This is the Nursing Home Abuse Podcast. This show examines the latest legal topic and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.
Schenk: Hello out there. Thanks for joining us. I’m Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are Georgia trial lawyers and we happen to be your co-hosts for the Nursing Home Abuse Podcast. Again, thanks for joining us. We’ve got a lot of interesting things on the horizon of this episode.
Well first though, this is interesting. Will, I think we’ve already established that you didn’t have television growing up, but you do what the Nielsen’s are?
Smith: I know what the Nielsen’s are.
Schenk: Tell the viewers.
Smith: The Nielsen ratings, they give a certain number of people in America, well they track their viewing habits. I don’t know how they do it nowadays, I’m sure it’s more advanced.
Schenk: For the purposes of establishing like who’s number one for advertisers and things like that.
Smith: Yeah.
Schenk: Well to the extent, there is a Nielsen’s for podcasts, that is the interface that we use to upload our podcasts that is disseminated on the various platforms, the Nielsen ratings, so to speak, have come back.
Smith: Yeah.
Schenk: And the Nursing Home Abuse Podcast has literally dozens of downloads.
Smith: Oh, dozens!
Schenk: So can you believe that we’ve achieved that level of broadcast excellence across the country? Actually honestly though, I think we’re almost close to 1,000 downloads. Can you believe that?
Smith: That is amazing. That’s pretty amazing.
Schenk: That’s pretty good. That’s pretty good.
Smith: Considering it’s not necessarily the most exciting information out there.
Schenk: I would say that if you were to podcast Frasier, we would be right next to that, the Frasier podcast. But anyways, today in the podcast, now that we’ve got a little bit of the Nielsen housekeeping out of the way, today on the podcast, I think we want to address some things we’ve kind of talked about in the past.
We’ve talked about what the differences are between the civil and the criminal justice system. Today, we just talk about what are the ramifications of violating the various criminal statutes or administrative statutes if you run a nursing home and you commit abuse and neglect because there are repercussions aside from lawsuit, which is kind of our component of what the whole system is. We are attorneys that sue nursing homes, sue hospitals, sue assisted living facilities in order to get compensation for the victims of abuse. However, that’s just one aspect in the totality of the potential punishments, so to speak, that a nursing could have levied against it.
So let’s talk about it. Let’s dive into it a little bit. So Will, we were actually talking about this before we went on the air about if a nursing home commits abuse or neglect, the type of administrative trouble, the administrative citations or regulations that could be invoked if that happens.
Smith: Yeah, so basically, and what I tell people a lot of times when they call us is that we are just one potential action against a nursing home. We’re not the only remedy that you may have. We’re not the only method of enforcement of standards of care. We’re simply one and we have a very particular metrics of what we’ll look at to determine whether or not we’re a good solution. So for us, we’re looking for – we’re attorneys who work on a contingency, and our sole business model is to find these bad actions by nursing homes and force them to surrender money to the family, and we end up taking a portion of that money, and that’s how we move against these nursing homes. That’s how we can afford to do it.
So we have to look for situations where – and this is basically what I tell anybody who calls us – if you’re going to hire us, that nursing home resident is in a very bad spot. But injuries to nursing home residents and violations of federal regulation run the gamut. You can have everything from they skipped somebody’s Vitamin B12 a couple of days in a row to somebody dying of a sacral wound and they get osteomyelitis. So it’s clear that you don’t have attorneys suing nursing homes on every single infraction.
Schenk: Even though there is technically an infraction of the law.
Smith: Absolutely.
Schenk: There’s a continuum of things of something that an attorney would want to represent you for and something that they would not.
Smith: Absolutely. So what you have to keep in mind is that the vast majority of nursing homes, let’s take the state of Georgia for example, the vast majority, it’s about 70-75 percent of nursing homes in Georgia accept Medicaid. So they get money from the centers for Medicare and Medicaid services from the federal and the state government. The federal and the state government work together on Medicaid.
Schenk: And Medicare.
Smith: And Medicare. And you know, there are so many ways for individuals to get Medicaid. There’s a certain limit to how much assets you can have, but there are different types of trusts you can set up, and some way or the other, most people end up getting it. The other people that don’t, they may find other programs that help them pay for it. It’s very unlikely that a nursing home resident is just paying out of pocket for everything. And so what that means is that a nursing home resident brings money from somebody who’s guaranteeing it to the nursing home.
Schenk: Medicare or Medicaid.
Smith: Medicare or Medicaid, community service programs, there are a host of them. But when it comes to the dollars from the federal and state government, that opens them up to regulations. That opens them up to inspections. And that opens them up to penalties. So what CMS does is they have a host of different potential remedies. Two of the most common are what are called CMPs and termination or temporary termination of these Medicaid contracts.
