Filing suit against a nursing home in Georgia courts can be a complex and time-consuming process. From start to finish, a lawsuit may take years to get to verdict. In today’s episode, attorneys Rob Schenk and Will Smith discuss the manner in which a case may be settled prior to verdict or even filing suit.
Schenk: Hello out there and welcome back to the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: Great episode for you today. It’s just going to be Will and I today. Sometimes we have guests – most often we have guests. Today it’s just me and Will. We’re our own guests and we’re going to be talking about the…
Smith: The time it takes for nursing home cases to settle.
Schenk: Yeah. So just what goes into that.
Smith: Not the time it takes for Rob to tell you what the episode is about, which is clearly about 30 to 45 seconds.
Schenk: Yeah, of silence.
Smith: Of silence.
Schenk: So all right. We get this question a lot. This is why we…
Smith: We don’t just get it a lot, either. We get it every – it’s the main question people have when they come to our office and they talk about this – how long is this going to take? And inevitably, everyone is a little dumbfounded on how long these cases take.
Schenk: Yeah, to settle.
Smith: They’re frustrated. Yeah, they’re frustrated.
Schenk: So in terms of these cases, let’s say something happens to your loved one who’s a resident of a nursing home, and let’s just say that it’s the following day, you come to our office. Most often this is how these cases will shake down is that there has to be an initial investigation by the attorneys that you go to.
The investigation is going to include all types of things – number one, getting the medical records or getting the business records or the chart from the nursing home itself or any of the hospitals that might be involved in this claim. So for example, if your loved one was hurt in a nursing home but then went to a hospital, getting all the records from any facility that touched your loved one. Getting witness statements – going out and talking to people if that’s relevant. Getting documents from any type of state agency – so in the state of Georgia, you might use a Freedom of Information Act to get documents from the Department of Community Health if they went out and investigated or did a survey, the most recent survey. Or you can get maybe if it’s relevant to your case, you can make a request for 911 calls.
Schenk: We have a case right now where the 911 call has important information only because of what the individual said to the dispatch. So that’s what we would call the investigation period in terms of trying to figure out what the mechanism of injury is. So did what we think happened actually happen? And in a lot of ways, that can be very time-intensive. So it can take a couple months to get the medical records from the hospital. It can take a couple months to get all the nursing home records, and I think a lot of times, the nursing homes fight giving you the records.
Smith: And what we have to remind a lot of our clients is there are certain statutes that say how long a hospital has to respond to your medical record request that are what we call “toothless.” They’re without any teeth, because unless a law has a consequence, you have to think about it – if there’s no immediate consequence, what are you going to do? So if a law says, well if somebody requests their medical records, you have to give it to them in 30 days, most often, they’ll never get it to us in 30 days. So then what’s the consequence? I mean could you take them to court? Absolutely. But that’s an action in and of itself that takes a long time. So and it’s not that these nursing homes or these hospitals, to be honest with you, it’s not that there’s some large conspiracy where they’re trying to – more often than not, it’s not. Sometimes it can be, but it’s not that they’re conspiring to prevent you from getting the medical records. It’s that they’re not efficiently designed to track records, to keep them and to produce them upon request. They’re just not very good at it. They don’t put a lot of money into it and the people who work in those offices are short-staffed and it’s frustrating. I’ve had it take four-five months to get medical records before and that is absurd and ridiculous.
Schenk: Right. And so there are some federal laws that changed a few years ago where they’re trying to incentive nursing homes to move towards electronic records, which in some instances make it easier to get. So those investigations, those documents we’re getting, we’re talking to people, these are all things that we are getting, other than the medical records, these are all things we are getting without the aid of the facility that is alleged to be negligent. You can’t just walk up and say, “We want to have a three-hour interview with the administrator of the facility.” They’re going to say, “Go away,” because they have no legal obligation to do so. The only real legal obligation they have to do that’s relevant to investigating a claim is handing over the records.
