When the Nursing Home Resident’s Injury Is Inevitable

Episode 206
Categories: Neglect & Abuse
Transcript

Are nursing home injuries truly unavoidable? Many could have been prevented with proper care. In this week’s episode, nursing home abuse attorney Rob Schenk welcomes guest Michael Hill to talk about how to protect residents from preventable injuries and ensure their safety.

When the Nursing Home Resident’s Injury Is Inevitable

Schenk: Combating the idea that nursing home injuries are inevitable. Stick around.

Hey out there. Welcome back to the nursing home abuse podcast. My name is Rob. I will be your host for this episode. We’re talking about the idea that negative outcomes in nursing homes are not inevitable. That is just because we have a vulnerable population in a particular facility. Does it mean that we should expect to see bad things, but we’re not doing that alone.

I’m not going to just babble for 30 minutes. We have a fantastic guest trial lawyer. Michael Hill will be with us to talk about that and actually to talk about a significant verdict he recently received. All right. Let’s get into the substance of the episode. I’m absolutely thrilled to have trial lawyer Michael Hill on the show. Michael Hill is the founder of Michael Hill trial law, and he specializes solely in nursing home abuse and neglect cases with over 57 and eight figure settlements and verdicts.

He secured nearly 100 million in the last year, including Ohio’s largest nursing home verdict, frequently consulted on nursing home and assist living facility cases. Michael has sought after to try cases previously handled. But other firms, so basically one of the best and so happy to have him on.

Michael, welcome to the show. 

Hill:

Thank you. I’m glad to be here. Appreciate it. 

Schenk: 

So can you, I typically don’t do this, but I want to put a spotlight on you. You recently launched your own nursing home abuse firm. Correctly. Correct. 

Hill: 

So that’s right. So I actually launched a firm originally in 2017 had a partner and then just within last week was the official announcement of Michael Hill trial law.

So yeah, I’m very excited about it. Got a great team with me. 

Schenk: 

Excellent. Okay. I just wanted to get that right out of the way. If and where do you practice or where, like, where are you located? 

Hill: 

Yeah. So I’m actually located right outside Cleveland, Ohio. But I practice, it’s interesting this way.

My, my practice has developed over the years. So I probably got on average, about 50 percent of my cases are in either Western PA, Kentucky, West Virginia or Ohio. And then I tend to get brought into try cases wherever. So to me, I think it’s very fun to be in new jurisdictions, places I don’t know.

I think it’s a challenge just to show up in a parachute, especially in rural Georgia. For example, I’ve got a case coming up. I’m from Flint, Michigan. I couldn’t be more Northern. So it’s a fun thing just to parachute in and see how it goes. 

Schenk: 

No, man, we gotta talk about that.

Great. Thank you so much, Michael. So I guess what I want to do today is typically in nursing home cases there’s just the general perspective that these are quote unquote, broken individuals, they’re old, sick and dying. What happens to them is inevitable. We all meet our maker. So what are you complaining about?

How do you approach nursing home cases?

What, why are you asking for this much money? Why do you value the case in this way? And I wanted to have you there just to just in a broad sense. How do you approach that in your nursing home cases? How are you, what’s your thinking and how do you respond to something like that?

Hill: 

Yeah. So I think that idea, they’re old, sick and broken. I think that’s an attorney idea more than it is a general public idea. We’ve been really over the years inundated with insurance adjusters and defense lawyers, hitting us with these very low valuations because that’s what attorneys settled them for and they’ve got their algorithms built on that.

And these cases are worth hundreds of thousands of dollars, let’s say for that exact reason. But when we get in front of a jury, my experience has been very different than that. People in the community tend to, to some extent, cherish the elderly, and they see these as very vulnerable people very similar to disabled people, or to very young people, infants, and they’re people that, societally, we’re supposed to protect.

And if you have people on your jury who have, perhaps, neighbors in this situation, have parents in this situation I go through. Part of my voir dire is to ask people who do you love most in this world, just to get that out of the way. And you’d be shocked how often the people they say are my dad, who’s on hospice or my mom.

