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 and welcome to the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are Georgia trial lawyers and we are your hosts for this episode of the Nursing Home Abuse Podcast. We are glad that you could make it today. We don’t have quite the viewership, or I guess I should say audience, to warrant sponsors to the show, but if there was any product that gets this show going as far as I’m concerned, besides coffee, it’s mango slices. I am quite addicted to mango slices from Whole Foods, from the package, not the box. I got the wrong type of mango slices this week. I said your only job was to bring me mango slices on the way here. He brought the wrong time, which are the ones with sugar in them. I’m talking about the ones with organic sliced mangos, dehydrated, no sugar added. They’re the best. But I have made Will a vow that I won’t eat them on air this week because it’s really gross. I’m going to have to look that up. I don’t know what that is. Some people are afraid of spiders. Some people have things they don’t like, like some people don’t like looking at little tiny holes. That’s a thing too – like looking at beehives, that’s a phobia. I don’t like the sound of people eating food.
Smith: Oh, and it’s funny that you bring that up because very recently, I had these headphones on which magnify sound to the nth degree, and Rob was eating a mango slice into his microphone, so that he was essentially pumping the sound of his eating the mango slice right into the core of my brain, with no ability for me to escape it whatsoever.
Schenk: Yeah, he was toast. That’s my worst nightmare actually. And on that note, let’s do the hard transition into the content of this fabulous episode. On the agenda of this episode is the clarification of the different types of facilities that individuals with disabilities or elderly persons can be admitted into for the different levels of treatment that they require. And on top of that, talk about each one of those, what they do, but on top of that, talk about what the center of care is in terms of negligence case for each one. So which one of those are we going to start off talking about?
Smith: I guess we’ll talk about just the types of long-term care facilities. So you think about the different types of medical treatment that you get – let’s say you break your arm. You’re going to go receive medical treatment and you expect to be there 12 hours, maybe even overnight, whatever. It isn’t long-term care. You know what long-term care is.
Long-term care is either the rest of your life in a residential setting such as a nursing home or assisted living facility or it is because of a severe medical condition that requires round-the-clock consistent and constant medical care, what you might receive in what’s called an LTAC. An LTAC is a long-term acute care. Sometimes it’s LTACH with an H – acute care hospital. But essentially what we’re looking at here is assisted living, what we typically see, what we deal with are assisted living facilities and nursing homes.
So what are the differences between those? In Georgia, the main difference between an assisted living facility and a nursing home is that a nursing home requires a physician’s referral. And generally speaking in a non-technical sense, the big difference between an assisted living facility and a nursing home is the amount of SNF, or skilled nursing facility required for the resident.
So an assisted living facility, most of the residents pretty much take care of themselves and they don’t require a high level of skilled nursing care. Nursing homes – it’s different. The assisted living facility has slightly different standards of care that the residents are not referred by a doctor. They don’t have the same risk assessments. But at the end of the day, they still have to take care of these residents and they still have to watch out for them, and they can absolutely still be liable for negligence.
But the main difference between a nursing home and an LTACH is that the nursing home is residential. It has activities. It has a communal dining area. They’ll throw parties. It’s supposed to be like somebody’s home. An LTACH is a hospital first and foremost, and the hospital, the rooms are like hospital rooms. You’re not going to have…
Schenk: Pictures of family.
Smith: …Pictures of family and things like that. And the reason that we bring these up is that a very common progression of injured residents is from assisted living facilities, and they start getting progressively worse. Let’s say Ms. Johnson falls and breaks a hip at an assisted living facility. Now she needs a higher level of skilled nursing care, but still wants to be in a residential setting, so she goes to a nursing home where she’s supposed to get physical therapy, where she’s supposed to get round-the-clock nursing treatment, like I said, physical therapy. But while she’s there, they fail to treat her. They fail to turn her. They fail to take care of her. And that negligence ends up with a decubitis ulcer that progressively gets worse and worse to the point where she now needs round-the-clock care like the kind you would find in an ICU, and it’s not so important that she has the residential aspect.
Well then she goes to the LTACH, which is designed to get her this intensive medical services and treatment around the clock for an undisclosed and undetermined period of time. Typically people in Ms. Johnson’s situation don’t come back.
Now let’s say Ms. Johnson goes into the assisted living facility or the nursing home and she has stage four pancreatic cancer. If anyone has any experience with pancreatic cancer, they know that at stage four, it’s the end of the road. So what she would then potentially additionally get is what’s called hospice.
