Episode 30

Why would a nursing home case got to court?

 

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

Smith: And I’m Will Smith.

Schenk: And we are trial lawyers practicing in the area of nursing home abuse and neglect in the state of Georgia, and we happen to be your co-host and guide, Sherpa…

Smith: This is plural.

Schenk: …Sherpas through this episode of the Nursing Home Abuse Podcast. Speaking of Sherpas, I recently visited the Grand Canyon for the first time in my life. And I think you can actually hire a Sherpa. Actually, I made that up, but I can see it.

Smith: None of this is accurate.

Schenk: I could see that because a Sherpa’s the dude that shows you around.

Smith: I’m pretty sure Sherpas are a specific group of people just for Mt. Everest.

Schenk: I thought Sherpa was a generic term for someone who would show you up a mountain.

Smith: I don’t think so.

Schenk: I’m so sorry that I brought it up at this point, but the Grand Canyon was beautiful.

Smith: Awesome. Great story.

Schenk: Yeah. It’s actually pretty cool. It’s a good place. You should go. Have you been there?

Smith: I’ve told you at least a dozen times that I’m going at the end of August.

Schenk: Okay, well don’t say that because I don’t know when this is coming out.

Smith: Oh yeah. August of when? It could be 2020.

Schenk: That’s right. You’re going in some August in some year. Okay.

Smith: Man.

Schenk: All right, what do we have on our horizon on today’s episode, Will?

Smith: We’re going to talk about – and this is going to be a very broad view of resolving a nursing home case, because I think in talking with a lot of clients, their first perspective is well I want to file suit against this nursing home for negligence. And filing a lawsuit is certainly something we do frequently, but it is not the first step, nor is it the only way to resolve a case. So we’re going to talk about the different ways of resolving a case, whether it could be arbitration, could be mediation. It could be a simple demand with a settlement letter, all the way up to court and why some cases may go to court.

And something I want to emphasize here, and this is one of the first things I learned, much to my chagrin, because I always wanted to be a trial lawyer, and one of the first things I remembered learning in law school was that less than 1 percent of civil cases go to trial. That is a tremendous, tremendous piece of information, because when you watch television about legal issues, when you watch – what are some of the television shows out there?

Schenk: There’s one that goes like this – dun dun. Law and Order.

Smith: Yeah, but those are criminal cases.

Schenk: Boston Legal?

Smith: Boston Legal.

Schenk: LA Law?

Smith: And just so you understand, we’re talking about civil litigation cases. Criminal cases actually see a lot more court time and tend to go to trial a lot more often.

Schenk: But you’re right. I’m digging what you’re throwing down.

Smith: Yeah, you see those television shows or movies, and it always seems like somebody comes to the lawyer’s office and they’re like, “Yeah, let’s file suit.”

Schenk: And the next day they’re in court.

Smith: Yeah, a week later they’re having a jury trial. Not the way it goes. If I were to file suit today, I would imagine that it would be 18 months, maybe 12 to 18 months before we had a reasonable expectation to get in front of a jury, because you have to think it takes a while to serve the defendant. Then you have a long period of discovery, which is at the base six months and almost always extended beyond the first six months. Then you have to get on a trial calendar, and your first time on a trial calendar, it’s going to be, depending on the jurisdiction or depending on the venue, there are going to be 100 other cases and you’re 98. So the likelihood of you going is slim to none.

Schenk: Small. And generally the only cases that are extremely complicated and have lots of witnesses will be specially set, meaning you’ve got a specific time and place you’ve got to be. Very rare. At least in Georgia.

Smith: You know, you hit the microphone a lot recently.

Schenk: Okay, I don’t know in what world you live in. But to the point of TV, I think a good movie for this is “Erin Brockovich,” because there’s a scene where Erin Brockovich, in case you don’t know, there’s a town where a lot of the residents of a particular town got different types of cancers and different types of elements based on pollution of the water from a chemical treatment plant, some kind of factory or something like that. And so anyways, so there were a lot of plaintiffs, like hundreds of plaintiffs. And there’s a scene that takes place where one attorney, not Erin Brockovich because she’s not an attorney, but the lawyer she works for is addressing the hundreds of plaintiffs, and he’s making the argument, “Hey listen, it’s going to take years for us to resolve this, and in any other case, if I were just talking to one of you, I would not suggest this, but because there are so many of you and some of you are in dire situations and in need of money now, we need to arbitrate this.” And this was arbitrated, meaning it would be done through a neutral arbitrator, not civil litigation. But anyways, in that scene, he makes the argument that sometimes it’s a lot slower. It’s not going to be tomorrow that you get in court, that kind of thing.

