Nursing Home Cases Involving resident-on-resident Incidents
Are resident-on-resident incidents in nursing homes preventable or unavoidable? Understanding the legal complexities is crucial. In this weekās episode, nursing home abuse attorney Rob Schenk welcomes guest Evan Jones to talk about the challenges and legal strategies involved in nursing home cases dealing with resident-on-resident incidents.
Schenk: Nursing home cases involving resident-on-resident harmful incidents. Stick around.
Hey out there everybody. Welcome back to the nursing home abuse podcast. My name is Rob. I will be your host for this episode. In today’s episode, we’re talking about cases involving resident-on-resident harmful incidents, but we don’t do that alone. We have a fantastic attorney, Evan Jones, to talk with us about that.
We’re going to be talking about what does it mean to have a resident-on-resident incident? What type of cases are those and what are some of the challenges involving those cases. So be sure to stick around for that. As I mentioned, we’re going to have, we’re going to be talking to Evan Jones, a fantastic personal injury attorney at blasting game, Birch, Jared, and Ashley PC, who specializes in catastrophic injury cases, including medical malpractice and nursing home negligence with extensive experience, he has secured substantial settlements and verdicts totaling millions of dollars for his clients.
Evan’s background includes serving in the United States army judge advocate general core and representing medical institutions and personal injury claims before transitioning to the plaintiff side, the light side, someone say, his dual perspective enhances his ability to fight for clients rights effectively.
And we’re so happy to have him on the show. Evan, welcome to the podcast.
Jones:
Good morning.
Schenk:
So I had seen you speak at a CLE at some time, sometime back. And it was a fantastic CLE dealing with harmful incidents that occur between residents, right? And so anything from maybe assault or battery and things like that.
But what I wanted to start off with just so we can begin the conversation this way. There’s a reason why we’re saying harmful incidents between residents as opposed to violent acts or somebody attacks somebody. Can you talk about why we, the perspective is that way in a nursing home case?
What qualifies as a resident-on-resident assault case?
Jones:
Sure. Sure. The harmful acts are obviously more than just violent acts. And it can occur in many different forms. You can have your assault between residents. You can have sexual misconduct, including even rape. But it can also include unwanted touching. Which doesn’t result in a lot of harm, but obviously affects the residents, privacy and dignity quality of life. But it can also be a mental and emotional abuse as well, where, resident-to-residents, in particular, living together will not necessarily get along. And that type of emotional abuse can occur when one resident emotionally attacks another throughout the residency. But, you can always have the extreme cases, too.
And that’s what, that at least what I was talking about is resident-on-resident homicide, which occurs more often than not, unfortunately.
What is the responsibility of the nursing home to prevent resident-on-resident assaults?
Schenk:
We had a podcast episode a few years ago, it’s, it’s getting many years ago, I feel like I’m getting so old as the time goes by, but we had Dr. Eilon Caspi, who talked about the resident-on-resident incidents.
And one of the things that he stressed is that as we talk about it when we say homicide, attack, violence, it’s almost like we are assuming that there’s mens rea. And I guess what his point was is that a lot of times when there’s an incident between residents, there’s not the mens rea because there’s not the cognitive capacity.
So like it’s an, it would be unfair to, to frame it in a certain way because if there’s no cognitive capacity, can we call it? Murder or whatever the case is, it’s almost like you’re bringing in baggage when you maybe we shouldn’t, which I thought was an interesting point that he brought up in that podcast.
But okay, so in your experience, then, what is the role that the nursing home through the nursing process would play in reducing the risk of resident-on-resident incidents?
Jones:
And, to your physician’s point, the blame generally doesn’t lie on the resident who commits the violent act.
The blame is usually with the nursing home, and it begins with many times their business practices. There is tremendous pressure for a lot of nursing homes. We call it to put heads in the beds. And most of these resident-on-resident violent attacks, whether it be a rape or a homicide starts with the nursing home putting a resident or putting residents in the nursing home that really means they cannot handle.
