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 43 of the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: I feel like that gets you by surprise every time. There’s something about it, like there’s an instant, like a nanosecond pause there like you’re confused.
Smith: Well I’m not sure if I’m going to say I’m Will Smith or William Smith.
Schenk: What are the facts that would change, that would make a difference in whether you would say that?
Smith: It’s completely intuitive.
Schenk: I see. So sometimes, some weeks, it’s like your gut says, “I’m going to be Will this week.”
Smith: Yeah, yeah.
Schenk: I got it. Okay. Speaking of this week, this goes to air on Monday, November 6, 2017. We’d like to say before – well while we have the chance, we’d like to say happy or solemn Veterans Day, which is going to be on Saturday the 11th, and Will has a special salutation to give, and that is…
Smith: On Friday, that is November 10th, and November 10th, 1775 in Tun Tavern, Philadelphia, was the birth date in place of the Marine Corps.
Schenk: That’s right. So okay, hang on, what’s the deal with when you go to the Marine Corps, the thing where you have to put things on the red table? Like I watched a YouTube video on when you go and they’re buzzing your hair off, but there’s something about put your wallet on a red table? What’s the deal with that?
Smith: It’s just a psychological exercise. When you first get off the bus, they immediately start training you to do simple tasks in unison, so everybody, “Take out your wallet with your right hand. Put it down on the red table.” Because we’re all civilians, but somebody’s doing it with their left hand, somebody doesn’t do it on time, so it’s from the very moment you get off the bus, they’re starting to train you like robots.
Schenk: It’s very psychologically intimidating.
Smith: Oh, it is. It is.
Schenk: It’s very intimidating from any standpoint. That’s interesting. So 1775, that’s the birth date of the United States Marine Corps.
Smith: November 10th, 1775. My Marine Corps came alive.
Schenk: It was good for Chesty Puller. Was Chesty Puller a Marine? No, Chesty Puller was not a Marine. No, Chesty Puller was a Marine. He was the Marine – I’m so sorry. I’m so sorry. Chesty Puller was a Marine. Okay.
Smith: Yeah, he was a Marine.
Schenk: Yeah, anyways. So lots of good things to talk about in this podcast. Oh, I actually left out my buddy Dennis’s birthday is on November 6th, so that’s along with – that’s today, on the air date. So happy birthday, Dennis.
Smith: Happy birthday, Dennis.
Schenk: All right. Our first topic of conversation comes to us from our neighbors to the north in Alberta, Canada. This looks like a story about a worker charged with the assault of a nursing home resident. So two staff members of Killam Health Care Center in Alberta, Canada, have been charged with the assault of an 88-year-old woman in long-term care. A 53-year-old woman is facing three counts of assault, and a 39-year-old woman is facing a single count of assault. In a statement, the Killam Health Care Center said the allegations have prompted “a full investigation, a review of the matters that result in an action plan based on results.”
So there’s not a lot to this article in terms of the facts that led to the actual altercation along with the actual physical injuries surrounding the assault. What’s important to note in this, again, and we’ve talked about this in previous episodes, is that a nursing home can be responsible for the injuries resulting from its employees intentionally striking a resident.
So again, there’s basically – I want to point out of a couple of things. When we say nursing home neglect, when we say nursing home abuse, many times the facts overlap. Many times the claims will overlap. But from a general standpoint, neglect is going to be actions or inactions by a nursing home or a staff member of a nursing home that result in an injury where the intent was not to produce the injury. So for example, if a nursing home resident fails to reposition a resident… If a staff member fails to…
Smith: If a staff member.
Schenk: If a staff member fails to reposition a resident on a regular basis and that resident develops a bedsore and later passes due to infection because of that bedsore, the staff member – if the staff member did not intend death by infection by a bedsore because by the non-repositioning, then she did not have the true intent to cause that result and we would call that negligence. The person deviated from a normal standard of care, and that deviation resulted in an injury of the resident.
Now when we talk about abuse, generally the differentiating fact between neglect and abuse, not to say that these things don’t overlap many times, but the differentiating factor is that level of intent. If the staff member takes a lamp off of a coffee table and bashes over the head of a resident, we can truly assume, we can definitely say that staff member intended to assault the resident. And that’s where intent comes into play. They intended the consequences.
