Nursing Home Neglect – Criminal vs. Civil Proceedings

Episode 4
Categories: Legal Procedure, Neglect & Abuse, Regulations

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 Law LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.

Schenk: Hey out there. Thank you for joining us once again. My name is Rob Schenk.

Smith: And I’m Will Smith.

Schenk: And we are trial lawyers who practice in the areas of nursing home abuse and neglect law in the state of Georgia. We’re coming to you from our offices in Atlanta, Georgia, again, specifically in the library of our office, a.k.a. The Dungeon.

This is a video podcast meaning you can catch us on a couple of different ways. The first way is to watch this video podcast either on YouTube or our website,, or you can download the audio version on Stitcher and iTunes, and all of those various ways to consume the podcast are available weekly on Monday mornings. Download for your listening pleasure. We’re happy to be here. How are you, Will?

Smith: I’m doing well. We’ve got a lot of interesting topics, so I’m looking forward to jumping right in.

Schenk: Excellent. All right, so we’ve been getting this question a lot lately, and that’s kind of the main topic I want to address in this segment of the podcast, and that is can someone go to jail for committing elder abuse or can someone go to jail if they’re a staff member of a nursing home and commits some type of abuse and that leads me to kind of what I want to talk about from a general standpoint, and that is what is the difference between our civil justice system and our criminal justice system. What are the differences between those two things?

We, as in you and I, Will and I, we are trial lawyers representing individuals that have been injured in a nursing home. We take care of the civil component. Then there is a criminal component sometimes in these cases that are handled by law enforcement and then the prosecuting agencies of the different localities, which the injuries occur.

So let’s kind of talk about and unpack what that means. Now as we all know from Law & Order and shows like that, people can violate and people, I mean staff members of nursing homes or individuals that are taking care of elderly persons. They can violate criminal laws, criminal codes – don’t murder, don’t litter on the ground – things that imply a criminal sentence such as jail time or fines. And from a general standpoint, those criminal code sections require a level of culpability – in the law, we call that mens rea – that are different depending on what the crime is. Sometimes the crimes require a level of intent. Sometimes these crimes can occur just because the person acted negligently, not necessarily intending the consequences of the particular action.

With criminal statutes, with violations of criminal statutes, that’s kind of like I said, the Law & Order, you have the police will go, oftentimes the police, sometimes other investigative bodies…

Smith: Law enforcement in general.

Schenk: Law enforcement in general.

Smith: Everybody from the FBI to the DEA to the ATF to local law enforcement…

Schenk:strong> …Will investigate and bring charges or arrest individuals for violations of criminal statutes. And then depending on whether or not there’s evidence that they believe would result in a fair shot at conviction, they’ll turn it over to the prosecutorial body of that particular location – that might be the county solicitor or the county DA, it might be the state attorney general.

Smith: It could be the AUSA, the federal prosecutor for that district.

Schenk: Sure. So you have law enforcement putting someone under arrest or charging someone with violation of a criminal statute. They get investigated by that law enforcement body. The evidence gets turned over to an agency represented by the state or the federal government, and that individual gets put on trial.

And in trial, a criminal trial works a little bit differently than a civil trial. In the criminal trial, an individual is presumed innocent until proven guilty, and one of the most important facets of our criminal justice system is that individuals have to be proven guilty by what’s called a reasonable doubt, meaning that the state or the federal government or whoever the prosecutorial body is bringing in the claim…

Smith: …Has to prove beyond a reasonable doubt that they are guilty of violating that criminal statute.

Schenk: That the defendant is guilty of violating that. And that’s a very high standard.

Smith: It’s the highest standard that we have. In the civil world, it’s different. It’s just more likely than not.

Schenk: Right. So the conclusion of a criminal case would be violation of the criminal statute, investigation and arrest by the law enforcement body, prosecution in the form of a criminal trial by the prosecution, and then that person is found either not guilty or guilty, and they go to jail or they pay a fine depending on whether or not the sanctions for that criminal act are misdemeanor or felony.

So a misdemeanor in most states is going to be punished by a fine of a certain amount, generally not that much, usually less than $1,000 I think in most instances, and generally jail time not more than a year. That’s generally how a misdemeanor works. And then you have a felony, if the sanctions on that are – sorry, if that crime is a felony, then they can have fines much higher than that and then obviously they can have jail time or even death depending on what the crime was.

