This is the Nursing Home Abuse Podcast. This show examines the latest legal topics 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 nursing home abuse and neglect trial lawyers and we happen to be your co-hosts for the Nursing Home Abuse Podcast, so welcome, welcome. A lot of cool, funky, radical stuff to talk about on the podcast today. I don’t know why – I think it’s because we were talking about Kenny Chesney before we started recording this.
Smith: We were talking about the progression of country music from the Carter Family, Hank Williams Sr. to Johnny Cash and Merle Haggard to Alan Jackson to Kenny Chesney all the way to Jason Aldean.
Schenk: Alberdean? Everdeen? Katniss Everdeen.
Smith: Just horrible stuff.
Schenk: And I don’t even know where we spiraled to that. But anyways, I’m glad we just told you that because it’s extremely important, but anyways, lots of good things to talk about today. Today we are going to be talking about basically the anatomy of a nursing home abuse or a nursing home neglect lawsuit filed in the state of Georgia, so kind of the nuts and bolts of what a family can expect if they’ve retained an attorney. The attorney has said, I think there’s a case here and I think we can go to verdict and the case is following and goes all the way to trial – what is involved in that, how long it takes, what are some of the costs both in time and in money throughout that process?
So I think we’ll skip forward to the investigation process and we’ll just go ahead and say that in our hypothetical moving forward in the timeline that the attorney has assessed that there’s a case, the attorney has gotten all the information they need to follow and they’re on the deadline and ahead of the statute of limitations and everything’s good with that. What will happen with the opening salvo, Will, is the complaint for damages. In every civil action, you have to actually have a piece of paper that lays out the allegations and makes a particular claim against a defendant. In a nursing home case…
Smith: You know what? Let’s make a little clarification here because when you and I say lawsuit, it is different than what non-attorneys may consider a lawsuit. We don’t mean claim. We mean we have actually gone to the clerk of court, usually state court, but the clerk of court, we have taken a complaint and they have filed it into the system. They have stamped it. We have paid whatever the 250 that you owe, and there is a legitimate lawsuit with an actual case number.
Schenk: That’s right.
Smith: The reason I point that out is because I know I misuse that term sometimes when I’m talking with a client just based on their perspective of it. Before we file a lawsuit, a lot of times we’ll send a demand letter and we’ll get all the evidence ready, and we’ll put it in the demand letter, and a lot of clients will end up start talking about the case as a lawsuit, but it’s not actually a lawsuit until the clerk of court takes your piece of paper and stamps it.
Schenk: That’s actually a very good point. So from a 40,000-foot view, whenever you hear the word “claim,” it’s usually associated with an insurance claim, so like if you’ve been involved in a motor vehicle accident or something like that, and the ultimate conclusion of that is a settlement with the insurance company for money that will compensation. That’s the ultimate goal of filing an insurance claim. And oftentimes, nursing home abuse cases start off that way because nursing homes are often insured, almost always insured, by some type of liability coverage, and so the attorney will often send a demand and hope in that claim, that insurance claim, to get compensation from the insurance company. So the ultimate resolution for an insurance claim is to get money from the insurance provider in exchange for a release or the promise not to sue based on that injury. So the ultimate goal of the claim is to get money. The ultimate goal is to get money for the injured person and the nursing home as the arbitrators or the final say in how it gets done.
The point, the overall point in the lawsuit in which we’ve gone to the clerk, filed the piece of paper, is that a jury of your peers will determine whether or not you or your loved one is entitled to money for the injury. That’s the ultimate goal of the lawsuit is to have a jury hear your allegations and say yea or nay to awarding you compensation.
So the logistics of a lawsuit begins, like I said, with a complaint, a piece of paper that lays out the allegations. “Ms. Johnson was not turned regularly and therefore developed bedsores. The nursing home is responsible for the money it took to cure Ms. Johnson of the bedsores, or the nursing home is responsible for compensating the family of Ms. Johnson because she passed away from the bedsores.” The allegations, line by line of what the nursing home did, is laid out in the complaint, a.k.a. the lawsuit, as well as what the family of the loved one or the loved one is requesting in terms of compensation. So that’s generally what that complaint does is it makes the factual allegations that comprise a claim and requests a certain amount of money, and that will get filed in the court. It becomes public record so everybody can go down to the courthouse, flip through the papers and see what the defendant has been accused of. That’s generally the first thing.
