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 episode 40 of the Nursing Home Abuse Podcast – “How Do I Request a Georgia Autopsy After a Nursing Home Death.” My name is Rob Schenk.
Smith: And I’m William Smith.
Schenk: And we are Georgia trial lawyers concentrating in the areas of nursing home abuse and neglect, and your co-hosts guiding you through this particular episode. One of my…
Smith: Could you hear that?
Schenk: Oh yeah, sounds delicious.
Schenk: To anyone that’s listening, you’ll know…
Smith: It’s an iced cold brew coffee that I got from the farmer’s market.
Schenk: Okay. I grew up as a teenager in the ‘90s.
Smith: As did I.
Schenk: As did Will.
Smith: We’re the same age.
Schenk: Pretty much. Approximately.
Smith: We are – by six months.
Schenk: Six months. So one of my favorite television shows was X-Files, which followed the adventures of two FBI agents who investigated paranormal cases.
Smith: Unless this is going to be broadcast 50 years into the future, everyone knows what the X-Files is.
Schenk: I feel like if you were born… First of all, not everybody knew about the X-Files when it was happening, but second of all, people are younger than us, so I’m trying – this is for their benefit.
Schenk: But anyways, the couple – it was Fox Mulder, he was the guy who believed in all this stuff.
Smith: And Dana Scully.
Schenk: Dana Scully was the redheaded lady that was the skeptic, but she was also a medical doctor. And I feel there was an X-Files drinking game that I did not participate in because I would have been too young and I’m a non-drinker anyways, but there were drinking games, and the drinking games were X-Files, one of the times you would take a shot, was when Dana Scully the character played by Gillian Anderson would do an autopsy on a body. So like somebody would be murdered and they’d cut scene…
Smith: Oh yeah, and she’s got like a bunch of guts in her hand. She’s putting them in that thing that weighs them.
Schenk: Yeah, exactly and she’s like, “Here, we found this insect,” and Mulder knows that a dead insect is only found in the Brazilian jungles, and therefore it was chupacabra.
Smith: Yeah, the chupacabra.
Schenk: The chupacabra. And note the tongue roll. That’s Georgia education for you. But anyways, I bring that up in the sense that I wanted to kill a little bit of time, but also highlight what we’re going to be talking about this episode, and that’s autopsies – when they’re appropriate, when they’re requested, when they’re done without anyone’s request, and why they’re done at all. Basically what is an autopsy, autopsies, not just on the X-Files?
Autopsies are essentially determination based on an inspection of a body regarding the cause, manner and underlying mechanism of death conducted by a medical doctor. The procedure documents all of the significant pathologic conditions present in the body at the time of death.
So what are some of the benefits of conducting an autopsy? There’s a really interesting article that I pulled from PBS, and we’ll get to how this relates to a nursing home abuse case in a second, but these are some things I did not know about autopsies in general about why they could be beneficial. First is autopsies are beneficial because they can be used to discover hereditary illnesses. Forty percent of autopsies performed in the United States, this is interesting, 40 percent of the autopsies performed in the United States revealed diseases previously unknown to the individual’s physicians, because the autopsy employs techniques that cannot be used to detect such pathologies on the living. So discovering hereditary illness.
Second is saving lives – autopsies can enhance our understanding of diseases and how we die and contribute critical medical knowledge. Forensic pathologists have discovered public health emergencies such as anthrax terrorist attacks through the use of autopsies.
Schenk: Finally, something for the family is autopsies can also be an important way for families and loved ones to seek reassurance and peace of mind to find out what was the cause of the death.
What we’re interested today in terms of benefits of autopsies is providing legal evidence. So legal autopsies can provide evidence in malpractice cases and nursing home abuse cases about what the instruments were, what were the causes and mechanisms of a death.
So according to this PBS article, when should the autopsy be performed in terms of the timeliness, which is apparently extremely crucial? Obviously it can’t be a month out, but what is the timeline we’re dealing with in terms of an autopsy? And according to this article from PBS, forensic pathologist doctor Stephen J. Cena says autopsies are best if performed within 24 hours of death before organs deteriorate and ideally before embalming, which can interfere with toxicology and blood cultures. Preliminary results from the autopsy can be released within 24 hours, but the full results of an autopsy may take up to six weeks.
So that’s kind of an understanding of what an autopsy is what it can be used for so the real issue here is what we’d like to talk about today with regard to deaths at a nursing home or an assisted living facility is when can an autopsy be requested. We know that autopsies are important in discovering mechanisms of death, so therefore they can be very appropriate at trial for building the house of bricks of evidence regarding whether or not a nursing home has been negligent. But when are they requested? When are they done by order of law? In the state of Georgia…
Smith: And remember there are two different entities that might do this. The GBI – the Georgia Bureau of Investigation might conduct an autopsy or Georgia law might require that the county coroner or medical examiner’s office conduct an autopsy.
