Developing Effective Themes for Nursing Home Cases
What makes a nursing home case connect with a jury? Strong case themes turn complex medical facts into clear, compelling stories that jurors understand. The right theme can shape the entire trial. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes guest Joe Musso to discuss how to develop powerful themes for nursing home cases.
Intro
Schenk:
Every single nursing home case has a story. The problem is, sometimes we don’t know what that story is. I’m attorney Rob Schenk, this is the Justice for Residents podcast, and this week, I’m talking to Joe Musso, who has spent nearly 30 years representing nursing home residents and teaching lawyers how to present their cases to juries.
We’re discussing how to find case themes, how to build around them, and why the concepts of truth, betrayal, and broken promises are so powerful. Stick around.
That intro music was brought to you by, its deep Southern trap is how that is described. I think that’s pretty cool. I got… All right, you did good this week. You did good this week. Folks, this week we’re talking to Joe Musso all about case themes, how to find them, where they come from.
But if you wanna learn more about the kind of the, the larger concepts, the 40,000-foot view of taking on these nursing home cases, then I… A little bit of homework for you is episode 203 with Xavier trial attorney Xavier Carter, on considerations for closing arguments, where we d- we do talk about, a little bit about theme in that episode.
Episode 221, which is Natalie Holmes, a, or Natalie Holm, a California trial attorney. We talk about perspectives in nursing home case selection, which actually Joe talks a little bit about in this episode, because all these things tie into what kind of case you have. So picking the case ties into what the theme is gonna be, right?
And then finally episode 309, which is how nursing homes defend cases, which we talk to attorney Jeff Brain Twain, and in that particular episode, it’s the defense’s perspective to the stories and the themes that we create. So definitely go check out those episodes if you want, if you wanna learn more.
Guest Intro
Schenk:
That’s your homework. Now let’s get into the, to the steak and french fries of the episode, no ketchup. Joe Musso has devoted his entire 28-year career to advocating on behalf of nursing home and assisted living facility residents and their families. He has collected millions of dollars for the victims of nursing home abuse and neglect.
Learn more about attorney Joe Musso and his nursing home litigation practice by visiting the Musso Law Firm.
He routinely speaks throughout the country to lawyers, families, ombudsmen, state and county agencies, and advocacy groups on how to prevent nursing home abuse and neglect. He teaches and lectures on how to properly handle nursing home case claims, as well as how to advocate for loved ones in nursing homes.
He is the past chair of the Virginia Trial Lawyers Long-Term Care Litigation section, and the past president of the DC Trial Lawyers Association of Metropolitan DC. He is the chief training officer for the Smith Klein Smith, I didn’t read that right. He’s the chief training officer for Smith Klein Smith, where he teaches and coaches the next generation of nursing home abuse litigators in 22 jurisdictions across the United States.
Follow the Musso Law Firm on Facebook for news and educational resources related to elder abuse cases.
And definitely so happy to have him back on the episode. I didn’t mention previously, but Joe is actually, this is his second time on the podcast. He wasn’t, an interviewee per se, but he appeared in, on the podcast way back in, I wanna say it’s 2017. Let me see if I can find that. Joe, I’m so sorry I’m blanking here 2019, January of 2019, he gave a lecture at the Consumer Voice Conference, and he talked about lessons learned from 20 years of litigating nursing home abuse cases.
Read more about Joe Musso’s experience representing nursing home residents on the Nursing Home Law Center attorney profile.
But that’s episode 101. So everybody out there, if you wanna see a, I guess a, a younger Joe Musso talk about what he’s learned after litigating cases for so many times, go back to episode 101 and check that out. But we are happy to have him back on the episode, this time for real, as an interviewee.
See how these principles apply in practice by reviewing our Atlanta nursing home abuse lawyer case study.
How Are You Figuring Out What the Case Is About?
Schenk:
All right, Joe, so right out of the cannon, first question
is, how do you define what a case theme is, and w- why would it be something that is important in trying these cases?
