Episode 42

How nursing homes can be liable for injuries from falls

 

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This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.

Schenk: Hello out there and welcome to episode 42 of the Nursing Home Abuse Podcast. My name is Rob Schenk.

Smith: And I’m William Smith.

Schenk: And we are trial lawyers practicing in the areas of nursing home abuse and neglect in the state of Georgia and we are your co-hosts for this podcast. Happy Halloween everybody. It’s October 30th, 2017, as it goes to air. I’m trying to think about what was the best Halloween costume I ever had. What was the best Halloween costume that you ever had? Your mom probably sewed your costume out of like a burlap potato sack.

Smith: And I feel like I’ve had to explain this to you time and time again – I live in the mountains.

Schenk: So everybody dresses – you just put on the bear skin.

Smith: Where am I going to get candy?

Schenk: Oh, that makes sense. You didn’t have any neighbors.

Smith: Yeah.

Schenk: Hmm…

Smith: So I went trick-or-treating when I lived in Cobb County when I was really young.

Schenk: Right, that’s north of Atlanta, everybody.

Smith: Yeah. When you live in the mountains, you live in the country…

Schenk: Okay, so just for the sake of our audience, just for a few seconds, take us – what would you do on Halloween?

Smith: When I was young, I would just sit at home.

Schenk: Did you eat candy? This is really interesting. This is not a traditional American… You were a mountain person. Did you bob for apples?

Smith: Well first of all, my family’s never really celebrated holidays traditionally anyways. We’ve just never really done it. Either my dad was working or I was working.

Schenk: Well tell us, what did your neighbors do? Or not your neighbors, but the person who lived a mile away from you in the next hut.

Smith: I had no idea.

Schenk: Wow, that’s…

Smith: I don’t have fond memories of Halloween.

Schenk: We’ve known each other for how many years and this is the first time we’ve ever talked about this. You did not have a traditional Halloween.

Smith: No. But my family doesn’t have a traditional anything. We don’t have traditions.

Schenk: My family didn’t live in the mountains, but the joke was we lived at the end of a cul-de-sac that was not very well populated, so we’d never have any trick-or-treaters. So we’d have to go to the next two or three subdivisions over in order to get candy. Anyways, I think my favorite one was either Darth Vader or Spiderman. It was one of those Walmart ones.

Smith: My favorite one when I was an adult, it was a couple of years ago…

Schenk: Okay.

Smith: What? I was Monica Lewinsky.

Schenk: I remember that. But I’m kind of against adults dressing up for Halloween. I’m one of those people that I don’t like themes. If I’m going to a party, don’t tell me what I’ve got to do. I’m already going. I’m doing you a solid. Like why do I have to dress all in white or in a Halloween costume?

Smith: I’m with you. I just didn’t get to do it as a child.

Schenk: Wait, hang on. Who did you dress as?

Smith: Monica Lewinsky.

Schenk: Okay.

Smith: Remember I had the blue dress on, the wig?

Schenk: I do remember that.

Smith: It was weird. It was a very scary looking situation.

Schenk: Scary is the correct work with that.

Smith: And last year, I was Mr. Whiskers, Cat Doctor for humans.

Schenk: What does that mean?

Smith: I was a cat doctor. I was actually a cat who was a doctor for humans.

Schenk: Is that some kind of inside joke with your friends?

Smith: No, it’s just random. I made it up.

Schenk: Like Adult Swim?

Smith: No. Anyways, it doesn’t matter.

Schenk: It doesn’t matter. Well happy Halloween all the less – nonetheless.

Smith: Nonetheless.

Schenk: Nonetheless. And also happy birthday to my friend, Tracy Marsh, whose birthday is on Wednesday, November 1st. And of course my nephews OJ – Jack and Ollie.

Smith: Oh yeah.

Schenk: Jack and Ollie’s birthday is today actually, as we hear this.

Smith: Yeah. We intentionally left out Maggie’s birthday…

Schenk: From a few weeks ago.

Smith: Yeah, from a couple of weeks ago, just Tracy and Jack and Ollie.

Schenk: Jack and Oliver. So happy birthday, you guys.

Smith: Not Maggie.

