How to Pursue Dignity Cases Against Nursing Homes
Every nursing home resident deserves to be treated with dignity and respect. When a resident’s dignity is violated, families may have questions about their legal options and how to hold a nursing home accountable. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes James Morgan to discuss pursuing dignity cases against nursing homes and protecting residents’ rights.
Schenk:
A broken bone is pretty easy to spot. A broken sense of dignity, not so much. I’m attorney Rob Schenk. This is the Justice for Residents podcast, and this week I’m talking to James Morgan, a nursing home trial lawyer who has recovered hundreds of millions of dollars for residents and families. We’re discussing what dignity means in long-term care, when a dignity violation becomes an actionable claim, and why respect in a nursing home isn’t just a courtesy, it is a legal obligation.
Stick around
I dig that one again, another, another week off, I think the jingle, what is that, cowboy western? It’s cowboy western is the jingle. I think that’s pretty fitting. We have James Morgan, who’s out in California. That’s western. It’s probably about as western as you can get. This week we’re talking about dignity claims, bringing a cause of action, a claim, for a violation of a resident’s dignity.
If you want extra homework for this episode, folks, I would recommend checking out a few of our previous episodes that dealt with respect and dignity in nursing homes. And I would say go back and check out episode 259, where we talked about culture change with Kieran Sahota, and then episode 167, where we talked about culture change again with Carmen Bowman, where in both those instances we really talk about what it means to have a culture that respects people, humans, and human dignity in a long-term care setting. So that’s your homework for this week before we get into the topic today.
Guest Intro
Schenk:
And now for the hamburger patties and mashed potatoes of the episode, James Morgan is a founding partner of Lanzone Morgan and one of the nation’s most respected nursing home abuse attorneys. For more than 25 years, he has represented victims of nursing home abuse and neglect, helping secure hundreds of millions of dollars in settlements and verdicts for residents and their families.
For videos and educational discussions about nursing home abuse litigation and resident rights, visit Lanzone Morgan, LLP on YouTube.
What Does Dignity Mean in a Nursing Home Setting?
Schenk:
A past president of the National Organization Dedicated to Elder Abuse Litigation, James continues to advocate for greater accountability and safety in long-term care. So James, first question is this, what does dignity mean in a nursing home setting?
Morgan:
Yeah, great question. In a nursing home setting, dignity is the same thing that you would think of as dignity if you were living at home and were a perfectly healthy person, but it’s the things you don’t think about when you’re living at home.
So let me give you an example. When you’re at home and you’re hungry or thirsty, you get up and go get something to eat or go get a glass of water. When you’re in a nursing home, you may not have that luxury. You may be bedbound and may be completely dependent on somebody else to bring you something to eat or something to drink.
So if you’re in a nursing home bed and you can’t get up and get something yourself, you have to hit a call light, and you have to hope that somebody answers that call light and brings you something to eat or to drink. And if you don’t get that, that’s an insult to your dignity. Okay? Let me give you another example that I hear a lot.
Rob, if you don’t wanna take a shower for three weeks, no problem. That’s your business, right? That’s your choice. If you wanna take a shower, you go take a shower. If, but if you’re bedbound in a nursing home and you need a shower, which, but they won’t give you one, that’s a dignity issue.
And that is especially important because, in a nursing home, you’re still a person, and I can give you an example. We had a case where a lady had C. diff, she had constant diarrhea, she was soiling her diapers and her sheets, and her daughter came in and said, “Can we give my mom a bath?
It’s Friday night, let’s give my mom a bath.” “Oh, your mom’s not due for a bath until Tuesday.” Wait a minute. My mom’s a person. She’s filthy, she needs a bath, she wants to be cleaned up. She doesn’t wanna sit here in dirty sheets and dirty diapers for prolonged periods of time, especially for three or four days before she’s on schedule for a bath again, okay?
She needs to be cleaned up. That’s dignity. So it’s very simple things that we take for granted every day, but the people in the nursing home don’t take these for granted. These are things they’re completely dependent upon others for making happen for them. Eating, drinking, bathing, washing their hair, brushing their teeth.
If you wanna brush your teeth, you go brush your teeth, okay? But some of these people in a nursing home, they need help brushing their teeth, okay? And if somebody doesn’t do that for them, that’s an insult to their dignity. So a lot of the dignity things in a nursing home resident are things that we take for granted as functioning adults, but, we don’t even think about the fact that maybe somebody else needs help with this, and they’re not getting it.
That’s, it’s just more of a microscope, our daily things that we do and we desire, but we can do for ourselves, but the people in the nursing home can’t.
