How the Nursing Home Defends Cases?
Ever wonder what defenses nursing homes use when they are accused of neglect? Facilities often rely on predictable arguments to avoid responsibility and reduce payouts. Understanding these tactics is the first step in overcoming them. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes guest Jeff Braintwain to discuss the most common defense strategies used in nursing home litigation.
Schenk:
How is a nursing home case defended? Who controls the strategy? How is the case evaluated? And what can weaken a plaintiff’s claim before trial from the nursing home’s perspective? I’m attorney Rob Schenk. This is the Justice for Residents podcast, and this week I’m talking to attorney Jeff Braintwain, who spent nearly 25 years defending medical providers before switching sides and representing those who have been injured or killed in nursing homes.
Stick around.
Intro
Schenk:
That was cool. I think that, what is that called, Gene? The Manila Sound? That’s the name of that jingle. It might be the Manila Sound, but it’s the Manila Sound of a Ford truck commercial. We’re still in the same truck commercial dilemma, so let’s, maybe we’ll, maybe it’ll be better next week. We’ll see.
Excellent episode this week, folks. We are having a fantastic conversation with Jeff Braintwain about the defense perspective in these cases. Normally, at this point in the show, I would direct you to do homework, like maybe some other episodes that you might wanna listen to in congruence with this particular episode.
But this is actually the first time I’ve ever talked to someone specifically for the nursing home’s perspective on something. Usually in the Justice for Residents podcast, we are more focused on the resident side. So even though Jeff Braintwain is now a plaintiff’s attorney this is the first time I’m really having a conversation about cases from the perspective of the nursing home.
Guest Intro
Schenk:
So no homework this week, folks. I guess it’s kinda like how kids are today. They don’t get homework anymore. So now we’re gonna get into the steak frites of the episode. Jeff Braintwain is a lawyer with more than 25 years of courtroom experience. For nearly 24 years, he defended physicians, hospitals, and nursing homes in malpractice and negligence cases.
In early 2025, Jeff founded his own law firm and now represents residents, patients, and families who have been injured or killed as a result of nursing home negligence. Since switching, Jeff has had the opportunity to try several cases to verdict as an integral part of trial teams achieving justice for those who have been injured.
What Happens After a Demand Letter Is Sent?
Schenk:
I think for me, the first question is, once there is either a demand sent by, by one of us, a plaintiff’s attorney, to a nursing home, or a lawsuit is filed… Walk us through what happens next from the nursing home side.
Braintwain:
Yeah. So it depends a little bit on what the organization is. Typically a demand, again, depending on the organization and whether they are self-insured or have an outside insurance carrier, typically your demand is going to be for the purpose of, frankly, scheduling a mediation with some of the larger organizations.
For some of the ones that have outside insurance, maybe, smaller companies or more mom-and-pop, that’s typically going to go to the carrier, and then the results thereafter, in my experience, depend largely upon the carrier and the specific claims handler for that carrier.
And so it varies, but generally, with some of the larger organizations, what you’re realistically looking at is a demand resulting in the scheduling of a mediation and little else. I have never, I’ve never worked on the defense side. I know a lot of plaintiffs’ attorneys start on the defense side because y’all are typically much smarter than I am.
For an overview of legal claims involving neglect and mistreatment in long-term care settings, see Justia Guide to Nursing Home Abuse and Negligence.
Who Is Making Defense Decisions?
Schenk:
But walk me through literally who’s looking at these documents? Does it, does the nursing home immediately pass it to the attorney, or does it get passed to the adjuster first? Who, literally who’s talking to who?
Braintwain:
Yeah. And I think that’s changed over the years, and I don’t know about the smarter than part.
You sell yourself short. So let’s start there. It largely depends and I know I just gave this answer, but it de- it depends an awful lot on who the organization is, what their level of sophistication is, whether they have in their in-house team anyone who does that evaluation, or h- how much do they rely on the outside attorney to do that workup?
And it just runs the gamut. You might have a number of companies who, for whatever reason, try to do an awful lot of that stuff in-house, and then it’s more of a collaboration with the attorney about, what do you think value ranges are? That’s going to happen in every case where the attorney who’s been retained for that case really- Sets a range based on their experience of what this case could resolve for, and that takes an awful lot of factors into account.
But, again, back to the mom-and-pop issue, if you’ve got a smaller company, maybe less sophisticated, or a carrier who really requires the attorney to do an extensive report, then that’s going to be attorney driven in terms of really digging into the records and the materials and trying to get a handle on exactly what happened.
How Is the File Typically Worked Up?
