Episode 66

What are damages in a nursing home case? What does that mean?

 

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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 66 of the Nursing Home Abuse Podcast. My name is Rob Schenk.

Smith: And I’m Will Smith drinking coffee.

Schenk: Why would you instinctively go for your coffee?

Smith: I thought I had more time.

Schenk: Yeah. Well at any rate, we are competent trial lawyers in the areas of nursing home abuse and neglect in the state of Georgia but not very competent co-hosts of this episode of the podcast. As this podcast goes to air, it is April 30th. We are – what is it, January, February, March, April – yeah, so tomorrow is May Day, which is the People’s Day, I guess it’s an International Worker’s Day. We celebrate that in September.

Smith: And you always watch a documentary.

Schenk: A documentary, yeah. So last year I watched a documentary about the – I want to say pantsuit factory fire, but it’s not the pantsuit factory fire. That’s like Hillary Clinton, like what was it? The Triangle? I can’t believe it. My credentials, my credentials are going down the tubes. The Shirtwaist Factory Fire in New York.

Smith: Okay. I don’t know.

Schenk: It led to a lot of fire safety. But what’s more important this week, on Friday is May the 4th.

Smith: Yes. How did that holiday start?

Schenk: Because it sounds like May the 4th be with you.

Smith: No, I understand why it caught on.

Schenk: Right.

Smith: But I’d like to know who first like…

Schenk: I remember my brother used to do that before the Internet.

Smith: I think that everybody has a family member that used to do that. You know what I mean? It’s not just isolated. I think it goes viral from various different points across the country.

Schenk: Like who was the first person to say, “Hey man, 4/20,” that kind of thing?

Smith: Yeah. So I always – 4/20 is April 20th, and my dad’s birthday is April 19th, and Hitler is 20. Hitler is 4/20, right?

Schenk: I think Hitler is 4/21.

Smith: Okay, because I just know Hitler, 4/20, and my dad’s birthday, not that I’m comparing my dad to Hitler in any way other than he was a History Channel buff, but I can never remember who’s who.

Schenk: You know what? Jean, we need to look that up.

Smith: Yeah, Jean, figure that out for us.

Schenk: At any rate, one more thing, really quickly, on the 6th is National Nurses Day celebrating all the nurses out there.

Smith: Yay.

Schenk: Thank you, nurses, like your brother, who was on the episode last week.

Smith: My brother, my father, lots of my friends, yeah.

Schenk: All of them doing the Lord’s work out there.

Smith: Yeah, DTLW. Doing the Lord’s work.

Schenk: DT… Okay, I get you. I used to have a high school teacher who used to do that but for things that there’s no way I could have known that, like “Go out into the hall with a hall pass to use the bathroom,” would shorten that with the acronym. Like man, just tell me. There’s no way that could be any faster.

Smith: Yeah.

Schenk: Anyways, on today’s podcast, we’re just going to highlight a couple fo stories that came across our desk in the past several weeks to a couple months just highlighting issues with nursing and general care at skilled nursing facilities, long term care facilities, nursing homes that we wanted to make you, the public, aware of, but also just talk about various aspects of nursing home care.

The first story comes to us from Lebanon, New Hampshire. There’s also a Lebanon, Tennessee.

Smith: I was going to say, I think there are multiple Lebanons.

Schenk: A lot of Lebanons.

Smith: A lot of Lebanons.

Schenk: We say Lebanon. Lebanon – like Leh-bah-nin.

Smith: Oh, of course you would. Of course you would because in Georgia, we say Ponce de LEE-on instead of Ponce de LAY-ohn.

Schenk: That’s how you know you’re from Atlanta.

Smith: Or down in Augusta, we would say Mar-tin-ez. We would say Mar-tin-ez because you wouldn’t say Mar-TEE-nez.

Schenk: Yeah, what are you? Lebanon, New Hampshire. Let’s see – Karen McGregor, a licensed nursing assistant at Genesis Healthcare has been charged with assaulting an 88-year-old patient. The report states that McGregor poured water over the head and face of a female patient and then placed clothing over the patient’s head and neck to impede her breathing, so almost the equivalent of waterboarding somebody.

