Episode 25

How does an attorney make the decision to take a nursing home case?

 

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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. Thank you for joining us. My name is Rob Schenk.

Smith: And I’m Will Smith.

Schenk: And are Georgia trial lawyers and we are also your hosts for the Nursing Home Abuse Podcast. Before we went to air, we were talking about with Gene who our favorite Julie Brown was from the ‘90s. My favorite Julie Brown was Julie Brown from “Just Say Julie,” the redheaded comedienne. Will’s favorite Julie Brown was Downtown Julie Brown from I believe it was “MTV Dance Party,” and she would say, “Whoa, whoa, whoa, whoa, good bye, God bless.” That’s the Julie Brown is Will’s favorite.

Smith: I 100 percent support that.

Schenk: I thought you were going to be mad that you got Downtown Julie Brown.

Smith: I would rather have Downtown Julie Brown than – I have no idea who that other Julie Brown is.

Schenk: You don’t know “Just Say Julie?”

Smith: No.

Schenk: Okay, Julie Brown was a comedienne that had a show that was like “Beavis and Butthead” before “Beavis and Butthead.” She would have skits.

Smith: Oh, so this is something you’d watch after Daria or something like that.

Schenk: This was before Daria. Anyways, lots of good things for the podcast today. We’re going to talk about probably the central question we get every day because it has to do when we’re intaking potential clients – how do nursing home abuse and neglect attorneys select what cases to take? That’s the essential question that we ask ourselves every day is which cases do we move forward with and which cases are we not able to, and what are the criteria?

Smith: We just had to take a break briefly because I had left the fan on because it is extremely hot in the dungeon.

Schenk: You’re calling it the dungeon. I thought that you hated that.

Smith: No, I mean, you know… We’re really passionate about what we do. We feel bad for the family members and we want to help them as attorneys. So it’s difficult for us to turn down cases, and a lot of times, people who call us get frustrated because they call us thinking we’re going to solve their problems, and sometimes we have to tell them this is not a case we’d take. Even though it’s extremely relevant and important to them, it’s not a case we take.

Schenk: That’s right. So in other words, there’s a continuum on which there’s a component we look at in terms of what harm has been done, how egregious is it, how long lasting is it. Is it permanent or has there been death? Because think about this way – a nursing home can do or fail to do something that causes a harm, but at the end of the day, how has that affected the life of your loved one, the resident? In some instances, you have something as simple as the staff is rude or the staff does not call when the call button has been hit often, like there’s a pattern. And while that may be in fact an infraction, a violation of the bill of rights of a resident or even could be considered negligent in the legal sense, in the common law sense, at the end of the day, you have to ask the jury to give you something for it. So what is failure to respond to a call button a few times that didn’t result in an actual injury? What is the damage to someone that say has dirty or long fingernails? Or what is the damage at the end of the day when the only issue has been matted or dirty hair? Those cases are true infractions or violations, but from a standpoint of what has the ultimate conclusion been, it might not have been something that a law firm would afford to take.

Smith: And we also just like to keep a low number of cases because we’re not a settlement mill firm, which means that you could ask me the name of a client right now and I can you tell everything about their case. I can even tell you everything about Rob’s cases because we have a select number of cases. We don’t have 1,000 nursing home cases and we don’t treat our clients just like numbers. They all have my cell phone.

Schenk: That’s right.

Smith: And I literally get calls on a daily basis from my clients’ families on my cell phone. That’s why I have a limited number of cases. So that factored in with the cost and the resources it takes to do a case mean that we have to turn down a lot of cases that potentially come our way.

Schenk: And that’s actually a good point. So at the end of the day, the value of a case oftentimes is directly proportionate to the effect the injury has had on the life of the resident. So obviously the most valuable ones oftentimes are death cases because that’s final or amputated limbs, permanent injuries are higher value than a twisted ankle, a bruise or an abrasion. So there’s a continuum in terms of the level of severity and the impact on the life of the resident.

Smith: Yeah, and I just want to point out that it may seem somewhat callous that we are quantifying this type of tragedy, but what people have to understand is that is who you’re coming to. If you’re seeking justice from a civil attorney against a nursing home, what you are talking about is seeking monetary award. If that’s not what you’re looking for, then you need to contact the Department of Community Health and make a complaint, and they might fine the nursing home or just make them take corrective action. Anytime you talk with a personal injury attorney about a wrong somebody has done to you, you are ultimately talking about how much money this is worth.

Schenk: So from a 40,000-foot view, that’s one of the components that an attorney is going to look at when they’re selecting a case. So that’s from a broad standpoint, that’s one component is looking at the severity of the injuries on the fact that generally in courts of law, the value of the case is based on the severity of the injury.

