Episode 58

Lawsuits or Regulations? Holding Nursing Homes Accountable

 

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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 out there and welcome to episode 58 of the Nursing Home Abuse Podcast. My name is Rob Schenk.

Smith: And I’m Will Smith.

Schenk: We are your co-hosts for this episode and we are also Georgia trial lawyers practicing in the areas of nursing home abuse and neglect. As this episode goes to air, it is March 5th of 2018. We are getting close – I think it’s actually less than a week away to Daylight Savings Time. Wait – Daylights Saving Time.

Smith: Daylight Savings Time.

Schenk: Saving? Savings? There’s an “s” though. I think it is Daylight Savings Time.

Smith: It doesn’t feel right if you say, “Daylight Saving Time.”

Schenk: Yeah, like it’s savings, like, you know – Sunday, Sunday, Sunday, come down to the Mattress Warehouse for savings.

Smith: Right.

Schenk: Are you on board with that group of people who say we should do away with Daylight Savings altogether?

Smith: Yes.

Schenk: Okay, why is that?

Smith: Well I think the original purpose of it was to provide more daylight to farmers, but because of the industrialization of American farmland, it’s really not a necessary phenomenon anymore. It’s not a necessary thing.

Schenk: But from a standpoint of just enjoyment of life, don’t you want to be awake with there being more daylight? Don’t you want to rise with the sun and things like that?

Smith: Oh no, unless I have incident like I did a couple of episode ago where I got here late, I typically get up before the sun rises anyways, so it doesn’t matter to me.

Schenk: And actually I think there’s a – Arizona. Arizona does not recognize Daylight Savings Time if I remember correctly.

Smith: That’s right. I didn’t like – I’ll tell you this – I didn’t like it as a child because I felt that man was intruding upon…

Schenk: You didn’t.

Smith: I did. This is true. You can ask my mother. I didn’t know what right man had to alter time like that, and people were so flippant about it, it didn’t make any sense to me because they were like, “No, no, no, son. We’re going to set the clocks forward.”

Schenk: That’s pretty profound for a kid who would then put on tabi boots and his ninja hat…

Smith: Tabi boots.

Schenk: Tabi boots – and go out and reenact “Gymkata,” scenes from the movie “Gymkata.”

Smith: Gymkata.

Schenk: But anyways, this is a special episode. Once again, back again is one heck of a trial lawyer. Who is it?

Smith: Mark Kosieradzki. He graduated law school in 1979 from Drake University. He is a partner at Kosieradzki Smith Law Firm. He’s board-certified civil trial advocate with the National Board of Trial Advocacy in the Minnesota State Bar Association. He’s recognized by Best Lawyers in America in addition to, as we pointed out last time, having recently received his 21st Super Lawyer Award.

Schenk: It’s amazing.

Smith: He’s listed as one of the best lawyers in America, the best law firms in America, the Million Dollar Advocates Forum. In a nutshell, in his 38 years of practice, this guy has just built an amazing personal injury practice and devotes a lot of it now to nursing home neglect and abuse and he’s even written books for many of the younger lawyers on how to pursue these cases.

Schenk: That’s right. So we are very privileged to have…

Smith: Very, very privileged.

Schenk: Very privileged to have Mark on the show.

Mark: Thank you.

Schenk: So Mark, so how long does it usually take on average for you in your experience from when the family members of a loved one who has perished in a nursing home comes into your office to say the time when you have completed your investigation before either filing suit or sending a demand – I don’t even know if you send demands or not, but what is the timeline for that usually?

Mark: Well that depends on the complexity of the case and how much trouble we have getting medical records. On the short lease, four or five months, sometimes it can take as long as a year. It really depends on the complexity of the case, and so on the short time, the case can get done in four or five months, but the average case takes a year or two to get through the system.

Schenk: Wow. And then once the case has been filed, and I know you do cases outside of Minnesota, but what’s the average length of time that a loved one, a loved one of somebody who’s been injured in a nursing home would need to wait for, I guess, ultimate verdict.

Mark: Well that’s determined by the court system, and most courts set a trial out nine months to a year.

Smith: Yeah. And are you seeing a lot, in Minnesota at least, Mark, are you seeing a lot of these cases go to verdict or do the nursing homes eventually just settle?

Mark: The vast majority of them get resolved. They don’t get resolved until you’ve shown them that you know what you’re doing and you show them what you have as evidence, because I’m a strong believer that you have to have evidence to prove your case. It’s not just smoke and mirrors. But once you put those parts on the table, smart defense lawyers are going to say this is not something I want to roll the dice on.

Schenk: Yeah, that makes sense. That makes sense, because what do we have here in Georgia?

