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This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.
Schenk: Hello out there and welcome to episode 68 of the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: I got you before you took your sip of coffee.
Smith: I did that intentionally just to mess with you.
Schenk: Keep me on my toes.
Smith: Yeah, to keep you on your toes.
Schenk: Well we are with it and together this episode. We are also trial lawyers focusing in the areas of nursing home abuse and neglect in the state of Georgia and your co-hosts.
As this goes to air, it is May, May 14th. May 14th, 2018. Give a big shout-out to my sister, KB. It’s her birthday.
Smith: Karen Brown.
Schenk: Karen Brown. KB. Ole KB. May 14. May showers bring May flowers? No.
Smith: April showers bring May flowers.
Schenk: April showers bring May flowers.
Smith: Well there’s going to be a lot of flowers this year because it has literally rained all of January, all of February, all of March, all of April. It’s rained the entire four months so far so let’s hope something happens.
Schenk: Okay, so I just made the word association, the Mayflower, the boat that the Pilgrims came on, like May flowers.
Smith: Yeah, I think that…
Schenk: Or is that like somebody’s name?
Smith: No, I think that May flower is like a new beginning, May flowers.
Schenk: Yeah. Did you know until I was in my mid-20s, I thought that the word approximately meant exactly? Isn’t that funny when you learn certain words, unless you’re corrected, you learned it the wrong way, how are you ever going to know?
Smith: I’m having trouble wrapping my head around how you could have made it that far.
Schenk: That’s what I’m saying. I don’t know. I would always say, “Hey, I’ll be there approximately at 6 o’clock,” and nobody was ever like, “No, jerk, you need to be there at 6 o’clock.”
Smith: Yeah, but even – you have to have blinders on to a certain degree going through society and media and day-to-day activities where you ignore…
Schenk: You show me where the definition of approximately is any time someone uses it. Like from context, you couldn’t do it, like, “Hey, be there approximately at 10 o’clock.” “All right, I will.”
Smith: It’s interesting.
Schenk: “I’ll be there approximately on the dot at 6 o’clock.” That’s what I’d always say.
Smith: I mean I’ve got to be honest with you, I’ve done similar stupid things so it’s not – I didn’t understand the concept of hump day adequately until maybe 10 years ago.
Schenk: I don’t understand. What do you mean?
Smith: I didn’t know what hump day was.
Schenk: You didn’t know that Wednesday was hump day? You didn’t know the concept?
Smith: I didn’t know you were going over the hump.
Schenk: I see. I think though the difference – this is why you’re dumber than I am is because what it is is built into the name of it.
Smith: Well you’ve got to understand that humping means different things for mean from being in the military. When you go on a hump, you go on a forced march, so humping is a horrible thing. I just never really put thought into it like, “Oh, we’re over the hump.”
Schenk: So you thought everyone was talking about today is the day of the forced march?
Smith: No, I didn’t think that. I just didn’t put a lot of thought into it. It’s not like that word association – I just didn’t…
Schenk: I think that we can all agree that yours is dumber than mine and that I am far more intelligent than you are. I think that’s what any reasonable listener would be able to discern that.
Smith: Well anyways…
Schenk: Lots of interesting topics aside from the one that just preceded this on today’s episode. Today, we’re just going to take another tour around the country, different nursing home stories that have come across our desks in the previous weeks and months. This first one that I wanted to talk about has several issues that arise out of this one, but this is really close to home. This is actually a case of a nursing home in Georgia, in Woodstock, Georgia.
Smith: Yeah, and colleagues of ours litigated this case.
Smith: It’s been all over social media, all over the news. It’s a big deal down here.
Schenk: So this is three staff members at a Georgia senior care facility have been indicted on charges that their actions not only caused the death of a resident in their care but they also tried to cover up the death. Almost four years to the day that James Dempsey, 89, of Woodstock, Georgia, died, former nurses Wanda Nuckles and Loyce Pickquet Agyeman as well as aide Mable Turman were charged with his 2014 death.
According to police records, in January 2014, Dempsey, a World War II Navy veteran entered the Northeast Atlanta Rehab Center in Brookhaven, Georgia. His family told Brookhaven Police that he had been having liver problems and was undergoing dialysis treatment at the center. Relatives told this particular news outlet that when he expressed concerns about staying at the center overnight, they installed a hidden camera in his room, so the family members installed a hidden camera in Mr. Dempsey’s room.
After Dempsey’s death, the family took the camera home and said they felt shocked when they watched the footage from that day. Video – this is from the district attorney’s office – video surveillance shows the patient suffering in respiratory distress and repeatedly calling out for help. Soon after his distress calls, the victim became unresponsive. The indictment alleges the defendants, which are those three or four nurses and nursing staff, in varying degrees failed to provide timely and necessary medical assistance, ultimately resulting in his death.
