The Power of Nursing Home Regulations in Trial Cases
Did you know that nursing homes might not be following the laws meant to protect your loved ones? This episode dives into the crucial regulations that govern nursing home operations and what happens when facilities fail to meet legal standards. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes guest Lance Lourie, Esq. to talk about using these regulations effectively at trial to hold nursing homes accountable.
Schenk:
Using nursing home regulations in your 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 today. We are deep diving into regulations, both federal and state regulations that govern the operations of nursing homes and specifically how we are using those regulations in our typical nursing home cases, whether through discovery or all the way up through pretrial and at trial, but we’re not doing that alone.
We have one of the best, one of the bestest with us today. Trial lawyer, Lance Laurie out of Atlanta, Georgia, will be talking to us, giving us his perspective on how he incorporates the regulations in his cases. And we are absolutely thrilled to finally have him on the show.
We have the fantastic trial lawyer, Lance Laurie, the legend. The man, the myth, a graduate of Tulane university and the university of South Carolina. He’s admitted to practice law in Georgia and Tennessee, a former defense attorney. He co founded Watkins, Lori, Roland chance, and then the mouthful that is Laurie Chance four lines, Carter and King PC.
His practice focuses on plaintiff’s medical practice, nursing home and general liabilities, general liability cases rated AV preeminent by Martindale, Hubble and super lawyer. He frequently writes and lectures on trial tactics and personal injury law. And we are so thrilled to have him on the show. Finally, Lance. Welcome to the show.
Lourie:
Thank you very much for having me, Rob. It’s my pleasure.
Schenk:
All right. I always say like Lance is on the Mount Rushmore of nursing home abuse attorneys in the state of Georgia. So I’m super happy to have you on. And in fact, it’s funny cause I’ve almost.
had every single partner and actually non partner of your firm on my show already. So I’m happy to finally get you on to talk about this.
Lourie:
So my absolute pleasure. My absolute pleasure. Thank you so much for having me.
What regulations govern nursing homes in Georgia?
Schenk:
So let’s talk first about what are, when we say regulations that govern nursing homes what are we talking about?
What regulations out there are affecting how a nursing home should run?
Lourie:
Yeah, so there are the OBRA regulations, the federal regulations, and I happen to see you’ve got the book behind you there, what we call the watermelon book. And and those are very important. And then we have the Georgia regulations and those are equally important.
And as I’ve often said, it’s important to, to understand the basics of those because the lawyers that defend these cases really know what they’re doing and they’re going to know them backwards and forwards. And it’s worth taking the time to learn the critical ones.
For more insights into patient advocacy and rights, the Consumer Voice provides extensive resources and guidance on navigating these complex issues.
Is evidence of violation of nursing home regulations per se?
Schenk:
Now, tell me about that then. So how are you using a typical federal regulations?
Just say that it’s, we’ll just say it’s a bedsore case. We’ll say it’s a pressure injury case. So you’re looking at the, you’re looking at the pressure injury federal regulation. How does that factor into your case? Is that, is it? A negligence per se. Is it are you using it to establish standard of care? Just dive into that a little bit.
Lourie:
Yeah, sure. Okay. So 1st of all, the essence of the regulation on pressure sore. That’s a good example because that’s a lot of the cases we did. So the pressure sore regulation, says that the patient, the resident should not develop wounds unless they’re clinically unavoidable.
That’s a critical point in any pressure sore case because the nursing home is always going to say It was unavoidable. Okay, they’re going to take that’s going to be their defense every time so what we want to do is we don’t have the ability in georgia any longer to claim negligence per se On a violation of the regulations.
Okay, that’s something that first of all in every other industry Trucking cases, construction cases, every other industry, a violation of the regulations in Georgia is negligence per se, but the nursing home industry always wants to be treated special. They always go down to the legislature and whine and complain that, the world is caving in on them despite the fact that the major chains are making a boatload of money.
Some years back, the legislature passed a law that says that in Georgia, those regulations, a violation of those regulations is not negligence per se. And just to remind everybody, that means basically that if you violate the regulation, the judge won’t charge the jury that is negligence as a matter of law.
Recent studies, like those found on PubMed, shed light on the ongoing challenges and developments in the field of elder care litigation.