Another component is going to be simply how difficult will it be to link the acts or non-acts of the nursing home to the injury, which is another way of saying causation. How difficult will it be for you to prove that the nursing home caused the injury? And that seems easy when you’re thinking about a staff person punching a resident or a staff person dropping a resident.

Smith: Well actually then it’s still a matter of trying to prove that the nursing home should have known about that.

Schenk: Sure, sure. Well let’s say in that example they did know about it. Well then the liability component is easy. But then you have cases where you have perhaps a resident has developed a UTI and sepsis and has passed.

Smith: So they got urosepsis and it led to their death. Then the question is if you have an indwelling catheter, not to get in depth on a tangent here, but if you have an indwelling catheter, you are more prone to UTIs, urinary tract infections. So it’s possible the nursing home could do everything it should do and you still get a UTI that still leads to urosepsis. So are they liable for that or is that just something that was unavoidable?

Schenk: Right. I mean it goes without saying that cases that would be impossible to prove generally would not be accepted by an attorney because you still have to go in front of 12 jurors and prove to them by a preponderance of the evidence that this in fact happened and the nursing home was the cause, where if they can’t even convince themselves, it’s going to be difficult for them to take. And then you have cases in the other side, perhaps a death certificate, perhaps several experts, perhaps the treating physician all agree on the cause of death of the injury and it might be a slam-dunk for the attorney to take the case, and then there’s everything in the middle.

So at the end of the day, if you approach an attorney and they decline the case even if your loved one has been injured, consider that there’s going to be one of those two components that if they were injured, it may not be egregious enough to warrant the cost and expense of filing a suit or making a claim, or the ability for that attorney to ultimately prove the nursing home is the cause of the injury will be too difficult, if not impossible, and too much of a risk for the attorney to take.

Smith: And something important to understand, because I think some people would make that assumption – I don’t understand how this works – let’s say you spend $100,000 on a case, which is very easy to do. Trust me. Doctors are expensive. Video depositions are expensive. Evidence of demonstrations are expensive. Witnesses are expensive. Everything starts adding up and costing money. It is not the case that you can simply say, “Well in addition to the special damages of the medical bills and the general damages of the pain and suffering, we also want to be compensated for that $100,000 that we spent on all this evidence and all these doctors and all the demonstrative evidence. We also want our attorney fees.” You don’t get things like that in a court of law generally unless it’s a very special circumstance, because there is a genuine case for controversy here and they have a right to defend themselves, and unless they’ve been abusive in their litigation…

Schenk: Or there’s been some other reason to shift the burden, everybody’s responsible for their own fees.

Smith: Everybody’s responsible for their own fees. So you’ve got to think if it’s going to cost you 100 grand to pursue a case, then that case has to be worth some amount of money to make it financially feasible to do that.

Schenk: That’s exactly right.

Smith: I mean this is not the type of thing you do pro bono just to seek justice just because it’s financially impossible to do that.

Schenk: Yeah, so if the cost of the case is $100,000, then theoretically, you’d want a minimum verdict of at least $100,001 or the attorney is losing money in that instance. So those are the two things to keep in mind if you’ve gone from attorney to attorney and are rejected, but what I would recommend, what I would consider for you if you’ve been rejected by one attorney is to go to another attorney. If you’ve been rejected, your case has been rejected by a number of attorneys, or even if you’ve gone to the first attorney who will take it, I think an option you want to try out is to contact Adult Protective Services, contact your local ombudsman, contact the Department of Community Health. Make your voice known because just because an attorney won’t take your case doesn’t mean light can’t be shed on that particular nursing home by a regulatory agency whose job it is to investigate even the smallest of claims.

Smith: And although I think it’s a long shot and I generally am not a fan of taking a case for media coverage because the media is really not interested in most cases, go to the media. Call one of those investigative teams on Fox5 and say, “Hey listen, my mom’s been abused. She’s been neglected. People need to know about this nursing home.”

Schenk: We used to have a guy, I think his name was Cherko, down in Nashville who was the consumer investigative reporter guy, and he had his own segment, and the segment would begin…

Smith: Like Dale – Trust Dale here?

Schenk: If Trust Dale had an eye patch and you wouldn’t want to mess with him at a bar, Cherko, I think his opening segment, he’s be in a car rolling and he’d jump out of it and start talking to the camera, you know what I’m saying? And explosions in the background, you know what I’m saying? He’s got a jar of muddy water just from the local pond that’s got pollution in it with the steel mill in the background. Cherko, I think that’s who it was. He was in the ABC affiliate in Nashville, I think. Anyways, that doesn’t matter. So go to media if you can.

Smith: But what we’re saying is people need to understand that we are but one potential remedy for a problem with a nursing home.

Schenk: We being personal injury attorneys.