Schenk:
So tell me then w- with respect to a report and let’s focus the question on a larger organization. So you have an attorney that has the file, and their job is to make a report. Correct. What, what d- what does that mean? Does that mean that they’re going to the facility and interviewing people?
Does it mean they’re just looking at medical records, talking to experts?
Braintwain:
Yes, ideally all those things. In, in, in practice, a number of those things don’t happen. And so the vast majority of maybe let’s take a step back. So let’s say, y- you’ve got a case that you’ve decided to pursue, and you put together early in the process or, now I’ve joined you, you put together early in the process what you feel like is a full and fair, honest demand.
I know you do that because we’ve litigated against each other and present the case. So- When that happens, and it’s someone like you or someone who really knows what they’re doing, the vast majority of the time, that’s going to result in getting the records and digging through them and making sure that what you say there is in fact true.
And even if it is true, then are there any, from the defense perspective, mitigating factors? And we can get into some of the in, in hypothetical format, but let’s say you’re pursuing a case with a terrible sacral wound. That’s a large part of what we do. And so if you have, for instance, your demand that talks about how you’ve got a stage three wound that, that progresses to stage four and becomes, unstageable, and there’s necrotic tissue and a foul odor, and, it progresses to osteomyelitis, and here’s our demand.
Information on recognizing, preventing, and reporting elder mistreatment is available through National Institute on Aging: Elder Abuse Resources.
That wouldn’t be an uncommon scenario in, in, in what we do in, in, in this business, unfortunately. But let’s say, once the defense starts digging into that, it turns out that there was some type of aspiration event that resulted in a hospital admission for seven to 10 days with intubation required and maybe during that hospital admission that kind of is part of the overall nursing home picture, things got really worse and weren’t being cared for.
So that’s the type of thing a defense lawyer would be expected to discover And it might be something that, for our purposes on this side now, we don’t view as really mattering because the wound developed at the facility, it progressed at the facility, it wasn’t adequately care planned at the facility, and though it did deteriorate in the hospital when they came back, they still weren’t care planning for it and not taking care of it.
But that’s the type of thing just by way of a hypothetical you, you might see, and should see it, in a good report. Tell me about the relationship, the typical relationship, and this might not have been your experience or not, but between the individuals that you’re representing theoretically at the nursing home versus the adjuster, like how does that, how do you…
What Is the Relationship Like Between Attorney/Adjuster/NH?
Schenk:
Because sometimes for me it’s d- and for you now, it’s difficult enough dealing with a son or a daughter, siblings of somebody that’s deceased or the sons and daughters of somebody that’s deceased. They don’t get along. Maybe one of them’s in Ohio, maybe one of them’s in jail and that interplay versus the interplay between individuals that are not legal savvy that you’re representing at the facility and the assurance, insurance adjuster who may or may not be holding things back from you, walk, talk me about, talk to me a- about that relationship.
Braintwain:
It can be a complicated relationship on the defense side of the ball because assuming you have an individually named person or the individual company, the lawyer’s duty is to that person, it’s to that company, it’s not to the carrier. And so it becomes it, there are times where those interests can compete and not necessarily be at odds, but just the way things work in the real world, the vast majority of your contact inevitably is with the carrier, and it’s not with, for instance, the director of nursing.
It’s not typically with the administrator. And if you have, for instance, a larger company, they have all kinds of people in-house on a litigation team who are, at least in the early stages of litigation your primary point of contact because you’re trying to get all the records that are centrally housed in a corporate conglomerate, and you’re trying to determine things that, that frankly facility level people don’t typically know, which is, how do I get copies of the training materials?
But, what are the policies and procedures, and what was applicable at this time? And that inevitably goes through corporate. So you really have… And by corporate, people who are employed by the home in a risk management role or in a litigation support role. So you’re really dealing with three different people.
You have a carrier, you have the corporate people who are working there in litigation management, and then you have the person on the ground whose care has been called into question, and it’s complicated.
Federal initiatives and resources dedicated to protecting older adults can be found at U.S. Department of Justice Elder Justice Initiative.
Schenk:
And again, from somebody that, that doesn’t, that, that ha- never worked defense, what is something that, that I don’t know, that if I did know, I would give you s- I would give the normal defense attorney more grace?
What is something that grinds my gears on this side that it may or may not be the attorney’s, the defense attorney’s fault?
Braintwain:
The number one answer to that is non-responsiveness. And having changed sides and doing what you do now, it is infuriating. I can’t think of a better word without cursing.
But it is infuriating to try to be, t- trying to be in a situation where you’ve got to push your case, and we’re trying to represent our clients, and it, y- you can’t seem to get the time of day out of the other side, whether it’s, “Hey, where are we with this discovery? I gave you an extension. You promised X, Y, and Z.
