This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.
Schenk: Hello and welcome to the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are trial lawyers and we practice in the areas of nursing home and neglect in the state of Georgia and we just also happen to be your co-hosts. Thank you for joining us. If you’re new to the podcast, just to let you know, we are a video podcast, meaning you can watch us on our website, which is NursingHomeAbusePodcast.com, or check us out on our YouTube channel. Or you can also download the audio on Stitcher or iTunes Radio or wherever you download your podcasts, whatever mobile application you use, we’ll probably be there. Except Spotify – Spotify is like they’re still – not beta testing – but they’re only allowing the cream of the crop podcasts as of today. We’ve applied and we’re just waiting, got our fingers crossed to be allowed onto the Spotify platform. Maybe one day.
Smith: Maybe one day. We’ll see.
Schenk: Maybe one day. Maybe based on how good this episode is.
Smith: Oh well then if that’s any indication so far…
Schenk: We’re good to go on that, right?
Schenk: Yeah, okay. So on the agenda today, a problem probably – it’s not the most common problem, but when it happens, it can certainly be devastating. And this is the problem that nursing homes have with what’s called elopement. And for those that don’t know, elopement is when a nursing home resident not only wanders unsupervised, but actually leaves the premises. That is the definition of elopement, not necessarily going someone with your loved one and getting married without telling your parents. It is the act of a nursing home resident wandering and then literally leaving the facility, going out into the parking lot, going out into the street.
And as you can imagine, with nursing home residents with Alzheimer’s, with dementia, this can be deadly because the resident can get lost, they can fall down, they can unfortunately get sometimes hit by cars, but it’s a serious problem when it occurs.
So where are nursing home facilities with regards to preventing this from happening? What are some things that the nursing home can do? The first thing is that the nursing home should take steps to assess every individual resident’s risk for elopement. So who are the nursing home residents that are at the highest risk for elopement?
Smith: Alzheimer’s and dementia patients.
Schenk: That’s correct. So basically the individuals at the nursing home that fall under the category of limited mental capacity, but the other component to that is that the resident has limited mental capacity but also high mobility. So in other words, an individual that is not confined to a wheelchair, that can get up, stand up, walk – these individuals are the residents that the nursing home should be on the lookout for to not leave the facility essentially.
Schenk: So those are the residents with the highest risk. So what nursing homes need to do is assess that and assess what can be done. So with regard to preventing elopement of the high risk individuals, but from a standpoint of a psychological standpoint, what’s going on with the resident that causes them to wander and causes them to leave the facility?
And there are a couple, or probably several theories, but two main theories regarding that are various types of triggers. So oftentimes the resident will be triggered by what’s called a desire to fill a need. So in other words, maybe they’re attempting to find a nonexistent bathroom to urinate or they are attempting to go to a location that is not too hot. Maybe it’s too warm, something along the lines of that.
Oftentimes another trigger is going to be, other than environmental factors, it’s going to be a reaction in the mind of the resident to something in the past. So for example, oftentimes, and I know you’ve talked about this in the past where the resident is wanting to go to work. They’re putting on a tie and going to work.
Smith: Yeah, it’s like if you’ve ever been asleep and you’re having a dream and in the dream, you’re reaching for a cup of coffee, and you wake up and you’ve got your hand around your dog’s head if your dog sleeps with you, because your mind doesn’t really know what’s going on. You’re disconnected with reality. That’s what’s going on with the dementia patient and sometimes with Alzheimer’s patients, but definitely dementia. They aren’t living the same reality that you are.
I always use the fake person, Mr. Johnson. In Mr. Johnson’s mind, he’s got to go to work, so he’s putting on his suit and he’s putting on his tie and he’s heading out the door, and unfortunately somebody didn’t lock the door and now he’s walking down the highway to his job that he hasn’t had in 50 years.
Schenk: Right. And according to some studies, it says here individuals, particularly residents of nursing homes with dementias, have a lower threshold for stress, and their ability to cope with internal environmental stress continues to erode as the disease progresses. So a lot of times, they’re reacting to internal discomfort based on external demands, so for example, noisy environments, hot or cold environments, environments and situations in which they feel emotionally threatened, so they’re reacting to that and trying to essentially get away from that. So that’s the trigger.
