Design, Supp. to AAHA Provider News (July 31, 1987).

Several researchers have suggested that a reorganization of staffing from shifts of workers with specialized job assignments to teams who work with particular residents on a continuous basis would foster higher job satisfaction and more responsiveness to the individual needs of residents. See e.g., Ramian, “The Resident Oriented Nursing Home: A New Dimension in the Nursing Home Debate Emphasis on Living Rather Than Nursing”, 5 Danish Medical Bulletin 89, 91 (1987); Cherau, “Permanent Team Assignments: Quality Care That Makes Good Sense”, Nursing Homes 22 (July/August 1983). An administrator of a multi-facility nursing home organization reports that nine of their facilities have reduced their use of restraints “without increasing falls, staff or costs”. Benac, “Nursing Homes Turn Away from Tethering the Elderly”, Los Angeles Times, January 7, 1990; Part A; page 2; column 1 (from NEXIS).

“[Long-term care] is plagued by an overriding sense that the clientele are in inevitable decline…” Kane and Kane, “Long-Term Care: Variations on a Quality Assurance Theme,” 25 Inquiry 132, 132 (Spring 1988).

Holder , “A Consumer Perspective on Quality Care: The Resident's Point of View”, 5 Danish Medical Bulletin 84, 87 (1987). The residents surveyed had lived in the nursing home an average of four years. One-third were over 80; and one-third were in their 70s. 41% used wheelchairs and 50% needed assistance in getting around. At 86.

Callopy , “Autonomy in Long Term Care: Some Crucial Distinctions”, 28 The Gerontologist 10, 10 (Supp. 1988).

Benac , “Nursing Homes Turn Away from Tethering the Elderly”, Los Angeles Times, January 7, 1990, Part A; page 2; column 1 (from NEXIS).

Francis , [Letter] “Using Restraints in the Elderly Because of Fear of Litigation”, 120 New Eng. J. Med. 87 (Mar. 30, 1989).

Several of the reported cases involve injuries that were ultimately fatal to the nursing home resident. For example, a patient who fell outside the facility suffered a broken shoulder and died the next morning of blod clots in her lungs that were caused by the shoulder fracture (Rosemont, Inc. v. Marshall, 481 So.2d 1126, 1129 (Ala. 1985)). Another patient, who fell out of her wheelchair, suffered a broken leg which later was amputated when it failed to heal properly (Kujawski v. Arbor View Health Care Ctr., 407 N.W.2d 249 (Wis. 1987)).

Kane and Kane , supra note 16 at 132.

Danzon P. , Medical Malpractice: Theory, Evidence, and Public Policy 74 (1985).

See generally, Butler , “Nursing Home Quality of Care Enforcement: Part I—Litigation by Private Parties”, 14 Clearinghouse Review 622 (1980); McNath, “The Nursing-Home Maltreatment Case”, 21 Trial 52 (Sept. 1985); Nemore, “Protecting Nursing-Home Residents”, 21 Trial 54 (Dec. 1985); Johnson S. Terry N. & Wolff M. , Nursing Homes and the Law: State Regulation and Private Litigation (1985).

The MEDMAL database, available through West-law, covers cases filed from January 1986. A search in January 1990, on which these statistics are based, covered four years. The database lists filings in all U.S. District Courts and in trial courts of general jurisdiction in 52 cities (including Los Angeles, Washington, D.C., Boston, Atlanta, San Francisco, Philadelphia and Miami). It also includes cases filed with the medical practice review panels in Indiana, Louisiana, Maryland and Wisconsin. Although the database titles itself MEDMAL, cases filed against nursing homes included premises liability cases and cases filed by employees for workplace injuries. The database is not necessarily comprehensive for each of the courts included.

245 So.2d 544 (La. App. 1971).

549 So.2d 395 (La.App. 1989).

496 S.W.2d 503 (Tenn.App. 1972).

Plaintiff argued on appeal that the trial court should have instructed the jury on res ipsa loquitur rather than on negligence. The Court of Appeals affirmed the trial court's instructions. At 509.

Id.

481 So.2d 1126 (Ala 1985).

Id. at 1129.

