Winning ALF Cases: What You Should Know
What does it take to build a strong assisted living facility case? ALF cases can involve complicated questions about resident safety, care, neglect, and accountability. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes Brian Poulter to discuss winning ALF cases and what attorneys and families should know when pursuing these claims.
Intro
Schenk:
We all have an expiration date. That’s true. Milk does too. That doesn’t mean that negligence gets a free pass at an assisted living facility. I’m attorney Rob Schenk, this is the Justice for Residents podcast, and this week I’m joined by Brian Poulter, an experienced trial lawyer, to talk about taking on assisted living facilities, what makes them different from nursing home cases, how juries view them, and how broken promises and negligent care can still lead to justice, because assisted living should mean assistance with living, not assistance with excuses. Stick around.
Great episode today, folks, all about taking assisted living facility cases to trial. But if you want homework, like if you wanna learn more about what makes assisted living facility cases different, what makes an assisted living facility different from a nursing home, then you have plenty of homework.
We’ve covered this topic many times in the history of this show. Just a few I would recommend starting off at episode 252, which was with the fantastic Kayla Meek. We talked about how assisted living facilities are different from personal care homes or nursing homes. Then we talked to the fantastic Victoria Schall in August of ’26?
Yeah, August, not too long ago, episode 315 on countering defenses in assisted living facility cases. And then a little bit in this episode, we talk about case theming, case themes, and how Brian kind of handles the sequencing of evidence and how he frames the case. And I would highly recommend, if you’re interested in that kind of component of an assisted living facility case, go back to episode 314, also from earlier this year, with Joe Musso, where it’s developing effective themes in skilled nursing cases.
Listeners can revisit our earlier conversations on how ALFs are different from nursing homes and personal care homes, countering defenses in assisted living facility cases, and developing effective themes for nursing home cases.
Guest Intro
Schenk:
So that’s your homework, is to check out those episodes. And now for the In-N-Out Burger and french fries of the episode. Brian Poulter is the founder of Poulter & Company and a nationally recognized trial attorney. Over the past decade, he has recovered more than $150 million for injured clients, secured multiple seven-figure verdicts, and helped oversee the landmark Porter Ranch litigation, which resulted in a $1.8 billion settlement.
Today, Brian continues to advocate for injury victims throughout California and beyond.
What Do You Enjoy About Bringing Assisted Living Facility Cases?
Schenk:
Brian, right off the bat, softball question. What is it that you enjoy about bringing assisted living facility cases?
Poulter:
The assisted living facility cases, here in California, they’re more akin to just a general negligence case.
And yes, you can plead and prove the dependent adult and elder abuse cause of action. You can get heightened remedies and do all of that stuff. But for me, the assisted living facility cases, for the most part, typically are a general negligence standard. But you get to pepper in all of Title 22 out here in California, the codes and regs on the training for the people that provide direct care.
With respect to assisted living facility cases from a lawyer legal standpoint, they’re easier. They’re more simple and straightforward. They’re easier to prove. I’m not saying they’re all easy cases, but in terms of the burden of proof, often keeping things more simple turns out better for the plaintiff.
How Do You Handle the “Not a Medical Facility” Concept With the Jury?
Schenk:
Do you ever find that there’s a flip side to that, and that flip side being that the standard might be negligence, but the residents should not have expected that much out of us? Our duty to the resident isn’t as high.
Poulter:
The good thing about the assisted living facility cases is that, at least here in California, probably where you’re at as well, they all have pre-admission appraisals.
So before they even walk through the doors, they have certified nurses doing mental health exams, doing physical exams. There’s always gonna be physician’s orders on what type of assistance that they need with their activities of daily living. I have yet to see a defense lawyer skilled enough, at least in my cases, to be able to say credibly and with a straight face, “We didn’t have to really do too much for you,” or, “You’re expecting too much care,” because it’s in the pre-admission appraisal.