So those are – that’s the individuals that are at risk. That’s generally the psychology behind why. So let me – it’s interesting, some of these stats are pretty impressive. So let’s see here. The risk of elopement is on the rise. Between 2006 and 2009, the number of reported cases of elopement increased by 38 percent. And then we have here, let’s see, according to Wick and Zanni, which that’s a particular study referenced somewhere else, according to that study, residents – this is interesting – 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 72 percent of successful elopers attempting to do so again. So there’s a high recidivism rate of elopement and there are chronic wanderers in nursing homes or long-term care facilities.
Smith: So we talk about the psychological triggers, and what that also does is set up a discussion on how do you prevent elopement. So the very first thing is trying to create an environment that doesn’t have those psychological triggers, so making them comfortable, making them feel safe, not having somebody placed to… If you’ve ever been inside a nursing home, you know that occasionally there will be a resident or two who is very vocal and constantly vocal and is constantly yelling. That is a stressor that you don’t want to put dementia patients around, those with limited mental capacity.
Also understanding something – we’re talking about dementia patients, but some people have their wits about them and just don’t want to be in a nursing home. And I have seen at least on one occasion, not as an attorney but as a CNA, somebody who would constantly, constantly leave, and that family – and this is an old country nursing home – and the family would have to come up there and everybody in town knew him and was like, “Pee-Paw, you’ve got to go back. You can’t do this.”
But aside from removal of those psychological triggers, something that I have noticed more and more, and I don’t know necessarily if this is a function of location or if this is a function of a growing awareness of elopement, but I was a CNA from 2000 and 2007 or 2008, and most of it was in rural Georgia. And you could go to a nursing home and walk right in. You could open the door and walk into the nursing home. What I’m noticing more and more, and again this may be the function that I’m in the metro Atlanta area now, is that when I go visit residents or do an investigation in a nursing home, I have to buzz to get into the nursing home because you can’t just walk in, and that’s one way not only do they prevent any dangerous actors from coming into the nursing home, but it also prevents people from just randomly walking outside.
Schenk: That’s right.
Smith: They have to at least go through the nursing staff and say, “Hey, can you buzz the door and let me out.”
Schenk: That’s right, and so what’s interesting this notes is that in terms of securing exits, an interesting psychological component to elopement is that studies suggest that individuals that have dementia limited capacity, you have a tendency, if you’re going to wander, you wander to a focal point, and the problem is that when you have an exit at the end of a hallway, the wanderer, the person that’s committing elopement, will go to the end of the hallway and out that door. So the nursing homes are more and more placing their exits to the side – not at the end of the hallway, but towards the side of the hallway and securing those.
And it is a give-and-take between securing all of your exits versus creating a fire hazard. And I realize that’s a tug-of-war, safety, preventing elopement versus you don’t want to have a fire and all the exits are barricaded or locked. So it’s important to make sure that all non-essential exits are secured in some way – they have an alarm – so that way Mr. Johnson can’t just wander out the back exit and nobody knows, but it’s a problem.
When we had a case not too long ago in which we represented the nursing home resident who was a constant, chronic wanderer, and he had at least two instances of elopement in which he was able to go to the – once he was able to go outside unsupervised into a courtyard and then another time he was able to make it outside into a parking lot. And according to the medical records, the parking lot incident, the nursing home blamed it on family members of another family that left the gate open, but it doesn’t matter. Anyways, that resident ended up eventually wandering unsupervised into another room and accidentally hanging himself with window blind cords.
Schenk: So wandering and elopement can be a very big problem, so it’s important that if you have a loved one in a nursing home, that the nursing home, you question the nursing home. What assessment has the nursing home staff done in regards to elopement and wandering prevention? So if your loved one is in a wheelchair or is morbidly obese and can’t move around or is not ambulatory, maybe there’s no risk. But where your loved one can walk around, where even if your loved one is in a wheelchair, they can still maneuver that wheelchair still pretty good, they can potentially be that risk if they also have that limited capacity. So ask questions – where are the exits? Are they secured? Are there alarms?
Smith: And alarms – that’s something good to talk about. An alarm to prevent against elopement is oftentimes with the consent of the family and advisement of the physician. Again, residents have rights. They’re not cattle. You can’t just put a tag on them. So when the entire healthcare team and the family gets together and decides that this is a risk and needs a remedy, one of those remedies is placing a bracelet, oftentimes a bracelet, on the resident that alerts staff if they go outside of a certain area. So the exit doors will have a sensor that goes off any time that resident’s bracelet traverses the plane of the sensor, and it immediately starts beeping. And once you hear that beep, everybody just starts running.
