Elopement Cases Against Nursing Homes
What happens when a nursing home resident wanders away unnoticed? Elopement can lead to serious injury or death and often points to staffing and supervision failures. These cases raise major safety and legal issues. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes guest Kristen Lojewski to talk about elopement cases and how nursing homes can be held accountable.
Lojewski:
Is it a Wonder Guard alarm system? What are they putting in place? And if they aren’t putting appropriate interventions in place, or they’re not actually implementing those interventions, that’s just a recipe for disaster.
Intro
Schenk:
Hey, out there. Welcome back to the Nursing Home Abuse podcast. My name is Rob. I’ll be your host for this episode. Today we are talking about elopement cases, what. Makes an elopement case difficult. What are the common defenses, what are the challenges in accepting these type of cases, but we’re not having that conversation alone.
As I mentioned, we are talking to Kristen Lojewski. Kristen Lojewski is the founder of Lojewski Abuse and Injury Law and Milwaukee firm focused on abuse, injury and wrongful death cases throughout Wisconsin.
A former prosecutor, Kristen now concentrates on nursing home abuse and neglect or core practice area, a graduate of the Jerry Spence Trial Lawyers College and recognized as a top 40 under 40 attorney. She brings dedication, creativity, and tenacity to every case she takes on. And we’re so happy to have her on today.
Kristen, welcome to the show.
Lojewski:
Thank you. Thank you for having me.
What is typically the cause of elopements in nursing homes?
Schenk:
So in your experience, what would you say are the typical causes for a resident eloping from a facility?
Lojewski:
So what I’ve seen in a lot of cases is that it’s. It never happens in a vacuum, right? It’s a system failure case, and really it goes back to the nursing process.
I take out the d, I say api, which you might do in your cases to assess, plan, implement, and evaluate. So looking at the causes, failing to properly assess a resident. The minute they walk into the facility or even before they even enter the facility, if they’re not flagged as an elopement risk, how is staff supposed to be able to properly plan and implement interventions to care for them for the elopement?
Aspect of cases, right? And for their care. The other part I see a lot is the planning process, so implementing an actual plan of care. Although a resident might be flagged as an elopement risk, are they then putting those interventions on a care plan and what do those interventions look like? Is it a Wonder Guard alarm system?
What are they putting in place? And if they aren’t putting appropriate interventions in place, or they’re not actually implementing those interventions, that’s just a recipe for disaster.
Behavioral risk factors related to resident safety are explored on the impact of preventive health measures in elderly populations in long-term care settings.
Schenk:
I just recorded an episode. I don’t know when it will come out. I don’t know if it’s probably out by the time this comes out, but it was an interesting intervention for elopement and it was a facility putting a television by the door as a one last means of distraction that would, at least by the facility, at least a couple minutes, and sometimes it was entirely successful.
The resident would just stop. And watch television rather than leave the building. So you mentioned interventions and I think that a problem at least that I see in some of my cases is that, after the assessment you don’t have to be like super creative. Like you don’t have to put a TV up by the wall, but you gotta do, you gotta think about what’s gonna prevent reasonably prevent the elopement.
Lojewski:
Absolutely. And that is a creative idea. I’ve seen instances too where ’cause elopement happens as a lot of times in memory care facilities due to cognitive impairments. And what I’ve seen too is creating. More of an activity room for cognitively impaired individuals that’s more sensory.
That way, their initial distraction is that there’s a door that I can go out of, it’s, wow, look at this other room. So there are so many alternative ways other than just. A wander guard or even a secured unit that facilities could be implementing to think outside of the box.
This analysis discusses frontline care challenges on the impact of preventive health measures in elderly populations affecting supervision and monitoring.
What evidence are you looking for in elopement cases?
Schenk:
What is some of the evidence that you might be looking for to build your own elopement case.
So you got a, you’ve got a case that walks in the door and kind of what are some of the documents or what are some of the information that you’re looking for?
Lojewski:
I think one of the biggest things in these types of cases is training and supervision. So I wanna know what the staffing is like at the facility, and I want to know if the employees are adequately trained to care for residents that are elopement risks.
But also it goes back to that nursing process again, you wanna look at risk assessments. Were they even assessed from the very beginning of them walking in? As an elopement risk. And then looking at the care plan, are interventions being implemented that support the risk for elopement and what are those interventions?
Oversight and accountability concerns are examined on the impact of preventive health measures in elderly populations in residential facilities.