Recent research provides valuable insight on the impact of preventive health measures in elderly populations and the importance of preserving dignity and quality of life in long-term care.
When Can a Resident Say That Their Dignity Was Violated?
Schenk:
When can a resident say that their dignity has been violated, and that necessarily means that there is justification for the civil justice system, that there is a cause of action for it? So it’s one thing to say that a resident didn’t get asked for a drink of water and didn’t get it perhaps that hour, that shift, or that day. When does that, in your view, become an actionable claim?
Morgan:
Yeah, very good question. So as attorneys, when we’re listening to a caller, we’re inherently listening for big injuries.
We’re listening to terrible bedsores, stage four bedsores. We’re listening for a fall fracture or a subdural hematoma that led to death. We’re listening for the big items. But, sometimes you talk to a caller and there, there’s not that, but they tell you, “Hey, I’m going there every day, and every day I get there, they’re sitting in their urine and feces, and it takes two hours for somebody to come and clean them.”
In these cases, I really need somebody who can testify about the dignity issues. So as a lot of times the victims themselves can’t testify, they can’t articulate what’s happening. They don’t remember what’s happening, okay? I really need a family member or someone who’s going into the nursing home and seeing what’s going on, who can testify that the water is always out of reach, the call light is always out of reach.
They’re always sitting in their urine and feces every time I go in, and it takes a long time to get them changed. I need that type of thing, that type of testimony from somebody in order to have a claim. And let me give you a couple other examples because I can be talking to somebody on the phone without major injuries, but I’m hearing the dignity stuff, and it’s compelling and then they send me a picture, and they send me a picture of their mother’s, matted hair that looks like it hasn’t been washed in a, weeks.
Recognizing warning signs early can help protect vulnerable residents, making it important to understand the signs of nursing home abuse.
Their teeth are filthy. They haven’t been getting proper oral care, or probably not… Nobody’s probably brushing their teeth. When I see pictures like that, that really gets my attention, okay? Because yeah, I may not have a broken bone or a bedsore, but when I see this picture of this elderly woman whose teeth are filthy and her hair is matted, and then I see a picture of this same woman of what she really looks like when she’s taken care of, and I think, that’s disgusting.
That should not happen. And so when I can get somebody who can testify about what’s happening and hopefully maybe take some pictures of what’s going on, that gets my attention, and that makes me think, “You know what? Maybe I don’t need a fractured femur or a bedsore.” If this person is articulate and compelling and can tell the story, that’s when I start thinking, “Maybe I’ll do this dignity case.”
Follow Lanzone Morgan, LLP on Facebook for legal updates and information related to elder abuse and nursing home cases.
Can You Bring a Dignity Claim Without a Major Physical Injury?
Schenk:
That’s interesting, ’cause it seems to me that in the attorneys that I talk to, and in my own experience, the dignity and the residents’ rights claims ride along with professional negligence claims. And if there is no professional negligence claim with an injury, then we don’t bring the dignity claim.
But it sounds to me like if you’ve got the right client, if you’ve got the right evidence, then the dignity claim is your claim. That’s all you need
Morgan:
That’s exactly right. And I’ll tell you I have a firm, we have seven attorneys here and I’ll tell you how I started doing these dignity claims as I thought, I hate turning down these people who have these sad stories and they can articulate them.
I hate turning them down because I don’t have a fractured hip, or I don’t have a stage four bedsore. But I get it. I understand what they’re telling me. I believe them. I hate that, I can’t do anything for them. So the way I started it is I started talking to my younger attorneys and saying, “Hey, you wanna get some experience in the courtroom?
I’ve got just the case for you.” Okay? It’s not a fractured hip. It’s not a bedsore. I don’t need to, we’re not gonna have to hire three experts. We’re going to rely on the testimony of the husband or the wife or the child, and we’re gonna pursue a dignity claim, and we’re going to see what a jury thinks about somebody’s dignity and what the value of somebody’s dignity is.
And so the younger attorneys can cut their teeth on those cases, and that’s how we started doing them. Okay? And we felt really good about it because we felt okay, so some of these people have legitimate complaints and we can help them. We don’t have to turn them down and say, “Hey, yeah, I’m sorry that’s happening, but there’s nothing I can do about it because I don’t have a broken leg.”
And that’s the way our firm started doing these cases, and I can tell you we’ve been very successful with those cases, even when we don’t have the big injury that personal injury attorneys are looking for.
Emerging findings further examine on the impact of preventive health measures in elderly populations and how person-centered practices can influence the experiences of older residents.