So CMP, they’re called CMP – Civil Money Penalties – and they sound like thye have a lot of teeth and they seem pretty severe. They can be everything, and there’s a wide list – it could be a $100 fine up to a $10,000 fine. It can be per instance, so they go through and they find, “Hey, in the kitchen, you guys have the meatloaf at 67 degrees and it’s been out for three hours.” It shouldn’t be that way, so they might fine them…
Schenk: “You’re not labeling the food correctly,” or even putting bedpans in their appropriate place, that kind of thing.
Smith: Absolutely. “You’re not putting bedpans in a bag after they’re done. You’re not sanitizing them. We’re going to fine you 500 bucks. We’re going to fine you $1,000,” all the way up to, “You’re leaving medicine at the bedside of the resident,” or “You’re having CNAs pass out medicine,” or whatever it may be, that could be very serious for harm.
And they’ve got a grid, and I’m looking at this grid right now, and it runs from very little, which is potential for minimal harm up to actual potential for death or serious injury. And they have this grid and what they do is they go through and they try to make a decision on what’s the level of harm and based on the level of harm, what’s the appropriate action.
And there are three categories. So the first category is they have a directed plan – it’s Category 1 – you have a directed plan of corrections, monitoring and in-service training. So something like this, it’s typically going to be – it could be a minor violation of resident rights. It could be just a small technicality like the bedpan thing, which is important because you need universal precautions to prevent the spread of infections, but no one is about to die because of that.
Schenk: That’s right.
Smith: And then you’ve got Category 2, and this is where we get into not going CMP, but also the other one I was talking about, which is denial of payment, and that smarts. Typically on average, at least in Georgia, a nursing home resident brings in around $150 a day to the nursing home. So what will happen is until they are compliant, they are not allowed to accept new residents and get more Medicaid money, more money from CMS.
Schenk: And again, Will did a great job of laying out the broad, but just to reiterate on this, the nursing homes can take anybody’s money, but like Will said, the chances of somebody being able to afford to put their loved one in a nursing home and pay for it out of their own pocket is very rare. It’s usually Medicare or Medicaid services that are paying. However, because Medicare/Medicaid services are paying, they are allowed, the state and federal government are allowed to say, “If you accept this money to care for these individuals in your nursing home, you have to abide by these regulations by the regulations promulgated by the governments. And if you violate these regulations, then we are going to do one of these things on this grid, whether it’s withhold payment, fine you, whatever it is,” but that’s the system.
Smith: But certainly, when you’re looking at the long-term care setting, I mean it’s generally about $65,000 a year to house and take care of a resident. And listen, I don’t think that that’s too much. I really don’t. I remember – and this always stuck with me – I remember one day listening to a family member complain to me about the treatment their mom was getting, and to be honest with you, this was a really good nursing home and her mother was getting good treatment. People are just – their loved ones, they’re highly emotional. And she was saying something like, “We pay $3,000 a month,” and I was thinking, “Lady, that’s $100 a day. You can’t go to an extremely nice hotel and have round-the-clock medical service, round-the-clock food service, round-the-clock just personal service of whatever you need. Imagine going to a hotel and saying, ‘Hey, I need to go to the bathroom. You guys take me now.’ You’re going to be paying a lot more than $100.”
So I completely understand why long-term care is so expensive, but with that in mind, most people cannot afford that and the federal government will pay, and these nursing homes are more than happy to take their money. The problem comes in when they take that money and they don’t use it for staffing, they don’t use it for the residents and they end up having these deficiencies. And we stopped at Category 2, which is denial of payment, which is painful.
Schenk: Sorry about that, let’s get back in.
Smith: Then you got Category 3, which is temporary, so you’re no longer eligible to receive money from CMS, and what happens in that situation is you’re no longer a certified nursing home. So you have to – those residents have to be moved somewhere.
Schenk: That’s right. It’s like a restaurant or a bar losing its alcohol license.
Smith: Oh yeah.
Schenk: Lights out.
Smith: It’s lights out. Or you can be fined up to $10,000 a day or $10,000 per instance. But imagine that $10,000 a day. Now all of this sounds really scary and it makes you think, “Good Lord, these places don’t want to mess around.” But the reality is, and I’m basing this off, well I’m going to use two things to support this – one, there’s an article I was reading about a woman in Illinois, and the other one is my own experience.
She was a former registered nurse who had worked in nursing homes. Her daughter had mental issues. She had schizophrenia and she had several other issues. And like I said before in podcasts past, it is not 100 percent elderly in skilled nursing facilities. We have a client now who is in his early 30s. So it depends on what the reasons may be, but if somebody needs long-term care in a residential situation, for example, a nursing home, then this woman’s daughter was in her early 30s and she was placed in this nursing home. She ended up, despite her mother’s efforts, getting a sacral ulcer, which is what happens so many times, and she ends up dying.