Schenk: Yeah, so those are going to be the individuals, a medical examiner and the county, if one is done. But first of all, when do the autopsies in the state of Georgia, and this will be pretty similar from state to state, but we’re talking in the state of Georgia, when is it mandatory that an autopsy be done, meaning that what you as a loved one of someone who has passed away at a nursing home wants or doesn’t want, when will it happen by standing of law?
Smith: And there are nine reasons, and I’ll just give you the reasons, but there are basically just three categories. The reasons are as a result of violence, by suicide or casualty, when the individual is in apparent good health, when they weren’t being attended by a physician, in any suspicious or unusual manner with particular attention to those that are 16 years of age and younger, after birth but before age 7 if the death is unexpected or unexplained, as a result of an execution carried out pursuant to the implication of the death penalty, an inmate of a state hospital or a state, county or city penal institution, or after having been admitted to a hospital in an unconscious state without regaining consciousness within 24 hours of admission.
Basically the three categories are unusual circumstances or violence or possession by the state. So if you’re a prisoner of the state, of a state institution and you die, they’re going to do it. If they carried the death penalty out on you, they’re going to do it. If somebody physically attacks you and there’s violence involved and you die, they’re going to do it. Or if you die and it doesn’t make any sense, I mean basically if you die and you’re 25 years old and you shouldn’t have died, they’re going to do it. If you are between the ages of birth and 7 and there’s no documentation for an illness, they’re going to do it.
Now understand also the GBI has its own regulations, and theirs slightly is expanded. One of the ones that they include is they will possibly do an autopsy if you die while at work from a toxic agent or an injury. But basically the bottom line is if it doesn’t make any sense why you died, if you’re not 100 years old or you have a history of an illness that is slowly eating away at you or if you have a heart attack at the age of 60, they’re going to do an autopsy to determine what your cause of death was.
Schenk: An autopsy is mandated by law.
Smith: Mandated by law – so if you belong to some religion, and there are many out there that have procedures for dealing with dead body that may include we don’t desecrate the body, we don’t open it up, it doesn’t matter because the point is there’s a suspicion of foul play most of the time. There’s a suspicion of foul play.
Schenk: And there’s an overarching public interest…
Smith: Public concern. Public interest.
Schenk: …In investigating the cause of death. But that’s not to say an autopsy will not be done by the state. It can be request and we’ll get to that in a few minutes. But what information is included in the autopsy report? The principle and main thing that’s going to be included in an autopsy report by the medical examiner’s office is going to be the determination of the cause and manner of death. And generally that’s going to be boiled down to five different categories, so five different determinations of the cause of death will be written by the medical examiner in that autopsy report. That is a death that is natural, accidental, via homicide, via suicide or undetermined. So that’s pretty much what the autopsy – that’s the principle behind the autopsy is to get to the bottom of why an individual passed.
Who pays for the autopsy if it’s performed by the state pursuant to the statute that we mentioned before that mandates particular autopsies be done? That is the state does it. The GBI’s medical examiner’s office receives a budget, a state budget, to perform autopsy services, and no charges are passed onto local agencies, coroners or family members. The coroner having jurisdiction in the death is generally responsible for transportation of the body to and from the medical examiner’s morgue facility.
How long does it take to complete an autopsy and issue an autopsy report? Generally in Georgia, the autopsy on a section of the body is usually completed in the same day it is received. Sometimes though it will be the following day, and after dissection of the body, the body is immediately released to the coroner having jurisdiction in the death. in most cases, as we mentioned, the autopsy report will be available in about four weeks.
It looks like based on the latest statistics, the autopsies that are conducted by GBI medical examiners at the headquarter laboratories in Decatur, Georgia, and in the regional laboratories in Macon and Savannah. And Will have I have been to the medical examiner’s office to talk to the medical examiner there in Decatur, Georgia, for a case we handled about a year ago. We were at the Decatur Medical Examiner’s office to talk about his findings.
Schenk: Anyways, Decatur is a great city. If you ever visit Atlanta, Georgia, drive out to Decatur.
Smith: Yeah. And the motto is, “Decatur, where it’s greater.”
Schenk: Is that true?
Smith: I’m not really sure. I feel like somebody has said it before. There’s no way I just made that up. But if I have just made that up, then I coin the phrase and I declare copyright.
