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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 out there and welcome to episode 54 of the Nursing Home Abuse Podcast. I am Rob Schenk.
Smith: And I’m William Smith.
Schenk: And we are nursing home abuse and neglect lawyers in the state of Georgia and your co-host for this podcast. Yeah, I feel like you wanted to say something.
Smith: No, no. I was just judging what you were doing, because I know I’m going to start the conversation off about this, but I was trying to read off you. But go ahead.
Schenk: Well I was going to say as this goes to air, it is February 12th, 2018. Now it’s 48 hours from Valentine’s Day, but as we record this, we’re a few weeks away still.
Smith: Right, so you still have time in reality.
Schenk: In reality, yeah. Actually I need to make the mental note. I’m doing this right now – I’m making a mental note for myself on this recording that I need to make reservations for a restaurant.
Smith: Were you guys dating last Valentine’s?
Schenk: No. We met April 17, 2016.
Smith: So you were dating last Valentine’s.
Schenk: That’s right. We were dating last Valentine’s. She was in New York and we went to this really dope place in New York.
Smith: Okay.
Schenk: But because I wasn’t in New York, she was, I think she made the choice in the reservation. So this time it falls to me.
Smith: Have you been to – now we’re talking about food in Atlanta. Anyways…
Schenk: What do we got?
Smith: Bacchanalia, right?
Schenk: We’ve been to Bacchanalia before.
Smith: Okay.
Schenk: Bacchanalia – let me say this for anybody who’s listening, if you’re in Atlanta, Bacchanalia is expensive, like I remember one time I went there – I’ve only been there three times in my life, and I’m a non-drinker, so I’m not even paying alcohol, but that was like my rent, like it was rent money, like it’s a rent money type of place, but as Will as mentioned in prior podcasts, I have the food tastes, I have the palate of a 5-year-old or an 80-year-old. And also I have the – I’m judgmental like an 80-year-old, like I’m not paying a lot of money – I don’t want to pay a lot of money and they bring a little plate out there and it’s like a little tiny, “Oh, this is a hen egg on a pickle,” you know what I’m saying? Like it’s farm to table – I don’t care about any of that. With Bacchanalia, this is the first time I’ve ever paid a substantial amount of money for food and was actually satisfied, like I was full of food when I left there, you know what I’m saying? It’s the perfect combination of it’s foufou and it’s expensive, but it’s satisfying. It’s completely satisfying.
Smith: Yeah, I think I’m actually going to take Manel there once we finish this trial as a thank you.
Schenk: Oh, you’re working a trial with another…
Smith: Another attorney, yeah, who’s really devoted some time and energy into this.
Schenk: But I would say they’re probably booked for Valentine’s Day a year in advance.
Smith: I would imagine so.
Schenk: So we’ll probably end up at the local Taco Bell.
Smith: Oh, that’s nice.
Schenk: Yeah. So what do we have on the horizon for this episode? What nursing home related topic are we talking about today, Will?
Smith: So we’re going to be talking about sexual abuse, and we’ve been – one of the things that we’ve been interweaving through these most recent podcasts are the issues that came up in the conference that I attended back in November. And there were three main issues. One was the use of psychotropic medicines, one was the phase two, because when I went to the conference, I think it ended in November 8…
Schenk: It was the first week of November.
Smith: And a week later…
Schenk: Sorry about that, I dropped some papers.
Smith: A week later, they rolled out phase two of the CMS regulations, and so then the other issue we were discussing was sexual abuse. It is a prevalent, prevalent problem in nursing homes across the nation, not just in Georgia, but across the nation. And sexual abuse is unwanted sexual contact that takes place not only between residents – residents can abuse other residents, but it occurs with staff and it occurs with visitors. And it’s a huge issue in nursing homes.
And specifically in Georgia, this is an article from NPR from last August, and it says the Office of the Inspector General and the Department of Health and Human Services released an alert that reported more than one-quarter of severe cases of nursing home abuse are not reported to the police. The federal government investigators say they are conducting ongoing reviews into nursing home abuse and neglect, but have issued the alert now because they want immediate fixes. The alert states that the Centers for Medicaid and Medicare need to do more to track these cases and suggest they cross-reference medical claims from nursing home residents with their claims from the emergency room.
So one of the issues that they’re facing are when you report sexual abuse, when there is an outcry, one of the things that’s happening – and I’m not laughing at this because it’s funny, it’s just frustrating because these people don’t understand what they’re doing – that you’ll have a resident who makes a complaint of sexual assault, whether it is another resident, whether it is a staff member, or whether it was a visitor, somebody from their family. And what these CNAs and nurses end up doing is changing this person’s clothes, giving them a bath or making them presentable. And then calling the police and the police come and take her to do a rape kit and they’re like, “Guys, you’ve changed her clothes. Yeah, you’ve made her presentable and you’ve cleaned her up, but you’ve also destroyed all the evidence related to this,” because these people, these nursing home staff, they don’t understand how you retain evidence in a sexual assault case.