Nursing homes generally are going to be responsible for the negligent acts of their staff. That’s a concept in the law called vicarious liability. The person mopping the store at Walmart, if they don’t put the sign out, you’re probably going to be able to sue Walmart through vicarious liability under the law. Walmart is responsible for the torts committed by its employees the same way a nursing home is responsible for the torts, like negligence, committed by staff members.
Now why is the differentiation between neglect and abuse, why is the differentiation between intent and non-intent really, is that a nursing home is not going to be responsible for the intentional torts, for the most part, not going to be responsible for the intentional torts of its staff unless there is some level of constructive or actual knowledge that the staff member has a propensity or a likelihood that the staff member will commit that particular tort.
So for example, if in this case, in this Canadian nursing home, if the nursing home had reasons to believe based on previous experiences of assault against a resident or a criminal record involving assaults, particularly of elderly persons, then it’s possible that a civil lawsuit may be made against that nursing home, not just the employee, but the nursing home, due to the staff member’s tort. And sometimes those cases can be a little more difficult because of course, nursing homes, obviously we can both attest to this, fight tooth and nail and deny every claim – negligence, abuse, everything they can. And it’s more difficult to put the pieces together to create a case against a nursing home for the intentional torts of the residents. However, it’s not impossible. I’m just saying that the nursing home really puts up fights in those cases.
But we’ll revisit this case in a future podcast, but that’s what strikes me from this article. Again, there’s not a lot to it in terms of the facts, but just recognize that depending on where you’re at, depending on the facts, if your loved one has been assaulted physically, punched, kicked, pushed down by a staff member, there is going to be almost certainly a case against an employee. The issue is going to be whether or not the nursing can be held responsible for it as well if it’s an intentional tort. So like Forrest Gump says, that’s all I’ve got to say about that.
Will, where are we heading to next?
Smith: So next we’re going to New Jersey, and we’re going to talk about an issue that we’ve actually dedicated a whole section to in the past and that has to do with cameras, surveillance cameras inside nursing homes. And here in New Jersey, New Jersey Attorney General Christopher Porrino launched Safe Care Cam back in December of 2016, and they’re working, the AG’s Office of New Jersey is working to expand the use of surveillance cameras from private homes to nursing homes across the state.
Safe Care Cam was designed to document the care provided to individuals in need of specialty care, particularly those with dementia, but it’s got a lot of privacy concerns. So essentially what was going on was the Safe Care Cam was open to families with live-in caretakers or certified home help aides. And what it does is it lent cameras, surveillance cameras, you know the little nanny cams, little cameras that are in some teddy bear that’s on the mantle or something, to people to put in their own homes where they had hospice. They had home health or something like that. So what they’re doing now is they’re trying to expand it to nursing homes.
And in this article, there’s a particular husband that they’re talking to, and what he’s saying is he wishes this had been available for his family when his wife, who had dementia, was put in the nursing home, because apparently she shattered her femur twice within three weeks.
Schenk: Within three weeks – that’s crazy.
Smith: Yeah, she underwent two painful surgeries that involved her broken leg, fixing her broken leg with plates and screws, and they really didn’t learn about what happened until they hired a lawyer, and the lawyer was saying that if they had had cameras in her room, they could have seen her falling, the CNAs picking her up, putting her back in the bed, her falling again, the CNAs picking her up, putting her back in the bed. So they could have documented all of these falls and the nursing home failing to act.
However, there are still issues with actually placing – and this article points this out – placing cameras in nursing homes, because the law in the state of New Jersey is silent on it. And the fact that it’s silent doesn’t meant that you can do it, because there are still a lot of privacy concerns, and I think that one of the representatives of the nursing home pointed out that, “Hey, this is private property.” If you want to put a camera in your own home to look at home healthcare that you’re getting, that’s one thing, but a lot of these residents share rooms with other residents. It’s not as though a camera, even outside the room, will only track a specific resident. It may catch glimpses of another resident, and that’s a privacy issue too.
Schenk: Both under federal and state law.
Smith: Yeah, under federal and state law. So yeah, it would be nice, especially in a situation where people are constantly falling and you can document that, but it’s still a huge privacy issue. So we’re going to be following this pretty closely. I’m curious as to what happens with the AG’s Office rolling out this program to try to expand the nursing homes, because I can guarantee you there’s going to be a pushback from the nursing home industry.