Schenk: I always imagined that I wanted to being spelling Decatur with an “AUR” at the end and have the emblem of Decatur be a little dinosaur, like “Decataur,” like a dinosaur. You know what I’m saying, like a little dinosaur?
So anyways, what I wanted to draw your attention to, the fair listener, the fair viewer, is the ninth category of when an autopsy is required, and that is after having been admitted to a hospital in an unconscious state and without regaining consciousness 24 hours of admission. So there are going to be times, and doctors don’t know what the state law, medical professionals might not know they’re required to submit the death to the GBI or the medical examiner’s office because they fit within this category, so it’s important for you as the loved one of someone who’s passed in a nursing home to know what your rights are in terms of making the government aware that your loved one falls into one of these categories, therefore mandating an autopsy, or requesting an autopsy be done by the state. Or if both of those fail, requesting your own private autopsy.
Smith: Yeah, because I was going to say you have to remember that just because there’s a law mandating that this is what should occur doesn’t mean that hospital staff, the county coroner or even sometimes GBI agents follow the law, not because they’re trying to avoid it but because they’re not paying attention or they may be lazy or they may not know.
Schenk: That’s right. And the reason I draw your attention to number nine there is because with many of our clients, that happens all too often that their loved one lost consciousness at the nursing home, was taken to the hospital unconscious and then never regained consciousness, and therefore it would kick in this law that requires it.
So there are things that you can do, particularly in Georgia depending on what county you’re in with regards to, “You know what? My loved one died in a nursing home and I believe this was abuse, maybe intentional conduct, maybe they don’t fall into one of these nine categories per se, but I think this is unusual and I think this should be investigated and I want the actual government to do it, I want the GBI, the medical examiner’s office to do it,” then you can generally submit a request to the medical examiner of your county. And I’m going to have Jean – Jean, can we get the Fulton County Medical Examiner’s image up on the screen? Yeah, so if you’re watching this, this is a request form for residents of Fulton County requesting that the medical examiner perform an autopsy for an individual.
And again, you’ll notice that the medical examiner in the state of Georgia has the final say whether or not an autopsy will be done. It’s not like you can go up and say, “Hey medical examiner, I want you to do an autopsy,” and they have to do it. It’s absolutely not like that. They have complete discretion on whether or not an autopsy will be performed.
So kind of the point of one of these is to let them know the facts surrounding the situation of your loved one’s passing that might either, one, mandated under the law, or two, might still make it where the medical examiner has a public interest to investigate the death. So that’s kind of what this form is doing for you. It’s bringing the case to the attention of the medical examiner. And I’m not saying this is going to be the form everybody should use in the country, even the state of Georgia – this just happens to be a medical examiner request for that we pulled from Fulton County, Georgia, that’s where Atlanta is, that’s where we are from or we operate our offices out of, and that’s how the process gets started. That’s if your loved one passes and they are not automatically obligated to have an autopsy performed on them, number two, they don’t fall under one of those categories but you still want the medical examiner to conduct the autopsy.
In the event that the medical examiner, regardless of what county you’re in, refuses to conduct an autopsy, and it still might be beneficial to you to have an autopsy performed but by a private entity, a private doctor that conducts the autopsy. So with regard to private autopsies, autopsies that are done privately are generally not covered by Medicare or Medicaid and definitely not carried by both insurance plans. So generally that’s going to be something that’s paid for out of pocket, a private autopsy. So how expensive can private autopsies be?
Smith: Well you’ve got to remember – not only do you have to pay for the examiner that’s doing the autopsy, you’re going to have to pay for the transportation of the body, which can be pretty expensive. They’re not covered by Medicare or Medicaid or most insurance plans, and the autopsy itself can be between $3,000 and $5,000, and that’s not including the transportation of the body, which may run up to about 1,000. And you can get them where?
Schenk: For a private one, there’s the National Association of Medical Examiners has a list of resources to help find private autopsy providers. The College of American Pathologists also provides a list of board-certified pathologists that perform autopsies for a fee in approximately 18 states. So we’ll flash up or we’ll provide a notation where you can follow a link to the National Association of Medical Examiners or the College of American Pathologists for your information regarded where you can get a private – you can hire a pathologist or medical examiner to perform a private autopsy for your loved one.
So in cases that we have litigated where there was an autopsy performed, nothing is slam-dunk, you know what I’m saying? Like a death certificate is never a slam-dunk. Nothing is ever a slam-dunk, but it can be extremely, extremely beneficial for the case. It can be extremely beneficial in the evaluation conducted by the experts in your case if they can look back on the findings of a medical examiner.
