S

pring 2000. Mrs. X, a 75-year-old woman, is admitted to Happy Vale Nursing Home, a family-owned facility in Dallas, Texas. Her Alzheimer's has become too severe for her family to safely manage at home. Six months later, she quietly and unobtrusively walks out the open doors at the end of her hallway and down the nearby street because she "needs to fix dinner for her husband." Her absence is quickly discovered and she is safely returned to Happy Vale. Christmas 2001. Once again, Happy Vale's doors are opened to greet carolers from local schools and churches who come to bring good cheer to its residents. Twice that morning, Mrs. X attempts to walk out the open doors. A vigilant nurse finds her and, per doctor's orders, administers Vistaril to restrain her. At 3:00 the same day, Happy Vale receives phone calls from the local hospital and police informing them that Mrs. X has been struck and killed by a car, two blocks from the nursing home. Mrs. X's family sues Happy Vale, and a jury awards $6.34 million.
       Unfortunately, abundant examples of this scenario are found in legal databases and government documents--a resident with a long history of wandering walks outside a nursing home undetected, because the door alarm is malfunctioning. Despite the resident's history of wandering, she is not adequately supervised and is discovered later that day drowned in a nearby river. A resident with a known history of wandering sets off the facility's alarms and walks outside. The staff either doesn't respond to the alarms or responds by taking a quick glance outside and then resetting the alarm. The resident is outside, inappropriately dressed in bad weather conditions, and is found along a busy highway.
       Hazardous wandering and elopements are among the most costly risk exposures in long-term care. Wandering refers to a cognitively-impaired resident's ability to move aimlessly about inside a facility without an appreciation of personal safety and enter into a dangerous situation--into stairwells or other unsafe areas or into others' rooms. Elopers, on the other hand, are differentiated from wanderers by their purposeful, overt, and often repeated attempts to leave the building and the premises. Frequently, elopements are attempted with a perceived "need" (e.g., to feed the dog, but the dog was a childhood pet). In addition to the high cost of claims, fines, and potential lawsuits, elopement and wandering incidents often attract intense negative media attention that can severely damage a facility's reputation and ability to compete.
       Many residents in nursing homes are confused and disoriented and must be protected from wandering or becoming lost or injured. It is estimated that half of all nursing home residents suffer from a dementing illness, most commonly Alzheimer's, and that 11 to 24 percent of institutionalized dementia patients wander. It is important to remember that wandering occurs not only in elderly people with dementia but also in confused patients, regardless of the etiology.
       Nursing homes are the new liability targets for insurers and trial lawyers. States, such as Texas, Florida, North Carolina, and Alabama, have some of the top nursing home awards in the country, topping the unbelievable national average of between $400,000 and $1 million. The average nursing home award exceeds the median averages for medical malpractice and all personal injury claims. In fact, one Alabama verdict was a whopping $65 million. Elopement and wandering are included in the list of the top complaints and lawsuits and are responsible for about five percent of all claims allegations.
       When a resident who is not capable of self protection or who is cognitively impaired elopes or wanders and gets hurt, the facility may be found negligent, because it:
- Failed to hire enough staff to properly supervise the individual resident
- Demonstrated a pattern of failing to meet the minimum state staffing requirements
- Failed to properly train staff on how to supervise residents
- Failed to employ alarms or other devices to prevent elopement and/or wandering
- Employed staff members who failed to properly respond to an alarm.
       There are no clear-cut answers for managing wandering behavior in all individuals; instead, individualized evaluations and solutions are key. The nursing home should assess each resident when they are admitted for the following:
- Risks for wandering, such as dementia, Alzheimer's disease, and medications that cause confusion
- Prior history of wandering and forgetting whereabouts.
       In addition, if the resident was in a prior nursing home or hospital setting, the facility should question if restraints were used.
       If the resident is at risk for wandering, the facility should take precautionary measures that include:
- Develop a plan of care that is firmly rooted in an assessment of the total patient and "knowing" the individual patient
- Preventive devices, such as alarms or electronic devices on the patient, alarms on the bed, or alarms on the exit doors
- Monitor the exit doors at all times but particularly during shift changes and emergencies, as these are notorious times for residents to slip away unnoticed
- Move an "at-risk" resident to a room that allows for closer observation by the nurses
- Develop an individualized safe wandering program that preserves the rights of other residents.
       The greatest drawback to any alarm system's effectiveness is misuse (e.g., staff disengaging or ignoring alarms, patients removing triggering devices). Wrist bands and other devices on clothing that trigger alarms to warn staff that a resident is leaving a room or facility do not, in and of themselves, restrict freedom of movement and are not considered restraints under federal Medicare and Medicaid nursing home regulations.
       The legal community has found and targeted long-term care as an area ripe with the potential for litigation. A lack of commercial carriers willing to write nursing home coverage currently exists in most states. Some of the few insurers left and willing to provide coverage are charging as much as $4,000 to $6,000 per bed, while others have pulled out of tough states, such as Texas, Florida, and Alabama.
       Facilities must also accept some of the responsibility for the increase in litigation. The Balanced Budget Act of 1997 (BBA 97) dramatically cut Medicare payment to long-term care. Income has lowered, so perhaps the quality of care has been reduced because money isn't being spent to keep the facility running efficiently. Another problem is a high turnover rate and a nationwide nursing shortage, which leads to difficulty in obtaining and retaining highly experienced and knowledgeable staff.
       Staffing levels are often a focus of nursing home claims, and a plaintiff's lawyer may try to connect a pattern of understaffing to corporate indifference and financial greed. Attention will definitely be paid to how a facility's current and past staff levels compare to industry standards. If employee counts and patient ratios fall below national- or state-accepted levels, juries may conclude that the facility was indifferent to patient welfare and more interested in profit. Frequent wandering and elopements, especially two in the same day, can also give a jury the impression that the facility ignores patient needs and ignores physician orders--a major trigger of large awards.
       Today, long-term care facilities are challenged on all fronts. In an environment of tight fiscal restraints, nursing shortages, and high turnover rates, facilities can no longer afford to ignore the basics of providing a safe environment for residents. By lapsing into substandard care, even once, the facility risks its entire ability to remain in business.