Musso:
So the case theme is essentially the frame of the case, right? It’s, so it’s the structure upon which the story is built.
And look, litigating nursing home cases, litigation in general it’s storytelling, right? Ev- eventually you’re going to stand in front of a jury, and you’re going to tell that jury a story, and it’s a story that’s going to lead… it reminds me a little bit of those I’m really dating myself.
These are books where you used to read it and you’d go, “If you wanna go in the cave, go to page 35. If you wanna go into the forest, go to page 22.”
Learn what compensation may be available by reading our guide on what damages you can recover in a nursing home abuse case.
Schenk:
Choose Your Own Adventure books, absolutely. Yeah. I’m sure many of us in the audience know about that.
Musso:
Trial’s like that, right? It’s like a story where you’re telling your sto- story, the other side’s telling their story, and ultimately the reader or the audience, the jury, gets to choose which page to go to at the end.
At the end of every story, there is that moment and Spence does it with the bird in the hand, and it’s, your decision what’s gonna happen with the bird. Other great, nursing home lawyers turn it over to the jury in a way that’s very formal and, “Now I give my client to you, now I give this to you, now the community will decide what the standard is.”
I always, I’m always thinking about that moment where I’ve gotta tell the jury “You’ve heard the whole story now except for the final chapter, which is you’re eventually gonna come back into the room, and you’re going to render a verdict. And we’re all gonna be stoic. We’re, no- no one’s gonna jump up and down, and no one’s gonna pound the table if it’s not what we want.
We’re all gonna stand there, and thank you for your time, and you’re gonna walk away, and then I’m gonna hug Mrs. Smith here, and she’s probably gonna cry, and I don’t know if I’m gonna cry, but I, we’re gonna hug each other, and I’m either gonna say-” “Congratulations, you got justice for your mother. You can stop now,” or I’m gonna say, “I’m really sorry you didn’t get it.”
And there’s going to be that moment where you have to turn it over to the jury. To do that, you’ve gotta give them a story that leads to that moment where they want to act. And, that’s not me. That’s 12 Heroes, One Voice, everyone’s done that work, that moment of empowerment.
And themes are that story. And I think the biggest issue with themes is we’re trying sometimes to force them, right? We’re trying to put squares into round holes with those themes. Themes are… There is a structure. There is a general theme, right? Betrayal. Betrayal is almost always a theme. It’s infinitely expressed, though, by how that case unravels.
And if you, by the way, if you have one of those cases where you’ve got a five-star nursing home with wonderful staffing, and it’s just an elopement, an accident, a one in a million problem at a really good facility, and you try to walk in with corporate greed, you’re gonna get your head handed to you, right?
We don’t have the luxury, this is why I always think nursing home abuse law is the hardest law in the world to practice. We were talking about this off-air a minute ago. You gotta prove a case from the defendant’s witnesses with documents that they created to cover their own ass, right? Your client typically isn’t there or isn’t in mentally fit to tell you the story.
We don’t have the luxur- on top of all that, we don’t have the luxury of exaggeration. We, our credibility is everything. L- So the theme is discovered because it has to be true. You try to put corporate greed on someone who doesn’t fit, you’re gonna get your head handed to you. So it’s more about discovering, right?
But most of the cases have a promise and a betrayal and corporate greed, the ones that I’m looking at the ones that you’re looking at. So that, that’s a natural theme.
Healthcare financing and long-term care policy are examined on the impact of preventive health measures in elderly populations.
How Are You Tying What the Case Is About to a Particular Theme?
Schenk:
I wanna ask you how you, what’s the process for you to develop themes? But before I have you answer that, I wanna know what, for you, what are some of the core elements that make a good theme?
Musso:
So a good theme has to be true. Let’s start with that, right? Because our credibility is everything in these cases, right? We’re walking in saying, “Hey, look, I think this case is worth a significant amount of money,” in a society where if what we’re claiming happened to a child at a daycare center or a two-week, summer camp, and we came back and found one of their legs broken and they had a sore, and they had massive infections, people would be arrested, dragged out in cuffs, and lawyers would line up around the block.
