There is plenty of synergy between the practice of an elder law lawyer and lawyers that sue nursing homes for neglect in Georgia. In today’s episode, nursing home lawyer Will Smith gives a presentation to the Elder Law Section of the @atlantabar on arbitration in admission documents, powers of attorney, and more.
Smith: All right, well the reason why I wanted to talk about nursing home litigation with this group, it’s like I was talking to Elaine earlier – this is an industry in and of itself, senior issues. Every single one of our clients is a nursing home resident or a family member of a nursing home resident, 100 percent of them. And every single one of them has a host of issues that include guardianships, that include conservatorships. They need an estate set up. They need a will probated or they need somebody to write a will because they think they’re going to pass away.
And I am not going to do any of that. I refuse. I don’t have enough malpractice insurance to sleep well enough at night trying different areas of law. And so I am constantly working with different elder law attorneys. I know a lot of you – I think I have a couple of cases with some of you. And I always go to different elder law events because I think it’s helpful for me, even though I don’t practice that area, even though I don’t do conservatorships or guardianships or Medicare planning, it’s helpful for me to be knowledgeable about that area. So I thought talking to Sarah, it might be helpful for you to be knowledgeable for this area. Go ahead.
And so the objective here – that’s an airplane, and it’s a 50,000-foot view. Clearly litigation, and many of you may practice some litigation, there are volumes and volumes of form books and case materials on litigations. You can get stuck in the weeds and talk about litigation for hours, nursing home litigation especially. So this is going to be a broad overview of some of the issues that I think would be of interest to you guys. Go ahead, Rob.
What we’re going to start off with is what makes nursing home litigation a little different. Nursing home personal injury is malpractice. It’s malpractice against a healthcare facility, and as all of you know, torts start off with a duty, right? And the duty in nursing home cases is imposed largely by these two entities – CMS and the Georgia Department of Community Health. CMS is the Centers for Medicare and Medicaid Services. It’s the federal government. And the Georgia Department of Community Health is the state government here in Georgia.
In 1987, Ronald Reagan signed into law something called OBRA, which is the Omnibus Reconciliation Act. It had the Nursing Home Reform Act, and it was the first time that nursing homes really began to become regulated. Before that, it was really like “One Flew Over the Cuckoo’s Nest” in these places. They were terrible. There was no oversight. There was no regulation. There was a lot of abuse. There was a lot of Medicare fraud, Medicaid fraud – go ahead – and it was just terrible.
So what CMS did was impose regulations on what nursing homes had to do. It was the first time they had standards. And I think an interesting area for you guys would be something called F-tags. F-tags are just broad categories of the federal regulations under the federal rules on what nursing homes may do. And those F-tags are essentially the duty, the standard of care for physicians and nurses in nursing homes. So there could be an F-tag that has to do with sanitation. There’s an F-tag that has to do with feeding and diet. We focus mainly on negligence that causes physical injuries, but it’s not the only type of negligence that you’re going to see in a nursing home.
A lot of times, we’ll get calls and there’s negligence there. Mom is not happy they’re doing this or Mom doesn’t like the medication she’s on. Well we’re not really the tool for that. There’s a group called ombudsmen in Georgia – are you guys familiar with ombudsmen? Melanie McNeill is the head of the Long-Term Care Program, and she is a phenomenal person. She is also a Georgia State College of Law grad. But their program is absolutely phenomenal. They address a lot of the negligence or failure to meet certain regulation issues that you find in nursing homes. If Mom doesn’t want mashed potatoes and they keep giving her mashed potatoes, they can call the ombudsmen. They can go right into the nursing home and say, “Stop doing this.”
If it’s bad enough like they keep giving her the wrong medicine and it’s not really hurt her yet, but they keep giving her the wrong medicine, then the ombudsmen can go to the state, and the State of Georgia will come in there eventually – it takes them a while because Georgia is extremely backed up because there are so many counties in Georgia, 159, and there are a lot of nursing homes in Georgia, about 300. But once they get in there, they can investigate and they can find them and give them what’s called a civil monetary penalty.
