Thousands of complaints are made against nursing homes every year. Hundreds of family members of nursing home residents seek the advice of counsel. Still fewer cases are initiated and only a fraction of those reach a verdict. In today’s episode, attorneys Rob Schenk and Will Smith discuss the process by which a case is evaluated by attorneys.
Schenk: Welcome back to the podcast. This is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And you have stumbled upon episode 99…
Schenk: …of this podcast. I want to take a second and talk about that. Like this is year number two coming to a conclusion.
Smith: Ninety-nine episodes.
Schenk: Ninety-nine episodes. I feel like this come and went. Is this crazy? Let me do the math. The average time, the average episode length…
Smith: Thirty minutes.
Schenk: …is 30 minutes. So it’s 30 times…
Smith: It’s 270 hours.
Schenk: All right, 2,970 minutes divided by 60, that’s 50 hours. We sat in these chairs for 50 hours over the past two years.
Schenk: A couple of housekeeping matters other than this being episode 99, I feel like we should have – what is that year? Your favorite band is Green Day? I feel like we should have that, “So you had the time of your life” music playing right now.
Smith: Other than that song, I couldn’t tell you another song.
Schenk: Will actually has a series of neckties that are the album covers to all the Green Day albums. He’s got the Dookie one, American Idiot…
Smith: You already know more about this band than I do.
Schenk: Yeah. Anyways, so what was I going to say? Oh, so this will be the last episode of 2018. So we’re going to take two weeks off over the next two weeks for Christmas. I’m not actually going anywhere. I’m going to Nashville. I’m not going to Brazil, so I’ll be going…
Smith: Because you’re going to Brazil in…
Schenk: In March.
Smith: In March, because he’s getting married.
Schenk: Yeah. So one other thing that I would like to say is today is December 17th and it’s Pan-American Aviation Day, which is a day that’s authorized by law by I think executive order that we celebrate aviation throughout the Americas.
Smith: Oh, okay. So North America and South America.
Schenk: Yeah, which I think, and I haven’t researched this, but I think it has to do with making sure that we tell Brazil that the United States was first in flight. We’re not taught this in school, but in Brazil, they are taught that they were the first people to come up with the airplane, because of a Brazilian guy who’s actually French but is Brazilian went to France and developed lighter than air travel without the use of a sling or a catapult. And he did that in 1906. The Wright Brothers used a catapult and a sling and a rail to get it going and then took flight. And that word didn’t get around. Number one, word didn’t get around for the Wright Brothers in France because the Brazilian guy was in France when he did it, and he didn’t use the catapult or sling.
Smith: When was Kitty Hawk?
Smith: Oh right.
Schenk: So three years later, this Brazilian guy in France did it, and so Brazilians think for those two reasons that I mentioned, they’re the first in flight. Which is why if you remember during the Olympics…
Smith: Did you have an argument with Daniela about this?
Schenk: Oh my gosh, like she was so mad.
Smith: So she thought that they were the first to…
Schenk: She still does.
Smith: She still does.
Schenk: Because there’s an argument that it’s not right. You should be able to on its own accord go to the sky, and they used a rail.
Smith: But that has to do with takeoff, not flight.
Schenk: I agree with that.
Schenk: So anyways, what are we talking about today?
Smith: How an attorney selects a nursing home case.
Schenk: At least how these attorneys, these two attorneys.
Smith: Yeah, and that’s important because it’s something that we both have to deal with on a daily basis, because we get calls and people will have a complaint about a nursing home. Sometimes it is an actionable complaint and sometimes it’s not. So what I mean by that is we are limited in the things that we can do. The main that attorneys are able to do is bring a lawsuit and threaten to bring a lawsuit. That’s the whole crux of what it is that we do. We bring the pressure of having a potential jury decide that your nursing home is liable for X amount of money. I can’t sue a nursing home and ask a judge to institute a policy so that this doesn’t happen again. I can’t sue a nursing home and ask the judge that your loved one be treated differently. The only thing I can do is sue them as a plaintiff’s attorney in a tort action for negligence.
