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: All right, hello out there. Thanks for joining us. My name is 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. So happy that you could join us for this session. I will say this – this is going to be one of those times where it’s probably beneficial not to watch the podcast and just to listen because it could possibly be – and Gene, our producer, will have to verify this – but this might be 150 degrees in here.
Smith: Oh, it absolutely is. And it’s not only extremely hot, but I can still hear you eating that mango slice, and it sounds like projecting that sound of somebody eating a mango slice into my ear while it’s extremely hot, I don’t know what I’ve done wrong but I know I’m in some sort of horror film.
Schenk: Or on an island. It’s like island life. It’s hot, there are bright lights on you and you can hear the sounds of someone eating a mango.
Smith: Oh no.
Schenk: It sounds like paradise.
Smith: No, it’s hell. It’s absolute hell.
Schenk: I just got back from Thailand and it wasn’t this hot.
Smith: Yeah, I would imagine.
Schenk: Yeah, I don’t know why it’s so much hotter today.
Smith: Because the air is not on.
Schenk: That’s part of the reason. And it’s warmer outside. So I guess we’ve solved that mystery. But anyways, sorry everybody. So lots of interesting things to talk about on the podcast today. We really touch on this a little bit. I think it’s because we get asked about this a lot, but it’s basically the lines between civil justice, which is what we do, we sue nursing homes, when that line crosses into criminal, where we hand that over to prosecutors who represent the state to bring criminal sanctions to nursing homes, so it’s the two different avenues for justice – criminal justice and civil justice.
Smith: And the statutes have changed over the course of the past eight or nine years in favor of more protection, and when I say statutes, I’m talking about the official code of Georgia that deals with both exploitation and neglect.
Schenk: Although I think you can say fairly that across the country, states are becoming more and more, I guess what you could say more involved in updating their codes against elder abuse.
Smith: Absolutely. Absolutely. I will say one thing, and this is interesting, that Georgia, and we’ve talked about this before, when it comes to civil negligence, when it comes to civil problems with nursing homes, Georgia is one of the worst offenders. I think Texas has been reigning king for a while. Georgia is up there. Georgia, we are the seat of the new federal task force that is targeting elder exploitation and abuse. However, and this is an interesting article that I’ve found and it’s recent and this is from a local Fox affiliate, and it’s that the state of Georgia is ranked 13th-best overall when it comes to elder abuse protection according to a WalletHub study. So that’s interesting. Now understand that we’re talking about elder abuse.
Schenk: And there’s a difference between elder abuse and basically abuse and neglect committed by an actual facility.
Smith: So abuse is willful affliction of physical pain, physical injury, mental anguish and reasonable confinement. So abuse has an intent to it. And we call ourselves the Nursing Home Abuse Podcast – we mean that in a layman’s term, understand that people kind of lump abuse and neglect all together into the category of “Wrongs Against the Elderly,” or they can also be wrongs against elderly residents. But abuse is willful. Negligence is failure to meet – negligence on the civil side is failure to meet a standard of care.
But over the past eight, nine years, the Georgia statute has changed. One example is prior to 2009, and I’m looking at this is a handout from the district attorney’s office, because it is the district attorney’s officer that prosecutes a lot of the elder crimes. And prior to 2009, the statute was OCGA 30-5-8, and it was the abuse, neglect or exploitation of any disabled adult or elder person, and the elder person – and this has not changed – is anyone 65 years of age or older who is not a resident of a long-term facility. So it’s anybody 65 age or older. And it’s the abuse, neglect or exploitation of any disabled adult or elder person shall be unlawful. This is prior to 2009. Elder or disabled victims living in facilities were not covered by this statute – no exceptions.
Now you fast forward here to 2015, and what happens over the course of time is that crimes in Georgia are covered under Title 16 of the official code of Georgia. So any time you’re charged with a crime, it’s going to begin 16-something – so murder, rape, molestation, theft, these are all violations of the criminal code, which is Title 16.
