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 thanks for joining us. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: I feel like you’re just making fun of me just then.
Smith: I was.
Schenk: This was kind of like when the Chicago Bulls are announced and they come running out high-fiving everybody. That’s like what we just did. That’s my announcer voice. Anyways…
Smith: That’s just like that.
Schenk: Welcome to the Nursing Home Abuse Podcast. We’re glad that you could join us. Lots of good things on the horizon today. We are going to be answering a question that we a lot as mursing home abuse lawyers, and that is how do the public, how does the person who has a loved one in the nursing home select and choose a nursing home abuse lawyer? What is a person looking for in an attorney and why choose one attorney over another attorney?
Smith: And understand this is not an advertisement for our firm.
Schenk: No, we’ll be speaking in generalities.
Smith: There are actually other firms who do exactly what we do that we have referred clients to for one reason or the other, either we’re conflicted out or something, so we know how to choose nursing home abuse lawyers because we sometimes choose nursing home abuse lawyers.
Schenk: That’s right. So these are just going to be general points you should consider. I mean don’t take it to the bank, but just something to think about if you have a loved one that has been injured in a nursing or an assisted living facility and you’re kind of doing that thing where you’re looking at the buses that drive by and there are advertisements, or you’re looking at daytime television and you see commercials for attorneys or you’re looking up at the billboards. Like which one of those, if any, do you choose and why?
Smith: Yeah, absolutely.
Schenk: So the first consideration I think that you would want to make is, or at least the information you want to saddle yourself with before making a selection is that you want to select an attorney that has a practice that is not necessarily 100 percent focused on nursing home abuse and neglect, but at least has a high percentage of their practice dedicated to this, and there’s a couple reasons why this is so.
First from a general standpoint, the law is very broad, and an attorney that does immigration law generally does not do DUI or wills and estates, because immigration law requires a lot of time and a lot of experience to get right, to get correct, and vice versa. So a law firm that handles business litigation, immigration, DUIs and personal injuries, I’m not saying that this is the case every time because there are lots of great attorneys that do a lot of different things, but as a whole, it’s beneficial to pick an attorney that focuses in one area because it allows that attorney to get more experience, more time and keep up to date with the specificities or the specifics of nursing home abuse law.
Smith: I mean if you think about it, it’s the same thing. Imagine if you drove a Volkswagen. Which would you initially think would be better to take your Volkswagen to? A mechanic that only specialized in Volkswagen – “We are the Volkswagen mechanics. We only fix Volkswagens. We only deal with Volkswagens” – or a garage that said, “Hey, we’re mechanics. We’re really good but we do a lot of different types of cars?”
Schenk: And motorcycles.
Smith: Yeah. Personally I would take mine to the Volkswagen guys.
Schenk: Right. So as a viewer or a listener, how would you know that an attorney that you are talking to focuses on predominantly on nursing home abuse and neglect? Number one is if you’re talking to them, ask them, “What percentage of your case load is dedicated nursing home abuse and neglect?” But more often, you’re kicking the tires because you talk to somebody, and you would do that through their website. If the website displays, “We do DUIs, estate planning, civil litigation, business litigation, run the gamut and personal injury,” that’s an indicator. If the site only narrows it down to injury and nursing home, that’s another way. If it says, “We just do nursing home,” that’s another way.
You can also use other methods of determining that, and one is the website – we always call it Avvo. It might be Avvo, I don’t know, but it’s avvo.com, and generally most of the attorneys that have a profile – I think every attorney has a profile.
Smith: Yeah, every attorney has a profile and it used to be attorneys needed to claim their profile, but I think that now it’s changed, but nevertheless, you can look up every doctor – it’s based on your license – if you’re an attorney, you cannot hide the fact that you have an issued license by the state bar, and it does it for doctors as well, Avvo does.