Schenk: Yeah, not Maggie.

Smith: Not Maggie.

Schenk: All right, so the first article that we will draw your attention to is from an article that we will draw your attention to is from Anson County, North Carolina. Wadesboro Nursing Home resident accused of killing 89-year-old roommate. This is a case of resident-on-resident violence. Donald Presley is in Anson County, North Carolina, jail, charged with first-degree murder of his 89-year-old roommate, Bill Hooks, of Anson Health and Rehabilitation Center. Mr. Hooks died from his injuries on August 23 after 10 days in the hospital. This is not the first incident at Anson Health and Rehabilitation Center. Over the last three years, the center has been fined by the federal government twice totaling more than $83,000.

So it looks like in this case, you have one resident attacking and murdering another resident. And the details are slim in this article. They’re slim both with regard to how the injuries occurred, meaning was it an attack with a blunt instrument, was it fists, did the person push him down the stairs? The article is also devoid of facts with regards to the mental impairments of perhaps either of the individuals.

And this is an example of a common occurrence in nursing homes across the country where you have residents that have diminished mental capacity, dementia, Alzheimer’s, other types of impairments, physical impairments that will…

Smith: Sorry, I keep forgetting that you can hear me taking sips of liquids, despite the fact that you have gotten mad about it every single episode.

Schenk: Okay. It’s like I’m in the cup, you know what I mean? It’s in my brain.

Smith: Okay. Okay.

Schenk: Anyways, it’s sad. I mean in these types of situations, the family of the person who’s passed is rightfully outraged because their loved one who’s residing in this place who’s supposed to be taken care of has been murdered. So who, if any, who is to blame, if anyone is to blame for the death of a loved one in a nursing home if it’s at the hands of another resident? And in cases like this that we’re reading about Anson County, North Carolina, it’s going to be it depends.

Here to the extent – and we’ll assume that this individual has full mental control – this person is not suffering from any type of cognitive impairment – there’s likely to be, as in the case here, criminal charges filed. We see here there are first-degree murder charges filed. But as Will has said in the past, and Will, if you’d like to elaborate on that, what is the role of mental capacity with regards to being charged with a crime that requires a level of intent?

Smith: So just to take us all back to first or second year law school, in criminal cases, you have to have the actus reus, which is the criminal act itself, whether it’s sticking a knife in somebody or robbing a bank, and you have to have what’s called the mens rea, which is the criminal mindset. There are some crimes that don’t require intent – they’re strict liability. I’m not going to get into what all of those are, but they may be as basic as speeding. It doesn’t matter if you knew you were speeding or not – you’re speeding.

Schenk: Statutory rape.

Smith: Statutory rape or child molestation as a matter of fact. Yeah, but in a case like murder, if they’re going to charge murder and not involuntary manslaughter to something to that effect, then they would have to prove that this person had the mental capacity to…

Schenk: …To formulate the thought that I want to end this person’s life.

Smith: Yeah. And they’re not going to do that with somebody who has dementia, nor should they. They’re not going to put them in gen pop – general population – in the prison. So this is clearly somebody who just doesn’t know what they’re doing.

Schenk: And so the next issue is going to be what are the civil liability for the nursing home for being the nursing home in which this crime has transpired. And that is going to be dependent on how much the facility knew with regard to the propensity to this particular resident to commit violence on other residents or on the staff. Every nursing home is required to partake in a certain amount of due diligence to uncover the level of violence that the residents are prone to.

So if there is a history of violence with this individual in this case in North Carolina, then yes, the family of the individual who was murdered may have a claim for negligence against the nursing home because nursing homes are charged with maintaining a safe environment, and maintaining a safe environment is not just making sure there’s not things scattered around on the ground for people to trip on or making sure the food isn’t poison. It’s making sure the residents who are prone to violence do no commit violence, whether that is isolating or separating problem persons from one another or not taking the resident as a resident at all. These are things that a reasonable nursing home should do to prevent that. And when they don’t, they’ve breached what is called a standard of care, a reasonable standard of care, and that opens them up to civil liability.

