What solutions can lawyers provide in nursing home cases?

There are many tools to achieve justice for loved ones harmed in a Georgia nursing home. Attorneys and the civil justice system are just one of those tools. But what does a lawsuit actually do? On this week’s episode, nursing home abuse attorneys Rob Schenk and Schenk Firm discuss the concepts of damages, recovery, and remedies in nursing home cases.

Schenk: Hey out there. Welcome back. Hope you had a pleasant Thanksgiving. My name is Rob Schenk.

Smith: And I’m Schenk Firm.

Schenk: And we are your hosts for this episode coming at you kind of on the fly. We had a guest that we had scheduled in this time to interview and they were unable to make it, so this is going to be what you would call off the top of the dome type of episode.

Smith: Spit-balling.

Schenk: We are spit-balling and we kind of brainstormed a little bit, but Will came up with the concept of talking about what someone could expect from a nursing home trial or arbitration and what the civil justice system can’t do. So we’re going to kind of unpack that and talk about that.

Smith: So this is a good topic because people call and we talk to people on a daily basis that have had a loved one in a nursing home that has encountered some sort of adverse situation. And they want a solution. I mean that’s why they’re calling attorneys. And people will often tell us, “This isn’t about the money. It’s really – this is not right. We want them to not do this anymore. We want them to change the way they’re taking care of your loved one.”

And what people have to remember is that we can only get one solution. We can only achieve one thing in a court of law against a nursing home, and that is an award of money of monetary damages. We can’t get the nursing home – we can’t have a judge decide that a nursing home has to do A, B and C, so we can never sue a nursing home and then have a judge or a jury say, “All right, we’ve decided in the plaintiff’s favor, and from now on, you will have to do X, Y and Z when you have new residents,” or “You will have to take care of them in this way.” It’s just not in the court’s purview. The only thing they can give is damages.

Schenk: So let Will and I take you to day three of law school, and this is something that you can take with you in terms of going forward with how you think the civil justice system works. But back in the day, there were two different courts. There was a court of equity and a court of law. I promise this will make sense and I know Will gets mad at me and my wife gets mad at me for going back too far in terms of explaining myself, but a long time – and Will’s already gone for his phone – there was a court of equity and there was a court of law.

You would go to the court of equity to get a judge to make somebody do something or not do something. So back in the day, you might go to the court of equity to go, “Judge, my neighbor has erected a fence and it’s encroaching onto my property. It’s like five feet onto my property.” So in that instance, the reason why you would go to that judge in the equity court is because money won’t do you any good. You want to use your yard. Or perhaps you purchased a one of a kind painting and you paid the money and the artist has not delivered that painting, and money is not going to do you any good because you want that painting. There’s only one painting in the whole world like that. So you go to the court of equity because that is a court in which the judge has the authority to tell somebody, “Give over the painting,” or to move the fence back five feet. Having the court tell somebody to do something or not do something is an equitable remedy. The term of law that we learn in law school is equity, basically. So you go to the court of equity for a remedy.

Smith: Or an equitable remedy.

Schenk: An equitable remedy.

Smith: As opposed to a legal remedy.

Schenk: Right. But then, back in the day, you would go to a court of law if the situation that you find yourself in that you’re going against a defendant in which money would make you whole, so you’d get money damages, we call it damages of the money, in a court of law. So that’s the overarching difference between those two courts, the old-school court of equity and the old-school court of law is that one, the only way you can be made whole is that the judge makes somebody do something. In the other court, the only way that you’re made whole is that you get compensated with money.

Through time, we realized that our civil justice system, that remedies, the equitable remedies were difficult to enforce and it wasn’t an efficient process. So eventually, as some of us know, the courts merged at some point, so all courts basically can provide – most all courts can provide equitable as well as damages to the plaintiffs. However, in that process of these courts merging, most courts now disfavor equitable remedies to the point where if there’s any way that money damages can make you whole, they’re going to award money damages. And through time, that means if I rear-end somebody and I hurt them and I damage their car, 500 years ago, maybe I go to the court of equity and the judge would go, “Okay, now you ram his car and you hurt him.”

Smith: Or you go till his field and plow his field because he’s now injured because you guys had an accident.

Schenk: Exactly. So now, like I said, we’ve disfavored that in the law, and wherever we can, we want to award money damages to the point now where the concept of an equitable remedy nowadays is the only time you’re going to get that is in what’s called more popularly a temporary restraining order or a permanent restraining order where we tell an individual they can’t be near somebody.

Smith: Right.

Schenk: There’s going to be only certain amounts of times where money doesn’t fix the problem.

Smith: And there’s going to be no time where you hire attorneys like us that you’re going to get something other than money.

Schenk: Right. And just to kind of wrap up the court of equity concept, the mode of enforcement in a court of equity or an equitable remedy is the individual that’s been decreed that they need to do something or not do something, if it turns out that they haven’t done what they’re supposed to, the court has the power to put them in jail. So the power of the court in that instance is to enforce the verdict is to put the person in jail if they haven’t done it. So in the example of the trespassing of the fence, if you go back to the court a month later and say, “Judge, my neighbor hasn’t moved the fence,” the judge can go, “Okay, he goes to jail.”

