What does it mean to “file suit” against a nursing home? Where does it occur and when? In today’s episode, attorneys Rob Schenk and Will Smith discuss initiating an average nursing home lawsuit and what families of injured residents may expect.
TRANSCRIPT OF EPISODE
Schenk: Welcome to the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: Today is going to be one of those days where we go into the nitty gritty, the nuances, the..
Smith: The minutiae?
Schenk: The minutiae of lawsuits. We’re going to be specifically talking about some of the considerations – not all of the considerations – some of the considerations around…
Smith: Which would mean we’re not going to go into the minutiae. So instead of a broad view, maybe a 50,000-foot view, but it’s still not going to be…
Schenk: Yeah, bring it in. Bring it in.
Smith: It’s going to be brought in but it’s still not going to be a 6-inch view. It’s going to be maybe a 5,000-foot view.
Schenk: Right. So it’s like this. If you haven’t pulled your parachute by now, you’re toast.
Schenk: So at any rate, what this is about is just the considerations surrounding filing a lawsuit against a nursing home or the various defendants within that sphere in the state of Georgia. To that, let me just say this, that we never do this at the beginning of the show. We used to but we don’t anymore. But two things, and experts say that you’re supposed to have your audience, to give your audience a call to action. And the call to action is for you guys out there listening to this show to find us on Spotify, iTunes, Stitcher and give us a thumbs up or a review of some sort if you’re so inclined. Like don’t do it if you don’t like it because what’s the point? Why would you trash us? But we want the five stars.
Schenk: We want the high rankings because that helps us out and stuff. All right, so normally when we take a case, it’s going to be investigated for a certain period of time. Medical records will be acquired. Witnesses will be interviewed, send out requests for documents under particular statutes and the Freedom of Information Act to get information from various state and federal agencies. Basically an all-encompassing, comprehensive investigation of as many facts as we can get without submitting the case to a lawsuit.
Smith: And I think it’s a good point of clarification that you can have a claim, because I had somebody recently confused about this, so you can have a claim against a nursing home, a complaint, a claim. That is not a lawsuit. A lawsuit is an official action where you actually go down to the courthouse or a lot of things are done online now, and there’s a paper that’s given to the clerk, and they stamp something on it and it starts a series of deadlines, and it starts the court action. So just because we’re requesting records, just because we’re making a claim against a nursing home doesn’t mean that it’s a lawsuit.
Schenk: Yeah, that’s actually a good rabbit hole to go down because claim, that has a lot of background to it. I don’t know what the right word for it is because a claim can also mean an allegation, like I’m making a claim against you, and the claim is I’m going to the administrator and yelling at you.
Smith: And there can be a claim number in pre-lawsuit cases because we’ve made a claim and there’s an insurance company for the nursing home and they will put a number to that allegation. That is a claim number. It is not the number of the lawsuit because one hasn’t filed yet. It’s just a claim.
Schenk: That’s right. Fast forwarding through all that, the investigation process, if there is an official insurance claim or if there’s just been an incident report or allegations, whatever you want to call it.
Smith: We’ve done everything, we tried, we tried to settle it pre-suit, none of that’s working, whatever the case may be, we’re about to file a lawsuit.
Schenk: We’re jogging through there. All right. So now you may ask, okay, so what is a lawsuit then? So the lawsuit itself is going to involve the court and all that stuff is essentially just a document that lists all of your allegations that are allowed under the law against the facility.
So for example, the document is going to say, “Family member of resident or residents versus facility: Count 1 – negligence. They didn’t do something they were supposed to do,” or in some instances maybe “Invasion of privacy.” In some instances, maybe it’s a violation of a regulation that says that the facility has to hire employees that have not been accused of abuse in the past. Whatever the specific allegations that are allowed under the law, most often, it’s going to be some type of negligence or professional negligence. Okay, so that’s listed.
And then a basic set of facts are going to be listed in that complaint, but one of the more important things in the complaint is that you’re asking the court to put us on a docket to the point where we will have a trial that will be heard by a jury. In Georgia, it’ll be a 12-person jury, and that’s what the document is. It’s setting out specific allegations that are allowed under the law against the facility and requesting the court ultimately for a trial by jury, most often trial by jury – you can have bench trials, but most often for reasons we won’t get into, or maybe we will…
Smith: Yeah. No, I think it’s important to note that in most of these, there are a couple of different levels of court on the Georgia as a state level. There are federal courts, which reside in Georgia, the northern district, the middle district and the southern district, but Georgia has state and superior courts, right? And within the state, there are municipalities that may have a magistrate court that may have municipal courts, but there’s a state and superior court. And superior court, it is automatically a 12-person jury. In state court, it is a six-person jury, so if you get a DUI, you’ll have six people deciding guilt or innocence.