So I think it’s a conception that we as attorneys have really bought into pushed by the insurance industry, and frankly by other attorneys who have historically settled these cases for very nominal amounts. So I think that old sick and dying situation isn’t really something that the jury thinks of. I think the jury thinks of these people more similar probably to you and I do as very vulnerable people that need to be taken care of. So that idea of well, they’re old, sick and dying maybe, but they’re still great members of our community.

We’ve, I’ve represented, Korean War veterans and World War II veterans and all these people that have done amazing things. And the jury understands that this case is not the final moments of someone’s life, the last six months of their life, the last year of their life. It’s 75, 85 years of being a great human being.

And that’s what we’re looking at. So in my experience, I think that it’s just getting in front of the jury and getting yourself out of that zone of lawyers and insurance people telling you what a case is worth. 

How do you use voi dire in nursing home cases?

Schenk: 

That’s a fantastic perspective. So it’s one of the ways that you cut that off at the pass if you understand, okay the jury’s here, involved to your, listen, who do you value?

Who are the people that you look up to? And then whoever they say they’re linking to your client and in that way, the person has value. What do you think about the perspective of the actual nursing process? In terms of defending against the old sick and broken, arguments.

For example you can’t say that until you’ve done the assessment, the plan and the revision. Can you talk about that? Is that, does that factor in? Tell me a little bit more if you could. Yeah. Can we really say diabetes and peripheral artery disease caused your pressure injury? When you didn’t put the individual on a turning repositioning program or assess them as a high risk and therefore have more interventions by way of example.

Do you approach it that way? And if you do, is that also something involved here that you talk about and not just pressure injury, just in general whatever the nursing home type cases. 

Hill: 

Yeah. And what we see in these cases and you’re aware of this is that everything’s inevitable, right?

Falls can’t be prevented. Pressure injuries are clinically unavoidable. And I think that I’ve taken a very common sense approach to that, which is. It may be true that some falls are unavoidable. It may be true that some pressure injuries are clinically unavoidable. But you can’t say that until you’ve taken every single step to prevent it, right?

That’s a common sense thing. It’s not unavoidable unless you’ve done everything to avoid it. And again, I think it’s a situation that juries understand. And when you go through these care plans and everything else and the federal regulations, there are our state surveyors guidelines, and they break down what these are, and it’s exactly that, right?

A fall is not preventable unless you go through, or it is preventable, unless you go through this entire checklist of things that you’ve done. So again, juries understand that, and I think very basic rules to use with nursing staff, things like, if a fall is preventable, right? Because their defense is always, oh, not all falls are preventable.

If a fall is preventable, your job as a nurse is to prevent it. Very simple. Yes. That means that you have to take all steps necessary to prevent the fall. Correct. Obviously there’s some, you can’t tie people up, but all legally available ones. Yes. So when you get those very, they can’t say no.

So when you get these very concrete examples and concrete rules. We all know that when it comes to nursing care and nursing homes, they don’t have the staff to do these things. They don’t have the staff to even do the assessments properly. They don’t put real interventions in place. The interventions they put in place are passive ones, mats on the floor and bed alarms, right?

So we always know that there’s going to be failures along the way. It’s part of the nursing home ministry built into the process. They’re not going to profit. If they have the staff and training to do this, so if we have these very concrete rules and very basic rules that everybody can understand, right?

It’s not unavoidable unless you take all steps to avoid it, right? You have to take all steps to avoid it. You have to take a dot. Again, I think these cases become very simple and I think that we can outsmart ourselves to some extent, right? And I equate nursing care. Let’s be honest.

This is not cardiology. Thank you. This is not how you treat a stroke or prevent a stroke or those kinds of things where you’ve got real judgment involved. These are just doing your job. And if you break it down to your job is X, right? And if you don’t do your job, you’re responsible for what happens, everybody can be in standard of care, it’s just a job performance.

Everybody on that jury can understand what it is to do your job and that you have to do your job. And if you can get these basic rules, your job is to fully assess the patient. Your job is to put every intervention in place that’s legally available. Your job is to prevent all falls, pressure injuries, whatever it might be, that are preventable.