But the article goes on to talk about the method and what happens when these nursing homes are fined. So nursing homes have rights and they have certain rights under the federal regulations, and there are certain rules under the federal regulations. So it’s not the case that state inspectors come to a nursing home and they find a violation and they go, “Well now we’re going to charge you $5,000 a day until you get this fixed.” That never happens.
What happens is immediately after, the nursing home can go, “Well we’d like to appeal that decision,” and that process can take a while. In addition, there are certain rules in place that immediately reduce that amount from $5,000 to probably half, like $2,000. But this article, it’s an interesting article that was in the American Bar Journal online, and it was the State of Illinois assessed a total of 306 million in fines from nursing home death cases in Illinois. This is in Illinois. I think this is around 2010.
So the State of Illinois assessed against nursing homes in Illinois for deaths $3 million in fines, yet that number is ultimately reduced to 1.6 million for the final assessment. And because this had to do with 114 nursing home deaths, the average fine amount for a death was just over $14,000.
Schenk: I mean isn’t that ludicrous?
Smith: That doesn’t make any sense. 114 times 114?
Schenk: No, the average final amount.
Smith: Oh yeah, the average final amount for a death is just 14,000, and actually somebody from Atlanta here from Arnold, Gold and Gregory.
Schenk: That’s a big firm.
Smith: AGG, yeah – was basically saying it’s a cost of doing business for nursing homes, and this is a guy, I’m not going to say his name, but this is a guy who’s a former federal regulator who now represents skilled nursing facilities on regulatory issues, was saying that essentially it is a cost of doing business for them. I mean you have to think about it – if the average final fine amount for a death is just over $14,000…
Schenk: On the administrative punishment side.
Smith: On the administrative punishment side.
Schenk: I mean I’m not going to say you have no incentives, but you’re not incentivized at least from this standpoint to attempt to make the place safe.
Smith: And what you have to remember is that $14,000, and one of these nursing homes in Illinois reported a net income of 5.2 million in 2014, so $14,000, I mean it’s kind of like the back story of the Stella Liebeck case with McDonald’s that they found out that there had been many complaints about that really hot coffee, but it made more business sense for them not to change it.
Schenk: Correct. So just so the viewer, the listener is aware, the Stella Liebeck case is the famous McDonald’s hot coffee case where the woman went through the drive-through, got it spilled on her, and if I remember correctly, maybe you know this, I can’t remember, but there’s actually a really good documentary about that case, but the attorneys in closing arguments argued, obviously successfully, that the punitive damages, the punishments, and we’ll talk about punitive damages in an upcoming podcast, but the punitive damages should equal the number, the profit on all coffees sold in one day.
Smith: Yeah, and I think that’s something that would be great if we started seeing that in nursing home cases, but yeah. So the reality is not only do these hefty fines end up being severely reduced, but I can tell you right now that I don’t know for an absolute fact that we were given a heads up that state inspectors were coming, but I can tell you this. Miraculously anytime state came, we ended up having enough staff. Oddly enough, we could go an entire six-month period without having enough staff, and then all of a sudden, we have enough staff when state comes.
Schenk: So that’s some consideration with regards to administrative penalties, penalties coming from the Centers for Medicare and Medicaid Services. There are also punishments for violations of criminal statutes. So for example, so if the administrator of a facility has reason to believe and knows and disregards the fact that they have convicted criminals that have been convicted of sexual abuse in the past working in their facility, that could open them up to criminal penalties, and obviously with criminal penalties, there’s the possibility of not just fines but jail time. And that’s the big difference between the administrative punishments levied against nursing homes and really the criminal violations because you get handcuffs and go to Sing Sing.
Smith: Yeah, and remember that there are also other violations that are criminal violations that are not actually abuse or directed towards the resident, and those have to do with false claims. And those are pretty frequent. We don’t come across them that often, but that’s when they bill the CMS…
Schenk: The nursing home.
Smith: The nursing home bills CMS for services that they don’t provide. That is a federal crime and federal prosecutors will go after them severely for that.
Schenk: Right. So there’s that.
Smith: And speaking of crime in nursing homes, did you hear what happened yesterday?
Schenk: Well yesterday being the day before we taped this?
Smith: Yeah, the day before we taped this.
Schenk: So what happened?
Smith: There was a shooting at a nursing home in Ohio last night. It had nothing to do with the nursing homes other than this random bad guy just decided he was going to take hostages at this nursing home.
Schenk: That’s terrible.
Smith: And there were about 23 residents in there. None of them were killed. There were some minor injuries, but the worst part was there was an Ohio police officer, I assume he was a local police officer, I can’t remember the name of the city, but he was killed. He was murdered and he had six children.
