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 your hosts of this episode. We also happen to be –
Schenk: We also happen to be trial lawyers as well as people who cannot use straws. We have a lot of good things, interesting things to talk about in this episode of the Nursing Home Abuse Podcast. This is actually I would say qualifies as by popular demand because I am a novice at understanding Google Analytics, and through the use of Google Analytics, I have analyzed our website and have discovered where some of the sites and some of the blog hits or some of the blog articles that are getting the most amount of traffic. And with that, I was able to determine one of the most popular subjects on our website is the question – how long does it take a nursing home case to settle?
Smith: Settle. Not get a jury verdict. Not make it past appeals if that happens after verdict. Typically to settle.
Schenk: Yeah, from the time it takes the claim to occur, we mean the injury, to the time that money can exchange hands, that will be what we’re going to talk about here in the opening, what we would call the main topic segment.
So we want to do that – there are a lot of different ways we can take this. How I want to address it is a typical case, because basically when a client comes in the door, it can range from the injury has occurred the week before, the day before, to all the way up to a year or two years before. Now in Georgia, the statute of limitations for most personal injury claims are going to be two years. Now there are going to be cases in which that can be extended and there are going to be times you need to act before that depending on who the defendant is, but by and large, in Georgia, the injury statute of limitations, meaning the time in which you can bring that claim, is going to be two years. So the typical client isn’t coming to us with a claim that’s two years old. Generally it’s going to be somewhere in the range of a week to a couple months. So we’re going to be talking about this from a typical case standpoint. A client comes in the door to us and says, “My loved one has been injured in a nursing home. It happened a week ago, a month ago, two months ago. What do we do next?”
Smith: There’s a reason too he’s saying that and that’s because if it’s an atypical case and they come to us and there’s not much time left on the statute of limitations and we do take the case, then we may have to change the trajectory. We may immediately file suit.
Schenk: Yeah, which means that a suit will be filed prior to there being a settlement.
Smith: Yeah, so let’s just assume that statute of limitations is not an issue in these typical cases.
Schenk: Okay, so the first thing that we would do in our cases is do our own investigation of the claim – our own meaning Will and I. So what we do in a typical case is we request medical records. And so medical records are going to come from different places. Firstly, we’re asking for the medical records, basically the resident’s records from the nursing home – nurses notes, progress notes, physician orders, all the things that inhabit the file of the loved one that was a resident of the nursing home.
But obviously most nursing home residents aren’t just receiving care at the nursing home. They get sent out to their primary care physician. They might go to the emergency room every now and then. Wherever the individual resident has received treatment for the appropriate amount of time that we need to investigate, we get medical records from that facility.
Medical records, as we’ve talked about in previous podcasts, are important for several reasons. Principally, you want to find out what condition the resident is in. In other words, there are going to be times where the nursing home, if the resident was injured, that resident might have other co-morbidities that will affect whether or not there was a claim. So medical records, at least in that sense, are important. They also can tell you a little bit about the effectiveness of the nursing home staff, because sometimes you’ll get records where there are meticulous nurses notes. There are meticulous CNA notes about the care that the resident has received. Sometimes it’s like so spotty that there are barely any records at all, and that’s a good indication of whether or not the nursing home is taking care of its residents. It’s another reason why medical records are important.
Smith: And when we’re talking about – and let me know if this is going to break up what you were saying – if we’re talking about time, medical records take a lot of time to get. We send out a notice of claim, of a potential claim, so that the nursing home will preserve evidence. And in that notice of a new claim, we also request insurance information and medical records.
Schenk: That’s right. So one of the first components is gathering medical records, and that can take anywhere from depending on whether or not the client goes out and does it themselves, but it can take anywhere from a day to even a couple months. Some hospitals, some nursing homes are slower than others to accumulate the record and give it to the attorney, that’s why that might take that long.
Smith: Yeah, let’s focus on this just for a second because getting medical records in our experience can take from one to five months. And I mean the five months and the one month are typically outliers. I think typically three to four months is the general time. And typically it doesn’t take that long, but there are a lot of issues that you have to consider. Number one, requesting the medical records requires that we have HIPAA authorization, and even though as we have spoken in previous podcasts, while your general power of attorney may allow you to sign away their Seventh Amendment right to a jury trial, it doesn’t allow you to get your loved one’s medical records. So if your loved one is still alive and you are a family member, a son, a daughter, and you’re trying to get medical records, but they’re not capable of signing HIPAA authorization, you may have to go through the entire process of getting guardianship or conservatorship because even though you may have been speaking with the nursing home about your loved one’s medical care, as soon as they discover that there’s possible litigation about that care, then all of a sudden they follow HIPAA to the tee.
