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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 61 of the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are your co-hosts for this podcast, the Nursing Home Abuse Podcast.
Smith: That’s right.
Schenk: What’s going on? As we go to air, it’s March 26th. Looks like we’re about a week away from the Easter Bunny visiting.
Smith: Yes.
Schenk: Okay, so Will, you and I have talked about family traditions, your family traditions and how odd they are because you grew up in the mountains.
Smith: In the mountains.
Schenk: And you didn’t really celebrate things. So my question is did you do anything for Easter? Like did your mom or dad hide eggs in the house or baskets and things like that? Did you eat candy?
Smith: I remember this. One year, because I’m Southern and come from a Southern family, as most Southerners, I have a variety of nicknames. Scooter, Woobey-tee-bow, Woobey-tee-bow-bonger, Scoo-toby. So my dad took all of these colored eggs and wrote the different nicknames on them and hid them from me. That’s the only Easter that I actually remember. I guess the rest of the Easters, we just – I don’t know. It’s just on a dirt road. What am I going to do?
Schenk: Okay, so let me ask you this then. When you found the eggs, what did you do with the eggs?
Smith: Actually it’s funny you should ask that because I distinctly remember putting them underneath my bed and leaving them there because I will never forget the way that it smelled weeks later when my parents discovered that the eggs were still there and they had to be removed. It was an awful, awful smell because they were rotten.
Schenk: I don’t understand, like why did you put them under your bed?
Smith: Because I was a kid. As most children, I wasn’t thinking about the future. I was just thinking about, “Well, I like all these eggs. They have all my nicknames on them.” Well I really blame my parents because why weren’t they like, “Hey, what happened to that dozen or so eggs that we let you play with?” I don’t know. They must have had other things on their mind at the time.
Schenk: Yeah. Well we, each of us would dye two eggs the night before and they would go into our baskets, and obviously the Easter Bunny would bring candy and put them in our basket, but we’d have two eggs and we’d always – based on my father’s attitude most of the time, we always made one of the eggs, we dyed it to make it look like a Prozac pill as a joke to him that he needed to be on Prozac. So one side would be yellow and one side would be green. Prozac – I don’t know, do they even sell Prozac?
Smith: Was Prozac back then?
Schenk: I remember because I remember as a 9-year-old having a subscription to TIME magazine, and I remember Prozac being on the cover of TIME magazine one year like, “This is the drug of the century,” or something like that.
Smith: Oh, I don’t remember that.
Schenk: Oh, it’s been around for a long time.
Smith: I thought it was a new thing.
Schenk: No, it’s been around for a long time. Yeah, so that’s my – and when we found the eggs, we would – I would put spicy mustard on them and squish the eggs, the hard boiled eggs in mustard and eat them like that.
Smith: Oh, I don’t think I ever ate them. It was a huge waste of…
Schenk: No, we ate those eggs. We ate all of ours. Well that was riveting.
Smith: Yeah. That was very interesting and that took some time, and speaking of taking time, what about the statute of limitations in these cases?
Schenk: What cases? What’s statute of limitations?
Smith: In nursing – very good. There you go. So the statue – statute – not statue – Venus de Milo – the statute, the law of limitations on when you can bring certain suits, there is a time limit on when you can bring a lawsuit, an action, for every type of action there is, from a personal injury action to a breach of contract to property issues. There’s a time limit, and the reason there’s a time limit is because you have to control what a person should reasonably expect to deal with as far as litigation. I mean it would not be fair, as a plaintiff’s attorney, I agree with this. It would not be fair 50 years from now for me to go up to somebody and go, “Hey, remember that auto accident you had 50 years ago? Well we’re going to sue you now.” Neither would 20 years or 10 years to be honest with you. I really don’t have a huge issue with the statute of limitation in Georgia.
Schenk: As a principle.
Smith: As a principle. In Georgia, it is in general for personal injury cases, two years. There are certain exceptions to that that have to do with the incapacitation of the injured person and for our purposes, or perhaps even when the actual injury should have been discovered, for our purposes in nursing home cases, the big issue is when the person died and when an estate was set up.
So for example, let’s say that in a typical case, we have Ms. Johnson who passes away January 1st of 2010. So her statute of limitations, and there are two claims that are going to be made here, right? Because we’re claiming that this nursing home did or failed to do something, which led to her death. We’re also suing for this hypothetical that let’s say that she had a bedsore and those are painful. So she also has a pain and suffering aspect as well as anything else that goes to personal injury like medical bills. So you have on hand, you have a personal injury claim, and on the other hand, you have a wrongful death claim. You’ve got two years before you have lost the ability to bring those actions.