They can’t handle their mental health. They can’t handle what happens when they’re not taking their medications. And often with mental health, you have to be on a long regiment of medication. If you go off on it, it takes time to stabilize and get back on it and the nursing home doesn’t have the skill or the ability to really handle those types of residents.
But yet they want them in the home because they can charge Medicare and Medicaid and private insurance for these residents and their residency. But they create a potentially dangerous situation by first letting them in the home. Secondly, There’s really not an understanding from a skilled nursing perspective of, like I said, mental health and mental health disorders.
For instance, treating patients that have a schizoaffective disorder. And schizoaffective disorders in this country often lead when these residents are unstable to violent acts. Many of the murders in this country I forget the percentage. I had a case years ago where I was up on just how often police respond to homicides where the perpetrator has been diagnosed with a schizoaffective disorder.
They’re unstable. They’re suffering from delusions and hallucinations, and they act out violently. Yeah, there’s no mens rea there. But still, nonetheless, you have the violent act. And so the nursing home is allowing these people to, and it’s a difficult situation. So because where do you put them when they’re elderly, but they’re allowing them to enter into the nursing home environment.
And often what they do is place them with a roommate. Because as with a lot of these skilled nursing facilities, there’s two and sometimes three people in the same room. And you put somebody for instance, that has a schizoaffective disorder in a room with somebody that has Alzheimer’s dementia and wanders and takes things and you’re asking for a recipe for disaster. And so that’s how it usually begins. Another thing nursing homes are not doing is while they are required to screen their own employees for felonies, a history of felonies, they’re not doing it with nursing home residents. And often, some of these nursing home residents have very violent pasts and the violent pasts really have haunted them throughout their life and they bring that into the nursing home and now you add even a diagnosis of dementia and Alzheimer’s and you know the person will act out.
Schenk:
So, I think that’s an interesting point. I don’t know the feasibility, I guess I haven’t thought about that. Like what’s, it would have to be a legislature. It would have our legislation that would require the nursing homes, at least in Georgia to do a criminal background check.
So because, I’m assuming and I could be wrong, but the Senate of Care doesn’t require a Georgia nursing home to run a criminal background check, I’m assuming unless they had some type of constructive notice or actual notice the person right before moving in without any other observation, look back time has criminal tendencies like I, so I guess it, it almost it’s almost like a, it would be a advocacy thing, a legislation thing to move that needle.
Jones:
Yeah, it’s unfortunate. It’s one of those things that hopefully changes over time. But it seemed like it seems of course, everything with nursing homes is what does it cost? And doing the NCIC check or criminal background check does cost money, but it seems very reasonable.
And it’s just a, when you’re promising residents and their families a safe environment, why don’t you do a criminal background check? Because, surprisingly, just on even unrelated cases we’ve had, we’ve represented families whose loved ones and nursing homes. I represented a family one time whose loved one died from terrible wounds.
But, in the past he had murdered his wife. And he’s in the nursing home and he’s a silent person. But the fact that, what I always found interesting is the defense council never knew that the deceased murdered his wife. And had spent 20 plus years in prison in South Georgia, from murdering his wife.
So it’s, and one of the homicide cases I had, both residents had extensive criminal histories that involved aggravated assault and murder. And here they are being stuck in a room together during Covid. And, it didn’t take much for one to attack the other.
Schenk:
Interesting. So I guess then in reality, as it stands right now, it really is up to that initial nursing assessment, the initial interactions with the residents, representatives of the family to really have any notice of what’s going to happen aside from as you mentioned some proclivities like the cognitive issues that some people come in with, but other than that, that nursing assessment, they’re not, they’re the nursing home is not on is not going to know.
Jones:
No, this is where it gets really interesting and maybe we’re splitting hairs, but you noted, does the standard of care require a background check? If I’m admitting someone, I’m an administrator of a nursing home, and I’ve decided to admit John Doe who has a schizoaffective disorder, schizophrenia, or he has maybe even a bipolar disorder.