Schenk: All hands on deck.
Smith: All hands on deck. And typically in my experience, we know who it is. It’s always the same one or two residents that are constantly trying to get outdoors. And so when I hear that beeping sound, I know…
Schenk: It’s Mr. Johnson.
Smith: Mr. Johnson is headed to the farm, even though it’s no longer there and it’s now a Walmart because that was 50 years ago, Mr. Johnson.
Schenk: At the end of the day, we always say be vigilant. Ask questions of the nursing home. But in terms of elopement, those are the things to look out for. Does the nursing home take affirmative steps to make sure there are visual deterrents of elopement, physical devices in place like the door alarms, the sensors, the bracelets that would prevent it? And what are their attack plans when elopement occurs?
Smith: Do we talk about why elopement’s dangerous other than just… I mean it’s pretty self-explanatory. If you wouldn’t want a toddler out in the wilderness of society without protection, you wouldn’t want somebody who has dementia who doesn’t know what’s going on crossing an interstate, going to a parking lot, or getting lost and not knowing where they are and freezing to death, which is often what happens. So they cannot take care of themselves in that environment, so they have to be contained within the security of the nursing home or a skilled nursing facility, wherever they are.
Schenk: That’s right. That’s why it’s important when it doesn’t happen a lot statistically – it’s on the rise though – but when it does, it can be catastrophic because you have an individual that’s going into an unfamiliar environment that it can be hostile oftentimes, whether it’s traffic, things on the ground, uneven ground or weather. So that’s something the nursing home needs to assess, you need to ask the nursing home about it.
Another issue – and we’ll segway out of that into another one – is the nursing home’s duty, the long-term care facility’s duty to prevent altercations, not from the staff to the resident but between residents. And I bring this up because of a recent issue from a Boston nursing home.
And so it says here, it says 7News out of Boston took the addresses of nursing homes and rest homes in Massachusetts and compared them to the addresses for sex offenders on the state’s registry. And they found that two level 2 and 10 level 3 sex offenders, the most dangerous kind, came up matches. So you have convicted rapists and convicted child abusers residing in nursing homes.
And in this article, the investigator spoke with an attorney – what’s his name? – David Huey, a Massachusetts attorney who handles elder abuse cases, where he was talking about how more than a decade ago, Huey sued the nursing home in two different places where a sex offender, a known sex offender was a resident, and ended up raping a 90-year-old roommate.
The nursing home’s defense in that case was the offender’s crimes previously that he was convicted for were against children so they didn’t believe he posed a threat.
Smith: And you know, this is another one of those very difficult murky areas where you have residents rights versus residents safety, because these are human beings, and the fact that they’re elderly doesn’t mean that their sexual desires, their desire to be held by another human, to be romantic with another human, it doesn’t mean those go away.
And so I have very often found myself in situations as a CNA where we have individuals that we have to keep apart, because we’re not 100 percent sure if it’s consensual. And if there’s any question of that, it’s one of those things where we just contact the family and say, “Hey, listen. Mr. Johnson is constantly going to Mrs. Craig’s room.” I know both of their spouses are passed away. Both of them have their mental faculties about them, but it’s not really clear what we should do.
Schenk: And that’s one component of this. The other component is that in terms of privacy rights and regarding what the nursing home should do to prevent problems versus the rights of the residents to do as they wish, that also involves the rights of ex-convicts. So if the convicted sex abuser has done his or her time, what is the duty of the nursing home to say, “You still can’t be here.” In fact, the article points out that Massachusetts banned level 3 sex offenders from living in nursing homes, but the Supreme Court ruled that law unconstitutional. With regards to what that duty is on a federal level, there is no specific regulatory rule with regard to sex offenders.
However, the federal code requires that nursing homes identify any residents that might abuse others and come up with a plan to specifically address that. So identifying people who might abuse or who might hurt or who might get in altercations include the sexual offenses as well. So while at this point, doing a background check for every resident might not be the standard, they do know that if a nursing home identifies that a resident is violent or sexually violent or has a propensity towards these things, then they have to take measures to prevent those problems.