But because it’s happening to a 90-year-old, three lawyers have turned it down before they got to me, right? So the theme has to be true to get a jury to want to join in and finish the story. And so- Unfortunately, the themes I’m using are true because I’m suing one-star, intentionally understaffed, repeatedly surveyed as a poor performer nursing homes more likely than not, right?
So ni- 90% of the time I’m suing a nursing home that is absolutely doing what my theme is, which is they know a certain percentage of this population is going to get hurt by their business practices. They have been aware, often for years, that they are below standard on their care and their staffing. They know they’re making more money as a result of that.
They’re diverting those funds to related party entities in an effort to disguise what they’re doing, and they are very aware that people will get hurt or die as a result. And their entire business model, from their website to their documentation, even to their defense lawyer and their clo- their experts on the back end of this thing, is all designed to make and then keep as much of the money as they possibly can from that business model.
So my themes on that story are broken promises, betrayal, shattered trust. Because I discovered my themes over 28 years, right? What do you hear? I don’t want this to happen to anyone else. I trusted them. I should have taken her out, right? They always talk about the life expectancy, right? They love life expect- The defendants love life expectancy, right?
Oh, she was 90. She was … I’m working on a case right now, she was 95, and she eloped. She was 95, Judge. She was 95. She was 95. That’s a defense to letting this poor woman go out. And what’s really crazy about that is that’s not their marketing, right? If … I teach the lawyers at the firm I’m working with at Smith Klotz, when I’m teaching them, look at the way they talk based on the audiences that they’ve got.
When they’re trying to enlist customers, what are they saying? We’re gonna teach you, we’re gonna treat your mom like family, right? And we understand how hard it is to take care of somebody with Alzheimer’s, and we wanna ease the burden, and we wanna walk alongside you. We wanna provide dignity and compassion.
Learn how plaintiffs establish damages and liability on the impact of preventive health measures in elderly populations in nursing home injury claims.
Look at the websites what they’re talking about. Now, I understand that’s not the standard of care, but it is the representation they use to get in. Then look at the language when they are dealing with their employees during the hiring process, policies and procedures, job descriptions, right?
It’s, “You’re gonna be responsible for regulatory compliance. You’re gonna be …” You sit in a deposition with one of those people, and you go, “This is your job description.” And they look at it, and they’re like, “Is it really?” And then on the back end, when all, when they’ve made the promises to the community, they’ve enforced all of this very important work that these people have to do i- to get money from them as an employee, that’s another level, and then when you get to the back end, they have a defense lawyer and some expert that they’ve pulled out of a university to say, “She was gonna die anyway.
She was … the codes for she was old, so it doesn’t matter.” And that whole story is betrayal. It’s intentional. Why would they talk so differently at each spot,
How Can Marketing Materials Help Establish a Trial Theme?
Schenk:
right? So that- … that, that makes sense. And okay ’cause I promised the audience w- I would ask you how, h- how you pry out a theme after you’ve told us what a good theme is, and it seems to me that what you’re saying is, at least in part you emphasize or get the theme based on the representations of the nursing home itself.
So for as you mentioned, we treat you like family or white glove service. So you might stand up in front of the jury, it sounds like, and say, “They promised to treat her like family. They promised to give her white glove service, and they ended up breaking that promise,” or, “They ended up giving her, I don’t know, no glove service,” or whatever.
Is that kind of what I’m hearing?
Musso:
I, with every witness I have, the, the short answer is yes, with every witness that I’m dealing with, right? I’m always asking them to confirm my story, right? So it, and it doesn’t matter who it is. The story is somebody… You sought the trust of this family, not with their couch, not with their car, not even with their dog, with their mom, with their dad, with their child, right?