Mark: But before you do that, they don’t want to talk to you.

Schenk: Yeah, because Will, I was going to say what do we have here in Georgia? Less than half a dozen verdicts in Georgia for nursing homes?

Smith: Maybe eight or nine verdicts in the past 20 years.

Schenk: Twenty years, something like that, yeah. They’re usually settled.

Mark: Well you’re starting to see more and more of them because some of these defense lawyers are trying to convince the nursing homes for their own reasons that it’s important to fight these to the death. And it’s really unfortunate because sometimes they’ll spend $250,000-$300,000 defending it. I had one case I learned after we tried it for five days and settled that that the defense had thrown $800,000 at trying to stop this train from getting to the station.

Schenk: Well I mean that makes sense because it seems to me that you’re unique – not necessarily unique, but you’re probably not an average attorney going after these nursing homes if you’re going after them with a systematic approach. I have to imagine that not every attorney has a financial accountant or forensic accountant and is trying to unravel all the layers. They’re usually maybe just going after the initial mechanism of injury and trying to get compensated for that, so you’re probably in a less common boat.

Smith: Yeah.

Mark: Well you’re absolutely correct on it. I have a case down in Macon, Georgia some years ago and we spent a better part of a year unraveling the shell game. And at the beginning, they just told us this case was nonsense and there was a small mom and pop shop and we wouldn’t get any money for the family. They told them, “This family’s not about the money. This family’s about putting a fine on you folks so you don’t kill anybody else.” And by the time we had unraveled it, we found that this was a company worth hundreds of millions of dollars that was running nonprofits and for-profits and running them intertwined like a spider web.

Schenk: Wow. Mark, we’ve gone from investigation all the way to verdict and settlements, things like that. What is your experience with those individuals who have signed arbitration agreements that force alternatives to the litigation process, having to go through an arbitrator, having to go through the arbitration process. Do you have an opinion on that?

Mark: Well my opinion is the industry pulled the wool over the court’s eyes on this. They keep saying that it’s cheaper to do an arbitration and more efficient, but most of the time, you find it’s way more expensive because let’s say they have three jobs on the arbitration panel, and each one is $500 an hour, and if you split it between the two sides, that’s $750 an hour for every little fight that there is. And then you have the trial itself, which they make it sound like it’s a one-day process, but the arbitrations I’ve tried have taken a week to two weeks, so you get $100,000 of arbitration costs where otherwise if it would have been a jury trial, you have your filing fee. So that’s just absurd.

Unfortunately, courts throughout the country have bought into this, and a lot of arbitration agreements are being approved by the courts and enforced by the Supreme. But there are situations where the arbitration agreement isn’t valid or it’s so over-burdensome that it just isn’t fair and the courts will strike it. I’ve tried a number of arbitrations. I’ve had some good results on them. They haven’t been all home runs, but the problem is they’ve been serious, but the cost is phenomenal.

Schenk: Do you find – I mean we read statistics on our end on the research that arbitration on a national level tends to favor the facilities. Is that your understanding of have you experienced that?

Mark: Yeah, the data is clear on that.

Schenk: Yeah.

Mark: The data is clear that the awards tend to be lower than the jury verdict and they tend to be skewed. In Minnesota, there was an arbitration company, it was a nationwide company, but our attorney general took them on, and it was one where the defendants win 90 percent of the time, and that 10 percent of the time, if the plaintiff won, that arbitration would be stricken from the future panels. And they entered into a corporate integrity agreement, which put them out of business.

Schenk: Wow. All right, so Mark, I was reading a recent article about you – well it was about nursing home neglect and abuse, but it spent a portion or chunk of it talking about your war stories. And one of those war stories, Mark, was a case that involved the calculation of how much a can of dog food is. Can you tell us about that case and tell us what dog food had to do with the story?

Mark: Well we had a case where a woman lost 12 percent of her body weight in one month and then died.

Schenk: Wow.

Mark: So we brought a lawsuit for wrongful death for dehydration and starvation. And we got into what are called cost reports, which are the financial records that the nursing home has to file with the federal government. And I took the deposition of the chief financial officer of this national chain, and I was surprised to find out I was the first one to ever have taken his testimony. And he came in and he was all spiffed and shiny and he went right to the cost report and said, “Look, we paid $91,434 in food that year she died,” and said, “Look, almost 100,000 on food. How can you criticize us?”

