Perspectives on Nursing Home Case Selection
Ever wondered how lawyers decide which nursing home abuse cases to take? Find out the secrets behind case selection strategies. In this week’s episode, nursing home abuse attorney Rob Schenk welcomes guest Natalie Holm to talk about navigating the complexities of nursing home litigation.
Schenk:
Case selection in nursing home cases. Stick around.
Hey out there. Welcome back to the nursing home abuse podcast. My name is Rob. I will be your host for this episode. So today we are talking about case selection. What are the factors that a typical nursing home lawyer is looking at when deciding whether or not to sign up a case and represent the family of an injured nursing home resident.
But we’re not doing that alone. We have the fantastic trial attorney, Natalie Holm with us today. All the way by way of Southern California. And we’re excited to talk to her about her perspectives on this particular case.
As I mentioned, we’re going to be talking about the factors involved in whether or not a, an attorney will take a nursing home case.
And there are quite a few especially depending on what jurisdiction you’re practicing in as well, as we are going to learn today with our guests, Natalie Holm. Natalie Holm has spent her career litigating nursing home abuse cases in Southern California. She serves in the board of directors for consumer attorneys of San Diego.
Currently as treasurer and edits the elder law column for CSC, a SDS, trial bar news, Natalie owns home law group with her husband, Brian. They live in North County, San Diego with their three children and a dog. And we are so happy to have Natalie here with us today. Natalie, welcome to the show.
Holm:
Thank you for having me.
How do you decide to take a nursing home case?
Schenk:
I really wanted to get your perspective on this particular topic. I’ve found some of your blogs, a couple of blog posts where you talked about case selection like what makes a good case or not necessarily what makes a bad case, but what makes a case that an attorney would want to, spend time and effort in pursuing.
I want to start from there. What are some of the basics in terms of just an average nursing home case? What are some of the factors that you’re looking at as an attorney of whether or not you’re going to represent that family?
Holm:
Yeah, that’s a great question. I think in particular, I’m in, I’m located in California.
My cases are all in California. And so when I’m reviewing potential cases, I’m looking at, in particular, the California elder abuse statute and certain requirements that are set forth in that statute. So my firm does not handle exclusively negligence cases. We handle, our cases all have a cause of action for elder abuse as, pardon, my cases all have a cause of action for elder abuse as well as negligence.
So both. And so when I’m looking at a new case or a potential case, I’m looking for the specific requirements of the California Elder Abuse Act. So when I’m looking at a case, I’m looking at. Specifically within the parameters of the California Elder Abuse Act. So for example, I look for specific things such as reckless neglect.
whether the potential defendant had care in custody or care or custody of the victim whether there was corporate ratification of the conduct. Those are all requirements for enhanced remedies under the elder abuse acts in California.
Schenk:
Interesting. I’m licensed to practice in California, but I never do.
Okay. I wasn’t, I knew you guys had a robust nursing home kind of kick law there, but I didn’t realize it was literally a separate elder abuse statute that also applies to facilities. It’s interesting. So you got, you would have, ordinary and professional negligence on top of a statutory cause of action as well.
Holm:
Yes. Yes. And my firm does not take only negligence cases. So that’s why it’s so important for us to really analyze the cases under the Elder Abuse Act.
What are the key factors that play on whether you accept a case?
Schenk:
I see. Okay. Can you a little bit run through the, some of the, that elder abuse? You mentioned a couple of things, the ratification, just what does that mean? Like how does that work? Okay.
Holm:
Okay, so we have you can have an elder abuse case under the civil, it’s called ADACPA, E A D A C P A and you can have an elder abuse cause of action based upon various different circumstances. Okay. Types of elder of abuse. It’s the elder and dependent adult abuse.
But one of the ways is reckless neglect, which is what I see mostly in my cases against nursing homes. Reckless neglect is an ongoing absence of care that rises to the level of deliberate disregard. Of a high degree of probability that an injury will occur. So that’s a heightened standard rather than just negligent.
Schenk:
Sounds
Holm:
Yeah. So that’s why it’s, we have to really analyze and we have to show it by clearing convincing evidence. So we have to be really critical of the cases that we take in because we know we have to meet that heightened standard. And we have to review the records in. In light of that heightened standard,
Schenk:
does California allow any type of pre-suit discovery? Are you or you limited to the charge and whatever you can get through open records to evaluate clear and convincing and the ratification and all that kind of stuff. What are you using?
Holm:
So we will request the records from the facility, the hospitals, any records that Might exist.
We can order public records from the Department of Public Health. We can also look at any, articles. We can look up publicly available information. There’s no, they don’t have to share any information with us. Pre suit. They can. And sometimes we they do if they believe that we have a good case and they’ll do some informal Sharing of or exchange of information early on, but it’s not very often.
Does the ownership of the facility play a factor?