You knew they were vulnerable, right? It’s in your marketing. You know they’re vulnerable. You know they can’t take care of themselves. What you’re saying is, “Trust us- To take care of your loved one because we know that there are things they can’t do that if left undone will lead to injury or harm.
90% of our cases are acts of omission, failure to do something. There are the, the beatings and the rapes and the medication errors, but most of the time it’s they needed to be turned and repositioned. They were not turned and repositioned. They developed exactly what would happen if they weren’t turned and repositioned.
And the promise up front, implicit or specific, often express, is let us do it ’cause I know you can’t watch her 24 hours a day, and you can’t turn and reposition her and change her diaper and feed her and make sure she’s gonna be clean. You c- you’ve got a life. You’ve got a husband, you’ve got children, you’ve got all this other stuff going on.
Trust us ’cause this is what we do, and we love it, and we’re compassionate and quality care. And they entice that trust, but they know. They know from the last five surveys they was, they were rated as a one-star, and you sit across, and you ask them, “You knew they were trusting you. You asked for their trust.
You also knew you were a one-star staffed facility for the last four years. Tell me everything you did to fix that. I assume you unsuccessfully had tried. Tell me everything you did to try to improve that one-star staff.” And they did nothing. So you continue to entice trust in this community, brought them here knowing that you were understaffed, knowing that people were getting hurt.
Your quality measures say that 40% of your people have pressure wounds. Did you tell them that, or did you just let them believe that stuff on the website? Then they got here. They got exactly the problem that you told them they were gonna avoid by coming here, and then you sic this lawyer and these experts on the family to basically say, “It doesn’t matter ’cause they’re old, and it was gonna happen anyway.”
And this is your business model. You’re, you know exactly what you’re doing at every single stage of this. That story is easy because it’s true, and if you sit across from any nurse, and you go, “Did you know the family was entrusting their mother to you? Did you know that you guys were getting paid to take care of people who couldn’t take care of themselves?”
These, the… we get so wrapped up in the language, right? The assessment, the minimum data set and, RUG scores, and we get all, all PBJ data, and it’s all great, and it’s important and to my N- Nicole and all my nerd friends out there who love the staffing data, that’s great. But at the end of the day what really moves people is…
‘Cause, why aren’t we allowed to use the golden rule, Rob, right? Because it’s powerful.
The reason we can’t go into a court and go, “What if it was your mother?” What if you got duped by this place? Is because it’s so powerful if you do that.
Guess what? That’s what we’re doing.
When we tell a story of trust, ’cause everyone’s got a mom, everyone’s got a dad, everyone’s thinking about this, this could happen to them, this will happen to them. Our population is aging exponentially. Statistically speaking, half of your jury’s gonna have the same situation on the horizon. And so we don’t have to say, “What if it was your mom?”
The story, the theme is the golden rule.
Schenk:
If you’re using golden rule based on community
When Do You Start Thinking About the Theme?
Schenk:
So if you’re using elements of the theme or en- enveloping that in your questioning during deposition, that means that you probably have thought about it before discovery. W- how soon when you get the case, you’re looking at the thousands of pages of medical records, you’re looking at PBG data, you’re looking at the 911 call, all the stuff you gotta, boom, pow on your desk.
When do you start thinking about the theme?
Musso:
Always. The theme is betrayal until I see it isn’t.
Schenk:
I see.
Musso:
The theme is broken trust, broken promises, betrayal, f- essentially fraud without saying it, until I see something that says this case is different, right? Because I’ve just seen the pattern so often.
So- Yeah … you’re right. Let’s say we’re in pre-lit. Someone calls me and says, “Mom got a stage four pressure wound down to the bone, osteomyelitis, and died.” Okay. That’s enough for me to bring it in. I look up the nursing home, one star. I get historical surveys going back three, four years.
One star, one star, one star. Look at PBJ data for the last four years. Low. What do I know? What do I know just from that? Yeah. And you and I- Yeah … at this point, I know the owners, I know the chains. I don’t… I barely have to go look for that stuff, right? I, I see a, a, Landa Phillipson-owned facility.
