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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 62 of the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are your co-hosts and we are Georgia trial lawyers focusing in the areas of nursing home abuse and neglect.
Smith: That is correct.
Schenk: What is Will doing right now?
Smith: Well I’m streaming us on Instagram, social media.
Schenk: I thought that was just pictures.
Smith: No. Yeah, anyways, Rob learns something new every day.
Schenk: I didn’t know that.
Smith: Yeah, Instagram does streaming like Snapchat. They’re always competing with each other, Facebook does it, Instagram, Snapchat – I think Instagram and Facebook are going to stay strong for a while.
Schenk: I feel like Will has the social media qualities of a 13-year-old girl.
Smith: Well first of all, understand something, that my goddaughter is 13 and she has informed me that Facebook and Instagram are for old people. So I do have Snapchat. She does too. But she only has Snapchat. People her age don’t do Instagram or Facebook. Those are what grandparents do. And her mother is my younger cousin who is actually a grandparent, so I am old. I get it.
Schenk: That’s a lot of information.
Smith: You’re welcome.
Schenk: Speaking of goddaughters and the younger generation, I would actually like to wish a happy birthday to my oldest niece who will be turning 14? Is she turning 14?
Smith: I have no idea. Are you talking about Chloe?
Schenk: No, Aria. Aria Reina Schenk is turning I think 14 I think on April 5th.
Smith: That makes sense because I think she’s about a year older than Maddy.
Schenk: Can you believe – this is like what your parents used to say, like I remember she was just a little baby.
Smith: Oh yeah. My brothers just spent two weeks together in Southeast Asia and turned 30. One of them is about to be a dad. And I remember when they used to call me to help them go to the bathroom.
Schenk: That was last week. How would you not remember? Anyways…
Smith: So yeah. So we do have a lot of interesting stuff to talk about today. And the main thing that I want to start off with is just some potential legislation that we got down here in Georgia. So a couple of weeks ago, about a month ago, back in February – I cannot remember how long ago it was, I had the opportunity – I knew it was around Valentine’s Day because I felt weird about asking her and then I realized it was around Valentine’s Day. Anyways, one of the individuals I met at the Consumer Voice Conference that I went to was Melanie McNeill, and Melanie is also a Georgia State Law School graduate.
Schenk: Go Panthers.
Smith: Go Panthers. But she is also the head of the Georgia Long-Term Care Ombudsman Program.
Schenk: In Georgia.
Smith: In Georgia. And just as a reminder, the ombudsmen are patient advocates, so it’s anything from “Ms. Johnson doesn’t want to be given rice. She wants mashed potatoes,” to “You guys aren’t turning Ms. Johnson enough” or “We don’t think you’re giving her medication when she needs it.” So very serious things like to seemingly mundane things like dietary choices, which are really not mundane if that is the life that you live. They are the patient’s advocate. They’re called residents because they live in these place. So they have rights and they have privileges and they should be given the same dignity as anyone else does. And ombudsmen strive to give them that. They can go into a nursing home. They can work with a nursing home.
So Melanie is in charge of the entire state of Georgia. She works for the Department of Community Health and she oversees all 150-something counties that we have. She has a few paid employees. The rest are volunteers. Clearly she cannot deal with advocacy and policy-level issues while also attending all the nursing homes in all 150 counties. So she has a small staff. They have a small budget and they’re constantly struggling to provide advocacy to these nursing home residents.
Anyways, I was very fortunate to meet her and I was very fortunate to have lunch with her back in February. We talked about a couple of issues that were on her radar as far as working at the capital, the Georgia capital. And one of those is the proposal of House Bill 803. And it is – let me go ahead and read you the purpose of the bill.
The purpose of the bill is to create a statutory prohibition from trafficking in elderly residents. So it’s already illegal to traffic in people period. It’s already illegal to kidnap. It’s already illegal to – is the word “abscond?”
Schenk: Abscond?
Smith: Abscond with other individuals – it’s illegal to traffic. But this is something that is happening mainly with the elderly. And you’ve got to think that every elderly person over the age of 65 is getting Social Security. They are either getting Medicare and Medicaid or they’re just getting Medicare. But they’re bringing in a paycheck. So what Melanie was telling me, and this is amazing how much it happens – it is clearly happening so much that they are proposing legislation to try to crack down on this that people will take these elderly individuals, essentially put them in a basement or something, give them enough food to keep them alive, and they’re collecting their check and they’re not spending it, they’re not giving it to the person. They’re taking it. So let’s say that you’re getting 15,000 a year in Social Security or 20,000 a year in Social Security, something like that, that’s a lot of money to siphon off of these old people.