Do You Need Expert Testimony to Prove a Dignity Claim?
Schenk:
Tell me, James, on the, a case that you’ve just described, which is purely dignity, one in which a, an associate on your team is gonna handle, is it the case that you’re relying solely on the records and your, in your witness, the family member?
Or do, in a case like that, are you taking some depos? Are you doing some, some extra work to prove that case?
Morgan:
It’s a mix, okay? Yes, we take some depositions sometimes, especially if it’s a, if it’s something where the charting is terrible and, but, maybe they’re not giving the medication regularly or they’re missing 50% of the medication doses that they’re supposed to be giving.
But I can’t tie a medical, physical injury to that missed medication, okay? But I can show lots of missed medication, and I can show lots of times that they didn’t turn and reposition them even though there’s not a terrible bed sore. I like to use the records if we can to show violations of…
In California, we have a bill of rights, patients’ bill of rights. We show violations of the bill of rights. So we do use the records. We may or may not get an expert depending on… I definitely probably would not get a medical doctor if I didn’t have a big injury to tie to the poor care. So I do rely on the records.
We may get a nurse to testify about, “Hey, I’m a nurse. We’re supposed to follow doctor orders, and we’re supposed to chart, and they didn’t do this 500 times,” but also we rely I would say equally as much on the testimony of the family member or the person who visited the most to talk about, the dirty diapers, the matted hair, the, the poor oral hygiene because the experts can’t really talk about that because the staff doesn’t document, we didn’t wash their hair today or, we didn’t brush their teeth today.
They may document that they do that, but it really takes a family member to come in and say, “This is what I just, I saw every day.” So it’s a combination of both.
Care practices and resident experiences are explored on the impact of preventive health measures in elderly populations, including factors that can affect dignity and well-being.
Question of the Week
Schenk:
We interrupt this conversation to bring you the Nursing Home Regulation Question of the Week. This week, the difficulty level, folks, is easy.
If you get this right, then when you go unconscious this afternoon for that hour, it wasn’t a nap. It was a time for meditation and deep thinking about the rest of your day
Under 42 CFR 483.35c3, unless a waiver is granted, the facility must have at least one registered nurse on-site for direct care, A, eight hours per day, Monday through Friday, B, eight hours per day, seven days per week, or C, twenty-four hours per day, seven days a week
And that answer clearly is C. The nursing home must have a registered nurse on site for direct care twenty-four hours a day, seven days per week.
What Standard Is Used to Determine Whether a Dignity Violation Occurred?
Schenk:
And this might be getting a little bit too much in the weeds, but in my mind, with a negligence claim, I have to show that there is a breach of the standard of care, and we can have a fight with the nursing home about what the standard of care means in a particular situation. With a dignity violation, I didn’t get water when I asked for it at 7:00.
They didn’t, they did not clean me after an incident, a toileting incident for three hours or whatever. How are you arguing that there has been a violation with respect to that… And I’m having a hard time conveying this, but that window from perhaps there’s an infraction to, to now in fact there is a violation. What’s the standard that you’re arguing?
Morgan:
Yeah. Okay, so you’re absolutely right. When we have a negligence claim or an elder abuse claim, we have to show breach of standard of care, we have to show causation to an injury. Okay? We have to show those three steps. Okay? In a dignity claim, it’s different.
Okay? And by the way, in a negligence claim or elder abuse claim, because we have to show duty and breach and causation and damages, it’s… A lot of times it ends up our expert versus their expert, and it’s expert versus expert testifying against each other and we see who the jury believes.
Okay? Dignity claims are different. Okay? I don’t need an expert to prove a dignity claim. Okay? I don’t need an expert to tell me that when somebody has soiled themselves in a sheet that they ought to be… or in their diaper, that they ought to be changed soon, and that they shouldn’t sit like that for three hours, and if somebody’s filthy, they need a shower.
Okay? I don’t need a, I don’t need an expert to tell me that or to tell the judge that or the jury that. Okay? The jury, this is a common sense standard that a jury can appreciate and make a decision on whether that, did this happen and is that a violation of their dignity? Okay? I don’t need an expert to testify to that.
To better understand when mistreatment may cross a legal or ethical line, families can review the definition of elder abuse.
And I like that because when I’m… And it goes back to me taking that initial phone call. When I’m listening to that caller and they’re telling me this terrible story, I’m like, I’m a human being listening to that. Okay? I’m a lawyer, so I’m listening to causation and damages and injuries, but I’m also a person listening to another person telling me this terrible story about what their parents are going through.