Smith: Yeah, absolutely. However, and this is something important to understand, that if your loved one passed away and you didn’t get an autopsy and you’re coming to us well after the time, which is not very long, a couple weeks later or a month later or a year later, and you never got an autopsy, it’s not the end of your case. It’s not the end of your world. Autopsies are extremely important in cases where they’re trying to prove that somebody was murdered, maybe somebody died of a toxic agent. In our cases, the most information we have is good and it can be helpful, but it is certainly not fatal to your nursing home negligence or abuse case if no autopsy was done. I’m not saying don’t get one. I’m just saying if your loved one passed away and it didn’t automatically fall into an required autopsy situation and you never paid to have one done, it’s certainly not the end of the world. We have handled many cases and settled many cases where an examiner filled out a death certificate based on the medical history and what they determined was the cause of death without doing an autopsy, and that’s perfectly fine. Not the end of the world, but of course, if you’re in the moment that you can still request an autopsy, request it. More information is always helpful.
Schenk: That’s right. Moving onto – we’re going to talk about a case that happened out of Hollywood, California – Hollywood. A lawsuit was filed against the Motion Picture and Television Funds Country House and Hospital in Woodland Hills, California – the Motion Picture and Television Funds Country House and Hospital.
Smith: That’s the industry’s gold standard nursing home.
Schenk: Okay, so this is where like elderly persons that were actors and stuff go to, is that what this is?
Smith: Or it can be where family members, like the individual who’s at the center of this case, her son was a long-time writer for “Matlock.”
Schenk: Oh, I get it. So a lawsuit was filed against the Motion Picture and Television Funds Country House and Hospital in Woodland Hills, California, on behalf of a resident with dementia who alleged she was groped by a fellow dementia patient who has a known recent history of sexually assault and behavior. The accused male was recently admitted to the facility and has made inappropriate contact with at least seven other female residents since his arrival. The list of defendants include president and CEO Bob Beitcher and board members who have yet to file a response.
So this is a case in which there is one resident who with a history of sexually assaultive behavior, has sexually assaulted another resident of this nursing home, so my question, so where’s the liability at in this case? So if the nursing home is responsible for the actions of a resident, when is that an option and why would that be an option?
Smith: So in a case like this, the first thing you need to remember is this individual, and I don’t know if we mentioned this as we were giving the back story, the individual in question has dementia. And someone with dementia doesn’t get to choose the way their brain reacts. It’s like having a trauma to the brain. You can’t control it. You can’t stop it. It changes who you are and you cannot control your behavior. You can’t control your brain. You can’t control your behavior.
So it’s incumbent upon the nursing home in a situation like that to be on alert for residents who might be prone to that type of behavior, especially someone who has a history of that type of behavior. So given that this individual has a history, the nursing home knew or should have known he had a history and put in proper protections, it sounds like there is definitely potential to state a claim against the nursing home, meaning the nursing home could be potentially liable for this. Then again, it’s not a slam-dunk case because they may have done due diligence and just not been able to discover that he had a history of this.
Schenk: And that’s what it seems like this is saying. It says the Motion Picture and Television Fund Country House, the nursing home, told the Holly Reporter – oh, this is from the Hollywood Reporter. That’s a first for this podcast, we’re getting a nursing home case article from the Hollywood Reporter – that it’s unaware of previous incidents, and to its knowledge, none have involved law enforcement response to its knowledge. That often means, “We know” or “We should have known.”
Smith: And just an FYI, one of the board members who is listed as a defendant is George Clooney.
Schenk: You think it’s the George Clooney?
Smith: I cannot imagine that it’s not the George Clooney.
Schenk: If my name was George Clooney, I would definitely be known as, like I wouldn’t be like, “I’m going to go by my middle name.” Like I would be George Clooney.
Smith: Yeah, I guess that…
Schenk: You don’t know anything about that.
Smith: You’re right.
Schenk: Because your name is Will Smith.
Smith: Right, Will Smith. But I feel Will Smith is far more common than George Clooney.
Schenk: That’s true.
Smith: Like it’s unique enough that if your name were eligible to be George Clooney, you may not do that. And it’s also just what are the odds that somebody had a name that was even eligible for George Clooney to be on the Motion Picture – what is it?
Schenk: Motion Picture and Television Fund Country House.
Smith: Motion Picture and Television Fund Country House.
Schenk: And Hospital. So that’s an interesting case of liability that’s going to depend on what that nursing home knew in terms of its own liability for that, which it looks to me there are some holes in that article, I mean holes in their defense in that article, but they haven’t filed a response so we don’t know. We’ll follow that case.
This next one comes to us from Westminster, Pennsylvania.
Schenk: What did I say?