Now in a case like this, Ms. Johnson has passed away, so clearly, Ms. Johnson cannot bring this action. And it takes a while for somebody to set up an estate. You can’t just go straight to the probate court and go, “Hey, I’m Miranda Johnson. I’m her daughter. I want to be the administrator,” and it happens. You have to go through an entire process. You have to reach out to heirs. You have to publish it in a local publication. You have to pay fees. And it takes a while.
So what Georgia has said is this, that the time between the passing of the individual, so the time between the day they died, so here it is January 1st of 2010, and the time that it takes until – the time until you set up an estate is not counted against the two years.
Schenk: In Georgia.
Smith: In Georgia. This is only Georgia. It is not federal. It is not Alabama, Florida, Tennessee. This is Georgia. So what that means is let’s say that – and this is very significant. Let’s say that it’s January 1st, 2011 and Miranda Johnson, her daughter, has only just now finally set up the estate. It is official on January 1st of 2011. So what does that mean for the purposes of the statute of limitations on Ms. Johnson’s case? It means – it only means something for the personal injury aspect. The wrongful death still expires two years after her passing, because you don’t need anything, you don’t have to set up an estate.
Schenk: Let’s unpack that a little bit for the viewers that might need a little refresher course. So when we say a personal injury claim, a personal injury is a category of the law that includes several different types of what we would call a cause of action. So for example, defamation, medical malpractice, general negligence, assault, battery, types of actions that cause somebody harm. For the most part in Georgia, an individual has two years from the time of the harm to file a lawsuit or the ability to bring that suit is lost most of the time. Like Will explained, there are going to be times where the statute of limitations is tolled, in other words, it’s stalled or stopped. So it’s mostly two years for general negligence, nursing home malpractice, this type of thing without any of those exceptions that cause it to be longer.
Some personal injury claims are shorter, so for example, defamation in Georgia is one year as opposed to two years. And states are different. So Georgia, we’re saying two years. In Tennessee, many personal injury causes of action, as we were just explaining, negligence, assault, battery, these types of things, it’s a year. In some other states, it’s longer. It can be three or four years. And for the policy rationale and reasons that we have mentioned where it’s on one hand, you have to give somebody the time to collect themselves and do investigation and figure whether or not they want to bring a claim and them bring the claim. On the other hand, you want to protect the individual, the future defendants, so to speak, from having to protect themselves from a claim that’s now so old that the witnesses are gone, the documents are gone, testimony is gone, that kind of thing, so it’s a balancing act. So in short though, what Will has explained is that in our typical nursing home case…
Smith: Where we have two claims. Now not every nursing home case we’re going to make a claim for wrongful death, but generally every nursing home case, we’re going to make a claim for personal injury.
Schenk: Right. So the claim for personal injury most of the time is meaning that we’re making a claim for negligence that has caused some type of damage. So in Will’s case, in Will’s example, it’s a bedsore. So in that case, we’re going to be making a claim under the individual that was hurt for pain and suffering, medical bills, costs and expenses for having to go through that injury.
Smith: This belongs – that belongs to the estate, and that’s the reason why the time between setting up the estate and the time between that individual’s passing doesn’t count against them for the purposes of statute of limitations, because that specific claim belongs to the state, the estate. Other entities, surviving spouse or surviving child, can actually bring a wrongful death claim.
Schenk: Which is a separate personal injury claim that is brought by the spouse, child or specific decedent – not decedent, what’s the word I’m looking for?
Smith: Heir?
Schenk: Heir.
Smith: Descendent.
Schenk: Descendent – which is brought by a statutory – I can’t remember. I keep wanting to say “decedent.”
Smith: Descendent.
Schenk: Descendent.
Smith: Descendent. Decedent’s descendent.
Schenk: Yes, the deceased person.
Smith: Yeah.
Schenk: So these are two separate claims. So in short, Will’s saying in some instances, the personal injury claim held by the person who’s hurt, the resident, is tolled or stopped until the time that an estate is set up, so the two years doesn’t start clicking – it’s delayed by that amount of time. The wrongful death claim, which is held by the descendents of the resident, the loved ones of the residents is not and it keeps going. It’s two years unless there’s some reason it would not be. And again, this is actually going to be on the first times, because we’re dealing with sometimes finite numbers in these, I want to make a disclaimer to the audience right now that do not rely on this podcast if you’re considering bringing a claim for wrongful death, personal injury against a nursing home.
Smith: Right.
Schenk: Because the statute of limitations information…
Smith: You need to do it immediately.