And what we hope happens in doing this, and we were talking about this with one of the other guests that was one this year, what you hope happens is that eventually these insurance companies get tired of paying out all of this money and so they start saying, “Hey guys, let’s start taking better care of these nursing home residents. Let’s start hiring more staff. Let’s start using lift equipment more often. Let’s start worrying about infection control. Let’s start worrying about ADLs,” all the things we talked about in the 98 other episodes before now leading up to the 99th. Everything that we talk about during episodes, hopefully they start paying attention to that. If they don’t, they’re going to have to pay a large sum of money. And that affects how we decide a case.
So the last episode we did before this one, we talked about infection control. So you may call me and say, “Hey listen, they’re supposed to let us know anytime something happens. Mom got an infection and they didn’t call us and let us know.” Rob, is that a case that we would take?
Schenk: Well if the nursing home caused the infection and the infection caused an injury that was severe, we would. But if the only damage is that they didn’t call you, then that’s a case that we would not take. Hopefully that’s the right answer.
Smith: Oh no, and that’s what we’re trying to convey is that we tell our clients this all the time. It’s a three-legged stool. It’s breach, causation and damages. If you don’t have one of the legs, it’s useless. So for example, you have a duty to be a safe driver. Let’s say that you rear-end somebody else, okay? And let’s say that you happen to have one of these new cars that is largely plastic and fiberglass and the other person has like what Rob has. Rob has an old – well it’s not that old, but it’s a sturdy F-150. It’s a big truck. It’s not going to get hurt if you hit the rear of it with a Toyota Camry. So let’s say I rear-end Rob’s truck with my Toyota Camry. I don’t drive a Toyota Camry, but let’s say that I did. And it doesn’t cause any damage to Rob’s car and he’s not hurt at all. He gets out, there’s not a scratch on the bumper. It’s not dented or anything, but he breached the standard of care and committed – I breached the standard of care.
Schenk: Yeah, I was going to say the Toyota Camry owner did.
Smith: I breached the standard of care and I committed negligence. Can he sue me? Yeah, he can sue me. What’s the most he’s going to get? A jury would say, “Yup, Mr. Smith is liable.”
Schenk: Because he caused the wreck.
Smith: Because he caused the wreck. “I award you no money in damages.” No one in their right mind would do that because it costs money and takes time to pursue a lawsuit in a negligence case.
Schenk: Yeah, so what I call that hypothetical that Will gave which is the only thing the nursing home did is not tell the family that there was an infection or not tell or they took 40 minutes to respond to the call light where there’s a breach but no injury. I call those blessings and close calls.
Schenk: So that is an opportunity that the world has provided to make sure that the likelihood of an injury in the future happening because of that is lessened. So if they didn’t call you, you want to go in there and you want to tell the nursing home, “I want to be at the next care plan meeting.” You want to tell the nursing home, “Hey listen, in the future, you need to call me if something happens immediately.” Maybe you want to visit them a little bit more often. These are things you can do when there’s a close call but no injury.
Smith: But understand this is only in regards to what we can do.
Smith: So for example, in the hypothetical which we’re going to continue to use, let’s say I was on my phone and that’s why I rear-ended Rob. I can still get a citation. So if they have done something, if the nursing home has done something wrong, you can still notify the state, the Department of Community Health, or you can call your local ombudsman, and the nursing home may still get a citation. There may still be a fine, right? There are still things that can happen to them if they don’t do what they’re supposed to do, but it’s not something that we can help them with. It’s limited what we can help them with.
So the next thing that you have to consider is let’s say that – and this is what often happens is that you have a nursing home that has breached a standard of care or it seems like they may have, and you have damages. So you’ve got a mother or a loved one or a father that has a bedsore. So you have damages because presumably what your train of thought will be is, “You guys have not been turning her back and forth, and that breach of duty has, number two, caused, number three, damages.”