I see certain facilities and I just go, “Yeah, I know what this is,” right? And so I’m gonna be able to make the betrayal theme, the broken promises theme, the stealing the last chapter of life for money theme most of the time- Most of
Schenk:
the time …
Musso:
in those cases, because- It- … that, I know what I’m gonna find when I depose people.
Schenk:
And you had mentioned earlier 12 12 Heroes One Voice, which is Carl Bettinger,
Musso:
who-
Schenk:
That’s right. I was gonna- Who-
Musso:
I was pulling it. It is Carl, yeah.
Are You Using Aesop’s Fables or Something Catchy?
Schenk:
Yeah. Brilliant … who I try to get on the podcast, by the way. He’s great. I love that book. It’s it’s always behind me over my shoulder. Yeah. But one of his strategies I know is to talk about the case in terms of Aesop’s Fables.
What do you think about that? Have you ever done any, have you ever m- mined for morality of the s- of the case through Aesop’s Fables?
Musso:
I haven’t. I haven’t. Now I think story matters, right? Now, so I- Absolutely. Clearly, yeah … could use a fable, right? Depending on your jurisdiction, and look, this is becoming less and less, our, as our society becomes more progressive it doesn’t work as well.
There’s some risk in using Bible verses.
There are truth- there’s truth in Bible verses that is universal, that people just agree with, right? Yeah. When you, whenever you tell a story about- Reuben Kristall taught, used to do a poem Somebody’s Son, right? Or Somebody’s Mother.
It’s called Somebody’s Mother, and it’s a great poem if you look it up. I don’t have it in front of me, but it’s a story about a guy, a, a young boy who helps a little old lady across the street, and his friends are all waiting for him, but he’s taking the time to, to help this, this elderly woman across the street on an icy day, across the street safely.
And she… He gets across, and he comes back, and all the guys are like, “What are you doing?” And h- he tells the story about how that’s somebody’s mother and we all have a duty to make sure we’re protecting somebody’s mother. It’s a beautiful poem, and Reuben, Reuben taught that to me probably 28, 28 years ago.
But so whether it’s Aesop’s Fables, movies, Look, juries are… I love the idea of juries being the conscience of the community, right? They have this, I think David Howie does this. They have this opportunity to decide what we tolerate. Panish is doing this in a trial right now. W- you get to say in your community what’s okay.
You’ve seen all these experts, right? One expert says you have to keep them dry and clean, and you can’t double diaper them and let them sit in their own filth for extra hours because you’re understaffed, because that causes urinary tract infection, urosepsis, and pressure wounds, like is happened to my client in this case.
And the other witness is coming in saying, “This is what’s normal and okay, and double diapering’s all right, and, all nursing homes have staffing issues, and this is okay.” The beauty is you get to tell the end of the story. You’re the conscience of the community. You get to decide which of these is in fact the standard of care here.
If you determine that the standard of care is what the defense expert says, that this is okay, you can leave Betty in the, in her diaper, in double diapers like this until she gets urosepsis, a fever for weeks, and dies then that’s gonna be the community standard, ’cause they’re gonna keep doing it if you don’t stop them, right?
Or if you say, “No, we don’t tolerate that here in this community. You chose to put a nursing home in Accomack County or, Gloucester County or whatever county this is in, and in our county- this isn’t how we- we’re gonna operate. That’s up to you, right? So yeah, it’s humanity, right? And it’s the same thing with value, right?
The, the thing that scares most nursing home lawyers is not that you can’t tell a story about failure and greed and neglect in these cases. If you’ve screened your case, if you know what to look for you’ve got a case that you’re gonna be able to tell a story where it doesn’t mean it can’t go bad, everything can, anything can go bad in a way.