Schenk: Yeah, it’s really insane to me that out of all the schemes that somebody could concoct in terms of “I’m going to try and get rich without working for it,” that you would kidnap an older person to make $1,300 a month. You would kidnap another human being to do that. It’s amazing.
Smith: Oh, and you’ve got to think they’re kidnapping multiple people, and it may be loved ones too. It may be somebody’s grandmother where they figure out, “Hey, Grandma has money coming in. Okay, well Grandma can sit her butt down in the living room and watch TV all day and she’ll eat what we give her and you’ll go out when we tell you you can go out and we’re putting a roof…” I have seen this personally before and I understand, or at least I have witnessed this mentality of like, “Look, we’re giving her a roof over her head. She can’t do this herself. So yeah, she gets $1,500 a month and I’m taking what I need to keep the lights on and keep a roof over her head. She’s fed, all that stuff.” The thing is she could go to a nursing home though and get better care and she may even need more care.
But let me read you the definition of elder, trafficking a disabled, and it isn’t just elder persons. It’s also disabled. So the proposed legislation would be a person who commits the offense of trafficking a disabled adult, elder person or resident – resident of a nursing home – when such person through deception, coercion, exploitation or isolation knowingly recruits, harbors, transports, provides or obtains by any means a disabled adult, elder person or resident for the purpose of appropriating the resources of such disabled adult, elder person or resident for one’s own or another’s benefit.
And there’s a pretty serious penalty here, which is imprisonment up to 20 years but not less than five. And if it’s more than six victims, 20, but not less than 10. So that’s a pretty serious felony.
Schenk: And that’s proposed legislation right now.
Smith: And that’s proposed legislation right now. But Georgia, at least the northern district has been pretty serious. They’ve already created a task force. The federal task for on elder exploitation is headquartered, I think for this area, in the northern district.
Schenk: The northern district of Georgia includes what? Atlanta?
Smith: It’s all the way down to Henry County, which is south of Atlanta. It’s a good portion of – it’s north Georgia.
Schenk: Yeah.
Smith: But this is sad that this is something that has to happen. But you’ve got to think about it. If you’re criminally minded, each one of these individuals is worth at least 1,000 a month. You get four, five of them, that’s 4,000-5,000 a month. And what do you need to give them to survive? They’re certainly not enjoying life, but you’re keeping them alive and it’s horrible.
And there’s also some other legislation, which is not quite as sad but it is also sad that it…
Schenk: It’s necessary.
Smith: It’s necessary and that it hasn’t even come about yet and that has to do with personal allowance. So residents of nursing homes or anybody who lives in an assisted living facility that gets Medicare or Medicaid services, and as we know from talking with Richard from Nursing Home 411 that we spend about $10 billion annually on assisted living facilities, so it’s not just nursing homes but assisted living facilities. They get a certain amount – they’re paid, right? So they’re paid Medicare and then also sometimes Medicaid to stay in a nursing home, and that money goes to the nursing home, as it should. It goes to pay for their care, their treatment, the staff.
Arguably from our perspective, it doesn’t always do that. Most of it ends up in the pockets of these fat cat corporate owners, but aside from that aspect of it, it goes to the nursing home with the exception of a very small portion that stays each month available for the resident’s personal allowance. And it is a very, very small amount. It is currently at $50 a month, $50 a month. I want you to think about that. $50 a month is all Ms. Johnson has to have her hair done, buy a soda, buy something for the grandkids, anything that isn’t included in medical treatment. Her food, her regular three meals and snacks, like insures and things like that are included. Her medicine is included. Her room is included. Her adult briefs or other necessities like that are included. But her hair and makeup is not. Buying little Timmy a card is not included. So all she’s given each month is 50 bucks. That’s it. That’s not very much and it’s a shame that it’s so little.
So what the proposed legislation is that this be increased – are you ready for how much they’re asking for?
Schenk: I’m ready.
Smith: To $70 a month.
Schenk: Hey-yo.
Smith: Right? So you’ve got to think there are tens and tens of millions of dollars because there’s a lot of nursing home residents and that ends up being a lot of money – well it’s not tens of millions, it actually ends up being millions. And this is a Georgia thing. So what Melanie wants everyone to do is look up who your state representative is, and I have forgotten who mine is. I looked her up the other day.
Schenk: Isn’t John Lewis yours?
Smith: John Lewis is our federal representative.
Schenk: Oh, right, right, right. You got your state representative.
Smith: John Lewis, veteran civil rights activist, John Lewis is my federal representative. He is my Congressman. However, Georgia has its own legislature that deals with state issues and state laws, and I can’t remember…
Schenk: That’s a good – shame on us.