Well what we have to do in that circumstance is you still have to prove causation. So imagine that I rear-end Rob’s truck and two or three days later, the engine locks up. It stops working. Did it stop working because I rear-ended it? Maybe. I don’t know. What you’re going to have to do is hire an expert to look at it and connect the two. Same thing with a nursing home case. Your mother has a bedsore. She should not have a bedsore in most cases. You say, “Well I’ve never seen them turn her. They don’t turn her.” Okay, but what we have to do is hire an expert to look at the middle ground of causation and go, “Well yeah, it’s clear that they weren’t turning this – based on the record, it’s clear that they weren’t turning this person and it’s clear that that’s what caused a bedsore.” There are times where you can get a diabetic ulcer because you have diabetes and there’s nothing the nursing home could have done, so causation is the next thing, which is extremely important.
Schenk: Right, and there are some cases that lend themselves to having a better opportunity or a better chance to prove causation than others. So for example, if it’s documented that a CNA drops a resident and the resident hits their head and gets a subdural hematoma and then passes away, the causal connection between what the staff member did or shouldn’t have done is it’s an easy connect-the-dots there. But let’s say two or three or four times during the last week, Ms. Johnson sat in a dirty diaper and this week she’s developed a UTI, that’s a whole hell of a lot more difficult to prove that her sitting in a soiled diaper three or four times or for however many minutes the previous week caused the UTI this week.
Schenk: So Will and I always say that the middle stool is going to be the hardest – well not the middle stool, the middle leg of the stool, second leg of the stool – is often the most difficult component of the case. Generally, as Will said, if there are no damages, meaning it’s a close call where they breach the standard of care but nothing, no injury resulted, those are cases that an attorney cannot take most of the time. But that’s usually easy to tell. But most of the cases that we take in, there is a severe injury, but that causation component is the difficult one.
And generally, second to causation, the standard of care is the one that’s the most difficult leg of the stool, because in keeping with Will’s hypothetical of a bedsore, the skin is an organ and so organs break down, and sometimes a bedsore, sometimes a bedsore is unavoidable, meaning that you can everything. That person can be floating in a gravity-free environment and they’re going to get a bedsore because their skin is just failing. And so there is no breach of the standard of care. They did everything they could. And even though they did everything they could, a bedsore resulted.
Smith: And for example, the same thing using the car accident analogy, nine times out of 10, if you rear-end somebody, then you’ve violated the traffic statute of following too closely. It doesn’t mean 10 times out of 10. There are times where you weren’t following too closely. So there are times when something could happen, but you have not actually breached any law or breached any standard of care or done something wrong. It just happened that this happened. And like Rob was saying, the skin is an organ. Sometimes it breaks down.
Schenk: Right. And sometimes, again, depending on the type of case it is, if there’s a host of comorbidities involved, meaning that the resident, if they passed away, were they going to be pass away pretty much likely the next week, which usually the defense says, “Even if we did everything poorly, there are no damages here because she was going to pass anyways,” and that leads to a lot of philosophical questions and we present these to jury, where it’s like, “Okay, well if you only have a month left, do you want to spend it with a bedsore? Do you want to spend it getting antibiotics because of sepsis, these types of things?”
Smith: Or if you only had six months left to begin with and they took away two of those months, aren’t those months more valuable than somebody who’s 18 years old?
Schenk: Right. So these are all things that we consider in taking cases, at least for us. We also, from just a general standpoint is that you have to, as a family member or a representative of the resident, the daughter, the son, the grandson, granddaughter, niece, nephew, whatever it is, this is a long, arduous process, and you yourself want to get along with your attorney. So some of the things we’re looking at are the family bonds between the family and the resident themselves and how they’re going to relate to a jury. There are instances that drive case value where if the resident has one family member and they live in Wyoming and the family member is in Georgia and no one else comes and visits them, there’s a cause of action in Georgia called wrongful death if it’s a death case where the value of life is through the eyes of the family member. And if there are no family members that care, we certainly evaluate that when the case comes in.