That in a nutshell, in a very simple nutshell, is how a criminal trial, a criminal act, a crime prosecuted to its ultimate conclusion works.

Smith: It’s probably the most frustrating and debilitating explanation of the criminal justice system that I think any human has any given, but it could be a police officer and it could be three police officers that come, sometimes four police officers. Then what they’ll do is they’ll take him to the courthouse. The courthouse could be on Baker Street…

Schenk: And the civil process works in a different way, not too different, but it falls along the same lines. So an individual, and this is how negligence works, and a majority of our cases are negligence – an individual owes what’s called the duty of care to every other individual to act like a reasonably prudent person, and that includes nursing home staff. So when a nursing home staff either intentionally or unintentionally does something that causes injury and that thing that they do that causes the injury is not congruent with the appropriate standard of care of that person, then there is what’s called a cause of action, meaning that individual that’s injured or their family, depending on their situation, will be able to pursue a claim against the individual or the facility that caused the injury.

What happens normally is you don’t want to do that by yourself – usually you’ll hire an attorney. The attorney will on their own do an investigation, and generally, an attorney, the investigation an attorney does can include things like ordering medical records, reviewing the proficient statements of deficiency of a particular facility. It can include looking at videos. It can include hiring a private investigator. There are all kinds of things that an attorney can do that would generate evidence to support a potential claim.

And once the attorney has concluded the investigation, that’s generally when one of two things happen. The attorney can either negotiate with the nursing home, say, “Hey listen, you’ve breached the standard of care causing injury and you should compensate the injured person by this much,” and then a negotiation process may or may not occur, or a lot of times what happens is all that information and evidence gets put into a lawsuit document and a lawsuit gets filed, and that’s the civil justice system.

So once the lawsuit’s filed, then you go through the litigation process with that nursing home, with that individual that injured the person. And the burden of proof for that claim is different than what it would be in a criminal trial. In a civil trial, a claim, the plaintiff, must prove their claim by what’s called a preponderance of the evidence, meaning that if you take all of the evidence, 100 percent of the evidence, then at least 51 percent of that evidence must show that the individual breached that standard of care, which caused the injury, which caused damages by a preponderance of evidence.

So if the plaintiff is successful, if the family of the abused or neglected person is successful, then the individual is not necessarily guilty. They are what’s called liable. They are liable to the injured party by whatever amount that a jury has concluded.

Those are the main structural differences between the criminal and civil system. So in a standard abuse case, it is not… I’m sorry, let me back up. In a standard abuse case, there is not necessarily going to be a criminal component, and the reason why is because oftentimes there is a lack of evidence of the mental culpability, the intent of the party doing the harm. There is a difference between a nursing home staff walking up to a resident and just punching the resident in the face or intending to do an act for the intention of causing a specific type of injury as opposed to we have no been feeding the resident appropriately or providing the appropriate medicine by mistake. And that’s why there’s not going to be a criminal component in every case. And particularly most often, it’s only the most egregious cases in which a criminal case can exist at the same time as a civil case. And that’s really the key difference is the level of intent and the level of harm is what’s going to arouse the suspicion of the law enforcement body.

Smith: And the context of long-term care facilities to the extent that there’s ever a criminal component for negligence, it tends to be that there’s a fraud component so that the long-term care facility has been bilking Medicare or Medicaid.

Schenk: In terms of financial crimes.

Smith: Financial crimes. I mean of course there’s always going to be a criminal component for intentional abuse, simply because there’s always anything from simple battery to aggravated assault anytime you’re abusing somebody, or even specific statutes regarding elder abuse, which brings us to the case out in – where’s this? North Carolina?

Schenk: Right. So as we were saying, a part of bringing a claim in a civil court or part of bringing charges in a criminal case requires evidence, which in turn requires somebody being able to identify abuse to begin with. And at least one, at least in my opinion, progressive, I mean it’s ahead of its time, one county in North Carolina, and I don’t even know if I’m saying this correctly, Alamance County?

Smith: I don’t know. I’ve never heard of it.

Schenk: Alamance County in North Carolina is developing a training program for… It’s been ordered a grant, $350,000 grant, to help train law enforcement officers, prosecutors, judges, victim service providers and nonprofits on how to better investigate and provide services to elders in need. According to the grant application, 137 sworn officers, which is 37 percent of this particular county’s sworn officers across all agencies, have vowed to attend an 8-hour training, and 21 detectives and investigators across various law enforcement agencies are expected to attend advanced law enforcement training to identify and spot elder abuse.