And in this case, we’ll come back to it in the future and find out what the status of this is, but this is a sad situation, and we’ve covered resident-on-resident violence on several of our podcasts in the past and this is just another sad example that ended up in the death of another person, and the person doing the violence is now sitting in jail facing, at least for now until mental and cognitive impairment can be assessed, facing first degree murder charges.

Where are we off to now?

Smith: So we’re going to actually – we’re going to North Carolina to deal with a nursing home…

Schenk: North Carolina again. This time we’re driving down the road to Charlotte.

Smith: And we’re dealing with a nursing home that I will just say we have heard of before, because there are hundreds of Golden Living Centers, and this one involves a Golden Living Center in Charlotte, North Carolina, where – and this is one of the most common types of forms of negligence.

A woman fell. She was a fall risk. She was required to have assistance to go to the bathroom. She called for staff. No staff came. She eventually tried to get up by herself to go to the restroom. She fell. Still no staff came. She managed to get herself up and into bed and complained for the next 10 days that her leg was hurting. And finally the nursing home sent her to have an X-ray and it turned out she had a fractured hip. She complained this whole time and despite that, the nursing home never did anything.

And the crazy thing about this story is just how the reporter talking about it notes that they haven’t gotten an answer from Golden Living Center, that the woman was moved out, and she’s now in New York with her family being taken care of, that the reporter went out to the Golden Living Center site, and it turns out that they had already moved by that point and that the management company for the building didn’t know anything about their whereabouts, that they sent questions to Golden Living Center headquarters and didn’t get any answers.

So this is a sketchy place. I mean this is a very sketchy place and there’s a reason that we’ve heard this name before, but this is an awful situation. And we have had cases like this where the nursing home may disappear. They close down. Either the resident gets transferred somewhere else or they’re simply discharged, but this to me seems pretty clear liable. They should have not only assisted her, but in failing to assist her, once she fell, they should have taken her to the ER to get her checked out. And they didn’t.

Schenk: Yeah, I mean that’s always – not always – but I feel like it’s a problem that nursing homes are not omnipotent. They’re not all-powerful beings. They make mistakes. So they can be negligent and cause a fall. They can be doing everything they can in the world to prevent falls and somebody falls anyways. A lot of times the real damage, the real injury, death occurs when the nursing home does not do the appropriate thing after a fall is reported. And that’s exactly what happened in our next article that we’re going to talk about, which comes to us from Worcester – am I saying that right, Will? Worcester, Massachusetts?

Smith: Yeah, Worcester.

Schenk: We had problems last week with me saying…

Smith: Tucson.

Schenk: Tucson. I was saying Tucson and Will was saying Tucson, so we don’t want to repeat that this week. So anyways, this comes to us – family seeks answers after man dies in nursing home that he helped to found. You heard that right.

Walter Haddad, an 87-year-old resident and co-founder of Holy Trinity Nursing Home and Rehabilitation Center in Worcester, Massachusetts, died earlier this month from injuries resulting from a fall. The family of Mr. Haddad is now seeking answers as to why staff members did not call for medical help after their father fell and hit his head on the nightstand and was instead put back to bed where he was found dead 36 hours later. Two staff members have been dismissed and the center reports they’re conducting a detailed investigation into the case.

So we have here a gentleman, Walter Haddad, who in 1994 founded this nursing home. He was a lifetime Worcester resident who loved jazz and ballroom dancing. More than two decades ago, he was working as an accountant. He helped raise the money to build Holy Trinity. Family photos show him beaming at a 1994 ribbon cutting. He served 12 years on the nursing home’s board, including a stint as president. Then it looks like last year, he was having difficulty living by himself because he was 87 years old. He fell at home and so he was moved into Holy Trinity Nursing Home and Rehabilitation Center into the place that he did the ribbon cutting for.

And it looks like he was getting up to the go to the bathroom at night, fell, hit his head on the nightstand, and it appears that the nurse – of course, this is reporting from – the administrator says, “The nurse failed to follow what is considered protocol involving accidents and investigations.” And what he means by that is the individual did not report it to the family, didn’t report it to the doctor, put Mr. Haddad back in bed, and of course, it doesn’t say exactly what, but he had an internal trauma that he died of.