Oftentimes, at least in the state of Georgia, a complaint for nursing home abuse or neglect will require, because many times, the complaint will comprise what’s called a professional negligence claim. It will require an addendum, an extra piece of paper, an extra document attached to it, and that document is going to be the affidavit or sworn statement of an individual that would be deemed an expert in that field – it’s usually a medical doctor or a nurse or an administrator that has competency to speak on the allegations that will say yea or nay – not nay – but yea that this nursing home was in fact liable for committing a breach of the standard of care and that breach caused the damage.
Smith: And this comes from there’s a Georgia statute that says if you’re going to file a suit against any one of these individuals or entities, and it includes everything from attorneys and architects, doctors or even hospital themselves, and you’re going to allege professional negligence, then you have to get somebody who’s an expert in that field to say, “I think there’s negligence here.”
I’ve actually done that before in a legal malpractice case where I reviewed the case for another attorney and determined based on my experience it was legal malpractice. This is a part of tort reform, and to be honest with you, it’s not really something that I have an issue with. I think it’s a good idea to have an expert review a case for you and determine…
Schenk: So the audience is on the same page as you, when you say this is part of a tort reform, what do you mean?
Smith: So a tort is anything that is committed between two people and involves negligence. It’s different than breach of a contract, so auto accident, medical malpractice, nursing home negligence, anything that has to do with breaching a standard of care. Big business, insurance companies, I guess the far right for sure, have always tried to make it harder and harder for people to sue and to help these large interest groups, like insurance companies, product manufacturers, healthcare facilities, doctors, medical malpractice providers, insurance companies have always tried to protect them by introducing tort reform. And they have suggested all kinds of things from caps on non-economic damages in medical malpractice cases to caps on punitive damages to they recently, and they floated this around before, doing away with medical malpractice completely and having issues taken before a medical review board that decides what should happen.
Schenk: And not to disparage those companies, those insurance companies, the far right, the rational behind pursuing those statutory reforms, those tort reforms is for, allegedly the purpose is to reduce, weed out, reduce the level of unmeritorious claims that cost the civil justice system and these companies lots of money. Obviously we have our views on whether or not that’s an actual problem or not, but that’s the legitimate concern that the rational behind the promulgation of these proposed bills and statutes.
But to get back to my original question, the reason why the affidavit is required, the sworn statement by the expert, is another component of well, if they weren’t required then more non-meritorious claims would be brought. So having an affidavit is an extra speed bump to prevent ridiculous claims.
Smith: And I actually think it’s good being somebody actually on that list that require you provide an expert opinion, I think it’s good because you literally, in Georgia, the pleading requirements are so liberal that you could take one piece of paper and say, “I sue nursing home,” if you didn’t have this affidavit requirement, and anybody could file it and nursing homes would just face constant lawsuits.
Schenk: Yeah, I agree with that from just a general civil justice standpoint. I mean like one of my first jobs as an intern was at the law firm, we dealt with prisoners making claims, and it’s a good thing the pleading requirement is very loose because obviously they need justice as well, and I would see stuff written on it in crayon, I’m serious, pieces of paper. But anyways, that’s right. So that’s the complaint in a professional malpractice case, professional negligence case has to have an affidavit.
Smith: Now one more thing about this before we move on is that it is not always a requirement that you have to have an affidavit if you’re suing in these cases if you’re alleging simple negligence, that you’re not alleging professional negligence.
Schenk: Yeah, without getting into too much detail on that…
Smith: It’s such a tricky distinction.
Schenk: So if you’re out there and your loved one wants to sue, it’s a good idea they seek out an attorney…
Smith: An attorney especially – we don’t use the term specialized in Georgia – but especially focused…
Schenk: Familiar. Focused.
Smith: …Focused on nursing home neglect.