And I have had a case where it took us about four-five months to finally get the medical records, and it wasn’t until the resident actually passed away that we were able to get the records for the family, because the odd thing is under Georgia law, while she was alive, the resident’s son couldn’t just request the records, but as soon as she passed away, Georgia law allows the resident’s son to get the records as the surviving child.
Schenk: Right, so at the end of the day, getting the medical records is one of the first things we do as part of our investigation.
Smith: And another thing that you have to take into account is that if the resident is not passed away, it is possible they are still receiving treatment. And until we are sure that the treatment is over and has covered – her damages, all the treatments concerning those damages is completed, there’s no reason to get the medical records yet because they’re not done being compiled./
Schenk: That’s right. So once that occurs, generally what’ll happen next is for most law firms that do nursing home negligence and abuse, it’s going to go through two levels or actually three levels of review. First level of review is going to be the attorneys themselves look over the records. Most attorneys will have a nurse or some type of medical professional, not necessarily on staff, but somebody they can typically hand off and they review and compile the records and make notes. And then ultimately the medical records go off to an expert in the field depending on what the injury is. So if it’s a particular surgery that went awry, then it’s going to be a surgeon that does that procedure. If it’s an issue with understaffing, then it’s going to go to an expert that understands nursing home administration, something along those lines. An expert is going to take the medical records and any other evidence that we have acquired, and basically render an opinion on that in the form of an affidavit. So from the time that we get the medical records and we get those over to the experts for review, I mean depending on what the expert’s schedule is, that can take anywhere from a couple weeks to maybe even three or four months to get that going. And again, this all can be expedited depending on the urgency of the claim depending on the statute of limitations, so we’re just talking about typical claims.
Smith: And there are also some – not to go off on a tangent here – there are also a couple protections that individuals have, plaintiffs have, in cases. In order to file a lawsuit in these cases…
Schenk: In Georgia.
Smith: Yeah, you have to attach an affidavit of an expert. If you don’t get to a law firm within a certain amount of time for them to get the affidavit, there are still some exceptions that will allow you to attach the affidavit letter later. It’s still always smart to talk to a lawyer even if you think you don’t have any time.
Schenk: Meanwhile back at the ranch, while you’re waiting for the medical records to come back or you’re waiting for the expert to review the medical records to render an opinion, you’re also doing other things. So for example, you’re making requests with the federal government under the Freedom of Information Act to get certain records from the nursing home facility and getting those records. Sometimes those get reviewed by an expert. You’re also gathering witness statements, so if there are other family members that share the same suite as your loved one, you might want to go and talk to them and get statements from them. You might be getting other witness statements depending on if it’s a case of elopement, maybe someone at the corner of the traffic stop saw them or at the traffic light saw the individual resident. The types of things that don’t require a whole lot of time, you can get them done – bang, bang, bang.
But while you’re waiting on the expert affidavit, you’re consolidating everything, photographs, if there are any videos, any statements, and what you do is once you have your expert opinion and you’ve evaluated the case as an attorney, and this is something we can do because of the three legs of the stool – we talked about these before in the podcast that there’s an act or omission by the nursing home on the part of the nursing home that caused an injury – the three legs of the stool, then you have a case.
And so what you do as an attorney at that point is you put together your demand package – in other words, this is a statement of what a lawsuit would look like, and it’s a statement of what we think this case is about and it’s a statement of what we think this case is worth value-wise, because at the end of the day, it all comes down to the verdict of money compensation. So it’s a demand package. Here’s everything that we have, laying it out on the table. Here are our arguments. Here’s where we’re strong. Here’s where we’re weak. Here’s what we think the case is worth. If you want to give us that, we’ll sign a release and we’ll settle this case.
So the demand package, at least in Georgia, the demand package is going to go out, and at that point, the nursing home can either say, “Leave us alone. Go pound sand,” or they oftentimes will come back with a counteroffer. And that’s the first time in which the settlement can actually be facilitated, because up until that point, nobody has offered or told the nursing home anything. So until they get a demand package, they might not even know you’re going to make a claim. They might know the claim might exist, because you might have notified them that something happened and you think they’re wrong, but until they get a demand package, they’re not going to take any action, because why should they?
So only until really the demand package goes out are the parties generally going to consider settlement as an option. And it’s not like if your loved one has been injured, the next day the nursing home is not going to cut you a check. It’s generally going to take a demand package to go out until they even consider bringing out a checkbook.
So generally on a timeline scale, you’re between two and three months to six and seven months from the time that you as a loved one of a resident who’s been injured in a nursing home coming in can settle that case. That is going to be on the early, or the short side – three to six months is going to be on the short side.