Police found no serious injuries as a result of the alleged assault but did find some bruising. After learning of the alleged assault, officials at the nursing home promptly reported it to police. It says the police chief. Dottie Ruderman, the Lebanon nursing home’s executive director, declined to comment with regard to this story and instead directed questions to Genesis corporate spokesperson Jeanne Moore.

“Lebanon Center has a zero-tolerance policy with regard to abuse. When we receive a report of alleged abuse from any source, be it patient, family or another employee, we report the allegations to the appropriate authorities and begin an internal investigation. Lebanon Center does not hesitate to terminate any employee when we believe after internal investigation that the employee engaged in inappropriate behavior towards our residents.”

That individual nursing assistant is no longer an employee of that facility. So let’s see – McGregor, the nursing assistant, was arrested, charged and released on $7,500 bail. That facility itself has a three-star rating on Centers for Medicare and Medicaid Services Nursing Home Compare website. So this isn’t a matter of, “I’m just overworked, I’m going in six different places at once, I just want to get job done.”

Smith: No, it’s sadistic.

Schenk: It’s very sadistic and malicious and there’s no excuse for it regardless.

Smith: Yeah.

Schenk: But one of the things is like this – is that you have – the concept of damages that we have to deal with as lawyers is generally when you have a person that’s been injured in a nursing home, the injury is what we would call damages. So what are the injuries in any particular case? So in one case, we might have the injury as actual death. Another injury might be a stay in ICU for six weeks because of an infection.

Smith: Just the most common one for us – let’s say you get a bedsore and that leads to an infection and that kills somebody.

Schenk: Right.

Smith: So that pain and suffering or the death itself is what we call the damages.

Schenk: That’s the damages.

Smith: Yeah.

Schenk: In this instance, the damages are not necessarily as clear-cut as a broken bone or a bedsore or infection that leads to death. You have bruises and you have the literal pain and suffering that goes along with being waterboarded.

Smith: And what people need to understand is there are various liabilities here. So somebody could say, because our clients ask us all the time, what about punitive damages? Well maybe you might be able to get punitive damages from an intentional tort against the person who did this, so the actual nurse or healthcare worker who did this, you might be able to get that, but they don’t have any money. They don’t have insurance.

Schenk: Right. When he says “they,” he means the employee.

Smith: The employee. So you know, when you’re looking to be compensated for damages, you’re looking to hold Genesis Healthcare, which has over 500 nursing homes, responsible because they have insurance and the insurance can compensate you. I don’t believe that they would be responsible for this type of intentional tort unless they had a history of…

Schenk: Disregarding this particular employee.

Smith: Yeah. But there’s no indication that they did. She just snapped.

Schenk: But I think that the point that I want to make is that oftentimes in these types of cases, not necessarily where there’s an intentional act of maliciousness where the person’s punching somebody or waterboarding somebody or choking somebody, but where there’s general negligence or abuse that’s not – the person’s not intending the result or not intending the injury that results is when there’s a breach in the standard of care, the nursing assistant or the nurse doesn’t do what they’re supposed to do, but it results in no bruising, no damages, nothing that you have to go to the hospital for.

Smith: I just fielded a case like this where they committed clear negligence. They allowed the woman to roll out of bed. She’s immobile. She’s non-ambulatory. She’s supposed to have bed rails up. They forgot to put the bed rail up. They were giving her a bed bath and they rolled her out of bed, and by sheer fortuitousness, she didn’t hurt herself in any way, no broken bones, no bruising, anything like that, and the family was upset that this happened, but I had to explain to them exactly what you’re saying, which is yeah, they committed negligence, but it’s a three-legged stool. There’s negligence, but now it needs to cause damages. If there’s no causation, if there are no damages…

Schenk: Then it makes a lawsuit difficult.

Smith: Yeah.