Schenk: When you go to the website, it will tell you what percentage of that person’s practice is dedicated to whatever it is. So again, the advantage to that of picking an attorney that focuses predominantly on nursing home abuse and neglect is that one, they are more likely to have the requisite experience dealing with nursing homes. They are more likely to be up to date on the laws affecting nursing homes and nursing home abuse litigation. Number three, they’re likely to have processes in place that expedite, effectuate and resolve claims quicker than another attorney that has to basically learn the trade first.
Smith: And number four, in the world of – well it’s not just nursing homes. Honestly these principles apply to picking an attorney in any specific area. It could be a criminal law area, it could be a contract area – in the arena of nursing home neglect, we see the same players on the defense side over and over and over again, the same law firms, the same attorneys, the same insurance companies. So if you get an attorney who only does one practice area, it is very likely and almost a guarantee that they will have worked with that nursing home, that nursing home’s insurance company and the law firm that represents both before, they have worked with them before.
Schenk: That’s right. And fifth, picking an attorney that focuses on nursing home abuse and neglect is that they’ve learned the parlance. So somebody that does only trucking injuries might not know how a bedsore works or what the stages of the bedsore are. These are things that you see if you do these cases over and over again, the same concepts, the same injuries, the same missteps by nursing homes over and over again. You have an understanding of how these things shake out.
So again, picking an attorney focuses primarily on the area that you need is the primary consideration, and how you do that is through investigation either through asking the attorney him or herself or going online to their website and looking to see how they advertise themselves. And you can go to other websites like avvo.com – A-V-V-O.com – and look at see how their practice is broken down on their website.
The number two consideration when talking about how…
Smith: I would say that because we talked about experience…
Schenk: That was number two.
Smith: I also think that could be a subcategory of practice area just because that’s where their experience is going to be. But yeah…
Schenk: But you can have somebody who focuses on nursing home abuse who opened last week.
Smith: That is true. That is a good point.
Schenk: So experience – so how do you know whether or not an attorney has experience? Number one, again, it’s very easy – ask them. “How many cases have you had that are similar to mine?”
Schenk: You can also look on the website. You can see whether or not they reveal recent settlements or recent verdicts. Those are really good indicators of whether or not this individual attorney has taken cases to court or settled cases that are similar to yours.
A quick asterisk, a quick notation here is a question you might be wondering is can I trust what is on the website? Yes and no. Number one is this – lawyers, apart from other industries, are very, very highly regulated in terms of what they can do. I know it doesn’t seem like it because we’re on buses everywhere, but attorneys can get in major trouble if they make misrepresentations in their advertising, which includes websites. So I’m not saying you can guarantee that if the website says, “We settled a case for $1 million,” that that’s not accurate, but they would get in major trouble if it was not accurate.
Schenk: Okay, so can you take it at face value? Maybe or possibly, but anyways, there’s incentive to be accurate on the website, whereas some herbal supplement has no incentive because they’re probably not regulated by anything.
Smith: Yeah, well the Food and Drug Administration, they have to put an asterisk on the bottom that says this is neither meant to heal or diagnose any disease.
Schenk: Or laser tag.
Smith: I think a better one would be the editorial-type fake news places that have no consequences versus regular journalists. Regular journalists are held to a certain standard and would lose all credibility whereas those editorial-type fake news sites that you see can literally say anything like “President Trump is from outer space” and there’s no consequence. And why we bring that up is attorneys are heavily regulated, like Rob said, by the bar. So an attorney placing an outright lie on their website is…
Schenk: It’s rare.
Smith: …Is very rare because it’s not going to be there long before even one of their colleagues points it out and says, “Hey.”