And I’m just going to read to you the definition of what hospice is in Georgia, and this is the Georgia definition of hospice under the Georgia regulations. Hospice means a public agency or private organization, so it can be somebody from the state, it can be a local company that provides hospice care, or unit of either providing persons terminally ill and their families regardless of ability to pay. So you’ve got either a public or private organization that is attending terminally ill patients, so those with a disease that is going to end their life. That is the struggle they have. It’s not that they’re getting older. It’s that they have, in this example, stage four pancreatic cancer, and their families regardless of ability to pay. A centrally administered and autonomous continuum of palliative and supportive care directed and coordinated by the hospice care team primarily in the patient’s home, but also an outpatient inpatient basis. It can also be done in residential settings, so it can be done in an LTACH. It can be done in assisted living. It can be done in a nursing home. And hospice care if 24-hour on-call care consisting of medical, nursing, social, spiritual, volunteer and grief services. So what you’re looking at when somebody is in hospice is it is understood that this person is about to pass away.
Schenk: So the treatment that is being provided is not preventative.
Smith: It is not preventative.
Schenk: It is for comfort purposes.
Smith: It is for comfort purposes. It is for comfort purposes only. And so that lowers – well it changes the standard of care.
Schenk: And there’s a difference between palliative care and hospice care. See, palliative care can be offered through the course of a resident’s illness and in conjunction with curative therapy. Palliative care can be initiated by appropriate nursing facility staff. Hospice care is an approach along the continuum of palliative care, and it’s typically provided closer to the end of life. The defining feature of hospice care is the provision of comfort care when the resident continues curative treatments and his or her prognosis becomes terminal. Hospice care requires a certain licensed, certified hospice agency. So palliative care itself can be curative and comfort as well towards the end of the continuum.
Smith: Yeah, palliative care is largely comfort-based. Palliative care is giving that cancer patient morphine or some other strong narcotics so they’re not feeling pain. It is not going to cure them of anything.
Schenk: Right. Palliative care is an interdisciplinary practice aimed at improving the quality of life. It encompasses affirmation of life and regard for dying as a normal process, intent to neither hasten nor postpone death.
Smith: Basically it’s just comfort measures that include grief counseling… It can include anything. It can include making sure that the pillows are fluffed, that this person has enough water. It’s understood that this person is going to pass away.
So the reason these things are important is because assisted living facilities, nursing homes, LTACHs, hospice care that may go along with any of these, they’re going to slightly change the standards of care in that the purpose of the treatment or the care given is different, and I say care given because palliative care is not actually treating anything other than the symptoms, which happen to be pain or discomfort. Sot they’re going to slightly change it.
If you’re in hospice and you end up developing a bedsore, you still potentially have a case. The likelihood of you developing a case for a wrongful death though is much lower though because if you’re in hospice care, you’re dying, and you’re not just dying like all of us are on a daily basis. Any day now, you’re expected to pass away.
Schenk: Yeah, your number’s been called.
Smith: So one of the main things that hospice will be investigated for is when a person dies, and actually there’s no requirement that a death be investigated in hospice unless the death is unrelated to the terminal illness. So if this person has cancer and they die of suffocation, the Department of Community Health might do an investigation.
Schenk: And that becomes a catch-22 or a defense among the nursing homes when we have some of these cases involving patients or residents who are in hospice care. It’s like, “Well our nursing home was negligent, but they were going to pass anyways.” Well does that give the nursing home carte blanche to treat hospice residents any way they want? It does not. So as Will was saying, if there’s an injury that’s unrelated to the basis of the hospice care, that’s subject to investigations and that’s subject to a potential client. The issue becomes, as in most cases, is how has this affected the life of an individual who is on a ticking clock anyways.
Smith: And may not even be cognizant. It’s hard to make a claim for pain and suffering when you don’t have an individual that is conscious.
Schenk: And that becomes the difficulty with some of these cases is even if there is pain and suffering, separating it from the pain and suffering already present in an individual that has pancreatic cancer or who has any other terminal illness that’s causing some pain, some suffering and pain, where do you draw the line? And that’s the defense we get all the time, “Well they’re suffering anyways. They’re going to die anyways. You can’t prove that the bedsore or the hip fracture from the fall or whatever the injury is outside what they’re already feeling on a daily basis or has minimized or has lessened the fruitfulness of their everyday living anyways.