If a pressure injury is preventable, and you don’t prevent it, but prevent it, you’re on the hook for any damages that are caused. Very basic things, and I think if we keep things basic, things are easy for the jury to understand. We don’t overcomplicate ourselves. I think it’s difficult for them to bring an expert in and contradict their own staff and say things like, no, you don’t have to prevent falls that are preventable, right?

That’s nonsense. And if they do that, fantastic. 

How do you link nursing home understaffing to the injury?

Schenk: 

In the vein of keeping things simple, what is your approach with respect to you mentioned understaffing a second ago, what’s your approach? To link the understaffing on a particular day or a week or a residency to the actual negative outcome? Like how do you simplify that for the jury?

Hill: 

So I did it the more traditional way in the past, which was to look at the regulations, which was to get the Medicare expected staffing, which was to compare their staffing to that and get very complex. And what I realized is that you’ve lost the common sense issue at that point.

You’ve also injected a kind of a battle of the experts, right? You’ve got one expert saying it should be this way, which then brings up another expert saying it should be this way. So what I’ve also realized throughout the years, and this applies across the board, I think, is that experts to some degree are a necessary evil.

I’ve had lots of juries tell me that they cross each other out. So what juries agree with our real people, right? That’s powerful to them. So I think there’s three potential avenues of evidence. One is your family itself, right? Your family itself probably has a lot of good information. I would come in and he wasn’t changed, or she was lying in her own waste repeatedly, or we’d use the call light and this would happen, or, we’d go and hear no one’s at the nurse’s station and it’s lit up like a Christmas tree, right?

So that’s one avenue. The other avenue are the families of other residents, right? As we know, evidence doesn’t have to itself, a piece of evidence doesn’t have to prove the case, right? It’s just a building block. And if you have the family members of other residents who you can find, I think somewhat relatively easy through things like Facebook, those kinds of things.

How do you use former employees to show the effect of understaffing?

If you have family members who come in to say at the same time, this is what was happening with my family member, right? Again, it’s adding to the credibility of your own clients. And then I think the most powerful is former employees and former employees, I think in a lot of ways, carry the day. It’s they’re able to give you the inside scoop, right?

They’re able to tell you what the working conditions were actually like. They’re able to tell you on a given day, sure. I don’t care what the staffing says, right? Whatever their level says. I don’t care about their documents. I would be responsible for 27 patients on my floor. I’d 27, you know, trying to change someone in the call lights going off and somebody’s screaming and people would wait for hours or two hours to be changed.

That’s testimony I’ve gotten numerous times at trial. I’ve had testimony where they say, look I’m really sorry, so and so was neglected because of this exact thing. And former employees are so powerful because it’s nearly impossible for credibly cross-examine them. Because they’ve got to explain why was that person who’s willing to come into court and lie?

Why were they working with this very vulnerable population? Why were you allowing to work there, right? It’s really a double edged sword. And the way I think of this evidence, family members, residents, family of other residents and former employees. I really look at it as social proof, which we know is a real thing.

That’s why we like Amazon reviews. That’s why we look at Google reviews. That’s why when we look at one of them, you go I don’t know, maybe this person’s crazy. Who knows? They gave it one star, but three, four, five, six, seven, eight of those. You go look this all seems to be adding up.

How could they all be wrong? And I’ll be lying. This product is garbage. It’s very similar. One former employee can get cross examination, cross examined, disgruntled employee, whatever. Two, three, four, five of those, much more powerful. Very difficult for them. And you couple that with what family members have seen.

You couple that with potentially what other family members of residents have seen. And I think you’ve got a relatively unbreakable case when it comes to understaffing without, turning it into a battle of the experts with things like expected staffing, which is very complicated versus minimum numbers that the defense wants to bring up state minimums.

All of that becomes a bit of a muddled mess in my experience. real people saying what they experienced, juries will draw the right conclusion. And the benefit that we have as nursing home plaintiff’s lawyers is that juries have an expectation going into it that these are profit machines. They’ve been there, they’ve already given us that inference.

So that to me, is the most powerful evidence, which is real people saying what they actually saw. 

