Episode 57

Taking on Nursing Homes in Court

 

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The content for this podcast is provided for general informational and entertainment purposes only and is not intended as legal advice. The content of this podcast does not establish an attorney-client relationship between the hosts or the guest and the general audience. If you need specific legal advice for your legal matter, please contact an attorney in your area.

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 and welcome to episode 57 of the Nursing Home Abuse Podcast. My name is Rob Schenk.

Smith: And I’m Will Smith.

Schenk: And we are nursing home abuse and neglect attorneys in the state of Georgia and we happen to be your co-hosts for this most excellent episode. As this goes to air, it should be February 26, 2018. Actually because we generally film these out of sequence, I forgot to mention that last week was President’s Day, which is a day in which Americans all over the country buy mattresses at ridiculously low prices.

Smith: Okay. Interesting, I didn’t realize that.

Schenk: No, like that’s the – isn’t that the cliché that Mattress Warehouse is always having a President’s Sale?

Smith: Oh right.

Schenk: Well Will grew up without a television, so he doesn’t understand that kind of stuff. Who’s your favorite president?

Smith: Oh.

Schenk: I think everyone’s favorite president by default is Lincoln, that or Washington.

Smith: I don’t know. Garfield was a very good president. He was very smart but he didn’t last very long.

Schenk: He died after 80-something days? He could write Bible verses in Greek in one hand and in Latin in the other hand at the same time.

Smith: He was one of the only presidents that had his own proof of Pythagorean’s theorem.

Schenk: I did not know that.

Smith: Did we just have a trivia off?

Schenk: I think so. He was shot by Charles Guiteau.

Smith: Yes, and…

Schenk: They called either Alexander Graham Bell or Thomas Edison to try to get the bullet out of him.

Smith: It was Alexander Graham Bell, I think. They came up with the metal detector to help try to find that bullet.

Schenk: To get it out of his midsection. His death represented the end of what in American politics?

Smith: Oh, I don’t know.

Schenk: The spoils system.

Smith: Oh, yeah. Yeah.

Schenk: The spoils system. I don’t know who my favorite president is. I will say this – growing up, and this is how politically aware I was, I grew up my whole life living a mile from The Hermitage, which is the home of Andrew Jackson, and as a young person, I didn’t like him because he looked real mean, like my impression of him was he was a mean-looking dude, and then of course, his treatment of the Native Americans, I couldn’t get behind that, even though I lived in a city called Hermitage.

Smith: Yeah.

Schenk: Actually Mt. Juliet, but it’s all the same. But anyways, that was last week. No holiday this week, however the holiday really is being able to get 30 minutes of this guy’s time. We have an extra special guest, extra, extra special guest today. Who is it?

Smith: Mark Kosieradzki.

Schenk: Who is a nursing home abuse and neglect attorney probably, I mean if not the best, he’s in the echelons. He’s in the Hall of Fame.

Smith: I mean there’s a quote in the Minneapolis Star-Tribune that I think kind of sums up who this guy is, is that many in the industry, and that’s the nursing home industry, say that he’s more feared than state regulators. So if he’s on a case and you’re on the other end of it and you’re a nursing home, you are quivering in your boots. This guy has written a book on 30B6 depositions, which are the depositions that involve the top echelon of corporations.

And just to give you a little background on who he is, Mark is a board-certified civil trial advocate by the National Board of Trial Advocacy in the Minnesota State Bar Association. He is recognized in Best Lawyers of America. In addition to receiving his 21st Super Lawyer Award…

Schenk: That’s 2-1 – 21.

Smith: That’s right – Mark is the past president of the Minnesota Association for Justice, the Association of Trial Lawyers of American, Board of Governors for the American Association of Justice, is past chairperson of the AAJ, which is the American Association for Justice, Nursing Home Litigation Group, is the past president of the Minnesota chapter of the American Board of Trial Advocates, and is a member of the multi-million dollar Advocates Forum.

He attended Iowa State University, graduating in 1975, and he graduated law school from Drake University in 1979. He was first a judicial law clerk in the 3rd judicial district of Minnesota from ’79 to ’80, and then from about 1980 to 1996, he worked for a large PI firm, a very well known one, in Minnesota before starting his own firm in ’96.