I’ve gotta get moving here. The discovery period is drawing short,” a- and it’s radio silence. So from my perspective from all the years of defense work- There are a number of reasons why if you know that person and you trust that person and you know they generally tend to operate from a good faith perspective, they are so covered up with all kinds of stuff that they’re not intentionally ignoring you.
Now of course we could, and we won’t do it here, but we could all name people who are just, you know, that way. And you all know and there’s some companies and some people for whom it is a strategy to draw things out. There are others where there’s so much volume that y- you literally are not going to get a response unless there’s a court consequence for not responding, and I don’t think it’s intentional or personal.
I think they’re, I think they’re inundated. But it nevertheless is infuriating when we’re trying to do the best for our clients to push things forward and have something other than, “Yeah we’re waiting on X, Y, and Z” when we give our clients an update or they call.
Why Do Plaintiffs Sometimes Unilaterally Notice Depositions?
Schenk:
Let me flip the script then. What is something that perhaps grinded your gears as a defense attorney, but now you see the other side of it as the plaintiff’s attorney?
Braintwain:
The obvious answer is to unilaterally notice depositions.
Schenk:
Did people do that?
Braintwain:
Yeah, and I have done it since switching recently. And it tends to go over… When I was a defense attorney, and for instance, I don’t think you ever did this to me,
Schenk:
I don’t, I’m trying to think. I know that I’ve done it because I’m an a-hole, but I haven’t done it in a long time, but go ahead. Yeah. Yeah, so- and I wouldn’t just do it.
I, if I’ve reached out to you four times, then I’m, and I don’t hear anything, I’m gonna unilaterally set it. But I don’t, in my mind, I don’t count that as a unilateral setting. You set it because you didn’t respond to me.
Braintwain:
Yeah, and so there’s the semantics part of it and that’s the context in which I’ve done it now on this side.
Schenk:
Yeah.
Braintwain:
But I’m not suggesting that you throw deposition notices out there with your complaint or as soon as discovery responses come in, you just draft something up and send it. It is, I think, in the context of, “Look I’ve sent you a couple emails. We all have each other’s cell phone numbers.
There’s even been a text. I’m not getting a response,” or it’s been, you’ve kicked it to, frankly, a lower level associate who’s not being responsive or doesn’t have the, whether it’s the bandwidth or the power to get things scheduled, and I’m gonna notice it. That’s what I’m talking about.
Nevertheless, as the lead defense attorney in a case where that occurs, it chapped my rear end. Not because- I’m mad at the lawyer who did it, but because it inevitably comes up at a time where, again, my own bandwidth was such that this became very difficult to deal with. And, there’s frankly a significant, at least there was for me, a significant feeling of chagrin that my buddy Rob had to do that to me- and feel poorly about that.
But I do think it is a way that in those circumstances is not some sort of gamesmanship tactic gotcha thing, but is instead a way to cut through the noise. And so I have a different perspective on it now than I did, a couple of years ago when I was on the receiving end of it.
So much so that, like I just mentioned, I have done it myself and I send that over typically with some sort of communication that says, “I have gone ahead and set these because I haven’t heard from you. If these dates don’t work, let me know and give me alternative dates.” And inevitably it gets done.
So at least that’s what I’ve seen.
An overview of case evaluation, investigation, and litigation strategy is provided in How Schenk Smith Approaches Nursing Home Cases.
Question of the Week
Schenk:
All right, we interrupt this interview for the nursing home regulation question of the week. This week, folks, the difficulty level I’m gonna say is fairly easy. This is an easy one, so the rewards are proportionate to how difficult the question is. So this week, you get to biggie size fries.
That’s your treat for getting… Only if you get it right. If you get it right, biggie size your treat. For me, that means probably ordering two, two fries. Two super sized fries for me. That’s the biggie sizing it for me
Under 42 CFR 483.15(2), the nursing home cannot require as a condition for admission that the resident, A, waive the nursing home’s liability for loss of personal items, B, sign admission documents, or C, provide basic information
And that answer is A, the admission agreement that the resident signs cannot require that the resident waive the nurse ho- the nursing home’s liability for loss of personal items.
How Is Preparing a Defense Witness Different from Preparing a Plaintiff?
Schenk:
I imagine that as a defense attorney, when we’re talking, speaking of depositions, preparing perhaps a DON or administrator or an RN for a deposition, do you find that it’s similar to preparing your own, now your i- an injured resident or an injured family member’s resident for deposition? Are there similarities or?
Braintwain:
I think it’s totally different. And the reason is on this side, there is very little that one of our clients could say that is particularly impactful on the case from a legal motion perspective. And so I can’t conceive of s- of something a plaintiff might blurt out, for instance, that would result in the dismissal of a case.