If you have a breach of contract or anything else, you could have a nursing home case, medical malpractice, if it’s in a state court, it will be a six-person jury with the exception that if it’s over $25,000 that you’re seeking, the other side, the defense, can request a 12-person jury. In our experience and in the experience of all of our colleagues is that 100 percent of the time, I haven’t seen it any other way, 100 percent of the time, when we file these lawsuits in state court, which is where we file them because it moves quicker because superior court has jurisdiction over family law and other issues that slow down their docket, when we file in state court, the other side will always pick 12 jurors.
So in other words, the reason for that is your case is going to be heard by a jury of 12 in state court, so if you hear somebody say, “Well I thought state court was six people,” it is, but you have the right to ask for 12 under certain conditions, and nursing home cases always meet those conditions.
Schenk: And another thing that’s kind of underlying what Will was saying is that most often in these cases and as a family member of a resident that’s been abused and possibly might take something to court is that most often, the claim is going to be heard in the state court versus a federal court. So there are state courts in every county in Georgia, but there are only three federal trial courts.
So something that was underlying what Will was just talking about is there’s a difference between state court and federal court. So federal court, the jurisdiction of a federal court is different from the jurisdiction of a typical county state court. Generally, county state courts can hear just about anything. In federal court, there must be certain requirements that are met that we really won’t get into here, but suffice it to say that most often, your case is going to be heard in a state court, like what Will was saying. So for example, Fulton County State Court as opposed to the federal district court sitting in the northern district of Georgia.
There are some advantages to that, and there will be times that the facility wants to remove something to federal court, but most often, you want your case to be heard by people that live in your geographic area or in the geographic area of the county that the case is in as opposed to a larger geographic area for reasons that we’ll get into in another episode, maybe about trial strategies. But suffice it to say that most often, once you have that document that has the counts on it that alleges something against the facility and it gets filed somewhere, it’s likely going to be filed in a state court in the state of Georgia in some county somewhere.
Smith: And I think it’s important to talk about that process because people may not understand exactly how that happens. And as of January of 2019, it’s going to change significantly, the actual process itself. So a lawsuit is everything that Rob was talking about. It’s got the names of the plaintiffs versus the names of the defendants. It’s got a facts section on it.
Schenk: Facts – F-A-C-T-S, not F-A-X.
Smith: Facts section on it. It’s got different charges, different counts on it – count 1: negligence, count 2: negligent supervision of staff. And what typically used to happen and will continue to happen in some places until January 1st is you would print all of this out in a lawsuit and you would have on top of it a summons that would say, “To the defendant, you are hereby required to answer this within 30 days,” and it would be the official – it’s not a subpoena, but it’s the official order of the court, order of the clerk of court to say, “Hey, you need to take this seriously.” And you would take that and you would give it to the clerk. They would stamp it. They would sign it and they would give you a copy.
And then they would either give it to the sheriff’s office to serve it or they would give you a copy that you could give to a private process server who would serve it, because somebody’s got to go and hand it to the defendant and go, “Hey, this is official.” Your attorney can’t do it. You can’t do it. You have to have either the sheriff or a process server.
But what is going to be different going forwards is as of January of next year, all of this will be done online. So now we go to – so for example, I just filed a lawsuit against an unnamed hospital that I won’t mention right now, but I did everything online. So I type up my complaint, I electronically sign it. In other words, I type in my name, and I save it as a PDF file and I go to the clerk of court’s website or whatever website the specific court system in that county is using, and then I upload it. It goes to the clerk’s office. They’re on their computers, they’re looking at it, making sure everything is okay, and they electronically sign off on it. I get an email saying, “Hey, your lawsuit has been approved.” And then I can print it off and have the sheriff serve it or I can print it off or have somebody else serve it. But what it does is it makes things a lot quicker and more efficient.
Schenk: As opposed to the case I filed very recently in Jones County in Georgia, which is south of here, where you’ve got to send a courier down with all the documents. The courier goes to the window, hands it to Sandy – Sandy, who could be a man or a woman. Sandy file stamps the complaint, gives everything back, and there’s I guess room for human error, and that happens sometimes. Maybe they don’t stamp the copy of the summons, something like that. But as Will was saying, that’s on the way out. Now everything is going to be done online, which in many ways makes things easier if you’re good at computers.
Smith: Yeah, there’s still a bit of a learning curve. This lawsuit that I recently filed, I had it rejected at first and sent back to me because I had failed to click a certain box on the screen, right? Which is frustrating because there are all these different boxes, all these different ways you can make a mistake. But it’s a quick turnaround, unlike Rob’s case where if you have to send a courier all the way to Nowhere, Georgia, to file a lawsuit and it comes back and by that time, you realize, “Oh, you guys didn’t stamp or you didn’t sign the summons or whatever,” you’ve got to do the whole thing over again. This one, they immediately contacted me and said, “Hey, you’ve got to click this box.” I had to go back online, click the box and it’s all good.