Smith: Do you remember that time that we went over to the nursing home down in – no, it was a hospital – down in south Georgia, and we tried to talk with the surgeon, and the hospital freaked out.
Schenk: Yeah, well a little bit of history on this is the hospital was not the potential defendant.
Smith: No, not at all.
Schenk: No, they were the hospital that saw the resident after the resident was injured, and we were going down just based on how…
Smith: They were the good guys.
Schenk: They were the good guys. And they still escorted us off into a room at gunpoint and said, “Who you city folk?”
Smith: Yeah, because it was two guys in suits that identified as attorneys and said, “Hey, I’d like to talk with one of your surgeons.” And it was all hands on deck, like they were pressing the red button underneath the counter and lights were flashing.
Schenk: The receptionist like cracked her neck like the bad guy from the Matrix, like this is what I’ve been training for. And she’s going through her operations manual in her head.
Smith: They put us in this little room like, “Maybe you’d be more comfortable here, gentlemen.” It was the chapel too. They locked us in the chapel.
Schenk: Locked us in the chapel.
Smith: So yeah, your ability to talk to witnesses is extremely limited.
Schenk: And during this process, just so because we can’t do anything as attorneys just in terms of going in there and greasing the wheel – not squeaking the wheel…
Smith: Greasing the squeaky wheel.
Schenk: Greasing the squeaky wheel – is generally we recommend to our clients to go through the administrative process, so alert the department, alert the administrator yourself as the family member, “This is what happened,” and get an incident report going, get an incident or grievance going through the nursing home itself so there’s a record. Then we would say to the family member, “Contact the long-term care ombudsman,” and we’ve addressed that in other episodes, “And call the Department of Community Health Healthcare Facility Regulation Division.” And some surveyor, some complaint investigator will go out there. It might take a while, but they’ll go out there. Depending on the egregiousness of the claim, I think that’s how quickly they go out there.
So while we’re doing our thing, they can be doing their thing. And then at the end of our investigation, a lot of times we will make requests for the documents that were generated during those investigations. Or maybe depending on the type of claim it is, you would also have the family member, we’d have you as the family member call the police depending on what happened, and we’ll get those documents as well.
So there’s a period of basically just fact-finding. The process of just gleaning through the medical records, and what we’re trying to do is to figure out ultimately what happened, and not just what happened, but if we can prove what happened at the end of the day. So did the nursing do or fail to do something that caused the injury? And that’s what we’re trying to investigate.
So what we’ll do at the end of that investigation when we’ve got everything – we’ve got witness statements, we’ve got statements from family members – this is what happened – what we’ll try to do is we’ll have an expert, and the expert could be a medical doctor, it could be a nurse, it could be a pathologist, it could be – just depends on what the case calls for – to review everything and to make a statement under oath, under penalty of perjury, to say, “This nursing home, this skilled nursing facility messed up in some way,” because as we’ve talked about in other episodes, that is a requirement of filing a lawsuit in Georgia.
So at this point now, it’s probably been two or three months, maybe four months, and again, this hypothetical we’re giving you for the episode is we’re not worried about statute of limitations. This is just the average amount of time. Things can be faster or longer depending on that statute of limitations, but generally, this is how long it takes, two, three, four months. We have an affidavit or a statement under oath from an expert who has read everything that we have, assessed everything and says, “There is definitely a breach of the standard of care this facility has committed.”
Smith: And it’s also worth noting that expert can also come back and say, “Hey Rob and Will, I have looked at this. Based on my expertise as a doctor or as a nurse and my experience in this field, I have to tell you that it’s a horrible situation. My heart goes out to the family. But there is no negligence” or that negligence is very sketchy.
Schenk: Right. And so the reason we’re telling you this right now is the chances of your claim settling between the time you walk into your attorney’s office the day after your incident to the time they have the affidavit in your hand is almost zero, because why would the nursing home settle anything? We haven’t even come close to proving anything. We don’t know what the facts are.