What you had in the beginning is this negligence and exploitation under Title 30, which is not a violation of the criminal code. It can still be a violation that comes with enforcement and comes with penalties, but it’s not under Title 16. What happens under the course of eight years is that it eventually moves to its own section under Title 16 so that nowadays we have 16-5-101, Neglect, and that is a guardian or person supervising the welfare of or have an immediate charge, control or custody of an elderly person, disabled adult or resident can not willfully deprive the person of healthcare, shelter or necessary sustenance to the extent that the health or the wellbeing of the victim is jeopardized. And now the definition of an elder person is only somebody 65 years of age or older. So I actually think I misspoke earlier when I said it hasn’t changed. What I meant was the age range hasn’t changed. So that’s pretty significant.
So I want you to consider what has happened over the past seven, eight years, is that in the very beginning, elder neglect, exploitation, abuse was under an administrative statute under Title 30. It did not include residents of long-term care facilities. And the definition of an elderly person was somebody 65 years or older, but it specifically excludes residents of long-term care facilities to what we have now, which is neglect has its own specific statute under the Georgia Criminal Code, so it’s in the same section of the Georgia code under the same title as rape and murder and theft and drug charges.
Schenk: So what significance does that have?
Smith: That it puts it under the purview of the prosecutors of the state of Georgia.
Schenk: And ultimately, if a facility or an employee of a facility is found to have violated this criminal code, then it opens them up for jail time, sanctions, fines.
Smith: And that’s where we get into – it can get pretty complicated. Let’s say that the legal term is respondeat superior – it’s vicarious liability that employers are liable for the actions, to a certain degree, of their employees. And it’s just going to depend on the facts of the case.
Let’s say that a nursing home does a background check on Kevin. Kevin’s going to be the new CNA. And nothing shows up. They give Kevin all the proper training. They never have any problems with Kevin whatsoever, and then out of the blue, Kevin comes to work one day and something in his mind has snapped and he pulled out a knife and he stabs and kills a resident. So Kevin clearly has a lot bigger concerns than just the part of Title 16 that deals with neglect – he has actually murdered somebody. To what extent is the nursing home going to be liable?
Schenk: Under this code?
Smith: Under this code? None. I mean this code has to do with the individual itself. But to what extent are they going to be liable for an employee violating this specific code? Probably not very much. I mean they did a background check. They had no reason to suspect they would do this. So Kevin is going to be punished. Let’s say instead of stabbing someone, he just willfully abuses them or neglects them and he doesn’t give them their medicine. Again, unless they have notice of it, it’s probably not going to be attributed to them.
Where this is going to come into play a lot, and these are places that you must, absolutely must be careful of, where this new statute is going to come into play are these adult daycare centers, and I have investigated a couple of these before, and these are super, super sketchy.
Skilled nursing facilities, nursing homes, everything from nursing homes to LTACHs – LTACHs are long-term acute care hospitals – they’re like souped up care for people that need long-term care more than just a nursing home, but assisted living, nursing homes, LTACHs, a lot of these places are – even ones that have committed a lot of negligence, they have a lot of legitimacy corporate-wise. They’ve got insurance. They’ve got a couple LLCs backing them. So there’s at least this impression of professionalism. Some of these adult daycare centers, it’s just an individual who has told people in the community, “Look, we’ve got somehow accepted by CMS to take in,” and it’s just at their house, “to take in a couple of people and to watch out for them,” and they get paid by CMS. I think that’s where you’re going to find this statute come into play. And to clarify what I mean, the small adult daycares that are run by personal homes out of people’s homes, I think those owners are going to be facing a lot of these charges.
Schenk: When you say adult daycare, can you elaborate on that for the listener, for the viewer, like literally it means the family of the loved one, it’s like you take them there in the morning and you leave with them at night?