Schenk: And a really good point on how regulated we are as an industry is at least in the state of Georgia, it’s often advantageous for an attorney – lawyers have to name themselves that does not misrepresent their firm. So for example, if your name is John Smith, you can be The Law Office of John Smith. If you have more than one office – The Law Offices of John Smith. What many attorneys have done in Georgia in the past, which no more, is they can say they are John Smith and Associates where John Smith is the only attorney in the firm, and by associates, they mean maybe their staff. The Georgia Supreme Court has ruled, “No sir.” If it’s only you, you can only be The Law Office of John Smith or John Smith Firm. You cannot represent by saying “and Associates” because that is necessarily going to confuse people to think that you have more than one associate attorney at the firm. Same with “Group.” John Smith is no longer allowed to say, “I’m the John Smith Law Group,” because “Group” necessarily means you have more than one person providing legal representation. So that’s how highly regulated attorney advertising is, at least in the state of Georgia.
Smith: We can’t even say that we specialize…
Schenk: In Georgia.
Smith: …In nursing home neglect because Georgia technically does not have a specialist designation. There are a few states that allow their attorneys to say that because there is a specific specialization certificate that is issued. For example, in Georgia, there are some attorneys who are DUI certified, board-certified DUI attorneys, but that’s just how highly regulated we are, and they can’t necessarily say that they’re specialized.
Schenk: So at the end of the day, when you’re trying to discover and unpack how much experience an attorney has, you can ask them, “How many cases have you tried? How many cases have you litigated that are similar to mine? How many cases have you settled? How much have you settled them for?” These types of things – you can look at their website, which is what we’re saying is that more than likely, you can trust what they’re saying because it’s highly regulated, although sometimes there may be bad seeds out there.
Smith: Another way – and this leads into the third and final one – is meet with them and judge them based on their personality. How do they come across to you?
Schenk: And you may be asking yourself why does that matter? Being able to get along and having an appropriate method of communication with your attorney is going to be very important because if a nursing home case goes to verdict, you’re going to be with that attorney and talking with that attorney on a regular basis, and you’re going to get to know each other very well and they’re going to get to know your family very well.
Smith: And you’re going to be dealing with them for a long time, because as we’ve said in previous podcasts, nursing home cases are not the type that you go to a lawyer and a week or two later, you’re getting a settlement offer. They can last six, seven, eight months to a year to two years to three years. So this is a person that you’re going to be in a committed relationship with that you’re going to have to deal with all the time. You want somebody who connects with you on a person level.
Schenk: That’s right. You want somebody who doesn’t make you feel like you’re stupid.
Schenk: You want somebody that doesn’t offend you, that a lot of times has your sensibilities.
Smith: That makes time for you.
Schenk: That makes time for you and communicates with you whenever you can communicate. Some clients that we have only text. Some clients like email or what have you, but however the method you communicate with your attorney, you’ve got to make sure they’re with it on that, because at the end of the day, if it goes to verdict, and each case has to prepare like it’s going to go to verdict, is that the attorney has to be able to paint a picture of the life of your loved one, and that’s going to mean getting to know your loved one, the good, the bad, the ugly, as well as the family. You’re going to have to answer personal questions because it’s going to allow the attorney to make the argument in front of that jury eventually about who this person this, who their loved ones are and that includes you. So if you can’t get along with your attorney, then that’s a non-starter. That’s bad news. And just to put it in perspective, as it stands right now, in 2017, there are over 1.2 million attorneys, so the odds of you through a modicum of…
Smith: Modicum. Modicum.
Schenk: Is it modicum? I feel like it’s modicum, because if it’s Latin, then it’d be with a strong O.
Smith: So is it monitor?
Schenk: Well is monitor Latin? So with a modicum of research, you can discover whether or not your attorney focuses in a practice area and has experience in that practice area, but only after sitting down and meeting with them will you be able to determine their personality and whether or not they fit with you, because out of the 1.2 million attorneys, you can find ones that fit in those three categories, the focus, experience and personality, because there are so many out there. I would highly suggest you don’t settle with somebody just because they’re close in proximity to you, just because maybe they called you back.
Schenk: That sounds exactly like I said it.
Smith: No it doesn’t. Modicum. Modicum
Schenk: Well ladies and gentlemen, the record, you can go back and replay it – I said modicum.