From that point, once the demand goes out, that’s the first opportunity there really is going to be to facilitate a settlement. And the nursing home is going to have their evaluation of the case, their assessment of the case. You’ve already got yours because it’s in the demand package. And then it’s a matter of can the two of the parties work out a settlement without having to file a lawsuit.
And anecdotally, often we can negotiate a settlement prior to filing a lawsuit either just through standard negotiation, tit for tat, but oftentimes it’s beneficial if there’s not a statute of limitation issue to go ahead and mediate a settlement, meaning that the party will agree before a lawsuit is settled, the parties will agree to mediate with a private mediator the claim. Mediation, as we’ve discussed in our podcast before, is going to be an alternative to filing a lawsuit and going to verdict in order to resolve a claim. And this, you’re both agreeing to basically argue your side to an individual whose job is to see if he can bring the parties together to resolve and settle the issue.
Smith: Yeah, and mediation as a process typically takes one day, so it’s not that mediation is a long process, but you only want a really good mediator in these cases, and these are the most sought after mediators, and so getting on their schedule can take a month or more. It’s not like if you decide to mediate, you just call up any one of the handful of top notch mediators and go, “Hey listen, we’d like to mediate. Can you do it next Tuesday?” It could be a month before you actually get on their calendar or more.
Schenk: That’s right. So the negotiation process, depending on how contentious the issues are, depending on what insurance company you’re dealing with, depending on what nursing home or what law firm you’re dealing with, the negotiation process can either be very short or very long or not successful at all. And so generally that range can be anywhere from 30 days to 90 days to really get a handle on whether or not it’s going to be settled without having to file a lawsuit or it has a probability of being settled at mediation.
Now again, just because you file a lawsuit does not mean you cannot negotiate a settlement. In fact, we’ve given this information out a lot that most cases settle, and most cases in which a lawsuit is filed also settle. It’s like 95 percent or something like that. And again, that goes to show the benefit of settlement, because if you think about it, you argue a case, you make your peace in trial, but at the end of the day, it’s up to 12 of your peers to decide whether or not you should be compensated, and if you are to be compensated, by how much. With a negotiated settlement, you are in charge of that, and that’s a powerful tool. That’s why most cases settle.
But anyways, so you have anywhere from three months to six months to get a demand package out. From there, you have anywhere from 30 days to 90 days usually to negotiate a settlement or at least find out where the nursing home is at in terms of your value. And then at that point, generally if you can’t come to an agreed settlement solution, you’re probably going to file a lawsuit. And from once you file a lawsuit, generally if there was an offer from the nursing home, it’s going to go up, and generally it will go up the further down the line that you go within typically the litigation.
Smith: Because you’re getting more and more information.
Schenk: That’s right. So oftentimes judges, at least in the state of Georgia and the counties that we work with a lot of time will require mediation, so you’ll have to do it at some point, generally it’s after discovery has concluded, but the point I’m trying to make is once a lawsuit is filed, generally if there is a settlement, unless the nursing home just comes with an offer and says, “Hey listen, we’re toast here. Here, take this,” generally you will mediate a settlement or at least an offer will come on the table again after the discovery process has concluded, which can take anywhere, at least in Georgia, from six to nine months to 18 months, because a lot of times you’ll have to deal with schedules and discovery gets extended, blah, blah, blah. So that’s what you’re looking like with that.
And then if you can’t get it settled at that point, then a lot of times there will be another time where offers will be made by the nursing home after what’s called motion practice concludes. In other words, there’s a time after all the exchange of information in which the parties will file motions that say, “Hey listen, even based on all of your facts, there’s no claim here.” And once you survive that, the nursing home prior to the case getting on a trial calendar will say, “Hey, will you take this amount of money?” And that’s another stage you might negotiate that settlement.
Smith: I would say though somebody walks in the door tomorrow and says, “My mother passed away in a nursing home,” and it’s a decent case that’s going to settle, I’d say seven to eight months is optimistic.
Schenk: That’d be an optimistic standpoint, although not impossible. That’s generally what you’re looking at how long it’s going to take a case to settle. There are just so many factors and what we’re giving you in this podcast is just a super generalized timeline and a generalized group of facts. Lawyers are famous for hedging their bets. I’m hedging my bets here – it could be much sooner than that, it could be way later than that. It just depends on the facts of your particular case, but these are things to think about.
Smith: Yeah, for example, another thing you may not even consider is at the very beginning of every case, we contact Medicare and Medicaid, the Centers for Medicare and Medicaid Services, because there has to be a conditional payment letter from them before we can finally close the case out. And even if we notify them in the beginning and they’ve got seven to eight months to get their stuff together, it’s the federal government and sometimes it takes them even longer. So there are lots of factors in play that just depend on the particular case.