The district attorney’s office said the video surveillance was made public after the family filed a civil suit. The civil suit was settled, but the footage prompted a joint investigation between the district attorney’s office and law enforcement.
According to the indictment, Agyeman, that’s the Loyce Pickquet Agyeman, failed to call 911 when Dempsey complained about his heart despite medical instructions in his chart saying that he should be sent to a hospital in the event of chest pain. It also said that Agyeman and Nuckles had started performing two-person cardiopulmonary resuscitation approximately one hour after he had become unresponsive to create the false impression that they were trying to save James Dempsey’s life. In a 2015 sworn deposition, Nuckles said the staff had administered CPR immediately.
Nuckles of Buford, Georgia, is charged with depriving an older person of essential services. Turman of College Park, Georgia, faces charges of neglect to an older person, and Agyeman of Snellville, Georgia, is charged with felony murder and neglect to an elder person. Each woman also faces a charge of concealing the death of another.
Yeah, so what this article is talking about is – we’ll set aside the civil component of this – this article mentions it was settled. However, this is dealing with the fact that these women are charged criminally – criminal charges – for their behavior, which is basically, number one, not just not doing the right thing, but flagrantly disregarding this man who was in observable distress.
Smith: And trying to cover it up.
Schenk: And then trying to cover it up.
Schenk: So they’ve been indicted on all these counts, and it looks like basically they stuck felony murder on account of the ringleader versus the deprivation of an elder person, which is a criminal law in the state of Georgia. Actually, I don’t know offhand the episode number, but we had an episode, two episodes dealing with the criminal code in Georgia dealing with abuse of an elder person. We had Richard Armond, remember? That was in January.
Smith: Yeah, buddy of the podcast and he’s a former assistant district of attorney.
Schenk: Yeah, but we had him on to talk about the criminal statutes that two of these women have been charged with.
Smith: And felony murder is when someone dies in the commission of a felony. So if you’re committing a felony and somebody dies, it’s a very expansive law that’s been attacked a lot of times because you could be committing any felony and somebody dies and you could be charged with felony charge. You could be committing the lowest level theft felony there is and somebody dies and you could be charged with felony murder.
Schenk: So by way of example, the law school exam example is if Will and I go into a back and rob it, armed robbery with guns, and we’re committing a felony, and then the teller, the bank teller, because he’s so frightened has a heart attack and dies, we have now murdered that person, even though we went into the bank not with the intention of murdering the teller. It just so happened. That is the standard example of felony murder. So the felony in this case, at least in regard to Agyeman, Loyce Pickquet Agyeman, is that she was committing the felony of abuse to an oder person as well as the, I guess…
Smith: And let’s talk about what happened here because if you’re not familiar with this, you may think, “Well I can understand suing someone for negligence, but man, this is really – this is really serious.” So in the deposition, the attorney for the plaintiff…
Schenk: The deposition in the civil case.
Smith: In the civil case.
Schenk: So the family sued the nursing home and these nurses in a civil lawsuit, and in that case, there were depositions, meaning the nurses had to sit down at the table with the attorneys and answer questions under oath and it was videotaped.
Smith: Right. And so you see the attorney speaking with one of the nurses, and I think it’s Agyeman, and she’s the head nurse. She’s – I believe – I think she was an RN, so she’s called down there because he’s screaming out and you see her laughing about something. And the rest of the help is laughing and they’re not doing anything. Before you see this video, the lead attorney is speaking to her and saying, “Tell me what happened.” And she goes, “Well I went down there and I started doing chest compressions and I called 911 and I performed life-saving measures and we called a code and we did everything that we could.” And he goes, “Okay, I want you to watch this video and tell me if that’s what you see here.” And it’s this video of them going down there and laughing and not doing chest compressions.
Schenk: Making fun of him, taunting him.
Smith: Making fun of him and not doing anything, and she is caught and she starts backtracking and saying, “Well I didn’t remember and I was just saying what I normally would have done.” And this is something that’s confusing for us. The nursing home knew about the video. They’d known about it for a while. I don’t know if she didn’t know about the video, if they didn’t tell her or what the situation was, but she was blindsided by it, luckily, and I don’t know, it was just very disturbing trying to watch her justify this.
Schenk: Yeah, and maybe we can pull up some of the video here and show some of this video as we’re talking over it, but you can see the man, the poor man is in clear distress and they’re not doing anything. They’re laughing. It’s atrocious, their behavior.