Schenk: Did I?
Smith: Yeah, 100 percent you did. We’ve got it on tape and we can back it up.
Schenk: I’ve got England on my mind. I’m watching “Sherlock” again, the BBC program, “Sherlock?”
Smith: Yeah, yeah.
Schenk: I watched last night an episode where they go to Devonshire. So everything is “shire” or “minster.”
Smith: Yeah, that’s right.
Schenk: That’s what’s on my brain. So in this instance, we have a daughter that’s accusing a nursing home by the name of Majestic Oaks Nursing Center in Warminster, Pennsylvania, or neglect and abuse. It appears that at some point, the nursing home called the daughter to say that, “Just calling to let you know, your mother fell. She’s fine, don’t worry about it. She’s okay. She’s fine,” which they’re obligated to do if a resident falls.
Smith: Yeah, they didn’t do anything wrong there, but the problem is they didn’t say anything about specific bruising or bruising period. And then the daughter a couple days later says, “Hey, I’m coming up for a visit, just FYI,” and then all of a sudden they call and say, “Okay, that sounds good, but just letting you know, because of that fall, she’s got bruising on her face and her back.” So the daughter gets up there and sees the bruising and she has a black eye, she’s got bruising on her back and it just doesn’t pass the smell test. It doesn’t look like the bruises from a fall. It looks like she was hit in the face and the back.
Schenk: Yeah, so she’s saying it looks like the injuries and bruising looks like being pushed down to the ground, being injured from that fall and being stepped on. So a couple things here, Will. Number one is we’ve talked about this before, but what’s the obligation of the nursing home to investigate the extent of internal injuries that are not clearly observed after a fall?
Smith: Well I mean if there’s any change in her behavior, if there’s any change in her vital signs, if there’s any change at all, then they’re possibly going to face liability if they don’t send her to the ER to be checked out, because the elderly are very susceptible to injuries. It’s not hard to break an older person’s rib on accident. It’s not uncommon for them to have internal injuries, whereas those of us who are much younger, our bodies would be protected by muscle or even a layer of fat.
Schenk: That’s right, and even at that, when you’re dealing with an elderly person who has internal injuries but also suffers from cognitive impairments like dementia, they can’t verbalize it that their collarbone is broken. They can’t verbalize that they have a subdermal hematoma. And that’s when it becomes dangerous, particularly in cases of falls where the individual is on blood thinner, because they can literally bleed out and they can’t tell you.
Smith: And just a little insight into something, if a resident leaves the nursing home and goes to the hospital and is admitted, then the nursing home is losing money because CMS, the Centers for Medicare and Medicaid Services, is now paying the hospital for the resident’s stay, not the nursing home. So there is incentive, and I have spoken with a couple of our experts who work for nursing homes on this matter, there’s a huge incentive for administrators and directors of nursing to say, “Well do we really need to send this person out? No, let’s not do that,” and that’s when they start getting exposed to liability, especially if it comes down to there is internal bleeding or injuries, hemorrhaging, hematoma, broken clavicle, and they could have gotten treatment ahead of time or avoided death if they’d gone to the ER.
Schenk: So in this instance, we’re looking at did the nursing home, did somebody push that person down? We don’t know. Did that person fall due to negligence of the nursing home? We don’t know. Could the individual have just fallen? Possibly. The issue here is what they did afterwards, and it sounds to me like even if they weren’t negligent in causing the fall, if their conduct wasn’t intentional to cause the fall, they are definitely messing up here in their conduct afterwards.
Smith: And this also brings up a very unfortunate reality of nursing home cases, which is somewhat similar to daycare cases, which is that you have a victim who can’t tell you what happened. We have a client right now who was pretty clearly punched in the face or hit in the face in some manner, like I suppose – she’s immobile, first of all. I suppose that a random nursing home resident could have walked in, hit her in the face and walked out. A staff member could have done that. She could have fallen or been dropped and done that. We don’t know because the nursing home says that they don’t know what happened and I can’t ask her. So it’s just a frustrating aspect to these cases.
Schenk: That’s right. So with that, we will continue to monitor that particular lawsuit and I think that go ahead and conclude episode 40. Will’s ready to conclude.
Schenk: He’s ready to take a nap.
Schenk: That will conclude episode 40 of the Nursing Home Abuse Podcast. Just to let you know, the audio can be downloaded on your favorite applications where you get your podcasts such as Stitcher or iTunes.
Schenk: You can also watch this podcast in its entirety on the YouTube channel or at our website, NursingHomePodcast.com – NursingHomeAbusePodcast.com. And with that, we will see you next time.
Smith: See you next time.
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