Okay? And then if… and when I listen to that as a person, I’m thinking, man If I was sitting on a jury, I wouldn’t like that very much. And, I would want to compensate that person for having to sit in soiled sheets for hours, or not having their call light answered. Or we had a case where we actually just did the case on behalf of the daughter because Mom was filthy.
They wouldn’t give her a shower because it wasn’t her shower day. She was just a number to them on a chart. So the daughter went in and said, “I’m gonna give my mom a shower because I’m not gonna let my mom sit here filthy for two or three more days.” So the daughter went in and gave her a shower, and the daughter fell and broke her hip.
Families and caregivers can learn more on the impact of preventive health measures in elderly populations and ways to promote dignity, respect, and autonomy in elder care.
Schenk:
Wow.
Morgan:
So we sued the nursing home for that and for not giving Mom a bath, and the daughter having to do it herself, and the daughter got hurt. But these are common sense type of claims. And I can tell you that in Ca- I think we have the two highest, what we call bill of rights or dignity verdicts in the state of California that I’m aware of.
And we just put on evidence that they weren’t taking our client to their medical appointments. Okay? Yeah, we couldn’t tie the failure to take them to the medical appointments to some kind of injury, but just think of the stress and anxiety of the client thinking, “I’m supposed to go to the doctor, and you just keep making excuses why you’re not taking me to the doctor.”
Okay? Now I’m stressed out because I’m elderly, I have all these ailments, and that causes them anxiety. And a, a jury really appreciated that fact and the stress on our client of not getting to doctor appointments, and gave us violations of their rights on that. In fact, I told you we have, I think, what I think are two of the highest verdicts in the state of California.
In s- in August, a jury in Oakland found 1,437 rights violations. They awarded $500 per violation That was a verdict of $718,500
just for dignity claims That’s incredible and it’s real. And our other one came just a few months later and a judge, this one was in front of a judge, and a judge found 578 violations, Bill of Rights violations, and that was at $500 was $289,000. So from a financial standpoint, these numbers are adding up and from a dignity standpoint, the judges and the juries are listening.
Long-term care providers can review practical guidance on the impact of preventive health measures in elderly populations and how everyday caregiving practices can help uphold residents’ dignity.
Schenk:
So it’s, I guess from an element standpoint, it’s does the act or omission tie to dignity, and did it happen? Correct … that’s it. That’s, those are the elements, and then as you- Correct … leave it to, you leave it to the fact finder or the, the jury to award a damage on that ’cause from my, from what I hear you say, and perhaps in California, you, it doesn’t have to be $500 per violation.
It doesn’t have to be $1,000 per violation. It can be whatever is the enlightened conscience of the jury to determine what that’s worth.
Morgan:
California, the Bill of Rights claim is limited to $500 per violation.
Schenk:
Okay, so that’s why you’re, it’s, from what I hear you say, you’re really stressing,”Your Honor or ladies and gentlemen of the jury, here are 563 separate occasions in which X, , Z happened.”
Morgan:
Exactly.
Schenk:
Okay.
Morgan:
Exactly. We have to tie it to a number here in California.
Schenk:
Okay.
Morgan:
But if we didn’t have that statute, it would be, you’re right. All, we don’t have to forget all of the elements. We just have to prove it happened.
Schenk:
Yeah.
Morgan:
Okay? And if it happened, ladies and gentlemen, what is the value of somebody’s dignity? What is that worth? And that’s the, that, that’s, it’s as simple as that.
Schenk:
In this instance, it almost seems like the nursing home industry would hate that it’s a $500 cap because I feel like in a jury’s mind, it’s easiest to attach $500 to all of them, right? As opposed to having to juggle like, this one’s 50 bucks, this one’s maybe 1,003, whatever.
How Do You Explain the Value of Dignity to a Jury?
Schenk:
So tell me James, how are you explaining this to the jury? Like, how are you i- is it difficult to say, we’ve shown you this happened 500 times. Th- we think that th- this is what it’s valued.” How are you showing, ’cause I’m sure that there’s difficulty in California sometimes of being like, “You know what?
So why didn’t she get water? I don’t get water.” So what? This isn’t a broken leg case. This isn’t as in, this isn’t a gaping hole in her body, right? How are you overcoming someone that’s saying” I suffer through indignities every day. Like, why should I care about this person’s indignity?
Morgan:
We do suffer from indignities every day, right? When we’re out in the world. Okay. And it goes back to what I said at the very beginning. We may feel outraged because somebody turned in front of us or ran a red light or a stop sign or something, and we’re like, “Oh my God, that’s terrible.