Smith: Yeah, so technically an adult daycare is not a place you leave your loved one – I always have to hit this microphone – where you leave your loved one overnight. The reason that I kind of mix the term is that in the few cases that I have investigated, the residents’ families themselves call these places where their loved ones spend the night “adult daycares” and that is incorrect. Specifically there was one in Marietta that I recently investigated where the family was telling me, “Yeah, Daddy was at this adult daycare,” and the woman, the owner of it even called it an adult daycare, but I, pretending to be somebody else, go in there and walk around and talk to her and find that these residents are spending the night. And when you’re more than just an adult daycare and they’re spending the night, there are a lot more regulations involved.
Anyways, my point of the matter is what I think we’re going to see a lot of when it comes to violations of this statute under Title 16 is in these more intimate settings. So personal care homes, which do watch these people overnight, adult daycares, which are not supposed to watch them overnight, and certainly situations where somebody is taking care of a loved one, we get calls like that all the time. I don’t think that this criminal statute is going to come up in the bigger, more established nursing homes and assisted living facilities.
Schenk: Correct. And I think the news bears this out is that it will be when the grandson, the son, the cousin of a loved one who’s disabled and elderly abuses them or takes advantage of the Medicare/Medicaid services. That’s going to be the person who’s subjected to this particular criminal code.
Smith: Yeah, or if you got the owner of a special care home who’s got five residents who’s not giving them something they need.
Schenk: That’s right.
Smith: But with that in mind, where are we now?
Schenk: So this topic came up last week. We’re going to shift gears out of the criminal code and back into the civil justice system, and again, the civil justice system is what Will and I are involved in, which is to say we are attorneys representing loved ones who’ve been injured or killed in a nursing home, and we sue the nursing homes for the purpose of acquiring compensatory damages for the loved one’s family.
So generally in a lawsuit, there are different types of damages that are available to the family, to the loved one, to the person that was injured. The damages are going to be things like money for medical bills, money for pain and suffering.
Smith: The value of somebody’s life.
Schenk: Damages that are for the purposes of making the individual that has been injured whole again to the extent that money can, and unfortunately, no one’s a magician so we can’t bring back people that have passed, we can’t make arms grow back, things like that, so as Americans in our civil justice system, we’ve said, “Look, the only thing we can do that’s fair is to say that money is going to be what we ask for against defendants to make people whole, so money to compensate to make someone whole.” That’s one type of damage.
Another type of damages that are sought in cases like we bring are called punitive damages. So punitive damages are a different type of animal altogether. Punitive damages are levied against someone, in our case – it’s me hitting the microphone – in our case, the defendants being nursing homes, skilled nursing facilities, assisted living facilities, hospitals. Punitive damages are to punish the defendant and to punish in the sense that when you make a defendant pay money as punishment, the understanding is they’re probably going to do things to correct whatever behavior it was that caused the injury or the death. In other words, it’s a deterrent. So punitive damages – if a nursing home gets a punitive damage award of a couple million dollars for a wrongful death based on a fall, maybe that nursing home will rewrite its policies and make it safer for the residents there who are at a risk for falls, something along those lines.
We had spoken last week about the Liebeck case, the McDonald’s case, the famous McDonald’s hot coffee case where everybody’s like, “Well everybody knows that coffee’s hot.” Not this hot. So McDonald’s, as a general principle, actually science as a general principle says that if you keep coffee, I think in this case – and I could be wrong – but I thought it was like 140 degrees.
Smith: I thought it went up to 180 degrees or something ridiculous.
Schenk: It could be. It was extremely hot.
Smith: It was just above boiling.
Schenk: No, boiling is 212.
Smith: Is it?
Schenk: It’s below boiling, but very close to it. But science says coffee lasts longer the hotter that it is, like the McDonald’s employee can come in at 5 a.m. and put on that pot of coffee and it’ll last until noon if it stays at 180 degrees.
Schenk: Stays until noon.
Smith: Christopher Walken over here.
