On a daily basis, hundreds of nursing home lawsuits are filed across the country for all kinds of injuries. But ultimately, who are the responsible parties? Other than the facility, who can be held accountable? The license holder? What about the owners? On this week’s episode, we discuss who you can sue for nursing home neglect and why.
Schenk: Hi there. Welcome back to the podcast. My name is Rob. I’m going to be your host for this episode. In this episode, we are going to be getting into the concept of who is responsible, what entities and what persons can be responsible for nursing home abuse and neglect.
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Today guys, we are going to be talking about who can be sued for nursing home abuse and neglect. Who can a resident sue if he or she has been injured due to the nursing home’s abuse or neglect? There is a long list of persons and entities that could potentially be a defendant in a nursing home abuse case. It’s just going to depend on the facts of that case.
However, in general, and I’ll go through them in no particular order, but I guess let me do this, as a threshold matter, let me just say this – in order to have a lawsuit, we’ve talked about this in previous episodes. In order to have a lawsuit, typically there needs to be evidence to support that the nursing home breached the standard of care and because of that breach of the standard of care, the resident was injured. The breach of care caused the nursing home resident to be injured. So this episode, to be more specific, is about who are the defendants if there is evidence to support all three of those things?
So now, first one, no particular order, that would be the business entity of the facility. So typically a facility is going to be operated, the license holder is going to be an LLC or a corporation. You’ll almost never see some sort of sole proprietor named in a nursing home. That is the primo number one defendant in a nursing home lawsuit – the business entity that’s doing business as the nursing home, typically the license holder. So ABC Nursing Home LLC, that’s defendant number one.
Typically we will also sue any entity that is what we would say interrelated with that particular entity, with the nursing home’s business entity. This often takes the form of management companies, consulting companies, the “home office” if it’s a chain or if it’s a large corporation and this particular nursing home is just one in a thousand of those, the corporate office, the physical therapy companies. And the reason I say these interrelated parties is because oftentimes the line between the facility and these companies that operate in the orbit of the facility is really blurred. In some instances, the employees are really employed by this management company and are working inside the facility, so if you’re only suing the facility, you might not be going to get all the responsible parties because technically the employees are employed by this management company.
So these interrelated parties oftentimes end up being defendants because they have a hand in that breach of the standard of care. So it’s not just the facility. You will almost never see just the facility as the defendant. You have management companies, home office, corporate office, consulting companies, physical therapy companies, and you’ll see oftentimes that these interrelated companies are just fiction. They just exist on paper to attempt to shield the facility from full exposure for the negligence or the abuse.
We name those companies because they typically share the same owner or owners, and oftentimes owners will be named in our lawsuit as well. So management companies, interrelated parties, the facility and owners. We’ll talk about how owners can be responsible here in a second, but it’s under the same principle that the facilities and these entities are simply fiction. They exist only on paper and if they exist only on paper, that’s not a proper way to function under the law and they can, all those companies and those owners can be held responsible.
But the next thing is sometimes depending on the facts of the case, you can name as defendants individual persons that work at the facility. By way of example, you can name the administrator as a defendant. You can name the director of nursing or the medical director if what they have done in their duties directly relates to the injury your loved one has suffered. You can name the individual people as defendants.
You can name staff as individual defendants. There are going to be strategies of why you might name staff or why you might name the administrator, so there might be times where that’s advantageous and sometimes when it is not. Typically in these cases, the idea behind them is that the structure failed the resident as opposed to a staff member failing the resident. So a resident might have been dropped and their leg broken and subsequently they passed from an infection due to that leg break, not necessarily because the staff member dropped the resident, but perhaps the staff member dropped that resident because that resident was a two-person assist but there was no one else to help that staff member. That’s a structural failure that is the responsibility of the nursing home and any interrelated parties and perhaps the owners as opposed to that individual staff member. Oftentimes those individual staff members make sympathetic characters and you want the jury to get mad at what the defendant did. If the staff member is a sympathetic character, that would interfere with that strategy.
We had Mark Kosieradzki on the podcast a couple years ago, few years ago, and his way of analogizing this concept is the Titanic did not sink – I’m sorry, people on the Titanic did not die because the Titanic hit an iceberg. The people on the Titanic died because the owners of the Titanic chose not to have the correct amount of life boats in order to save money, so the objective of profit was the actual cause of the deaths of the people on the Titanic.
That’s the analogy in nursing home care. So while yes, there are staff that might commit negligence, that might commit abuse, it is really the reaction to some type of structural failure for the purpose of profit that is the cause of the injury.
So let’s actually get into that a little more. How are the nursing home owners responsible for neglect? Now it’s that same theory. Oftentimes you’re going to see that a nursing home operates on a particular budget. They get a certain amount of money from Medicare or Medicaid, and theoretically that money should go to the direct care of the resident. However, the owners of these facilities will create these other interrelated parties, Consulting Company A, Management Company B, Real Estate Company XYZ, and what they will do is they will say, “Okay, all the physical therapy will be handled by the company that I own and they’ll contract with the facility that I also own,” or “All the management will be done by a management company that I own for the facility that I own such that the facility owned by the one person, Mr. X – Mr. X owns the facility and so the management company that’s also owned by Mr. X is being paid by the facility owned by Mr. X. And if you do this several times, that is a very fantastic way to funnel money out of the facility. That is an excellent way for the owner to pocket money by creating all these other secondary interrelated parties to channel money that should be going to the direct care of that resident but does not. It goes to the owner in all these different ways. It’s kind of like if you can imagine it’s like a wagon wheel and the facility is at the center and you have all the spokes going to all the other interrelated parties.
