Episode 69

Resident on resident violence- A case study

 

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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 69 of the Nursing Home Abuse Podcast, my name is Rob Schenk.

Smith: And I’m Will Smith

Schenk: And we are trial lawyers focusing in the areas of nursing home abuse and

neglect in the state of Georgia and we are your co-hosts for this particular episode. As this episode goes to air, it is May 21st, we are headlong into Spring now. It’s feeling good outside for the most part. Normally, it would be the time that I would say it’s National Donut Day or it’s National Talk like a Pirate Day or whatever the holiday is coming up or whatever birthdays. In my research, I haven’t turned up anything.

Smith: I don’t know anything either. I don’t know about any of those days in the first

place so there is no reason for you to pause and wait for me to say, well actually, you know, it’s National May Fly Day.

Schenk: Yeah.

Smith: Or it’s National Bean Pole Day

Schenk: I cued you up. I cued you up for no reason at all.

Smith: No reason at all.

Schenk: I mean you-– yeah.

Smith: I don’t know when National Donut Day is.

Schenk: Yeah. There’s a really good website that we use to turn up those particularly, like

they’re not holidays, but they’re like special days, and you know there’s all kinds of days. We could make up our own day.

Smith: Yeah.

Schenk: You know? Like the Will and Rob Appreciation Day or something like that.

Smith: We could.

Schenk: We should do that, but just in our office. Like, hey guys– Is there a

Bosses Day?

Smith: There is a Bosses Day.

Schenk: I mean that obviously yes, every day is Bosses Day.

Smith: There’s a day for everything. There’s an Employee Day,

there’s a Boss Day.

Schenk: There’s an Attorney Day.

Smith: An Attorney Day.

Schenk: Yeah, Attorney Appreciation Day.

Smith: There’s a Judge Day. There’s a day where– I think

there’s one for moms.

Schenk: I don’t know.

Smith: There’s a Dad Day–  Anyway.

Schenk: I haven’t heard of those.

Smith: Okay

Schenk: So…

Smith: If that’s what you have to say about those kinds of days.

Schenk: Yeah. Yeah. Yeah. No.

Smith: It doesn’t matter anyway. Is that, right?

Schenk: That’s epic. Faith No More? Is that what you’re doing right now?

Smith: No, I’m just rhyming everything with day. Alright, anyway.

Schenk: Oh, I thought you were singing a song.

Anyway, a lot of interesting topics for this episode of the podcast talking to you about stories from around the country regarding nursing home care. We’re going to direct your attention, dear audience, to Fresno, California. Fresno is in what part of California, Will?

Smith: I have no idea.

Schenk: Why would you be mad about that? I’m just asking you…

Smith: Why do you cue me up for these random things? It’s not like you’re asking me

something like…

Schenk: It’s a pop quiz.

Smith: Yeah, don’t.

Schenk: If I had to guess I would say that Fresno is–

Smith: South…South.

Schenk: Oh, I was going to say Northern California.

Smith: Fresno?

Schenk: Is Fresno where they grow wine? Well they don’t grow wine, you grow grapes

for wine.

Smith: Yeah.

Schenk: Fresno? I wish we had an Alexa here. Like, Alexa–

Smith: Well, you know, we do have these devices.

Schenk: Alexa, Where is Fresno, California?

Smith: …We do have devices that have literally all…

Schenk: And I will say this, if I were to play this episode at my apartment and because I

said Alexa it’s going to actually do the –

Smith: Oh, Yeah. Yeah. Yeah.

Schenk: Is it Northern California? Hit the map button.

Smith: I don’t know what it’s going to do when I press the map button.

Schenk: Actually, Gene, can I get a graphic of the state of California on the screen so that

we can see where Fresno is?

Smith: See, this is the problem.  When I hit the map button it wants to give me

directions.

Schenk: That’s fine. No, just span, pull out.

Smith: Oh, It’s Southern California, it’s below San Francisco. Look at that.

It’s above…

Schenk: Man, that is in the same latitude as San Jose, which is Northern California.

That’s like 500 miles from Los Angeles. It’s Northern California so that’s fine. Anyway. Alright. We ready?

Smith: Yep, go ahead.

Schenk: Alright, here we go. Are you going to try to confirm that it’s not Northern California? Is that what you’re doing right now?

Smith: Yes.

Schenk: Okay. Alright. A former resident of Bella Vista Memory Care Community, in

Northwest Fresno, contends in a civil lawsuit that he had to have his right eye removed after staff at the nursing home allowed him to be attacked twice by his roommate. Josh Dansby Jr. is seeking unspecified damages in Fresno County Superior Court for elder abuse, negligent hiring and supervision, and assault and battery.

