Episode 28

Supreme Court prevents state courts from making exceptions for nursing home arbitration

 

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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 to the Nursing Home Abuse Podcast. My name is Rob Schenk.

Smith: And I’m Will Smith.

Schenk: And we are trial lawyers and we practice in the area of nursing home abuse and neglect in the state of Georgia and we happen to be your hosts. I don’t know why I felt like I just went into my NPR voice.

Smith: You did. You sounded like Lois Reitzes.

Schenk: I like – who’s the one that’s like “All Things Considered?” No, that’s a show.

Smith: That’s a show.

Schenk: You know also who I like? They do like if there’s going to be an eclipse…

Smith: Science Friday?

Schenk: No, it’s Block and Byrd, like somebody’s name is John Block and the other person’s name is Kate Byrd, and it’s like Block and Byrd. It’s like a ‘60s folk band. But they’ll be like, “If you’re in the northern hemisphere, your best vantage point for this eclipse is blah, blah, blah.”

Smith: Oh yeah.

Schenk: “Today you’ll see Venue on the horizon.” Block and Byrd.

Smith: I’m glad you went with Venus.

Schenk: Well Venus is visible with the naked eye and it would be the subject of a Block and Byrd segment.

Smith: Well I just mean with your stupid sense of humor, you could have gone with Uranus.

Schenk: Anyways, a lot of good things to talk about on the Nursing Home Abuse Podcast apart from astronomy. We are shaking things up with this episode. I would like to say generally our shows follow a pattern where there’s a main topic we talk for about 10 or 15 minutes about, and then usually we go into a couple stories from across the country that are representative with issues of nursing home abuse and neglect.

This episode we have tossed out the main topic and we basically just going to talk about a host of different news stories and things that reflect what’s going on in the world with the law of nursing home abuse and neglect. I’ll call it a grab bag episode.

Smith: Yeah, and there’s a lot going on right now. And the first thing I want to talk about is this bill that passed in the House, the U.S. House, so it’s a federal piece of legislation, and it’s called “Protecting Patient Access to Healthcare.” And it just passed the U.S. House of Representatives. It’s not law yet. It still has to go to the Senate and still has to be signed off by the President, but it has made the first hurdle. And although this bill is a piece of tort reform that generally comes up every so often, this is one of the first times that I recall in which it has actually passed the House.

Schenk: Yeah, usually these types of things get voted down, but Will, for the sake of the listener, tell us some of the things that are in the proposed legislation.

Smith: Sure. So two very troubling things. One, it would propose a cap on non-economic damages. You could still get unlimited special damages, but general damages would be limited to $250,000. And what we mean by those types of damages are let’s say that someone commits negligence and this specific bill address medical malpractice and the malpractice of healthcare providers.

Schenk: Including long-term care facilities.

Smith: So nursing homes – so malpractice against the doctor and nursing homes, or even LTACs, long-term acute care hospitals. But what we mean by those damages are that if a doctor or a nursing home commits negligence and it costs you $300,000 in medical bills to address that – let’s say that a nursing home doesn’t take the proper fall precautions, and because of that, your loved one falls and breaks a knee and they have to have knee replacement surgery, and it costs them several thousand dollars or several hundred thousands dollars or whatever it may cost them, that’s medical bills. Those are special damages. Those are not affected. What is affected is you can only, under this proposed legislation, you can only seek and you can only be awarded $250,000 in pain and suffering. So it doesn’t matter if you fell and because they dropped you and broke your knee and you had to get a knee replacement, or if they leave you, which we’ve read stories like this before, they leave you to die in your bed, bitten to death by ants over the course of a week. It doesn’t matter. And they’re also proposing…

Schenk: Well hang on, let me unpack that a little bit more.

Smith: Yeah.

Schenk: So generally in law, the only thing you can really request a court to do is to compensate you with money. And generally, if a nursing home has neglected your loved one and has caused your loved one injuries, they’ll have to compensate you for the resulting damages, which means the medical bills, and as well as we talked about the $250,000 in medical bills, then they owe $250,000 in medical bills.

But that’s not the only component of a nursing home abuse case. There’s the component of damages that are internal, that are emotional, that are reflective of the significance that the injury has had on the life of the resident. And that, in popular terms, can be called pain and suffering. So in other words, what is it worth to have gone through a knee surgery? What is it worth to not have been able to walk for six months or possibly never again? How much would you accept to take on that proposition? In other words, if someone came up to you and said, “I have X amount of money. Let me take your knee away from you,” how much would you accept for that? That’s the type of issue that we’re talking about when we say pain and suffering. How has the injury impacted your life? Not limited strictly to the actual pain, but how has it affected? Maybe this individual in her final 10 years enjoyed getting up and walking to the den area or the recreation area and she could walk and say hi to the nurses at the nurses station and say hello to her fellow residents and she got great joy in that and now can no longer do that. How much is that worth? And what the federal government and our current House of Representatives is saying never in any case is that worth more than  $250,000 regardless of what state you live in.