Smith: Right.

Schenk: On the other court, the court of law where you get damages, if you get a verdict against a nursing home for X amount of dollars and they haven’t paid, then the mode of enforcement is collection. You can levy on bank accounts. You can put liens on property, that type of thing. But that’s the mode of enforcement in both of those avenues. But again, the main idea to piggyback off what Will is saying is that sometimes our clients come in and they want equitable remedies to their problems.

Smith: Either equitable remedies or they’re looking for criminal charges.

Schenk: Okay, that’s right. And we’re going to address criminal charges, but people want things like, “I just want this nursing home, I want this verdict. If we get a verdict on the case, I want the nursing home to now have policies and procedures that say they have to have a better cell phone social media policy,” or “I want their policies and procedures to be updated every year.” I can’t or we can’t as lawyers get that for you in the court – in the court. However, let me just finish that concept up – we can’t get that thing for you. The only thing that we’re going to be able to do for you under the statutes that we file suit under or under the common law for tort damages for medical malpractice is money damages.

Now there are instances, and we’ve gone down this road before, where in mediation, we might bargain for those remedies. So for example, we say things along the lines of, “Okay, my client is willing to settle for X amount of dollars, but a condition of this settlement is that you rewrite your policies pursuant to X, Y and Z,” and then we do it and we use the court as the enforcement mechanism for that. That would be the only time that you’re going to be able to use the civil justice system or one of the only times you’re going to be able to use the civil justice system to get an equitable remedy in that capacity, if that makes any sense.

Smith: And that’s very unlikely.

Schenk: Yeah. So but at any rate, that is why we’re talking about that is because we have clients that come in and they want these things that the civil justice system does not allow for.

Smith: Yeah, the only thing, and I understand when people say, “This isn’t about money.” At the end of the day, it is all about money. The only thing that we can get is a verdict that says on a piece of paper, “We find in favor of the plaintiff for X amount of dollars for pain and suffering, for wrongful death,” and what your hope is, is that’s painful enough for the nursing home that they change their calculations because they put this into their calculation – “Well this is what the average jury verdict is for wrongful death, for pain and suffering, so it’s worth the cost of doing business for us to cut corners and not have enough staff because it’s not really significant.” So that’s why you want to get a higher jury verdict. That’s why you want to get more money. That’s why we do it for the clients, because eventually that goes into policy and decision making for the healthcare industry and they go, “Hey listen, we’re getting slammed on negligence cases. Maybe we need to hire more staff. It’s not worth it.”

And any complaints you hear about tort reform or these runaway jury verdicts, ask for more information. Anybody tells you, “What’s wrong is we have this jury system where there’s all these runaway jury verdicts,” – how many jury verdicts are they talking about? I guarantee you nobody who makes those complaints has any numbers. There are tens of thousands of cases filed in the nation every year. Very few jury verdicts – there really are. I mean in the overall grand scheme of litigation, here in Georgia, there are even fewer nursing home jury verdicts. And that’s something that needs to change.

But at the end of the day, we also can’t do anything criminal. And this is also something that confuses a lot of people because we tell them, “I have a private practice and I do criminal law,” and they’ll ask me, “Do you do prosecution or defense?” which is a strange question to me because the government does the prosecution. No civil firm can prosecute a company or an individual. So if you’ve got an issue with a nursing home and you think that there are criminal charges where they’ve violated some sort of criminal statute, either federal or state, you have to go to the district attorney’s office or the assistant U.S. attorney’s office for the federal issues and have them file a criminal complaint, because then there’s a whole different set of solutions that the court may have for your specific case. Somebody might go to jail, for instance, or somebody may just be fined.

Schenk: And we talked about the difference between civil and criminal actions in previous episodes, so I would recommend you go back and check that out and I will put that in the – put that up on the screen and in the show notes. But again, it’s just a matter of we as attorneys have to temper, we have to manage the expectations of the clients, and that’s what I’m saying that a lot of the clients just want, “I want them to have five CNAs at all times.”

Smith: And I think a lot of times people are not even sure what they want. You just now that your mother died in a manner that is unacceptable in a facility that you and the government are paying for her care, and you’re angry and you’re lashing out and your first thought is, “I’m going to get an attorney and I’m going to sue you.” What the purpose of this episode is just to remind you that when you hire people like us, attorneys like us, to sue that defendant, that there’s only one solution that we’re looking at, and that is to get your monetary damages. But then again, the idea is, the hope at least is that when they have to pay out those monetary damages, they will do their own internal auditing and investigation and say, “Hey guys, listen, instead of paying X amount of money on jury verdicts and settlements, why don’t we start investing more in staff and try to decrease the amount of litigation we’re doing.”

Schenk: Theoretically.