Smith: And just as a brief aside, you have to remember, and we could do an entire episode on what negligence is, on what a breach of a standard of care is, on what causation is, on what damages are. You could do a series of episodes on any one of those three. And I’m telling you this because I deal with clients all the time who are frustrated, legitimately so, that it appears as though the nursing home isn’t taking responsibility for their actions.
Imagine that you rear-end a car. You do that. And you mess up the bumper and a couple of days later, that car that you rear-ended, the engine stops working, right? Well you committed negligence. You messed up the bumper. The engine worked before you did that and now it doesn’t work. Does that mean that you rear-ending the car did something to the engine or was it about to go out anyways? Well from the nursing home’s perspective, if you’re blaming them for that engine not working, they’re not going to accept it. And they’re going to fight it because they have an insurance company that doesn’t want to pay out money, whose sole purpose is to save money to avoid paying out claims. That’s how insurance companies make money, right?
So just because you say, “Look, I know that they didn’t do this right. They were supposed to call us and they didn’t call us,” or “They weren’t supposed to do this and they didn’t,” it doesn’t mean it’s a clam dunk case. There’s no such thing and I want to make sure that people listen. There is no such thing as a slam dunk case in nursing home litigation.
Schenk: Right. So at this point, we have the affidavit in hand. The facility will want to make an offer to you at that point. And sometimes what we’ll do is we’ll put all that material into a persuasive document called a demand package. The demand package basically says, “These are the facts as we understand them. Here are the evidence supporting these facts and here’s what we think the case value is. If you pay the case value now,” or whatever the timeframe you want to give them, 30 days, 40 days, 15 days, five days, five minutes, then you send that out and the chances of settling are slightly higher because now you’ve provided them with evidence and what you can prove in court ultimately. And they’ll take that to their adjustors and we’ve settled cases often pre-suit, but not always. So the chances of settling your case at this point is more than zero, but less than probably 50 percent.
Smith: Because now you have an expert and you have evidence that says, in that scenario of rear-ending somebody, their engine not working, you’ve got somebody that says, “Yeah, not only did you guys commit negligence by rear-ending that person, but that’s why the engine doesn’t work.” So you’ve got more evidence to present to them for them to make an informed decision.
Schenk: That’s right. So now if there’s no settlement offer from the facility, then what you’ll do is – I mean you can’t just sit there forever and nothing’s going to happen unless you do something, so the next thing you do is you file the complaint. And last week, if you’re really interested in knowing what filing a complaint is like in Georgia, just listen to last week’s episode. The whole episode is dedicated to the process of filing a complaint against a nursing home.
So you file the complaint against a nursing home and they’ll have a certain amount of time under the law to answer, usually it’s 30 days. They go through 30 days and then the chances of you settling, slightly higher, not very much higher. Okay, so now you think about this. From the timeframe, it’s been three to four months to investigate, it’s been about another month to six weeks for them to answer the demand or to deny your demand. Then you file the lawsuit. It’s another 30 days to six weeks for them to answer the complaint and you haven’t really gotten much better odds for settling the claim at that point.
So if they haven’t settled by this point, in Georgia, you’re going to go through about a six-month to 18-month process called discovery, where you do fact-finding, you depose people, meaning you can sit down with their people, their administrator, director of nursing, their RN, the owner, these types of things, and you start getting the information you were not allowed to get prior to the lawsuit. So at this point, you could do a survey of the facility, go there and talk to people, this type of thing, get witnesses you might not otherwise we entitled to.
And generally what we’ve found is once you’ve made it past the discovery phase and you’ve talked to everybody you needed to talk to and gathered all the information you could possibly get prior to the actual trial and you’ve talked to all your experts, you’ve got your medicine people lined up, they’ve got their medicine people lined up, at that point, the likelihood of a settlement is much higher because everything’s laid out on the table, and generally, because you’ve gone through a discovery, they have a better, or not a better but a more accurate number that they have for the case value itself.