Smith: Yeah, it doesn’t matter. It doesn’t matter what state you live in. It doesn’t matter what the extent of your injuries were, the extent of the negligence. It doesn’t matter. The other portion of this is it’s going to limit the timeframe in which you can bring a lawsuit of this nature to a year, with the most being three years. And the reason I say the most is even in Georgia, the statute of limitations is two years, but under certain circumstances, it can be under five years. Their proposal would say, “Nope, the statute of limitation is a year with no more than three years.”

So here are the problems that I have with this. First and foremost, that it is being proposed by Republican Steve King of Ohio, and it is being supported, although barely supported, by the Republican Party, and one of the reasons why I say barely is this bill only barely passed the U.S. House of Representatives, and it is HR1215 if you want to look it up, and an easy way to remember it is it’s PACA – Protecting Access Through Care Act. So it is being proposed by a Republican and supported even just barely by the Republican Party, which many times has been the party arguing for state’s rights and for limited federal government and for increased power for the states to regulate themselves. And yet here we have a bill which preempts state constitutions and says, “I don’t care what your state has decided. This is the maximum that can be awarded for non-economic damages in trials in your state, and this is now your statute of limitation for your state.” And that is just preposterous. Georgia has already ruled that caps on non-economic damages on certain cases is unconstitutional according to the Georgia Constitution.

Schenk: And here we have a representative of a state reporting to be in agreement with the concept of state’s rights trying to overrule what the common law in the courts of Georgia and the state legislature of Georgia have stated.

Smith: Yeah.

Schenk: And just really quickly with regards to what difference does it make if the statute of limitations is one year or two years or three years or four years – the statute of limitations from a basic standpoint is a tug-of-war between two interests. Number one is the interest of the plaintiff and being able to bring forth their claim. The other interest is the interest of the potential defendant, in this case, the nursing home, of having to worry about their actions from a certain amount of time before that, which for example, if the statute of limitations is too long, then you have nursing homes that perhaps will shut down because they can’t afford the risk of having to worry about claims from over 10 years ago because they over time lose the ability to defend accurately the efficiency of those claims. You make the statute of limitations too short, then it’s probably going to hurt the injured nursing home residents who don’t have time to get their things in order in order to present that claim, so it’s a tug-of-war between two interests.

For the most part, statutes of limitation across the country for personal injury, including professional malpractice, range from one year to three years. Here, the United States legislature through this HR1215 is deciding for you, regardless of what state you’re in, that the statute of limitations for these medical malpractice claims will be one year.

Smith: Yeah, and that’s to me just a preposterous piece of legislation. It’s not overreaching and a gross misuse of power by the federal government, but you also have to ask who is this law serving? If nursing homes – and the reason I bring this up is because I hear time and time again that the plaintiff’s bar, that trial attorneys like us only complain about this because it’s attacking our wallets and it’s attacking – for us, it’s just about the money. First of all, it’s about the money for everyone. It’s not as though nursing homes are pushing this for other reasons. They don’t want to be exposed to risk. They’re not concerned with patients. They’re not concerned with residents. What do you think is going to happen? I mean look at the state of nursing homes in Georgia already. They’re terrible. Even with the threat of lawsuits now, they’re terrible. What do you think is going to happen when nursing homes have even less threat of a lawsuit, because $250,000 is not a threat at all to a nursing home, because it’s not a guarantee that you’re going to get that, and the only way you’re going to get that – understand something – that doesn’t mean that’s what nursing homes are going to settle for, because the driver in many of these nursing home cases, especially when you’re dealing with a wrongful death case, it isn’t the special damages, the medical bills. It’s the non-economic damages, right, the value of that life or lost of consortium, pain and suffering.

Schenk: That’s right. So the risk of a large verdict is going to be completely eliminated in the nursing home’s risk analysis and calculus when paying out settlements or, in the long run, providing care to the residents.

Smith: Yeah. What I want people to understand is the limit on non-economic damages means that if they go to trial, the most that they would have to pay out is for non-economic damages is 250,000, which means to them that in a case where your mother died because of an unstageable bedsore that was avoidable, that they could have easily avoided had they enough staff instead of trying to make profit, that you’re going to get offered $10,000. Why wouldn’t they? Because the only way you’re ever going to get something like $250,000 is if you’re willing to go the long haul of the next three, four, five years just to get that $250,000, and that’s emotionally draining on most people. So these companies are not going to be concerned. Why would they not continue to try to make profit and deal with the risk of the lawsuit when there’s really no incentive anymore.

Schenk: No.