Schenk: You just talk to an attorney, but we’re talking in generalities because like we said, there might be facts in your case that extend the statute of limitations, and there are sometimes facts in these cases, depending on who the defendant is in Georgia where you have to do other things prior to bringing in a lawsuit or you lose the claim.
Smith: Absolutely.
Schenk: So it’s very important that if you are dealing with this issue that you call an attorney and get a consultation to figure out definitively your specific instance, whether or not the statute or limitation is running or has run or is stalled.
Smith: And this is only up to a five year period. So Ms. Johnson dies January 1st, 2010. Her daughter, Miranda, doesn’t set up the estate until January 1st, 2011 – okay, so that period of 12 months doesn’t count against her, so she still has two years to bring that person injury claim. Let’s say that she had waited until, to set up the estate until 2016. Well she waited too long. So there is a still a limitation on when Ms. Johnson’s estate can bring a claim, but they just give a little extra time because it’s only fair. It may take a while to find an heir that wants to be the administrator of the estate.
And one of the other issues with statute of limitations is one of the – and this happens every once in a while, they bring it up as part of tort reform, is that those who want to restrict the ability of plaintiffs to bring lawsuits, so the nursing home industry, the medical industry, the…
Schenk: The Chamber of Commerce.
Smith: The Chamber – that’s the term I was looking for – Chamber of Commerce, the auto industry, all the people who are generally the defendants in these cases, every once in a while, they will propose and try to pass through lobbying efforts a federal statute of limitations that applies to all causes, even state cases. So ironically, the party that is constantly talking about state’s rights is often and always, not just often but always the champion of this type of tort reform. So if there were some sort of tort reform passed, and it hasn’t been passed yet, they just keep getting threateningly close and closer. But if it were passed, what it would mean was the federal law dictates what the statute of limitation is in certain medical malpractice cases, which includes nursing homes, and it would be one year.
Schenk: Right. And the reason that is something that is supported by the Chamber of Commerce and the healthcare industry is because, like we said, there’s a balancing act with the policy rationale behind the statute of limitations in the first place. Clearly the shorter that you make the statute of limitations, the less likely it is that a plaintiff will bring a claim because necessarily, people need a certain amount of time to investigate and file the suit. So the less time you give them, the more likely it is that you’re going to lessen the number of lawsuits brought, and that’s obviously the intention of the lobbying power of the healthcare industry, the nursing home industry. On the other end of that spectrum, like we said at the beginning, is the longer you give to somebody, the more likely it is that they’ll bring a claim, but the less likely it is the defendant, the future defendant will officially be able to defend that claim.
So it’s a balancing act. However, as Will was saying, in our humble opinions as we sit here and host this show, is that the statute of limitations, that the federal one that is proposed every other year by a certain party seeks to shorten the statute of limitations on a federal level for every state, not for the interest of the potential plaintiff. It is in the interest in the potential defendant, which is the nursing home itself.
Smith: Yeah. So I mean think about it. The longer the statute of limitation, the more it is less and less fair to the defendant. The shorter the statute of limitations, it is moving less and less fair to the plaintiff. So if you’ve got a 50-year statute of limitation, that is completely unfair to the defendant.
Schenk: Let the record reflect that Will is extending his hand above his head as much as he can.
Smith: Yeah, so you got a statute of limitation up here at 50 years.
Schenk: Out of the frame even.
Smith: It’s completely unfair to a defendant.
Schenk: Now do the sign for the shortest.
Smith: Now all the way down here, let’s say you have a statute of limitation of one month for any claim, that is completely unfair to the plaintiff, right? So the good balance here I think would be two years and these tolling exceptions, I think that that’s pretty decent to be honest with you. One year…
Schenk: That’s actually an interesting point because I don’t know what the American Association of Justice or the Georgia Trial Lawyers Association, what the American Bar Association Plaintiff Law section thinks about that. Like what is the consistent amount of statute of limitations?
Smith: I think it depends on the type of case. It really is. Like for me, a case where you’re dealing with an older person that passed away and they need to set up an estate or even a younger person where you need to set up an estate maybe, it’s going to take a while for the family to recoup from that. So I think a year is way too short, but two? I don’t know. Now in some medical malpractice cases where you may not really understand exactly what happened in the beginning, I can see using the total of five years, but I think they already have exceptions to that.
Schenk: You’re right.
Smith: The statute of repose. So I don’t know. I don’t know. To be fair to GTLA and AAJ, it is their responsibility to protect plaintiffs and sometimes they have to go in all-in extremes so they may say five or six years just because they know that the Chamber of Commerce wants to be like six months.
Schenk: Six months.
Smith: That’s enough time.