Schenk: That’s right. So hopefully maybe this particular episode of the podcast will also get a high amount of traffic and do a good job of answering the question we get a lot based on the analysis of our website.
Smith: The bottom line is that it’s going to take the better part of the year to settle a case. These are not the types of cases that you walk in, you tell the attorney what happened, they send a letter and then the case is settled. They take some time. They really take a lot of time and effort on both parties.
Schenk: That’s right. So I want to segue into an article. This is a case coming out of Chicago, Illinois. This looks like the suit says Symphony South Shore failed to prevent residents’ bedsores and a fall. So Erma Watkins, a resident of the Symphony of the South Shore Nursing Home in Chicago is suing the facility due to insufficient medical care. Watkins holds the nursing home responsible for the pain and the injury she obtained from suffering two falls and having developed bedsores. According to the complaint, Watkins alleges she experienced pain and injuries from suffering two falls and from having developed pressure ulcers. The plaintiff holds the defendant responsible because it allegedly failed to provide adequate supervision, asking for greater than $50,000.
Not a lot of facts here in this article, but I wanted to bring this to the episode today because I wanted to talk about the issue of bedsores and how nursing homes may or may not be liable for them. So you know, nursing homes are not omnipotent and they can’t prevent everything. If something’s going to happen to a resident, something’s going to happen to a resident if that’s what nature intended.
Smith: Yeah, and people, nursing home residents as we’ve said time and time again, they are not prisoners. They have a right to live and they are residents because this is where they live. They have a right to live and exist free from unnecessary and unlawful restraint.
Schenk: That’s right. So you can prevent falls by strapping a nursing home resident to the bed and never allowing them to move. They’ll never fall in that situation.
Smith: Right, never fall.
Schenk: But you can’t have that. What is required of the nursing home is to prevent avoidable falls.
Schenk: So every single resident that gets admitted to a nursing home, it’s required by the nursing home, particularly if they’re receiving federal funding, to assess that specific resident, that resident as a whole, that 85-year-old as a whole.
Smith: Every resident.
Schenk: Every specific resident for their risk of falling.
Smith: There’s a fall risk assessment every time.
Schenk: Some residents have a greater risk of falls than others. So for example, if the resident is an increased age, so 85 or older, if the resident is on certain types of medication, if the resident has gait or mobility issues, these are all increasing the risk.
Smith: If they have dementia, if they have prior history of falls.
Smith: If they have had some sort of orthopedic surgery of the legs, then they’re a higher risk.
Schenk: Right. So evaluating these risk characteristics, the nursing home is obligated to assess a value and then take precautions that are instructive of that value. So for example, making sure that there are pads around the bed or a bed is lowered or that the resident always uses a walker or things of that nature that are preventative measures based on the likelihood of that resident falling. And so therefore if the nursing home does not do those things and the resident falls, they are probably liable. If the nursing home does all of those things and the resident falls, then there might not be a case because again, the nursing home is not omnipotent. They can’t prevent every fall. The only thing they can do is assess, take actions based on the assessment, and then habitually update the assessment.
Smith: And even though we constantly complain about nursing homes being understaffed, and they are woefully understaffed, it is unreasonable that even the best nursing home – let’s say that we live in a world that nursing homes are staffed as much as they should be, you’re not going to have one CNA that follows your loved one around at all time. That would be like prohibitively expensive. So there are going to be times where your loved one is not within the immediate vicinity of a staff member, even in the best nursing homes.
Schenk: That’s right. So at the end of the day with this particular case that’s been filed, based on the facts, I mean I can’t glean anything from it, the only reason why I bring this to attention of you, the fair viewer and the fair listener, is to make that point, that just because your loved one has fallen or just because your loved one has developed pressure ulcers does not necessarily mean that the nursing home is off the hook, although in the case of pressure ulcers or bedsores, it probably is, but you have to look at what assessment was done. You have to look at whether or not this assessment was correct and the measures were taken.
Smith: And speaking of falling, we have fallen out of time.
Schenk: And that is the end of this episode. We appreciate you watching and listening with us. Just to let you know just in case you do not, the Nursing Home Abuse Podcast is available – or new episodes of the Nursing Home Abuse Podcast are available every Monday morning. You can either download the audio on Stitcher or iTunes or wherever you grab your podcast from, or you can watch us, you can see us on our website at NursingHomeAbusePodcast.com or you can check us out on our YouTube channel. And I do recommend that you leave us a comment and subscribe to our YouTube channel – that would be fantastic. Or leave us a review on Stitcher or iTunes – I’m not sure how that works, but if you leave us a review, I think that helps us in being searchable as a podcast. Or don’t. But we’re certainly happy that you made it and until next time.
Smith: Until next time.
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