Smith: We being personal injury attorneys. And within that, we have a very limited skill set and a very limited scope of what solutions we can seek. And the solution we seek is monetary damages. There’s nothing else we can do. We cannot have a court find that a nursing home start treating its residents better. We cannot find that a court find that a nursing home be under new management. We certainly can’t have a jury make this never happen and bring back your loved one. The absolute – and this is essential – the only thing that we can do is make the nursing home pay money, and that’s it.

Schenk: That’s right. And just to piggyback on that, as we’ve said many, many times, the litigation process can be very expensive, but sometimes people don’t understand what does the money go to. Why do attorneys have to fork out this amount of money to take something to trial? So some of the things to keep in mind are this – that evidence and proving your allegation requires either documents or testimony. Those are the only things that are really going to matter at the end of the day. And to acquire the testimony that’s going to prove your allegations, you have to pay somebody that has an expertise – expert witnesses that can talk to a jury, that have experience in a certain area that can say a standard of care was breached or this act causes injury, things like that, and you’re talking about attorneys that charge by the hour, I’ve seen those as high as $1,200 an hour, which is amazing to me. If you can imagine a doctor – what’s a doctor’s time worth by the hour?

Smith: Yeah. They are reluctant to be involved. They have no incentive. They have no benefit really. This is taking them away from their ability from treating physicians. It’s taking them away from their ability to treat their patients at their practice, so if you’re going to bring a doctor in as an expert, you have to pay them a lot of money.

Schenk: Yeah. And that’s an overwhelming cost, and the reason that costs money, it’s not just having them come in for two or three hours at a trial. Oftentimes they don’t come in for a trial. The issue is an expert that you’re using to prove a point, not necessarily a treating physician that’s put hands on a resident, but somebody that’s objectively looking at everything and offering a conclusion, is that individual needs time to look at everything. Then that individual is going to be deposed, and that takes a long time to prepare. It takes a long time to go through the deposition. They might be deposed more than once. And then the other side is going to maybe have one or two experts that rebut them, and then maybe you need to have someone else that rebuts that person, and then you’re talking about tens of thousands of dollars at that point. So that’s one component is the expert witness fees. The other fees can be filing the case can be hundreds of dollars. You’re talking about thousands…

Smith: It can actually be thousands because we have to file that expert affadavit with it too.

Schenk: That’s right. But even just to get going will cost you a few thousand dollars. And there are other fees you might not think about – the fact that you have to pay a stenographer whenever you have a deposition, and you might have 10, 15, 20 depositions in a case, but you have to pay a stenographer, a court reporter to come to that location and type everything down for the transcript. Just the paper alone might cost you several hundred dollars depending on how long.

Smith: You’ve got photos you need to blow up so a jury can see them better. You may have to purchase certain medical devices so you can show an example to the jury. You may have…

Schenk: Even medical records. Medical records – don’t get me started. Medical records, paper copies of medical records, that can be into the thousands upon thousands of dollars depending on how much treatment there was. So these are not just things – frivolous purchases. These are things that are essential to proving a case, but it’s expensive. So that’s where a lot of the cost comes from. But again, at the end of the day, you generally, unless particular statutes are invoked or there’s an issue with wanton or ridiculous behavior on the other side, in the American judicial system, both sides are responsible for their own fees, even if they’re victorious. Even if a plaintiff is victorious and gets an award, they cannot also ask for attorneys fees or cost of litigation generally.

Smith: Generally.

Schenk: There must be some extraordinary cause or some statute that has been evoked in order for that to happen. It doesn’t happy often. So knowing that, you can understand many attorneys’ trepidation in selecting your case or choosing to take a case. This isn’t something that’s done, unless it’s some type of pro bono office, this isn’t something that’s done just for the heck of it or for free. At the end of the day, somebody has to be paid, and if the risk is too high based on the value of the case or based on the risk we’re unable to prove liability, the causation component, it’s not going to be worth it to the attorney, because they’re going to have mortgages and food habits to support, at least in my case.

Smith: People who are non-lawyers don’t understand, and it’s understandable they don’t understand you don’t just walk into a courtroom and say, “Judge, we’d like to present our witnesses now.” There is so much planning that goes behind it that goes into it, so much money and resources that goes behind it and into it that it’s imperative that you have to keep that in mind when you’re picking a case.

Schenk: That’s right. And speaking of damages and awards and expenses of litigation, we have a case, a filing of a new case out in Texas. A lawsuit requesting $1 million filed against Texas nursing – a family of a resident of Windsor Nursing and Rehabilitation Center in Duval, Texas has sued that nursing home for $1 million after an employee posted to Snapchat pictures of the resident’s feces-covered face. Windsor Rehab and Nursing is accused of failing to properly supervise the employee, Carlos Alberto, age 23. He was later arrested. Pictures allegedly posted by Alberto show persons tickling the toes of the resident, prompting the resident to reach up and touch her own face with the feces-covered hand.