Smith: Yeah, and I think at the end of the day, a lot of times families, and this is completely understandable, families start out very hot under the collar and just wanting to go the distance, because what I always tell families is, “Look, I understand from the nursing home point of view that they’re going to make an argument that a 98-year-old person doesn’t have long on this earth, but for me, those few months that she may have are far more valuable in some sense than the time left on earth for somebody who’s 18.” And they agree with that and they’ll start off very hot and heavy and ready to go the distance. And then as this litigation drags on, and litigation is long and it’s time-consuming, it is emotionally draining, I think what eventually happens is even they end up saying, “You know what? She was 98. I want to put this behind us. They’ve made us an offer. Let’s take it.” And I think that’s one of the main reasons you don’t see as many nursing home neglect verdicts from juries as you do medical malpractice verdicts, because even the families after some time look at this and go, “Grandma, Great-Grandma was almost 100. She was born before women had the right to vote. So let’s honor her memory, let her go and put this behind us and just forget about it.” And nursing homes count on that.
Schenk: They do. Which brings us to a good point here, in terms of reporting negligence or reporting mistreatment or reporting abuse is a question we get asked a lot is if a family member reports the abuse and the family member points it out to the nursing home staff, what is the likelihood that there will be some type of revenge taken on the loved one that’s already being neglected or abused anyways? And the advice that I give to our potential clients or to the families of loved ones that are scared to report because they’re afraid something bad will happen is that generally once you shed a light on a bad thing, it tends to stop happening. In other words, when the bank robber comes into the bank and is in the middle of filling his bag with cash and the lights come on and the police are standing there, are they going to continue to rob the bank? They’re probably not. So from that standpoint, is it possible? Anything is possible.
Smith: And I think some people think in their heads that – well for example, let me give you an example of typical human behavior. You and a neighbor have an issue. Maybe his driveway encroaches onto your property by 10 feet or you’ve got a tree that goes over his yard or whatever, so you guys are bitter and you guys start being vindictive to each other, and you start doing things or causing problems for each other. And as the legal battle ensues, just like a modern day version of Bleak House…
Schenk: Wait, what?
Smith: It’s Charles Dickens’s famous novel of legal vindictiveness just going on forever until the state is completely…
Schenk: I’ve never heard of that in my life. He wrote, “A Christmas Carol.”
Smith: Yeah. Anyways, my point is it is completely understandable where that perspective comes from – that humans are vindictive, that we’re like that, that we’re petty. What you have to remember is that the nursing staff by and large, and I’ve said this time and time again, are not bad people. I mean you’re going to have very few bad apples who commit intentional abuse. Most of the time the negligence that they commit is because they don’t have enough staff because they’re overworked, because it is one of the toughest jobs that you can possibly imagine. I continue to have nightmares about being in the hall – and I’m not joking – and not having enough staff and trying to take care of all the residents.
So let’s say that I’m a CNA and the DON or the charge nurse tells me, “Listen, the Johnson family has hired an attorney and they’re suing us because she got a pressure sore.” What you’re not going to see is the staff getting together and going, “You know what? Let’s spit in Ms. Johnson’s pudding now.” It’s just not going to happen. What you’re going to see is Ms. Johnson actually getting a lot more attention because the DON and the administrator are going to come in and go, “Hey guys, get your [blank] together. This family is suing us. I want to make sure that this squeaky wheel gets all the grease.”
So is your reasoning flawed in thinking that you’re going to suffer repercussions? Not at all. It is 100 percent understood. But experience tells me you’re probably not going to face repercussions. If anything, you may actually find that her condition, your loved one’s condition and circumstances improve.
Schenk: That’s right. So at the end of the day, go to the top of the hill, scream it out, contact ombudsmen, contact the Department of Community Health, Healthcare Facilities Regulation Departments, everybody, Adult Protective Services, get the treatment known to the correct individuals. And also call an attorney.
Smith: Yeah, absolutely. And there are many cases that we currently have now where we still have a resident in the facility, whether it’s assisted living or nursing home, and I have had to send that notice of a new claim, spoliation, which is preservation of evidence and request for insurance information, to that nursing home about that resident. So that nursing home is well aware that the resident is about to sue them, and I have yet to have a resident tell me, “You know, ever since we did that, life has become a nightmare.” If anything, again, it tends to be the opposite and they’re treated especially – they shouldn’t be, but they are – they’re treated even better.