And what I did was when we go into these financial records, we can find out how many patients were in the nursing home per day. It’s called bed days. So if you have 100 beds and it’s full on one day, that’s 100 bed days. So you can figure out how many patients were in the facility over the course of the year. Then what we did was we divided the $91,434 by the number of bed days they had to find out how much money was spent on each patient per day for that year. And what we discovered when we did the math was that they spent $3.75 per day for food. That was for breakfast and $3.75 for breakfast and lunch and  $3.75 for breakfast, lunch and dinner, and $3.75 for breakfast, lunch and dinner and beverages – $3.75.

And we looked at that and we compared that to the cost of Alpo, and that was three and a half cans of Alpo that it would take to buy that. So we analogized the food, the amount of money they spent on food, the amount of money that would be spent on dog food, and that was a powerful metaphor that got that case to a rapid conclusion.

Schenk: And that was on cross-examination. That was actually at trial, not at a mediation or at a depo?

Mark: Yeah. That was a deposition of the chief financial officer.

Smith: Right.

Schenk: Got you.

Mark: For the national chain.

Schenk: Yeah. I mean these guys, I mean that guy’s a snake. I can just imagine in my head what he looks like.

Smith: So they were spending basically under $4 a day per patient for an entirety?

Mark: Per day.

Smith: Good God.

Schenk: What’s what?

Smith: I don’t understand how they got away with it.

Mark: Well no one does the math.

Smith: Yeah.

Mark: There’ve even been cases where I found that they spend more money per prisoner in the state penal institutions than they do on the food in the nursing homes.

Schenk: And these are our most vulnerable population.

Smith: Yeah.

Mark: Yeah. So they could be better off in prisons than in the nursing homes. At least they’ll feed them there.

Schenk: Yeah. Well Mark, that’s a good segue into the concept of oversight. Again, this article that I mentioned a little bit earlier talking about you, talking about nursing home abuse and neglect, it quoted you, and I’ll let you explain it – paraphrasing it, you’re talking about how if the government agencies that are charged with oversight did their jobs, then neither you nor I nor Will would have jobs at all. If they did the thing correctly, the things would get taken care of. Can you talk about that? What’s your understanding of that?

Mark: Sure. Well in my early years, I was a machine guarding lawyers. Tractors have these power takeoffs on the back and they were wide open, they had these spinning tubes, kind of like a differential on a car, and people would walk by and the wind would blow their clothing into this thing and they’d get pulled in, it would rip off both of their arms. And I did two or three of those a year. And a guard would cost about $6 to prevent that injury, and you got to understand some of these combines cost $300,000-$400,000, and they didn’t want to spend $6 on a guard. Well after we sued them for a number of years, they realized it’s a lot cheaper to put a $6 guard on than to fight with us, and they did it and they put us out of business. And that was great. I didn’t need people to get killed or to get their arms ripped off. There are plenty of bad guys to hunt.

And so I’m trying to hold nursing homes accountable, and after 38 years of practice, if they would change their ways or if the government would start enforcing the regulations and putting some teeth into the punishments they give, these nursing homes wouldn’t be dangerous anymore and I’d be out of business, and I think that’d be a great way to end my career.

Schenk: Yeah, we were just talking about a couple episodes back, two or three episodes back about how the CMS final rule phase two, the current administration put a moratorium even on levying fines for the new rules that had been put in place.

Smith: Yeah.

Schenk: So why even have the rules if you’ve taken away the enforcement of it?

Smith: They’re meaningless.

Mark: Right. And that’s just a reflection of the industry’s impact on government. They lobby it like crazy. And the crazy thing about it is the fines aren’t that bad. I mean I had a death case I handled in Oklahoma where this is like the worst facility I’ve ever seen and they were put in immediate jeopardy, which means if they didn’t change their ways, they’d get their license taken away, and this was after fines repeatedly for probably a one-year period, and all those didn’t even hit $60,000. Typically the fines I see, if they levy them are $500 to $1,500. You can pay more for parking tickets than that.

Schenk: Right. I mean that’s doing nothing to cause systematic change. You’re right. Attorneys such as yourself and us to an extent – we have ability to provide such compensatory fines in terms of verdict or settlements that it forces them to put the $6 guard on the machines.

Mark: I’ve had companies that were serial offenders and I sued one three or four times in a two-year window, and I was a mediation with a CFO and he said, “You know Mark? You really piss me off that you’re suing me all the time, but I’ll tell you, I didn’t know we were having the problems we were having in our company. I’m going to change the ways so you can’t sue us anymore.” And he did.

Schenk: That’s a compliment.

Smith: Yeah. There you go.

Mark: It was great. Kudos to him.

Schenk: So Mark, we’ve talked about prosecuting a case of nursing home abuse or neglect all the way through. We talked about arbitration. We talked about basically the philosophical standpoint of government oversight versus the civil justice system. Let’s take it back to the family whose loved one is in a nursing home. What advice can you give that person whose grandmother, grandfather is there and is a resident in a nursing home in order to be on guard against potential things that can happen to them? Do you have any advice?