Some of his accolades, and this is just a few of them, he’s named Best Lawyer in America in the 2014 list. He’s named as one of the best law firms in America by U.S. News and World Report. He is listed in the National Trial Lawyers top 100 trial lawyers, best lawyers in America from 2007 to now, Minnesota Monthly – the state’s most respected attorneys, the Minnesota Monthly – the top lawyers in Minnesota of 2011.

Schenk: Wait, wait, there’s more.

Smith: The Million Dollar Advocates Forum and the Minnesota Law and Politics Minnesota Top 100…

Schenk: We’re going to leave it at that, otherwise the whole episode will just be Mark’s accolades.

Smith: Yeah, so this guy has been practicing for 38 years. To give you a perspective on that, Rob and I turn 40 this year.

Schenk: Yeah, we were born in ’78. He got his juris doctorate in ’79.

Smith: So this guy knows what he’s talking about, and because of that, we’re extremely privileged and honored to have this guy on our show.

Schenk: Hey Mark, welcome to the show.

Mark: Thank you.

Schenk: Now Mark, as we just talked about with your bio, you’re a nursing home abuse and neglect attorney. You try cases and settle cases all over the country for nursing home abuse and neglect, and kind of the opening thing we wanted to do is just from your perspective as a veteran of this, can you walk us through, walk our audience through a typical nursing home abuse or typical nursing home neglect case as you see it?

Mark: Now when it first comes to your office, you find out that something bad has happened. Someone’s been harmed or someone has been killed, and the family’s distraught. And typically, they want to know what happened and they want to find out how it happened so they can try to do something to prevent it from happening to someone else again.

And so we start with this threshold to find out what went wrong. Did someone have pressure sores? Were they trapped in a bedrail? Were they mis-medicated? Did someone sexually abuse them? And finding out what happened is where we start, but if you’re handling serious nursing home litigation, it’s not just about what happened. It’s also about why it happened. Is there some kind of systemic problem? Has the organization done something to either hire bad people or have they cut costs and asked their staff to do too little or too much without the resources? So we dive into trying to figure out what happened.

So the first thing you’ll do is you’ll gather all of the public documents. So have there been investigations? What are the licensing documents? Who owns the company? And oftentimes, we’ll find that the company that has the license doesn’t run the nursing home. Oftentimes we find the company that has a license doesn’t have an employee and it’s a shell that is owned by some parent organization who then has another company that they have to run the nursing home. And it’s a shell game to hide responsibility and to hide resources, money and also a shell game to avoid responsibility, not only from lawsuits but from state and federal regulators.

So what we want to do is we want to be able to give answers to the people who come to us for help. We want to know why did their loved one die or get harmed, and we want to know what can be done to make it better. So a big part of our job is investigating. We gather the medical records. We gather the licensing records. We gather all the historical state and federal regulator data about this particular place. We check licensing files.

Schenk: And Mark, let me jump in there. When you’re at this phase of this investigation, are you more focused on the mechanisms of the injuries or are you more concerned at this point for the mechanisms of who is in charge of operations of the nursing home.

Mark: The answer is yes. We need to know the mechanisms of the injury to understand what happened and to understand is this a systemic problem. For example, if I’m working on a case where a woman was entrapped in a bedrail – regular folks think bedrails are there for safety, and what they don’t realize is there are literally hundreds of hundreds if not thousands of deaths of loved ones rolling into the bedrail and getting entrapped and literally hanging to death. So we have to look at that mechanism of injury. We need to find out exactly how this body was situated, what happened, but then we have to find out with all the knowledge that’s been around for the last 30 years, why did the nursing home have this gap in the bedrail? Were they cutting corners? Did they have systems in place? Did they train their people? Because this is something that’s not just some stupid mistake by someone. This is something in management that they’re just not paying attention. And if we don’t figure that out and hold them accountable, this danger is going to keep going on for other patients. So we try to find out what did the management know and do?

Schenk: Yeah. So Mark, let me ask you this then. What are some common issues that you have uncovered in terms of the systematic, investigations of the system problems that lead to injuries? So for example, are you finding commonalities in your cases regarding staffing or underfunding of safety mechanisms and things like that? What are some common themes you’re seeing in your cases?