You could have killed me,” right? I don’t think a jury’s gonna give you that much. Yeah, they might be mad, they might be angry. But when we’re talking about nursing home residents, these people are completely dependent on somebody to just maintain the bare minimum decency of treating another human being as a person Not as a number who, “Hey, you’re in an odd bed or an even number bed, so you get a bath on Tuesday and the other ones get a bath on Thursday.”
That’s not how you treat somebody. You treat somebody by saying, “Hey, you’re dirty. You’ve been… you’ve had diarrhea. Your sheets are filthy. Your, it’s on your legs. Let’s go clean you up.”
But they don’t do that.
They completely strip you of your dignity and then you, to answer your question, then you just… And this is why we started taking these cases. I wanna know, what does a Long Beach or a Los Angeles or a Fresno jury think about dignity? What’s the price they put on dignity?
Families interested in understanding the resident experience can learn what a typical day is like for a nursing home resident.
Schenk:
Yeah.
Morgan:
What’s the price they put on sitting in, feces for three hours because the CNA doesn’t, either doesn’t have time to change you or doesn’t want to change you, and makes you wait for the next shift?
What’s the value of that? I challenge our community, tell us what the verdict is, tell us what the value of that is. And, we’ve been very successful, and we’ll, we will continue to take those cases on the condition is that I have somebody who can testify about it.
Schenk:
Yeah.
Morgan:
Unfortunately if the nursing home resident’s not getting visitors and I don’t have somebody who can tell me the story I can’t take the case.
I have to have somebody who can articulate what’s happening. And then I feel 100% confident, Rob, leaving this to a jury and saying, “Jury, you are deciding the community standard. You are deciding how we treat elderly people, and your verdict is gonna reflect how we respect elders and their dignity.” And I’m not scared of putting that in front of a jury.
What Are the Most Common Defenses to Dignity Claims?
Schenk:
What do you find are some of the more common defenses that are being put on in these cases?
Morgan:
They want to talk about causation, right? ‘Cause that’s a good defense in any medical malpractice claim or any medical claim that involves an elderly person, because they have a lot of medical issues.
That’s why they’re in the nursing home. So they wanna talk about how this might have happened, but it didn’t really cause them any injury.” And they’re not ready for this, right? They do not know how to handle the dignity claims. They just wanna talk about there being no major injury.
Okay. And their other way to defend these cases is to try to make them, your witness not credible. You’re just in this for the money, that’s why you’re here, you just want money. But it’s very hard for them to argue that somebody doesn’t have dignity, that somebody shouldn’t, you know, get a shower more than maybe just on Tuesdays.
They really don’t know how to handle these yet. In fact the two verdicts that I mentioned to you are both… one was in August and one, I think, was earlier this year. And they’re trying to figure out, hey, how are we gonna handle these dignity claims? Because now that these two big verdicts have come out based on dignity, all of the plaintiff’s attorneys are paying attention, and they’re going to start focusing on these dignity claims. They’ve gotta figure out how to try to defend them without sounding just very callous.
Changes in behavior, appearance, or living conditions may indicate a problem, so families should know how to tell if a loved one is being neglected or abused.
Schenk:
Very true. James, we very much appreciate what you’re doing out there in California, and we appreciate you coming on the show and sharing your knowledge with us.
Morgan:
Oh. All right. Thanks for having me, Rob. I appreciate it.
Schenk:
Folks, I hope that you enjoyed this episode. Be sure to like and subscribe wherever you get your podcasts from. New episodes of the Justice for Residents podcast come out every single Monday. If you have an idea for someone you would like for me to talk to, let me know. If you have an idea for something you want me to talk about, let me know that as well.
And as this goes to air, theoretically it is October 5th, which is why I’m wearing my fall colors, which I guess is brown and black, yeah, that’s about right. So that’s why I’m wearing that. But anyway I hope you are having a fantastic fall and a fantastic autumn. And we will see you next week, folks
Thanks for tuning in to the Justice for Residents podcast. Nothing said on this podcast, either by the host or the guest, should be construed as legal or medical advice, nor is intended to create an attorney-client relationship between the listener and either the host or any guest. New episodes are published every Monday and are available on all your favorite podcast apps, as well as on YouTube and our website, justiceforresidents.com.
Again, that’s justiceforresidents.com. The Justice for Residents podcast is hosted by Rob Schenk, a trial lawyer representing victims of nursing home abuse neglect throughout the state of Georgia. We’ll see you next Monday.