Schenk: Yeah. So what I want to kind of spend the next few minutes talking about here is an issue that has to do with what’s called in the law a force majeure event. Generally in the law of contracts, individuals that have contracted with another have basically exchanged promises. I promise to pay you $500. You promise to provide me with a used Toyota truck. I promise to pay you $1,500 a month. You promise to provide nursing home care to my loved one each month. So you have an exchange of promises.
There are going to be times in which promises cannot be fulfilled. If this is done based on the negligence or if it’s done based on reasons that are within the control of a party, then they have done what’s called breach – they have breached the contract. So for example, I paid you $500 for a Toyota truck and the Toyota truck is missing a wheel or the Toyota truck doesn’t work. I paid you $1,500 a month to take care of my mother in this nursing home and you don’t have a bed for her. Those are going to be times that the individual or the party has breached the contract.
There are going to be times – I’m getting to a point somewhere, I promise – there will be times where a party cannot fulfill their promise, a party cannot fulfill the obligations under the contract due to forces that are beyond the control of either party, and these are going to be generally called force majeure events – “acts of God” basically, I think that’s French, force majeure. Will didn’t take French. He actually took what’s called Appalachian in high school as his first language. His second language was English. But anyways, a force majeure event.
A force majeure event is going to be something like a tornado, a hurricane or explosions, riots actually. My first job as an attorney was…
Schenk: …Earthquake – was for an international law firm based in Paris, France, and a force majeure event in many of their contracts is going to be public strikes or labor strikes or riots based on labor, which happens a lot in France where you can’t make it to work because the subway workers have gone on strike – you can’t take the train.
So obviously we are still recovering from the horrendous results of Hurricane Harvey and Hurricane Irma and to some extent Hurricane Jose. So we all are familiar with the images, particularly if we remember from Harvey in which there were flooded nursing homes in which nursing home residents were sitting in waist-deep water.
The question that I would like to pose and we would like to answer is what is the liability both in terms of breach of contract and in terms of negligence with regard to what’s the nursing home’s obligation to make sure that those residents are not in waist-deep water and that they’re transferred safely to another location?
The law is going to vary from state to state, but you have to understand that a force majeure event by definition is something that is out of the control of the nursing home. A nursing home should be responsible for having backup generators because it’s foreseeable and it’s reasonable to assume that power’s going to go out for one reason or another. It’s not foreseeable, it’s not reasonable for a nursing home to think that if you’re located in a place that doesn’t get category-5 hurricanes that you’re not only going to get a category-5 hurricane but you’re going to be right on the eye of it, that you’re going to get the full brunt of it. So whether or not the individual nursing home that your loved one is in, whether in Florida or Texas or Louisiana, wherever it is, it’s going to depend on what was likely foreseeable, what would have been in the reasonable abilities of that nursing home to prevent an injury, to prevent a lack of care to your loved one.
Smith: Yeah, and I think it’s also clearly this nursing home in Dickinson, and I remember the picture – I posted it on Facebook, it’s a very awful picture.
Schenk: In Texas.
Smith: Yeah, in Texas – Dickinson, Texas – women sitting around this nursing home with water all the way up to their waist. Clearly the nursing home is not going to be responsible for injuries suffered from the actual hurricane or the immediate aftermath, but their reaction to it could start to open them up to liabilities. So for example, if you can imagine an extreme scenario where a hurricane comes and the entire staff and all the owners of the nursing home just throw their hands up and go, “Well that’s a wash,” and they walk away and leave the residents there, that’s going to open them up to some liabilities.
Schenk: Yeah. And not heeding – if a nursing home is in a location where there’s a mandatory evacuation and they do not evacuate those nursing home residents in a reasonable fashion, there’s a possibility there’s liability if those nursing home residents are injured if they were forced to stay because the nursing home did not take action and move them. If a nursing home is located in a flood plain where there’s knowledge that a category-2 or above would flood out the nursing home and they don’t take precautions to get those residents out, there are possibilities. It’s when the level of risk is within the foreseeability of that risk, or I’m sorry – the foreseeability of that risk is in proportion to what they should do, the reasonable steps that should be taken. And a lot of times, like particularly in this case that Will was talking about, the infamous picture where the residents are chest-deep – if it’s the storm of the century, is the nursing home responsible for making sure the nursing home facility itself is basically protected from the storm of the century? And I can see both sides of that argument. I think that for the most part, the nursing home, if they’re fortified against the storm of the decade, then that’s probably going to be good enough and that if a resident is injured because of the storm of the century, that’s a force majeure event and they’ve done what they’ve needed to do.