And I think that’s very important because it’s one thing for an attorney to say, “I think abuse has happened here and I think that there’s a remedy for you in a civil trial,” but it’s another thing for an informed police officer who has been trained to identify abuses to say, “Not only that, but you are in violation of a particular criminal code here and we’re going to prosecute you. And we’ve learned how to gather the appropriate evidence, take the appropriate pictures, take the appropriate tests,” that kind of thing. I think that’s an important advancement and I applaud this particular county for applying for and getting the funds for the grant and moving forward with this.

Smith: Yeah, absolutely. It’s a good step forward.

Schenk: So I think hats off to Alamance County. I’m sure they won’t get any angry letters ever, but if they do, I’m sure they will originate from whatever county that is. So I think that’s interesting because at least in Georgia, and I’m sure this is the same in many other states, that there are laws that require and obligate certain individuals to report elder abuse. In Georgia, that law is codified OCGA 30-5-4: “Mandates reporters to make a report when they have reasonable cause to believe that 1) an at-risk adult has had an injury or injuries inflicted upon them by a caretaker or 2) has been neglected or exploited by a caretaker.”

Mandated reporters can include nursing staff. It can include government officials. But I think it’s an interesting component to the law that not only do you have a duty to take care of people, but some people have a duty to report what they see, and that’s not necessarily the case with everybody.

And this moves us to our next segment in which we deal with or talk about new lawsuits that have been filed across the country. And this actually arises out of events at a convalescent home in Atascadero.

Smith: Atascadero.

Schenk: That’s what we decided how to pronounce it?

Smith: Yeah, Atascadero.

Schenk: Right, right, right. For the second time in a year, an Atascadero-based convalescent hospital has been accused of failing to properly care for one of its elderly patients resulting in death. According to the lawsuit that was filed in – what was that county?

Smith: San Luis Obispo.

Schenk: How do you say that again?

Smith: San Luis Obispo.

Schenk: So you’re doing kind of a French as well as a Spanish…

Smith: Is it San Luis?

Schenk: Yeah.

Smith: Well I didn’t major in Spanish like you. You would think you could at least help us out on this avenue.

Schenk: Well you know you have the computer up. Anyways, so we have here, according to the lawsuit, the lawsuit was filed in San Luis Obispo County with the complaint alleging the staff was aware that an individual was susceptible to bedsores, but they utterly ignored that resident’s needs, causing her to develop painful and infected bedsores. The suit also claims the staff also ignored concerns from the family and her condition rapidly deteriorated. And as the condition worsened, the patient became psychotic and delusional and eventually had to be rushed to the hospital where she eventually died.

And this is not the first time. The lawsuit marks the second time this particular law firm has sued this convalescent home. In July, the law firm filed suit against the facility in connection with the death of Leo Paul Landry, an elderly man who suffered from dementia. According to the lawsuit, Landry was transferred to the facility in 2014 after hip surgery. He was prone to falls, but the lawsuit charged the staff disregard of the information and warnings from the family, and he fell several times during his stay. In April of that year, he developed pneumonia. His condition worsened, but instead of taking the appropriate medical steps, the lawsuit alleges the staff members injected Landry with morphine and he died shortly there after. So that’s two very avoidable catastrophes from one facility in the course of a year.

Smith: Yeah, and even the physician for the first lady said he had seen these types of incidents way too often from these facilities.

Schenk: Yeah, I mean that’s a shame and we wish the attorney success. We wish the family well for those families that were affected by that particular place. I know we’ve talked about this over and over again in this podcast so far. I know we’re only a few episodes deep into this program, but bedsores are for the most part an avoidable problem that leads to serious injury and sometimes death, and it’s just a shame that this is happening this often across the country.

Smith: Yeah, it really is. It really is, and with our most vulnerable citizens too, again, like we’ve said before.

Schenk: And with regards to the second incident where morphine was administered, was that common when you were a CNA? Do you often see morphine administered by a staff?

Smith: Yeah, well all drugs are administered by the staff. It’s either a licensed practical nurse or a registered nurse. The question here, and the article doesn’t go into it, is whether or not he was prescribed that. If not, there’s a whole other issue there. My guess is that he probably was, he probably did have an as-need prescription for morphine, and what they did was they gave him the morphine to cover up his pain and he died from his injuries, he didn’t die from the morphine. But yeah, the staff are the ones that administer all medication.