Mark: Well a common theme is usually laundering money out of the organization into the parent organization. We get the financial records from the nursing home and figure out how much are they spending on their frontline workers and how much are they spending on management? And what we find is sometimes we’ll see the management costs in the double or triple in a three or four-year window, while at the same time, injuries go up during that period.

So the theme we tend to find is as they start cutting costs either getting less skilled labor or less labor, more errors occur, because if you have a patient that you tell the federal government, “We need to have two people to help transfer him from a bed or to the toilet,” and the federal government says, “That’s fair. We’ll pay you the reimbursement rates for this patient for two people,” and then they only have one person and they drop the person and hurt them or kill them, that’s a cost-cutting device, and that’s what ends up harming people.

Schenk: Right, I see.

Mark: We also find… Oh, I’m sorry.

Schenk: No, go ahead. I’m sorry.

Mark: We also find that when they hire these unskilled people who really don’t know how to deliver the care or really don’t understand the frailty of the people they’re dealing with, bad results occur. And then there are times where it’s just downright bad conduct where someone, we catch them raping an elderly person and we find out that there have been histories of complaints by the elderly person, but they don’t believe them because they say, “Who would want to rape an 88-year-old woman?” or “She’s got dementia. She’s just making it up.” So they disregard these red flags that are everywhere.

Schenk: Yeah, I feel like that’s a subject we’ve touched upon on this podcast several times is the growing problems of sexual abuse in these nursing homes, and that’s obviously as you’re saying…

Mark: It’s awful.

Schenk: Yeah, it’s an outflowing of underfunding, not getting the right people, not doing proper background checks and not reporting.

Mark: Right.

Schenk: So do you have any recent stories of using shell companies that you can talk about in today’s episode in terms of you talked about there being holding companies shuffling around money. I’m assuming this is pretty typical?

Mark: Yeah, what we find is that they’ll be a group of investors, sometimes investment brokers, sometimes hedge funds, sometimes real estate investment trusts, and what happens is they want to make this as part of their investment portfolio. And so we’re involved in a case right now where the nursing homes, I think it was like 90 nursing homes, was owned by a real estate investment trust, and the people who are working in the management in that company put the other group of investors and bought that nursing home chain from the real estate investment trust. So it’s the same people but now they own a company. Then they bring all of those separate companies into a limited liability corporation, so they look like there are about 90 different companies, but they’re all owned by the same four people and investors.

Schenk: Wow.

Mark: Then what they do is they set up a management company that’s owned by the same four people that they hire to run these 90 nursing homes. And then what happens is the management company bills the nursing homes for their services even though they’re owned by the same people. And then the management company or the nursing home defaults and doesn’t pay the management company, so they bill themselves and then they don’t pay themselves, and then they go to the courts and say, “The creditors can’t get paid because this nursing home company is defaulting on itself, and we want to go into receivership,” which is kind of like bankruptcy, so they don’t have to pay all their other creditors and then they can try to stop any lawsuit they have going for killing people. We just finished one of those and we’ve got three more going right now.

Schenk: So it sounds like you need a few forensic accountants on your team.

Mark: We do that. We do that.

Schenk: So Mark, you’ve got the client that comes in with the case. You’ve done the investigation. You have affirmed that there is a case and you’ve filed the lawsuit and you’ve named all the different corporate entities. What are some of the defenses you’ve seen, common defenses that nursing homes give to a typical case, like to a bedsore case or a bedrail case or a prescription error case? What are some common themes you’re seeing in the defenses the nursing homes have?

Mark: The first one is stonewall, try to just prevent us from getting information, and they come up with all kinds of legal arguments for everything that are typically nonsense. They literally object to everything we ask for. And I developed a technique and I’ve written a book about it, that 30B6 book we talked about before on how we can use the legal process to expose this obstruction. So they start with that.

Then they deny that anything happens, and if they get caught on that, then they say, “They’re old. They’re going to die anyways. No harm, no foul. This isn’t that big a case, and therefore we don’t want to resolve this case,” and they try to run us to the ground. They’ve learned the hard way that we don’t run away from that.

Then they say that, “Well the woman died but she died from something else. It had nothing to do with what we did.” So they argue about the causation. And if they get totally cornered, then they throw their own employees under the bus and say this was a rouge employee.