So that’s one way in which the owner can be responsible for the negligence if there’s some type of structural failure based on profit. The owner is responsible for direct care provided, make sure that direct care is provided, and if there is seeping money from the facility, then that’s their problem.
There’s a concept in the law that typically owners of companies are not liable for the torts of those companies, but that is – there are exceptions to that, and one of those exceptions is when there is intentional conduct that causes harm and the conduct of the owner is particularly egregious. You can “pierce the veil” is what they call that and go after the owners in those events, and we do that. That’s how the owners can be held responsible. They’re underfunding, funneling money out or operating all those interrelated parties as if they were just one party, meaning that it’s just what’s called altered egos of one another.
So it’s important to understand the structure, that wagon wheel. It’s important for your attorney to understand how that wagon wheel works, because at the end of the day, if you don’t name the correct parties, you could be leaving money on the table and you could be leaving money on the table because typically there needs to be insurance policies behind these places, but you’re going to find that there’s either no insurance policy, the insurance policy is too little to cover the injuries involved and you can go after all of the spokes of that wheel and theoretically maybe they’ll have insurance policies or have some type of umbrella coverage that the facility does not.
So making sure that you have all the correct parties named that could potentially be responsible for that structural failure at the end of the day could help in recovery because, again, not all facilities have the appropriate insurance coverage.
That is not to say that you can’t sue a nursing home that doesn’t have their insurance coverage. There are many attorneys who say, “I don’t care if you have insurance coverage or not. I will make you shut your doors or I will garnish your Medicare or Medicaid payments,” things like that. It’s probably difficult to find attorneys who are that aggressive and that experienced that they can fight through that, but your changes of finding an attorney to take on these facilities that have insurance are a lot better. Anyways, I digress.
How do you know who to sue for a nursing home neglect? This is a tough question. Unless you sue nursing homes on a regular basis, you might not know the answer to this, but typically you know who to sue based on a couple of sources.
The first source is actually a public source. You could get this information with very few clicks of that mouse. If you go to the CMS website, Nursing Home Compare, a lot of information is available to you there, including the owners of the facility, the actual business entity that the facility operates under as well as who manages and other interrelated parties. So that’s the first avenue to determine who to sue, like I said, when your injury is the result of a structural failure, is the Nursing Home Compare website. You get all of the ownership information. You get all of the managerial and some of the main employee information.
The next avenue that you can find defendants is essentially going through what’s called the cost report. The cost report functions as the facility’s tax return. In order to get – the long and short of it is in order to get money from Medicare or Medicaid, the nursing home must provide certain information. Part of that information provided is information regarding how much the facility pays to those interrelated parties versus how much the services of the interrelated parties provide is worth.
So reviewing the cost report provides you even more data, even more information than Nursing Home Compare, and you find out, “Okay, so they hired the management company to provide management services for X amount, but the services that the management company was paid for is way more than what the services they provided are worth.” That’s how the owner, Mr. X, funnels money under that facility. The information in those cost reports can help determine that. “Okay, so they’re just funneling money out through these interrelated parties.”
So Nursing Home Compare and the cost report are two key pieces of information that help me as an attorney figure out who is ultimately responsible for these structural problems.
Then you have to understand the facts of the case to determine whether or not you are going to name specific staff, the medical director, individual persons. That’s fact-specific to the case and depending on what happened, that’s how we’re going to make those determinations, but by and large, when you’re making that structural argument in a nursing home abuse and neglect case, the Nursing Home Compare website and the cost report is how you’re going to get those.
Who is allowed to sue for nursing home abuse and neglect? Typically at least in Georgia, this is going to be the resident, obviously, so the resident can sue for abuse and neglect. If the resident has passed away and the resident has passed away because of the abuse or neglect, then there are going to be at least a couple of people who can sue for the abuse or neglect that caused the death.
In Georgia, that claim will be split into an estate claim, meaning the injuries and medical bills and compensation surrounding those two will be brought by the estate, which is done by the administrator of the estate, so that’s an estate claim.
The wrongful death as we call it in Georgia, that wrongful death claim is brought by a next of kin, typically the spouse, if no spouse, then a child. In rare instances where there are no spouse or there is no spouse and there are no children, then the wrongful death claim can be brought by the estate.
So you have an estate claim and you have the wrongful death claim. Typically you’re going to find the spouse will basically be in charge of both the estate claim, because they’re probably going to be the administrator and they’re going to function as the party in charge of the wrongful death claim, although sometimes you have children function in that capacity as well. So just because someone has passed away, at least in the state of Georgia, does not mean there is no longer a case of nursing home abuse or neglect. The claim just passes to the estate to bring or to the next of kin to bring for a wrongful death claim. These are issues that you would want to speak to an attorney about.
There are time limitations with regard to both an estate claim and a wrongful death claim. Some of those are hard stops, some are not, but it’s always important to move fast when you’re talking about that.
At the end of the day, a nursing home abuse or neglect case is not necessarily something that you can do by yourself. It requires a lot of thinking, a lot of planning, particularly when it comes to naming defendants. And again, I would direct you to previous episodes where we talk about suing a nursing home, particularly those couple of episodes featuring Mark Kosieradzki talking about holding nursing homes accountable by suing all of these different defendants in a shotgun – not necessarily a shotgun, it’s kind of like a laser beam but you’ve got many shots in that laser beam.
But anyways, if you are enjoying the content of the Nursing Home Abuse Podcast, please be sure to like and subscribe. Check out our YouTube channel. New episodes twice a month on Mondays. And with that, folks, we’ll see you next time.