One of the more devastating legal cases Steve Levin has handled involved a nursing home resident who suffocated to death after becoming trapped between a bedrail and their mattress. Levin, a personal injury attorney with almost 50 years of experience prosecuting cases of nursing home abuse and founding partner of the Chicago-based law firm Levin & Perconti, says tragic incidents like this are preventable.
To most people, a bedrail might seem harmless or even helpful for repositioning or getting out of bed. But for an older adult with limited mobility and weakened muscles, it can become a deadly barrier when used improperly or without proper supervision.
Physical restraints in nursing homes can lead to serious injuries, emotional trauma and, in some cases, death. For families with loved ones in long-term care facilities, staying engaged in their care plan and understanding how and when restraints can be used is critical to protecting their safety and rights and preserving their dignity as they age.
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What Are Types of Physical Restraints Used in Nursing Homes?
A physical restraint may refer to anything that restricts an individual’s freedom of movement or normal use of their body.
Examples of physical restraints in nursing homes may include:
— Bed rails, which can prevent a resident from getting out of bed
— Bed sheets tucked too tightly, restricting the resident’s movement
— Scoop mattresses, which are mattresses with raised edges that create a barrier for getting out of bed
— Lap belts or trays fixed to wheelchairs
— Geri chairs, designed to keep residents seated in place for extended periods
— Wheelchairs parked against a wall, preventing mobility
While chemical restraints in nursing homes — such as antipsychotics or sedatives used to subdue residents — often garner more public attention, physical restraints are still used in nursing homes and are highly susceptible to misuse.
Notably, physical restraints aren’t always obvious. Though these methods may be intended to prevent falls or wandering, they can do more harm than good when used improperly for the nursing home staff’s convenience or as a form of punishment.
“If you’re going to use restraints for a nursing home resident, it is the exception — not the rule,” Levin emphasizes. “All nursing home residents are entitled to be treated with dignity and respect.”
[READ: Antipsychotic Use in Nursing Homes.]
Are Nursing Homes Allowed to Restrain Patients?
Yes, but only under strict conditions. While nursing homes are legally permitted to use physical restraints under very limited circumstances, their use is heavily regulated.
Federal laws
The Nursing Home Reform Act, enacted as part of the Omnibus Budget Reconciliation Act of 1987, called OBRA, established comprehensive federal quality standards for nursing home care. The law gives nursing home residents the right to be free from physical or chemical restraints that aren’t medically necessary.
Under the law, restraints must be:
— A last resort, used only as a health or safety measure
— Ordered by a physician
— Time-limited
— Closely monitored
— Documented with evidence that lesser restrictive alternatives were attempted first
“You can’t just say, ‘You know what, we can’t deal with this person; it’s inconvenient,'” says John Dalli, founding partner at Dalli & Marino, LLP, who has been litigating and trying complex personal injury and medical malpractice matters since 1996. “You can only use a restraint to protect the health and safety of a resident.”
Facilities must also demonstrate they’re managing restraint use appropriately with physician consultations and documentation, a projected removal date and an individualized care plan, Dalli explains.
State laws
Federal and state regulations generally align, but they can vary across state lines — such as, in how restraints are defined, what documentation is required and the conditions under which restraints may be used. Some states offer added protections or stricter definitions.
For example, Dalli explains that the federal statute requires nursing homes to provide all reasonable and necessary care for an individual to prevent bedsores or pressure ulcers, or if there is a bedsore, prevent them from getting worse. New York, however, goes one step further: Nursing homes are presumed liable for bedsores that develop during a resident’s stay, unless the facility can prove that the bedsore was “unavoidable,” a legal term meaning it occurred despite proper care, he explains.
In Illinois, where Levin practices, both state and federal laws come into play in personal injury cases.
“As a very, very practical matter, the laws rarely contradict each other,” Levin says.
It’s important to become familiar with the laws in your state to best advocate for your loved one’s care in a nursing home.
[READ: How to Stay Connected to Your Loved One in a Nursing Home.]
Your Rights as a Nursing Home Resident
Under federal law, nursing home residents — and their families — have clear legal protections. Nursing homes certified under Medicare or Medicaid — which accounts for a majority of nursing homes across the U.S. — must protect the certain rights for residents, such as:
— Right to be free from unnecessary physical or chemical restraints imposed for discipline or convenience
— Right to informed consent and participation in care planning
— Right to dignity, respect and self-determination
— Right to voice concerns without fear of retaliation
These are just a few key protections of many rights for nursing home residents under federal law. Residents and their families should consider speaking with an expert, such as an elder law attorney, for complete guidance on resident rights.
Why Does Physical Restraint Misuse Occur?
In many cases, misuse of physical (and chemical) restraints often stems from convenience and cost-cutting, not medical necessity.
Staffing shortages, lack of proper staff training and profit-driven management can lead facilities to rely on restraints instead of providing adequate, hands-on care that residents need.
Kasey Wagner, a personal injury and medical malpractice attorney at Farah & Farah, focusing on nursing home abuse cases, notes that in Florida, many physicians are independent contractors, rather than direct employees of the facility. This can create opportunities for abuse.
There’s a potential for “winking and nodding,” Wagner explains, meaning physicians could sign off on restraints that may not be truly necessary.