Or he’s got another kind of red flag. Is this adult conduct disassociative, antisocial it’s adult conduct, antisocial personality disorder. Sure. It’s a dissociative disorder, but those things. in someone’s background. I do think the standard of care requires the nursing home to investigate this person’s past a little bit, and that may require a background check.
But it also probably requires a little bit more thorough history with the family about acting now in the past. But I also think the standard of care requires where this person comes from. Let me see if they’ve come from another facility or step down unit like a LF or personal care home. And how are they interacting with other residents there?
It’s not. That seems not only common sense, but I do think it’s the standard of care if you have. Some of these mental health disorders that we’re seeing in nursing homes these days.
Schenk:
That makes sense. That’s, we’re not saying that anybody with those conditions is going to attack somebody but it seems a statistical support that further investigation will be warranted in those situations.
Jones:
It does. And that’s where obviously, the medical director, the attending physician needs to be. That may be the onus may be on the physician more so than even the nursing home to have these red flags that come up with some of these mental health disorders that are associated when the person is unstable with violent acts.
What are some challenges of resident-on-resident assault cases?
Schenk:
Sure. Tell me about your experience with these type of cases. What are some of the major hurdles that you find in resident-on-resident incident cases?
Jones:
That’s a good question. From just a basic litigation level, some of the major hurdles are if you’re going to have to get the other residents records.
And that’s, obviously, the defense is going to at first claim a HIPAA violation and claim that it’s not relevant when it is. Normally, a motion to compel is filed. I think no one has ever given freely to me other residence records in any case, including resident violence. But it’s easy enough to win because most of the time in the past, the key element is did the nursing head home have notice or knowledge of prior violent acts?
And most of the acting out is a culmination of things. It’s not the first time it happened. The resident who acted out multiple times before. I’ve never seen a case where there wasn’t in the nursing notes or in any time the physician’s progress notes, evidence that the resident had acted out against nursing home employees acted out against other residents.
And again, when they have those, if they have a schizoaffective disorder, You can almost guarantee that it’s going to be in those types of documents. So you have to go through the court system and you’re going to win. We’ve never lost one of those motions. And we’ve had defense concessions once we filed motions and we pursued it to HIPAA because HIPAA allows you to get these documents.
There’s a specific provision in HIPAA that allows you to get other resident records. Defense counsel if they know that they play stupid and act like it’s HIPAA doesn’t allow it, but HIPAA actually allows in a judicial proceeding for you to receive qualified protective health information on another resident.
So that’s, you’ve got to get that, if you’ve got to start evaluating not only your resident but you’ve got to evaluate that other resident who attacked your resident. The bigger issue is, go ahead.
Schenk:
I was going to just jump in real quick that I’ve heard, it’s funny to me, like, I understand the perspective of the defense and the sense of, okay, even though we were aware of HIPAA, this just seems like a big ask to give you a whole bunch of other people’s medical records. But it’s funny because like you’re going, like you mentioned, I don’t know of any instance of any nursing home plaintiff’s lawyer not getting the other residents records in a situation like this.
It’s it’s, you have to go through the motions. But I was going to say that I’ve heard of other attorneys reaching out to the family of the other resident and requesting or getting permission from the other from the aggressor, for lack of a better word, the permission, the HIPAA release from them and bypassing the whole issue.
Jones:
You can. That seems to me that would be harder because getting the other resident records passes the rule 403, probative versus prejudicial smell test easily. It’s relevant. and it’s necessary to prove knowledge. Which is what you need to do in these cases that the nursing home and its employees had noticed or knowledge that this person had either a psychiatric disorder and or both over acts associated with that we’re going to lead to poor decision making when putting both of them in the same situation in the same room or the same hallway or the same dining area, whatever it may be.
So you’re going to win that battle. It’s just frustrating that you have to go through it. I have had defense counsel say, Hey, I know you’re going to win this, but my client won’t let me give records. And I get that. I get that, that’s just part and parcel. That’s another podcast, just the entire obstructionist view that nursing homes put forward and make our job more difficult but ultimately they lose a lot of credibility when they do things like that.