Smith: It’s not modicum.
Schenk: Well that’s what that computer said.
Smith: No it didn’t.
Schenk: That computer… You went to a different one. Go to the first one.
Smith: No because she doesn’t make any sense.
Schenk: Well at least there is a dispute. But anyways, the chances of you finding an attorney that fits those categories out of the 1.2 million is very good, so please don’t stop searching until you find somebody that fits for you. That’s what I would say. And like Will said, it’s the same as finding a mechanic. It’s the same as finding the caterer for your wedding. Kick tires, ask around, see what’s going on. And with that, let’s move to an article that comes to use from…
Schenk: …That comes to us from Maryland.
Smith: Yeah, and this is one that happened – the article is from June of 2017. And this is according to Maryland’s Department of Health and Mental Hygiene, which I think is similar to Georgia’s DCH, this nursing home was evicting, was dumping, was getting rid of many of their residents once their Medicare ran out. Essentially the facility would discharge them without their consent, putting them in homeless shelters or unlicensed facilities. And the reason they did this was clearly to maximize their own payments from CMS and from the state of Maryland themselves.
Schenk: That’s hundreds, hundreds of residents.
Smith: And I’ve talked about it before, this mentality of profits over patients, and that’s what a lot of healthcare providers are doing nowadays. And it’s important to understand what their mindset is, because there is a lot of talk right now, and there are some bills that are being passed and some that are surviving the house that have to do with decreasing the consequences and the liability of portions of the healthcare industry, including, and especially nursing homes. And it’s very clear, and this is just one example of one nursing home in Maryland that was egregious enough that this local newspaper decided to run an article on it and we ended up with the article, but this happens all over the country, is that what is most important to this corporation who owns this nursing home is that they maximize profits.
Now with a typical corporation, that’s exactly what the corporation’s goal is. If you are on the board of directors, your sole obligation is to the investors of that corporation, is to make sure the corporation is turning a profit. As a nursing home, as an LLC that owns a nursing home, personally I believe you have a moral obligation, and I don’t know anyone who would publically disagree with this. You have a moral obligation to take care of these nursing home residents.
And understand something here, that I’m a capitalist and I believe in capitalism. If a resident is unable to pay and they have exhausted the coverage benefits of CMS, either Medicare or Medicaid or both, that doesn’t mean that you are forced to just take a loss and continue to provide care for them. That’s not the situation here in Maryland though and other situations where this happens. They were taking these people in and sucking them dry of all this money, and the second that CMS benefit ran out, they weren’t notifying the families, they weren’t waiting for their consent, they weren’t going through any sort of procedure other than, “Hey listen, no more Medicare or Medicaid. Here are your papers. Get out. I’m dumping you in a homeless shelter,” put you off in this other facility that has no license, getting rid of them as soon as possible.
And at least in the state of Georgia where we practice, and I’m not sure about the rest of the country, you’re a resident of the nursing. That means that you live there. You’re not just passing by. You’re not in a superstore picking up a box of chocolates. This is your home. So in order for the nursing home to evict you, even if it has grounds to, it has to go through a process. It’s got to notify that family. It’s got to give you the right to appeal. It has to follow a certain procedure before it can just kick you to the streets. And they weren’t doing that at all. They were taking these people in. They were getting all the money that they could from them, and then immediately dumping them, quite literally, into homeless shelters and unlicensed facilities.
Schenk: That’s right. And to reiterate your point, this article uses the term “evicting,” because that’s exactly what it is. That’s a residence that they have to be evicted from. So eviction comes the process of due process, and they failed that here. And as a consequence, the United States Centers for Medicare and Medicaid Services informed the facility that it would be dropped from the Medicare program because it was not in substantial compliance with federal regulations, so they’re losing their funding.