For us, we look for a violation of the duty that they have that causes either ordinary negligence or professional negligence. Now you’re all familiar with torts from law school, right? And the easiest way to remember it is ABCD. There’s got to be some sort of accountability – there’s a breach of that accountability that causes some sort of damages.
So for us in these cases, it’s either going to be ordinary negligence or it’s going to be professional negligence. The vast majority of cases is professional negligence. And this is in the paper – you can see the different statutes, but in Georgia, when you have professional negligence against one of us or against architects, against nurses, against licensed psychologists, against doctors or against healthcare facilities, you are required to have an affidavit. So when we get a case, the first thing we do is we get the medical records and we give them to an expert and the expert either gives us yes or no on the case.
There are occasions when it could be ordinary negligence. For example, I had a case not too long ago where a woman was in a nursing home down in south Georgia – I was just talking to somebody else, south Georgia seems to have a lot of problem nursing homes, and she was completely non-ambulatory, couldn’t walk around. She’s immobile – she couldn’t even move around. And they were giving her a bed bath and they rolled her out of bed. The CNA rolled her out of bed. She fell and she hit her face.
Well CNAs, even though they’re licensed under the state, don’t fall under that category of who is required to have an affidavit. And even though it was against a healthcare facility, we still managed to settle it without an expert affidavit. But the vast majority of the time, we have to have an expert involved. Go one more.
In the types of cases we do, a lot of times they’re wrongful death cases because as you can imagine, like most of your clients, our clients are senior citizens. I had a client who was 100 years old one time. The vast majority of our clients are above the age of 65. Occasionally nursing homes will take care of the mentally disabled and they can be as young as 20 years old. I did have a client who was 30. When I was a CNA at a nursing home, on occasion, I would take care of younger people as well, but the vast majority of people are up there in age, and a lot of these cases are wrongful death cases.
So wrongful death has a two-year statute of limitations, just like your regular torts case. It can be brought by the spouse. It can be brought by the children. It can be brought by children. If none of those are around, it can still be brought by the estate, and this is where we get into why we need to have elder law attorneys help us out is I’m not going to set up an estate, and I always tell our clients, “Look, you can go try to do it yourself or I can give you some names, but it has to be done, because even if there is a spouse to bring the wrongful death claim, we also have the personal injury claim.” And in cases where the person has passed away, there is no longer a person, so the estate has to end up bring that person, right.
Now the interesting thing about the estate personal injury claim is that wrongful death is two years from the time of death. Personal injury, your typical auto accident, your typical slip and fall, is two years, right? In these cases where the person has died, the time between their death and setting up their estate, up to five years, doesn’t count. So if you hear somebody say, “Mom died three or four years ago and we think that somebody might have committed negligence,” there still might be a case there. They may have missed the statute on the wrongful death, maybe, but there’s a still a possibility of a personal injury there if no estate had been set up.
And the reason for that is pretty self-explanatory. It’s the same reason why the statute of limitations is told until somebody reaches the age of majority. The estate hasn’t been brought into existence yet, so it’s not fair to hold the decedent to the same standard. So that time, whether it’s 12 months, whether it’s 24 months, all the way up to five years doesn’t count against them. Go ahead.
So the first thing that we have to do though when we have a case – let’s say we’ve gotten the call. Somebody says, “My mother died in a nursing home.” We listen to them. We have them come in. We have them sign certain authorizations. We’ve got to get the medical records. This is a constant battle for us, and you guys probably know a lot about this. It’s a constant battle largely because HIPAA law and healthcare law in Georgia is confusing. And we are constantly – we had to hire somebody whose sole job it is to call these places and get medical records, because I can’t tell you how many times they have said, “Well you’ve got to set up an estate to get the medical records.” No I don’t. That’s not Georgia law. Georgia law says if the person has passed away, if they’re passed away, that if I’ve got an estate, of course I can get it, but a surviving child and a surviving parents and a surviving spouse can also get it.
And this has been upheld recently. There’s an 11th Circuit case that came out of Florida that struck down Florida’s statute as being too broad and being pre-empted by HIPAA, but they specifically mentioned Georgia and specifically mentioned Georgia’s law that unlike Georgia’s law, which is narrowly tailored to fit HIPAA. So if you have a surviving spouse, if you have a child, if you have a parent, they can get the medical records.
