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Is a rubber glove a restraint?

Mildred Wathen choked on a latex glove, but was it an illegal restraint? A judge said no, that the nursing home could use the glove stop her from scratching bedsores.

Robert Carter didn’t think his mother’s death was worth a fortune, even if she died horribly, choking on a rubber glove.

But to him, she was worth more than $201,000, the settlement he and his brother will get for dropping their lawsuit against the Brooksville nursing home where she died three years ago.

A ruling about the use of the rubber glove weakened the Carters’ case against the nursing home. It also could affect other cases that allege nursing homes illegally used restraints to prevent patients from moving around.

Carter and his brother Thomas Carter had sued Heron Pointe Health and Rehabilitation in Brooksville in Hernando County Circuit Court for negligence, among other charges, after their 82-year-old mother, Mildred Wathen, died there.

On Oct. 1, 2002, Wathen, a retired day care teacher, asphyxiated on a latex rubber glove, which was found in the back of her mouth.

A nursing assistant at the nursing home had placed a pair of rubber gloves on Wathen’s hands earlier in the morning to prevent her from scratching a giant bedsore on her left hip, according to court records. For months, Wathen had pulled bandages off her bedsores and picked them open with her fingernails. The day before she died, Wathen was so restless that she pulled a tube from her bladder, according to a state investigation of Heron Pointe Health and Rehabilitation of Brooksville.

But the question that spurred the settlement was whether the glove could be considered a restraint.

Generally, only doctors can order that restraints be placed on patients to restrict their movement or to prevent them from hurting themselves, according to state law.

Both the Carters and the state Agency for Health Care Administration had blamed the nursing home for Wathen’s death, saying that the nursing home assistant had unlawfully used the gloves to restrain Wathen from scratching her bedsore, without a doctor’s orders.

About a year ago, Hernando County Circuit Judge Daniel Merritt decided that a jury must determine whether or not the gloves could be considered a restraint in the Carters’ lawsuit against Heron Point and affiliated owner Eastbrooke Health Care Associates.

But a Division of Administrative Hearing judge disagreed.

After the Agency for Health Care Administration fined Heron Pointe for the death, the nursing home and its parent companies fought state-levied penalties through an appeal with the Division of Administrative Hearings.

In May, Administrative Judge P. Michael Ruff cleared the company of all the state’s charges of neglect and failure to prevent abuse. Ruff wrote that the state agency failed to prove that the latex gloves were used as restraints, which would have needed a doctor’s order.

While Judge Ruff agreed that the gloves matched the state’s definition of physical restraints, “which restricts freedom of movement or normal access to the resident’s body,” he decided that the gloves weren’t restraints, because Wathen could remove the gloves. He also said latex gloves weren’t considered restraints in the nursing home industry.

Ruff called the incident “regrettable” and “isolated.”

“There was no reason for the staff to have foreseen that she would put a latex glove in her mouth,” Ruff wrote in his recommended order.

The Agency for Health Care Administration agreed to the judge’s recommended order and dropped its complaints against the nursing home, because it can’t question an administrative judge’s findings of fact.

“We had cited the nursing home based on state statutes, and essentially (the decision) pulled the state statutes out from under us,” said Jonathan Burns, a spokesman for the Agency for Health Care Administration.

Nursing home attorney Michael Bitz of Miami did not return calls for comment.

While administrative hearing decisions can’t set legal precedents, circuit judges can consider an administrative judge’s findings, legal experts said.

“If a similar case would arise, it’s certainly something judges would look at,” Burns said.

When the Carters’ civil trial date arrived the morning of Jan. 24, Judge Merritt revisited his decision on the gloves and changed his mind. He agreed with the administrative law judge that the gloves can’t be considered restraints, since they can be removed, according to the Carters’ attorney, J. Christopher Robbins of the Robbins Law Firm in St. Petersburg.

Merritt refused to allow the gloves to be considered in the trial, according to court records.

Merritt didn’t return calls for comment.

The Carters settled their case at 3 p.m. that afternoon, the day the jury would have been picked for trial.

Robbins declined to give details about the settlement or its terms.

However, Robert Carter, who was bedridden and unable to attend court on the trial day, said Merritt’s decision on the glove sank their case. In fact, after Merritt ruled, the nursing home offered the Carters nearly $50,000 less than the amount they had offered the Carters to settle two weeks earlier, Robert Carter said.

“I think there’s a rat in a hole some place,” said Robert Carter, 68, who had signed over his power of attorney in the case to his brother, Thomas Carter. “It wasn’t worth fighting.” Thomas Carter couldn’t be reached for comment.

Robbins, who according to his client gets 40 percent or about $80,000, said he believed the settlement was fair.