The aide, according to the report, contended the nurse had – this is an aide reporting now – contended that the nurse in question had actually urged staff not to report the fall. So not only did the nurse not report the fall, he said, “Hey, like you guys, keep this to yourself.” The nurse refused to be interviewed for the internal investigation, which I’m sure that that’s going to be an issue that’s a Fifth Amendment type of thing going on there. Holy Trinity has fired the aide and cut ties with the nurse who worked as a public contractor.

Now with regard to the claim here, again, there’s a possibility – and there’s not enough facts for us to determine whether or not the nursing home could likely be held responsible for the actual fall. There definitely are enough facts here to be responsible for what happened after the fall, including the death.

But what’s interesting here, and this is what any nursing home abuse attorney would try to get to is how does the facility rank with regard to its care based on inspections. Based on governmental surveys and complaints over the last three years, the Department of Health – and this is the Massachusetts Department of Health – ranks Holy Trinity in the bottom quarter of the state for nursing home quality. United States data indicates that 6.8 percent of Holy Trinity’s residents suffered major injuries from falls in the last year, more than double the average reported rate of 3.3 percent for state nursing homes. So if we’re litigating this case, we’d depose the administrator, we’d depose the director, nurses and say, “What is your policy with regards to how you prevent falls? Like why are you double the national average on injuries from falls?”

Smith: And I have no idea what the background of this individual who died was as it relates to when he founded the nursing home…

Schenk: 1994.

Smith: …What the nursing home’s rating was while he was a founding member and an owner – but at the end of the day, the owners of these nursing homes are the ones who end up being responsible because they’re getting rich while they’re putting profit over patients. So I don’t know. I mean but hopefully you weren’t skimping out on resources for this nursing home that you owned and that eventually you died in.

Schenk: Right, yeah, that would be…

Smith: Karma.

Schenk: Yeah, we’re not saying – we don’t know if this is a case of chickens come home to roost or not.

Smith: Yeah.

Schenk: Where are we off to next?

Smith: So next, we’re going to Grand Rapids, Michigan, or as you might say, Garand Rapides, Michigan, because Rob has a history of mispronouncing cities like Tucson, not Tucson. So Laurie… Strange.

Schenk: And you were saying?

Smith: Laurie Botbyl, a former employee of Grand Rapids Home for Veterans – so this is a nursing home probably run by the VA specifically for veterans. She’s in trial charged with fourth-degree vulnerable adult abuse after shoving the wheelchair of an 83-year-old resident Maynard Mathers, who is a U.S. Army veteran. Surveillance camera captured that incident, and according to testimony from the director of nursing, Mr. Mathers sustained strong skin tears to both knees and bruising on his hands and forearms. Other staff members at the facility did note that while Mr. Mathers often demonstrated aggressive behavior, they used alternative tactics to respond and handle that behavior.

Essentially what happened was – and we’ve talked about this before,  how hard this job is, how stressful it is, and how important it is that you get people who can emotionally handle that type of stress and responsibility. This lady, Ms. Botbyl, was at the end of a very long shift and was dealing with a very combative resident, and just lost her mind, had a momentary lapse of reason and took his wheelchair and shoved it into a desk. And even the attorney who represents her in the criminal case said that’s horrible behavior. Now his argument was it’s ugly what she did but it doesn’t rise to the level of a misdemeanor. I completely disagree. It clearly rises to the level of a misdemeanor because she intentionally took this man’s wheelchair and shoved it out of anger and frustration into a desk, hitting his knees and his hands.

Schenk: Okay, let’s back up for the listener or the viewer. What do you mean – what would it mean to qualify for a misdemeanor or a felony? What would it live to be if it’s not even a misdemeanor? What does that mean?

Smith: So this is Grand Rapids, Michigan, not Georgia, but I feel pretty confident in saying that the requirements, the differences between a misdemeanor and a felony are the same in all 50 states, which is that a misdemeanor is up to 12 months in jail and a $1,000 fine, and felonies are anything over that. So the crime that she committed here, because it’s not severe enough – it didn’t incapacitate him, it didn’t dismember him, it didn’t break one of his legs – the crime that they have – and we don’t have this exact wording of a crime – fourth-degree vulnerable adult abuse, which is essentially some form of misdemeanor assault and battery against an elderly person, it’s punishable up to 12 months in jail and a $1,000 fine, so it’s a misdemeanor. That’s basically it. That’s how you differentiate between which one’s a misdemeanor and a felony, and they’re based on the severity of the crime.