Schenk: Right. But anyways, that’s one of the million reasons why you want to seek out a competent attorney. But the nursing home, depending on what state you’re in, the nursing home will have a certain amount of time to officially respond before it also gets filed to court – in Georgia, it’s 30 days. And they’ll file a response, which is generally called an answer, or they’ll be able to, depending on the facts of the case, they’ll file a motion, which is called a motion to dismiss. But anyways, they’re going to respond to the allegations one way or the other. They’re either going to say “Pound sand,” or they’re going to respond and say, “Maybe this happened but we’re not responsible for damages, blah, blah, blah.” They’re going to respond some way or the other, which after that, then you basically have given a statement to the court, they’ve given a statement to the court, and then generally what happens is you have a certain amount of time and we hear this in TV shows and such, but you have a certain amount of time for what’s called discovery.
Discovery is the process by which both parties provide documents, statements, admissions, evidence and testimony that highlights the facts of the case. So typically it comes in two parts. The first part is going to be a written discovery. Written discovery is where both sides will send out written questions called interrogatories that need to be answered. So for example, “State the name of any witnesses to Ms. Johnson’s fall,” or “Provide to me all the insurance policies that may cover Ms. Johnson’s injury,” things of that nature, written statements that need to be answered generally under oath that will highlight certain facts and certain allegations and make litigation a little smoother because everybody knows where they’re coming from.
In the civil justice system, just from a general standpoint, there is true advocacy in the sense – it’s an adversarial system in that one side is trying to destroy the other side, but at the end of the day, the system is made to where there should not be any surprises at trail. So discovery is where everybody is required by law to lay everything out they have on the table. It’s a system by which you’re not allowed to lie, you’re not allowed to withhold things, you’re not allowed to hide things, particularly if it’s going to be used at trial. So it’s not a gotcha-type of situation. Sometimes criminal justice can be that way.
Smith: It is not supposed to be that way at all.
Schenk: It’s not, but it happens. But in civil justice, it’s absolutely not the purpose. The purpose is you show me what you got, I’ll show you what I got and then we’ll just let the jury decide how this thing works out. So discovery works in two components. You’ve got the written component where you’re asking questions or you say, “Give me all these documents. Give me all your staffing records for the past two years,” for example.
Smith: “Who were the CNAs on duty the night this happened? What are their names? I would like to speak with them.”
Schenk: Yeah, and here’s the thing. We get questions before we file a lawsuit from our clients that say, “Guys, ask them the name of the CNA.” We can’t because they’re not obligated under the law to help us in any way. Only until after the lawsuit is filed, generally, are nursing homes required to provide the information we’re seeing. That’s why a lawsuit can be very eye-opening and shed a light on the situation because people are not obligated to provide anybody anything unless they have been ordered by the court, and that’s what happens in litigation is the court is saying it’s an open order that you have to respond to discovery. So that’s important because during litigation, oftentimes, almost every time you’re going to find out things about the nursing home that you’re not going to know before you filed the lawsuit for that exact reason.
The other component aside from getting answers under oath on paper or getting documents or getting physical evidence or even access to the nursing home to look around is the component of discovery called depositions. Depositions is where you – and when I say you, I mean the attorney representing you or your loved one – orders an individual from the nursing home or really anybody to come to an office somewhere, sit down at a table across from them and answer questions under oath, and those questions are taken down by a stenographer. And depending on the type of deposition, they can often be used in court later on in trial. So for example, “Was the light green or red?” If the deposition says green but they say red in court, you take out the deposition transcript, things like that.
But the deposition generally is good for several reasons. The first reason is again, for the purposes of getting to the facts, what is the nursing home staff member, what does the CNA think about what happened? What did they say happened? That’s important. You want to know that. You probably didn’t know that beforehand. The second component is you want to lock in what their opinion is because if it changes, then you can highlight that. But also so from a standpoint of finding out what happened, from a second standpoint with an eye towards locking in testimony and locking in positions.
Discovery in professional malpractice cases and kind of complicated negligence cases can go on for quite a long time. The minimum usually is six months. We’ve had discovery go on for 18 months in some cases. I feel like some judges don’t mess around with discovery too much. Some judges say, “You need to get on the stick.”
Smith: And it depends if it’s state, as in the state of Georgia, or federal court.
Schenk: U.S. court.
Smith: U.S. court.