It says exactly what type of care that they are to be provided. Now granted, if the person in the pre-appraisal literally needs no assistance, okay, then that’s something that you can say. But in the cases that I have signed, litigated, taken to trial, there’s always one if not multiple activities of daily living that they need assistance with.
So that’s where I start.
Families can learn more about liability in assisted living abuse and neglect cases.
Do You Ever Argue That the Resident Should Not Have Been in Assisted Living?
Schenk:
I had a conversation back in August with Victoria Shaw on this topic, and she indicated that sometimes there’s a threshold question of whether or not the resident should have been there in the first place. Do you ever have that? Do you ever do that when you’re evaluating the case or trying to figure out kind of the theme of the case, is that this individual fell or whatever happened to them, but that shouldn’t have happened because they shouldn’t have qualified for assisted living?
Poulter:
I see it more not at the admission process, but in a change of condition. So they’ve been there for a while, maybe they’re in the memory care unit and they had a stroke, but they’re not reporting the change in condition. There are things that happen when you are there at an assisted living facility, whether you’re in the memory care unit or not, that can qualify in California as reportable, not only to the family but to the state agencies, to the doctors, that there is an actual change in condition, and if it moves you beyond the capability of an assisted living facility, they’re supposed to take the steps necessary to get them to a place that is qualified to care for them.
I don’t really personally in my practice experience it at the admission stage, so to speak, but I do see it as time goes on while they’re there. Yeah.
When a facility says it can no longer meet a resident’s needs, families should also understand their options for fighting an assisted living discharge.
How Do You Handle the “Old, Sick, and Dying” Bias With the Jury?
Schenk:
Do you ever have the defense of, we had this change of condition, perhaps you’re no longer qualified, but that’s just how life works. All of us are gonna get old, all of us are gonna get sick, all of us are eventually gonna transition.
That has nothing to do with us.
Poulter:
Yeah, the law requires them to alert the proper people and get them into the facility that has the authority to take care of them. So it’s not a matter of just being like, “Oh, life happens. Get used to it.” And alternatively to that, I would think that anybody who is not following the obligation after a change in condition to get them to the hospital or the facility that they need to be in, it’s kind of the old adage, you follow the money.
You find out how much money are they getting per month for these people, follow the trail of money, and typically, by and large, in my opinion, the reason why they’d wanna keep someone there in those circumstances is because they like the money that’s coming in.
Changes in condition can be especially serious for residents in memory care, as dementia patients often struggle at assisted living facilities.
Do You Make Understaffing Arguments in Assisted Living Facility Cases?
Schenk:
Speaking of that, let me ask this.
Oftentimes in a nursing home case, because there’s more data, we make the argument that the injury occurred because of understaffing, and the understaffing occurred because the ownership was taking money out of the facility. Do you typically make those same arguments in an assisted living facility case?
Poulter:
Understaffing for sure, 100%.
The most recent trial verdict that I had against an assisted living facility, I didn’t necessarily follow the money, so to speak, on the understaffing issue, because I had security camera footage. It was a fall case, and the issue really turned on the person assisting her diverting her attention for a matter of a second.
So the person was there. Yes, maybe there was understaffing, but it wasn’t anything that was directly attributed to what was going on. So in that particular case, I wasn’t necessarily concerned with following the money, so to speak. But understaffing is always an issue. It’s something that I always look at and have experts comment upon.
Our statute here in California is written a little confusing and convoluted, so I defer that to the experts. But once you get someone who’s qualified onto the stand to explain that type of stuff to the jury, in closing argument it’s very easy just to get up and say, “Hey, look, they were understaffed, and that was a proximate cause of what’s going on here.”
Understanding the types of nursing home staff can help families see who is responsible for each part of a resident’s care.