The attorney for the Senior–Sierra Meadows Senior Living– LLC, which runs the nursing home. Sorry about that. That’s the corporate company that operates the nursing home said that the allegations are false and “provides nothing short of stellar care and is a local leader in the industry.” And further went on to say, “This is simply another shake down type of lawsuit that has plagued many other local businesses in the Valley.” He criticized the, it looks like the…

Smith: He posted a lot of– He posted a lot on social media about the lawsuit.

Schenk: So, he’s criticizing the attorney for posting about this lawsuit. So, at any rate Dansby suffers from Alzheimer’s and Dementia and has a history of strokes and heart attacks. He also has had corneal transplants in both eyes and a pace maker. Around February of 2017, he became a resident of the nursing home. Garcia says in the lawsuit that Bella Vista focused on its bottom line of the expense of the care it promised to provide Dansby. In doing so, Bella Vista placed Dansby with a roommate who had a known history of aggressive propensities and physical assault.

In September, the roommate attacked Dansby. After this assault, Dansby’s family complained to the Bella Vista staff, asking that Dansby be protected from the roommate. But, Bella Vista staff falsely told the family that there was no alternative way to protect Dansby. Dansby remained with his roommate and was attacked again in December. After the attack, Bella Vista staff did not provide Dansby with care for days. He was later taken to St. Agnes Medical Center’s Emergency Room where he was determined to have suffered a corneal detachment. Doctors then had to remove his right eye.

So, the first thing that I think should be addressed is this is not a case in which a staff member has physically assaulted a resident. This is a resident roommate attacking another resident, so what is the liability in instances where you have resident on resident violence? I know we have touched on this topic several times on this podcast.

Smith: Sure

Schenk: But, I think it bears repeating that in a case–and I would say, we don’t know all

the facts but just based on these facts, if they are not refuted, the

nursing home would be liable because the nursing home was liable for the reasonable, foreseeable acts of violence committed by other residents.

Smith: Yeah. It’s not the first time that he has done it. So, they know that he has a

proclivity to do it.

Schenk: So, in this case I think that, something it would be important to know

is, are there any vacancies? Could they not have moved this person? Could they not have put him in his own–the violent person–Could they not have put him in his own room? Or could they not have moved Mr. Dansby out of this room? Two attacks is too many, one attack is, that’s what you get, that’s your constructive knowledge in terms of his nursing.

Smith: Sure. Yeah.

Schenk: So, after the second time get him out of there.

Smith: Yeah.

Schenk: Otherwise, in my opinion, your liable for whatever attacks come after that.

Smith: I’ll agree with that. I’ll tell you one thing I don’t like about this article–

well this issue and I kind of agree with the nursing home about it is– I don’t like the use of extra-judicial statements. This is not the same as the case that we had in Georgia with the…

Schenk: Alright, I am sorry to interrupt you. What is an extra-judicial statement?

Smith: It’s when you make statements outside of the litigation process. Let’s say that you’re in litigation, you’re in a suit. You are either the plaintiff, or defendant, or you’re the prosecution, or you’re the defense and you’re making statements outside of court to the media to… usually to the media, but to people who are not within the litigation process.  So, you’re posting on social media, that’s improper. You’re talking to news media, that’s improper. This is not the same as the case we had in Georgia where–and we have talked about this, it must have been…

Schenk: Geez…

Smith: …thirty or forty podcasts ago. Where there was a nursing home in Toccoa and this firm outside of the state of Georgia was targeting that nursing home.

Schenk: In advertisements.

Smith: In advertisements, by talking about the deficiencies that CMS had found. That is a different matter. In this matter, I don’t know what he was posting, but this attorney was making those extra-judicial, outside of the court, statements about this case and I don’t like things like that. They have to be done very carefully. They have to follow certain bar rules and in cases where there might be a class action, you have to get signed off by a court. You see those commercials where it goes, “you or a loved one have mesothelioma” or well in a case like asbestos, asbestos has already–there’s been a fund set aside for people. But in all those mass torts there is a certified class so they’re allowed, in limited circumstances, to make those statements. In this one, I kind of agree with the nursing home, I don’t really like the attorney doing this. At the same time, they need to be sued because they knew, or should have known, that this is a reasonable outcome.

But, yeah, I don’t like when attorneys make this kind of–because why are you

doing that?

Schenk: I’ll tell you what extra-judicial comments that I do like is when, not in this case because in this case it’s the lawyer is saying there’s a shakedown, but often times you’ll get the Nursing Home Administrator, or somebody representing the corporate entity that owns and operates the nursing home, saying things like that. Where this is just a shakedown, that this is an ambulance chaser that’s going after this, because that’s going to go right up into closing arguments. It’s going to get blown up. His picture going to get put up underneath it or he’s going to be an ass about it in his deposition.