Schenk: 

I’m reading this book called show the brief. And the main thesis is that when you’re drafting a motion for summary judgment, even a complaint to put graphics in, whether it’s be pictures or graphs or whatever, because most people tend to remember things.

If they’re visual, especially when it’s visual with text and as you were talking, that kind of, I guess it makes sense that your preference rather than these, pinhead geeks talking about numbers and it’s a battle of these people and it gets lost. You have an individual that goes in and goes, yeah, I was a CNA there.

Every day I went in, I had to take care of 30 people. You can visualize that you can be that guy and that sticks harder and is more potent to the juror. I definitely agree with that. I definitely can see what you’re saying. 

Hill: 

Yeah, absolutely. And the other part of that is, what motivates juries here in my experience is the corporate issue, right?

The corporation making decisions that are little profit siphoners, right? That’s what these are. Each one of these little entities is and the nurses that are not necessarily the bad guys, the nurses oftentimes are victims in this as well, right? So they coming in and explaining look we wanted to provide care.

I couldn’t, it broke my heart. I walked off the job because I was so frustrated one time, whatever it might be that also, I think, inspires the jury to actually make change because this is happening in their community, right? So it’s not. Just some geek egghead coming in saying they’re understaffed.

It’s the real world example and also upsets the jury as it should, that look they’re taking advantage not just of these residents, but of everybody in our community, here’s a lady who wants to do her best and she is going home crying at night, but she can’t quit she’s got a kid with who’s disabled. She got to put food on the table. That’s a real example from a trial 

Schenk: 

You’re right. It provides the why okay, they’re understaffed, but why? Oh, it’s an actual, malevolent reason why they were, they’re siphoning money. And as a result, that’s why the person wasn’t able to take care of all the people.

Hill: 

The other thing that I think goes with that, if I could, is that nursing homes are great at putting together a game. They may own a real estate company and that owns the building. The nursing home itself has an exorbitant rent. They’re paying off that building every two years with an absurd rent.

But it’s difficult to pinpoint exactly where that money is going without making it overly complex. Juries understand going into it, that nursing homes make a lot of money and they connect that understaffing to the amount of money they think they’re making. And in my experience, they’re relatively accurate.

Okay. But when you get the eggheads in the room, looking at all of this data and all of this information, they’re putting up evidence that they’re running at a loss, which sometimes is true. It’s just that the money is being siphoned to these other avenues and tying that all together can be very difficult even for lawyers to understand.

So for juries, it’s, I think, totally lost in the weeds. But when you have a corporation, Sean, Parent company, they get all that. Parent company owns 150 nursing homes or whatever. You’ve got this understaffing at the local facility. They get that. They put that all together and understand, look, there’s a lot of money being made here.

And when you put all the specifics and the different corporations and the management companies and the real estate and you’re trying to connect all these dots, again, it can all just fall apart in front of you because it’s so damn confusing. 

Schenk: 

I know there. It’s not a majority, but there is a substantial amount of turn nursing home attorneys that I’ve talked to that keep it a medical malpractice case.

They don’t talk about cost reports. They don’t talk about understaffing. They don’t talk about, or at least they don’t talk about the numbers of understaffing. They might bring in the former employees to make that pump fake, to make that assumption, but they don’t touch it for that exact reason that it’s extremely complicated and you lose the jury.

Hill: 

Okay. Exactly. And I try to do exactly that. And I try to keep trials short for that reason. And each witness, I try to keep out on these foreign employees for maybe 10 to 15 minutes, right? They’ve got a point to make and they get off and you can get 30 of these. I should say 30, but you can probably get 10 or 15 of these former employees in half a day, maybe three quarters of a day and you could win the trial right there in my experience.

Recent Case Spotlight

Schenk: 

You recently had a pretty substantial verdict, at least in my opinion, on a nursing home case. Can you briefly talk about what that case is about and then specifically talk about how. So you overcame the defenses of this person’s going to get an infection. This person is going to be sitting in a chair and be immobile and therefore bad things will happen to them.

So bad things will happen to them. Can you talk about the case? Talk about how you dealt with that. 

