Defending the Long Term Care and Nursing Home Elopement Case Frank Alvarez Quintairos, Prieto, Wood & Boyer, P.A. 1700 Pacific Avenue, Suite 4545 Dallas, TX 75201 (214) 754-8755 frank.alvarez@qpwblaw.com www.qpwblaw.com Ashlee M. Gray Kindred Healthcare 680 South Fourth Street Louisville, KY 40202 (502) 596-6679 ashlee.gray@kindred.com
Frank Alvarez is the managing partner in the Dallas office of Quintairos, Prieto, Wood & Boyer, P.A. His practice focuses in the areas of healthcare, medical malpractice, commercial and business litigation, consumer finance, general liability, premises liability and products liability. Mr. Alvarez has extensive experience in the defense of a wide range of medical specialties and related medical issues. He represents health care systems, hospitals, physicians, allied health providers, ambulatory surgery centers, home health agencies, hospices, drug and medical device manufacturers, nursing homes, assisted living facilities and other long term care facilities in both state and federal court, and represents parties before state and federal agencies, including the Texas State Board of Medical Examiners. Mr. Alvarez has attained the highest Peer Review Rating of AV from the Martindale-Hubbell Law Directory; the rating is based upon the confidential opinions of the Bar and the Judiciary, independently attesting to his legal ability and high professional ethical standards. He is also listed in the Best Lawyers In America, Texas Super Lawyers, and one of the best lawyers in Dallas by D Magazine. Mr. Alvarez is licensed to practice law in Texas and New Mexico. He is also admitted to practice before the U.S. District Courts for the Northern, Southern, Eastern, and Western Districts of Texas; the U.S. Court of Appeals for the Fifth Circuit; and the U.S. District Court for the District of New Mexico. Ashlee M. Gray is Senior Director, Litigation at Kindred Healthcare. In this role, she assists with the company s complex litigation matters and government investigations as well as handles litigation for the company s liability claims. Ashlee joined Kindred's Law Department in 2013, as Director and Counsel, Liability Claims, where she managed and directed medical malpractice and general liability litigation in 11 states. Ashlee is a graduate of Vanderbilt University Law School and Duke University. Ashlee also is a State Registered Nursing Assistant.
Defending the Long Term Care and Nursing Home Elopement Case Table of Contents I. Introduction...5 II. Defining Elopement and Falls...5 III. Case Examples...5 IV. Identification of Risk...5 V. Defense Strategies and Minimizing Risk...6 A. Common Allegations Against Facilities...6 B. Preventive Measures...7 C. Quality Assurance...8 VI. Conclusion...8 Defending the Long Term Care and Nursing Home Elopement Case Alvarez and Gray 3
Defending the Long Term Care and Nursing Home Elopement Case I. Introduction The elopement of a resident is a challenging case to defend in nursing home, long term care, and assisted living litigation. These types of facilities generally are perceived by the public to be establishments where residents can receive quality care in a safe and protective environment. Elopement in the nursing home, long term care, and assisted living settings, focuses on two centeral expectations of the facilities care: supervision and security. These cases involve a number of risk factors that are unique to such claims, and the risk of a resident suffering a fall during an elopement event is very common. The purpose of this presentation is to give you some tools to defend an elopement, ancillary fall case, and to help you minimize the risk of elopements, along with the verdicts that can follow. II. Defining Elopement and Falls Elopement is defined by the National Institute for Elopement Prevention as, When a patient or resident who is cognitively, physically, mentally, emotionally and/or chemically impaired wanders away, walks away, runs away, escapes or otherwise leaves a caregiving facility or environment unsupervised, unnoticed and/or prior to their scheduled discharge. A fall is defined as, an unintentional change in position coming to rest on the gound, floor, or onto the next lower surface. III. Case Examples a. According to the Briggs Healthcare Corporation, upwards of 10% of all lawsuits involving nursing homes deal with elopements. Additionally, 79% of these lawsuits involve the death of a resident. b. South Carolina On July 27, 2016, police found 90-year-old Bonnie Walker, a resident of an assisted living facilty, after she walked away from the facility and was killed by an alligator. She was reported missing about 7:40 a.m. and her body was recovered at 11 a.m. This case is currently pending. c. Pennsylvania $650,000 settlement: An 80-year-old Alzheimer s patient wandered away from the defendant s facility and was found four days later, drowned in a nearby creek. d. Washington $700,000 settlement: A 67-year-old female resident died after being locked out overnight. She was an alcoholic, a smoker and severely underweight. She had previously recovered from throat cancer. e. Florida A resident walked away from a nursing home, fell in a drainage ditch and drowned. The verdict resulted in $1.8 million compensatory damages and $4.5 million punitive damages. IV. Identification of Risk There are no defining traits that accompany elopement among nursing home, long term care, and assisted living residents. However, a resident s mental and physical attributes need to be taken into consideration when assessing each resident s risk of elopement. From a mental standpoint, residents who suffer from dementia, Alzheimer s disease or other forms of mental impairment are more likely to elope. Additionally, individuals with existing psychiatric diseases or mental impairments are also at an increased risk. Many resi- Defending the Long Term Care and Nursing Home Elopement Case Alvarez and Gray 5