So the chances of you doing an informal settlement at that point is higher than it was prior to discovery being conducted, if that makes sense. Like everybody has a better understanding of where everyone’s at prior to discovery than before discovery, and the chances of a case settling when people know nothing is not good. When they know more, it’s better.
At that point in Georgia, I know few judges who’s going to have a schedule that doesn’t require mediation, but generally mediation is going to be required to occur after discovery has closed. So even if you can’t informally settle the case, meaning reaching out to the other people and going, “Hey man, give me an offer. What do you got?” then oftentimes the court will require you to mediate the case. And we’ve talked about mediation. I think mediation was several episodes ago, but if you want to know more about how mediation works and what the strategy is, tune into another episode.
But the chances of a case settling at mediation often are higher. Not every times. Sometimes we have walked out of mediations, but for the most part, mediation can be very successful because the mediator is going to be somebody whose job is to settle the case, and they’re not doing their job if they don’t settle the case. So once the mediation occurs, the chances of settling are high. But if they don’t, then you move onto the next phase. And again now, we’re getting to be – it’s been 18 months, possibly, since the incident happened and yet you’re just through discovery.
Smith: Well since you’ve came into our office.
Schenk: Correct. Correct.
Smith: Which is why it’s extremely important that you go to an attorney as soon as you have a claim or complaint because the statute of limitation can be two years. Sometimes it changes. But if you wait until the last minute, you see how long this takes, you’ve got to start early.
Schenk: Right. And so sometimes there’s motions practiced, there will be summary judgment motions based on certain claims, and a summary judgment motion basically says that even if all the facts you’re alleging are true, you don’t have a claim under the law, yada-yada-yada. If you make it past this stage, the chances of settling are higher, but again, you’re adding a couple months to that.
Then you get onto the trial calendar and from the time you’re on the trial calendar to the time you get called to trial, the chances of settling are higher, and at the point where the judge says, “You guys need to show up at 8 in the morning on Monday, January 16th,” whenever it is, then the chances are at its highest. And as soon as you walk onto the courthouse steps, they’re at its highest once again, because generally facilities don’t want to have to try these cases in the court of law. And at that point, it’s been two years almost.
So if court-ordered mediation doesn’t work and after motions practiced, there’s no settlement and on the courthouse steps, there’s the highest chance, then we haven’t done this, but we’ve talked to other attorneys where after opening statements, the case is settled.
Smith: And it’s also important to note, and this is something that we have done numerous podcasts on is arbitration. Arbitration might speed up how long it takes to finish a case. If there’s an arbitration clause, you’re probably not going to settle the case, but it’s going to prevent you from actually going to litigation. So it might be quicker, but you’re almost never going to actually settle. They’re going to settle for the arbitrator to make a decision.
Schenk: Yeah, and that’s something that we’ve addressed in other episodes. But needless to say, kind of the point of this episode is to let you know that civil justice is not a get-rich-quick scheme. It’s not a get-rich scheme at all, and you’re in for a long fight almost always.
Smith: Always. Just expect it to take a year and a half at the very least. It takes a very long time in these cases, and inevitably, somebody will always say, “My cousin had a case that didn’t take that long.” Okay, great. Good for your cousin, but typically these cases take a very long time.
Schenk: So I think that’s a good overview of just timelines and settling, which again, is different from the timeline for reaching verdict and things like that. So yeah. Well Will, how would someone watching this episode, how would they know, if they just stumbled upon this, how would they know to get the next episode? Where would they go?
Smith: Well you can go anywhere that podcasts are downloaded or sold. Ours is free. You can go to iTunes if you’re a Mac and Apple user. You can go to Stitcher. You can go to Spotify. You can go to our website, which is www – is that too many W’s?
Schenk: I don’t know why you still say the W’s. Why would you do that?
Smith: I know. It’s like when you have to say dot-com. It’s NursingHomeAbusePodcast.com, or you can go to our YouTube channel, and if you do, please make sure to click “Like” and “Subscribe.”
Schenk: And with that, we will see you next time.
Smith: See you next time.