Now, that being said, so that’s. That states how we’re not using them. Now let’s talk about how we are using them. First of all, once that law went into effect, we still can have and allege that a violation of the regulation is negligence. Okay, our expert can say the standard of care requires compliance with the negligent, with with the regulation.
Certain regulations that deal with the administration of the facility. We still say that a violation of those regulations can constitute ordinary negligence. So we can still have our expert talk about that. And there’s a couple little points to remember about that. And so typically in our complaint and in our affidavit, we will put that in there.
Now, Having said all that, the Georgia, it’s called, I pulled it, but before we talk today, the OCGA 31 8 108, which is the Bill of Rights for Residents of Long Term Care Facilities, still requires that residents be treated in compliance with all regulations. And if the facility violates a regulation, this statute gives rise to a private cause of action.
So you can still allege violations of the regulations. As part of your claim under the Bill of Rights for residents of long term care facilities found in that statute. So we still allege it that way. If that answer the general broad way that we’re using.
Delve deeper into the nuances of CMS guidelines and their impact on nursing homes, discussed in our podcast, which elaborates on the challenges and opportunities these regulations present.
How are nursing home regulations incorporated into your discovery?
Schenk:
In your typical claim, you’re going to have.
In a typical claim, you’re going to have ordinary negligence, at least in Georgia, you’re going to have ordinary negligence, your professional negligence, and then there’s that count that you’re talking about, which would be a violation of the Georgia bill of rights, basically long term care bill of rights.
Lourie:
That’s right. That’s right. And then we typically put in a claim for understaffing as well. We allege that separately. That and of course we do punitive damage count, but that enables us, we anticipate ahead of time. And it’s a little bit venturing away from the issue of the regulation, but we.
The regulations, but we know what the discovery fights are going to be. So we’re going to go ahead and allege things that are going to allow us to get the broader discovery. So that the defendant, when they say, oh, Mr. Lurie’s not entitled to this and that because here’s what he alleged in his complaint.
We, we know that. So we’re going to go ahead and allege a broader pattern of misconduct. In the facility and specifically understaffing so that we can get certain documents that we want to see that they don’t want to see.
For advocacy and resources for residents in long-term care facilities, explore the National Long-Term Care Ombudsman Resource Center.
Schenk:
So like things like maybe like their budgets or their ratios. Yeah.
Lourie:
Budgets, a huge one. The regulations require that the facility use the resources of the facility to provide. For the quality of care of the residents. And so that’s one argument that if we allege a violation of regulations of that sort enables us to get the budgets. And then, of course, we allege a punitive count, which would be a 2nd argument, but a separate argument and as to the reason we’re entitled to certain financial information, including the budgets.
And then, of course, we allege a pattern of misconduct, which also gives us a legitimate argument that we’re entitled to that.
Schenk:
So let’s imagine we have on this piece of paper, the federal reg, okay, that’s pertinent to the case. How are you using that literally, that regulation from discovery on to the pretrial order? What role does it play?
Lourie:
That’s a great question, because a lot of people are Alleged, but don’t know really what to do with it. Okay. So the regular most facilities, the policies, their policies and procedures will track the regulation. If you look at the policies and procedures on falls, or you look at the policies and procedures on nutrition, or you look at the policies and procedures on pressure sores, they’ll track the regulation.
So what we typically do is, and we feel this is very valuable, we will ask, and we don’t take, we don’t depose a ton of their employees, sometimes more than others, but we don’t depose every nurse that saw the resident, we don’t depose every CNA but when we do depose, say the wound care nurse, or the director of nursing, we’re going to want to show them that regulation, get them to admit that they are required to comply with it.
And in some cases, we can in some cases, We can get them to admit that they didn’t comply with it. And we can generally get them to admit that the standard of care required them to follow the regulation. So that’s very powerful. If you have to try the case and it’s also very powerful and getting cases settled.
Delve into recent studies on geriatric health and elder care, such as this research on geriatric syndromes in elderly patients published on PubMed.