And what we do in addition to having them sign survivor affidavits, or sometimes we just set the estate up if we know that we’re going to have to go to litigation pretty soon is we have them sign something called the HITECH Act. If you guys ever, for whatever reason, need to request medical records, please get in touch with me. I can save you hundreds, if not thousands of dollars. It used to be, as you can imagine somebody in a nursing home is there for a long time and they have all kinds of records, nursing home records are voluminous. I’ve had nursing home records exceed 10,000 pages before. And when they want to charge you per page, that can be extremely expensive. HITECH is a federal law that says if you have electronic records, you must give them electronic records, and that difference is amazing. So I may 60 bucks for a CD or DVD – I’ve never understood the difference between those two, laser disc, whatever it is, it’s this big. And they can give me 10,000 pages of records, 60 bucks, instead of $5,000. It’s a huge deal. So if you’ve ever got to get medical records, let me know. I’ll give you all the templates that you need for doing that.
And so essentially what we do is we get the medical records. We send them to an expert and that expert looks at it, let’s us know if it’s a go or a no-go, and then we start the process of litigation. As you guys all know, litigation starts with a period of six months of discovery.
Inevitably, we get stopped right at the door of discovery by arbitration agreements, and I’m pretty sure you’re all familiar with these. So this is a hot button issue right now, but arbitration agreements are these sneaky little sometimes one-page documents that are in admission contracts. And arbitration itself is not necessarily a bad thing.
There’s the federal Arbitration Act of 1925, was signed into law by President Coolidge, and arbitration is different than litigation in a lot of different ways. Litigation is the pursuit of a jury trial at the end of the day. You have a right to the jury trial under the Seventh Amendment. You have a right to a jury trial under Section 1, Paragraph 11 of the Georgia Constitution. And a jury trial at the end of the day is going to be in front of six to 12 different people that listen to your case. Arbitration is a lot different. It’s in front of one single person – go ahead.
So you all have seen “People’s Court.” You all have seen Judge Watford, Judge Hatchett. You’ve all seen the different daytime judges. In reality, that is arbitration. Remember Rusty from “People’s Court?” He’s not a real bailiff. But it is a real decision. The litigants are real and they have agreed to settle their dispute in our forum, “The People’s Court.” What that means is we have agreed to arbitration.
Arbitration has a lot of benefits. It’s extremely quick, number one. Litigation can take years. If I filed a lawsuit today, it would be at the very least one year before I ever had a chance of being on a trial calendar. And for those of you not familiar with litigation – I know some of you work for judges here, you know that a trial calendar means nothing, because I could be one of 100 people on a trial calendar and maybe two cases go. So it could take three years before I ever get to a jury, which is a long time. After that, they could appeal even if we win. Some cases take five or six years. I just had a trial in January that had taken five years to just simply get to its first trial, because in the process, we had gone to the appellate courts on interlocutory appeals.
So arbitration’s got its benefits. It also has a huge detriment for nursing home residents, and one of those is that the public doesn’t find out what happens. In Georgia alone, you can imagine that there are thousands and thousands of personal injury lawsuits and personal injury verdicts. You see them in the daily report all the time. They have an entire industry that’s set up called Case Metrics or Verdict Search that lets attorneys see, “Here are all the verdicts for your auto accident cases, your slip and fall, for your med mal.”
In Georgia, I think that there might be 14 or 15 verdicts since 2000. There’s just not that many. I’m not really sure why. I think a lot of it has to do with the fact that the subject matter of the litigation is somebody who is elderly that doesn’t have a lot of time or has already passed away and the family wants to move on. And so when the nursing home finally gets to a stage where they see the evidence and they go, “Okay, well we let Ms. Johnson get a bedsore and that’s what killed her,” then they want to settle and the families don’t want to go any further, and we have an obligation as attorneys that if our clients want to settle, we have to do that. But there are not a lot of verdicts in the state of Georgia when it comes to this.