What should happen is if there’s an outcry, and that’s what it’s called when somebody makes a complaint of sexual assault, when there’s an outcry, you leave them as they are, in situ, as they sit, and you take them and you look for evidence. So the police need to do that and they need to do that at a rape lab or wherever they take them, to a hospital to do a rape kit. And so they’ll look at them. They’ll take evidence from their clothes. They’ll take evidence from their body. They’ll take swabs from different parts of their body. All of that’s important. Even their sheets are important.
And what’s been happening is the nursing home, they’re not really accustomed to dealing with these outcries of sexual abuse, and they’ll wash these people’s sheets. They’ll clean them up because they’ll think that’s what they’re supposed to do. Anytime somebody’s going to leave and go somewhere, they need to clean them up. These are situations where you do not clean the resident up. The police need to come and, if possible, need to take an examination there at the nursing home.
But it’s an enormous issue, and like I said, it’s not just resident-on-resident, but that happens. It’s also guests that come in and in some instances, staff, and it just blows my mind the staff members that do this. I mean you have to be a particularly twisted individual to sexually assault an incapacitated elderly man or a woman. The residents, sometimes I understand because they don’t know what’s going on, but the staff members, like that’s just – can you imagine being…
Schenk: That’s a level of depravity that’s followed only by preying on children.
Smith: Yeah, it’s horrible. Anyways, there’s an enormous problem here, so here’s – and here’s what I’m talking about is that one of the investigators looking into the lack of reporting of these, they said looking at records from 2015-16, this investigator found 134 cases of abuse of nursing home residents severe enough to require emergency treatment. The vast majority of these cases involved sexual assault. And in the vast majority of these cases, they’re either not contacting the police right away or even when they do, they’re destroying evidence so there’s no way to investigate this and prove or disprove. It’s just absurd.
If you’ve ever done any – because I used to be a criminal defense attorney and I’ve handled many, many sexual assault cases, and I was also a prosecutor and I’ve dealt with these, and evidence and timing is crucial. So the moment that somebody makes an outcry, there’s a half-life of – all this evidence has a half-life slowly deteriorating. So it would be akin to imagine somebody came to you and said, “Hey, I’ve just been raped.” And you said, “All right, go take a shower. Wash all your clothes and scrub your entire room down before the police get here because we want you to be presentable.” That’s how absurd it is.
Schenk: It’s an old – in my opinion, it’s an old-fashioned way of thinking and actually that was exhibited – I was reading a book about the assassination of John Kennedy where Lyndon Johnson ordered the limo completely cleaned and fixed, any bullet holes filled and anything before nay investigation even started. That was the mentality and that was the assassination – that’s the murder of a president we’re talking about, let alone some person who happens to be in a south Georgia nursing facility being allegedly raped.
Smith: Yeah.
Schenk: The thinking hasn’t changed very much.
Smith: Yeah, so the destruction of evidence and the lag time between an outcry and actually contacting the police are problems. The other big problem is that some of these nursing home residents are confused and they suffer from dementia. You have to understand that nursing home residents make all kinds of accusations depending on if they have dementia, if they have Alzheimer’s, that those of us who work in nursing homes tend to ignore because they’re outrageous. I can’t tell you how many times I had female residents say, “Hey listen, you can’t be in my house. My husband’s at work right now and the kids are upstairs,” and I’m like, “Ms. Johnson, your husband died in World War II. You’re 98 years old and your kids have grandchildren.” But they don’t know what’s going on. They don’t understand things. And the same thing will happen with even more serious claims, like you can have a nursing home resident that says, “He tried to have sex with me,” and the staff may understandably think, “Oh, well she’s talking about something that happened in her past,” or, “She’s talking about something she completely made up in her mind.”
And that’s another problem is when these people have mental issues like dementia, they don’t make for the best witnesses because they can’t articulate that something’s happened to them. And so you know, when these investigators, and these are federal investigators looking at these issues have found 100-something of them, and I think at the conference, we learned in a given year there might be 1,000 complaints, that is scratching the surface of how many sexual assaults there are in nursing homes.
Schenk: Yeah.
Smith: When you hear something like, “Oh, there’s like 1,000-something, 1,300 sexual assaults reported,” – reported, and that’s just because all of the things that are necessary to come into play, the resident’s cognitive ability, the staff’s reaction time, the police follow-up, all of those perfectly came into play and so those cases were reported. I’m going to go on a limb and say nine times out of 10, that doesn’t happen. So 90 percent of the time when there’s a sexual assault, it isn’t reported quickly. The resident doesn’t have the cognitive abilities to articulate it or the police follow-up is either slow or hindered by staff destroying evidence.
So what does this mean? Well this means that nursing homes need to do better for sure. CMS needs to roll out more implementations requiring staff at nursing homes to be more educated on the signs of sexual assault and for nursing homes to do more to weed out those who have access to residents that may have sexual assault, sexual criminal charges in the background.
Schenk: Right. And to that point, we talked about this a couple episodes ago about CMS, the final rule, stage two of the final rule that rolled out last November and how they strengthened the reporting requirements of facilities receiving Medicare/Medicaid funding, that depending on the type of crime that was witnessed, so for example, bodily injury, that has to be reported within two hours.