Schenk:
I see. Okay. So you’re really focusing of, in light of that particular statute. What about the idea of ownership? So for example, like does the fact that it’s a mom and pop facility or a part of a huge chain, does that factor in at all?
Holm:
So ownership in my evaluation, I know everybody evaluates their cases differently, but ownership to me is not so much a determinative of whether I’ll take the case, it’s more something you need to consider when pleading the case.
So after you decide whether to take it in California, skilled nursing facilities and our CFE’s residential care facilities are required to have insurance. So you had have that safety net if they don’t have. A lot of money or revenue.
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Schenk:
Sure. What about I know there’s some on the spectrum, there are some attorneys that they really focus on the family, not necessarily the resident, but the family itself.
And so there are some attorneys that will be like, I want all the family involvement. I want them to be good, quote, unquote, good people. And on the other end of the spectrum, it’s like what happened to the resident is what happened to the resident. It is irrelevant to me whether or not they have any family members that know anything about what happened. So where are you on that spectrum?
Holm:
So the family is very important, but it becomes more important when you have a wrongful death case. Obviously then the family has their own claim. One of the questions that you mentioned in your email was red flags. And the first thing that I thought of was who’s the potential client and are there any red flags about that potential client?
Are they, do they work well with us? And are they likable? And so that’s where the family comes in. A lot of times my clients are elderly, perhaps they have dementia. They have to be represented by a family member. So then that family member will be important, even if my client is still living, but for the most part, if the client is still living, they’re representing themselves, I don’t really. disqualify a case because their family members aren’t great.
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Do you have any red flags?
Schenk:
Speaking of red flags, what about what are there any other red flags that you look for in evaluating cases
Holm:
when it comes? So obviously the client, we evaluate the client. That’s very important. But in addition, For elder abuse cases in particular, it’s, I’ve seen cases where the story being told to me by the potential client is drastically different than the story being painted or the picture being painted by the facility records, and that to me, although there’s two sides to every story and a facility record should not be taken at face value.
That to me is a red flag where you need to dig a little bit deeper to see what’s really going on.
Schenk:
That’s true. I know that for me and my experience, depending on the injury and depending on the facility, when I get somebody calling that’s a family member, which is almost 99 percent of the time if you ask a question like, Does your, did your mother have diabetes?
Is your mother, when did your mother go into the facility? And they don’t know the answer to these questions. That’s a massive red flag. If they’re not a good historian, then I don’t know. There’s something about I’m not saying this is the case for everybody that doesn’t know anything about what happened, but it’s like, Hey, we’re just send me a check.
That’s what I’m looking for. And that’s, to me, that’s a major red flag,
Holm:
mate. Exactly. What’s their motivation? Yeah. Why are they using their family, their loved one as a tool to get money or are they really trying to write an injustice that occurred?
Read the educational resource on elder abuse.
Is your approach to a nursing home cases different than other injury cases?
Schenk:
So your firm handles medical malpractice other types of personal injury other than nursing homes.
So how does your approach to case selection and nursing home did nursing home cases differ from any of the other cases that you have?
Holm:
Yeah. So our. Obviously, because we do have that heightened standard under the elder abuse statute the clear and convincing evidence standard is not to be taken lightly, and because it’s higher than the average personal injury case we are much more Thank you.
Take care. picky or much more selective in our elder abuse cases because we do have to consider meeting that standard and if we’re going to be able to meet that standard. So for example I really prefer cases where the damaging evidence, so the evidence that we, the best evidence we have against the defendant comes from their facility records or comes from their own testimony rather than The testimony of our client, which obviously a jury won’t look at way as heavily.
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Schenk:
Sure. So let me ask this is, and this might be like way too in the weeds, but um, why not? And this, and again, I don’t practice in California. All we have in Georgia is professional negligence and ordinary negligence. So why not just sue under ordinary or professional negligence?
Why would you want to have both of those things? Both the, or the negligence as well as the cause under the cause of action under the statute?
Holm:
That’s, that’s an excellent question. So in California, ordinary professional negligence has microstatute or micro limitations. So there are limitations on how much you can recover for the client as well as attorney’s fees.
Now, if you have an elder abuse finding, you get enhanced remedies, which are attorney’s fees and costs.
Schenk:
And yeah, exactly.
Holm:
So that’s Sorry, I don’t mean to talk over you. That’s where the That’s where it really has the teeth and it’s really scary for the other side. When you do have a realistic threat of getting an elder abuse finding.
Schenk:
I feel like that’s, I don’t know that, having just heard this for the first time, I feel like that’s like a compromise between the plaintiff’s bar and the defense bar in California okay, we’re going to limit ordinary negligence, but if you can show a higher standard you know, you, it’s like a bet the farm, like you’re it’s, you could Potentially shut a place down.
That’s an interesting, first my perspective on it, just hearing this,
Holm:
And there’s also a limitation on under MICRA, a limitation on recovering punitive damages against a medical provider. Whereas you don’t have the same requirements for elder abuse, meaning so for under MICRA, you have to file a special motion in order to assert punitive damages under MICRA.