dents who suffer from the forgoing ailments that put them at risk for elopements are also at risk of falling. Consequently, an elopement claim often results in an ancillary fall claim. According to the Alzehimer s Association Fact and Figures for 2017, more than 60% of those with Alzheimer s or another form of dementia will wander, and if a person is not found within 24 hours, up to half of individuals who wander will suffer serious injury or death. Additionally, the Alzheimer's Association reports approximately half of all elopements occur within the first days of admission when residents are adapting to their new environment. The Alzheirmer s Association has found that residents are least likely to elope between 12 a.m. and 7 a.m., and the majority of those who elope are repeat offenders, with approximately 80% of successful elopers attempting to do so again. A resident who wanders out of a faciltiy is at risk for having a myriad of accidents, especially falls. During an elopement, a resident will often wander into territory outside the facility and encounter hazards and other unsafe conditions that place the resident at an increased risk for falling. According to the American Association of Legal Nurse Consultants, accidental falls from the resident slipping, tripping or falling due to an environmental factor account for 14% of falls. That number increases to 68% when the resident elopes. Additionally, residents who wander within a faciltiy may be a risk of internal elopement. This means leaving a safe area within the facility to wander into an unsafe area, such as a storage closet, kitchen, walk-in refrigerator or down a flight of stairs. V. Defense Strategies and Minimizing Risk In order to prevail at trial in an elopement case, a plaintiff need only establish a duty on the part of the facility, a breach of that duty, harm to the resident resulting from that breach and that the harm was a reasonably foreseeable result of a failure to meet the standard of care. The courts have shown to be harsh in ruling facilities were negligent in their duty to provide a safe environment. The CMS guideline for determining immediate jeopardy to a resident is the failure to prevent neglect due to lack of supervision of cognitively impaired individuals with known elopement risk. Facilities can decrease the risk of wandering and ensure the safety of residents who wander by instituting policies that require assessing residents on admission and reevaluating their behaviors frequently to identify potential wanderers. Federal regulations require that nursing homes that participate in Medicare or Medicaid conduct a comprehensive, accurate assessment of each resident s needs no later than 14 days after the admission and at least every 3 months thereafter, unless there is a significant change in the resident s physical or mental condition, in which case reassessment is needed immediately. See 42 CFR 483.20. In defending a case involving the elopement of a resident, one must first look to the facility s policies and procedures to establish the facility s protocol with regard to the recognition of risk and procedures in place for the prevention of elopement to determine whether the facility met its own guidelines with regard to the incident at issue. Properly assessing the resident for risk of falls or elopement involves a deliberative process to evaluate the risk in light of all significant risk factors. A. Common Allegations Against Facilities i. Failure to properly train staff on how to monitor and/or identify residents at risk for elopement and falls; ii. Failure to recognize, assess, and address a resident s wandering behavior in order to prevent elopement and falls; iii. Inadequate staffing; 6 Nursing Home/ALF Litigation September 2017
iv. Inadequate documentation regarding resident assessment, interventions, and care plans relating to wandering, risk of elopement, and falls; v. Failure to properly monitor residents at risk for eloping and falls; vi. Having inadequate policies and procedures in place for the prevention of elopement or for finding a resident following an elopement; vii. Failing to have adequate interventions in place (i.e. door alarms, locked doors, security cameras, wander gaurds, bed alarms, chair alarms, low bed, fall mats, etc.); and viii. Failure of staff to timely respond to interventions (alarms, etc.) to prevent an elopement or fall. B. Preventive Measures One of the ways to assist your defense and to minimize the risk of resident elopement, and ancillary falls, is to develop a plan that includes policies and procedures to adequately address the prevention of and response to a resident elopement. When developing policies and procedures to prevent wandering, a challenge for facilities is balancing resident safety while maximizing residents personal freedom per federal regulations, which state services are to be furnished to attain or maintain the resident s highest practicable physical, mental, and psychosocial well-being. See 42 CFR 483.20. However, there are many individualized and facilitywide interventions that can be adopted to reduce wandering risk that do not severely compromise residents autonomy. At a basic level, an elopement strategy should comprise three elements: (1) assess patients for risk of wandering, elopement, and falls; (2) implement risk reduction strategies for at-risk patients and (3) perform a prompt and thorough search for a missing patient. When attempting to defend a lawsuit, one of the first things an attorney should do is start gathering supporting documentation. In