Schenk: So discovery goes on for a certain amount of time, and then so you’re either bolstered in your claim or maybe you’re wanting to settle your claim depending on what facts are coming out. Then what happens is you have a certain amount of time for what is called motions practice. Motions practice – and again, this actually goes back to tort reform, this is why most plaintiffs attorneys don’t agree that there is a problem with ridiculous claims because there are so many steps along the way that we doubt bad cases.
The first step again is the affidavit component. The second step is the nursing home was within its right to rather than respond with an answer, meaning we deny or admit allegations, their answer can say, “Your claim does not have merit at all based on the laws of the state of Georgia.” So that’s the second or third speed bump for crazy claims.
Another speed bump is motions practice where the nursing home can say, “We have looked at everything that you have. We have provided you with everything that we have. And even on your best day, even if looked at in a light that is most favorable to the plaintiff, to the person, the resident that was injured, you cannot bring a claim. That’s a process that happens after discovery has concluded. And sometimes cases get thrown out at that point. A jury will never hear it because the claim has failed as a matter of law in some component, the facts did not compute.
Smith: That no reasonable jury could decide in the plaintiff’s favor.
Schenk: Correct. So that motions practice can last for months because generally you file by a certain deadline, and generally there are scheduling orders and it depends on what judge you have and it depends on what court you’re in, but generally that can last several months. Then you get put on a trial calendar and so sometimes if there are lots of witnesses and the issue is complicated, it will be specially set. We all hope for that, but most of the time it doesn’t happen, and that could take several months. And then you have your trial. And trial is all hands on deck for lawyers.
Smith: And you will – just as a side note – you will almost never get to go to trial your first time on a trial calendar.
Schenk: Oh yeah. I mean you’re 100 – I think we’ve been 160th on a calendar before.
Smith: Yeah, so you’re not going. You’re not going unless you’re between 1 and 4, just because one of those are going to go.
Schenk: The attorney gets the letter in the mail that says, “Here are all the cases that could potentially be called during a certain period,” so the periods could be three days, a week, two weeks or a month, meaning that any time during that one-day, week, month-long period, you could be called in and state your claim and have trial. And it’s called a calendar, and in Georgia, it goes chronologically. So theoretically, the first case that was filed that’s on that calendar…
Smith: The oldest case.
Schenk: The oldest case – that’s what I mean – the oldest case, and so on and so forth, but you never know.
Smith: And cases will settle and that’ll bump you up, but again, if you’re 100th on a calendar, you’re not going.
Schenk: Yeah, so there’s that process and actually getting on the calendar to go to trial, and then the trial itself, depending on the complexity of the case, generally professional malpractice cases can last two or three days to two or three weeks. It’s rare to be three weeks, but that can happen depending on the level of complexity with the injury and the level of complexity with the arguments on what caused the injury. So for example, whether or not a nursing home resident…
Smith: If they have a lot of co-morbidities…
Schenk: …Or if there was a complication with their previous surgery, things where there’s not an exact A to B from injury to death from the acts or omissions of the nursing home.
Okay, so we’ve gone through trial now. Congratulations. So then you have what’s called – you can have a post-trial motion, which is another speed bump.
Smith: And let’s give people a kind of perspective here on what we’re talking about. Let’s say that you filed this lawsuit January 1st of 2017. You’re now looking at, where we are, you’re now looking at probably January – you’re looking at the spring of 2018 on a lucky.
Schenk: If you’re lucky.
Schenk: In the state of Georgia.
Smith: Yeah, and assuming you went on the first calendar you got on. The reality is you’re probably look at fall of 2019.
Smith: So those of you that are familiar with all these TV dramas like “The Good Wife” or “Law and Order” where somebody files a lawsuit and that same episode they’re in court, the reality is the time it takes you to get to trial from when you actually filed the lawsuit is two or three seasons.
Schenk: Yeah, the characters need to be like fatter, have longer beards.
Smith: It would be two or three seasons.
Schenk: It doesn’t make any sense.
Schenk: So after the post-trial motions, then generally you have to deal with appeals. An appeal isn’t just we didn’t like the verdict, which is a common misconception among laypeople. An appeal is where the plaintiff or defendant is saying a decision by the judge as a matter of how the law should be read was incorrect and it affected the outcome of the verdict, it affected the outcome of the trial.