Smith: And who played Erin Brockovich?

Schenk: That would be – I almost said Julia Lewis.

Smith: You’re close except for the last name.

Schenk: I know who it is.

Smith: The Supreme Court justice nominated by Bush, John…

Schenk: Roberts. Julia Roberts.

Smith: Yes.

Schenk: Who’s from Smyrna, Georgia.

Smith: And her sister went to high school with my cousin.

Schenk: So at this point, I wish upon a star that we had a sound person, like I think “A Prairie Home Companion” has an individual that’s off to the side of the stage that does sound effects, like a door creaking or stuff like that, because based on your story about your cousin and Julia Roberts, I want that person to make a tugboat sound.

Smith: Yeah.

Schenk: You know what I mean?

Smith: So sorry I pointed something out, unlike you who never points out anything at all to do with his past or what it was like growing up in Tennessee or what happened in dodge ball in high school or anything like that.

Schenk: I forgot about that.

Smith: Yeah, well the audience is not…

Schenk: Mark M. Period. I don’t want anyone to Google that guy.

Smith: Yeah, because I’m sure he’s the only one with that name.

Schenk: Anyways, these are all inside references to previous podcasts. So this incentives you to go back and look. And every episode, every week, the cult following increases.

Smith: The main point was it was a realistic Erin Brockovich with Julia Roberts, and I can’t remember the guy’s name.

Schenk: The character actor.

Smith: He’s a great character actor. Anyways, it’s realistic because the reality is we like to go to trial, we frequently file lawsuits, but in the vast majority of cases, you’re going to resolve it before trial. And there are a lot of reasons for that. One, it not only takes a very long time to go to trial. It’s always extremely expensive for both sides, the plaintiff and the defense. And I don’t remember what my perspective was before I became a lawyer on what trials might cost, but I think a lot of people don’t understand the full cost, out of pocket cost of a trial.

Schenk: Tens of thousands of dollars.

Smith: Could easily be $60,000, $70,000, $80,000, $100,000. They can be even more than that depending on the complexity and the number of experts and the type of demonstrative evidence exhibits that you may invest in. So if you have a really complicated issue that requires you to hire two or three different experts – experts – you’ve got to pay these experts a lot of money for their video deposition or their at-trial testimony. They’re not just a regular witness that you can subpoena and give them their witness fee and say, “That’s it.” If they’re a expert and you’re going to use them as an expert, they can easily run up to $5,000, $7,000, $10,000. They command a lot of money. And that’s true for both sides because they both have to have experts.

Schenk: And at this point, your question would be well if we’re successful in our claim, does the other side pay for that? And the answer is most often, no.

Smith: No. Yeah, the vast majority of the time, no, because only under limited circumstances can you get attorneys fees.

Schenk: From the other side.

Smith: From the other side.

Schenk: So at the end of the day, the court process, although equitable and the best in the world in my opinion, is oftentimes slower than the common perception and is more expensive than the common perception of the civil justice system.

Smith: And a lot of cases, you never really – it’s hard to determine where a jury may come down on them. So if you have – and this goes for both sides – if you have a case where both sides are not really sure about in that there’s no guarantee that a jury is going to make a decision one way or the other, oftentimes they’ll meet in the middle of mediation or the settlement process and resolve the issue. And that involves a confidential settlement.

So I guess my question would be why would a nursing home case ever go to court then? Well insurance companies can be stubborn, and I think there has been a trend in the past 10 to 15 years of pushing to the limits. I think it used to be the case that you could leverage these nursing homes, these malpractice and personal injury cases by threatening trial, whereas nowadays, a lot of these multi-million dollar insurance companies have the perspective of, “Well look, we have $1 million, $2 million policy. We think that you’re only going to get 500 grand, so we consider it a win that you still got below the policy limits.” And they’re pushing these defense firms to litigation.

There also has to be enough of a controversy there. So if you’ve got a case where the nursing home is clearly negligent and it is beyond any argument that that negligence caused a horrible damage, then yeah, they’re likely to never want to go to trial, but those are never the actual facts of any nursing home negligence case.