Schenk: Now I think we have… If the language of the defense attorney is similar to the thoughts and feelings of the facility, then we’re going to have another case where you have a facility that’s going to be dinged by a jury for how they behave afterwards. So we have the defense attorney in this case was quoted as saying that between the first lawsuit that was filed, the language that was used in that lawsuit, was also used in this lawsuit, and they characterized it as a boilerplate language and a boilerplate claim, as in this law firm is basically just rehashing the same things over and over again. And I just don’t think that’s good.

Smith: No, because essentially they are because it is the same. They’re constantly making the same mistakes and committing the same negligence.

Schenk: Yeah. I don’t know. I think that’s probably in bad form.

Smith: Yeah.

Schenk: So again, we wish them luck. And moving into our final segment for this episode, we have just an egregious case here out of Pleasant Prairie, Wisconsin. An assisted living facility in Pleasant Prairie has been ordered to shut down after and employee and former Kenosha County police captain was accused of sexually assaulting a resident. Documents were obtained showing the facility’s owner knew the allegations for some time, but allegedly asked staff not to report it. 73-year-old Clarence Milk, an employee at the facility owned by his wife, was charged with four counts of second-degree sexual assault of a 50-year-old resident who suffers from Huntington’s Disease. The facility has since been shut down, fined $10,000 and ordered to relocate its residents. And this is a perfect example of what we talked about earlier in this episode regarding civil liability versus criminal liability.

Smith: Yeah. He’s definitely facing criminal liability without a doubt. Certainly rape and I don’t know what the different laws are in Wisconsin related to elder abuse, but he’s facing some pretty serious felonies.

Schenk: Yeah, exactly, some serious felonies.

Smith: And his wife, for not reporting it, on her part, actually could be open to criminal liability as well, but certainly negligence.

Schenk: Absolutely.

Smith: Failure to prevent this kind of thing from happening or failure to report it.

Schenk: And just for those out there that have loved ones in long-term care facilities, with regards to sexual abuse, what are some signs and symptoms they should be looking out for?

Smith: Being withdrawn – if their personality suddenly changes, I would say really the same type that you look for in anybody else. They don’t want to be touched. They draw in on themselves. But sometimes that’s hard to tell because some of these individuals have mental incapacities and they can’t really express what’s going on and they could be sexually abused by other residents, and that is something that is a huge concern, and it does occur. It occurs from – we talked about the other resident who killed that woman and no charges were filed. It occurs when other residents intentionally commit sexual assault and it occurs when other residents simply don’t know what they’re doing.

And so the best thing you can do is just ask the staff – “Hey, are you guys having any issues?” And you know, it tends to be by and large the male residents as the aggressors. That is not always the case. That is definitely not always the case. But just ask the staff, “What’s going on, guys?” You need to get to know the staff anyways. You need to go up there often. You need to talk with the staff, be very polite, courteous. You can more flies with honey than you do vinegary. And so the staff will tell you, “Oh yeah, we’re having issues with this guy. We’re having issues with this individual.”

Schenk: And that’s with regard to when you may or may not suspect that it’s another resident of the facility that’s doing the sexual abuse as opposed to the staff.

Smith: Yeah, I mean by and large, it’s not going to be the staff. Sometimes it is. There are always a wide variety of individuals out there with strange proclivities. And sometimes you can have individuals in nursing homes who are not elderly. You can have people who have Huntington’s Disease or MS or other ailments. I’ve taken care of women as young as mid-40s. That’s not necessarily something…

Schenk: I get your point, exactly.

Smith: And so it happens, but it’s hard to look out for in individuals who can’t vocalize what’s going on.

Schenk: Sure. So just again, at the end of the day, you want to visit often, be mindful, ask questions of the staff, get to know the staff, try to notice observable physical signs like bruising, rashes, red marks around the genitals, that kind of thing, and then just be alert. Be vigilant. Those are some of the best ways to ward off sexual abuse, sexual assault in a nursing home long-term care facility situation.

And on that note, I think that we have reached the conclusion to this particular episode. Again, this is a video podcast, meaning that you are able to consume in either way you like. You can either listen by downloading the audio version of the podcast on iTunes or Stitcher or you can watch on YouTube. And with that, we will see you next time. Thank you.

Smith: Thank you.

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 on the topics discussed on this episode, check out the show website – That’s See you next time.