Smith: I mean it’s barely an incentive now. So imagine if you took away this small incentive we do have, which, “Hey look, we don’t know, the jury might give us a couple million dollars,” right? Imagine if they took that away. And here’s the illogic of this – do you think they’re going to just on their own police themselves? Because if you do, why aren’t they doing that now? If this really was to protect patient access to care, why not propose legislation that forces nursing homes to absolutely, “you must have – it isn’t just a breach of the standard of care, but you must have X amount of staff on hand at all times. If you do not, it is automatic that you lose your CMS license,” automatic? And all of these civil money penalties, all of these things are toothless, and you don’t see the legislature jumping through hoops to try and punish nursing homes, but you do see them jumping through hoops to protect nursing homes to make money.

And remember this – if you’re voting for people and you’ve got anybody in your family that is an elderly person that may end up in a nursing home or if you yourself are a human who also ages and may end up in a nursing home, to remember the individuals who voted for this bill because they do not care about you.

Schenk: Well said. Well said.

Smith: Sorry. Steve King – Ohio.

Schenk: Steve King of Ohio, the ice cream guy, the dairy guy.

Smith: Yeah, he’s a huge dairy guy. I don’t know, Steve King, karma is a vicious monster sometimes, and not that I hope any ill will on you, but I definitely see you going to a nursing home at some point in your life.

Schenk: And with that, I feel like this is like – you never watched this, I did because I really loved the show – but it’s called “Designing Women.” And you sound like every episode, or at least every other episode, there was a time in which…

Smith: Not Delta Burke, but the older one…

Schenk: Linda Carter.

Smith: Yeah, it was Linda Carter.

Schenk: Was it Linda Carter?

Smith: She played Superman. I mean Superwoman. Wonder Woman.

Schenk: Wonder Woman. No, that’s a different person. The character was Suzanne Sugarbaker.

Smith: Yeah, because I call you Suzanne Sugarbaker because you sound like this sometimes.

Schenk: Yeah, but not Delta Burke.

Smith: Not Delta Burke.

Schenk: She was also on “Different Strokes.”

Smith: Yeah and she would go off on tangents. She would have a minute where she would go, “Let me tell you something.”

Schenk: Yeah, and she would have a monologue, like once every other episode, which I think if I’m not mistaken, for her to stay on the show, she required that in her contract. She wanted to be able to have that monologue as part of the show.

Smith: Yeah.

Schenk: But anyways, that’s what that reminded me of. You’re Suzanne Sugarbaker.

Smith: So moving on from federal law and the horrible treatment of residents by the legislature…

Schenk: Let’s go to Minnesota.

Smith: Let’s go to Minnesota.

Schenk: So this is an article out of Minnesota. This is a Minnesota Department of Health investigation that found that neglect was evident in the death of an Annandale Care resident. So Annandale Care Center is a long-term care facility somewhere in Minnesota. The resident was not receiving the necessary blood thinners because the facility failed to properly enter the resident’s physician orders. After 15 days without receiving proper Coumadin dosages, the resident was finally put back on the medication but then died due to acute blood loss. So 15 days without receiving blood thinners. So what does that mean from a medical standpoint? So what happened in that person’s body?

Smith: Yeah, so I don’t know what the underlying disorder was, but there were a host of reasons somebody may be on blood thinners if they’ve got some sort of cardiac issue, the physician may put them on blood thinners. And there’s a reason why the physician wants them on blood thinners, because their heart is having trouble for whatever reason pumping that blood. So we know when the nursing home doesn’t…

And there’s a good question here, and let’s use this as a hypothetical. So the nursing home is responsible here because they didn’t put in the order for Coumadin, which is the blood thinner, which is also rat poison in extremely large doses – that’s how they kill the rats, but Coumadin, the blood thinner, wasn’t entered, so the resident wasn’t getting it. They failed to follow the physician’s orders, which is negligence.

What we see sometimes though, and this is not within this story – I’m just using this story to discuss some differences here – what we see sometimes is people will come to us and say, “Hey, I don’t think that my mother should have been on Coumadin and they gave her Coumadin or whatever drug, and we think that is the reason that she died.” So is the nursing home responsible then? If they do give the drug that ended up being the sole and proximate cause of the death, let’s just assume causation and damages are there, then the question is “Is negligence there?” No, it’s the physician.

So what you potentially have here is a medical malpractice, which is a different practice area. Our practice area has to do with when the nursing home got the physician order that said, “I want you to give the resident X medicine,” and they didn’t follow through with it, either they put it in the system or the floor nurse that passes out the medicine forgot to do it or in some cases, at least with opioids and other pain medicine, was taking them herself. So yeah, that’s an interesting difference though because I do frequently get calls where they said, “Hey, I want to sue the nursing home because they gave my mother medication X and we later found out they shouldn’t have.”