Schenk: Or very rarely.

Smith: Very rarely. I’m talking about the type of case where, and I’m making this up, imagine you have a family that – again, and we discussed this in previous podcasts, we’re not advising that you put cameras in the loved one’s room, but let’s say they have a private room and they put cameras in there, and you see the staff coming in there, the administrator coming in there, the owner of the nursing home and even the insurance adjustor coming in there and abusing the resident and neglecting the resident, and the doctor coming in there saying, “Well here’s what I prescribe – let’s neglect this resident until they die,” sure, if you had an insane case where it is absolutely clear that not only was there negligence but there was also causation that contributed to a catastrophic damage, so those three parts of the stool that hold up one of these cases. You almost never see those cases.

Schenk: And I think piggybacking on Will’s hypothetical, at the end of the day, a case is going to go to court where a breakdown in the settlement process has occurred. So you have to think about it from this standpoint – the attorney for the resident has to do some calculus, adding up the estimated cost in money to bring that case forward. It could be 10,000, 100,000, whatever it is, has to weigh the cost and time and effort to the family. So some families want a quick resolution. Some families require a quick resolution. So that calculus is done on the resident’s side. The plaintiff’s attorney will do that calculus. He or she will look at the estimated verdict for that particular case, and nobody has a crystal ball, nobody can be dead on accurate.

Smith: And one of the problems, if I could just point out something here, for nursing home cases, is unlike other personal injury practice areas, there are not a lot of jury trials. I’m not 100 percent sure why that is, but because of that…

Schenk: Other than the fact that many are arbitrated because of mandatory arbitration.

Smith: Many are arbitrated, yeah. On auto accidents, there are entire companies out there that compile the different jury verdict results and you can search through them for facts that are similar to yours, the same thing with medical malpractice or premise liability, slip and falls or negligent security. Nursing home cases, I mean you can count on both hands and still have some fingers left the number of nursing home jury trial verdicts in the state of Georgia in the past 20 years. You might be able to count on one hand. There are not that many at all, so it’s really difficult to do that calculus sometimes.

Schenk: Exactly. It’s a good point. So to the extent that’s a difficult calculus to do, that’s what the plaintiff attorney is doing is looking at the time and expense and then looking at the estimated best case scenario verdict-wise. And so the plaintiff’s attorney is going to try to look at settling the case at the closest he or she can get to a best case scenario verdict minus those expenses. Does that make sense?

So let’s say the best case scenario in this case is $500,000, and his or her estimation, the lawyer’s estimation on the cost is 100,000. So that plaintiff’s attorney is going to try to settle that case as close to $400,000 as possible because settling at $400,000 is just as good as his best case scenario going all the way to verdict, because like we said before, the $100,000 cost is not going to be paid by the other side. The resident pays that. So $400,000 is even better because you don’t have to go all the way to trial.

Smith: The resident, the resident’s estate, all of that.

Schenk: So I’m not saying that $400,000 is the hard number to settle on. It might be based on the calculus a little bit closer to 250,000 – you never know. So a case goes to court when on the plaintiff’s side if the plaintiff cannot get within reasonable distance to that number of the estimated verdict amount minus the expenses. On the opposite side, a case is going to go to court for what Will said if there’s an insurance policy in place, which most of the time there is, it’s not worth it. The nursing home is willing to take a chance based on the insurance policy that is applicable. They have a reverse calculus, but that’s really what it is. And we’re seeing a tendency more and more where the insurance company is willing to bet it in court rather than pay settlements across the board, because Will and I are just individual partners in a law firm. You’re talking about insurance companies defending nursing homes have access to statistics, thousands of different cases, because they’re a larger entity. So their calculus, they are more willing to bet, in my opinion, than the plaintiff’s attorney who could lose their house if they’re wrong about a particular case.

Smith: And not to mention the fact that a jury verdict is not the end of the case, and that’s another thing a lot of people don’t realize. All that a jury verdict does is open the door for another part of the process, which is the appellate process. So let’s say you get a jury verdict for $5 million. Does that mean that you now get a check for $5 million from the defendant? No. Absolutely not. The defendant is likely going to appeal. How long does that process take? Well I was recently involved in an appellate process that took three years. Three years. The Georgia Court of Appeals is one of the busiest courts of appeal in the nation. It may be the busiest, but it definitely is the top three or four in the nation if not number one. So the appellate process can take a long, long time.