Smith: Yeah.

Schenk: But, using the term shakedown type of lawsuit. In, and we’ve talked about this, what is a shakedown? You know? I feel like our civil justice system, it makes it impossible for there to be a shakedown lawsuit because, at least in the state of Georgia, if you want to file a medical malpractice lawsuit you have to hire an expert to sign an affidavit, to get on your side to get on the lawsuit, and then you have to go through the process to dismiss process. I mean a real shakedown would be the family members of this nursing home going into the house of the person that owns the nursing home and literally shaking him down.

Smith: Like Suge Knight.

Schenk: Like Suge Knight style to Vanilla Ice.

Smith: Yeah.

Schenk: Which by the way, Will had a, I think it was six foot by six foot, poster of Vanilla Ice. To the Extreme poster in his bedroom throughout his whole life actually.

Smith: No. I did not.

Schenk: Yeah.

Smith: That is not true.

Schenk: But, at any rate those are the type of extra-judicial comments that I like.

Smith: Yeah. Well and what they’re–To expound upon what Rob is talking about.  The concept of a lawsuit shakedown is that look, we have filed a lawsuit against you and we know that we’re not going to win it because we don’t have a claim, but it’s going to cost you x amount of dollars. Let’s say it’s going to cost you $60,000 in legal fees to defend this. And it’s going to drag your name through the news cycle and it’s going to make you look bad. So, if you want us to go ahead and settle it then you give us, let’s say, $30,000. So, you get out of this and we sign a release, a confidentiality agreement, it’s all said and done. The thing is that that probably does happen. I’m not going to deny that that happens. I don’t see it because it doesn’t really happen in our industry because, like Rob said, these cases are very expensive for the plaintiff to file and if you don’t file it properly it’s going to get dismissed immediately. You’ve got to have an affidavit. You’re not going to file a lawsuit against a nursing home in Georgia and then go to the defense firms that we’re familiar with and say, “listen we know we don’t have a suit, but if you guys will tell your client to pay us some money we’ll go away.” I know for a fact that they won’t do that because we constantly tell them we have a suit, your client needs to settle, and they refuse. They will fight tooth and nail. So, this whole shakedown trope is just something that the industry pushes out there to poison the well.  

Schenk: Even so, you put all the malicious lawsuits–all the shakedown lawsuits you want.

Smith: Sure

Schenk: Into– it’s a drop in the bucket compared to all the claims that do not get prosecuted because no one finds out about it, like how much money the industry saves because people don’t have video cameras in their loved one’s rooms. Or we can’t prove exactly that this infection was caused by the bed sore. This type of thing. They’re acting like this is going to kill the industry. No, your industry survives because there’s not enough people doing this.

Smith: Yeah, I agree with you and you know I think that the public has this weird relationship with lawsuits anyway. The same people who I know have used the phrase “frivolous lawsuit” will often come into an attorney’s office for the most minor thing and say, “Well, what do you mean I can’t sue them for emotional damage? My Direct TV doesn’t work now.” But, it’s misinformation that’s pushed out by the medical provider industry. You constantly hear that one of the reasons we need tort reform is all these frivolous lawsuits. Well, what is a frivolous lawsuit? How many are out there? I have had discussions with very well informed intelligent people who were doctors or nurses and they have said, “Well, I agree. My malpractice insurance is going up because of all these frivolous lawsuits.” I can’t get a simple answer from them about the question, “How do you know that? What frivolous lawsuits are you talking about? Name one of them for me.” All you know is that your medical malpractice provider said, “Hey, listen, we’re going to have to get more money from you because of all these frivolous lawsuits” and you’re believing them. It’s like Rob said, at the end of the day a frivolous lawsuit is not something you can pursue because it’s going to get kicked out of court.

Schenk: Yeah. There’s a lot of stop fails for that type of thing. It gets thrown out.

Smith: There is a huge, huge market for urban legends on lawsuits to begin with, that have really misinformed the public on tort law and what you can do. Everything from, “Did you hear about the burglar who fell through a roof and then ended up suing the people who own the home because the roof wasn’t intact?” Like, that’s not how that works at all.

Schenk: To circle back to the original point that I want to talk about with this article is the

issue of resident on resident violence. The main principle that I want to say is that, if there’s no propensity for a resident to be violent, then if the resident just one day gets triggered and assaults another resident, it’s not very likely that the nursing home should be held responsible because they have no actual knowledge that that’s going to happen and they have no constructive knowledge, which is something, a fact or evidence, that would lead them to believe that that’s going to happen. So, no actual, no constructive knowledge. That’s a big difference between a resident that has a history of violence.