So she’s been charged with a misdemeanor. I doubt that she would actually get jail time. She would probably have to attend some sort of anger management class, and more likely than not would lose her CAN license – hopefully, because it’s definitely going to go to the state board registry, and she’s not going to be hired again, because now she’s a liability. And this is the type of thing that we’re talking about. See, this happened. She’s got a criminal record, so it’s going to go to the state registry and she’s going to not get fingerprint clearance, so should she ever go to another nursing home and they were to hire her, they possibly are going to be liable because she has a history of elder abuse.

Schenk: It’s a shame.

Smith: Yeah.

Schenk: It’s a shame. Our next article comes to us from Galesburg, Illinois. Galesburg man pleads guilty in nursing home death. Claude Shinall is sentenced to serve about 4.5 years in a Galesburg, Illinois, prison for the murder of 79-year-old Marigold Rehabilitation and Healthcare Center resident Jean Farnsworth – 79-year-old Gene Farnsworth murdered by Claude Shinall. Mr. Shinall was an employee of the nursing home at the time of the incident, pleaded guilty to the death, which was caused by beating and choking Mr. Farnsworth to death. Mr. Farnsworth was a sufferer of Alzheimer’s and dementia. Mr. Shinall was sentenced to serve 13 years in the Illinois Department of Corrections but was given credit for previous jail time and will serve his sentence at 50 percent. Mr. Shinall – the individual who was murdered who had Alzheimer’s and dementia, served in the United States Army from 1953 to 1956. It looks like Mr. Shinall was originally charged with felony aggravated batter, but it went up to first-degree murder and then was actually settled – not settled, I guess plead out at second-degree. The charge he pleaded guilty to meant Shinall “while acting under sudden and intense passion resulting from serious provocation by Mr. Farnsworth choked and struck Mr. Farnsworth about the neck and face with his hands, thereby causing the death of Mr. Farnsworth.

So Will, this is basically in Illinois, so that’s basically voluntary manslaughter? Is that what they’re saying that Mr. Shinall is serving four-and-a-half years of a 13-year sentence for?

Smith: Yeah. It’s some lower degree of murder. We don’t have that in Georgia, but this is…

Schenk: Illinois.

Smith: Yeah, and I’m not sure where Galesburg is, but yeah, they have varying degrees of murder, so this is fourth-degree or third-degree, so I don’t know Illinois criminal law, but it’s clearly not first-degree murder.

Schenk: Let me just say, and Will has said this several times. In our experience, and definitely Will can attest to this with his work experience as being a CNA in several nursing homes. The job is difficult. And clearly according to the court documents and to the charges here that they acknowledge that there was “serious provocation on the part of Mr. Farnsworth,” the nursing home resident who suffered from Alzheimer’s. A 79-year-old man apparently seriously provoked action on the part of Mr. Shinall, the convicted criminal for the attack.

Smith: So what they’re pointing out is that this wasn’t premeditated. He hadn’t planned this. It was spur of the moment. It was a crime of passion.

Schenk: Yeah, and no matter what happened, I mean Will, speak to the fact that you’ll get kicked, punched as a CNA.

Smith: Oh, I have been everything from sexually harassed to scratched to punched to bitten. You’ve got to understand that when we think of nursing homes, a lot of times we think of somebody’s sweet little grandmother, but they can also just be very inappropriate, but strong, and still somewhat with it older men who are inappropriate to the female staff or inappropriate to the male staff and are pretty scary, but they’re in a nursing home. And it’s not somebody’s little grandfather or little grandmother that’s making them cookies. It’s grown men and women sometimes who know what they’re doing, sometimes who don’t know what they’re doing. But it’s one of the toughest jobs out there.

Schenk: But just the fact that it’s tough. It’s the hardest thing to do that a loved one has passed in a nursing home.

Smith: Oh yeah.