addition, you need to properly assess the staffing levels at the facility to confirm they comply with state law and are at a reasonable level to ensure residents are properly monitored. Risk Assessments The facility needs a method to identify residents who are at risk for elopement and falls. A risk assessment should be completed upon resident admission, 48 to 72 hours after admission, and quarterly thereafter unless changing conditions require more frequent assessment. As we have discussed, some diagnoses pertinent to the risk of elopement include: (1) delusions; (2) hallucinations; (3) schizophrenia; (4) Alzheimer s disease; (5) dementia; and (6) a history of wandering. When reviewing the medical record of an individual to determine if they are at risk for falls, some physiological or internal characteristics include: (1) impaired vision; (2) vertigo; (3) medications identified as increasing fall risk; (4) difficulty walking and/or moving from one surface to another; (5) history of falls; (6) elopement risk; and (7) impulsive behavior. Interventions After a resident has been identified as high-risk, appropriate interventions should be implemented. These could include, but are not limited to: (1) behavioral documentation to help identify wandering tendencies; (2) supervision and periodic checks for high risk residents; (3) ingress and egress security protocols (i.e. make sure the facility doors are secure); (4) wander gaurds or similar alarms worn by high risk residents (both the physician and responsible party must consent to this intervention); (5) test exit doors that are secured with alarms or keypads daily/weeky; and (6) chair/bed alarms. Communication & Documentation After a resident has been identified as being an elopement risk and interventions are in place, everything needs to be documented in the resident s chart and communicated to everyone involved in the resident s care. Attorney s defending an elopement case need to be aware of the following documents in this regard: (1) the resident s care plan should list what interventions were in place to prevent an elopement from happening; (2) interdisciplinary team documentation regarding the resident s elopement Defending the Long Term Care and Nursing Home Elopement Case Alvarez and Gray 7
risk, fall risk, and interventions; (3) assignment sheets to determine which caregivers at the facility had knowledge of the resident s care plan; (4) determine if any documents are posted at the nurse s station to alert staff of known wanderers potential for elopement; (5) check in/check out logs that may be used anytime a resident leaves the facility; (6) all written policies and procedures regarding elopement risk, fall risk, and prevention; (7) staff meeting sign in sheets and handouts concerning elopement risk, fall risk, and prevention; (8) all in-service training documentation regarding elopement risk, fall risk, and prevention; (9) all elopement and fall assessments for the resident made during their admission and stay at the facility; and (10) documents noting the staffing levels of the facility. It is unlikely that all interventions will be in place and documented. Consequently the facility staff will need to explain the facility s policies and their personal efforts at monitoring the resident in question. Counsel should meet with the staff early in a case to determine what the staff will say regarding the facility s policies and interventions to prevent wandering and elopement along with proof the staff was trained on the procedures. Additionally, counsel will want to determine what the facility s staff will say about the resident at issue, and the facility s knowledge of his/her wandering and risk for elopement. Counsel should also be prepared to defend the staffing levels of the facility through staffing ratios or other means, and should elicit testimony of the facility s staff to prove they were able to monitor and supervise the resident at issue. C. Quality Assurance The QA Committee should review and discuss all elopement and fall concerns so that trends and risks can be identified and reduced. These documents should not be shared outside of the QA Committee. Plaintiffs will try to discover these documents by attacking the facility s quality assurance privilege. It is common for plaintiffs to seek the discovery of incident reports and investigation documents. Typically, an incident report is not a part of the resident s legal/medical record and includes the following information: (1) the physical, mental, and emotional status of the resident prior to the event; (2) notes times and details when the resident was last seen, staff actions, status of how, when, and where found, and their condition; (3) describes assessments, notes any injuries and what treatments were given; (4) provides facts of how the incident occurred; and (5) list new/revised interventions. A complete and thorough investigation of the elopement and fall needs to be done ASAP in order to prevent another occurrence as well as to protect other residents. That is why it is important to be aware of Quality Assurance Committee documents, and protect them from disclosure according to state and federal law. VI. Conclusion Patient elopement, along with an ancillary fall, is a serious incident that can lead to death or grave injury if the patient is not found promptly. With patient elopements on the rise, healthcare facilities must implement rigorous plans to identify patients at risk for wandering and put in safeguards to prevent these events. The implementation of proper policies, assessments, interventions, and documentation grealy increase your chances of successfully defending an elopement lawsuit. 8 Nursing Home/ALF Litigation September 2017