So for example, whether or not an expert is qualified to provide testimony, which is a call made by the judge, the judge says, “That expert is qualified,” but they’re a quack, then what happens is it provides the basis for an appeal. And it goes up on appeal, and when I say it goes up on appeal, I mean that an appellate, which is called an appellate court, will hear that argument. “Hey listen, the trial judge let this expert quack provide an opinion, and he’s not qualified. And the court will say, “Yes he is,” or “No he’s not.” And then the party, depending on the outcome of the appeal, can appeal that decision, and that can go up again.
In state court – not to bore everybody, but generally if you’re in state court, there’s only one level of court of appeals in your state, and then the next level of appeals is the supreme court of the state. That’s generally how that works. And if you don’t like that, good luck because your next appeal is going to be to the Supreme Court of the United States. That’s the way you’re going to go in a state trial.
In a federal trial where you’re in a U.S. court, your first round of appeals is going to be whatever circuit you’re in. So for example, we’re in the 11th circuit in Georgia. So an appeal from a U.S. district court in the state of Georgia is going to be heard by the 11th Circuit Court of Appeals here in Atlanta, Georgia. If you don’t like that, tough luck because you’re going to have to appeal to the Supreme Court from there.
Smith: These cases don’t normally involve novel issues that the higher courts are going to listen to. The higher courts are like the Supreme Court.
Schenk: The Supreme Court of the United States very rarely hears these issues. The buck is probably going to stop with your state’s court of appeals, your state’s supreme court, which are more faster acting than the United States Supreme Court.
Smith: But please note, because I have worked on a couple of appeals in Georgia, the court of appeals in Georgia is probably one of the busiest in the nation for whatever reason, and it can take – I mean I’ve worked on an appeal before that’s still going on actually, has been going on for about three-and-a-half years.
Schenk: And that’s a good point. That was actually going to be my point is that the appeals process can be anywhere between six months and a couple of years. And if it goes to multiple appellate courts, just add another year or two onto that.
Smith: Now understand something here that there is an incentive for the defendant to pay the verdict or to settle with you rather than do that because the juice is running.
Schenk: When you say the juice is running, for those of us that are not professional gamblers or degenerates, what does that mean?
Smith: Interest is running on that verdict. So if you have a verdict that is substantial, I think that the most recent substantial verdict that I saw in Fulton County that was being appealed or potentially appealed was a $30 million auto accident case.
Smith: You can imagine that $30 million and the interest on that is going to be hefty, hefty fines against that nursing home.
Schenk: To make an appeal…
Smith: They better be good.
Schenk: The cost-benefit analysis, they need to make sure they’re on the right page. Do you remember the movie “Juice?” Had Tupac?
Smith: I think so. I don’t remember what it was about though.
Schenk: I want to say it had Samuel L. Jackson in it and a character – I can’t remember, but whatever character did this, it might have been Tupac, his character would play with a razor in his mouth and I think that he actually did it, like he learned to do it. And I thought that was really interesting and extremely dangerous.
Smith: Oh God, I would never do that.
Schenk: Yeah, like he would flip it around with his tongue. Like you know how some people have toothpicks? He would do it with a razor, like he would have the razor sticking out of his mouth and toss it around his mouth. But pour some out for Tupac. And speaking of things and persons that have been lost to us, now we must say goodbye to this podcast.
Smith: I think that is the worst ending segway we’ve had before.
Schenk: You think so?
Smith: Yeah. You could have said, “And speaking of, I ain’t mad at you, I ain’t mad at you that it’s time for you to go, and we’ll see you next time.”
Schenk: That would have been good too. Let’s see – I could have done something about a hologram. “Now it’s time for this hologram to fade?”
Smith: Yeah, but that’s so obscure. Anyways, let’s just end this. Let’s shoot this puppy and get it over with.
Schenk: Yeah, let’s shoot this rapper. So this concludes this episode of the Nursing Home Abuse Podcast painfully. This is in fact a video podcast, meaning you can download the audio on Stitcher or iTunes. Subscribe to us there, leave us reviews, leave us glowing reviews, unless you’re a Tupac fan…
Smith: And we have offended you somehow.
Schenk: Or you can watch us on our website NursingHomeAbusePodcast.com or our YouTube channel. New episodes are available every Monday morning. We thank you for joining us this episode and we will 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.