Smith: He’s suffocating to death. He is suffocating to death in a facility that is designed to provide 24/7 medical care. It would be scary enough for something to happen at home, right? But this guy is surrounded by medical help and he’s not getting it because whatever reason, they didn’t think he deserved it. They didn’t care about his life. They were tired of working. I don’t know what their reason it. There’s no justification. But I can tell you one thing. I don’t know if their felony murder charge is going to stick, but they will never be nurses again. They will never be CNAs again. They will never work in healthcare again. And they are certainly going to have some form of criminal record, and I think that this case warrants that for sure.
Schenk: Absolutely. So this article mentions physician orders and they ignored physician orders saying that he should be sent to the hospital in the even of chest pain as opposed to toe pain or sweating or whatever over symptom. If there was chest pain, the physician said, “You’ve got to call the hospital.” Now Will, what is a physician’s order or medical instruction in the context of a nursing home and how do the nurses on the staff know about physician’s orders? Where is it located?
Smith: It’s every – it’s in a chart. I don’t want to keep saying “back in my day,” but when I was a CNA, I can see them distinctly in my head, they were these enormous pink physical medical charts, and they’d have the care plan in there. They’d have all the different orders because the nursing care staff makes decisions on certain aspects of the care plans. They’re not going to both the doctor with every single decision that comes down, but very serious decisions that affect life or death medication, those are going to be decided by the doctor, and the doctor is going to review the care plan, review the medical chart and say, “This is what you do in these situations.”
And every turnover, every time you come onto your shift, you meet with the departing attorney – the departing nurse. So you have a shift meeting – so you meet with that nurse and you go, “All right, Barbara, I’m taking over your shift. Are there any new orders that you need to tell me about?” “No, here are the issues that we’ve been having. Remember these are the orders that we have.” And so these orders are passed on every shift. Every time there are new orders, it’s passed on every shift. So you have care plan meetings where they go over the orders. They are made aware of these orders, just the same way they’re made aware of care plans.
They should know – there’s no excuse that they don’t know. They should know what the order says, what a doctor, the resident’s doctor, wants them to do in any given situation. In a situation like this especially, what do you do if the person starts to have trouble breathing or you think that they’re going to code, which just means they’re going to go into respiratory arrest or cardiac arrest and they’re going to die, of course you’re going to know what the doctor wants you to do. They’re not relying on an RN to make that decision unilaterally.
Schenk: Correct. So it’s like the physician’s order is a law basically and it must be communicated shift to shift.
Schenk: Here’s something from just a philosophical standpoint that I want to talk about with this story and we actually get asked this often by potential clients. In the article, it states that Mr. Dempsey, the resident who passed, had previously expressed concerns about staying at the center, although it does not say what his concerns were, just that he was concerned, and that’s when the family decided to install the hidden camera.
Now I want to say that there’s going to be a level of – as a loved one with a resident who’s concerned about the care that they’re receiving of on one hand, I want to catch someone in the act of doing something. On the other hand, if you believe that something is probable to happen, then don’t worry about videotaping. Get your loved one out of there. If there is a concern that you have as a loved one of a resident in the nursing home that there’s abuse going on and you really think that a life is in danger, then we would recommend you call the ombudsman, call DCH and do the best you can to get that person out of there. Call the police if there’s symptoms of abuse and get that process started.
I feel like in a couple stories in the past couple months, there’s been, “Well we’re going to wait even though we think” – this is the family – “We’re going to wait because even though this is a dangerous situation to try and catch somebody in the act.” Now I’m not saying don’t videotape if you suspect something, but based on the facts of your specific situation, if you think the individual’s in danger, then it might be worth it to go ahead and get them out of there.
Smith: Yeah. I 100 percent agree with you on this, and at the same time, I think that the issue for some people may be the other side of that perspective may be that this is – when they say this is the nursing home that’s most convenient and closest to the family, the other nursing home may be 100 miles away.
Schenk: Right, right, right.
Smith: So if it’s a situation like that, you know, but then again to your point, why aren’t you calling somebody and saying, “We’re suspecting.” Why are you lying in wait? I don’t know.
Schenk: I think that there’s a difference, and it depends on what this family – I’m not throwing any blame on anybody, but I guess it depends on what the concerns are. If it’s like my grandmother is in a skilled nursing facility…
Smith: They’re taking money.
Schenk: And they’re taking money or they leave her alone in her diaper for too long, things that aren’t necessarily immediate physical dangers, then okay, video camera or whatever, but if you suspect your grandfather is being physically beaten and you have real credible reason to believe that, I would advise, okay, video camera, but get him out of there. Get him out of there. I’m not saying that’s what happened in this case at all – no way in any shape or form am I trying to imply that, but from a philosophical standpoint, this story made me think about it.