Schenk: Now that doesn’t mean there aren’t other things that can be done to get those damages, but like I said, so in the cases like this where you end up with no physical injuries really or no permanency in injuries, the nursing home says, “Well you know, something bad happened in terms of breach of standard of care. The nursing assistant shouldn’t have done this,” but what’s the actual end result harm is nothing. We get that type of defense put against us in many cases. In this case, this isn’t just a close call, like Will mentioned about the woman rolling over and nothing happened. That’s a close call. This – the damages in this case is having to suffer through the actual crime, basically, as it occurred, even though it didn’t result in permanent or even temporary physical pain.

Smith: Yeah.

Schenk: It’s mostly the physicality of the actual waterboarding and the emotional trauma that this individual probably went through. But again, that’s probably what this nursing home is going to say about the case. They’re going to say, “Well bring on the lawsuit, but this person is just like they were yesterday.”

Smith: “And we have fired that individual.”

Schenk: Yeah.

Smith: “We’ve taken prompt remedial action. We’ve done everything we can. We cannot be responsible for every action of one of our employees,” which I understand and agree with. Like you would never have people owning businesses if that were the case.

Schenk: Yeah. So that’s just an important concept from the story that I wanted to kind of – we touched on this before, probably maybe every six or seven episodes about how – now we’re setting aside calling the Department of Community Health, we’re setting aside the ombudsmen.

Smith: Oh, there are things that need to be done.

Schenk: Yeah. But in terms of “I want to hire a lawyer,” there are going to be certain things that a lawyer needs that need to be present to make a viable lawsuit, and it’s that three-legged stool. There has to be some type of breach, meaning of the standard of care, meaning the nursing home do or not do something they should have done.

Smith: Negligence.

Schenk: Negligence that results…

Smith: Causation.

Schenk: …in injury, damages.

Smith: Right.

Schenk: That three-legged stool. Again, what I like to say is if there’s been a breach that’s caused no damages, then you have what’s called a close call, that, “Oh my goodness, I’m glad this happened because it did not result in an injury.” And in those instances, I think that the tool that you as a loved one of a resident that has suffered a close call is to call the ombudsman. The next step is to call CMS.

Smith: We are not the only remedy. That’s what I tell people all the time is that you have multiple different remedies. For us to be the remedy, those three things must be there.

Schenk: Yeah.

Smith: And people get frustrated with that because they’ll say, “Am I just supposed to let this happen? You can’t help me?” And they get frustrated here in Georgia because, and this is something I want to get off on a tangent here, but this is something I want to bring up, in Georgia, we’re having an issue with the Department of Community Health. This just came out on FOX5 News this week that we don’t have a good system for registering these complaints, that the news investigative team called DCH, called the hotline, tried to fill out the online forms and found out that they’re non-responsive. It’s frustrating because the other legal remedies don’t work, but at the end of the day, there’s not much that we can do about that. It’s just a frustrating part of living in this society, I guess.

Schenk: That’s right. And so another thing I wanted to highlight from this particular story is that this particular nursing home, in my opinion, setting aside – we’re going to assume, we’re going to give the nursing home the benefit of doubt that they did not have actual or constructive knowledge that this individual had a propensity to be violent. We’re going to assume that they did everything they were supposed to do in terms of background checks in the hiring process. They did the right thing both morally and I would say legally by immediately calling the police of their own accord.

Smith: Yeah.

Schenk: They alerted the police and they participated in the investigation. So tip of the hat in terms of that. Now of course if it comes out that they knew that this person was dangerous, then still though, I think we should give a tip of the hat to them.

Smith: And this is a nursing home that it’s one of the larger – Genesis is one of the largest nursing homes in the nation, and what is constantly happening, because you’ll hear more and more cases against the same nursing homes, Pruitt Health, Genesis, and the reason for that is because a lot of these smaller nursing home companies are going out of business and they’re being absorbed by the larger ones, and when you have 500 – and I am not taking up for Genesis because I still think that there’s a corporate climate that lends itself towards negligence in a lot of these places, but when you have 500 nursing homes, one of them is going to have incidents.

Schenk: Yeah.

Smith: One of them is going to have negligence occur.