Smith: And again, as is the case with a lot of negligence in nursing homes and a lot of neglectful issues in nursing homes, the very first solution to this problem is more staffing. And when I say more staffing, I mean at the very least adequate staffing. If you’ve got one or two CNAs for a hall full of 30 people, they don’t know what’s going on in every room. But if you’ve got three or four or even more CNAs in a hall and they’re closely interacting with the residents, everybody knows what’s going on. Things only happen in secret when there are not enough eyes on the residents, and there are not enough eyes on the residents when these nursing homes fail to hire enough staff, because again, it’s easier for them to save money by not hiring staff and then just dealing with the occasional lawsuit that happens when something like this occurs. So again, it’s just them being hoggish, and not just making a profit, but making a killing at the expense of resident safety.
Schenk: That’s right. And as I said, this is according to Centers for Medicare and Medicaid Services – “The facility is responsible for identifying residents who have a history of disruptive or intrusive interactions or who exhibit other behaviors that make them more likely to be involved in an altercation. The facility should identify the factors such as illness or environment that increase the risks associated with the individual residents including those that could trigger an altercation. The facility should implement a program or a plan in place such as separation, reducing those environmental cues that cause the altercation like loud noises or the temperature controls that are triggering the violent or disruptive behavior.”
Smith: And you have to think about this too, just in another dynamic of this – it’s not a solution just to say, “Well let’s just not… As a nursing home, we’ll no longer accept people who have a history or violence.” Then where do they go? More often than not, people go to nursing homes because they cannot take care of themselves and family can no longer take care of them. So if you have somebody who is not completely independent that is not allowed in a nursing home, where are they going to go? They’ve got to go somewhere. They’re going to be a drain on resources. It’s still going to be an issue. So the best thing to do is for the nursing home to have adequate staffing, for families to have the confidence that at any given time, the staff of the nursing home knows what’s going on with their loved one at all times. And that’s something that cuts it down.
But again, and this goes back to resident rights versus resident safety, there is no situation in which we can have resident rights and 100 percent resident safety. People may not have a history of violence and because of their illness just snap one day. Before anybody can do anything, they can attack your loved one. But that also could literally happen anywhere.
Schenk: That’s right. The important thing to note is the nursing home needs to have constructive knowledge of the potential for violence or disruption. If it’s a one time, out of the blue thing, what can a nursing home do? They’re not omnipotent.
Smith: Yeah. They have to have a proclivity towards a certain act.
Schenk: Among other factors.
Smith: Among other factors, but they have to have a history of doing that, not just “I got into a fight once.”
Schenk: I got into a fight once when I was in third grade, and it was at some point after the movie “The Karate Kid,” so I noticed the Karate Kid would do this – what is this when you karate chop something? – so I was trying to punch like that and it didn’t work. You’ve got to fist up, and I was doing the karate kick, and that didn’t work. And that fight I think was over like a disagreement about which Garbage Pail Kid was the best or something like that.
Smith: And you know that actually brings up a good point. Residents will sometimes, just because you’re an elderly person doesn’t mean you’re always wise. You still have human emotions. Residents will fight over small petty things.
Schenk: Like Garbage Pail Kids.
Smith: Or lunch or who gets to sit where, or sometimes they’ll just mistake somebody for somebody else. It happens very frequently and you’ll have to separate those residents. The social worker will have to come and talk with them and figure out what the triggers were, and just try to be more proactive to prevent that type of thing. I have seen on one occasion two female residents just get into an outright brawl over I want to say it was who got to lead the activities that day. So they afterwards were no longer to attend the same activity timeframe, and that pretty much solved the problem.
Schenk: And speaking of separating residents from one another, it is time to separate you, the listener or the viewer, from this particular episode of the Nursing Home Abuse Podcast. As always, you can download the audio portion on Stitcher or iTunes or whatever your podcast application means of choice is, or you can watch us, watch our pretty faces on our website, which is NursingHomeAbusePodcast.com, or check us out on YouTube. But we appreciate you listening and watching and we will see you next time.
Smith: See you next time.
Thanks for tuning into the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher and feel free to leave us some feedback. And for more information about the topics discussed in this episode, check out the show website – NursingHomeAbusePodcast.com, that’s NursingHomeAbusePodcast.com. See you next time.