You’re, sometimes you’re educating the defense lawyer in the deposition on the trouble they’re in. And as we know, they don’t like trying these cases. So that’s the first thing we do. Not necessarily the first, but that’s one thing we do. And then and then we, of course, get our experts to testify about them failing to comply with the regulations as well.
It gets a little trickier at trial. I don’t know if you’re ready to go there yet, or if you want to talk about the process more.
How are nursing home regulations incorporated into case-in-chief?
Schenk:
No, it’s what, yeah, no, that’s a perfect segue. Just let’s rock. Okay.
Lourie:
At trial and we tried a handful of cases where the regulations were pertinent. And we’ve learned as the process has gone on.
We’ve learned from mistakes we’ve made. We’ve learned what is more effective and what’s less effective. So it’s, because, In your typical case, let’s take your typical pressure sore case. You’ve got the pressure sore reg, you’ve got the quality of care regs, you’ve got the nursing services reg, you’ve got the administration reg, usually there’s a dehydration or nutrition component to the case.
The problem is You really want to zero in on the best couple you got, because if you can’t win it on those, you’re not going to win the case.
Understand the complexities of geriatric medicine by reviewing scholarly articles like the one on polypharmacy in elderly patients from the AGS Journals.
Schenk:
That was actually, that was going to be my question is because in a typical case, you’ve probably got 30 regs that have been violated, right? And I was like, and I was actually looking over your opening and closing in the Dubois case.
And you narrowed it down. I think to literally, I think it was three. It was the maybe four. It was the pressure reg. It was the dehydration, nursing services, maybe administrative services, but I think that you covered almost like you, you almost like they were one and then dignity.
And that was getting to my question is like, why? What was the thought process and you don’t have to give away secret sauce, but what was the thought process I’ll share anything I got. Okay. What was the thought process about dignity? Was it just so that you could use the words or to tell me about why you parse it down to those specific ones?
Lourie:
So the reason is, and we learned from the first couple of cases we tried, like anything else in trial, I’m a believer that you’ve got a very limited amount of time with where the jury’s really paying close attention to you. And it’s like anything else. If you go through 20 or 30 regs, You’re going to lose the jury on what’s really important.
Okay so less is more. A judge once told me that. We were sitting around talking and he made the point less is more. So picking your best couple and zeroing in on those rather than boring the jury with reg after reg. Imagine, we’ve gotten to where we want to put up those experts and get them down pretty quick.
I don’t want to spend another 15 minutes in my opening going through reg after reg. It’s, it gets lost in, to me, what’s the most important component of your case is your story. And, if you’re spending too much time talking about the minutiae of regs, and then, And of course, we always focus on the dignity issue, that’s what’s driving the case is driven, first of all, by the defendant’s misconduct, and then you, but you’ve got to prove damages.
Investigate the issues of dehydration in the elderly through this comprehensive study found on AGS Journals, Dehydration in the Elderly.
And the damages in nursing home cases are different than the damages in brain damage baby cases. And It’s about, and I’ve often said this, it’s not about the fact that she died, it’s the way that she died, and that’s a dignity issue, and you really want to focus on, this facility is taking money from the resident or the government in exchange for, the promise to take good care of these residents and letting them lay in feces or develop these high level pressure sores.
Okay. That’s that part of it. And then, if you think about your experts on the witness stand, you don’t want to spend a lot of time going through reg after reg. And then, when you, when the, you get into this issue of does the judge charge the regs, okay, and we’ve had a number of cases where we had the judge charge the regs, where He or she is reading the regulations to the jury.
For insights into social support’s role in improving elderly care, consider reading this article on the social networks of elderly patients from The Gerontologist.
And that’s the last place you want to have them reading, you know, another adding 15 or 20 minutes to an otherwise boring, sleepy charge.
Schenk:
Is that typically a battle with opposing counsel for those to be jury charges? Or is that typically going to not be a problem?
Lourie:
It is a battle.
And the statute says, And, these statutes, there’s a lot of time and, we were involved in, I was personally involved in sort of the negotiations over the wording of the statute, and the statute says that the judge has to tender those regs into evidence.
shall tender them, not may tender them, the ones that are pertinent to the harm in question, and but the charging of the regulations themselves is controversial, and it does create a fight with defense counsel. And in the DuBose case, it was an issue they appealed. And we felt good about that.