Id. at 1129.

Id. at 1130.

Id.

Id.

674 S.W.2d 343 (Tex. App. 1984). See also, Associated Health Systems v. Jones, 366 S.E.2d 147 (Ga. App. 1988), in which the court held that statutory restrictions on the use of restraints did not prohibit the nursing home from restricting a violent resident to certain areas of the facility.

483 So.2d 634 (La.App. 1985).

528 So.2d 573 (La.App. 1988).

Smith v. Gravois Rest Haven, Inc., 662 S.W.2d 880, 882 (Mo. App. 1983).

McGillivray v. Rapides Iberia Management Ent., 493 So.2d 819, 823 (La. App. 1986).

Id. at 824–825.

See generally, Johnson and Dodson , “Decreasing Exposure to Liability in Long-Term Care”, 67 Health Progress 18 (Oct. 1986). Recoveries in the cases discussed in this article include awards of $100,000 in the case of a resident who left the facility unnoticed in 42 degree weather and suffered a fatal heart attack (McGillivray v. Rapides Management Ent., 493 So.2d 819 (La. App. 1986)); over $300,000 to the surviving spouse and children of a resident who left the facility unobserved and was run over by his own daughter (Fields v. Senior Citizen Center, Inc., 528 So.2d 573 (La. App. 1988)); and $20,000 for injuries suffered in falling from bed (Smith v. Gravois Rest Haven, Inc., 662 S.W.2d 880 (Mo. App. 1983)).

407 N.W.2d 249 (Wis. 1987).

Id. at 251

493 So.2d 819 (La.App. 1986).

Id. at 823

Id. at 823

Id.

Id.

The author of the letter to the New England Journal of Medicine quoted earlier argues that “1 believe it is time to put the responsibility for setting the standard of care back in the hands of the medical and nursing professions, with the interests of patients in mind, instead of allowing the agenda to be set by concern for liability.” Francis, supra note 20.

461 S.W.2d 195 (Tex. Civ. App. 1970).

Id. at 197.

Kazin See , “Nowhere to Go and Chose to Stay: Using the Tort of False Imprisonment to Redress Involuntary Confinement of the Elderly in Nursing Homes and Hospitals”, 137 U. Penn. L. Rev. 903 (1989) for a detailed analysis of the legal, social and political issues that limit this type of litigation.

Green and Pollock , “Nursing Home is Liable in Restraint Case”, Wall Street Journal, Section B, Page 5, Column 1 (March 26, 1990).

Woolsey and Bradford , “Two Separate Texas Juries Award $40 Million for Wrongful Deaths”, Business Insurance, Section ECFC; Page 3 (April 9, 1990) (from NEXIS). This article reports that the amount awarded was $40.6 million.

See note 25 supra.

More than half the states and the District of Columbia have residents' rights statutes. (As listed in Note, Don't Make Them Leave Their Rights at the Door: A Recommended Model State Statute to Protect the Rights of the Elderly in Nursing Homes, 4 J. of Contemp. Health Law and Policy 321, 326 (1988)).

Kapp , Preventing Malpractice in Long-Term Care 98 (1987).

42 U.S.C. 1395i-3(c)(1)(A)(ii); 42 U.S.C. 1396r(c)(1)(A)(ii). The final regulation on the restraints provision removes the issue of the use of restraints from the residents' rights section and places it in a section on “Resident behavior and facility practices”. The Secretary explains the move: “Because the area of behavioral management of nursing facility residents has both residents' rights and quality of care dimensions, we are placing proposed 483.10(d), Restraints, and 483.10(e), Abuse, in a new requirement….” 54 Fed. Reg. 5316, 5322 (Feb. 2, 1989). The effective date of these regulations, which has been delayed several times, is October 1, 1990. 54 Fed. Reg. 53611–01 (Dec. 29, 1989).

Id.

See generally, Johnson S. Terry N. and Wolff M. , Nursing Homes and the Law: Public Regulation and Private Litigation 1–22 (1985); Hoffman and Schreier , “A Private Right of Action Under Missouri's Omnibus Nursing Home Act”, 24 St. Louis L. J. 661 (1981).