Schenk: Without a doubt. Without a doubt.

Smith: Of course, at the end of the day, I think that could all be resolved by somebody at the upper level going, “Hey, yeah, we’re a corporation, but we’re a corporation that owes a duty to its clients more so than we do to the shareholders,” which is probably never going to happen.

Schenk: Yeah. And what’s the status of Genesis right now? They’re going bankrupt? Or they’re restructuring?

Smith: No, there was talk. There were talks – the last that I heard was there were talks about restructuring. I think with a lot of these big healthcare providers that there are always talks of restructuring, but I know there were some heated talks because we have a couple of cases against them now.

Schenk: Yeah, couple of potential claims.

Smith: Yeah, and here’s something I totally forgot about while we were talking about this last case. Before we move onto the last one, these are both in Lebanon.

Schenk: Leh-ba-nin.

Smith: Leh-ba-non.

Schenk: You’re referring to the next case we’re talking about.

Smith: Yes, which is in Lebanon, Pennsylvania.

Schenk: Lebanon, Pennsylvania.

Smith: Yeah. Did you do this intentionally?

Schenk: We have staff that put these stories together for us. Maybe there’s some type of news alert for Lebanon. I feel this isn’t the first time we’ve talked about Lebanon. There are a lot of Lebanons.

Smith: Lebanon, yeah.

Schenk: Lebanon. Okay. Lebanon was – and I have to say because of this because I feel like I’ve already talked about this, but Lebanon was our rival high school in Mt. Juliet. I know we’ve mentioned this before.

Smith: Then I expect you to say Al-BAN-ee from now on.

Schenk: Oh, instead of AL-bah-nee?

Smith: Yeah.

Schenk: Leh-ba-nin. Leh-ba-non.

Smith: Le-ba-non is how Manel pronounces it.

Schenk: Who’s Manel?

Smith: Manel Shahimi, one of our very close friends and fellow attorneys who is from the Lebanon.

Schenk: The country.

Smith: The country.

Schenk: Yes. All right.

Smith: Anyways…

Schenk: Moving on to Lebanon, Pennsylvania. An unnamed nursing assistant of the Cedar Haven Nursing Home in Lebanon, Pennsylvania was fired after an investigation revealed she taunted and video-recorded a resident with dementia. Two eyewitnesses reported hearing the employee repeatedly tell the resident that her mother was dead. Then the employee used her cell phone to take a video of the agitated resident. The incident occurred two months before the nurses strike began at Cedar Haven, which is still going on. And as of the time we’re filming this, I think that that strike actually, I don’t know if it’s dissolved, but I think they either hired scabs or replaced a lot of the staff because I think that nursing home is still open, but some of the people are still on strike.

Smith: Yeah.

Schenk: Okay, but at any rate, let’s see – two eyewitnesses reported that the employee also told the resident, yeah, that the mother was dead and commented about how funny the resident’s face was when she was told that. The victim of the taunting had a diagnosis of dementia and depression. The nurse’s aide at first denied making the video but admitted after learning of the two witnesses that would corroborate the family’s story.

Smith: This is a good story to go back to your point about damages too.

Schenk: Yeah.

Smith: What are the damages in a case like this?

Schenk: This is emotional abuse. And so in the law, there’s a concept called the eggshell plaintiff rule, and what that means is you have to take your plaintiff as you get him. So it’s most often we talk about it in the context of a motor vehicle wreck. So if you have an individual that their bones easily break. Let’s say your right arm has been broken before and you rear end that individual and they break that arm. If you would have rear-ended a normal healthy person, it wouldn’t have broken their arm. You’re still responsible for that person’s broken arm because you have to take the plaintiff that you’re given.

Smith: That you’re given. So if you rear-end Mr. Glass versus Superman, that’s just what happens.