Smith: Yeah.

Schenk: Particularly against an individual resident.

Smith: Yeah.

Schenk: So, in this instance, you have three assaults between the same two dudes. So,

not only is this history there, but it’s almost an exact Breakin’ 2: Electric Boogaloo. It’s the same people, doing the same dances. I think there is a strong case to be made that Will wanted to laugh with the Breakin’ reference. But, there is a strong case to be made that they’ll be successful on this count. If that facts hold up and if they’re not rebutted with that.

So, where are we going next? Oh, this is an interesting article.

Smith: Okay. Yeah.

Schenk: Where are we going? Are we going to patient dumping or are we going flu shot?

Smith: Let’s go with the flu shot.

Schenk: Okay, so, this is case is out of– We got this from the Washington Post. Nursing

home forced employee to get flu shot despite her religious objection. Justice Department suit says, “Barnell Williams didn’t want a flu shot, but the nursing home where she worked forced her to get one after she explained that the vaccine went against her religious beliefs. Her body, Williams allegedly told her employer, is a holy temple and the Bible prohibits her from putting foreign substances into it. On Tuesday–This is from March of 2018, so it’s a few months old. On Tuesday, the Federal Government sued Wisconsin’s Ozaukee County, claiming that Williams faced Religious discrimination in 2016. When the county owned the nursing home, Lasata Care Center mandated that she get vaccine to continue working there. So, she was fired, she cried uncontrollably when she got the lawsuit etcetera.

Have you ever heard of, not a science objection to flu shots, but I’ve never heard of a?

Smith: Oh Yeah. I believe that, and I might be mistaken, but I’m pretty sure that this is

Jehovah’s Witness. The same people that have the supreme court cases about

blood transfusions. But, it’s from my understanding that they also don’t have a clergy letter requirement, so you can have these small offset groups that have pretty radical beliefs. I don’t think that a belief in main stream Christianity is that you can’t have flu shots, that don’t require any sort of clergy verification and I think that this county didn’t have a clergy verification requirement.

Schenk: Oh, I see.

Smith: But, that being said, just like the supreme court cases, the Jehovah’s Witnesses

that don’t want to get blood transfusions or don’t want their children to get

them. This is an issue where…

Schenk: This is tough because you have this person’s religious beliefs versus what’s

healthy for the nursing home that she works at.

Smith: It’s not tough for me in that– I think the tough part comes from whether or not

we ever get to a point that we make it mandatory that you must get a flu vaccine or certain kinds of vaccinations to protect the public at large. For me, as far as this case is concerned, the simple solution would be, “No, you don’t have to get a flu shot. Good luck on your future employment. You can’t work here.” I mean, I know that she is claiming Title IIV, which is the employers can’t discriminate based on Religion.

Schenk: That’s what this is. She was fired…

Smith: Sure. But, it’s a danger to everybody there.

Schenk: We should have somebody on the show, because I don’t know. Is it not mandatory that the nursing staff in hospitals get flu shots?

Smith: I was never mandated to get one. I don’t think that Clay is…

Schenk: I’m ignorant to that.

Smith: Yeah. We could very easily ask my brother.

Schenk:  We’ve got to have clay…

Smith: We’ve got to have clay back on here.

Schenk: We’ve got to have clay as a co-co-host.

Smith: But, I don’t know. I don’t know…

Schenk: This is liberal value versus liberal value on this. It’s an interesting case. I just thought I would bring that up. This is interesting… Where we going to next? Let’s see…

Smith: What about the Jewish man that was murdered?

Schenk: Okay, let’s see. So yeah, out of Yonkers, New York?

Smith: Yeah.

Schenk: Forty-one-year-old, Alen Califano, walked into New Jewish nursing home in the Bronx, New York attempting to rob an elderly resident and then beat the eight four-year-old victim while yelling anti- Semitic remarks at him. Califano was charged with robbery, burglary, a hate crime, assault, and possession of a weapon and marijuana. The police report claims that Califano walked into the facility, asked to use the bathroom, and the new security guard on duty let him in. So, he didn’t murder him, he just beat him.

It looks like the security guard let the man into the home to use the bathroom. Instead of going to the bathroom, the intruder started rummaging through the apartments eventually ending up in the victim’s apartment where he lit a joint. He hit the resident in the mouth–in the face. The Director of the assisted living facility said that the victim was a wonderful, kind, and gentle man. That, “this isolated incident is the result of an unacceptable breach of protocol committed by a security guard employed by the private firm contracted to provide security at this assisted living facility.”

