Curbing Restraint-Related Litigation

by Jacqueline Vance, RNC

Restraint use poses some conundrums for medical directors and staff in long-term care. The idea is to restrain as little as possible, so that the only residents who are restrained are those who require a physical restraint to treat their condition and improve their functioning and well-being. The restraints used should be the least restrictive, and they should be used for the least amount of time possible. If you follow these precepts, you are likely to improve the quality of care at your facility and please surveyors. But that's not enough.

What about families and their legal representatives? By limiting the extent of restraint use, you reduce the risk of injury and falls. But, accidents still happen, and can lead to lawsuits--particularly if family members don't understand that when it comes to restraint use, less is more.

To protect yourself from litigation if there is an accident involving a restraint-free resident, you and your colleagues need to develop four key strategies: education, communication, documentation, and a clear care process that puts them all together.

Education

When making a decision to restrain or not restrain, the facility needs to make clear to physicians and nursing staff, as well as to the residents and their families: what constitutes a restraint, the improper use of a restraint, the role of the family or legal surrogate in restraint use, and what the benefits of not using restraints are (see box, right).

The Centers for Medicare and Medicaid Services defines physical restraints under Interpretive Guidance in the State Operations Manual as: "any manual method or physical or mechanical device, material, or equipment attached or adjacent to the individual's body that the individual cannot remove easily which restricts freedom of movement or normal access to one's body."

According to the SOM, the resident has the right to be free from any physical or chemical restraints imposed a) for purposes of discipline (an action taken by the facility for the purpose of punishing or penalizing residents) or convenience (an action taken by the facility to control a resident's behavior or manage a resident's behavior with a lesser amount of effort by the facility, and not in the resident's best interest); or b) that is not required to treat the resident's medical symptoms.

Appropriate Requests

Although the resident or family may request that a restraint be used, it is the facility's responsibility to evaluate whether or not that request is appropriate. It should be viewed in the same light as a request for any other type of medical treatment. Family members or legal surrogates may say that they will sign a consent form relieving the facility of the responsibility for using a restraint. However, at issue is the improper use of restraints and not the fact that consent forms may have been signed. Signed consent forms do not free the facility from meeting the requirements for restraint use.

Many facilities insist that staff use consent forms, but there is no language in the federal regulations that requires written consents for the use of restraints. Although guidance at F Tags-F154 and F163(2) discuss being informed about care, treatment, and changes, this does not mean that a facility must obtain written consents from the resident or legal surrogate.

Whether or not consent forms are utilized by the facility, SOM transmittal 20 states that "the legal surrogate or representative cannot give permission to use restraints for the sake of discipline or convenience or when the restraint is not necessary to treat the resident's medical symptoms." It also states that "the facility may not use restraints in violation of the regulation solely based on a legal surrogate or representative's request or approval."

Communication

Nevertheless, communication with residents and families about the plan of care might just save you from a lawsuit, even if a patient is injured in a fall. Gerald B. Hickson, MD, of Vanderbilt University Medical Center in Nashville, TN, was recently quoted in a newsletter from the National Patient Safety Foundation. When asked why people file suits, his answer was, "the single greatest error in health care is the failure to communicate. Money is important, but families have to be motivated by something more."

When families feel out of the loop, they often believe someone is "hiding something." In short, don't get sued just because a family or surrogate didn't know what you were doing nor the right way to do it.

If a consent form is one method of communication, make sure the legal representative understands what is being signed. Ask the family or legal surrogate to repeat the information given to them. There may be documentation in the medical record about conversations with the family or legal surrogate, but should there be litigation, they may say that they didn't understand what the health care team was saying. Repetition of this information is a clear way to ensure they understand. Make sure that this step is documented in the medical record.

Injury Reduction

One of the most common reasons for the use of restraints in nursing homes is the archaic belief that restraints prevent falls. This idea has become ingrained. Furthermore, acute-care practices may mislead families about what constitutes good "safe" care. After all, they may say, "they tied dad down in the hospital."

Surprisingly, family members can look directly at a loved one who is restrained and not even notice whether they are uncomfortable, withdrawn, depressed, or perhaps even suffering. The only thing they see is that their loved one is "safe." Our job is to break through those traditional ideas.

Many studies show that reducing restraints reduces the risk of injury due to falls. The Commonwealth National Restraint Minimization Project looked into interventions at 16 nursing facilities in order to reduce restraint use. One conclusion was that falls may increase slightly when restraints are removed, but serious injuries decrease to a much greater extent. This finding is consistent with other studies that have shown that removing restraints, in most cases, reduces the risk of serious injury.

Restraints have been found in some cases to increase the incidence of accidents such as strangulation and entrapment. Restraint use can also reduce independence, functional capacity, and quality of life. Residents who are restrained may lose autonomy, dignity, and self respect, and may also show symptoms of withdrawal, depression, or reduced social contact.

High Expectations

In nursing homes, there will always be falls that cannot be prevented. One cannot expect otherwise. Unfortunately, family members or legal surrogates may not be aware of this. Perhaps we have let them set their expectations too high. Perhaps we have not told them of the risks involved with restraint use, the reasons we have chosen not to restrain, our regulatory requirements, or even our restraint-evaluation process.

It is our responsibility to educate residents and their families about restraint use and about the specifics of their care. This is especially necessary if a resident has been identified as a fall risk and their restraint evaluation shows that they would be at greater risk for injury if they were to be restrained. One good approach to getting the family to agree to not using restraints is to involve them in devising alternative strategies.

Essential Documentation

Good documentation is extremely important in risk management. If you want to show what you have done, you need to document the results of the entire process. This includes what was said to families and staff, everything related to the decision making process (assessment, root cause analysis, etc.) and everything related to the monitoring process, especially when there is a need to re-evaluate or modify the interventions in place.

If a resident does fall, accurate and comprehensive documentation of the event in chronological order, including the health care staff's response, is invaluable. Poor documentation leads to allegations of poor practice. Illegible, incomplete, or confusing documentation may be impossible to defend in court and may have a negative impact on a lawsuit's outcome.

Proving Compliance

The Interpretive Guidelines make it clear that a facility cannot meet its burden of proving compliance with the restraint requirements unless it has engaged in a systematic process of evaluation and care planning that addresses certain identified issues (42 C.F.R. 483.25(h)(2). HCFA Ex. 1 at 8-10). This regulation provides that a long-term care facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents.

The regulation does not make a facility strictly liable for accidents that may occur to its residents. A facility is obligated to take measures that are designed, to the extent that is practicable, to assure that residents do not sustain accidents that are reasonably foreseeable.

Howard Sollins, an attorney with Ober, Kaler, Grimes, and Shriber in Baltimore agrees with the need for a systematic care process. "The facility's best protection is to identify residents at risk for falls, to demonstrate that steps are taken to reduce the risk of falls, including through improving the physical function of residents, and being able to demonstrate that the facility has an effective care planning and quality assurance process."

Closing Thoughts

Restraint reduction continues to advance in long-term care, and the general public should be made aware of this. Many studies have demonstrated the negative impact of restraints, but, as noted earlier, people still falsely believe that restraints prevent falls. We must get the word out beyond physicians and nursing home staff. The move towards restraint-free care in nursing homes should be encouraged, not punished.

Nevertheless, until the general public understands the benefits of not using restraints, nursing facility staff need to protect themselves. By putting good care processes in place, you help ensure quality of care and may save yourself the pain and cost of litigation. Doing so requires educating staff, residents, and families. And, as well as explaining the plan of care and the reasons for it, you must clearly document all that you do.

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