Criminalizing Chemical Restraints
California Lawyer

Criminalizing Chemical Restraints

by Pamela A. MacLean

September 2012

James Steinberg

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To keep a patient in her nineties from throwing food, the staff at Kern Valley Hospital - a small nursing facility for patients who need 24-hour care - held down Mae Brinkley and forcibly injected her with powerful antipsychotic medication. For reasons of convenience, they did the same to 85-year-old Alexander Zaiko, and to 76-year-old Joseph Shepter.

Within months after the repeated drugging began, all three patients at the rural Lake Isabella facility had died.

The "atypical" antipsychotic drugs used - including Seroquel, Risperdal, and Zyprexa - were developed in the 1990s to treat psychoses such as schizophrenia and bipolar disorder. None are intended for dementia patients, and since 2005 they have carried "black box" labels warning that use of the drugs on elderly dementia patients increases the risk of death.

Those facts have made the Kern Valley cases a watershed for elder abuse law. In what appears to be a first, state prosecutors charged nursing home officials there with criminal conduct for allegedly misusing psychiatric medication.

"It is important to establish a precedent that medical personnel - including doctors and administrators - who use chemical restraints for nontherapeutic reasons can be held responsible for their actions, not only administratively or civilly but under criminal law," says Deputy Attorney General Steven D. Muni, who is trying the case.

Physically restraining elderly patients - by strapping them to wheelchairs or tying them into beds - came to be viewed as abusive during the 1980s and 1990s, and nursing homes turned instead to pharmacological options. Of the nation's 1.3 million nursing home residents, almost a quarter were given chemical restraints in 2004, often for reasons not approved by the Food and Drug Administration, according to the nonprofit Center for Medicare Advocacy. By a 2007 estimate, every year as many as 15,000 elderly living in U.S. nursing homes die from off-label use of antipsychotic drugs.

After the Kern Valley Hospital deaths, public health investigators turned their sights on the 74-bed facility, located 50 miles northeast of Bakersfield. A yearlong inquiry in 2008 found that 22 patients, some with Alzheimer's, received high doses of antipsychotic medicines for the convenience of their caretakers, not for therapeutic reasons.

Gwen D. Hughes, head of nursing at the hospital, and Debbi C. Hayes, a pharmacist, were arrested in 2009, along with the medical director, Dr. Hoshang M. Pormir. Charges against Kern Valley's administrator, Pamela R. Ott, were added later.

Hughes and Hayes were accused of forcibly injecting residents. The state said nurse Hughes would order psychotropic drugs administered to residents who were "glaring" at her or being "disrespectful" or refusing to eat dinner in the dining room. Hughes allegedly ordered the pharmacist to provide the medications without Pormir's input, and the doctor would sign off on the order later without seeing the patients.

The ten-count complaint included felony elder abuse resulting in death, nonlethal abuse, and assault with a deadly weapon: the antipsychotic medications. Hughes's case was slated to go before a jury next month. Pormir and Ott pleaded no contest in June to a single count of conspiracy to commit an act injurious to the public health. The state Medical Board disciplined Pormir, placed him on probation, and ordered retraining. Hayes, the pharmacist, pleaded guilty to a single conspiracy count in 2009.

Not everyone is happy with the plea deals. Anthony Chicotel, attorney for California Advocates for Nursing Home Reform, says he's "very disappointed" that Pormir and Ott apparently won't serve time in jail. "I was elated when the charges were first filed," he says. "But when I see the plea bargains with people in positions of responsibility ... the message gets diluted."

Earlier this year, the Centers for Medicare and Medicaid Services called for a 15 percent reduction by December in the off-label use of antipsychotics on the elderly in nursing homes.

"If I was a civil lawyer," says Fred Gagliardini, Pormir's Bakersfield lawyer, "I would counsel a nursing home to make sure of its policies for doctors and nurses at the patient medical meetings - and boy, have you got to keep really good notes."

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