Smith: So, this is certainly an interesting liability issue because it’s not as though you have the type of the situation where you can’t predict what your employees are going to do. It’s more like the situation we talked about a few podcasts ago where the woman was pushing the laundry cart and she hit a resident in a walker. There are %100 going to be protocols in place that deal with entry and exit points of an assisted living facility. So, the issue is going to be, who’s liable? This independent contractor or the nursing home? There is no question in my mind, and it would have to be proved through litigation, but there is no question in my mind that this guard committed negligence. You cannot have an entry control point that has completely permissible entry. Why do you have a control point? What I mean by that is, that all entry control points for security reasons, are semi-permissible so certain people have permission to enter them and certain people don’t. Otherwise, just have an open door there that anyone can go in and out. Save yourself the trouble of having a guard there. So, clearly this guard is there to ensure that not just anybody from the street walks in. When a random person–I feel like there might be more to this, that a random person walked up and said, “hey can I go to the bathroom?”

Schenk: Maybe it’s different in New York City. I don’t know.

Smith: I do not think that it would be, I mean maybe. I don’t know, maybe. It seems like he should be accustomed to turning away people all the time.

Schenk: Yeah.

Smith: It sounds really weird that he just let him in there, but to what extent is the nursing home responsible for the actions of… if it is an independent contractor?

Schenk: Why Will keeps saying “Independent Contractor” is that generally in the law the from state to state, an employer of employees, WG employees, is generally responsible for the negligent acts committed by the employee. Generally, in the law, a business is not responsible for the negligent actions of an independent contractor. But, that just varies from state to state and it varies on the facts. So, there’s concepts like a sensible agency, these rabbit hole legal things that–There’s exceptions to the rule, but for the most part that’s how it works. But, that’s why the woman spokesperson for this assisted living center underlined and bolded that it was a private firm. That it’s not an employee of the nursing home. I’m sure that’s the reason why.

Smith: Yeah. Imagine this, imagine that there’s a nursing home that hires an outside company that does lawn care, right? And the Joe Mower is the guy that they send over there to cut the lawn and let’s say that the company he works for knows that he’s reckless, knows that he’s violent, and knows that he has a history of attacking people and they send him over to the nursing home. The nursing home has hired this company.  They come over there frequently to cut the grass and while he’s there, Joe Mower attacks one of the residents. Well, certainly Joe Mower’s company that he works for knew about this–knew that he had a proclivity towards this. So, you could make an argument easily that, yeah well you guys knew that he did this kind of thing so you might be responsible. But is the nursing home responsible? I mean, what have they got to do to make sure that these independent contractors are doing their jobs? They have to be reasonable but I would imagine in this case that they’re not going to be held–In this case in New York, that they are not going to be held responsible here, because it just seems–I wouldn’t be surprised if they found out that this guard…

Schenk: They knew each other.

Smith: They knew each other because that just seems so strange to me.

Schenk: It is very strange. What is not strange is that we’ve reached the epic ending–the conclusion of this particular episode of the Nursing Home Abuse Podcast. And, I am going to put a scenario to you, Will. I do this often. You’re walking down the street, alright? A random person walks up to you exasperated. They are pulling their hair out. They’re clearly…

Smith: He stops me, and he goes, “Sir! Sir! Sir!”

Schenk: He’s in distress. Yeah, “Sir, please.” He puts his hand on your arm and it makes you very uncomfortable. He looks at you and says, “I have to know right now where I can get the Nursing Home Abuse Podcast.” What do you say in response?

Smith: I would say, number one, nursinghomeabusepodcast.com

Schenk: Okay, he says, “That doesn’t work for me. I don’t want that”

Smith: Okay, then I would say, “Try Spotify. You can listen– You can stream our nursing home podcast.” He says, “That doesn’t work for me.” I would say, “ITunes.”

Schenk: He says…

Smith: I’d say anywhere that you listen to podcasts or download MP3s and audio, you’re going to find the Nursing Home Abuse podcast.

Schenk: I would say that’s absolutely right. Spotify, ITunes, Stitcher, Poddy Pod Podders, Podmasters….

Smith: These are–The last of these are ones that you’ve made up. But, I think that most people are going to go to nursinghomeabusepodcast.com, they’re going to go to Spotify, or they are going to go to iTunes.

Schenk: That’s right.

Smith: We are not yet on Pandora, nor will we ever be.

Schenk: Or on Pod Puppies…

Smith: Yeah. I don’t think there is a Pod Puppies.

Schenk: Okay, so we appreciate your attention and I guess 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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