Mark: Sure do. First of all, pick your nursing home carefully. The government data isn’t 100 percent, but it will at least show you which ones have the most complaints. And just because the government didn’t find neglect, if there are hundreds of complaints, that tells you something.

Then when they get to the nursing home, visit them. Visit them a lot because then there’s someone watching over what’s going on. Do your best to stay in a positive relationship with the staff. Don’t make it so that they hate you and in turn try to stay away from your family member, but make sure when you do have a positive relationship, you also are asking them what’s going on, and get authority to look at the medical records. Just say, “I want to see how these things are going.” And if there are complaints, be vigilant because complaints are usually the tip of the iceberg. And if it’s a bad home, then try to find another place.

Smith: Yeah.

Schenk: Let’s put ourselves in the shoes of somebody who has a loved one that’s already residing in a nursing home and they suspect something. Do you suggest nanny cams? Do you suggest other than visiting often, what else could a person do that’s concerned?

Mark: I’m a huge fan of nanny cams. You’ve got to make sure they’re legal in your state.

Schenk: Right.

Mark: But nanny cams are great because they uncover things that people don’t know. So mini cams are always a good idea.

Schenk: Have you had an opportunity to use footage from a nanny cam yet? I feel like that’s necessarily new technology, but now it’s really ubiquitous.

Mark: I did. One that stands out is there was a situation in assisted living where the resident was complaining that things were being stolen from her. And interestingly enough, the facilities said, “We’re going to put a mini cam in to prove to you this isn’t happening.” And in about three or four months, the video caught the maid just angrily throwing this resident across the floor, just dragging them by the arm on the floor and just frustrated and abusing this resident.

We had another where we had mini cams that the facility didn’t know where the resident or the aides were taunting the resident, pulling her dress up and making comments about her privates and calling her, the resident, a whore and a bitch, and we had that all on mini cam.

Schenk: Good God, man.

Mark: We’ve also had cases where the mini cam hasn’t caught the event, but they caught, the hall mini cams, where we can time who went into the room and when to prove what happened. And kind of a collateral case, this isn’t a nursing home case but a hospital case, but I have an emergency room case where the mini cam tracked what was going on in the hospital room and medical records did not reflect a lot of what was going on there. So these are…

Schenk: Pretty powerful tools for showing actually what happened.

Mark: Powerful stuff.

Schenk: Yeah. Well Mark, we certainly appreciate your time. We know your time is valuable. You’ve got lots of things to do, but we, as fellow nursing home abuse attorneys, really appreciate your time and talking to us about all things nursing home litigation related.

Smith: Your experience with these places, absolutely.

Schenk: But I think you’re great. I actually have your book. We mentioned your book, but I have your 30B6 deposition book. I’ve been putting it into use.

Mark: Well it’s going into its second printing already.

Schenk: It needs to. Fantastic. Well great. Well Mark, thank you so much for being on the show, sir.

Mark: My privilege. Thank you for having me.

Schenk: Man, I’m really glad. Just recognize this that you and I send out invitations for people to be on this show.

Smith: Yeah.

Schenk: Some of them go unresponded to, like people ignore it or whatever. I emailed Mark, who is – what was it from the beginning of the show? He’s one of the best lawyers in America, rated top 100 trial lawyers, I mean he responded in minutes and said, “I’d be honored to be on your show.”

Smith: Yeah. That level of humility is what you get when you’ve been practicing for 38 years.

Schenk: Yeah, I mean there’s a misconception in the legal world and in the public at large that like the best lawyers are snakes and they’re aggressive or whatever.

Smith: That’s not true.

Schenk: The best lawyers, the lawyers that I fear, the lawyers like Mark treat people like gold. They’re genuinely nice people but they can still also destroy you if they want to.

Smith: Yeah. If you’re a nursing home, you’re going to get destroyed.

Schenk: Yeah. Mark is the best dude. That’s fantastic. We’re really glad he came on this show. But that’s actually going to conclude this episode. As always, you can watch each and every episode. They come out every Monday morning. You can see us on the YouTube or you can check us out on the website, NursingHomeAbusePodcast.com. And where can we download the audio to these podcasts?

Smith: iTunes, Stitcher, Spotify – I don’t know…

Schenk: I’m sure there are others out there. I just don’t know what they are…

Smith: Yeah, well everybody has Spotify. We’re not on Pandora.

Schenk: Yet. But anyways, maybe one day. But at any rate, we appreciate you checking us out this week and we will 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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