Family takes battle over use of restraints on son to SD Supreme Court

Investigates

VERMILLION, S.D. (KELO) – A two-year legal battle, initiated by parents of a son who has developmental disabilities, is now before the South Dakota Supreme Court.

After a three-week civil trial in 2018, the judge ruled against the family of Ben Graff and in favor of the Children’s Care Hospital and School, which is now LifeScape.

In their 2014 lawsuit, Ben’s parents, Neil and Debbie Graff, claimed that workers at CCHS held their son face down 137 times, sometimes for more than one hour at a time, over the course of six months in 2010. They say certain evidence not allowed in their trial could have made a difference in the outcome of their case.

CCHS used the prone restraint method to try to control him. The method of holding someone face-down is demonstrated in online videos.

This technique has been linked to several deaths nationwide and banned in many state-licensed programs across the nation because it can lead to serious injury.

Doctors say the excessive use of prone restraints, sometimes lasting for hours, left Ben Graff with physical and mental injuries.

In court in May of 2018, CCHS, now LifeScape, said the use of prone restraints on Ben was necessary because he was a danger to himself and others.

CCHS/LifeScape banned prone restraints after Ben left the facility.

The jury found in favor of CCHS/LifeScape in the May 2018 trial.

“This young man deserved a fair trial,” Graff Attorney Michael Luce said.

Graff’s attorney is now arguing before the Supreme Court that the jury should have been able to see state health department surveys from 2008 that showed deficiencies in the use of restraints at the facility.

Judge Larry Long decided they weren’t relevant to the case and couldn’t be used in the trial.

“A fair trial here, based on every other ruling that has addressed these surveys and it’s important to know what they knew and that they had been told to correct things they did not do; they did not correct them and this caused harm to Ben Graff. And we’re entitled to our day in court including those surveys,” Luce said.

CCHS/LifeScape said those state surveys were not an issue because they happened prior to the time period Ben was a resident and all issues had been resolved. A complaint called into the Department of Health was also investigated after Ben left the facility.

“So the Department of Health went back in and specifically looked at Ben Graff’s chart, as far as whether we had complied with the regulations for restraint, with regard to Ben Graff during the time he was there and restrained. And that 2011 survey found no deficiencies with regard to Ben Graff,” LifeScape Attorney Mark Haigh said.

Ben’s family was present at Tuesday’s hearing, but declined to be interviewed.

His mother, Debbie, told KELOLAND News via text: “This matter has been difficult for our family. We are hopeful the Supreme Court will review what happened at our trial.”

The South Dakota Supreme Court will issue a decision on the Graff case at a later date.

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