Dalli also points out the influence of industry lobbying on regulation. In New York, a recent law capping nursing home profits at 5% was weakened after lobbyists pushed to exclude administrative costs from the cap — undermining the law’s intent.
“What’s the most important thing that we could have? Transparency,” Dalli adds. “There’s no transparency with respect to the money — the money coming in from the government, from Medicaid for the long-term residents or Medicare for the short-term rehab residents.”
Dangers and Risks of Using Unnecessary Restraints
Improper use of restraints can lead to serious — even fatal — injuries and negatively impact a nursing home resident’s quality of life.
Restraint-related injuries in nursing homes
Injuries that occur secondary to restraints may include:
— Falls from wheelchairs or beds while trying to get up
— Injuries from climbing over bed rails, which can result in entanglement and a worsening fall
— Suffocation, especially if the resident becomes wedged between the mattress and bedrail
— Loss of mobility or muscle strength from restricted movement
— Pressure ulcers from lack of movement due to restraints
Beyond physical injuries, residents may also experience psychological impacts:
— Emotional trauma, anxiety and depression
— Increased feelings of isolation or helplessness
— Increased confusion or agitation, especially in residents with dementia
Legal recourse when injury occurs
If improper restraint use results in injury or death, families may have grounds for legal action.
In New York, for example, say there’s a dementia resident who has a history of getting out of a wheelchair if left unmonitored. If their care plan calls for regular checks every 30 minutes and that’s ignored, and they end up falling and fracturing their hip, “that would be a compensable or an actionable case because there’s an injury that resulted from the failure of the nursing home to abide by the regulation,” Dalli says.
Injury must result from a regulatory violation to support a lawsuit in New York.
“An injury could be physical; it could also be psychological, although that’s much less common,” Dalli notes.
In Florida, legal protections work differently. Residents can file a civil lawsuit if their rights are violated, including improper use of restraints. Wagner explains that under Florida’s nursing home residents’ bill of rights, residents are guaranteed freedom from physical and chemical restraints (unless medically justified and authorized by a physician) and the right to freedom of movement and mobility. If a facility violates these rights, residents can pursue a civil lawsuit for breach of resident rights.
Unfortunately, these types of violations are rarely isolated incidents.
“If you don’t have resources, you cut corners,” Levin says. “And it’s typically the homes that have cut corners once that do it over and over and over again.”
Safer Alternatives to Restraints
Many long-term care facilities can reduce or eliminate the use of restraints by shifting toward person-centered care strategies, including:
— Family involvement in care planning
— Motion sensors and fall-detection technology instead of physical barriers
— Environmental modifications to reduce confusion or falls, such as better lighting or flooring
— Increased staffing and staff training
While increased staffing isn’t always feasible, it should never justify a decline in quality of care. Inappropriately using physical or chemical restraints to compensate for staffing shortages or just to make things easier for staff is unacceptable.
“The answer to that is not ‘Let me drug this resident,'” Dalli says. “It’s to pick up the phone, call the family and say, ‘Hey listen, we do not feel we can provide safe and adequate care to your loved one because of this behavior’ (and) let the family make a decision.”
Levin adds that restraints may prevent an acute incident, but “you’re masking the problem that is causing the acting out behavior. And those typically get much worse.”
What to Do if You Suspect Mistreatment of Your Family Member
If you’re concerned about your loved one’s care in a nursing home, steps to take include:
1. Visit the nursing home regularly and observe the environment. Visit at different times of the day, including first thing in the morning, at dinner time or even nine o’clock at night. The biggest factor in determining whether there will be a good outcome — meaning no injuries, falls or bed sores during residency — is having a friend or family member who can visit regularly and advocate for that person.
2. Ask questions. If you visit and something doesn’t feel quite right, speak up. For example, if your loved one is lined up at the nurse’s station with 15 others, it’s important to ask questions: Who’s monitoring? Is there a hallway watch person?
3. Review your loved one’s care plans. Being involved in their care plan can ensure it’s up to date, personalized and being followed properly.
4. Speak with the care team and long-term care facility administrators. If you have concerns, start by speaking with your loved one’s nurses, aides and physicians responsible for their care. If the issues persist, “immediately talk to whoever’s in charge of the nursing home,” Levin says. That means those making decisions, like the director.
5. Contact your state’s ombudsman. An ombudsman is a government official who can investigate further and help address a complaint. Let them step in and advocate on your loved one’s behalf, Wagner says. “That can create a more amicable situation to raise a red flag and get an issue addressed.”
6. File a formal complaint, if needed. If you’ve made efforts to communicate with the nursing home care team and administrators, yet your concerns go unaddressed, report the facility to your state’s health department or regulatory agency.
“Ask hard questions,” Levin says. “For example, if one of the reasons you’re making the difficult decision to put your loved one in a nursing home is because of frequent falls, you need to ask them: How are you going to deal with that?”
Staying actively involved in your loved one’s care and being their advocate are key. The more informed and involved families are, the better protected your loved one will be.
[READ: How to Choose a Good Nursing Home: Expert Tips]
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Understanding Physical Restraints in Nursing Homes originally appeared on usnews.com