Smith: And it’s important to note that what we are attempting to do is use the tool of a jury trial given to us by the Seventh Amendment of the U.S. Constitution and I think paragraph 11 of the Georgia Constitution to try to make change in this industry. It is not our goal, our task or a requirement of us to take every single case. And as a matter of fact, it would be impossible for us to do this, because what you have to remember is that in order to prove breach, causation and damages, we have to hire experts, and experts are expensive. We have to use evidence. We have to get medical records. These cases can easily run up to 10,000-15,000 pre-suit.
Schenk: Oh, minimum.
Smith: Minimum, just hiring experts alone. And then depositions of experts are expensive.
Schenk: So you’re out of pocket for a verdict of $100,000-$200,000.
Smith: So yes. So what you have to remember is when you come to a plaintiff’s lawyer who is paid from a contingency of what we get from a settlement or a verdict, that you are asking them to loan you money to pursue a case. So you don’t go to them and go, “Hey guys, I’d like to pursue a case. They breached their duty in taking care of my mother, and because of that, it caused a stage one bedsore, which they healed immediately. She’s fine now. I’d like to pursue it.” Well I can’t lend you, just as a business person, I can’t lend you $20,000 to $30,000 right off the bat just to pursue that case, and I would not allow you to do that either, even if you said, “Well I’ll pay for all this. I just need an attorney to pursue it.” It’s not worth it.
Schenk: It’s not worth it not in the sense of your family member has been done.
Smith: And there are things that you can do, but it is not within our purview to do it. Like I said, even if you rear-end somebody and it causes no damage doesn’t mean you get away scot-free. You can still be cited by the police. So if the nursing home, long-term care facility has done something wrong, even if it’s not strong enough to validate hiring people to pursue a lawsuit, you can still notify the Department of Community Health. But if your end goal is, “Well they’re going to pay for this and I want them to pay $1 million,” it has to be a claim that actually has monetary value.
Schenk: Yeah, the civil justice system can hear, otherwise, like Will said, in a situation where it’s a close call, then your best bet is the long-term care ombudsman in your particular state or whatever your healthcare facility regulation department is in your state. In the state of Georgia, it’s the Department of Community Health. So those are the avenues.
Sometimes we hear, “Oh, so there’s nothing I can do?” Yes, absolutely, there’s everything can do. Call the cops. Call the Department of Community Health. Call the ombudsman. It’s just that the issue is these cases aren’t necessarily something an attorney can take. You’ve got to think of it as a tool belt. Sometimes you need a screwdriver. Sometimes you need a hammer. Sometimes you need, I don’t know, crescent wrench?
Smith: Allen wrench.
Schenk: Allen wrench.
Smith: Monkey wrench.
Schenk: Monkey wrench.
Schenk: Well I think that we’ve said our spiel. I mean, yeah, that’s why we’ve made it to episode 99.
Smith: And at the end of the day, we’re very passionate about this and we want to sue these people, but we’re also responsible attorneys who understand how the system works, and we just can’t be out there filing lawsuits left and right, so we have to have that three-legged stool.
Schenk: Yeah, the three-legged stool is the most important. Episode 99, man, I can’t believe it.
Schenk: What’s more important – 99 or 100?
Smith: I think 100. I’ve only brought it up on this one because this is the last one before the milestone of the 100th episode.
Schenk: Yeah, I’m trying to look and see, because the first episode that we’re back in January of 2019, that’ll be Monday, January 7th, so enjoy your two weeks off. Make sure you binge watch all 98 episodes of this, plus this one. Watch it again for the first time. And come back with bells on on Monday, January 7th and we will see guys in 2019.
Smith: See you then.