But y- I’m never, I’m not really worried that they’re not gonna check the box of were they negligent, right? What are we all afraid of when you’re representing a 95-year-old, right? It’s that they check the box for, for they were negligent, and may they check the box, they don’t check the box for cause, or they do check the box for cause, and they give you $25,000 ’cause she was 100 years old, right?
So the story’s about value, and again, I think Panish is doing this right now in his trial. He’s got a death of young children, but- it’s, is it any different? I’ve made the argument that when a $70 million Harrier Jump Jet gets in trouble up there, they don’t tell the pilot, “Do everything you can to save the plane.”
They say, “Jump out of the plane when it seems like there’s nothing left to do.” Miss Londo’s defense counsel over here would tell you it depends on how old the pilot is, right? So yeah, I think metaphor and story, y- Aesop’s Fables, no, I haven’t used them, but if you’re asking do you have to, I think you have to use metaphor, story to make the point of you walk in and go, “$100 million because they neglected this 95-year-old woman,” you’re gonna have a big problem.
If you tell stories about value in our society and how important it is to protect the most vulnerable, you can reframe those ideas, those reflexive ideas. One thing I love to do in, in, you didn’t ask me this, but one thing I love to do in opening, I’ll say right away, “Y- you’re gonna hear a bunch of things that are allegedly the defense in the case.
There’s no defense to this. They didn’t turn and reposition. They were supposed to return and reposition, by everyone’s count, 1,400 times. There are eight of them documented. This is the gigantic pressure wound that happened. This is exactly what turning and repositioning prevents. They didn’t do it. They know they didn’t do it.
They’ve been understaffed for five years in a row. They’ve done nothing to improve their staffing. This is their business model, and the defense is not going to disprove any of that.” They can’t come in and tell you, but you’re gonna hear it. Listen closely. This doesn’t matter ’cause she was old and sick.
That’s their defense. They’re not gonna say it that way. She’s too good of a lawyer to say it that way, so she’s gonna talk to you about how many medications she was on, and diabetes, and Alzheimer’s, and they’re gonna show you actuarial life expectancy tables, and they’re gonna tell you all the reasons, but what she’s really saying is she’s not worth very much because she’s old and sick.
And so lis- listen to it. Listen to it when she talks, listen to it when she cross-examines people, listen to it when her experts get up, and what’s great about that is you sit down, and then she gets up to start telling them how terrible old this person was.
Question of the Week
Schenk:
All right, we interrupt this interview to bring you the Nursing Home Regulation Question of the Week.
Difficulty level, Gene, I think you’re saying that it’s medium. I’ll agree with this. I think this is on the edge, so medium difficulty. So for the, if you get this right, for the rest of the day, an exasperated sigh is an appropriate response to any question that you get. So you just go, one of these, for anything.
What do you want for dinner? Are you hungry? Are you gonna take Joey to soccer practice today? An exasperated sigh is a perfectly acceptable response
Under forty-two CFR 483.20, which of the following is not a required category for assessment under the RAI Resident Assessment Instrument? Is it A, customary routine; B, skin integrity; or C, family involvement and interaction
And that answer is C, family involvement inter- interaction. So family involvement and interaction is not a category that a resident is required to be assessed on during the resident as- ed- assessment instrument process, the MDS process. However, skin integrity and customary routine are required.
What Resources Do You Recommend for New Nursing Home Attorneys?
Schenk:
Falls right into the trap, yeah. So Joe you’ve made it to a point in your career now, you’re almost three decades I think. It was twen- 28 years. For an attorney that is in their first five years or so are there any resources that you might recommend for them for nursing home litigation?
Musso:
You’re gonna blush.
You’re gonna blush, but my first recommendation would be this podcast.
Schenk:
Get out
Musso:
of
Schenk:
town. That’s…
Musso:
I listen I think I told you off the air, I’ve been listening to this podcast for years. Yeah. And I’ve been doing this for 30 years, right? Wow. And, I think I’ve known you for at least 10.