655 S.W.2d 622 (Mo. 1983).

See also, Harris v. Manor Healthcare Corp., 489 N.E.2d 1374 (Ill. 1986), in which the Illinois Supreme Court upheld the punitive damages provision of the statute against constitutional challenge.

See e.g., Begandy v. Richardson, 510 N.Y.S. 2d 984 (N.Y. Sup. Ct. 1987). For further discussion of the private right of action and enforcement of residents' rights, see Johnson , “State Regulation of Long-Term Care: A Decade of Experience with Intermediate Sanctions”, Law, Medicine & Health Care 13, 179–180 (Sept. 1985).

589 F.Supp. 736 (D.N.C. 1984).

See also, Stogsdill v. Manor Convalescent Home, Inc., 343 N.E.2d 589 (Ill. App. 1976). See discussion of the use of regulation as proof of standard of care in S. Johnson, N. Terry, & M. Wolff, Nursing Homes and the Law: Public Regulation and Private Litigation 3.21 (1985).

See e.g., Golden Villa Nursing Home, Inc. v. Smith, 674 S.W.2d 343 (Tex. App. 1984). See also, Associated Health Systems v. Jones, supra note 37.

407 N.W.2d 249 (Wis. 1987).

Id. at 252.

Id. at 251.

In Rosemont v Marshall, as discussed previously, the court briefly referred to regulatory standards in holding that plaintiff was required to present expert testimony on the standard of care. At 1130. In Nichols v. Green Acres Rest Home, Inc., 245 So.2d 544 (La. App. 1971), the court referred to regulatory requirements concerning staffing and prohibiting locked doors and institutional policies requiring that restraints be used only under a physician's order in upholding a jury verdict in favor of the defendant facility.

1984 WL 6860 (Ohio App.).

Nursing home administrators and nurses also exercise some professional judgment relative to restraints. In a license revocation proceeding, an administrator argued that deficiencies in the facility concerning the performance of the medical director's supervision of medical treatment and the excessive use of restraints were not his responsibility and should not support revocation of his license. The Board of Examiners of Nursing Home Administrators and the reviewing appellate court held that the administrator had sufficient notice of the incompetence of the medical director and that it was the administrator's duty to monitor the performance of department heads. The court held that the administrator's failure to secure a professional consultant to evaluate the medical director constituted unethical conduct and supported license revocation. Harrow v. Axelrod, 538 N.Y.S. 2d 103 (N.Y. App. Div. 1989).

Ouslander, Medical Care in the Nursing Home, 262 JAMA 2582, 2582 (Nov. 10, 1989). Citations omitted.

Id.

Letter to the Editor by Owen Nicholas L. M.D., American Medical Directors Association, JAMA 261:2068 (4/14/89).

Brodeur , supra note 13.

A national survey of ethics committees in nursing homes indicated that such committees were relatively new and existed in only 2 to 8 percent of all nursing homes. Glasser Zweibel and Cassel , “The Ethics Committee in the Nursing Home: The Results of a National Survey”, 36 J. Am. Geriatrics Soc. 150, 151 (Feb. 1988). Of the nursing home ethics committees responding to the survey, 54% reported having considered the use of restraints in the context of a case review and 42%, in the context of policy discussions. Id. at 153.

In the national survey of nursing home ethics committees, nursing homes reported that they relied on regulatory requirements and legal advice to guide decision-making in cases raising ethical conflicts. Of the facilities responding, 61% relied on institutional policies for decision-making. The factors motivating the development of these policies were regulatory requirements (reported by 84% of the respondents) and a desire to reduce legal liability (reported by 75%). Thirty percent of the responding facilities reported seeking legal advice for ethical dilemmas in patient care while 9% sought guidance from ethicists. Id. at 153.

See, e.g., Dusine v. Golden Shores Convalescent Center, Inc., 249 So.2d 40 (Fla. App. 1971), in which the appellate court overturned the trial court's directed verdict for the defendant facility in a case in which a resident was injured when she fell from her wheelchair. Although the resident had been restrained with a Posey vest, the court held that a jury could find the facility negligent for failing to monitor the resident over a twenty-minute period.