Schenk:
There’s a very… like he’s on the Mount Rushmore of nursing home trial attorneys in the state of Georgia. His name is Lance Loree, and his kind of thing is, “You gotta find where the heat is. You gotta bring the heat.” And a lot of times in these cases, it is the staffing component, it is the fact that there’s no staffing ’cause of the greed and the profit.
In that particular case that you tried to verdict, where perhaps that correlation wasn’t as strong, was there any way that you did bring the heat? Was there a way to inflame, not inflame is not the right word, but to make it seem that there was a reason why this happened?
Poulter:
The training. I was going over kind of our comments together leading up to this podcast, this interview, and one of the things that you were discussing was whether or not assisted living facilities are under-regulated.
And our experience, or at least my experience here in California, is that even though it’s an assisted living facility, it’s still pretty heavily regulated. And if you have caregivers that are providing direct assistance, meaning they’re offering assistance for activities of daily living, whether it’s grooming, escorting, showering, eating, you name it, any of those activities of daily living, that’s considered under Title 22 to be providing direct care even though it’s an assisted living facility, and there are very strict training requirements, hourly minimums, those types of things, record-keeping policies that they must very strictly comply with.
Families in Georgia may also want to know who regulates nursing homes in Georgia.
So yeah, that’s where the rubber hit the road for us. And it’s also a pretty easy, I don’t wanna say veiled negligence per se argument, ’cause it is a negligence per se argument, in the sense that you’ve got a rule that’s actually a regulation, it’s a law that says you have to do X training, it has to be on these subjects, and it has to be for so many hours.
And if they didn’t do that, or if there’s no record of that, or if they’re not complying with the hourly requirement, it’s very easy to show that there’s the causation. That’s why this happened. And then you can actually ask the judge for an instruction that negligence is presumed because the violation of the statute that was intended for their protection is what proximately caused the injury.
Schenk:
So it would seem then that in an ALF case, you’re really digging into what were the policies and procedures for this event. If it’s a fall case, what are the policies and procedures for preventing falls, and how many inservices did you have? Did the staff have the proper training, certification, that kind of stuff?
And so you’re trying to dig out a pattern of, we’re here today because of what happened six months ago.
Poulter:
100%, and even more so than that, I like what they put on their websites and social media, because at the end of the day, they’re selling something. They’re selling you a service.
They’re selling you trust. They’re selling you compassion. And sometimes I wonder if the marketing department has any knowledge about what the rest of the facility’s doing, because on paper it looks fantastic, and that’s how they rope these families in. And so many of these cases that I’ve worked on, every story seems to be the same, that the second they signed the dotted line and got them into the facility, everything changed.
And so the policies and procedures, if they’re there, are great. You’re gonna find ways that they broke them. In-service, all that stuff’s phenomenal, but I like to highlight and lean into almost the predator-prey nature of the sales tactic that lured these families in on the promise of trust.
Question of the Week
Schenk:
We interrupt this conversation to bring you the Nursing Home Regulation Question of the Week.
This week, the difficulty level is medium. So if you get this right, the next time you’re going to get gas, you can go inside and get yourself a treat, which if you’re in Atlanta, that would probably be the QT. I would go to QT. They have 18 different types of slushy flavors. They have all the good candy.
I feel like they have more of a selection of Doritos than Kroger’s does. If you want the type of Doritos that you can’t get anywhere else, like if you’re not West Coast, we don’t have taco flavored Doritos in Atlanta. You don’t get taco flavored Doritos. You don’t get Tapatio Doritos.
You’re pretty much stuck with Cool Ranch, Nacho Cheese, and maybe what’s the one that’s like purple? I think it’s like chili, like sweet chili or something like that. You don’t get all the Dorito flavors, but when you go to QT, you can. So if you get this right, go into QT and get yourself one of the specialty flavors of Doritos.
Under 42 CFR 483.10(4), a nursing home must provide immediate access to any resident for A, the resident’s lawyer, B, the long-term care ombudsman, or C, the resident’s religious advisor?