Obviously we could say something that would work, but that’s not going to happen. Conversely, on the other side, it is very common with… In fact, I’m not sure that there’s ever been a deposition that I’ve handled taken by a plaintiff’s lawyer who works in this space and knows what they’re doing, where there is not some admission of a breach of the standard of care.
There just is, which is part of the reason why Part of the reason why, a- and I think there’s been more of it in the last decade or so there, there’s a problem with care, and we could probably talk for another however many hours about why that is. But from the defense lawyer perspective, depositions typically mean you are going to be writing reports to someone who’s going to be upset that a piece of the defense has been breached, has been cracked.
Which is frankly why plaintiff’s attorneys who practice in this space and want to achieve maximum value for their clients will push for and take depositions. It changes the value of the case. Tell me about how having switched after so many years, how… What are some things that you do that the other attorneys weren’t doing?
For insight into the factors that may lead a nursing home case to proceed to litigation, refer to Why Nursing Home Cases Go to Court.
Where Do Plaintiffs Go Wrong?
Schenk:
And we’ll narrow this down. I know you mentioned dep- taking, pushing depositions. That’s that… We’ll, let’s get back to that, but let’s take it to the demand. You ear- way earlier in the episode, you talked about how a good faith demand is a good starting point from a plaintiff’s attorney, things like that.
What are, what, how are you using your knowledge to do the demand better than the next person who doesn’t know anything about defense work? Yeah. I think there’s two ways and maybe I’ll come up with another one. But one of the things that I think someone who’s really seen the other side and seen the inside, the good, the bad, and the ugly from the defense perspective, I would say, hopefully without conceit that I know what in a demand gets attention perhaps more so than someone who’s never seen it from that side.
Braintwain:
And take two demands just for the sake of the argument. One of them is 15 pages long and has everything under the sun in there about, and this wasn’t called to someone or it looks like their glucose check was missed or whatever, versus the demand… and let’s say glucose and, diabetes care has nothing whatsoever to do with the case except to the extent it bears on skin integrity.
But it’s not a failure to manage blood sugar cases. But if you see a demand that’s 15 pages long that has every little bit of everything in it it turns into white noise. In my opinion. So what I try to do and what I encourage people to do is give me your elevator speech about this case on demand.
Options for resolving disputes without a trial are discussed in Settling a Nursing Home Abuse Case Outside of Court.
It, give me the cocktail party, we just sat down at dinner and, “Hey, Rob, you wouldn’t believe this case I’m working on.” Boom boom. It’s a couple of pages. It’s more than a couple, but it’s less than six. What really matters. That is going to get attention, I believe, from a claims handler point of view, from an attorney point of view, not necessarily just because of the content, but because, here I’ve got this from Rob, and it goes right to the meat of the matter, and he knows what he’s doing.
And this is going to be a difficult case to litigate, and it’s only gonna get worse the longer we litigate it. Interesting. If I see something that is 15, 20 pages long I think I’ve got someone who doesn’t know the forest for the trees and probably doesn’t know what they’re doing, which, or at least really know what they’re doing. And therefore, when an adjuster or a corporate person asks me, “Hey, what do you think we can get this done for?” It’s g- it’s going to be, Rob minus X or, some of the people we know who work in this space it’s going to be a minus.
And, the average value you may- might achieve on a case- I would think is higher than people who moonlight. And that’s the value I think someone experienced brings to the case. So bra- At least from the demand point of view.
For a discussion of settlement timelines and factors that may affect resolution, see How Long Does a Nursing Home Case Take to Settle?.
Should Plaintiff Attorneys Hold Back Part of Their Roadmap?
Schenk:
So basically from what I understand you to say is get to the brass tacks.
The brass tacks is what matters, because if you want to know extra stuff that’s superfluous, you can find it out yourself.
Braintwain:
Yeah. Absolutely. But, now on this side, I would want to hold back some of those other things that while they might be standard of care violations or a breach of the OBRA regs or, some type of failure to adhere to the the Patient Bill of Rights in Georgia, all of which are important, but I don’t want to…
What happens if resolution fails and we’re in the deposition, and we’re in the deposition realm? I don’t want to give away my entire roadmap on this side. But I sure did enjoy getting the entire roadmap on the other side, because it makes prepping that witness who’s nervous, who’s a CNA, who’s a LPN, it- all the way up to the unit manager or the DON, assistant DON, it makes it easier because I’ve got everything right there.
It’s, you’ve already written it.
The mediation process and its role in resolving nursing home disputes are explored in Episode 74: How Does Mediation Work in Georgia Nursing Home Abuse Cases?.