Smith: What I’m a little confused about here, because I have Snapchat…

Schenk: I was going to ask you what Snapchat is.

Smith: So unlike Instagram or Facebook where the video or the picture you post is up there until you take it down, Snapchat, all of these, and if you want to know, I’m showing him Snapchat, what it looks like, all of these are temporary. So they last for 24 hours – that’s it – and they’re gone. And if you send somebody a Snapchat, like people have sent me Snapchats, if you send somebody a Snapchat, you can view it once, maybe twice, and then it’s gone. These are all temporary. So I’m curious – things must have moved pretty quickly if the police managed to find somebody he was Snapchat friends with and they could show the police the Snapchat. I’m just curious to how that went down. Either way, it’s absolutely disturbing.

Schenk: Completely egregious. And it looks like this particular nursing home, Windsor Nursing and Rehabilitation Center, this must be a reoccurring problem, maybe with this particular employee, because the article goes on to say that another family has had an issue with it. A couple days ago, a family member found the loved one sitting in his bed and he had feces all over him. The nurses had failed to change him and it seemed like they didn’t really care about changing him or doing anything to address the issue. According to the article, the facilities administrator, T.J. Helmcamp, says he’s a man of ethics, that he himself, T.J. Helmcamp, is a man of ethics, and, “if something like that happened at a building I managed, I would make every exhaustive effort to ensure the residents’ safety.”

Smith: It’s something that’s important to note here is that do not make the assumption that this case is worth $1 million, because it says that a lawsuit seeking more than $1 million has been filed. That is actually, to me at least, a somewhat meaningless statement, because I can seek any amount of money I want to for any lawsuit that I want to file. So for example, let’s say that you accidentally push a shopping cart into my cart and scratches it. I can file a lawsuit seeking $1 billion from you. I’m never going to get it and it’s going to be tossed out, but you can see a headline that says, “Lawsuit seeks more than $1 million for car scratch.” So it doesn’t really mean they’re getting $1 million.

Schenk: It just means they’re requesting it. So in this case, the attorney will argue what is – and this is a valid argument and one that we’ve made – what is the dignity of the resident worth? What is the privacy of the resident worth? And there is a monetary figure to that. Aside from this being straight up abuse, there are also privacy issues involved, HIPAA violations to video record someone without their permission and post it anywhere, let alone Snapchat for amusement.

Smith: And that does bring me back to my question. I, just as an attorney, am curious how that affects the value of the case. If it were posted on YouTube or Facebook or Instagram, it has the potential to be there for perpetuity. For Snapchat, I mean it’s there and then gone for 24 hours. How did they…?

Schenk: You’re saying how logistically how did they get it?

Smith: Yeah, how did they get it? And what does that mean if it’s only up there for a brief time?

Schenk: So the issue here, one of the main issues is for this family is going to be linking the behavior of this Carlos Alberto Santa Cruz to the nursing home. So if the nursing home didn’t run a proper background check, if they don’t have a policy regarding social media with their employees, they’re going to be held liable through the concept of respondeat superior, in other words whatever Carlos is doing, the nursing home is responsible for because they have either actual knowledge or what’s called constructive knowledge, or should have known what he was capable of doing or what he did do.

Smith: And that’s what’s important to remember here is that we are not discussing the liability of the CNA – that’s not the issue here. He’s clearly – he’s got criminal charges pending against him, so he’s in a lot of trouble. And if he had unlimited income, you could go after him and maybe get $1 million. But the issue at hand here is to what extent is the nursing home, to what extent is this LLC that runs this nursing home, to what extent are they responsible for this?

Schenk: That’s right, and according to the article, this particular nursing home is one of the lowest scoring nursing homes in terms of quality in the entire city of Austin in the Austin, Texas area.

Smith: And I’ve told you this time and time, not that this is necessarily a case that is just indicative of Texas, but Texas is known for being one of the worst offenders for nursing homes, and I for the life of me, I have been dealing with nursing homes for 16-17 years now, and I cannot figure out why southern, rural nursing homes are the worst offenders, but they are.

Schenk: Anecdotally.

Smith: Anecdotally – true. Anecdotally, but even statistically, Texas, Alabama, Florida and within those places, it’s some of the places way, way down south that are just really lacking. But I don’t know. But also speaking of lacking, we’re lacking any more time to continue.

Schenk: That’s pretty good. We are. So in other words, Will is trying to say in his quaint Southern drawl that we’ve reached the conclusion of this episode of the Nursing Home Abuse Podcast. This is a video podcast, meaning you can watch or listen or do both. You can watch the podcast on our YouTube channel or our website, which is NursingHomeAbusePodcast.com, or you can download the audio via MP3 on Stitcher or iTunes. Be sure to subscribe to us. New episodes of the Nursing Home Abuse Podcast every Monday – we appreciate your attention and tuning in, and we will see 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.


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