And that answer is B. The nursing home must always provide immediate access to the resident for the long-term care ombudsman. So there are tiers of essentially access that the nursing home must make. So for example, for the attorney, it might be the case that the nursing home would only allow for certain hours of the day.
But the long-term care ombudsman can always go onto that property and see the resident.
Families can learn more about the Georgia Long-Term Care Ombudsman Program and how it supports residents.
How Do You Use a Facility’s Marketing Promises at Trial?
Schenk:
Tell me more about that in terms of, are you doing this at deposition, perhaps with the executive director? “Do you consider what happened to my client to be the white glove service that’s on the website?” How are you presenting that?
Poulter:
It depends on how big the facility is.
If it’s big, they’re gonna have more of the marketing budget, more of the social media presence, all of that stuff. And in the case of a larger facility, they typically will have someone dedicated to marketing and advertising. In the last trial I had against an assisted living facility, the first witness I called was the marketing and advertising person of this business.
My whole voir dire, my whole opening was all about the promises made, promises unkept, selling them trust, selling them compassion, and I put her on first, and she was this very, very sweet young woman who I know meant every word that she put into that website and those social media postings, but she just didn’t know what was happening when she left the building.
And so what I really wanted to tee up at the beginning is this was the hook, line, and sinker. This is how they reeled these people in. And on the other side of that, what I was trying to combat is the place was not cheap, and the family was paying for it. And I know that we have to combat the bias of certain people who say, “I would never put my family member in a place like that.”
And then they find out how much it is, and you’re combating all these different prejudices and biases. And so in order to justify the cost of what this family was willing to pay to have their family member stay in it, I really want to dial in the sales tactics and how they convinced, almost tricked these people into coming.
Schenk:
That’s so smart because, if the theme is broken promises, the first witness is the one who establishes what the promise was. That’s awesome.
Poulter:
Yes. And oftentimes what I see, and again, this is really applicable to the bigger facilities, is that the person who is the marketing and advertising person, director, whatever you wanna call it, they’re often there on the first day that the people come in to sign the contract or do the tour.
So not only have they put the stuff online, they’ve put the stuff on the social media presence. They are putting out to the public, “Hey, we are compassionate, loving, caring. We’re the best, highly trained, highly skilled.” And they’re the ones that are taking them around from room to room, and they show them the best rooms, they show them the best facilities, and then you have a situation where, in one of my cases, when Mom first got checked in and they put her into her actual room, it smelled so bad of urine that they had to ask for her to be changed to a different room.
Oh. So it’s like a… And not all of them are like this. I’m not trying to be a fearmonger or anything like that, but- That’s what I’m looking for in terms of trying to expose selling this type of a promise to this family, as much as I can and right out of the gate.
Families who notice a gap between what was promised and the care provided should know what you need to know about assisted living neglect.
How Is Handling an Assisted Living Case Different From a Skilled Nursing Case?
Schenk:
If there is an attorney out there that is basically only handling skilled nursing home stuff, what would you say in terms of what’s different that we haven’t discussed already for assisted living?
Like, how are you approaching, if at all, assisted living differently than you would skilled nursing?
Poulter:
Skilled nursing facilities, I rely more heavily on my experts. I never claim to be, nor espouse to be, the smartest person in the room. My largest, and this wasn’t a skilled nursing facility verdict, but my largest elder abuse verdict was ironically the very first elder abuse case that I ever took, and I didn’t know anything about it.
I just knew that I didn’t like what I was hearing coming from the daughter. That’s all I knew. I didn’t like what I was hearing. I thought it was BS what happened to her mother. And I’ve got this eternal optimism inside of me that if it rubs me the wrong way, I think I can convince 12 people that it rubs them the wrong way, too.
So in terms of skilled nursing facility cases, if it’s a highly complex medical causation skilled nursing facility case, I’ll refer it out. I’ll be the first one to tell you. I don’t get too terribly into the weeds in that. There’s a lot of very talented lawyers here around me in Los Angeles that are very intellectually stimulated by that type of stuff.