Smith: Yeah, absolutely.
Schenk: So that’s kind of what I want to say about that. That was based off an article that we got that we were wanting to talk about the previous couple of weeks but never got around to it, but it’s when Hurricane Harvey first hit from Dickerson, Texas, there was a picture that Will’s talking about where the residents were in waist-deep water – it was tragic. Anyways…
Smith: So next, we’re going to Champaign County in Illinois – lots of cases coming out of Illinois. I don’t know why that is. That’s a tragedy. But so in this case, a 78-year-old woman was found unresponsive in the courtyard of this nursing home. The last time she had contact with the staff was sometime around 1:30, 1:40, and then three-and-a-half hours later, they find her outside, and this is the summer time – they find her outside unresponsive in direct sunlight extremely hot to the touch with vomit on both sides of her face and dead.
An investigation was launched into it, and the coroner made a determination that she died from hyperthermia – not hypothermia, but hyperthermia, which is a heat stroke. She died from overheating. She had dementia, and as such, the report determined that the nurse and the CNA on duty at the time had failed to follow the proper procedures for safeguarding wandering residents and also the protocol for door alarms.
That’s really all the article says, so one’s kind of left with exactly what they did. I mean one thing is when you’ve got residents like this who have dementia and are known to wander, they’re like children. You should know where they are most of the time. Most of the time in any given hour, you should know where they are. They may be a five or 10 or maybe 15-minute period there where you cannot exactly say where they are, but that’s pushing the limit. If you’ve got somebody like this, you should be able to say, “Oh, I know where she is. She’s in the dining room. Oh, I know where she is. She’s in her room watching television. Oh, I know where she is. She’s walking down A hall or B hall or C hall.” But for three-and-a-half hours, they didn’t know where she was because this was the summertime, and if they had known she was outside, they wouldn’t have left her, and had they left her, it would have been negligence.
One also has to wonder what they mean by violation of the door alarm policies. So I don’t know if they had the door propped open for some reason. I don’t know if they disengaged an alarm because it kept going off. I’m not really sure. But essentially what happened to this poor lady is they weren’t paying attention to where she was. They weren’t checking on her. And she goes out into the courtyard and she has dementia. She doesn’t know what she’s doing. She doesn’t know what’s going on. She has no situational awareness. And she gets stuck in the sun and she dies of a heat stroke, and it’s a tragedy.
The CNA was terminated and the nurse was relocated. And the reason that the CNA got the harshest punishment is simply because the CNA should directly know at any given time where his or her resident is. The nurse has the job of getting the medicine ready, passing it out. The CNA is directly responsible for the immediate care of that resident. So when you’re a CNA, like I said, you know where your resident is at any given time. And they didn’t in this case.
And she died a horrific, horrific death. It reminds me of the horrible case that we had down here in Georgia of the hot car infant death in Cobb County, I mean where this infant was left in the care by his father. He was found – the father was found guilty. They’re working on the appeal now. I know the lawyers on both sides and it’s a…
Schenk: Wasn’t he like typing search queries about that at work during the day or is that fake news?
Smith: I can’t remember what came down on that other than a lot of that shouldn’t have come in.
Schenk: Oh, so it did happen, just whether or not it should have come in the court.
Smith: I think that was the issue, although I think there was a question of whether or not it happened. I can’t remember. It was a horrible case. But what’s even worse is just thinking about either that toddler or this old person essentially cooking in the hot sun and not being able to escape it for one reason or another. It’s just an awful, awful way to go out. I honestly think it’s worse than freezing to death. But either way, it’s a horrible thing and I can guarantee you they’re facing a lawsuit right now.
Schenk: Oh yeah.
Smith: So now back to you, Rob, where are we going now? Is it Illinois?