Now there’s pressure on the defendant to settle after a verdict instead of going to the appellate process because there’s interest running on that – let’s say $5 million again. But there’s also pressure on the plaintiff to settle as well for less than what the jury verdict was because three years is a very long time, and there’s also the possibility that the appellate court might overturn the verdict for some reason. Maybe the trial judge did something wrong. The plaintiff’s attorney did something they shouldn’t have or defense counsel failed to do something they should have. It could have been a lot of different things. So there’s a lot of incentive, even after verdict, for settlement.

Schenk: So at the end of the day, a case generally goes to court only in very limited circumstances, generally where there maybe is a slam dunk  case on this side of the plaintiff’s attorney and they have no qualms taking it all the way to verdict for their own reasons, but by and large, a case is going to court because the settlement process has failed, in other words, the two parties could not reach an agreement. Again, the discovery process, the trial process, the appellate process is generally long and arduous, and generally if a settlement can be reached, that’s going to be beneficial for both parties. That’s going to be the two principle reasons why a case would go to court is because if can’t settle or because it’s so slam dunk the attorneys really want to show their muscle.

Smith: And I’ve pointed this out numerous times in previous podcasts where we’re talking about jury verdicts and money, that it may seem a little callous, but you have to remember that if you come to us and you ask for a resolution, the answer to that resolution is a monetary award, because again, we cannot ask a court to hold that a nursing home should change its ways. We cannot ask that a jury bring back your loved one or undo the harm that has been done to them. The absolutely only thing that we’re capable of doing – there is only one thing, nothing else, is having a nursing home that has committed negligence give your loved one’s estate or your loved one money. That’s it. And that’s pretty powerful because they have a right to be made whole, but also because these types of lawsuits really do help change that industry, because nursing homes that are losing money, these insurance companies are going to start saying, “Hey guys, you’ve got to clean up your act.”

Hopefully that is – that’s the optimistic perspective, but anyways, certainly you can imagine they would only get worse if let’s say there was some insane law, which would never happen, that were passed down that said you absolutely cannot sue a nursing home, even in arbitration for anything they do. What do you think would happen then? There would be scenes out of Clive Barker’s “Hellraiser,” like they would absolutely be the worst places.

Schenk: Pinhead.

Smith: Pinhead. Yeah, so they would absolutely be terrible. So clearly having this type of leverage on this industry is helpful. And them paying out money is the single remedy we can do, so we have to do this calculus. It doesn’t mean that the tragedy of the situation is lost on us. It just means that as trial attorneys, we have to do this calculus because we know that the other side is doing it as well.

Schenk: That’s right. Yeah, well I think we’ve addressed that topic adequately, although you could have eight podcasts on that topic.

Smith: You really could.

Schenk: But I wanted to talk about a recent news article that I saw here. It looks like this comes to us from Bellevue, Illinois. Ann Jackson, acting as a representative of her deceased aunt, Pauline Purifoy, fought a lawsuit against Cahokia Nursing Home and Rehabilitation Center in Illinois for more than 250,000 due to claims of medical negligence. Purifoy suffered a sever urinary tract infection and dehydration and yet after numerous instances of extreme pain and suffering, Purifoy was not given medical attention until she was on the verge of death.

Smith: Awful.

Schenk: According to the lawsuit, her physician was only contacted once Purifoy was moaning on her bed with her sheet stained with vomit, urine and feces. So it looks like Purifoy was 86. She entered the facility in 2008, died in April of 2015. Her last few days, she suffered from severe urinary tract infection, dehydration. When investigators from the Illinois Department of Health arrived on April 16 and observed her condition, the physician had still not been contacted, even though she was still in pain and had been receiving medication. She eventually died a couple days later of septic shock and multi-organ failure.

Smith: And I want to point out something because I think this may be something else that we talked about in another case. Any time you hear us read a news article that says that a lawsuit’s been filed seeking X amount in damages, that is not an indication of the value of that case. It is a procedural thing for that state. So when they say for more than 250,000, it’s just a procedural thing they’re doing in – where is this?

Schenk: Illinois.

Smith: Illinois. So it’s a procedural thing. It doesn’t mean they are specifically saying, “Hey, we want $250,000 and then we’ll go away.” This case could potentially be worth millions, well a million or more.

