Avoid Liability from Patient Elopement
December 1, 2023
By Greg Freeman
Patient elopement is a major threat to patient safety, particularly with the most vulnerable patients. Any resulting injury or death could bring liability to the healthcare facility. The risk requires careful adherence to proper policies and procedures, along with the use of some physical precautions that can reduce the risk of elopement.
The attention to preventing elopement should be elevated when a facility houses patients at risk for leaving intentionally or accidentally wandering away. These may include behavioral care patients and those with cognitive disabilities such as Alzheimer’s disease.
Every case of elopement is a serious risk to both the patient and the healthcare organization, says J. Malcolm DeVoy, JD, partner with Holland & Hart in Las Vegas.
“I try to say the word ‘escape’ to scare my clients into understanding what’s really at stake. Whenever there’s an elopement, there’s the potential for liability, whether it goes to a state inspection or they come in and do the survey for CMS as well,” DeVoy says. “There’s some kind of regulatory risk, with a likelihood of some kind of fines or sanctions. At a minimum, there’s the need for a plan of correction in order to address that issue.”
There are costs associated with all those potential results. If the elopement is part of a sustained pattern, there is the possibility of the facility being terminated from Medicare and other federal programs, DeVoy notes. From a civil liability standpoint, the risk depends on how long the person was gone and if they suffered any injuries when they are gone.
“The outcomes are very different for a patient who elopes and walks into traffic vs. a patient who elopes and is missing for three or four hours, scared when they find them, but they didn’t suffer any kind of injuries,” DeVoy says. “Then the question is what theory they are pursuing on a negligence theory. At that point, you have to pay for attorneys, and it might be easier to settle than to litigate whether you’re right or not.”
If the issue comes to a question of damages, a good defense is to show that the organization followed the Medicare Conditions of Participation and addressed any past elopement incidents, DeVoy says. The question will be whether you discharged your duty to the person in your care.
“Even though the fact that there was an elopement is enough to drag you into that moment where somebody can bring a claim against you in civil court, or to complain to CMS, it doesn’t necessarily mean you’re liable,” DeVoy says. “Being able to show that you’re up to date and complying with these policies, and they’re updated over time, is very important to minimize that liability.”
Avoiding elopement depends on learning from prior incidents and staying on top of what other people are doing in the industry. The extent to which a facility works to prevent elopement will depend partly on the nature of the patient population, with more effort required when a significant portion of patients are at risk for elopement.
Many physical and technological solutions are available, such as alarms on exit doors, video monitoring of exits, and patient monitors that can alert staff to a location deviation. However, DeVoy notes that some of the most effective preventive efforts are not high-tech.
“There are practical things that can be done, like if somebody is identified at risk, give them a different color patient gown, or give them different colored clothing so that they can be identified and people can keep eyes on them,” he notes. “I’ve seen people use a panel with the letter E on it that can be put by their door, or it can be put by the exit doors where there’s an elopement risk. Now people know that without stigmatizing the patient — just alerting on the fact that there is some potential elopement risk that requires additional attention in these physical areas or on that person.”
Widen Scope of At-Risk Patients
Policies and procedures on elopement are not enough, says Bette McNee, RN, NHA, assistant vice president at Graham Company in Philadelphia. Most hospitals create policies for elopement that identify the risks for elopement when a patient comes in, which is a good start, she says. But it is important to think broadly about which patients may be at risk.
“Those assessments tend to focus on history and patterns, so if someone’s never had a pattern that suggests an elopement risk, they kind of stop there. Also, a lot of policies that I’ve seen prioritize the first couple of days of admission, thinking that is the high-risk time, and that is true,” McNee says. “A lot of the policies identify a risk group, maybe people who have been in withdrawals, or previous alcohol or drug abuse, or psychosis, or maybe behavior situations. Every time you build these policies, you have to keep in mind that you’re trying to capture more people at risk for elopement because we’re not capturing everybody.”
Documentation of all elopement prevention efforts is important, but McNee says the patient’s involvement in the process often is overlooked in the record. Clinicians should talk with the patient about the risk of elopement, and all that interaction should be documented.
McNee also cautions that failed elopement attempts should be thoroughly investigated. “If an elopement was averted using alarms, I strongly advise that you react with a root cause analysis as if the patient did get out of the hospital, unknown to staff. If we don’t and we’re just depending on that technology, you get that car alarm syndrome where the alarms go off and then you just sometimes become numb to it,” McNee says. “It should prompt a root cause analysis reaction instead of going, ‘Oh, great, the alarm did what it was supposed to do,’ and leave it at that.”
SOURCES
- J. Malcolm DeVoy, JD, Partner, Holland & Hart, Las Vegas. Phone: (702) 669-4636. Email: [email protected].
- Bette McNee, RN, NHA, Assistant Vice President, Graham Company, Philadelphia. Email: [email protected].
Patient elopement is a major threat to patient safety, particularly with the most vulnerable patients. Any resulting injury or death could bring liability to the healthcare facility. The risk requires careful adherence to proper policies and procedures, along with the use of some physical precautions that can reduce the risk of elopement.
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