The Fear of Liability and the Use of Restraints in Nursing Homes
Sandra H. Johnson
Saint Louis University - School of Law
Law, Medicine & Health Care, Vol. 18, No. 3, p. 263, 1990
Responsible Caring: Ethics Resources for Nursing Homes, Hastings Center, 1991
In nursing homes, restraints are intended to protect residents with mental or physical disabilities from avoidable injuries. However, dangers inherent in the use of restraints on elderly patients - including strangulation, agitation, and unnecessary immobility - weigh strongly against restraints’ protective effects. This article identifies the risk of liability as a factor contributing to the overuse of restraints and argues against such defensive practice on legal, regulatory, and ethical grounds.
The article first considers liability sourced in negligence/malpractice litigation on restraints and highlights the often inflated and unreasonable perception of risk here. An examination of the reported cases involving restraints reveals that there are few; that courts are careful to distinguish the circumstances in which facilities are held liable; and that the use of expert testimony can effectively insulate nursing homes from liability.
Next, the article identifies legal responses to the overuse of restraints due to claims of liability fear. In addition to encouraging litigation for the overuse of restraints, prohibiting the overuse directly through regulation may help to curb this defensive practice. Comparing two cases involving restraint statutes, the article explains that effective public regulation requires not only sensitivity to physician judgment but also a change in structural biases supporting restraints.
The article concludes by analytically assessing the “fear of liability” defense. The overuse of restraints reflects conflict over the most fundamental issues in long-term care. It is a symptom of inadequate models for long-term care, not simply a naïve reaction to a fear of liability.
Number of Pages in PDF File: 11Accepted Paper Series
Date posted: October 14, 2010
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