I’m a more meat and potatoes guy- … and I like it that way, and it’s served me well. I just find that those cases and those trials, obviously by their nature, are easier, but are more understandable for the common juror. But to answer your question in a long-winded way, on the skilled nursing facility cases, if I feel like I’m boxing a little bit outside of my weight class, I just lean in heavily to the experts and have them tell me where to look and what to do.
I cull up the written discovery as best as I can. And then depositions for me, I don’t know. I feel like I really thrive in depositions and cross-examination, and really no matter what the topic is, as long as I’ve got the good foundation from the people who know what’s going on, I go in there confidently and usually get what I’m after.
Attorneys new to these claims can also hear more about what makes assisted living facility cases different.
Schenk:
So you thrive in depositions. Why do you say that? What is your favorite aspect of depositions? And if it’s specifically long-term care, that’d be great, but why do you like depositions?
Poulter:
Written discovery, everybody who’s a lawyer who’s ever done written discovery or received written discovery from opposing counsel knows that it’s all, pardon my language, it’s all bullshit for the most part.
It’s all lawyer crafted. The deposition is where you finally get to get someone across from you. Yeah, in a post-COVID world, everything is remote now. I still take my depositions in person unless I have something really important going on that it just conflicts and it has to be done remotely.
There’s just something to be said about having someone across from you. And on top of that, in a lot of these cases, I’m moving for trial preference. And here, when you move successfully for trial preference, you got 120 days, and I don’t waste time on written discovery. And quite frankly, in those cases you are noticing and getting depositions before the defense really has an opportunity to form their defenses.
And so you don’t even really know what your main theory is yet. You spend maybe the first hour and a half, two hours of the depo just fishing and whatever. And then before you know it, the wheels start turning. You’re like, “I get it now. I understand where this is going.”
You start developing a theme, and you get four or five depositions in, and before you know it, you’ve got a case. But the depositions, I don’t know. I just like getting people in front of me. I battled early in my career, years and years ago, with, I’m a new lawyer, I’m intimidated.
This guy across, or this woman across from me, they’ve been doing this forever, and I battled with that just like everybody did in the beginning. I had my nice little outline questions typed out, and this, that, and the other. And what I learned is that whenever I did it that way, it was obviously horrible.
I wasn’t confident, but I wasn’t listening to what was being said, and I would go back and read all of my transcripts, and I’m like, “God, that was gold. How did you miss that?” And it’s because I had my face buried in a deposition outline. And you get a couple years under your belt, depositions, you get more comfortable, then you start trying cases, and that really opens the floodgates for your confidence.
And now, I walk in with a couple documents, maybe a one-pager with 10 things written on it, and I just go and listen to what they’re saying. And yeah, it’s served me well. I like it a lot.
Schenk:
You get to be a lawyer. I get it. That’s awesome.
Poulter:
Totally.
Schenk:
Brian, we very much appreciate you coming on the show and sharing your knowledge with us today.
Poulter:
Awesome. Thanks so much. I appreciate it, Rob.
Schenk:
I hope you found this episode educational. New episodes of the Nursing Home Abuse Podcast come out every single Monday. If you have an idea for a topic that you would like for me to talk about, let me know. If you have an idea for a person you’d like for me to talk to, let me know that as well.
If everything goes according to plan, this episode will be published on October 12th, which is Indigenous Peoples’ Day. So it’ll be Monday, so you might be off work. Maybe you’re on the treadmill at the gym listening to this, but I hope that you have a happy Indigenous Peoples’ Day.
And this week is World Hospice and Palliative… Oh, today, or no, not today. Wednesday is World Hospice and Palliative Care Day. So we remember all of our brothers and sisters who provide care in that area, and all the individuals that need the care in that area on Wednesday. And with that, folks, we’ll see you next time.