Hill: 

Yeah, absolutely. I think the case you’re talking about is a 69 year old schizophrenic. He’d been institutionalized for his entire life. No dependents. No children, obviously no marriage.

He had four siblings who were spread out across the country. And, one was in Missouri, one was relatively local, but saw him two to four times a year. A brother down in Georgia who had Alzheimer’s couldn’t visit. And a sister who was mentally ill, so really wasn’t too involved and certainly couldn’t testify at trial.

So that’s the damages case moving forward. So not, what we would think of as attorneys as ideal. And, we looked at, I looked at the records and it was refusal, refusal, punching, biting. It was, you look at it initially and go, man, how can you provide care to this guy?

This is really tough. And it was a case where he had lost a substantial amount of weight over the course of a year. He ultimately had aspiration pneumonia, very unclear from the records what actually happened and he was taken to the hospital with aspiration pneumonia in very poor condition, sent to hospice after that and died and a goofy test certificate.

So it, you look at it and you think, man, this is not ideal, right? This is not what we would walk into and think this is a great case. So the way to overcome that is again, former employees and that, and they really carried the day. So as I got into the case and started talking, and this is a case I came into relatively late, not relatively late, I think would be quite late, probably about three months before trial is when I first came on board and essentially nothing was done.

No depositions had been done. It was a race to the finish. Okay. The first thing was former employees and It just was like an onion that was being stripped away. And so when I was talking to former employees, I’m talking about this guy who seems so combative and seems so bad.

And they said, no, he was a wonderful guy. He loved his old town. He would sing. He had this beautiful singing voice. He was so friendly if you approached him the right way. And I’d ask about things like, all of these refusals. And, they said, look, these are refusals. We did document refusals for him and we documented refusals for all kinds of people because we didn’t have the staff.

And we were told by management that if we just didn’t provide care, then the state would come in and they’d inspect and we’d get in trouble, we’d get dinged. But if we had a refusal documented, then they’d look at it and go try and you couldn’t provide that care. I’m talking to them and say, Are there any kind of patients specifically you’re doing this for?

And they said, yeah, patients who are nonverbal or patients who have psychiatric disorders because they’re either not going to be able to speak up or no one’s going to listen to them when they do. So I’m seeing this and going if this guy’s losing weight over the course of this year, certainly, and they’re telling me that they’re, they have a pattern of documenting refusal when it’s not happening because they’re understaffed.

So that’s, you know, beyond aggravating, right? I’m never going to get that number one in a deposition where they’ve been prepped by the defense, right? They’re admitting fraud and The other thing was, this guy he has aspiration pneumonia is massive aspiration. So it’s not like you’re just, aspiration pneumonia is when you get food or fluids for any listeners in your lungs not air, and that can develop into pneumonia, or even you can suffocate if it’s large enough.

So I’m looking in the records, and there’s a few instances where it looks like he’s scarfing or wolfing, which is where you’re shoveling in food, so you’re literally inhaling food if you’re allowed to, inhaling it in your lungs, and so he needed close monitoring for that, and I talked to the family and said, yeah, look, he’s had that since he was, 19 was diagnosed.

It’s a thing where you just literally scarfed on food. So I talked to the staff about that and they said, yeah, what would happen is he would puke if he wasn’t supervised and told to eat slowly, what he would do is eat so fast. He’d puke it up. We all knew that was a risk that he could end up choking or aspirating on it as chokes it up.

Can’t swallow it. So again, it was all right. So I, That’s a very good chance of what happened here. And as it was more and more former employees, what I realized is unlike what they were supposed to be doing, which is monitoring him, assisting him take small bites, et cetera, they didn’t have the staff to do that.

So what they did is they would just take him and put him in a chair with a lap over it. So he couldn’t move. And would set him inside of a doorway. He’s also blind. I should have said that when he can’t get up. So he’s in there shoveling food completely by himself. And I talked to aides and they said, look, I would come in on the second shift after he was given lunch and there’d be food all over the floor because he’s doing, and he’s puking.