Schenk: And it will stay good. So McDonald’s said, “Look, we recognize there’s a danger,” or allegedly they said, “We recognize there’s a danger of burns, possibly third-degree burns if this gets dropped on somebody, but it’s worth it because of all the money we can save not throwing coffee away.” So here comes Ms. Liebeck, takes the cup where the top isn’t on well enough, she puts it in between her legs and it spills out and gives her third-degree burns over her legs and groin area. And so in that case, and again, there’s a really good documentary on this, I can’t remember – can you look it up?
Smith: Oh, it’s “Hot Coffee.”
Schenk: It’s called “Hot Coffee?”
Schenk: “Hot Coffee,” the documentary, and the attorneys in that case, they obviously asked for compensatory damages, general and special damages, the damages for medical bills, compensation for pain and suffering, the scarring and all the pain that she went through, but they also asked, they said, “Listen, giving Ms. Liebeck compensatory damages to make her whole may not teach McDonald’s a lesson because McDonald’s is a goliath. So we are going to ask for punitive damages to punish their behavior because hopefully they will change their policy if they have to pay enough money,” and that’s what they did.
And there are ways of persuasion and there are ways to get people to conceptualize things, in this case, get juries to conceptualize things, and so in this case, the attorneys told the jury, “Let’s do this. What amount can punish McDonald’s? Let’s ask for the amount of money, revenue made from coffee sales for one day across the country, and that’s what we’re going to ask for.” And it turned out to be however many millions of dollars in sales, and that theoretically caused McDonald’s to change their behavior going forward, not keeping coffee as hot.
So at the end of the day, punitives are to punish and it’s based on behavior that is wanton and/or intentional, something that’s a pattern of just disregard for the safety of other people. And I’ve got a really interesting, it’s a special report generated a few years ago by the Department of Justice regarding punitive damages in state courts, but punitive damages are actually very rarely given because the standard of proving them requires a specific set of facts that can be difficult to prove, so that among the trials where punitive damages were requested by the plaintiff and the plaintiff won, only 30 percent received them that asked for them. So let’s see – “Plaintiffs received punitive damages in 30 percent of the 1,761 civil trials in which these damages were requested and the plaintiff prevailed.” And this is interesting – “The median punitive damage awarded was $64,000, and 13 percent of cases with punitive awards have won damages of $1 million or more.”
Smith: Now there’s something very important to note here, which is in Georgia, we have a cap on punitive damages.
Schenk: Several states have caps on punitive damages, particularly in medical malpractice cases.
Smith: So in ours, well we used to have a cap on non-economic damages for medical malpractice cases and then Nestlehut was the case that overturned that. So now, with the exception of intentional torts or product liabilities, the cap on punitive damages is $250,000. So it’s a quarter of a million.
Schenk: And I believe in some states, a portion of the punitive damages go to the state.
Smith: Yeah, yeah. So it’s unfortunate because you can get an award of $100 million in punitive damages, but the judge is going to have to reduce it to $250,000.
Schenk: And I guess from a justice standpoint, theoretically in those cases, the jury has awarded an amount of money in compensatory damages which does the job of making a person whole. So I understand from a standpoint it’s almost double enrichment to receive the punitive damages, but then you’re losing the incentive for the company to change its ways if they’re not having to pay at all the punitive damages. So I understand – I wouldn’t like that, but I understand that if it goes to state, at least the defendant is still being punished.
Smith: I will say this, and you know, it’s really hard to discuss this in depth because in Georgia, there are not a lot of nursing home verdicts out there. We have so many motor vehicle negligence cases that we have companies called VerdictSearch or whatever that help you look for verdicts, because there are literally tens of thousands of them. Nursing home cases don’t have that because most of them settle, like we said, in back rooms and they’re confidential. But I would imagine that if you reach the point where you have been so grossly negligent in exhibiting the lack of care…
Schenk: In a pattern.
Smith: …In a pattern, and so wanton in that lack of care, and you have shown that by clear and convincing evidence, which you have to, that somebody is probably got a lot bigger problem. Somebody in the chain of command, whether it’s the administrator or up or above, maybe a director of nursing, maybe, but it’s going to be an administrator or above, somebody is probably looking at some other type of investigation, like we were talking about, the False Claims Act or something. I mean somebody’s head is on the chopping block.