We felt we were right about that. That case settled while it was on appeal. But, naturally, any time you get in a An appeal based upon a legal issue that you’re facing over and over again. You have to ask yourself Is what I gained from this with the jury were Taking a chance that i’m wrong about whether it should be because they’re sitting there arguing this is tantamount to negligence per se Which is not the law in georgia And so and I don’t you know So so you got to think carefully about whether you really want because you can still stand up and say this is the law
Schenk:
You know, to me that’s one of the reasons why Lance is on the Mount Rushmore because for me, I’m just worried about my case.
Lance is literally like sitting here. Do I want to establish bad law? These are huge questions. So anyway, that’s okay. So it’s a fight. If you can get them as jury instructions, obviously that’s preferred. You’ve parsed them down to the only two or three or four that you really need.
So tell me then I’ve heard so for example, with dignity many years ago, I heard, or at least I was getting into motion limine fights about the use of the term dignity or whatever. So I depose everybody. When I depose them, I’ll pull that rag out and go, what does dignity mean to you? Does it mean that’s a great idea.
And they’ll say, responding to the call light quickly or making sure somebody is not sitting in feces or whatever. And so that way you have a record of this is what dignity is, something that’s real. They acknowledge it. And that was what it means to the actual facility. Do you do something along those lines during the buildup and discovery for whatever reg you’re going to use?
Lourie:
I haven’t done that with dignity. I really like that idea. I think that’s a great idea.
Schenk:
I want to say that. I think that you told me, I don’t know, this might be one of the things where it’s, you’ve done so much for God.
Lourie:
I don’t know, but I appreciate the compliment. I don’t remember that one but I like that idea.
I like that idea because anytime that you continue. to hit those basic themes of your case. So I haven’t done that with Dignity. Now I have done that with other regs where we’re just pressing them in the depositions on, the meaning of the reg. It’s interesting Point you raised that we are starting to see more motions in Lemony, trying to limit the language we can use, I think a lot of this started with, defense motions on reptile and this and that, and it’s gotten a little bit ridiculous.
Candidly, what the, I’ve seen, I saw one recently where the defense, it wasn’t our case, it’s made a motion that, Okay. The plaintiff couldn’t use unsubstantiated anchoring and closing. What does that mean? You ought to be able to argue what dignity is. Certain words just have basic language, basic meaning in the English language.
So those motions are getting a little bit ridiculous. And I’ve begun responding to those and have done it. I have successfully done it a couple times by arguing to the judge. I don’t know what I’m going to argue yet But I’m very aware of the rules. I’m sure defense counsel is I exercise good faith and do my very best to not approach the line And if I approach the line across the line defense counsel can argue but it’s not fair For us to and it’s a waste of the court’s time for us to spend time Crafting boundaries For my argument that I haven’t even, we could come up with thousands of things that I might choose to say, and so I’m getting a little bit off topic, but I think that, um, we’re starting to see more of that, so I think that’s a great idea.
Listen to our podcast episode that discusses the critical role of arbitration agreements in nursing home cases, which provides legal perspectives on navigating these agreements.
Sort of asking people in their depositions, those various points that are contained in the regs, right?
Schenk:
Okay. So I guess if I understand you You’re trying to get, you’re trying to get the reg as a jury instruction. And if you can’t get the reg in jury instruction, at least you can still like in your closing summation, you still can reference it.
You still talk about it. There was a nuance that I wanted you to talk about a little bit and we, just depending on how on the weed you want to get, but there’s a difference between saying that either the Georgia or the state reg and the federal reg. Other standard of care versus violating them is a standard of care.
Can you talk about that? Because those are different things. Like the standard of care is one thing, talk about how you approach that question, those questions.
Lourie:
Yeah, it’s an interesting question because we see. There’s part of the question and the answer that candidly, I don’t really understand because the defense files these emotions. That say a violation of the reg is not that the reg is not the standard of care, and I’ve never quite understood what they’re trying to get the court to rule. I’m a little bit baffled by it, and it’s 1 of their standard motions, and I because clearly.