Schenk: So really quickly, we won’t spend a lot of time on this, but one of the next questions was, Will, okay, you’ve got the lawsuit. You’re going to the court. How do we know what court to go to? There are a 195, 195? 196? 195 counties at least…
Smith: No, it’s 155. I think you added 40.
Schenk: I’m throwing in extra counties.
Smith: It’s the most counties of any state in the Union, but it’s 155.
Schenk: Only a Southerner would say “in the Union.” I feel like that is definitely a Southern expression, like in the United States, of all these United States.
Smith: We’re admitting the North won, and I’m not contesting that or saying I disagree with it, so it’s the Union.
Schenk: Okay. So within the Union of counties in the state of Georgia, you’re going to have 150 or so options to go to. And generally you’re going to – the attorney’s going to have an understanding where the county, we’ll call it the venue, where the venue is going to be best for a nursing home case. Sometimes by operation of law, you can bring the case in a county that might not necessarily have anything to do with the claim but is a good place to bring a trial. So in other words, it’s a place where the jurors in that particular county often provide fairer verdicts. Some counties are known to always give deference or always provide verdicts that favor facilities. So the first thing as a lawyer, we’re going to take that complaint and we’re going to try to go to a county that, number one, is playing it friendly, is what you would call that.
Smith: And I think it’s important, and you may be about to get into this, that we don’t have ultimate discretion over that.
Schenk: That’s why I said it’s by operation of law.
Smith: Yeah, venue is decided by operation of law.
Schenk: So that’s the first consideration. And then generally though, oftentimes is it’s generally going to be in the county in which one of the defendants resides or operates from. So sometimes the lawsuit, the piece of paper, one of the defendants, it might be the administrator. It could be one of the shareholders. It could be the facility itself. It could be a doctor. It could be a nurse. So in Georgia, generally you’re going to be able to place the lawsuit, if you can’t find a plaintiff for any venue through operation of law, which we’ll get into, but you’re going to go into those counties, and then from all the counties that are possible, you want to, again, that potentially could be the best.
Smith: Well we don’t have to get into it because it could potentially get extremely technical.
Schenk: Yeah, I’m just saying, they’re like, “Hey, well why are we going to this county?”
Smith: But in general, just so you understand, venue is going to mean where the lawsuit can be held, where you can file the lawsuit. So in a criminal matter, let’s say you murder somebody in Henry County but you live in Habersham County, the venue is going to be the Henry County district attorney’s office that’s going to prosecute you, so you’re going to be in Henry County Superior Court. In a person injury matter…
Schenk: In a civil matter.
Smith: In a civil matter.
Schenk: Like what we’re talking about.
Smith: Like what we’re talking about, it’s different. It doesn’t matter where it happened. That’s not what’s going to dictate it.
Schenk: Sometimes it does but not every time.
Smith: Right. It’s going to be more or less where the business resides, where its principal place of office is, where its registered agent is.
Smith: Often. But it’s very tricky and there’s a whole – I mean you can have an entire book on venue in the law because it changes. It’s different when you have multiple defendants, but generally speaking, it’s going to be where the defendant resides, where the principal place of business is, but it can change.
Schenk: Right. And so again, you’ve got the lawsuit, the document. You go to the court. By the court file stamping that, it’s official.
Smith: It’s started.
Schenk: In the Wild West, you would initiate your business by going into the street and hollering back into the saloon and saying, “Hey, Stinky Pete, we have business out here,” and you all would duel.
Smith: I just want to point out that in no way, shape or form is Rob a Wild West historian or a frontier historian, and that’s probably not accurate at all.
Schenk: I think I mean everybody is free to look up who Stinky Pete is. I’m sure he lived in the Wild West.
Smith: Or how you initiated a controversy or claim in public.
Schenk: The point I’m trying to make is that’s making it official. The lawsuit is making it official that you have business against this facility that you want a magistrate to take care of.
Smith: And what really matters on the concept that it’s official is that you have a statute of limitations that dictate how long you have to bring a lawsuit. For example, every state can be different and they are different. Tennessee is one year for these types of cases. For Georgia, it is two years with some exceptions that may or may not apply in certain cases. But let’s say that it’s two years. You have two years to sue somebody for negligence at a nursing home. Well that two years is two years for you to get that lawsuit to the clerk’s office is what that means. So once that clerk file stamps that and makes it official, then you have made it.
Schenk: Right. So we’ve got the complaint written up with all the allegations that we are going to prove at some point at a trial. The document also says that we are demanding a trial. We want a jury to hear the trial. We have picked the venue that is most appropriate. Hopefully it’s the best venue that’s available to you. And it has been filed either electronically through whatever system, PeachCourt. In Georgia, it’s PeachCourt.
