Overuse of Medication or Restraints

Overuse of Medication

A chemical restraint refers to the use of psycho-therapeutic medication or other drug to control a person’s behavior. Sometimes, chemical restraints are necessary for the safety of the patient or others. However, the law requires that the use of any chemical restraint is a last resort and should never be used merely for staff convenience.

Some of the more common psycho-therapeutic medications used in nursing homes are:

prescription
  • Ativan
  • Seroquel
  • Celexa
  • Wellbutrin
  • Depakote
  • Zoloft
  • Risperdal (aka Risperidone)
  • Zyprexa

An elderly or disabled person is a victim of abuse when he or she is medicated for an improper purpose.  Due to chronic under-staffing, it is common for nurses to request unnecessary medication to sedate a patient, thus reducing the amount of care they must provide.  A sedated patient is less likely to ask for assistance.  Because such practice violates both state and federal law, it is our experience that nurses will often falsely report or greatly exaggerate “anti-social behavior” to a physician or family member.  Be skeptical.  If you have not personally witnessed such behavior, question whether it is fabricated.

In a case handled by the attorneys at The Gebler Firm, PC, a woman admitted her 80-year-old father to a nursing home to receive physical therapy.  She returned to find her father tied into a wheelchair.  His physical therapy had been discontinued, and he was placed on three separate psychotropic medications in her absence.  He was labeled “incontinent” and forced to wear an adult diaper, even though he was able to toilet independently prior to his admission.  We investigated the records, and learned that the doctor and facility staff had fraudulently charted the daughter’s consent to chemical restraints to control anti-social behavior.  On the dates that the falsified consent forms were “verified” by the physician and facility staff, the daughter was out of the country and unavailable by phone.

In the above case, the use of medication to restrain the patient was clearly illegal, because it was unnecessary and administered without legal consent.  However, even when the use of a chemical restraint is necessary and consensual, the law requires that healthcare providers make frequent attempts to decrease the dosage, so that the patient can maintain the highest quality of life possible.

Physical Restraints

Man tied in wheelchairThe law defines a physical restraint as “any physical or mechanical device or material attached or adjacent to a patient’s body that the patient cannot remove easily, which has the effect of restricting the patient’s freedom of movement.”   Many types of physical restraints are used in nursing homes, such as a “lap buddy,” vests or pelvic belts that tie a patient into a bed or wheelchair, or bed rails which prevent a patient from getting out of bed.  Sometimes, food trays are used to restrain a patient in a wheelchair.

Man tied in bedSometimes, physical restraints are necessary to keep a confused, weak or injured patient from rising unassisted from a bed or wheelchair.  However, a physical restraint cannot be used to keep a resident tied down for staff convenience.  In one case handled by the attorneys at The Gebler Firm, PC, a patient was transferred from a hospital to a nursing home so she could receive physical therapy and to treat her anemia.   When the patient realized she was being admitted into a nursing home and not another hospital, she refused to sign the admission papers, and stated that she wanted to go home.  Instead of honoring her right to leave, she was admitted against her will.  When she tried to leave on her own, she was restrained in a wheelchair or bed for 24 hours per day.  She was forced to hold her bladder, because facility staff refused to untie her and assist her to the bathroom.  They placed a towel between her legs and told her to urinate into the towel.  Because she was “not cooperating,” the staff asked the attending physician to order anti-psychotic medication, which he prescribed without ever meeting the patient.  Although she had no family to speak for her, she was lucky that a concerned estate planning attorney tracked her down after a missed appointment.  When the attorney found her in the nursing home, the patient begged to be taken home.  After determining that the resident was competent to make her own decisions, the attorney escorted the woman from the facility. After regaining her strength, the woman was able to return home and live independently for many years.  Altogether, she was held captive in the nursing home for 47 days against her will.

Both the facility and the attending physician in the case above repeatedly ignored the duties they owed under federal and state law, including the following:

  • Patients are allowed to make their own health care decisions, unless a legal determination is made that they are incompetent to do so.
  • An attending physician must examine and talk to the patient before he complies with the facility’s request to order physical or chemical restraints.
  • The patient has the right to refuse admission, medication and physical restraints for any reason, unless a legal determination was made that she was incompetent to make her own decisions.

How can I tell if my loved one is being restrained for an improper purpose?

Elderly womanLook for the following signs, which may indicate that chemical or physical restraints are being used for an improper purpose:

  • Facility staff reports that the patient exhibits behavior that warrants use of a chemical or physical restraint, but no friends or family members have ever personally observed such behavior.
  • The attending physician has never advised the patient or the patient’s representative of the following, despite legal requirements:
  • The reason for the restraint and the severity of the patient’s illness;
  • The nature of the procedures to be used, including frequency and duration;
  • The probable degree and duration of improvement or remission, both with and without the treatment;
  • The nature, degree, duration, probable side effects and significant risks;
  • Reasonable alternative treatments, their risk, and why the doctor recommends the restraint; and
  • The patient or his/her representative has the right to accept or refuse the proposed restraint, and if consent is given, it may be revoked for any reason at any time.
  • No specific symptoms have been named, nor has a condition been diagnosed for which the restraint is ordered.
  • You believe a chemical or physical restraint has been applied excessively, and no attempt has been made to reduce the dose or the frequency.
  • From the patient’s point of view, the side effects of using the restraint are worse than the underlying condition the restraint is being used to treat.

What can I do if I think medication and/or physical restraints were used on my loved one for staff convenience?

If you believe your loved one may have been restrained chemically or physically for staff convenience or another improper purpose while he or she was in a long-term care facility, contact The Gebler Firm, PC for a free consultation.  We are available to speak with you by phone at 1-800-871-6998, or you may submit an on-line consultation request.

We would be honored to speak with you about your rights, and explain the options that are available.  We don’t charge any attorney fees unless we obtain a recovery.

We encourage you to act quickly.  The law limits the amount of time you and your loved one have to pursue legal action.  In some cases, this can be as short as six months.

Return to List of Areas of Neglect and Abuse

Return to home page

Disclaimer:  The information on this site is for informational and educational purposes only.  None of the medical information is intended to be a substitute for professional medical judgment.  A licensed physician should be consulted for diagnosis and treatment of any and all medical conditions.

Injured Elder