Smith: Yeah, absolutely.
Schenk: Well let’s set up the camera in there and catch these bastards, right? But if there truly is a danger, I don’t know. It’s a difficult decision to be in for sure.
Schenk: It’s a difficult thing because sometimes, like Will said, you can’t get your loved one out of there.
Smith: And it’s not just that easy to transfer all the time. This also makes me wonder, I wonder how many nursing home residents had cameras in their rooms that I’ve taken care of. This would have been 2000 to 2008, so it’s not like – well no, we had pretty advanced technology.
Schenk: No, you had them. It was just more expensive.
Smith: Yeah, it was just more expensive.
Schenk: Now it’s like you can just go to…
Smith: Surely though there were cameras in some of those rooms. There had to be just given the number of years and the different nursing homes I worked at, somebody had a camera.
Schenk: Somebody was videotaping Will Smith.
Smith: Which I’m fine with.
Smith: I just – I don’t know.
Schenk: But no, it’s gone from you have to put this big Radioshack-sized camera inside a potted plant or a stuffed animal.
Smith: Oh, I’ve got a friend who works for the FBI and was showing me some stuff that they use, and it’s amazing what they have. It’s like it’s a Starbucks coffee can, it’s a can of dip, it’s keyset, it’s a pencil, it’s a – so many different things you can have. I don’t know how we’re going to get more advanced now. There’s going to come a day when I think that might be the solution is…
Schenk: There are cameras in your pupils.
Smith: Notwithstanding privacy concerns that video cameras might be the way of preventing future neglect.
Schenk: Did you ever see “I Spy,” the movie “I Spy?”
Schenk: Owen Wilson and Eddie Murphy?
Schenk: It actually came out at a strange time. It came out between the election of George W. Bush and 9/11.
Smith: I’m familiar with it.
Schenk: At any rate, he’s a spy and he’s mad because there’s this awesome James Bond-type spy that gets the tiny cameras and the pens with the cameras and his is like a handheld from the ‘80s and he’s mad because in the spy world, smaller is better, you know what I’m saying?
Smith: Yeah, yeah.
Schenk: Everything is backwards. But anyways, that’s what that reminded me of, that you were walking around rooms with the big potted plants with the cameras in it. But now…
Smith: Oh yeah, now it’s everywhere.
Schenk: Yeah. So that’s just something to think about. Surveilling your loved ones in a nursing home, I think it’s a good idea even if you don’t suspect anything, just to check out what’s going on.
Smith: Of course, there are still privacy concerns and HIPAA concerns in semi-private rooms, so the law is not very clear on that yet. There are certain places like Illinois that have laws directly addressing the use of cameras in nursing homes, and we’ve done a podcast on that, but here in Georgia, video surveillance is not the same as audio eavesdropping. Audio eavesdropping, as long as one party knows, it’s fine.
Schenk: In Georgia.
Smith: In Georgia.
Schenk: Yeah, both in Georgia.
Smith: But as far as videos are concerned, it becomes a serious issues in semi-private rooms because you might be recording somebody else who lives in that room and they have a right to privacy and HIPAA laws.
Schenk: Yeah. And so this story again, it highlights the fact…
Smith: But if memory serves me correctly and I’m pretty sure that it does on this, this guy had a private room. I’m almost positive it was private because I can see – it was private, yeah, it was a private room. And we’ll throw the video up on here but you can see that it’s private because there’s one bed and they’re not pulling a curtain. It’s private.
Schenk: So again, I’ve read articles from industry publications where the nursing home industry is worried, that the nurses are worried that they’re going to be hauled into criminal court based on their negligent acts, and I say that should not be something that the average CNA should be worried about.
Smith: Oh, not at all.
Schenk: Because there’s a difference between the civil liability with negligence and even abuse in a nursing home setting versus criminal charges for elder abuse, meaning there’s an intention to cause the result that happened. And this is as a case where this is not just civil liability that we’ve messed up, we’ve breached a standard of care. This is literally criminal conduct.
Smith: Oh, this is an extreme case where they were caught lying, they were caught trying to hide it, and they walk into this warm where this guy is coding, and just to explain what code means, because I think we’ve used it a couple of times, you are given a certain code for what happens when you need to be saved, when you need to be resuscitated, so you can be either a full code, which means, “Hey, we need to do everything possible to bring this guy back around,” or you can be a no code, you can be a “Do Not Resuscitate.”