And arbitration makes that even worse because you go to an arbitration. You go to Miles Mediation, you going to Henning Mediation, you go to any one of these places that does mediation – it depends on what it says in the contract – and it’s decided by a Judge Judy, a Judge Watford, a Judge Hatchett. They listen to the case. The rules of evidence sort of apply. I don’t know if you guys have ever practiced in mag court in small claims court. It depends on the day and where the wind blows whether or not the judge thinks the rules of evidence are important. That’s the same way arbitration is. Routinely, hearsay comes in. There’s not really any challenging of documents because you could have a document from anything, and the judge who is deciding the case will say, “Well counsel, let me see what this is. Oh, I think it’s important or not important.” It doesn’t matter. There’s no authentication.
Businesses like it because it’s quick. They like it because typically the verdicts are about 30 percent less as well. So it keeps their costs down. Now in 2006, under Secretary Burwell – she was the Director of Health and Human Services under President Obama, she is the agency that’s in charge ultimately of CMS, they instituted a new rule and they promulgated several rules that were supposed to roll out each November from November 2016, November 2018 and November 2019.
And one of the major rules that they had was there was going to be no more pre-dispute binding arbitration clauses. Now pre-dispute binding arbitration clauses are ones that you agree to before you even know what’s going to happen. They’re a lot different from post-disputes. Post-disputes are never really a controversy because you know what’s happened and it’s really on you if you want to do arbitration at that point.
Pre-dispute binding arbitration clauses are the ones that you’re going to see a lot in nursing home admission packages, and they say if anything, anything, happens at all, then we’re going to agree to arbitration. It’ll go to Henning. It’ll go to Miles. No litigation.
And they received about 1,000 different comments from Consumer Voice, from states attorneys general, from members of the public saying, “We don’t want arbitration. This is bad. It’s a violation of our Constitutional law, the Seventh Amendment. It’s a violation of our state constitutions, and there’s an atmosphere of subterfuge to it, because if you’ve ever dealt with people who are concerns about their loved ones, which you all have, you’ve all dealt with senior citizens, there are a lot of things going on when they make that decision to go to a nursing home. And these admission packages, they have a lot of stuff about Medicare and Medicaid, they have a lot of stuff about what your diet is going to be like, and then scrolled away at one section is arbitration. And to be honest with you, having worked in a nursing home, it isn’t always just deceit. I don’t even think the people in the admissions office know what’s going on half the time. And so they’ll sign these agreements and they’ll either sign them on behalf of their mother or the resident will sign it themselves and they won’t even realize it.
So Secretary Burwell’s goal was to get rid of this, and they passed these proposed rules in September of 2016. They were set to take place November of 2016. And the American Healthcare Association challenged this in Mississippi, in a district court in Mississippi. They sought a preliminary injunction, saying that first of all, that this was exceeding the scope of CMS’s authority. Eventually, that district court agreed with it and it was going to go up to the Fifth Circuit, and on January 5th, Secretary Burwell appealed it to the Fifth Circuit, and then something happened on January 20th, and a whole different direction took place with CMS, and they dropped it. Tom Price from Georgia decided that it wasn’t worth fighting, and in June, they dropped that issue altogether.
And in addition to dropping the issue, CMS also, under new leadership, decided to put a moratorium on all these new rules and regulations. So as it stands right now, there is no rule prohibiting binding arbitration in nursing home agreements. Doesn’t really look like there’s going to be one either.
So what can you tell different people, families, about arbitration agreements? You can tell them first and foremost they don’t have to sign them. The only consequence of not signing it is maybe, maybe the nursing home says, “Well you can’t stay here.” I’ve never seen that happen. What typically happens is they say no and the person who’s handling it, some poor girl or guy that doesn’t really know what arbitration is anyways and has just been tasked with giving this admissions packet goes, “Oh, okay. Well I don’t even know what that is anyways, so I guess you’re not going to sign it.”