So you will get those records and that’s the basis for your case right there is if and you may have remembered from that seminar that I like to line up. I’m visual and I like to line up both residents, and I use the term line versus lamb.
I’ve had line versus tiger too. So sometimes our victim is not necessarily the most innocent party. Somebody was going to kill somebody or harm somebody. But then I start looking at diagnoses. I look at medications that they’re on. I look at medications they’re not taking.
Interestingly, in the nursing home, as I hope this is not a rabbit trail, but, nurse residents have a right not to take their medications. Someone, a resident with schizoaffective disorder says, I don’t want to take my risperidone, which is an antipsychotic.
They have a right to do that, but it also is very harmful to other residents when they don’t take it. So it begs the question, why are you letting that person in the nursing home? And two, what safeguards do you have if they decide not to take their medication, which is within their rights? But they will become unstable.
And are you isolating them? Are you allowing them? The funny thing about it is they’re always in these behavioral units, too. They all because they act out. So they’re your behavior management program. So they’re in there with other residents that act out, too. So it’s a recipe for disaster.
So that’s one issue that you asked. What are some other hurdles the business practices, and proving really that you could, you need to do this through a 30 B six, which, and they’ll probably identify the admissions director the administrator and maybe the DON and some others.
But you need to start looking at the business practices of admitting residents. What is the criteria? What? What kind of safeguards does the nursing home have? Are they admitting everybody? Because they can pay. And if that’s the case then I think you need to go even higher to the corporate level.
See if there’s incentive based pay for admitting people into the nursing home because, for instance, an admissions director, many times not a health care professional, but they’re responsible for admitting different types of residents. So how’s an admissions director going to know that somebody that you just admitted has an extensive psychiatric history, an extensive history of state of not wanting to take medications or even a violent history?
They don’t care. They’re just looking at, do I get a bonus if I put somebody in this particular facility? So who’s watching over that? What type of safeguards are in place? Corporate safeguards? There’s usually not many.
Schenk:
It sounds to me and I could be wrong, but with respect to understanding the admissions policy that goes to the why of what happened.
So it’s not just the, you’re not telling the jury, the resident A, had an interaction with resident B. It’s why did that occur? And it occurred as the resident, the nursing home wants more and more money. And so they’re admitting more and more people. I think that’s, yeah, that’s about what you’re saying.
Jones:
You are exactly correct. As we tell families, when we take these cases, any case, there’s a deeper issue than, for instance, mom broke down with a pressure sore, became septic and died. Her mom fell because there wasn’t a fault prevention plan in place. Mom got attacked by this other resident.
The issue is, why did this happen? We can put it together. Resident A had Hallucinations and paranoia and a dissociative personality disorder and attacked resident B because they weren’t on medications. But the deeper where you want to attack the system, if we’re in here to try to change the system, which I truly believe is what we’re supposed to do of how nursing homes do business.
And we’ve got to attack that way of why they’re doing business and how they’re doing business. They’re allowing them to have no safeguards in place to handle patients with violent pasts with psychiatric disorders that have a tendency to when they’re stressed or when they’re unstable, they act out.
So how do we get that nursing home to put in place systems or even to say, Yeah, we’ll get paid for this, but it’s not worth it. The harm outweighs the safety. But that’s what’s not happening. They’re just looking at money, profits over people. But on the back end, they’re not training their nursing staff to deal with these types of disorders or these types of residents. And they’re actually putting their employees in harm’s way as well. All in the name of, here’s our census. Here’s our daily census and here’s how many beds we have filled.
Proving Notice and Knowledge in Litigation
Schenk:
If there was a nursing home abuse podcast drinking game, it would be you would drink whenever I would reference that Mark Kozlowski would always say that the people didn’t die on the Titanic because it hit an iceberg.
They died because the people that owned the Titanic didn’t want to pay for enough lifeboats for the people. So that’s to your point. So Evan, in the last couple of minutes here what’s another challenge that you find in these cases? So for example, like on a spectrum of the other that you have a history of violence versus the other in the spectrum where maybe there’s not that much is that an issue?