So this guy was going into code. He was a resuscitate. He was a full code, I think he was. Anyways, they’re required to do certain things. And they walk in there and it’s not like they messed up on giving him compressions or they left something out that they were supposed to do or they just didn’t do it right. They intentionally didn’t do it and laughed about him while he was going through this. So that’s just not something that’s going to happen enough times that CNAs and nurses need to be worried about it. I mean if you walk in on somebody dying and you’re laughing about them dying and you’re a healthcare worker…
Schenk: And you wait for an hour to do…
Smith: Yeah, then worry about going to jail because you probably are.
Schenk: Yeah. So I am not worried about some type of nationwide industry backlash in terms of like a bunch of nurses quitting because they fear criminal repercussions.
Smith: My brother’s not worried about it. If somebody likes him watches this, he doesn’t want that person to be a nurse. He wants them to go to jail. So the McKnights of the world, which is the industry publication of nursing home providers, it’s just fear-mongering. The nursing industry is not concerned that they’re going to be facing criminal charges. They’re concerned that they have criminal nurses in their midst and they want them out.
Schenk: We got to have your brother back on.
Smith: Yeah, we do.
Schenk: We should have him on… We should call him up two weeks from now. How about that?
Smith: Yeah, we’ll do that.
Schenk: Yeah, a couple weeks. He talked last time about questions you should ask your CNA if you have a loved one in a nursing home. It was really good. He’s a good seed. He comes from good people.
Schenk: Nice job, Ocalee.
Smith: Yeah. He knows a lot about bedsores. We’ll have him on.
Schenk: He knows a lot about bedsores. You know a lot about snakes, a lot about snakes.
Schenk: Herpetology, that makes sense.
Smith: I wanted to be a herpetologist growing up.
Schenk: Are there herpetologists though?
Smith: Yes, and there was a very famous one named Ross Allen who was my hero growing up because he discovered a couple new species. He wrote extensively about the indigo snake in Florida, which I thought was the greatest snake.
Schenk: Why is the indigo the greatest snake?
Smith: Because it’s extremely docile. It’s a great pet and it’s very big. And I had the closest thing to it, which was a black rat snake, which I used to sleep in the bed with me.
Schenk: Wait, hang on a second. I’m going to back up because you, like I, grew up in the age of no Internet.
Schenk: And you were raised in the mountains where there were no libraries.
Schenk: How would you know about this guy?
Smith: Because that’s not true. There were libraries. There was a school library and there was a town library.
Schenk: How many schools were in your county?
Smith: One. And it had a library. I mean I didn’t grow up in Little House in the Prairie, Rob.
Schenk: You grew up in Little House on the Big Mountain.
Smith: Yeah, my high school was in the same building as my middle school, but it’s still a school and an educational place. It had books.
Schenk: So you learned about this guy in your library?
Smith: Yeah, and also my dad had told me about him.
Schenk: I got you. Okay, okay.
Smith: Because my dad knew a lot about snakes.
Schenk: I guess you had National Geographic magazines.
Smith: Oh yeah, Encyclopedia Britannica.
Schenk: Yeah. Anyways, speaking of snakes, I don’t know. Red on yellow.
Schenk: Kill a fellow.
Smith: Red on black, venom it’ll lack.
Schenk: No, red on black, happy Jack.
Smith: It’s multiple things.
Schenk: Yeah, like red on black, happy Jack, like it’s not poisonous.
Smith: But when you say no, it’s like, “No, there’s no way.” There’s a different way to say that.
Schenk: It rhymes better.
Smith: Red on black, venom it’ll lack.
Schenk: Yeah, red on black, happy Jack.
Smith: Okay. You remind me of my friend who couldn’t believe that somebody – I took her shopping one time to the grocery store – this was in college, and she didn’t understand that there was other lettuce than iceberg lettuce, and she was like, “I don’t know what that is and I’ll never eat it because I’m not used to it,” and I’m like, “This is…”
Schenk: That’s weird because I love all types of lettuce, Will.
Smith: Well I’m just saying that your reaction to… Anyways, speaking of lettuce, lettuce get out of here.
Schenk: Yes. Yes, because there’s nothing Romaine-ing in this episode.
Smith: Oh God.
Schenk: That was off the dome. Anyways, folks, if you enjoyed this, which is hard to believe, you can catch us every Monday morning for new episodes of the Nursing Home Abuse Podcast. You can either watch it on NursingHomeAbusePodcast.com or on our YouTube channel or you can check us out on Stitcher, iTunes, Spotify, PodPounders, Podcast Puppies, wherever you get your podcasts from. And with that, we will see you next time.
Smith: See you next time.
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