Smith: Yeah, I know her name is Jan something and I can’t remember her last time.
Schenk: Goodall?
Smith: No, Jane Goodall. That’s Jane, not Jan.
Schenk: Brady?
Smith: No. So anyways, so what you should do is if you get a chance, look up your state representative.
Schenk: And we’ll do the same.
Smith: And we’re going to do the same. And remember, this is not somebody who goes to Washington, D.C. to represent you. This is somebody who goes to the Georgia Capitol to represent you.
Schenk: The Gold Dome.
Smith: The Gold Dome – they are your state legislature. Look up who that is for your area and tell them that you support increasing the personal allowance of nursing home residents to whatever it is they’re requesting. I believe it’s 70 bucks. They could be asking for a little bit less now. I’m not really sure.
And the issue is it’s my understanding that Governor Deal has approved this. He has approved the legislation allowing them to get 70 bucks per month. The problem is he hasn’t appropriated that money. So what that means is it’s one of those political moves that is kind of an empty gesture, because if you don’t appropriate the money, there’s no money available. It doesn’t matter. It’s easy to say, “Yeah, I totally agree with this. They should get 70 bucks a month.” All right, we now have the legislation that says they get 70 bucks a month. Are they going to get 70 bucks a month? Well no, because we haven’t set aside 70 bucks a month for them yet.
But anyways, email your state representative and let them know that you approve this and you want it appropriated, because I absolutely think that it’s fair that these people get 70 bucks a month. Not to get off on a soapbox or a tangent here, but there are so many other things that we are spending money on that go to nefarious reasons or at least less noble reasons that Ms. Johnson getting another 20 bucks a month so she can get her hair done when she wants or she can get her grandkids some toys every once in a while so she can feel like a human with dignity, I don’t think that that’s too much to ask at all.
So those are the two major issues is the elder trafficking bill that is being proposed and the attempt at appropriating this money for personal allowance. And actually, this is – I’m just talking about Georgia, but Richard and I were talking about this off the air.
Schenk: Richard Mollet.
Smith: Richard Mollet of Nursing Home 411 – that they’re also advocating this in others states as well. So I guess moving on from legislation to litigation, somebody sent me a story that I thought was really interesting. It was – and it really highlights for me one of the reasons we do one area – there are multiple reasons why we do one area…
Schenk: Of law.
Smith: …of law. We do nursing home neglect and abuse. That’s it. We don’t do anything else. And there are multiple reasons for that, one of them being I have a history with it so I always wanted to do it, one of them being that as far as marketing purposes, it helps that in a place like Atlanta, you niche in a certain area and you’re known for it, and the other reason being that in this day and age of legal complexity, it’s just not wise to be a jack of all trades and a master of none. I’d rather be a master of one thing, just one thing, because there are so many things that you can make mistakes on. And that’s what gives me anxiety when I meet young attorneys that hand me their card and it’s like, “Yeah, I do bankruptcy, personal injury, criminal, federal, state, appeals, divorce.” I’m just thinking to myself, “Look, I don’t care if you’re Good Will Hunting. There is no way you’ve read all the treaties and all the laws in all these different areas to what I would consider my satisfaction so that I know that I’m not committing malpractice.”
So the reason why I bring this up is there was a recent case somebody sent me in Michigan with, I guess – I don’t know any attorneys in Michigan and I don’t know who this guy is. Was it Gary Fieger?
Schenk: That sounds about right.
Smith: I don’t know who he is so all apologies to anyone who does know who he is – I mean it’s in the article. I don’t know who that is. But apparently he’s the most well known trial attorney or plaintiffs attorney, whatever, in the state of Michigan, and he represented a woman who was 81 years old and died because she had some sort of, I guess, jaw or tooth-related issue. And instead of getting like orthodontic surgery, they performed brain surgery on her. So this is one of those cases that’s kind of similar to, “Hey, we were supposed to take off your left leg and instead we took off your right leg.” But this one’s even more severe because instead of operating on this woman’s jaw, they performed brain surgery on her, unnecessary, un-medically unwarranted, invasive brain surgery. And it killed her. And so they brought a case of simple negligence.
Schenk: This attorney did.
Smith: Now here’s why this is important. So for example, in Georgia, all of our cases sound, every single one of them, even if it’s possible that they do not, we treat them like they do. Every single one of them sound in medical malpractice, so it’s professional malpractice that requires an affidavit and has different limitations and certain procedural requirements than let’s say a simple negligence case. A simple negligence case would be, “I rear-ended you.” Well you could literally go the next day, in Georgia, where we have extremely liberal pleading requirements, you could quite literally write on a piece of paper my name and your name and say, “I sue this person for negligence.” I don’t suggest that you do this. This is not legal advice. I’m just explaining how easy simple negligence is. And you could file that with a clerk of court and you’ve got a lawsuit. In a medical malpractice case, you have to hire an expert to review it that can look at it and go, “Yes, I agree. This nursing home failed to meet the standard of care for these reasons.” It’s a bigger case and it has different issues with it.