An expert can say, here’s a copy of the reg. The reg requires that the facility provide sufficient hydration to the resident, and I can clearly ask my expert whether or not, in his or her opinion, the standard of care required the facility to provide sufficient hydration to the resident as set forth in this regulation.
And wait, where you have to be a little careful is I’m always you have to be a little careful with. Asking the witness, did the facility violate the reg? You’re better off asking, using the language of the reg and saying, did they do this? Did they not do this? Okay. You follow me with the substance of the re did they provide sufficient re hydration?
So going back to your question, I’m not really sure what they’re asking the court to do. ’cause I’m not asking, I’m not asking for a charge. They’re asking the court to do something that I’m not asking.
Schenk:
They’re trying
Lourie:
to robust that I’m not doing, I’m not arguing that the regulation is tantamount to the standard of care per se.
Cause I’m not really sure I know what that means, but it, they have to follow them. They have to follow the regs. And incidentally, and I don’t make emotional enemy on this, but coincidentally, but I don’t let them get away every once in a while you’ll see a defense expert or a defendant or an employee or a lawyer stand up and say, Oh, these are just some guidelines.
Gain insights from our discussion on legal strategies in taking on nursing homes in court to better understand the litigation process.
And I’m like, Oh, that is not appropriate. And I’ll stand up and object right in front of the jury because it’s not a guideline. No less than could a truck driver get up and say it says 70 miles an hour is the speed limit, but that’s just a guideline. If things look pretty good, I can do 80, it’s not a guideline.
It’s the law. And
Schenk:
I, it’s one of the things, and this is not mine. This is somebody from some listserv somewhere, but they’re literally called requirements. So if you, whatever on Lexus or Westlaw, if you take it to your depot and go this, it’s literally called requirements. There’s no guidelines anywhere.
Lourie:
A lot of that stems from the initial argument by the defense, by the defendant, which I think there’s pretty good case law and to the contrary, that these are reimbursement required and I’m sure you’ve seen that, these are, these only have to do with the reimbursement and that’s just not true,
Schenk:
not at all.
Lourie:
That’s not true at all.
Explore our episode on holding nursing homes accountable through lawsuits or regulations, which examines the effectiveness of legal actions versus regulatory measures.
Schenk:
I try to, to at least with in some way had that off with, if I ever depose the MDS coordinator, I get them to read section Z, which is this penalty of perjury, all this is regular. And then in the R. A. I. Manual, it literally says that at least for that particular aspect, It’s not for reimbursement.
It is literally it’s for the purposes of providing care. That’s what it says in the manual. Get them to say that. And then that argument, at least with assessments, you had it off at the past.
Lourie:
And it sounds silly, so you’ve got the deal in on the witness stand. You show him or her the rag that requires sufficient hydration to meet the needs of the resident.
And are you saying this is just about getting paid? It’s just not a quality of care regulation. I do think it’s important at least with 1 of their employees to. And certainly with their experts to put that, the regulations almost like a rule. It is a rule.
We all talk about the rules, having a rule as part of your presentation, so I think it’s helpful with witnesses. Not spending a lot of time on it, but putting up that regulation, not all of them, but the one that was clearly not complied with and saying, this is the law you agree and you agree, y’all required to follow it.
Learn about the CMS regulations and how they monitor long-term care facilities to better understand governmental oversight in this sector.
And then for some of those regs, you can, you can ask questions that are a little bit contrary to the basic tenets of cross examination. Clearly the resident showed up in grossly, in a grossly dehydrated state. You could ask them, do you think y’all complied with this rule?
And they’re they’re they’re going to get hurt either way if they say, no, we didn’t.
And that’s good for you. But if they say, yeah, we did, then that’s just going to make the jury more angry because it’s so clearly. dishonest, but you can only do that with a clear violation.
Schenk:
Sure. I see. Lance, this is actually flown by. I really appreciate you coming on. I know that sometimes it can be like talking about regs.
Oh my gosh, my eyes are going to water over. But this was great. I really appreciate it. Transcripts provided by Transcription
Lourie:
Outsourcing, LLC. Always glad to do it. And thanks for having me. And I’m always glad to see you too, Rob.
Guest Info:
- Lance Lourie on LinkedIn
- Lourie Law
- Lourie Law on LinkedIn