Schenk: Yeah, and the thing is, like we said, seek counsel if you’re searching the Internet right now trying to find out the statute of limitations in Georgia, however, I’m just saying in some instances, which I don’t think is fair, is if you’re wanting to sue certain governmental entities in the state of Georgia, you’ve got six months to put them on notice or you lose it. So really, almost in essence, it’s a six months statute of limitations if you’re suing the government to certain governments in the state of Georgia.
Smith: And the best rule of thumb is if you think you have a lawsuit, treat it like the statute of limitation is tomorrow, and until you sit down with an attorney and you hire them and you say, “Please look at this for me,” you don’t know. So you’ve got to make sure. You’ve got to schedule a consultation with an attorney. It’s extremely important, because like for example, there are even situations in auto accident cases where yeah, you’ve got two years, but if it’s an uninsured motorist claim, you may be contractually required to put them on notice, your own insurance company, within a certain amount of time or you forfeit bringing the case or you at least forfeit that source of income or source of award.
Schenk: And to further highlight that point of letting somebody know and not sitting on your hands, I mean we get calls all the times where the individual is just now coming to terms with the passing of their loved one in a nursing home and it’s been two years, and by that time, if we’re able to hustle up and get the claim filed before the statute runs, there are other factors that make the likelihood of success a little bit lower, and one of those is generally when we’re alerted by a client of potential negligence when we enter the case, what we do is we send a notification to the nursing home alerting them they need to hold onto certain files and documents such that if they destroy them after they’ve been put on this notice that we’re telling them there’s a potential claim, it potentially could be used against them at a potential trial. In other words, the longer that you wait, the more opportunity the nursing has to destroy evidence that would hurt them without any type of repercussions.
So let’s play that out to the conclusion. You come in to the office of an attorney in the state of Georgia with a potential claim for nursing home abuse or neglect. They sign you up. They send what’s called a spoliation letter, a notice of the intent to file a claim. So moving forward, that nursing home now, depending on what the notification says that the attorney provides them, if they destroy a videotape, if they destroy a progress note or a nurse’s note or a doctor’s order, any type of evidence, even if it would have helped them, if they did it after they received that notification of a claim, then in the state of Georgia, we’re allowed to argue in court that it would have hurt them and that they destroyed it, there’s a rebuttable presumption that they destroyed it because it was bad for them. And that’s the power of the spoliation notice in these nursing home claims in the state of Georgia.
So again, not just because you don’t want to run out of time with the statute of limitations, but for other factors, including this spoliation notification, the power of that to prevent them from destroying evidence, you need to act as soon as you can.
Smith: That’s a really good point that Rob just brought up because I have spoken to people on the phone who are like, “Look, I looked at what the statute of limitation is on this and I still have three weeks and that’s still plenty of time.” It’s not plenty of time. It’s not like all I’ve got to do is take this piece of paper and take it to the courthouse and say, “Hey, we’ve made it in 21 days of the statute running.” There’s a lot of investigation that has to go on. There’s a lot of evidence that can be missing. There’s a lot of paperwork that we have to file. So don’t sit on your hands. I mean it’s even a legal doctrine, the doctrine of I want to say Nick Lachey, but it’s the doctrine of laches.
Schenk: I feel like you want to say Nick Lachey all the time regardless.
Smith: Yeah.
Schenk: He was Jessica Simpon.
Smith: Yes, he was.
Schenk: When I say he was Jessica Simpson, I mean he was the one married.
Smith: Yeah, anyways the doctrine of laches, you can’t sit on your hands and just wait around because I’ve spoken with some people on the phone before, they’ve been like, “Hey, let me ask you a question. Back in 2000, my dad died.” I’m like, “Stop right there. I mean I was 22 years old in 2000. I wasn’t even an attorney yet. That was 18 years ago. You don’t have a case. There’s no reason for us to even discuss it. You waited 18 years? Even as a plaintiff’s attorney, I think it would be unfair for you to be able to bring a claim. Clearly this didn’t matter to you if you waited 18 years to discuss it.”
Schenk: Yeah.
Smith: Also this is important for nursing home cases. I have yet to come across this but it is something to keep in mind is that if your case is governed by arbitration, arbitration could have its own deadlines in there. So at the end of the day, what we’re saying is this is a general description of how generally the statute of limitations works in these cases and in other cases, but you have to speak with an attorney. You need to do it immediately.
Schenk: So in short, don’t be the turtle.
Smith: Be the hare.
Schenk: Be the hare, which I think is fitting on this week prior to Easter.
Smith: Of course, it is the tortoise that wins the race.
Schenk: Is it?
Smith: You’re joking, right?
Schenk: It’s Aesop?
Smith: That’s the whole moral of the fable is that slow and steady wins the race.