And one of those issues in Michigan is that there’s also a cap on damages. And this is something that some states do. It is something that a lot of the federal tort reform has talked about is that in the nursing home cases that we do and in the cases against doctors that there be some type of non-economic or pain and suffering damage cap. So it’s capped at a certain amount. Economic damages, which are your medical bills, are never capped, but let’s say that you have medical bills of $500,000, you would expect that depending on what happened – let’s say they cut your left leg off instead of your right, because now they have to cut off both legs because you still need to have your right leg cut off – instead of you getting $15 million depending on what your age is and what your profession was, they usually cap it to 250 – 250,000. I don’t know what they cap it to in Michigan, but they cap it.
So he brought this case in simple negligence. Now the reason – one of the strategic reasons that he did that was that simple negligence didn’t have a cap on it, and the jury in this case awarded the plaintiff $20 million. Here’s the kicker. It was appealed and they won’t see a dime of it. And they no longer have the ability to bring it again. So their case is now over and they won’t get any money at all. And the reason why they won’t get any money at all is because the court decided, “You know what? This is actually a matter that should have sounded in medical malpractice, not simple negligence. And because of that, we’re setting aside the verdict.”
Unfortunately for the family, the statute of limitations has run this time and there is no exception that allows them to bring it back. So they get nothing and they have nothing.
Schenk: Their only recourse at this point now is that they can possibly bring a case of legal malpractice against their attorney.
Smith: Possibly. I mean I think that there should be one. But then again, I don’t know all the facts of this case. I don’t know if he had an argument as to why this should have been simple negligence, but it’s just one of those things that reminds of attorneys that might dabble in certain areas.
Schenk: Although we’re not saying that this individual attorney did that.
Smith: Oh no, I don’t really know the facts other than his client can no longer bring the claim and they’re not going to see a dime of that money.
Schenk: Let me just say this that Will recapped that newspaper article very similarly to a Paul Harvey story where it literally took him 10 minutes to go from the outer layer of the onion to the final, like why does this have to do with dabbling in anything.
Smith: And now you know the rest of the story.
Schenk: Page three, yeah.
Smith: So now you know the rest of the story.
Schenk: Now you know the rest of the story. When I was a kid, I used to impersonate Paul Harvey and tell stories.
Smith: I hope they were all as riveting as that one.
Schenk: So in summation, if you listen to all these 60, however many episodes that we’re at, as a kid, I liked butterscotch, blue cheese, wearing slacks and listening to Paul Harvey.
Smith: So you were at all times a 50-year-old grandmother.
Schenk: Correct. No.
Smith: Or a 50-year-old man.
Schenk: Yeah, because I think the grandmother would still be wearing dresses.
Smith: Sure.
Schenk: Anyways, I guess that’ll be about it. I think we covered some pretty good things.
Smith: Yeah.
Schenk: Some interesting things I would say…
Smith: Yeah.
Schenk: …in this episode. Okay Will, let me just say this. You’re walking down the street, minding your own business. It’s a lovely day. You’re on the sidewalk. It’s Ponce de Leon Avenue Northeast and a person comes up to you and that person says to you, “Hey, how can I listen to the Nursing Home Abuse Podcast – not watch it, I just want to listen to it?” What would you say to that person?
Smith: Well I would probably suggest they go to Spotify because I think most people have Spotify, even people that have…
Schenk: He says to you, “I hate Spotify. The makers of Spotify killed my uncle.” What else can you suggest to him?
Smith: Well I guess you could go to iTunes. You can go to iTunes. If that’s not your…
Schenk: Bag.
Smith: That’s not your bag, man, then you go to Stitcher. If that’s not – I’m pretty sure at this point…
Schenk: Pod Puppy.
Smith: Pop Puppy.
Schenk: You can go to Pod Puppy.
Smith: We’re on Spotify and iTunes, so we’re on the top two ones. Of course we’re on everything below that.
Schenk: Right. And third is Pod Puppy.
Smith: I don’t think that’s an actual one.
Schenk: Well this is just continuing on that we make up a pod app every time.
Smith: Ah, okay.
Schenk: So at any rate, you can also watch this podcast at NursingHomeAbusePodcast.com or our YouTube channel. And we always appreciate you watching and listening and I guess 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.