I’ve been listening since I found it, and if you… I teach young lawyers at SmithKline Smith how to do this, and every single one of them I would recommend that podcast to, because- You’re
Schenk:
too kind, Joe. That’s, that’s- It’s,
Musso:
it’s-
Schenk:
You’re
Musso:
too
Schenk:
kind …
Musso:
the difficulty with years one through five is that, first of all, you don’t know what you don’t know, right?
You… The hardest thing for years one through five is building in a sequential order, especially if you’re handling cases. My guys are handling cases. They got an administrator’s dep tomorrow. Whether they understand how a pressure sore forms or not, they’ve got an administrator tomorrow, whether they understand PBJ or not.
So you’re trying to learn in a sequence. What I love about, y- seriously, your podcast, is that you can go in and just search, or, scroll down to those beginning episodes. You wanna get… You’ve got… I love that one you’ve got a pressure injury 101- … a pressure injury medicine one that’s really good, and it’s just, you gotta take the time on the basics of that stuff.
I teach depositions in the first five years, in the first year anyway. Treat them like they’re teachers. If you don’t know, ’cause they’re always like, “I don’t know what to ask the administrator,” well, sit across from the administrator, pull out his job description, go line by line, and go, “How do you do that?
How do you do that? How do you do that?” Sari DeLaMont’s stuff is great. Hostage to Hero is great. Ball on Damages is great, right? Kosierowski’s book on nursing home is outstanding. Just fantastic, right? But honestly, I think the best stuff you can do is reach out to nursing home lawyers like you, like me, people who are…
we talked about this a little off the air, too, that there’s a level you end up getting to in this where you realize this isn’t, this is a hard job, and if you see other young lawyers, inexperienced lawyers, who wanna do it, I’m not protective of oh, I’m not gonna have cases. I have more cases than I could possibly handle, because it’s an epidemic, and it’s getting worse and worse.
We need more lawyers out there. I’m not afraid of competition. I want more lawyers for the cause of protecting the elderly. We’re teammates. I don’t care if you’re down the street from me in another jurisdiction. So if you call me and you go, “This is my issue.” We’re gonna talk and you’re gonna learn, right?
So I think find mentors. There’s tons of books, but find mentors. And in the first two, three years, read the regulations, know the F tags. Y- yeah, it’s, know the F… Again, that’s another thing I teach them. I’m like, “Pull your F tag out and go, ‘If someone comes in without a pressure under injury, do you agree they should not develop one unless it was clinically unavoidable?'”
What are they gonna say? You read it, and then when they say, “Yes, of course,” then you go, “And you agree the definition of unavoidability is…” and you read it right from the F tag. Yeah. So then if you did not assess and plan and implement and evaluate, we can all agree this was avoidable.
Objection, blah, blah, blah. No.
Schenk:
Yeah, exactly.
Musso:
They lose their minds for that, but this is not hard. The hard is understanding how all of that fits together. You gotta learn geriatric medicine. The struggle I’m having right now is that young lawyers that are trying to do this.
There’s a difference between someone who’s been doing personal injury or civil law for five, 10, 15 years, and now they wanna try nursing home. There’s a different, there’s a different issue with that, right? You gotta learn nursing home regulations. It’s the most regulated industry besides nuclear power pan- plants.
So you gotta learn nursing home regulations. You gotta understand staffing. You gotta understand cost reports. You gotta understand surveys. You gotta understand plans of correction. You gotta understand how they get paid. You gotta understand the whole scheme of how, why are they shuttling money to related entities?
What’s the point of doing that? There’s a lot to all of that, and the young lawyer and the experienced lawyer both has to learn that. But the young lawyer, who’s also learning, how do I introduce myself to the court? What is evidence? How to… that’s really challenging, and so for them- It’s learn hearsay, learn how to authenticate documents, get those evidence rules that you’re gonna be using over and…
Know your dead man statute, know your civ pro, know your med mal specific law in your jurisdiction, and then federal regulations, who’s who in a nursing home, how do they communicate, how do you make documentation? One of the things I’m teaching right now that is just so huge is getting that nursing home to admit that documentation is care.