Schenk: It depends on whatever their laws are.

Smith: Anyways, it’s a procedural thing. It is not a case evaluation.

Schenk: So there were a few issues that I thought were interesting that I wanted to talk about, and the first one is she died of septic shock and multi-organ failure presumably brought on by the urinary tract infection. So the first thing is this is that, number one is these, in my experience, can be very difficult cases because oftentimes, it’s not a slam-dunk to connect. Everything has to be connected. It’s not a slam-dunk to connect a urinary tract infection to septic shock. It’s difficult. It can be difficult to link these two. These might not be difficult, but in many essences, this is difficult to prove by a preponderance of the evidence that a urinary tract infection led to the septic shock.

Smith: Yeah, so remember when we were talking about earlier how you evaluate a case when you take it to trial and there are three legs of that stool that hold up that case – negligence, causation and damages. So you can have a case where these guys committed negligence, they clearly committed negligence. Let’s say it’s another Erin Brockovich-like situation and you’ve got this Captain Planet-like bad corporation that is dumping toxic waste into a local river, and it is a clear violation of the standard that they’re supposed to follow, clear negligence. Let’s say you have a local resident who dies of brain cancer sometime after they’ve dumped this so you have clear damages. You still have a question of causation. And while it may be from a non-scientific view you go, “Well they dumped these chemicals into the water. Those chemicals can cause cancer. This person had cancer. Therefore they caused the cancer.” That’s not how science works and that’s not how medicine works because this person could have also gotten cancer for genetic reasons. They could have smoked four packs of cigarettes on a daily basis. They could have been ingesting any number of other chemicals that could have caused this.

So when we have a situation like this, yes, from the outset it sounds horrible and we actually have a case very, very similar to this one where the resident was left in bed for eight days in urine and feces. He luckily survived, but is that negligence? Yes. Does he have damages? Yes. He ended up getting urosepsis. But is the urosepsis the sole and proximate result of the negligence? You got to get an expert to look at that and make that determination.

Schenk: That’s right. So again, and Will brings up a good point, you have to link, in this case, urinary tract infection to a negligent act of the nursing home, but often with more difficulty, you have to link the urinary tract infection to the ultimate injury, which is septic shock and death in this case, which can be oftentimes very difficult.

The other thing that I thought was very interesting in this case was that as you might intuitively understand is that when there’s a change in condition of a resident, that nursing home has a duty to not only call the family but to call for medical care. And it doesn’t look like this nursing home responded to the request for help from the resident herself. She’s moaning and I think that’s what it said – let’s see – “moaning on her bed with sheets stained with urine, vomit and feces.” That’s ridiculous.

Smith: That’s absolutely ridiculous.

Schenk: I’m not saying that everybody has to be a doctor like House and be able to diagnose something, but a nursing home staff should be trained to identify symptoms of status change. And here, they didn’t for at least days.

Smith: And pretty clear status change too. I mean you don’t just leave somebody without changing them for days on end and just assume, “Oh well, she hasn’t gotten out of bed. I’m sure she’s okay.” Clearly this nursing home failed below the standard of care.

Schenk: That’s right. So therefore, you can have cases in which no negligent act on the side of the nursing home has caused the infection, in this case, urinary tract infection. Let’s just say for hypothetical purposes that this nursing home is not responsible for the urinary tract infection. The nursing home could still be liable for septic shock and death if they do not properly and timely recognize the symptoms of the infection. They have a duty to do that, particular if they accept Medicare or Medicaid funds. They have a duty to observe status change and call the hospital in time. And when they don’t do that, they can be liable for the resulting injuries. And in this case, it looks like it’s possible that not only did they cause the urinary tract infection, but they failed to recognize the symptoms of the urinary tract infection and therefore they are responsible for the septic shock and death.

Smith: And I would like to timely recognize that we have come to the end of this podcast.

Schenk: So we have reached the conclusion of this episode of the Nursing Home Abuse Podcast. We are very glad that you are able to make it to the end with us. As always, you can download new episodes of the podcast every Monday morning. There’s two ways to consume every episode. You can either – I don’t have my script in front of me – you can either download the audio on Stitcher or iTunes, or you can watch us on our website, which is the NursingHomeAbusePodcast.com or check us out on our YouTube channel. Again, we’re happy that you made it and until next time.

Smith: Until 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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