Schenk: That’s right. Slow and steady wins the race. So don’t be a tortoise.
Smith: Have you been brought up around thinking the hare beats the tortoise?
Schenk: I’m thinking of the cartoon with Bugs Bunny where doesn’t Bugs Bunny win?
Smith: No. He doesn’t win. Wow.
Schenk: I can’t remember. I do remember slow and steady wins the race. I had a momentary blank because for some reason I was like, “The rabbit wins because clearly the rabbit is faster than the turtle.”
Smith: I was going to go with it because I thought, “Well I guess from the get go, the rabbit’s faster,” but at the end, slow and steady does not win the race for the statute of limitations. Immediate wins the race.
Schenk: Be the hare. Yeah. That didn’t work out good for me. That was not a good analogy.
Smith: No.
Schenk: I apologize.
Smith: That’s okay.
Schenk: So be…
Smith: Be quick.
Schenk: Be the hare but also be steady.
Smith: Anyways…
Schenk: Actually I think that we probably beat this topic to death, so I don’t know if you have anything else to say about statute of limitations in Georgia? One thing – the last two minutes, and this is something that we didn’t talk about this particular episode. There’s another reason why in Georgia you want to be quick and give your attorney time and we’ll get calls which the statute runs the following day and sometimes, depending on the facts, we can act, but likely it’s going to be very difficult for you to find an attorney when the statute runs in a week or a day or whatever it is, but one of the main reasons is when you’re bringing a medical malpractice claims, and a lot of these nursing home abuse claims are medical malpractice claims is that in Georgia, you have to have an affidavit attesting to the negligence.
Smith: And it can take four months for me to get all the medical records to give to the expert who may take an additional two or three months. It typically takes us about eight or nine months.
Schenk: Sometimes. Sometimes it can be shorter. Sometimes it can be longer than that. But you’re still dealing with the fact, like Will was saying before, if you’ve got a week left, that’s not plenty of time.
Smith: Now I will say this, that there are some built in rules regarding the statute of limitation on cases in which the attorney has gotten the case within 90 days of the statute running and it extends their ability to supplement the complaint with an affidavit, but all that means that an attorney can do that. It doesn’t mean that they’re going to.
Schenk: Correct.
Smith: For us, the harder you make it, the more risk we expose ourselves to, because you’re making it very difficult for us to meet all these nuanced exceptions, and frankly, it’s usually just not worth it. I like having a comfortable room of at least a year to work on a case and get it ready.
Schenk: But don’t hold us to that. I mean…
Smith: It depends on the case.
Schenk: It depends on the case, sure, but again, bottom line is…
Smith: Don’t wait around.
Schenk: Be the hare, but be steady.
Smith: Be the hare.
Schenk: Whatever the hare did – what did the hare do that was so wrong?
Smith: Because he started off really fast, it was so fast…
Schenk: That’s awesome. That’s good.
Smith: Okay, and then was so far ahead that he took a nap, and while he was napping, the tortoise had just gradually finished the race and by the time he got to the finish line, it was too late for the rabbit to catch up. So it started off slow, but slowly and steadily finished the race.
Schenk: That’s what I’m saying. Be the hare but don’t take a nap. Why would you take a nap during a race?
Smith: Well I mean I’m pretty sure Aesop was just trying to think a little bit from the 50,000-point perspective.
Schenk: A 50,000-point perspective? Because that’s a lot of points to make.
Smith: 50,000-foot.
Schenk: I feel he needs to narrow the points he’s trying to make.
Smith: Okay.
Schenk: Here’s a point I’d like to make at this point.
Smith: Great segue.
Schenk: Which is the fact that we’ve come to the conclusion of this particular episode.
Smith: Yep.
Schenk: Will, if someone out there wanted to listen to this episode and just listen, not watch, but they wanted to just listen, where can they download this podcast?
Smith: They can go to a lot of places that you find most podcast – Stitcher, iTunes, PocketPod, which I think I may have made up or somebody told me was one, but most importantly, you can go to Spotify. That’s right, Nursing Home Abuse Podcast is now on Spotify, so when you go to the gym to work out, you can put on our voices to help you find your motivation.
Schenk: Or you can watch each and every episode. It’s hot off the presses every Monday morning on our YouTube channel or on our website, which is NursingHomeAbusePodcast.com, that is NursingHomeAbusePodcast.com, and with that, we will see you next time.
Smith: See you next time.
Thanks for tuning into the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher and feel free to leave us some feedback. And for more information on the topics discussed on this episode, check out the show website – NursingHomeAbusePodcast.com. That’s NursingHomeAbusePodcast.com. See you next time.