Smith: And so that effectively shuts that place down. And a question you may have then is, “Well doesn’t that effectively evict all the residents?” Yeah, but they’re not being dumped into a homeless shelter or an unlicensed facility. What happens when CMS says, “Hey, you’re not getting anymore money,” is that the vast majority of the time, the facility is going to have to shut down, but they’re also going to have to transfer all the residents, work with the families, work with the residents, work with the physicians and transfer all of those residents to an appropriate nursing home, not a homeless shelter and not an unlicensed facility. It’s just a death sentence for that corporation that’s just about to lose millions of dollars a year. But it happens.
Schenk: Yeah, and moving to a story coming out of New York, Kingston, New York, Jack Stanley, former employee of Northeast Center for Special Care New York is facing eight to 25 years in prison for sexually abusing six residents who are recovering from traumatic brain injuries. At a jury trial, Stanley was convicted of a first-degree criminal sex act, seven counts of first-degree sexual abuse and 16 lesser charges. Prosecutors said between July 2014 and February 2015, Stanley used his position to gain access to residents and forcibly person oral sex and other acts. He even abused one resident while the resident slept.
So the reason I bring this up, bring this article to your attention, is to answer the question – what is the liability of a nursing home when the employee performs sex acts on the resident?
Smith: And the answer to that is a lot of issues similar to this have to do with foreseeability. Did they know that this guy had a proclivity, propensity to do this type of thing? Should they have known? Did they know or should they have known or should they have known that this was possible to happen?
Schenk: Yeah, and that type of information can be acquired by, number one, background checks from when the employee was hired, so for example, does the individual have a record in terms of has the individual worked at other nursing homes, and if so, were there any allegations or proven claims of sexual misconduct. And then of course, if this individual, if they knew that about it previously and he did it again, that would also be considered constructive knowledge. So these are all things that the nursing home can do to acquire the knowledge that they need in order to take preventative actions to prevent this guy from doing it and of course be held liable for it.
Smith: And a lot of times, it is amazingly simple to find information about somebody. I was speaking with a colleague the other day who is suing Uber for something and Uber driver did. And she was telling me she literally Googled this guy’s name and found 16 different felonies with his booking photo on Google. That easy. So it’s actually atrocious sometimes how lazy these corporations are in researching their individual employees. But at least in a case with nursing home with CNAs, with LPNs, with RNs, these are all licensed individuals who have to go through a background check. I had to go through a background check as a CNA. If I had done something while I was a CNA, if I had been busted for certain offenses, I would have had to report that to DCH that regulates my license. So all this information is out there.
Then the question might be, well, what if this guy got away with previous instances and the nursing home ran a background check and they didn’t find anything and they wouldn’t have found anything because there’s nothing in the record? Then it’s still a possibility. They’re not completely alleviated of any liability. This still has to do with the circumstances there. Was he doing anything strange or inappropriate in these residents’ rooms?
Schenk: Were there any complaints from the residents?
Smith: Were there complaints? Did they notice different behavior from the residents? So there are a host of possibilities that could find them being liable.
Schenk: That’s right. And with regard to background checks…
Smith: This is going to be interesting.
Schenk: If you have done any research at all on this podcast, you’ll have realized generally the content is contained to 30 minutes, and so we have…
Smith: It’s a good segue.
Schenk: Thank you. And so we have in fact reached the end of this particular episode of the Nursing Home Abuse Podcast. You can watch new episodes every Monday morning. You can do it in two different ways. Number one, you can download the audio.
Smith: Or MP3.
Schenk: …Or MP3 on Stitcher or iTunes Radio or wherever you download your podcasts. You can also watch. We encourage you to watch because we think it’s a lot funner…
Smith: It’s a lot more fun.
Schenk: It’s a lot funner to see me sweating under these lights. And you can do that at our website, which is NursingHomeAbusePodcast.com or on our YouTube.
Smith: Yeah, it’s definitely a lot more fun.
Schenk: A lot more fun. So with that, we thank you for joining us and we’ll see you next time.
Smith: See you next time.
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