Smith: As of January, if it’s not designated specifically by the county, it will be PeachCourt by default.
Schenk: And don’t worry if you’re listening to this and you don’t have a computer. The law will still allow you to take a paper copy down to the courthouse.
Smith: Not to mention the fact that if you’re listening to this and you’re trying to get a general idea, it’s just to help you understand the process. If you have a claim against a hospital or a nursing home and you want to file a nursing home…
Schenk: Better go talk to somebody.
Smith: You need to talk to an attorney.
Schenk: Yeah, so either you file it electronically or a paper copy, then what’s going to happen is that point, then as Will mentioned earlier briefly, that document has to be appropriately provided to the facility, whoever the defendant is. And generally that’s going to be done either by a marshal, like a county marshal, a sheriff’s department, or a private individual that hides in bushes and jumps out at you, like he’s wearing a Pizza Hut uniform.
Smith: But is approved by the court.
Schenk: But is approved by the court, but he still has to wear the Pizza Hut uniform.
Smith: Right, it’s absolutely imperative. In some counties, it’s Dominos. In Fulton, it’s Pizza Hut. And that is not true at all. But what is true is that they have to be approved by the court. And this is important because I had a client ask me this recently. It was the lawsuit that I just filed. She said, “Well you’ve been speaking with the opposing council. Can’t you just send the lawsuit to her?” Well first of all, no. The lawsuit has to either be officially served by a marshal or a sheriff or a process server. Or there are circumstances in which you can ask a company or a corporation to waive service, but those are limited exceptions and they have certain conditions that your attorney as a plaintiff may not want. But if you don’t do that, it has to be sheriff, marshal or somebody that has some paperwork that says the court recognizes their ability to officially serve.
Schenk: And then at the end of the day, once that lawsuit with the summons that Will mentioned earlier, the summons that says you’ve got 30 days to answer, they’re going to have 30 days in the state of Georgia to answer, meaning that they have to respond to the accusations that are alleged in the complaint, so “We deny that we were negligent. We deny that we did anything wrong. We deny blah-blah-blah-blah-blah.” And then from that point, the lawsuit has begun. And I think that we’ve really beat initiating a lawsuit to death. Actually when I first conceptualized this episode, we were going to go through the entire litigation process, but now we’ve literally just filed the lawsuit.
Smith: And the crazy part is we’ve left a lot out. We’ve left a lot of exceptions, like even something about how long they have to respond can be affected by numerous other occurrences or things that can happen. That’s why we always tell you, you have to speak with a lawyer. These are extremely complicated. We could probably do another hour just on serving a lawsuit and choosing venues.
Schenk: We could also do another hour on how angry Will gets using the PeachCourt online system to do anything. You could imagine the angry yells of, “Why do I have to push this button? Why won’t the mouse click on this thing?”
Smith: Well because you’ve got to think – imagine when you’re trying to log onto your LA Fitness account and they make you jump through seven different security protocols, including a captcha that you can’t even read or make sense. And that’s what you have to do in order to file this lawsuit. And it’s just frustrating. And not to mention that at least LA Fitness has enough money to pick somebody to make their website user-friendly. The court system always goes for the absolutely lowest bidder. So it’s very frustrating.
Schenk: You know, there is a genre of comic strips like Peanuts or Garfield that is dedicated to making captchas the punchline of the comic strip. So like if the captcha is like cat butler, they take that captcha image and put it at the final frame as the joke, so they set it up so cat butler is the joke. Anyways…
Smith: That’s interesting.
Schenk: And if you’re listening to this, Will says “interesting” in air quotes.
Smith: Air quotes.
Schenk: Here’s something that’s going to be interesting – if you happen to be in Atlanta, Georgia, today and you’re hungry, go to the bankruptcy section of the Atlanta Bar Association. They’re having a luncheon and Will and I will be speaking today. We’re going straight from here to there and we’re going to be speaking about – what are we speaking about? Oh, we’re speaking about video marketing.
Smith: Video marketing to the bankruptcy law section.
Schenk: And one of the things we’re going to be talking to them about in terms of specifically about video marketing is making sure that people know how they can consume your videos.
Smith: And what are the different ways is the question that Rob is going to ask me.
Schenk: That’s right.
Smith: And the different ways you can do this is you can go to iTunes, if you have Apple or Mac products. You can go to Stitcher. You can go to Spotify. You can go to our website, which is www.NursingHomeAbusePodcast.com. You can go to our YouTube channel, and if you do that, please click “Like” and “Subscribe.”
Schenk: Oh nice, extra twist. And with that, that concludes this episode, number 89, and we will see you next time.
Smith: See you next time.