Schenk: And speaking of nightmare…
Smith: Better than the other residents.
Schenk: I want to segway into strange stories across the country involving nursing homes, and this comes to us from Braintree, Massachusetts. Police say a man broke into a Braintree nursing home and stripped naked. Looks like staff at the nursing home told police that a nurse doing rounds at the facility had heard a noise in one of the rooms and she went in, saw a man named Vincent Bezo, age 40, totally naked standing behind the occupant of the room, which was a 92-year-old woman. This was at Royal Braintree Nursing and Rehabilitation Center. When officers arrived, they found Bezo wearing only pants with no shirt or underwear. He was obviously arrested immediately, charged with unarmed burglary, trespassing, larceny, open and gross lewdness, possession of class B drugs, disturbing the peace.
The interesting component to this aside from the already absurdity of it is that as officers investigated the building, they found a ladder in an alleyway on the outside of the building leading up to the window of the victim’s room. They found prescription pill bottles at the base of the ladder, according to the reports. How strange is that, that you have an individual that has time to put a ladder to a nursing home, get access to it, climb in the window, like what’s the liability of the nursing home to prevent this type of action from taking place? I mean that’s strange that all that could have happened without anyone noticing.
Smith: Was this at night? It was 2:45 Thursday morning, so it was 0245. So this is on the 11-7 shift. It’s right in the middle of the 11-7 shift. Typically – I think we’ve talked about this before – nursing home residents start their day pretty early just because it takes a lot of work to get them ready by 8 o’clock, 9 o’clock for breakfast. 2:45, 3 o’clock is right around the time, it’s right before – it’s like an hour or two before the nursing home staff are really getting into getting people ready and getting people up or getting ready to get people up. And so it’s a quiet time. I can see 2 o’clock, 3 o’clock being a time when people aren’t really paying attention. It’s the middle of the night. They’re tired. They’ve just gotten through their second round of the shift and they’re about to – in about an hour and a half – really jump into morning time. So that was an opportune time to do that, not that I’m giving anybody advice when to break into a nursing home. Don’t try this at home.
Schenk: Exactly. It should be noted for the record that the source of this article that I got online is a website called Wicked Local, which makes sense because it’s Massachusetts.
Schenk: It’d be like we get our news from HowdyYall.com.
Smith: Right, right.
Schenk: Or Dang Magazine.
Smith: Dang would be southern?
Schenk: Yeah, like, “Dang, man.”
Schenk: But anyways, I thought that was interesting. But you’re right. There’s a level of foreseeability with regard to making a premise safe for your nursing home residents, and this might not be an incident where – let’s assume that they’re doing their rounds like they’re supposed to, the staff are doing their rounds like they’re supposed to. There is a level of foreseeability in this. If it’s quite difficult to get a ladder to this place – you don’t have to have your windows set with alarms.
Smith: That’s true. And actually to go back to something that we talked about a few weeks ago. There was back in early May, there was a shooting at a Ohio nursing home, and I remember distinctly that if you guys missed that episode or you didn’t hear about it in the news, there was a shooting at an Ohio nursing home. The gunman managed to make it into the nursing home, and they specifically noted in the report that typically the nursing home’s doors were locked and secured and I have seen that become increasingly more and more the situation where it is difficult to get in or out of a nursing home. You have to have assistance by the staff.
Schenk: That’s right. And all these facts would go into a fact salad that would be argued in a court of law to determine whether or not a nursing home is liable for allowing entry of either naked man in Braintree or the individual with a handgun in Ohio.
Smith: Speaking of salads and salad dressing…
Schenk: I was going to say speaking of In-And-Out…
Smith: We will be addressing you later.
Schenk: Oh, okay. That was more creative, so we’re going to go with that one. That concludes this episode of the Nursing Home Abuse Podcast everybody. This podcast is a video podcast, meaning that you can catch us in one of two ways. First, you can download the audio or MP3 on Stitcher or iTunes – now I’m hearing it – Stithcer or iTunes and leave us a review or not, and then you can also watch us on our website, which is NursingHomeAbusePodcast.com, NursingHomeAbusePodcast.com, or our YouTube channel. And yes, a new episode of the podcast every Monday morning – we hope to see you again soon. Until next time.
Smith: Until next time.
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