Schenk: So another issue that is a possibility in this care in terms of liability of the nursing home itself is that it’s possible that it looks like after 10 days, the resident complained of abdominal pain and was taken to the hospital. Doctors discovered a large pool of blood along the muscles where the resident was receiving injections, so it’s possible that based on the subjective complaints of the resident, the observation of blood pooling in the injection sites that the nursing home failed to notify physicians in a timely fashion that could have averted her death, which again, time and time again we say on this podcast that sometimes even if the initial injury is not the result of the nursing home’s negligence, failing to do something about it in a timely fashion creates the cause of action that would allow for a lawsuit against a nursing home, and I think that’s what this case could potentially be about, even on top of the negligence in not following the physician’s orders.

Smith: Yeah.

Schenk: So that comes to us from Minnesota. Let’s hop over to…

Smith: This is one in Georgia actually.

Schenk: Well let’s come back home.

Smith: Yeah, let’s come back home. This one’s in Coweta County and it has to do with the actions of a nursing assistant in Newnan Health and Rehab. She has spelled it Newman, but it is not the Seinfeld character. It actually should be Newnan. Anyways, we’re talking about our intern whom we love and cherish very much and does an excellent job.

Anyways, a nursing aide in a Newnan Health and Rehab caused injuries that led to the death of a patient, Edna Warren. While at the nursing home, Ms. Warren and the nursing aide got into a physical dispute, which led the nursing aide to break Ms. Warren’s legs. She was immediately taken to the hospital, not able to survive the surgery. GBI is charging the nursing aide for aggravated battery, exploitation and intimidation of an elderly person.

Schenk: According to the police report, Ogunkunle had attempted to get Warren ready for breakfast…

Smith: Ogunkunle is the assistant, the nursing assistant.

Schenk: Yeah – had attempted to get Warren ready for breakfast when she became combative and began kicking him. When Ogunkunle allegedly held her legs together to keep him from getting kicked, he heard a cracking sound in her leg.

Smith: So that sounds awful. What ends up being the situation here is that there are conflicting reports and at one point, the nursing assistant admits that he lied because he was scared of getting in trouble. So it doesn’t really say what he lied about, but certainly that’s awful. It’s a hard job and I’m clearly not taking up for this individual for what he did to this resident, but I would like to know more facts and I’d like to know what happened. My gut tells me he probably did something he shouldn’t have, but you have to remember the elderly are people who – and this is a 98-year old woman. Her bones couldn’t be more brittle. And it is certainly possible that she was lashing out at him and he was trying to do his best to restrain her without hurting her, and she ended up getting hurt in the process. Personally I don’t think this was the situation. I think this guy got upset and broke this woman’s legs, and if that’s the case, then there’s a special place in Hell for individuals like that.

But again, I do want to take a minute to talk about the fact that there are always bad apples, whether they’re police officers, whether they’re members of the military, whether they’re the individuals who work in the nursing home industry. I have a special place in my mind for those individuals because it is an extremely difficult job. They are horribly understaffed, and at the end of the day, the people I blame most are the owners and operators of these nursing homes. This guy, if he did what the allegations suggest is going to go to prison, and he should, and if he doesn’t have a proclivity to commit these types of actions, then there’s really not going to be a legal case against the owners and operators, but I still kind of in my mind hold them responsible, because I imagine that if they were paying well, investigating everything that was going on in the nursing home and had a complete staff, this type of thing wouldn’t happen.

Schenk: I would agree with that 100 percent.

Smith: Yeah, I’m sorry that I threw it back to you when you’re still trying to figure out a good way to segue into anything…

Schenk: I wasn’t. No, what I was doing was trying to research and confirm that it’s not Linda Carter who was Wonder Woman.

Smith: Ah yes.

Schenk: It is Dixie Carter who played Julia Sugarbaker.

Smith: Yeah.

Schenk: Delta Burke played Suzanne Sugarbaker. So I was accusing you earlier when you went on your soapbox for 20 minutes about that proposed legislation that you were being Dixie Carter and Julia Sugarbaker, just so the record is correct.

Smith: Okay.

Schenk: All right.

Smith: Now that we have that…

Schenk: And just so everybody understands, I would love to be Amy Potts’s character. She was my favorite. I like redheads.

Smith: Duly noted. And what should also be duly noted is that we are fortunately out of time for this episode, which has been very interesting.

Schenk: That’s right. As always, you can download new episodes of the Nursing Home Podcast, the audio portion of the podcast on Stitcher or iTunes, or you can watch on our website, which is NursingHomeAbusePodcast.com, or on our YouTube channel, new episodes every Monday morning for your viewing or listening pleasure. And with that, we thank you and we will see you next time.

Smith: See you next time.

Thanks for tuning into 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 on the topics discussed on this episode, check out the show website – NursingHomeAbusePodcast.com. That’s NursingHomeAbusePodcast.com. See you next time.


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