Smith: Within two hours.
Schenk: To not only the state agencies, but to law enforcement.
Smith: Yeah, so that means that almost all sexual assault cases need to be reported in two hours. Absolutely.
Schenk: Yeah. You know what is even more horrendous than talking about people preying on the elderly, like employees of nursing homes is a case – we’re going to switch gears a little bit.
Smith: Okay.
Schenk: A case out of Santa Rosa, California, from the end of last year. Former residents – and these are some of the worst things I’ve ever heard of in my life – former residents of Villa Capri, an assisted living community in Santa Rosa, California, have filed a lawsuit against the community’s developer and management.
The complaint alleges elder abuse, false imprisonment, negligence and intentional infliction of emotional distress after residents were abandoned during a wildfire that destroyed the building. The facility did not have an evacuation plan and staff members left 24 residents, including at least 14 with dementia, behind.
It looks like here, this is according to an attorney representing one of the families, as the fire came closer to Villa Capri, staff told a family member there was no evacuation plan and the people with dementia would be evacuated last. Staff members left approximately 24 residents and a resident’s son reportedly took his mother and six other residents not related to him on his own in his own vehicle and evacuated them, and he flagged someone else, he flagged a police officer down who was driving by to help evacuate the remainder.
Another family member found her loved one in the hospital the day after with a broken hip, broken tooth, bruises, contusions and an open wound on her heel. I mean I don’t know what type of person would be able to say, “There’s a fire coming. You guys are on your own. I’m out of here.”
Smith: Yeah. And this is falling on the heels of – was it Hurricane Irma?
Schenk: Irma.
Smith: It was Irma.
Schenk: Yeah, it was Irma and Harvey.
Smith: Irma and Harvey, yeah. So they caused devastation in Florida and there was an issue in Hollywood Hills, Florida, with a nursing home that did not have proper evacuation emergency preparedness plans. And this is also an issue that we covered in the conference. We even got to hear from Congresswoman Debbie Wasserman Schultz who is a representative of the Hollywood Hills area. And they had tried to implement requirements for those nursing homes down there saying, “You guys have 60 days to have a backup generator and an emergency plan for when hurricanes hit and knock out power,” because in that case, the hurricanes came and knocked out power in South Florida. The nursing homes became like furnaces inside up to 110 degrees and killed a lot of those residents. Here, it’s California, and wildfires are just as common in California as floods in South Florida and New Orleans.
Schenk: Tornadoes in Georgia and Tennessee.
Smith: Tornadoes in Georgia. We have a lot of tornadoes? I would have said tornadoes in the Midwest, not tornadoes in Georgia and Tennessee.
Schenk: I mean that’s true. Yeah, you’re right. But you do, remember, you lived in Atlanta when a terrible tornado went literally through downtown.
Smith: I understand. But nevertheless…
Schenk: My point is…
Smith: The point is California, it’s not like you’re surprised there’s a wildfire there. There’s a wildfire every other month it seems like.
Schenk: So normal standards of care would require a facility to have an evacuation plan in such an event. And in fact, we mention this again, under the new final rules – under phase two of the final rule, facilities are now – regulations are strengthened requiring facilities to have evacuation plans.
Smith: Backup generators.
Schenk: Backup generators, these types of things for these types of natural, what we’d call force majeure events, acts of God.
Smith: Yeah.
Schenk: So this is just a terrible – I hope all success, nothing can bring back lost loved ones, nothing can bring back people’s use of legs or limbs if they’ve been rendered permanently disabled, but I wish these people success in bringing this claim if these allegations are true.
Smith: Yeah, and again, this is one of those issues where I blame the people who own the nursing home, because there was no plan in place. What are those young CNAs and nurses supposed to do when a fire comes through and they don’t know what to do. They don’t have a plan in place. No one’s there helping them. The owners of the nursing home certainly aren’t there. They never are. What are they supposed to do? They have no idea.
Schenk: Leaving behind 24 residents, 14 with dementia.
Smith: Yeah.
Schenk: Like that’s insane. Like just being like, “Hey, come get your grandfather. We’re out of here.” That’s insane to me.
Smith: Yeah.
Schenk: What is not necessarily insane but is completely normal is that we’ve reached the conclusion of this episode of the Nursing Home Abuse Podcast.
Smith: Oh, have we?
Schenk: Yeah. This is a little short one today.
Smith: Okay.
Schenk: This is like a quick bite.
Smith: Okay, a quick bite.
Schenk: A quick bite. It’s a little bagel bite.
Smith: Okay.
Schenk: But always stay tuned. Next week, we’ll have a new episode for you. I believe next week we should have a guest. I don’t know, I have to look at the itinerary. I think we have a guest. I don’t know. But it’ll be great. Whatever happens, it will be fantastic.
Smith: It’s going to be amazing. Best thing you’ve ever seen.
Schenk: You can watch this podcast on our YouTube channel or our website, NursingHomeAbusePodcast.com, or you can listen to this podcast on iTunes, Stitcher or Spotify, or perhaps some new application that I’ve never heard of. And with that, we will see you next time.
Smith: See you next time.
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