Schenk: It’s even harder to grasp when it’s possible that negligence caused or abuse caused. It’s another thing when nursing home staff that’s entrusted with the care of your loved one murders  your loved one and the family is clearly – they’re in a place where they want justice. And there’s a quote by a family member – “Over time, will we be able to come to peace with this? Not a chance. Will we be able to forgive? That will never happen in our lifetime. We love this man with all our hearts. We just don’t understand how someone could abuse and tragically injure an elderly person.” And I think that’s a justified reaction to this.

Smith: Yeah, absolutely, 100 percent. You shouldn’t be doing this job if you can’t handle it.

Schenk: Yeah. Will, where are we at now?

Smith: We’re not leaving the state of Illinois. We’re staying there. Now we’re in Alton, Illinois. And this is an interesting article because the article is talking about one specific case but notes that there are three other cases against this same nursing home, so clearly this is a repeat offender. But in this one, the very first case, a family member of a resident in Alton Rehabilitation and Nursing Center in Alton, Illinois, filed a lawsuit against the center asking for at least 50 grand in each of several counts.

Now again, and we’ve pointed this out, a lot of times when you hear about a lawsuit and the lawsuit is asking for a specific amount of money, they’re doing that for a specific procedural reason.

Schenk: Most often they are.

Smith: Yeah, so they’re not just saying, “Hey look, we only want 50,000 for each of these several counts.” They’re doing that for…

Schenk: …Jurisdictional reasons for that court.

Smith: Jurisdictional reasons for that court or yeah, whatever. Anyways, the resident died in January of 2016 because of a pressure ulcers, bedsores, malnutrition, weight loss, pneumonia and injuries from falls. And this article notes that in addition to this, the same facility is facing three other suits where the center failed to send patients to emergency treatment. And this is what happened to this lady is that she has pressure ulcers, which first and foremost are caused by failing to properly turn her. She’s got malnutrition and weight loss, which go hand in hand there. They’re not feeding her. They’re not watching her input and output. And to the extent that they are, once they see that she’s having significant weight loss, they don’t intervene medically. They don’t send her to the hospital. And the fact that she had injuries from plural falls and they still weren’t sending her to the hospital.

And then in these other cases, there’s one where the suit claims they failed to send this resident to the emergency department even though she developed weakness, abnormal heart rate, she turned white and she had decreased…

Schenk: Yeah, serious status change.

Smith: Yes, decrease O2. And O2 is the O2 level of something – they’ve got these little machines now that they put them on your finger. You actually probably have one on your smart phone like I do too – you can put your finger on there and it can tell you the percentage. Most of us are anywhere between 95 and 99 to 100 percent depending on what’s going on, but we do those every single time we do a vital sign check, which is normally every four hours. So they’ve got decreased O2 and all these other warning factors, and they still don’t send her to the emergency room, and she dies from complications of a stroke.

And the other one is somebody developed ulcers again, which developed an infection, which led to sepsis and a host of other conditions, and they still didn’t send them to the nursing home. The other one is basically the same as these – a woman has a stroke, certain conditions that go with a stroke, certain warning signs. They either don’t pay attention or they don’t act on it and they don’t send her to the hospital. These nursing homes don’t get paid when these residents are in hospitals, so a lot of times, that just shows their lack of concern for their patients because they’re putting profits over patients. They want to keep these residents in so they can keep getting money from the federal and state government rather than letting the hospital get it. Anyways, it’s tragedy.

Schenk: Speaking of lack of concern, there is no way you could level the charge that either Will or I have a lack of concern for your time.

Smith: Well we haven’t had a lot of segues lately. I’m glad you’re back to the segues at the end of the program.

Schenk: That’s right. So we have reached the conclusion of this episode of the Nursing Home Abuse Podcast. This podcast can be downloaded, or the audio can be downloaded on Stitcher or iTunes, and you can also watch this podcast on the YouTube or on our website, which is NursingHomeAbusePodcast.com. That does it for us and until next time.

Smith: See you next time.

Thanks for tuning into the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher and feel free to leave us some feedback. And for more information on the topics discussed on this episode, check out the show website – NursingHomeAbusePodcast.com. That’s NursingHomeAbusePodcast.com. See you next time.


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