But what’s important to note is this, that in Georgia, this is extremely important. This was decided around the same time as American Health Care Association versus Burwell, which is the case where they challenged CMS’s authority to institute a prohibition on binding arbitration. Around the same time, there was a Supreme Court case out of Kentucky, and it had to do with whether or not a general power of attorney is sufficient to sign away your Seventh Amendment rights or whatever your constitutional rights are in your state government, in your state constitution. And the Kentucky court said, “Look, the Seventh Amendment right is a God-given right. It is extremely important and you can’t just have a general power of attorney that doesn’t expressly state, ‘Oh, I also give my attorney, in fact, the ability to sign away my Seventh Amendment right.’”
So clearly the nursing home industry appealed this and it went up to the Supreme Court. Now I’m not a fan of arbitration agreements. I’ve got to tell you, I don’t necessarily disagree with the Supreme Court. It was a pretty unanimous decision. I think the one person – I think there was one dissenting – it was Justice Thomas, and I don’t think his dissent really had to do that he didn’t think it was fair. He just doesn’t think that the FAA, which is the Federal Arbitration Act, needs to be discussed in state courtrooms. But generally what they said was, “Look, we don’t do that for any other inalienable rights. A general power of attorney doesn’t have to expressly say, ‘Well I give you the right to sell my property.’ So you’re putting the Seventh Amendment, as important as it is, on unequal footing with everything else.”
What that means is in Georgia, if that daughter, if that son, if that sister, brother, mother, whoever has a general power of attorney and they sign that nursing home resident in, that’s going to be enough. It’s binding arbitration. However, a durable healthcare power of attorney is not enough, and a lot of times, that’s what people have.
So what’s important is if you are creating a power of attorney for one of your clients, think about that issue, because even though a general power of attorney is sufficient in typical boilerplate language, if it expressly states you don’t have the right to sign away my Seventh Amendment, then that would be upheld.
So just to close and recap what we’re talking about, these cases are medical malpractice cases, 100 percent. They’re extremely time-consuming and they’re extremely expensive on the front-end because we have to hire an expert to look at this and say, “Is this actually negligence?”
Another issue that we look at is the damages issue. I oftentimes get cases where somebody has a stage one bedsore. Those are painful, that’s certainly negligence and it shouldn’t happen, but it’s probably going to go away and it’s not worth three years of litigation just to have somebody compensated for a minor inconvenience. Now I don’t know if any of you have ever seen a stage four bedsore, but it is probably the worst thing that you can see in your entire life. It is a wound, a decubitis ulcer that has gone all the way into the bone. It’s one of the most – I have so many pictures on my phone, my goddaughter will grab my phone and want to look at it and I’m like, “I don’t want you to accidentally see what’s on there.” But they’re horrible.
So we look for cases that have clear negligence. We look for cases that have high damages. And one of the things that we have to have with every single case is medical records. A lot of times, what we’ll do is we’ll have to have somebody sign a conservatorship. We’ll have to have somebody do a guardianship. We’ll have to have an estate set up because you have to have an estate to move forward to sue on behalf of these nursing home residents.
But I think the most important thing that I want you guys to take away from this is the issue of arbitration because we’re going to be seeing a lot of this in the future because CMS is not going to be advocating in the same manner it used to be against arbitration, and there are certainly arguments to be made that it is fair to businesses to have. There are certainly arguments to be made that it’s unfair to residents. I think you all know where I stand on it. I think it’s unfair.
But the one thing that I want you to take away when you’re talking to senior citizens, when you’re talking to families of nursing home residents is that they don’t have to sign these agreements. They do not have to sign them. And it’s very possible that CMS is going to issue a new ruling that although it will not prevent binding arbitration agreements, it is going to require certain transparency.
So what is going to happen is that in the future, you’re not just going to have Kevin at the front office who doesn’t know what’s in this go, “All right, Ms. Johnson, go ahead and sign this and sign that and we’ll get you to your room.” It’s going to have to be, “Hold on a second. Make sure you understand there’s an arbitration agreement in here. Also there’s a sign here that says we use binding arbitration. Please make sure you understood that you signed this.”
So as long as people understand what they’re signing, it’s better than them not understanding, but at the end of the day, they don’t have to sign it. The worst that can happen is a nursing home can say, “You can’t stay here.” But again, like I said, I’ve never seen that happen.
Well thanks for having me.