Schenk: We’re actually going to go to my hometown of Nashville, Tennessee, as well as Milwaukee, Wisconsin – Old Milwaukee. Milly-waukee. Remember that from Wayne’s World where Alice Cooper explains where the name Milwaukee comes from?
Schenk: And the joke is like how does he know the history of Milwaukee? But anyways, I’m bringing these to your attention, fair viewer, fair listener – in Davidson County, this was a new taskforce created to protect elders and to prosecute elder abuse, and the same thing in Wisconsin. So you have some states like Wisconsin and Tennesee – go Vols – that are responding to the rise in elder abuse cases across the country, so these are law enforcement bodies that are training their people to recognize and prosecute elder abuse. And then you have other states like we mentioned maybe a few weeks ago, Iowa, that are cutting the budget for the ombudsman programs.
So kudos to Wisconsin and Tennessee – and let me say this. We’re going to Tennessee, the Davidson County Tennessee Assistant District Attorney’s Office led by Ardie Griffin and a taskforce involving law enforcement and Adult Protective Services have now revealed 550 cases of elder abuse complaints so far this year, and they estimate about 188 cases will be heard at the end of just this month. And this is why the new taskforce is created is in response to this high number, and they’re actually a high number of abuse cases here, and they’re actually saying – down here it says Griffin, Ardie Griffin the district attorney says she believes the number of elderly abused is much higher than what is reported because many people do not know that Adult Protective Services even exists, also simply for the fact that the population of the elderly is growing with the baby boomers reaching 65 years or older now.
With Wisconsin, the Wisconsin Attorney General Brad Schimel announced the creation of the Attorney General’s taskforce on elder abuse. The goal of the taskforce is to study the impact of elder abuse in Wisconsin and assess ways to improve outcomes for this growing population of citizens. The Wisconsin AG has exclaimed his excitement for the initiatives which he believes will address the needs of Wisconsin seniors both now and for decades to come.
So I just wanted to highlight those two states, in particular those two cities with regards to being proactive in investigating and prosecuting cases of elder abuse in their respective states.
So I think with that, going back to the hometown, we’re going to drive south a little bit back to Atlanta, back to us, and say that I think that that concludes this particular episode of the Nursing Home Abuse Podcast. Again, happy birthday to the Marines, right?
Smith: Happy birthday, Marines.
Schenk: What will you say? How did you all say happy birthday to each other?
Smith: We would just say happy birthday to each other.
Schenk: What about Semper Fi? When did you all say that?
Smith: We would say Semper Fi or you would say “Yut-yut.”
Schenk: Okay. So Marines are Jarheads?
Schenk: They are Devil Dogs.
Smith: Devil Dogs. Teufel Hunden. It comes from the Battle of Belleau Wood where the Germans said that the Marines were demon dogs or Devil dogs.
Schenk: And you’re also Leathernecks?
Smith: Leathernecks. That’s from being out in the sun all the time and having high tights.
Schenk: What is the story before Gung Ho? Do you say “Gung Ho” to each other? Because there was a G.I. Joe man who was a Marine and that was his specialty, being a Marine, and his name was Gung Ho.
Smith: Gung Ho is a state of being. It’s like somebody is a hard charger or they’re really motivated, they’re gung ho. I honestly don’t know the history behind Gung Ho.
Smith: It might be based on… Marines take a lot form Japanese military for whatever reason, especially nowadays during World War II, because we fought with them in the Pacific so much, I think it might be a Japanese term, gung ho. I don’t know.
Schenk: Yeah, I think it’s definitely Japanese, but I don’t know why… Anyways, so why is your Marine Corps color red?
Smith: To show the world the blood we shed.
Schenk: And why is your Marine Corps color gold?
Smith: To show the world that we are bold?
Schenk: And why is your Marine Corps color green?
Smith: To show the world we’re lean and mean.
Smith: And also blue.
Schenk: Oh, I don’t know that one.
Smith: To show the world that we are true.
Schenk: I didn’t know that. I thought it was just red, gold and green. Anyways, all right, so happy birthday Marines. Happy birthday to Dennis. And hopefully everybody out there has a great Veterans Day/Armistice Day. And with that, we will see you next time.
Smith: See you next time.
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