Another thing too is, I don’t know about in your state, but in Wisconsin, a lot of incident reports and then regulatory surveys are not admissible in litigation. But if we can get those regulations. Surveys ahead of time. It’s the division of quality assurance here in Wisconsin. If we can get those ahead of time, and let’s say the state did cite the facility based off of the elopement incident, we can look and see that there’s a roadmap to what the facility was or was not doing.
Of course, it doesn’t happen in all facilities, but if they have surveillance footage. That’s huge. I think too, once you get into litigation, one of the biggest things that as an attorney you should be doing is a site visit because you never know what you’re gonna uncover. They might say that there, the facility might say that there isn’t video surveillance, but then you see cameras in the common areas, right?
Subtle red flags families miss are discussed in Episode 8: Overlooked Signs of Nursing Home Neglect.
And then you can follow up and ask, and maybe you find out that those are just for show and they don’t work to begin with. Or perhaps it’s a secured unit with alarms, but the alarms aren’t working or they weren’t working at the time and a lot of those are not uncovered unless you do an actual site visit, which probably isn’t gonna happen until after you file a lawsuit.
Environmental and staffing contributors to resident wandering are evaluated on the impact of preventive health measures in elderly populations.
Schenk:
Sure. That’s something that, and it’s one of the benefits of having this podcast. You learn something every week. I guess I had never thought about doing a site visit for this type of case, but that absolutely makes sense, everything you just said. ’cause like that happens oh yeah, the cameras don’t work or whatever, but actually going there and putting boots on the ground can really help flesh out some of the things that you might not have thought about.
Lojewski:
Exactly, and this is, it’s such a piecing together process in elopement cases to figure out the exact timeline of when the resident actually left the building and what was happening before, and to be able to walk that same path that your client walked. While you’re there, you can get a better picture of what might have been happening and going on.
Families often discover neglect after an incident, as explained in my loved one walked out of a nursing home unsupervised.
Schenk:
My office has gone within a stone’s throw of a facility that I’ve had a lawsuit against. And I still didn’t even walk out of my office to walk around. So maybe I should do that in the future.
Lojewski:
It just took your binoculars, right?
What are some of the common defenses you see in elopement cases?
Schenk:
Exactly. Exactly. Which, it’s funny ’cause for the longest time, the, there was a time where it’s not like that anymore because Google updates, but you know how the Google car with the camera on top.
Take the photos of the, somebody appeared to be jumping out of the window of the facility. So elopement was actually captured by Google for a long time, but it might not have been that. I’m not trying to defame anybody, I’m not naming them. So it looked that way, although it’s possible that it wasn’t that.
But anyway. So Kristen, like in your experience with these cases, like kind of what are the primary defenses that you see?
Lojewski:
So maybe I’m a little biased, but I do think elopement cases over some other types of cases are harder for the defense. I think they’re a little more challenging for them, but ultimately what I see the most.
It is similar to a pressure wound case, right? It was unavoidable. It was inevitable. It was going to happen anyway. And I think defense utilizes that defense in a lot of different types of cases involving nursing home facilities. And the part of that is that while they may be saying it was inevitable and the person was going to elope anyway, they have to make sure the facility has to make sure that they’ve put.
Legal accountability for these incidents is addressed in can I sue a nursing home for letting my loved one walk out unsupervised.
Every possible step in place reasonably right that they possibly could have in order to prevent this from happening. And oftentimes we just don’t see what was happening in these types of cases because they assess the resident. Maybe there’s not an intervention on the care plan or if they care planned and let’s even go so far to say as they even implemented the interventions that they put on the care plan, then that’s when you look at staffing.
And training and oftentimes, especially in memory care facilities here in Wisconsin those are regulated by the assisted living regulations. So there’s no special regulations for memory care facilities which I feel like a lot of families don’t know that. A lot of times in those circumstances, the staffing and the training is just not adequate enough.
This video explains the risks when a resident dies after walking outside a nursing home.
So whether this resident needs to be supervised and they’re not being supervised, or the family thinks they’re getting one-to-one care, when. Oftentimes we know that does not happen, right? Or maybe they’re just not the facility’s just not training staff adequately on elopement risks and deescalation.
Families in Houston County can consult a Warner Robins nursing home abuse lawyer for local representation.
Schenk:
Something that an attorney can quickly do. And actually I’m gonna try to do a podcast on this and walk the public through this, but as you probably already know the nursing homes are required to report their payroll based journal information, meaning here’s. Literally the number of hours of RNs, LPNs, and CNAs on a shift on a particular day.
And you can pull that up on a spreadsheet and go day by day and see and in many cases you can see that, especially on the weekends dips. And that can really speak to the case. If the elopement happened, where that day the nursing home wasn’t even meeting the minimum threshold. That’s required by the state or the federal government, let alone what the acuity is, but not even meeting the minimum staffing requirements.