Smith: Theoretically because I just don’t see that – I mean I’ve been dealing with nursing homes for 16 years now and it’s still a huge, huge problem. I just think a lot of times the money is the cost of doing business for them. It really is.

Schenk: Well we don’t want to use this episode to – well we don’t want to use the entirety of this episode talking about this particular topic. I would like to take this opportunity to put the spotlight on the Long-Term Care Ombudsman Programs from around the country who had their firty – firty – 41st birthday – I can’t wait to see that that transcription – their firty – their 41st birthday this past Sunday on the 1st of December.

Smith: And we both had our firty – 41st birthday this year as well.

Schenk: That’s right.

Smith: So we are the same age.

Schenk: That’s right, so we’re giving away our age. So it’s been 41 years since the 1978 amendments to the Older Americans Act required every state to have an ombudsman program and specifically define ombudsman functions and responsibilities. In 1972, the Long-Term Care Ombudsman Program started out as a public health service demonstration project to meet the needs of residents facing problems in nursing homes. Today, the Long-Term Care Ombudsman Program consists of 53 state programs and their state-wide networks of over 500 local ombudsman entities. And according to the National Ombudsman Reporting System, as of 2016, our brothers and sisters in Long-Term Care Ombudsman have investigated 199,493 complaints and resolved or partially resolved 73 percent of those. They’ve visited 28,473 long-term care facilities at least quarterly. They’ve attended 22,405 resident council meetings and 1,974 family council meetings, provided 10,690 community education lessons and provided information and assistance to 378,526 individuals.

Smith: And the ombudsmen, they’re the ones that have a much larger toolbox of solutions for people because they’re the ones that, if your loved one is in a skilled nursing facility and they keep giving her rice when she likes mashed potatoes or they need to change her medication schedule or any other issue that you’re having a complaint, you can go to the ombudsman. They can go straight into that skilled nursing facility and try to work something out, and if the facility tries to push back or doesn’t agree to what’s lawful, they can go to the state community health regulation authority, whoever that may be in that state.

Schenk: In Georgia – Department of Community Health.

Smith: And that’s the power that they have. It’s not the civil justice system like we use. It’s the regulatory system. They can go to the regulators and go, “Hey, I went into A Place for Mom facility and they refused to do X, Y and Z,” and the regulators can go in and go, “Hey, you’ve got to do this, otherwise we’re going to fine you thousands of dollars a day.” But then still, it ends up being about money.

Schenk: So we had – just if you want to learn about the Long-Term Care Ombudsman Programs in your state or in the state of Georgia, we recommend you go back and check out some of our old episodes in which we’ve interviewed long-term care ombudsmen, and I would direct you to – let’s see, we had William Whited, and he’s an Oklahoma long-term care ombudsman, and we talked about the role of long-term care ombudsmen in his episode, which is Episodes 59 and 60. Then we had Melanie McNeil who’s role is – what’s her official capacity? She’s the Georgia Long-Term Care Ombudsman.

Smith: She’s the head of the program.

Schenk: She’s the head of the program. I didn’t know if it was like chief operator.

Smith: Oh, no.

Schenk: Episode 73 we talk about the Georgia Long-Term Care Ombudsman program. So we encourage you to check those episodes out. And just a bit of housekeeping matter – matters, we will not be having an episode – we will not have an episode on December 23rd. Normally episodes come out every two weeks but we are taking a break for the holidays, so there will not be an episode on December 23rd. We will actually be coming back in the new year on January 6th, and we have a fantastic episode scheduled for you on that date, and we’re going to be talking about pressure ulcers with guest Martha Kelso who has been on the program before, and it’s going to be a fantastic episode to start off the new year. And let’s see – Will, it’s pretty far out but do you have any plans for the holidays? What are you doing? Going to the mountains?

Smith: Probably going to be going to the mountains. It’s going to be my niece’s second Christmas and the first one where she’s really kind of cognizant. She had her first year, her first birthday this year, and so now she’s a year-and-a-half old.

Schenk: Emma.

Smith: Emma. And we’ll start paying it more attention to…

Schenk: Gene, can we get a picture of Emma up eating her first birthday cake?

Smith: Perfect.

Schenk: Very cute. Good job Clay and Sarah.

Smith: So yeah. That’ll be the first one where I can actually get her gifts she may pay attention to.

Schenk: What are you going to get a one-and-a-half-year-old?

Smith: They end up playing with the box instead or shiny objects, so she’s still not quite at the age where she appreciates specific gifts.

Schenk: Well that’s going to complete this episode of the Nursing Home Abuse Podcast. I’m actually kind of grateful that the guest canceled because we got to talk about the Long-Term Care Ombudsman Program for a little bit.

Smith: Yeah.

Schenk: But at any rate, you can catch new episodes with the exception of the next episode, you can catch episodes normally in the new year every two weeks, bi-monthly, on Monday mornings. You can check it out wherever you get your podcasts from or online at NursingHomeAbusePodcast.com or our YouTube channel. And with that, we will see you next time.

Smith: See you next time.