A medical provider for health care provider. However, under elder abuse, you can allege punitive damages in your complaint without filing that special motion.
Learn more about elder abuse prevention from trusted sources like the American Bar Association and the National Association of Attorneys General.
Schenk:
I see. I see. Okay. Just what about at least in Georgia and California has got to be the same way. It’s a massive state, but like we have.
certain jurisdictions, certain venues, certain counties in Georgia where I don’t speak the same language, probably literally don’t speak the same language as the people that live in that county, right? If you go outside of Atlanta, go to South Georgia, it’s like a different country. And so there are some venues in Georgia that are radically more inclined towards the plaintiff.
And there are some counties that are more radically inclined towards the defendant. Is that anything that you look at when you’re prospecting a case?
Holm:
Absolutely. You have to, because you know that the defense is going to be valuing the case based upon where it’s been viewed. So absolutely. We have conservative jurisdictions here as well.
Schenk:
And you’re in Southern California. Okay.
Holm:
I am.
Schenk:
Okay. Alright. And you do you practice state, is it normal? Do you practice statewide or just, or do you keep it, do you keep it to Southern California or how does that work for you?
Holm:
Yeah, my practice started just in Southern California, but with progress we’ve made with remote appearances, I’ve definitely expanded to North, Northern California as well. And central. All over the state.
Schenk:
Okay. And then what’s your so some attorneys that I know if they if there’s a power of attorney and they can’t get out of the arbitration, they’re not taking the case irrespective of the damages, irrespective of how bad the negligence is.
And on the other end of the spectrum, it’s we don’t care. We’ll take the case even if we have to arbitrate it. How do you stand on that? How is that? Is that a factor as well?
Holm:
It’s not ideal. No. I do not prefer arbitration cases, but I’m not going to, I’m not going to reject a case based upon that.
And I’m not going to drop a case. If we are compelled to attend arbitration.
Schenk:
I see. I see. Yeah, we have, we’ve had a lot of episodes about arbitration on this program. It’s. It’s just interesting to get different people’s perspectives on that. But obviously everybody tries to get out of them. But some people, if they can’t, they’re just, they’re not going to do it.
Holm:
And I think that’s also where the elder abuse statute really helps because there’s still an upside, even though arbitrators tend to split the baby. And it’s not ideal and you may not recover as much in an arbitration. You still have those. Enhanced remedies available,
Schenk:
right? The attorney’s fees just sounds deadly.
That’s I don’t know if I’m on the defense side, like that’s a, that’s something that you really have to consider. We spend a lot of time on these cases, right? I have a,
Holm:
it could double the value of the case essentially.
Schenk:
Of course. Yeah. Like I, I I have a colleague here in Atlanta.
His name is Lance Laurie and his firm recently argued and got attorney’s fees on a particular case, but it’s like they were able to convince the judge that this, because Lance is like on the Mount Rushmore of nursing and maternities here in Georgia. And I want to say that they got his hourly rate at 900.
Yeah. So factor that in. That’s a lot of money to add on top of a judgment.
Holm:
It absolutely is. And honestly, I do think that it, when you look at the likelihood of going to trial in a med mal case, so in a negligence case versus an elder abuse case, I think the attorneys fees and costs provisions.
Make all the difference.
Schenk:
Sure. Sure.
Holm:
They try to settle those cases if they can.
Schenk:
I see. Okay. And then I’m trying to think about it because it’s the family venue arbitration. Whether or not it’s for me, sometimes it’s not necessarily the ownership, but if it’s like we have the we have a hospital, we have a few hospital authorities in Georgia.
So you’re suing the government basically, or nonprofits. And for me that’s depending on how the nonprofit is run. That is a factor for me because it’s sometimes it’s difficult to paint the narrative that, you’re suing this nonprofit and it’s hard to make a villain out of that. At least in my, for me, other attorneys, they might be able to do it much better than I can, but it’s, that’s a factor for me at least.
Holm:
Yeah, we, and I completely understand that we don’t have that. Problem as much in California because most of our facilities are for profit. And it is very easy to make it a villain of them, like just because of how they operate. We don’t encounter that problem as much in California.
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Schenk:
I see. Okay. Natalie, this has been a fantastic conversation. I really appreciate you coming on. I’m talking about this. And I feel like you, Some people it’s just you get the stereotype of, if you’re badly hurt, we’ll take the case, but that’s not true.
There’s so many factors that you have to look at, especially, now they’ll learn in California that you have that statute and that makes it you more discriminating about what cases that you’re taking. But thank you for coming on and sharing your knowledge with us.
Holm:
Yeah. It’s been my pleasure. Thank you for inviting me.
Guest Info:
- Natalie Holm LinkedIn
- Holm Law Group
- Holm Law Group on Instagram