Schenk: So you touched really briefly on one of the defenses these facilities will present, which is to the extent we might have done something, this individual didn’t have that much longer to live, in other words, there’s not much value to this person’s remainder of their life because they had co-morbidities or they had mental cognitive issues. Can you touch on some of the explanations that you’ve given to juries or presented in your case that show people in the twilight of their life still have a lot of life to give, if not for themselves, probably two or three generations of others that came behind them or came after them?

Mark: Rob, you hit it right on the head. For any of your listeners who have lost a loved one, and I’m one of those, you really find out that those last years of life with a person who’s the most important person in your life, your parents, are some of the most touching and important moments you’ll ever have. I sat with my parents in their final years and it was kind of like that book, “Love You Forever,” and the cycle of life turns around, and you realize how much you’ve learned from them and how they’ve formed your life and who you are and what you believe in. And you continue to learn from them, even when they have dementia, because my mother had dementia in her final years. I learned what love was all about and the connections were unbelievable.

And so I don’t believe that a person’s got 332 days left in their life and it’s going to be $10 a day or $100 a day or $1,000 a day. That’s nonsense. Nobody would put a value on it that way. The real question is what are the human damages? What are the things that connect and make this meaningful, and what do you lose when you don’t have that opportunity to have that?

And virtually every state except Minnesota where a big part of my practice is, what that person went through in their final days is also part of the lawsuit. And I think the thing you have to remember is everybody is going to die, but the nursing home doesn’t have the right to decide when you’re going to die. And infinitely more important is not whether they die but it’s how they die. And our job is to hold them accountable because we learned that if you hold a wrongdoer accountable, there’s a real good chance they’re going to change their behavior and not do it again. But if they’re not accountable, they’re just going to keep on going, but then people are going to keep on dying.

Schenk: And that’s what always strikes Will and I so much when we’re in these cases and the nursing home’s argument is exactly what we just said, “Well we don’t have that much longer. “It’s not necessarily we’re doing them a favor, but just completely discounting the last years of life, it has no meaning, and if that’s the case, why not abuse and neglect everyone if there’s no value left? Why even have beds? Why even feed? It’s a ridiculous sentiment on our side, and like you said, it’s a ridiculous sentiment to anybody who’s lost someone.

Mark: And I agree with you because that’s just the nonsense that the defense lawyers seem to want to do. What we do is we ask the nursing home employees what kind of patients do you take care of? They say they’re old and they’re sick and they’re frail, of course. And so I say if they’re old and they’re sick and they’re frail, why do you even care? And they’re outraged and I say, “Well tell us about that. Do they deserve to be taken care of and loved?” They go, “Sure.” And if someone or some person comes into this court, into a courtroom somewhere in a year or nine months or two years and says, “This person is going to die anyways. They didn’t deserve the care,” what would you have to say to them?” And they have strong words for that.

Schenk: Well Mark, we certainly appreciate your time. We know that your time is valuable. You have lots of things to do, but we, as fellow nursing home abuse attorneys, appreciate your time for talking to us about all things nursing home litigation related.

Smith: Your experience with these places, absolutely.

Mark: My privilege. Thank you for having me.

Smith: Thanks, Mark.

Schenk: Man, actually to be quite honest, I was kind of nervous having Mark on the show.

Smith: Yeah.

Schenk: I mean the guy is such an awesome lawyer, like this guy’s a legend.

Smith: Yeah, you’ve got to understand, for those of us that do nursing home and neglect, this is kind of like somebody talking to Michael Jordan. The guy knows the stuff. He’s written the books on it.

Schenk: Michael Jordan like in 1995.

Smith: Oh, the Dream Team.

Schenk: Yeah, like 1992.

Smith: Yeah.

Schenk: Yeah. Well with that, that’s going to conclude the episode of the Nursing Home Abuse Podcast Episode 57. As always, you can watch the podcast each and every episode. It comes out Monday on YouTube or at our website, which is NursingHomeAbusePodcast.com, or you can download the audio on whatever platform you use, whether it’s Stitcher, iTunes, Spotify, whatever the case may be. And with that, we appreciate you and we’ll see you 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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