Schenk: That’s just what happens to you. You have to take them as you get. So in this instance, the consequences of agitating an individual with dementia or depression is more dire and more grave than if you were agitating a 30-year-old person who’s in perfect mental health. So this individual could have gotten up and maybe assaulted someone else. They could have run and committed elopement because they were scared. There’s a lot of possible consequences of this behavior that this nursing aide probably never thought of because she was taunting a person with dementia and depression and she would have been responsible for it because that is a reasonable consequence of taunting somebody who has those conditions. So emotional abuse like this is nursing home abuse. It’s just the same as if the individual had waterboarded this lady or the nurse’s aide had broke her arm on purpose. Emotional abuse has its own particular damages that can be assessed. It’s sad.

Smith: They’re still difficult though. It isn’t a suggestion that there are no damages here, but the further that you get away from physical damages like death or a physical injury, they become difficult, especially in Georgia. Georgia is not a fan of emotional damages. They’re hard to prove. Causation in this case is going to be a fight. I understand what the arguments are for causation, but I can also see the arguments against it. These are hard, harder damage arguments to make.

Schenk: So one of the things that I wanted to talk about with this particular article is that we had discussed, I think a few months ago, about new CMS regulations with regard to privacy rights of the resident, and I think this highlights an important component of that is that when your loved one is a resident of a nursing home, they have a right to privacy, that a nursing aide can’t just rip out their cell phone and begin recording them. That’s something that’s against the law. It’s against CMS regulations and this highlights – this is why. And sometimes, even if it’s benign, these people, they can’t consent to have their picture taken.

Smith: Oh absolutely. I actually fielded another case three or four years ago where the woman’s mother passed away and it was discovered that a CNA had videotaped her the day before doing something somewhat innocuous, and the nursing home was trying to get the woman to sign some sort of agreement that says, “We agree to delete this video and settle this case and we apologize for this matter.” And I guess the point that I made to her – they eventually did that and self-reported themselves to DCH, but the point that I was making to the nursing home at the time, “Look, it doesn’t matter if they weren’t doing anything wrong. It doesn’t matter if the videotape was just her interacting with other residents or something like that. This is their home. They have a right to privacy there.” I don’t believe that they give that up the same way they would if they were in the streets, and one of the resident’s rights is the right to privacy and the right to dignity.

Schenk: Yeah, we should an episode about HIPAA violations with regard to videos and photographs.

Smith: Yeah, and it could be something that we have my brother Clay on. He’s a nurse.

Schenk: We had him on last week.

Smith: Because when I was a CNA, I don’t think that you could take videos with cell phones, and I just don’t remember that ever being a problem. As a matter of fact, I’m positive. You couldn’t even send pictures on cell phones. You couldn’t take pictures. You couldn’t send pictures.

Schenk: You could only play Snake.

Smith: Yeah, I think you could play Snake. It was hard to send text messages, but I don’t remember that being an issue, but it’s a huge issue now because people are always SnapChat-ing, they’re always Instagram-ing, putting stuff on social media. It’s becoming an issue.

Schenk: Yeah, so it’s something to be aware of when you have a loved one in a nursing home. Just be like, “Hey, do you have any policies or procedures that are maybe more strict that CMS regulations with regard to what your nursing staff can do in terms of videotaping and taking photographs while in the facility?”

Smith: And that’s a good point that you make too is the whole strictness further concept is that when a governing body, it could be the federal government and the United States Constitution, it could be a regulatory body like CMS, they set the floor. So in other words, a nursing home has to at least meet that threshold. They have to at least meet that standard. It doesn’t mean they can’t make an even stricter policy. They can’t make a less strict one. But that would be something that you should ask – “What are your policies? Do your policies reflect just the bare minimum that CMS sets out? Or do you have stricter policies?”

Schenk: So in the last few minutes that we have, I want to talk about this next case coming out of Bend, Oregon. The family of a 95-year-old, Wilmetta June Cornell, who was struck by a laundry cart, is suing operators of Aspen Ridge Retirement Community for $2.3 million. The suit claims that Aspen Ridge was negligent in being aware of Ms. Cornell, who was using her walker to make her way down the hallway when she was struck from behind by an employee. The employee has not been named and the facility suppressed the suit, saying that the incident was an accident. Cornell was 95 and had lived in Aspen Ridge for just over four years at the time of her fall.