And if you sat with him, it would never happen. So again, now we have a really good reason for why this is actually happening. And it just continued that way. And so by the time we were in front of the jury, they were so appalled, so the first witness I put on comes in and actually starts crying on the stand looking at my client, who’s the sister saying, I’m so sorry.

I’m so sorry that we neglected your brother. We shouldn’t have done this. So she’s crying. And then my client, of course, is crying. So she’s apologizing to my client. And my client says, no, I understand. This is the situation we’re done. And the judge is stop, you guys can’t have this conversation.

But you look at the jury, it’s over. That was the first witness for 15 minutes into the case. And the jury is sitting back shaking their heads. I cannot believe that this is what happened to this guy. And after that, it was just piling on, cause again, they cross examined her.

She wasn’t there the whole time. She hadn’t worked there in a couple of years before this happened, but it was piling on and piling on these witnesses who were all confirming it. And when we got to the experts, the experts were really, they weren’t making the rules of the case.

They weren’t, essentially telling us what standard of care was. They were verifying why what the nurses said was important and was the standard of care, right? They’re not coming in to say, hey, jury, let me tell you what the standard of care is. They’re coming in to say. What that person said. That’s right.

That is the standard of care. And here’s why that’s so important. And I try to do that as much as possible because it takes the battle of the experts away. I’ll just make the experts a wash. We already have all the evidence and rules, common sense things from the witnesses the jury’s already endorsed.

This is just confirmation of, yeah, that is the rule, that is the job, that is the standard, and here’s why not doing that is deadly, and here’s what happened in this case. And I think it takes a lot of pressure off of the experts, because they’re not carrying the day. At that point, it’s not listening to them.

That’s what the case relies on. They’re providing a reason for why what the lay witness said is the rule. They’re not coming in to create the rule, if that makes sense. 

Schenk: 

That absolutely does. That’s an amazing, horrific story, but an amazing result for you. And I think what’s interesting is that I’m saying to you, tell me about that most recent incredible verdict.

And you’re like, I think you’re talking about this one, which means there are many. So the hats off to you that we don’t know which amazing result we’re talking about. Michael, this has been a fantastic conversation. I really appreciate you coming on the show and sharing your knowledge with us.

Absolutely anytime. I really appreciate it. And before we, we let you go, what is what’s the best way if someone wanted to get ahold of you, somebody you know, maybe has a loved one in a nursing home in Ohio in the western Prince West, east, western Pennsylvania, the area that you told me about how would they get ahold of you?

Hill: 

So my email is michaelhill@protectseniors.com. You can just contact me directly. The website is protectseniors.com and not just referring to a case or anything like that. I always encourage people to reach out to me. And one of my favorite things to do is people have a case just to talk about it, right?

Just to brainstorm trial strategy, et cetera. And the other thing, if you don’t mind me giving a little bit of a plug here is out at trial or university, I’ve got a masterclass in June, I believe 5th, 6th, 5th and 6th. I believe these are the dates. Two day masterclass, 12 hours. I actually have tickets that I’m allowed to count people.

So anybody who actually wants to I’m happy to count them, the tickets. I think the 2, 200 each, I have the privilege to do that, I think up to 10 or something like that. So please reach out to me, anybody who’s interested. Cause I want people to be doing a great job in these cases for a couple of reasons.

One is that everybody deserves it. And two, ultimately my goal, as ambitious as it might be, is that we break the elder algorithm that these insurance carriers have developed over the years. That’s the dream.

Schenk: 

It’s an ambitious dream, but that’s very gracious of you, Michael.

And then that puts the fire under me to make sure this episode gets out before June. So I appreciate it very much. All right. I hope that you found this episode educational, informative, perhaps entertaining. New episodes of the nursing home abuse podcast come out every Monday for the foreseeable future.

If you have any suggestions for topics that you want to see me or a guest cover, please let me know. If you’re watching this on YouTube, please be sure to like, and subscribe. If you’re listening to this on a podcast, I don’t know how you leave reviews, but if you figure it out, let me know, and then actually review this one and give it a good one. Hopefully. 

And with that folks. We’ll see you next time.

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