Schenk: That’s terrible.
Smith: Yeah, it’s very terrible, but it popped up in my news feed that there was a problem in a nursing home. Awful. And nursing homes are pretty soft targets. It’s something that’s always concerned me.
Schenk: Yeah, our thoughts go out to the family of the officer. That’s a terrible tragedy.
Smith: Yeah.
Schenk: Well speaking of a tragic death at a nursing home, this is actually a story – transition – we’re going to talk about what happened in Stroudsburg, Pennsylvania earlier this year. We have a story of a nursing home is being sued. The nursing home is Pocono Tranquil Gardens, it’s being sued by the family of dementia patient and resident Orlando DePascale for wrongful death.
Apparently the family of Orlando, when they were admitting him to Pocono Tranquil Gardens, because of his dementia and because he had the tendency to walk at night, to wander at night, they requested his bed be fitted with bedrails. And the nursing home in response said, “That’s against our policy.”
So fast forward I believe a certain amount of time later, I don’t even know if it was a month later, Orlando DePascale with his dementia got out of bed, just like his family had predicted, and fell and hit his head on the floor. The staff found him allegedly between an hour and two hours later, but although they noted, and again, we see this time and time again, Will and I as nursing home lawyers, but although they didn’t note any observable physical signs of wounds, they noticed a drastic decline in mental capacity and confusion, which is synonymous with a head trauma, a head wound. Even though you might not see it, there’s something going on.
Smith: Hematoma.
Schenk: Hematoma. So he died. I believe the next day, he was found unresponsive, taken to the hospital, and he passed away from a subdural hematoma. I was going to ask Will, there are a couple components to this and we can unpack it, but the first component to this is why that nursing home said it was against their policy to have bedrails.
Smith: Well for two reasons. One, we talked about this before – residents have certain rights, and as much as the family may want to prevent them from getting up out of bed or living their life or getting into a relationship with another resident, they cannot control every aspect of their life, and bedrails can be a form of restraint. And so a lot of nursing homes look down on that for dementia patients.
Second, bedrails are extremely dangerous. It’s a huge concern when you have a child in a crib, so if he had bedrails up, what’s to say he wouldn’t have gotten caught in the bedrail and break his neck, break a leg or just trip and fall just trying to get over the bedrail. So there are other things we will do in a nursing home, like lower the bed all the way to the ground so that the bed is almost just the top of the bed may be less than a foot or a foot off the ground, put pads all around the bed, put an alarm on him so you know when he gets out of bed. But I certainly agree with the nursing home’s decision not to use a bedrail in this case.
Schenk: And that’s actually a good point in terms of all this strategy that the nursing home could have employed in this, and again, a nursing home is obligated to perform a risk assessment for falls for all new residents, and then obviously even though the nursing home may or may not have been, and probably not have been in violation for refusing bedrails, they should have done a host of other precautions to prevent this tragedy from having happened. In my opinion, that’s the first component of their negligence is that they should have been able to prevent this fall.
Smith: And preventable fall is one that takes into account a resident’s rights versus a resident’s safety, so it’s a totality of the circumstances.
Schenk: Exactly. And so they could have done a whole bunch of things that aren’t listed in this article, but they could have done a bunch of things that could have prevented this fall, but more importantly, it is incumbent on the staff, once they observe or come upon a nursing home resident that’s laying on the ground to do an assessment like, “Is this person wounded?” And if they notice that there is a decline in mental ability, they know there’s a cognitive issue going on, they have to report it and they have to get some medical treatment. They got to take him to the hospital. And if anything, they’ve got to notify the family.
Smith: Absolutely.
Schenk: That’s a tragedy in Stroudsburg, Pennsylvania, and we will follow up on that lawsuit to see how it goes, but I think it’s going to go in the favor of the family.
Smith: Yeah, it’s definitely negligence. It’s just not a failure to use bedrails. But speaking of failure, I hope we have not failed to inform and enlighten you.
Schenk: Nice.
Smith: I actually got to do one. And with that in mind, that is the end of our podcast.
Schenk: That’s right. And again, because we are a video podcast, not just an audio podcast, you have several ways to consume each episode. First you can download the audio on Stitcher or iTunes and be sure to subscribe to us there, or you can watch the episodes, particularly this episode at NursingHomeAbusePodcast.com or on our YouTube channel. New episodes of the Nursing Home Abuse Podcast are available for download every single Monday morning and we look forward to talking to you again. Until next time.
Smith: Until next time.
Thanks for tuning in to the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher, and feel free to leave us some feedback. And for more information about the topics discussed in this episode, check out the show website NursingHomeAbusePodcast.com. That’s NursingHomeAbusePodcast.com. See you next time.