Schenk: Another interesting component to the punitive damages here in this special report is that it’s likely when punitive damages are awarded, based on their severity, I would assume, post-trial motions and appeals shoot up as a rule. So litigants filed motions for post-trial relief in nearly half of civil trials with punitive damages, and appeals in about a third of civil trials with punitive damages. So obviously there’s an incentive from the defendant’s standpoint to do whatever they can as a matter of law to fight the levy of the punitive damage awards.
Smith: Absolutely. And also you cannot discharge punitive damages in bankruptcy. So if you company goes bankrupt…
Schenk: You’re still on the hook.
Schenk: And we bring punitive damages up in the sense that those are one of the questions we get asked immediately is, “If this goes to trial or this goes to verdict, are we going to be able to get punitive damages?”
Smith: Yeah, I had somebody call me just the other day who said, “I want to seek punitive damages against this nursing home,” and I understand that sentiment, but it is not – people don’t understand the legal definition of these words. So for example, let’s say that you’re driving in your car and you rear-end somebody because you weren’t paying attention and kills them and it kills their child, and it destroys that family’s life and there’s no way they can ever come back from it, just because you weren’t paying attention. Can that family seek punitive damages against you? No. Absolutely not. So it doesn’t matter how horrible the outcome is. It doesn’t even matter that you weren’t doing what you were supposed to and you were looking off at the side of the road and not paying attention and just being completely negligent. That’s not a legal thing. That doesn’t meet the legal standard for punitive damages.
Now let’s say you’re in a motor vehicle and you’re drinking and driving and you cause an accident…
Schenk: And you’ve done that several times.
Smith: Yeah, or even once is enough for punitive damages in Georgia for drinking and driving.
Schenk: In Georgia.
Smith: Yeah, so it has to cross that level.
Schenk: Yeah, and that might be intuitive. So here’s another example is cell phone usage. So if you’re in your car and you’re on your cell phone, and because you’re on your cell phone, you cause a wreck. That alone cannot be the basis of punitive damages in Georgia.
Smith: Not yet.
Schenk: Not yet. You have to have a repeated problem using the phone and getting into wrecks in Georgia. That’s the issue.
Smith: Yeah, so that’s what it is. It doesn’t matter how severe the injury is. What matters is basically the state of mind or the past actions of the individual doing this.
Schenk: And actually speaking of cell phone usage for driving, I have to say hats off to Will in this episode because I don’t think he’s looked at his cell phone one time during the entire broadcast. This might be the first time that’s happened. I’m seriously – that’s impressive.
Smith: I’m working on it because I will admit that my name is Will Smith and I’m a techno-holic.
Schenk: What? Did you make that… Is that something that happens?
Smith: I did. It’s a portmanteau.
Schenk: A what?
Smith: A portmanteau. It’s a combination of alcoholic and technology.
Schenk: You know what? I’m just going to assume that’s how that’s pronounced, but that’s actually the first time I’ve ever heard that word spoken.
Schenk: A portmanteau. Like Kathmandu.
Smith: Well Kathmandu is a location.
Schenk: Or a song by Bob Seger. And on that note, we’re going to turn the page.
Smith: Turn the page! Yes!
Schenk: We’re going to turn the page…
Smith: Turn the page.
Schenk: …To end this episode. Just to let you know, this Nursing Home Abuse Podcast is a video and audio podcast, so we encourage you to consume it in several ways. You can either download the audio on Stitcher or iTunes, where you can subscribe to us, or you can check us out video-wise on our website, which is NursingHomeAbusePodcast.com, that is NursingHomeAbusePodcast.com, or check us out on our YouTube channel. New episodes of the Nursing Home Abuse Podcast are available for download and viewing every Monday morning, and we look forward to seeing you next. time.
Smith: See you 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.