On September 10th, she was using her walker to make her way down the hallway of the facility when she was struck by a laundry cart pushed by an employee. She fell on her left side, reported pain in her left hip and leg. They helped her to her place, but after about three hours, she was in extreme pain and unable to get out of the chair. Ambulance took her to the hospital. Two days later, she underwent surgery and then after the surgery, she was unresponsive and then died a few hours later.

The real issue that I wanted to talk about in this case – actually let me, before we do this, let me tell you this. The Aspen Ridge Retirement Community executive director issued a written statement that he was  – Bryan Carnahan said that he was surprised and disappointed to learn of the lawsuit, not the death, to learn of the lawsuit – “Sometimes accidents and falls happen despite the diligent efforts of caring and compassionate staff members.”

Okay, the issue they wanted to bring up in the last couple of minutes is the concept of what an accident is. Okay. At least in Georgia and particularly the South, we’re – at least plaintiffs lawyers are trying to move to just have the word “accident” eliminated from court proceedings, because there’s a – I don’t want to say consensus, but there’s a portion of society that believes that the word “accident” means something that could not have been avoided.

Smith: Yeah, there’s a connotation to it of that, yeah, absolutely.

Schenk: Yeah. And I think that’s very important. Every act should be judged in accordance to what a reasonable person could have done to prevent that injury, that action to have taken place. So saying that something was an accident is a way for the defense, particularly in this case, to say, “There’s nothing reasonable we could have done. We can be unreasonable and say we can have no laundry carts or we can say we have to confine everybody to their rooms. That would be unreasonable or the injury would not have resulted,” but that just struck me in that article, “Well this is just a freak accident.” We hear that…

Smith: An unfortunate accident.

Schenk: An unfortunate accident.

Smith: We hear it all the time.

Schenk: All the time. And it’s like, no, this is not. No. This is a negligent action because a reasonable person would not have been pushing a laundry with that speed carrying that much weight without looking where they were going.

Smith: Yeah.

Schenk: It was not unfortunate.

Smith: Yeah. And I just looked up the definition too just out of curiosity and it’s – the very first part of the definition is an unfortunate incident. That’s not the case here.

Schenk: It is a connotation that there is no fault.

Smith: Yeah.

Schenk: There’s no fault. And that’s not true in many of these cases.

Smith: Yeah.

Schenk: It’s either negligent behavior or it’s not negligent behavior.

Smith: Yeah.

Schenk: But at any rate, I don’t know. That just struck me. I hate that. Like that’s bad PR for this nursing home to say, “We are disappointed that a lawsuit was filed against us.”

Smith: Yeah, and you know I can understand that at a very basic level, the woman pushing, the employee pushing the laundry cart accident hit her.

Schenk: Meaning without the intent.

Smith: Without the intent. The problem is that nursing home did not have procedures in place or didn’t have proper training in place to ensure that that type of accident didn’t happen. So I wouldn’t be suing the lady who’s pushing the laundry cart. I would be suing the nursing home because you didn’t make sure that this didn’t happen. It’s not unreasonable for this nursing home to conceive that there are going to be people on walkers walking around the halls and people pushing laundry carts at the same time. It’s your responsibility as a nursing home provider to think of this scenario, which I’m sure happens on a daily basis to go, “All right, guys, get the laundry department in here. We want to make sure you understand that this is what you do when you’re pushing something and you may not be able to see what’s in front of you.” Right? They didn’t do that. So that’s negligence. That’s not an accident.

Schenk: What is not an accident is that we have reached the conclusion of this episode of the Nursing Home Abuse Podcast, episode 66 that is. You have two opportunities to consume each and every episode of the Nursing Home Abuse Podcast. You can either watch us at our website, which is NursingHomeAbusePodcast.com, or check out our YouTube channel, or you can download the audio or MP3 on Stitcher, iTunes, Spotify, PodPuppy, PodcastHounds, wherever you get your podcasts from. We’re very happy and elated that you have made it this far in the broadcast. And with that, 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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