Like how much notice is enough notice? And if so, do you ever run into that problem?
Jones:
You mean, how much notice is enough notice as far as the knowledge of theā¦
Schenk:
Exactly. Is that ever an issue in these cases?
Jones:
I’ll be honest, in every sexual assault, every rape case, every homicide case, every aggravated assault case we’ve taken, sadly, the nursing home is very well aware of overacts that occur days, weeks, months, and even years before.
But, I’ve always said that, in a sense, the staff, particularly CNAs, but to an extent, the nursing staff, they’re all, they’re, they are victims of the same system that the residents are. This profits over people system that we keep saying that causes all these bad things to happen with resident-on-resident issues they really can’t do anything a lot of times, they don’t, they, a lot of times, they know that this one resident has acted out, or they know this one resident has gone and jumped in a female residence bed, or there was some unwanted touching, whether it’s whether this resident knows what he is doing or not, and they bring it to the attention of management.
But it’s just, it’s no harm, no foul until it is. It’s like the person who falls 15 times and doesn’t harm himself. But then the 16th time develops a subdural hematoma and dies. I always use this analogy and I, I’ve used that trial and I’ve used, I use a lot with defense counsel.
This, many times? Is it legal? Cool. when you get in your car and every morning because you’re in a hurry, you won’t run a red light. No, it’s not. And you do it for 200 days in a row and 200 days running that red light. You haven’t. Who cares? Nobody’s been harmed on 201st day.
You ran that red light and you killed somebody. That 201st day was predicated on the fact that your habit, your routine was 200 days before you allowed, you ran a red light. You knew you were doing something wrong. Nursing homes are no different. And that’s just a common jury example that they understand in their own life.
But nursing homes for days and weeks and months and even years know these residents are going to act out and it’s no harm, no foul. And then all of a sudden, the resident acts out and then there’s a violent actor, there’s a homicide or there’s a death or rape, assault, whatever it may be.
And nursing homes like we didn’t see this coming. We didn’t see this coming. Yeah, you did. I saw it coming from day one. They were running the red light from day one with their overt actions. They just didn’t cause harm. And so you have to notice the knowledge is there. You just have to be detailed about it and look at even little things that the residents are doing.
If a resident is acting out against the staff Mhm. sometimes refusing to eat and throwing their tray and stuff like that. Start linking that to other acts and other things they’re doing. And believe it or not, you’ll start putting a chart together and you’ll say, they could, they should have seen this coming.
It’s not a far stretch to throwing your food and cussing out a CNA to attacking an employee or attacking another resident. It’s just not that far. And then you use, the diagnosis, whether it’s Alzheimer’s, dementia, or even a psychiatric disorder, and you gap that you make the bridge with that diagnosis because that’s part and parcel of the sequel of the diagnosis, does it make sense?
Schenk:
It makes absolute sense. And that’s a great analogy with the red lights. Evan, it’s been fantastic speaking with you about this. I really appreciate it. You have a lot of experience in this and a lot of passion for it. So I appreciate you sharing your knowledge with everybody.
Jones:
I appreciate it. Thanks for having me on and anytime.
Schenk:
Everybody, I hope that you found this podcast entertaining and educational. If you did, please be sure to like, and subscribe wherever you get your podcast from. If you’re watching this on YouTube, maybe hit the notification bell. Is that what, yeah, hit the notification bell, maybe leave a comment or two.
If you have any suggestions for guests that I should talk to or topics that you want to hear about. Please let me know in some fashion new episodes come out every Monday. And with that, folks, we’ll see you next time. Thanks for tuning in to the nursing home abuse 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 host or their guests and the listener. New episodes for now are available every other Monday on Spotify, Apple Podcasts, or on your favorite podcast app, as well as on YouTube and our website, nursinghomeabusepodcast.com.
Again, that’s nursinghomeabusepodcast.com. See you next time.
Guest Info