It, it’s one of my favorite lines in deposition, getting into, show… And if they say, “No, it’s not,” because they love, “We did it, we didn’t document it.” I am against that. I kill that with documentation is care, and if you are careful and slow, I can come back and do that one day, careful and slow, there’s no reason why you can’t get every witness to admit that documentation is care.
It’s not separate and apart from. You can’t provide care and not document it, because documentation is care. Yeah … all of that stuff.
How Do You Establish That Documentation Is Care?
Schenk:
I’ve been doing this for a long time, and I had not heard that, that specific expression. Clearly, I’ve heard if it’s not documented, it wasn’t done, but I haven’t heard documentation itself is care, so that’s really good.
Musso:
The problem with documentation, if it’s not documented, it’s not done, is it’s not true. That, that’s my problem with that, right?
Schenk:
Yeah.
Musso:
Because that’s not true. They could have turned and repositioned her and not documented it. The problem is we don’t know.
Schenk:
Correct,
Musso:
yeah. And you haven’t communicated it, and communication is critical.
It is life-threatening in a nursing home to not communicate, and if they say, “No, it’s not,” I can give them 50 examples before they say, eventually, it is. And the number one way they communicate is through documentation, and it’s not optional. It is legally required. It is required by the standard of care. It is required by the regulations.
Why do you think it’s required? It’s required just like all other care is required, because it is care. It’s a fun line of questioning. It sometimes takes patience, and you gotta go slow with it, but you can get there, because the truth of the matter is documentation is, in fact, care. It is. You can’t actually…
This is about consistent stewardship of a human being every single day. Y- you sloppy with documentation, you’re not stewarding that human being well. If she then develops a stage four pressure wound and she was supposed to be turned 1,436 times based on the fact that she should’ve been turned every two hours for 24 hours every single day for this long in a residency, but you’ve only documented eight- You don’t get to come in and say maybe we did it.”
Yeah.
Because when I ask you what position was she in at 2:00 on Tuesday, April 5th, 2025, and you say, “I have no idea.” And I say, “Do you need me to do that 1,400 more times for you to make the point, or will you concede that you can’t tell me that she was off of her bony prominences on any of those occasions when she developed this horrible wound?”
Schenk:
That’s amazing stuff. I have to get you back on for skills and depositions. Yeah, that’s a fun…
Musso:
That’s a really fun, that’s a fun teaching, yeah.
Schenk:
Joe, this, this half-hour has flown by- I know … and we really very much appreciate- Can we talk
Musso:
about themes?
Schenk:
Yeah. Probably. No. No. We love it. This has been…
This is really good stuff. This is, this… I love getting into this. We really enjoy or really appreciate you coming back on the podcast and sharing your knowledge with us.
Musso:
It’s my pleasure. I love it, and I love the podcast, and I’m so honored to be on it.
Schenk:
Folks, I hope that you found this episode entertaining, enlightening.
I know that I liked it. I it’s rare when I get such a a shout-out, especially from a legend like Joe, so I appreciate his kind words about this podcast. If you have an idea for a topic that you would like for me to talk about, please let me know. If you have a idea for someone you want me to talk to, let me know that as well.
New episodes of the Justice for Residents podcast come out every single Monday, at least for the time being. And with that, folks, we’ll see you next time.
Thanks for tuning in to the Justice for Residents podcast. Nothing said on this podcast, either by the host or the guest, should be construed as legal or medical advice, nor is intended to create an attorney-client relationship between the listener and either the host or any guest. New episodes are published every Monday and are available on all your favorite podcast apps, as well as on YouTube and our website, justiceforresidents.com.
Again, that’s justiceforresidents.com. The Justice for Residents podcast is hosted by Rob Schenk, a trial lawyer representing victims of nursing home abuse and neglect throughout the state of Georgia. We’ll see you next Monday.