Schenk:
That’s interesting because perhaps I need to rethink my strategy, Jeff, because I do a hybrid. I give you, in my demands, I’ll give you the first three quarters of a page. That’s, it’s, you could understand the case by reading the first page, and then you get the 25 pages of here’s the staffing data for that day or that month.
Here’s your previous violations that, that, that affect this particular case, all that kind of stuff. But I guess from what I understand you to say perhaps some of that stuff needs to be held back. I think so, and I think that’s where e- experience comes to bear.
Braintwain:
Yeah for instance you’ve had umpteen hundreds of these cases as well. You know, depending on who you’re dealing with, is this likely to resolve at mediation or maybe, close in time to a failed mediation because these folks know what they’re doing? In which case you might give them more.
Is this someone who, you know- We know from this side of the ball tends to go all the way to a trial calendar, and then you, you- they try to do a courthouse step settlement. I’m not giving away the roadmap then because I’m going to be there inevitably, most likely. And to me it’s a judgment call.
But I don’t think that 25-page, 15-page, whatever they are, demands to get flyspecked in the way that we spend all the time that we would spend to put it together. And to me, the great value we bring to our clients is knowing all that stuff and using it at the appropriate time.
Sometimes the demand is that time, and in my experience, most of the time it’s not.
Unique considerations when litigating cases in smaller communities are discussed in How to Handle Nursing Home Cases in Rural Communities.
Should Cases Be Mediated Before Discovery?
Schenk:
What is your position with respect to mediating cases right off the bat? Demand and then mediate before any discovery.
Braintwain:
I hate to give you the answer again that it depends, but to me, it depends on the case.
And depends in large part, now that I’ve seen some of this side, on what the client’s needs are. To me it matters an awful lot about whether we have a resident who’s still alive. Unfortunately, most of the time, at least I think so, most of the time we have residents who have passed largely because of what has happened.
That’s part of the case. But if you have someone, and this occurs, who is still alive who needs care, then you might wanna go more quickly and try to get them in a situation where they can get the care they need for the time they have left. That’s number one. Number two, I would do it as a plaintiff, what I would call really the run-of-the-mill type case.
I don’t think there’s a reason not to do that and at least see what we’re arguing about to the extent we are if we get into litigation. Because, now that I see the balance sheet on, on this side and, that in the event of a recovery, those expenses come out of compensation.
So is it worthwhile to, to our client, to incur those expenses? Maybe and maybe not. There’s no reason not to find out, particularly if you have a good relationship with the other side. I do think there are those cases that are so egregious and frankly, salacious that an early mediation is not going to be particularly beneficial to our side of the fence.
And instead, where you would wanna be is a whole demand with a timeline that you stand on, and it’s either a tender or a trial. And those cases do exist. It’s a bit different from the defense point of view. From the defense point of view, I welcomed an early mediation because- and planning the s- the strategy of how to defend a case, all it’s going to do is give me more information and therefore put me in a better position to defend the case if it doesn’t resolve, which gets us back to the content of the demand question.
And there’s additional judgment calls about what is shared at mediation if you get the sense that we’re going to be, we’re going to be in litigation for a while because this isn’t gonna work.
Practical approaches to witness preparation and testimony are covered in Deposition Strategies in Nursing Home Cases.
Schenk:
Jeff, we very much appreciate you coming on the show and sharing your knowledge. And I’m not gonna be one of those people that are, like, congratulating you too, joining the good side of the force or anything like that.
I’m not a Kool-Aid drinker. I think that everybody deserves representation regardless of who you are or what company you are. But I g- I think it’s awesome that you’re with us now, though. I can say that.
Braintwain:
It’s one of those things that you hear often, when we’re out and meet each other and people switch and you say, “I wish I’d, I wish I’d done it years ago.”
I wish I’d done it years ago, but had I done that, I wouldn’t have, I wouldn’t have been in the position where I felt as strongly about this side as I do now. So I’m grateful for all the experience I had on the other side. I’m grateful to be part of this team now.
Schenk:
Very well said. Thank you so much, Jeff.
Braintwain:
Yeah. Thanks, Rob.
Schenk:
Folks, I hope that you enjoyed the content of this episode. New episodes of the Nursing Home Abuse Podcast come out every single Monday. Be sure to like and subscribe wherever you get your podcasts from. If you’re watching this on YouTube, please leave a comment, subscribe there, ’cause that helps the algorithm.
And if you have an idea for a topic that you would like for me to talk about, please let me know. If you have an idea for a guest that you would like for me to talk to, please let me know that as well. And with that, folks, we’ll see you next time.