That, that is an argument in and of itself as you said.
Lojewski:
Absolutely.
What are some of the challenges in taking on elopement cases?
Schenk:
And so if you’re, if anybody else listening that’s interested in that, we had a really great episode with Nicole Snap, Holloway on PBJ information. Okay, so we have the defenses like, hey this was an unavoidable, et cetera. What are some of the other challenges that you have with an elopement case?
Lojewski:
Yeah, so sometimes in elopement cases there’s not necessarily a physical injury involved all the time, but maybe the family is. For hours, doesn’t know where their loved one is, and then that becomes an evaluation by the attorney based off of your state jury instructions.
Facilities have a duty to prevent harm related to wandering and elopement in Georgia nursing homes.
Can you even bring a lawsuit for something like that? So I think the biggest thing is looking and seeing if both defense and a jury, if it’s considered one of these near misses. Really takes the case seriously still. And as long as you’re staying true to yourself as the attorney and true to the client and the client’s story I think that it’s possible that a jury still will really care and feel emotionally and legally connected to a case like this because even though it’s the golden rule.
If you put yourself in that person’s shoes or that loved one’s shoes, nobody ever wants to feel that way, feel lost or alone or afraid. And so I think one of the challenges, even though it could be a near Ms. Case, you can really still turn it into a strength.
Prevention failures are discussed in Elopement and Wandering in Nursing Homes.
Schenk:
That’s definitely a challenge that I have with whether or not to accept the case because obviously it’s a dignity issue.
It’s a respect issue. It’s a safety issue that a resident elopes. But if they are not physically injured, like if they don’t succumb to the elements, if they’re not hip by a car, if they don’t fall down and break an arm and they’re not. Emotionally traumatized. Meaning that they, perhaps it would be difficult to establish the evidence through psychiatry or psychologist to establish that.
Then, like you said, you have a near miss and now you’re gonna have to. Fight arbitration, go in front of a jury, eventually spend money, and then convince a jury that the dignity component of this injury is a dignity component as opposed to a physical injury. And that, for me, at least in Georgia to get to that spot, it’s possible that you’re gonna spend 10 x to get X.
And that’s the rub, that’s the hard part about this.
Lojewski:
Yes, definitely. I, that’s the same for Wisconsin as well. So it’s really hard and I think it’s a case by case and judgment call and fact by fact specific. I do think that these types of cases can be very emotional and even if the injuries weren’t catastrophic, thinking of an elderly person who’s frail.
Early warning signs of abuse are addressed in Episode 5: Identifying Elder Abuse.
Out in the elements, maybe right January in Wisconsin, nobody wants to be outside. Then you take those into consideration with a jury. And I think one thing that could be helpful for these cases for attorneys is if you’re teetering on the fence of do I file suit or do I even take the case?
Maybe just spend a little bit of money and focus group it and. That way you do your due diligence and if you can’t take the case as a result you’ve done some mark market research on it.
Real-world consequences are examined in Episode 43: The Danger of Nursing Home Elopement and Wandering.
Schenk:
And I am diligently working on a book. Taking the nursing home to small claims courts for Georgia’s, ge, Georgia, and I’m sure every state has their own, but Georgia has their own long-term care residence rights, and a violation on its face is what’s the word?
Treble damages. I gotta go back to law school. It’s a thousand dollars essentially. And i’m trying to, I’m working hard to write that book for, okay. You called my office and unfortunately I think it’s gonna be 10 x to get X, but here’s this book. It’s you spend a hundred dollars, file that case in magistrate court in Georgia, small claims court and hold them to task.
You might not make a lot of money, but at least you’ve, you did what you could to get justice for your loved one on a near miss. On a near miss.
Lojewski:
And for these families, it’s mostly all about accountability. That’s the biggest thing that I see is they just want someone to be held responsible. And oftentimes it’s really not about the money, it is about the bigger picture.
Georgia-specific prevention strategies are covered in Episode 75: Preventing Elopement and Wandering in Georgia Nursing Homes.
Schenk:
That’s exactly right. Very well said. Kristen, we very much appreciate you coming on the show and sharing your knowledge with us today.
Lojewski:
Thank you so much for having me.
Schenk:
Folks, I hope you found this episode educational. If you have an idea for a topic that you would like for me to discuss, please let me know. If you have an idea for a guest that you’d like for me to talk to, let me know that as well. Be sure to enter to win the Nursing Home Abuse podcast mug. Let us know who your celebrity crush is. I don’t know.
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Kristen Lojewski’s Contact Information: