T R I A L Winter 2023 OREGON TRIAL LAWYERS ASSOCIATION In the Service of Justice Elder Law
1 Trial Lawyer • Winter 2023 Board of Governors Winter 2023 The views expressed in Trial Lawyer are solely those of the authors and do not necessarily reflect the policies or opinions of the Oregon Trial Lawyers Association, its members, Board of Governors or staff. Trial Lawyer is a quarterly publication of the Oregon Trial Lawyers Association and is distributed as a membership benefit. For permission to reprint articles, contact Michael Kesten at 503-246-1126, michael@kestenmedia.com. For advertising rates, contact law@llmpubs.com or 503-445-2240. Publications Committee Co-Chairs — Barb Long, barb@vogtlong.com. 503-228-9858; Faith Morse, faith@andersenlaw.com, 541-773-7000 Editor — Michael Kesten, KestenMedia, michael@kestenmedia.com, 503-804-0668 Oregon Trial Lawyers Association, 812 SW Washington Ste. 900, Portland OR 97205, 503-223-5587, otla@oregontriallawyers.org, www.oregontriallawyers.org Dedicated to protecting people, holding wrongdoers accountable, and promoting a fair and equitable justice system through advocacy and education. Articles An Underused Accountability Tool Faith Morse..................................................................................................... 6 Guarding Against the booming business of elder care Lara Johnson................................................................................................. 10 Nursing Home Case Preparation Chris Kuhlman. ............................................................................................ 14 Pre-Discovery Resources in Elder Abuse Cases Brian Dretke. ................................................................................................ 18 Guilt, Grief, Grey & Gravy: Breaking down barriers Kristen McCall.............................................................................................. 22 Prosecuting a Fall Cameron Carter............................................................................................ 28 Capacity: Do you know it when you see it? Shannon Conley. .......................................................................................... 31 Sexual Abuse and Dementia: The barriers that lie within us Megan Johnson............................................................................................. 36 Fighting Immunity in Nursing Facility Covid-19 Litigation Bonnie Richardson ....................................................................................... 38 Medicare and Medicaid Issues in seniors' cases Tim Nay . ..................................................................................................... 41 Protecting Elderly Consumers Young Walgenkim ........................................................................................ 45 Departments President’s Message: The power of language Blair Townsend. .............................................................................................. 2 View from the Bench: In a new building Judge Chanpone Sinlapasai. ............................................................................ 4 OTLA Guardians of Civil Justice . .................................................................................................................... 26 Annual Partners . .................................................................................................................... 35 Comp Corner: Ridiculitis Julene Quinn. ............................................................................................... 48 Between the Sheets Cody Hoesly, Lisa T. Hunt, Nadia Dahab....................................................... 49 Officers President Blair Townsend President-elect Rob Kline Secretary-Treasurer Melissa Bobadilla Parliamentarian Brent Barton Immediate Past President Lara Johnson District Governors Talia Guerriero — District 1 Nathan Sosa — District 1 Kelly Andersen — District 2 Brian Dretke — District 2 Rob Beatty-Walters — District 3 Rhett Fraser — District 3 Erin Christison — District 4 Diego Conde — District 4 Derek Johnson — District 5 Tim Williams — District 5 Governors-at-Large Steve Berman Ronn Elzinga Sonya Fischer Neil Jackson Ryan Jennings Quinn Kuranz Paul Loving Jeremiah Ross Thanh Tran Greg Zeuthen New Lawyer Governors Ron Cheng Emily Johnson AAJ Governors Kathryn Clarke Tom D’Amore Nadia Dahab AAJ State Delegates Apolinar Montero-Sánchez Shenoa Payne Michael Wise OTLA Staff Email, (firstname)@oregontriallawyers.org Main phone, 503-223-5587 Kathleen Bergin, 503-223-5587 x108 Membership Director Beth Bernard, 503-223-2558 Chief Executive Officer Nora Fogarty, 503-223-5587 x104 Development Director Caroline Greenlaw, 503-223-5587 x100 Education Director Arthur Towers, 503-345-0045 Political Director/Lobbyist
2 Trial Lawyer • Winter 2023 By Blair Townsend OTLA Guardian Whether speaking to juries, experts or our clients, the language we use matters. Often, the words we use are automatic and unconscious, yet they wield so much power and can re-frame the perspective and identity of a case. For instance, we say car crash, not accident. Pain and suffering (and hopefully something better than that), not non-economic damages. For those who subscribe to the Reptile theory, almost every word in the English language has a “code” that, good or bad, carries meaning for jurors. Crucially, how we characterize negligence or malpractice cases to our potential or current clients makes a big difference for them in the framing of their loss. For instance, many who have lost a loved one have a hard time accepting that their partner or family member didn’t just die. Rather, whether at a nursing home or The power of language hospital, they were killed by the negligence of someone else. “To kill” is certainly off-putting and ominous. I have never had a malpractice case where anyone meant to kill our decedent. However, a person in charge made decisions that led to a loved one's death. In my personal experience, the framing gives credibility and urgency to my clients and, in some ways, gives them some relief that when they (often hesitantly) come to a lawyer’s office, they are there for the right reasons. From the heart My perspective is partly informed from my family’s own experience with the loss of a loved one. In October, 2009, a close family friend went into the hospital for a fairly straightforward surgical procedure. When I say “close,” I'm talking about someone I had known all my life. During the procedure, an anastomotic disruption occurred, meaning a perforation of the colon, creating a leak of waste into the body cavity. This alone would not necessarily constitute malpractice — this is a feared and serious complication from the procedure but one that would be included on a standard informed consent form and, if monitored and repaired with rapid surgical treatment, would not prove fatal. That said, without surgery, a patient is subject to the development of septic shock because anastomoses are not self-healing. Wait. Time Out. Shifted back into lawyer mode there. As a nonlawyer at the time, I had no idea what was going on, only that our friend’s temperature was rising, many days had passed since his surgery, he was being transferred into the Intensive Care Unit and was going to have another surgery. My family began speaking in hushed tones. Some conversations were moved to a different room. I can’t remember what I was doing. Honestly, in my youthful naivete and boundless optimism, I assumed everything would be fine. I figured the doctors would fix whatever was going on, they just had to find out what that was. Six days after the initial surgery, our beloved friend developed respiratory distress and had to be intubated. When surgery finally took place, almost two liters of feculent material was found in his abdomen. He was in critical condition and suffered from multiple organ system failure secondary to the perfora- President’s Message Blair Townsend
3 Trial Lawyer • Winter 2023 tion. He was on life support. This man, with the most infectious giggle, someone who had always been present in my life, a navy veteran and a genuinely kind and sweet man, was not waking up. A little over a month later, the impossible decision was made to take him off life support. He left us later that day. A client's transition I credit the instincts of others in the room for questioning the quality of our friend’s care. I’m not sure everyone in the same position would have the emotional capacity or foresight to consider whether avoidable mistakes — choices, really — transpired that caused this death. I try to remember that perspective when I meet potential clients—their dizzying grief, the incredulity that someone you love can go into a hospital and never leave, and the self-doubt that comes from not knowing medicine and not knowing if or how someone did something wrong. I try to listen and allow for whatever time it takes for families to work through their grief and into the details of the potential case. I always have a box of tissues nearby. No comparison All cases that result in a wrongful death are difficult. When they resolve for a high dollar figure, we lawyers consider it a success. However, it is never a success for the families. It is a mere pittance for the unquantifiable and, frankly, priceless value of a beautiful life taken too soon. We have to remember that given a choice between having their family member back and a large monetary figure, most families would choose the former. When we discuss their potential case with them, it behooves us to remember that and acknowledge it. In elder abuse death cases, it is the same, in my experience. No matter the age, if someone is taken from us, it is always too soon. Defense attorneys try to capitalize on end-of-life valuations which a family may acknowledge but never agree with. When someone you love is taken from you, is killed, rather than leaving us by natural causes, the injustice of it sits with you. It is so offensive and disagreeable that you cannot just swallow it and move on. Our friend was killed by malpractice and I don’t think anyone who knew him will ever feel justice from our subsequent legal action. There is, however, a sense of closure for standing up, seeking answers and demanding accountability. Our civil actions can do that for our clients. Blair Townsend specializes in personal injury, wrongful death and medical malpractice litigation as well as strategic business planning and litigation. She contributes to the OTLA Guardians at the Guardians Club level. She is a partner at Wise & Townsend PC, 385 1st St., Ste. 221, Lake Oswego, OR 97034. She can be reached at btownsend@wiseattorneys.com or 503224-8422.
4 Trial Lawyer • Winter 2023 By Judge Chanpone Sinlapasai Multnomah County Circuit Court The practice of law, especially litigation, can be stressful. Often the most stressful times of litigation are the weeks and days leading up to trial. Litigators’ thoughts frequently become consumed by concerns for their clients (their abilities to withstand the rigors of trial View From The Bench Hon. Chanpone Sinlapasai In a new building and scrutiny of a jury), apprehension about witness testimony and timing of witnesses, opening statements, closing arguments, and, of course, being a zealous advocate for your client all while maintaining a calm, professional demeanor. Added to this overall anxiety, is the fact that many of you have not seen the inside of a courtroom in close to three years due to a worldwide pandemic. In Portland, the Multnomah County Courthouse opened its doors to the public under social distancing restrictions and mandatory mask requirements. If you are feeling a bit uneasy and out of practice as you prepare to get back into a courtroom, you are not alone. Pay a visit The Multnomah County Courthouse is new to many litigants and the public. The entire design was to have all the parties in mind when they walk through the courthouse doors. For anyone who is waiting for trial, each floor has large open windows where members of the public can wait. The design is to give the public access to justice and to accommodate those who may have challenges getting to the courthouse. When you come into the courthouse right next to the stairs you will see screens displaying the names of the cases and the respective courtroom assigned. There are multiple elevators so that you don’t have to wait for an extended period of time. On the second floor, there are self-help windows where you can speak with court staff ready to help anyone who walks in. We have interpreter services available if your client speaks another language. On the third floor, there is a new jury room with a beautiful view of Mount Hood, the Willamette River and Portland’s bridges. If you are here and need to speak privately with your client, in most courtrooms there are two rooms meant just for that purpose. However, with all new things, not everything is perfect, and the court and staff are still working through some of the challenges. We ask for patience during these moments as we work with IT and staff to get everything back on track. Sometimes we have technological issues, i.e., Webex giving us feedback or not working at all. A quick reminder for anyone who’s calling into court or has your client calling into court, please take the court off speaker. If the court is on speaker, we get a screeching sound that can be deafening. I encourage all trial attorneys to come to the courthouse before your first case. Take a walk through the courtroom you ...it’s never okay to make per sonal at tacks on the opposing party.
5 Trial Lawyer • Winter 2023 will have your trial in to view the set up. If you will be using technology to display any exhibits or slide shows, I highly recommend that you come ahead of time to test it out. Bring your laptop or other presentation device you will be using at trial, plug it in to our system and make sure everything works. You can reach out to the judicial assistant of the court to schedule this. This would save a lot of time and headache the day of trial. There is nothing worse than not being able to access your evidence during trial. Lead with kindness As I often tell young lawyers and mentees, the practice of law is about fighting zealously for your client but also doing it in a way where you lean in to kindness. The practice of law does not ever have to be personal. Yes, be passionate about your position, however, it’s never okay to make personal attacks on the opposing party. Your reputation and how you treat others will follow you. A good reputation will help you in the long run. The respect you show your fellow attorneys will help ease some difficulties when working to resolve issues and can help save money for your clients. Don’t be afraid to litigate your position and challenge the areas of law that are gray. This is why you became an attorney. Just please, always be kind to each other. It really breaks my heart to see attorneys “lose it” during hearings and in trial. If you need to take a break, ask for it. As members of the judiciary, we do not know what’s going on. So, please communicate with the court. As lawyers, we’ve all had difficult clients, surprises in court and an uncooperative witness — remember it’s not personal, you can’t control everything. With that said, I ask lawyers to please remind your clients that during trial, when emotions may run high, it’s not a good practice to act out in court by making facial expressions or sounds during witness testimony. From the bench, I have a full view of the courtroom. I do not want to stop your line of questioning to have to tell someone to stop what they are doing or have to remove them from court. You can do your best to prepare yourself, your team and your case. The rest are factors outside your control. Be realistic Finally, please be realistic about the deadlines you are setting for yourself. You must manage the expectations your client has on what will happen in preparation for this trial. We will do all we can to assist the parties, but we can’t read your mind or step out of our roles as members of the judiciary. As the Dalai Lama said, “Be kind whenever possible. It is always possible.” Judge Chanpone Sinlapasai serves at Multnomah County Circuit Court, 1200 SW 1st Ave., Portland, OR 97204. She can be reached at 971-274-0662 or chanpone.p.sinlapasai@ojd.state.or.us.
6 Trial Lawyer • Winter 2023 Faith Morse By Faith Morse OTLA Guardian I was in a hearing with a well-known defense attorney arguing about the claims I had made under Oregon Vulnerable Person Abuse Statute, ORS 124.100 et seq., in a case involving resident on resident sexual abuse in a memory care facility. I sued the memory care director personally under the statute for failing to stop the sexually aggressive resident in the weeks before he was found orally raping my client. Adult Protective Services (APS) investigated and found the facility documenting his sexually aggressive actions but doing nothing to stop him. It got so bad APS named the memory care director as an additional perpetrator in its final report. The defense counsel filed a motion for summary judgment on the “abuse of a vulnerable person” claims. During argument, I was bemused to hear the defense attorney claim that in 20 years of practice, not one plaintiff’s attorney had ever brought such an elder abuse claim — in part because I was in possession of orders ruling against that defense attorney on these very issues — but also because that argument appeared plausible on its face. It is accurate to say few plaintiff’s lawyers in Oregon use this statute, and it’s likely that many judges have never seen claims made under it. That needs to change. ORS 124.100 et seq. is a series of statutes intended to rein in serious cases of vulnerable person abuse by allowing harsh remedies — treble damages and attorney fees. As noted by the Court of Appeals in declining to read a heightened mens rea requirement into the treble damages provision, “the subject matter of the statute — the physical or financial abuse of vulnerable persons — suggests that the legislature properly concluded that violations were per se sufficiently egregious to justify the enhanced award.” Herring v. American Medical Response Northwest, Inc., 255 Or App 315, 325, rev den, 353 Or 867 (2013). Legislative history These laws exist because of an attorney named Lisa Bertalan whose efforts led to the enactment of ORS 124.100 et seq. Her passion for the project arose from cases of financial abuse that her law firm handled for vulnerable adults. The original version of the bill was sweeping in its scope, with no exemptions for anyone, but as so often happens in Salem, well-funded industry groups fought to have their members excluded from the scope of the bill. The industries whose lobbyists insisted on an exemption are clear from the exemptions appearing in the final version of the bill: financial institutions as defined in ORS 706.008, health care facilities as defined in ORS 442.015, long-term care faci l ities (including residential care and assisted living facilities) licensed or registered under ORS Chapter 443, and brokerdealers as defined in ORS 59.005. Indeed, as testified to by Bertalan, “I didn’t want the bill not to go through because the nursing home industry would lobby heavily against this bill, and I didn’t think, as a percentage of abuses occurring, it was worth jeopardizing the entire bill.” Tape recording, Senate Judiciary Committee, SB 943, April 12, 1995, Tape 102, Side B. For context, Oregon’s Adult Protective Services (APS) investigates abuse allegations in the general community, as well as in facilities such as licensed adult foster care, assisted living and residential care facilities, and nursing homes. Facility investigations represent 25% to 35% of APS investigations. Notably, amendments excluding the “owner, employees, and agents” of longAnUnderused AccountabilityTool
7 Trial Lawyer • Winter 2023 See Accountability p 8 term care facilities from the statute were proposed and considered by the Legislature. Those exclusions were rejected, and the version of SB 943 passed unanimously by both legislative branches did not exempt the “owners, employees, and agents” of long-term care facilities, but only the facilities themselves. This becomes very important in how to use this statute to hold abusers and their enablers accountable. Since its 1995 enactment, the Legislature has not limited or narrowed the scope of ORS 124.100 et seq. in any way. Rather, in the ensuing regular sessions, it has been continuously expanded — from categories of persons protected by the law, persons with standing to bring statutory claims, to the available remedies. By the amendments it has passed, the Legislature has left no doubt that ORS 124.100 et seq. is intended to cast a wide net of protection to elderly and vulnerable Oregonians. How do we use it? The statute itself is quite flexible. ORS 124.100(2) provides: “A vulnerable person who suffers injury, damage or death by reason of physical abuse or financial abuse may bring an action against any person who has caused the physical or financial abuse or who has permitted another person to engage in physical or financial abuse.” Who are the possible parties? The category of potential plaintiffs is quite large. It includes everyone 65 years of age or older; anyone unable to manage their financial resources effectively; anyone whose “ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person’s physical health or safety;” and anyone “with a disability who is susceptible to force, threat, duress, coercion, persuasion or physical or emotional injury because of the pe r son’s phys i ca l or ment a l impairment.” While I am hopeful this statute will someday also encompass all minors, this is a very good start. Plaintiffs can be helped to bring their claims by a wide variety of people: themselves, a guardian, conservator or attorney-in-fact, the personal representative for the estate, even a trustee for a trust on behalf of the trustor or the spouse of the trustor. There are two categories of potential defendants here: those who “caused” the abuse or those who “permitted the abuse.” In my experience, claims against a person who permitted abuse are far more likely simply because those who physically abuse people rarely have sufficient assets to cover the damages caused, and getting insurance coverage (if a policy even exists) in the face of a criminal conviction over the acts or claims that the acts qualify under the criminal statute is a high-wire act. The Oregon Supreme Court just addressed the question of defendants who permitted abuse of a vulnerable person: “In this case, plaintiff alleges that defendants are liable under Oregon’s Vulnerable Person Act because they permitted another person — Mendoza — to engage in physical abuse of plaintiff. There is no dispute that the legislature has created a statutory private right of action for a vulnerable person injured under those circumstances.” EJT v. Jefferson County, 370 Or 215, 220 (2022). Importantly, that case held that claims under the Elder Abuse Statute can be brought against a public body when an officer, employee or agent of the public body committed the tort while acting within the scope of the person’s employment or duties. Id. at 224. To make a claim for permitting the abuse, the plaintiff must not only prove the abuse, but must also prove the permitting defendant knowingly acted or failed to act under circumstances in
8 Trial Lawyer • Winter 2023 Accountability Continued from p 7 which a reasonable person should have known of the physical or financial abuse. ORS 124.105(5). So how does this work in, for example, a case involving staff at a memory care facility? You must sue the individual defendant for acts that individual did in addition to your suit against the facility for negligence and all your other claims. As discussed above, licensed care facilities themselves are not subject to these kinds of suits, but their owners, employees and agents are. Don’t forget to send notice ORS 124.100(6) requires plaintiffs to mail a copy of the complaint to Oregon’s attorney general when it is filed. This used to be jurisdictional, but the law was amended and notice is still required. It can be sent at any time prior to the entry of judgment. In addition to being required, Oregon has a statewide elder abuse prosecutor in the attorney general’s office and an elder abuse unit. While I personally have not worked with them on a case, these might be resources that can assist in the right case. Is a criminal conviction required? There is no language in the statute that requires a criminal conviction of anyone. It does reference criminal statutes for the definitions of what conduct constitutes abuse, but the language does not require a conviction prior to a claim being made. That makes sense given the category of defendants who permit abuse to happen and given the larger goals of the statute. That is backed up by legislative history. In his written testimony in support of the 2003 amendment adding treble damages to the statute, then Representative Mark Hass noted prosecutors often lacked the resources and/or admissible evidence to prove cases involving the financial exploitation of elderly and incapacitated persons. By using this civil claim with a lower burden of proof, such abusers could still be held accountable. He noted that the added treble damages would encourage settlement and avoid costly and painful litigation while increasing the likelihood of recovery for the victim. What next? We have been given a tool that by legislative design and intent is supposed to help plainti ffs and incentivize defendants to settle these claims. We should be using this tool in every case where it fits. Not only to help our clients, and because it increases the damages avai lable to them. We should also use it because the conduct that this statute targets is horrendous and unfortunately frequent. We are seeing more and more cases of vulnerable people being abused in various ways, and this statute gives us a way to drive home to defendants — particularly corporate defendants — that the conduct must stop. If owners, employees and agents of licensed care facilities are held accountable for what is permitted under the roof of licensed care facilities — typically due to understaffing and under-resourcing the facility in pursuit of profit — there will quickly be a rebellion against the facilities that are allowing this to happen. Staff will not appreciate being the fall guys. Why it matters We need every tool we can get to protect people from the abuse that happens in these facilities all too frequently. In 2014, an estimated 16% of Oregonians were 65 or older. By 2030, that number is expected to rise to 20%. In 2020, the latest year for which numbers are currently published, local APS offices received a total of 46,239 calls. From those calls, APS reported it investigated 10,728 community cases in 2020, though it did not report howmany facility cases it investigated. Doing the math, since it acknowledged that facility investigations are 25-35% of its cases, that means there should have been between 3,576 and 5,776 facility investigations that year. An investigation byThe Oregonian newspaper into elder abuse in Oregon found, as of 2017, APS had failed to include more than 8,000 substant iated a b u s e c omp l a i n t s against facilities in its online database. The number is made all the more astonishing because it means “[m]ore than 60 percent of the subs t ant i at ed complaints against care centers in Oregon [between 2005-2016] can't be found on the state's website” and “[t]he omissions skew the track records of nine out of every 10 senior care centers in the state.” https://www.oregonlive.com/ health/2017/04/senior_care_abuse_ neglect_poor_care_hidden.html. With the elderly population expected to grow substantially and APS being very closed-mouthed about what’s happening in those facilities, the plaintiff’s bar is an essential component of keeping vulnerable Oregonians safe. The Vulnerable Person Abuse Statute is an important tool we need to pick up and use. Faith Morse specializes in plaintiff ’s personal injury, nursing home abuse and traumatic brain injuries. She is a member of the OTLA Guardians of Civil Justice at the Guardians Club level. Morse is a partner at the AndersenMorse & Linthorst, PC, 1730 E McAndrews Rd., Medford, OR 97504. She can be reached at 541773-7000 or faith@andersenlaw.com.
9 Trial Lawyer • Winter 2023
10 Trial Lawyer • Winter 2023 Lara Johnson By Lara Johnson OTLA Guardian Beulah’s daughter was looking for a nursing home to keep her mother safe and healthy. Beulah had previously had a stroke and she had a number of other issues, including low weight and dementia that required careful oversight. She needed adequate food and hydration to keep her weight up. Unfortunately, the facility was run by an administration focused on cost cutting instead of meeting resident needs. Snacks were locked away in the evening. Instead of receiving Ensure to boost her caloric intake, she was given a low-cost, nearly undrinkable “house shake” made up of dry pudding mix, Crisco and other ingredients. She should have been weighed weekly but the administration made a decision to reduce the weigh-ins to once a month. At her last weigh-in, she was 90 pounds. Reports by hospital staff to the Oregon Department of Human Services described Beulah as looking like a Holocaust victim. She died underweight, dehydrated and covered in rashes and blisters from an untreated scabies infestation. The facility, and the providers that the facility worked with, failed to contain the scabies, allowing residents to become infected repeatedly. Direct care staff were discouraged from cooperating with abuse investigators, but the truth eventually came out. In the end, the home's director of nursing services and the administrator were charged with and pled guilty to felony criminal mistreatment, but not before dozens of residents suffered from scabies and other conditions. Booming business Nursing homes and residential care facilities are part of the booming business of elder care. It is estimated that 70% of Americans who reach the age of 65 will need long-term care at some point in their lives. For some, the stay will be short, perhaps to recover from a stroke or a surgery, with the goal of returning home to a partner or other family member who will aid in their rehabilitation. For others, the stay will be permanent. They will rely on the nursing home or residential care facility staff to provide a safe and secure environment, necessary nutrition, and appropriate medical care. Good laws and the vigorous enforcement of those laws are needed to protect vulnerable seniors. There is some legislation in place which sets minimum standards for care and aims to provide remedies for injured residents and their families when things go terribly wrong. More can and should be done. Staff stretched thin between different buildings and/or multiple residents cannot be in two places at once. They do not have the time to take a resident to the bathroom and wait to take them back to bed. Mobility-challenged residents are left alone, resulting in falls, fractures and early deaths. Staff members often do not have the time or the support from colleagues to reposition bed-bound residents, which results in large, painful and infected bedsores. Staffmembers may not of elde r care Guarding Against the booming business Beulah's lack of care in her final days of life was evidenced by the scabies (see above) covering her body.
11 Trial Lawyer • Winter 2023 See Guarding Against p 12 have the time to regularly shower residents, or to provide adequate food and drink, leaving residents unclean, underweight, dehydrated and with skin infections. If a patient requires extra care, for example, a resident who requires two staff people to assist in transfers or a stroke victim who is unable to feed themselves, the resident may go without care or be injured when a single staff person tries to manage the lift on their own or another staff person leaves boiling hot coffee within reach and then leaves. These examples are in keeping with what the studies of the industry reveal. Low staffing levels are considered the strongest predictor of poor nursing home quality. These examples, moreover, are not hypothetical residents. These are all real people, Oregonians, some family's loved ones, injured or killed by the impacts of low staffing. One legislative change to consider is to mandate staffing ratios, that is, the maximum number of residents assigned to each direct care staff or to mandate the minimum number of minutes of direct care each resident should receive. Establishing minimum staffing levels would be a significant step towards increasing the quality of care. Some states have minimum staffing levels. Oklahoma, for instance, requires that each resident receive 2.9 hours of direct care a day. New York has taken a more aggressive approach. New York has adopted regulations requiring nursing homes to spend 70% of the gross revenue it receives each year on direct patient care, 40% of which must be spent on resident-facing care. The law also provides that all surplus profits in excess of 5% would be paid to the New York Department of Health. Nursing homes in New York are challenging the regulation. A lawsuit is pending. Meeting needs The nursing home lobby in Oregon has fought minimum staffing levels every time it has been brought up. The lobby objects to the implementation costs and it argues staffing levels should not be set based on some “arbitrary” mandatory minimum. They argue that the status quo, which allows the facilities to make their own internal determination as to the acuity (medical needs) of the residents and what staff is required to meet those needs, is sufficient. The status quo has not worked and the Oregon Legislature has recognized that. Senate Bill 271, which passed in 2021, directs the Oregon Department of Human Services to adopt rules about the requirement for an acuity-based staffing tool that facilities must use. The tool would then recommend staffing levels, intensity of care and the qualifications of caregivers required to meet the care needs of residents, instead of leaving those decisions entirely to the hidden internal criteria used by the facilities. The new law also requires the Department of Human Services to assess the staffing levels of a facility every time the department does a survey, license renewal or investigation into a complaint relating to resident safety, and to issue specific sanctions if the staffing levels required by the acuity tool are not met. Time will tell if a mandated staffing acuity tool and mandated investigations into staffing levels will result in the better care that mandated staffing levels are known to provide. There are troubling developments on the horizon. On a state level, there are signs of “regulatory capture,” where the regulatory agency meant to regulate an industry is being co-opted to do the work for the industry. During COVID, complaints of exposed and infected employees coming to work and infecting residents were not investigated as complaints. Instead, DHS responded by providing training to the facility and facility staff at state expense. Civil penalties and other publicly available sanctions of facilities are now being presented as
12 Trial Lawyer • Winter 2023 Guarding Against Continued from p 11 informal and largely publicly unavailable “letters of understanding.” There has been a legislative response at least to the first issue, namely requiring DHS to investigate complaints brought to them. Going private The second troubling development is the entry of private equity firms into the nursing home industry. Facilities owned and operated by private equity firms have poorer safety records and higher rates of injuries and death. A working paper examining 18,000 nursing home facilities over a 17 year period found that private equity ownership increased mortality by 10%, increased prescription use of anti-psychotic drugs for residents (chemical restraints) by 50% and increased taxpayer spending per resident by 11%. Bills requiring transparency about how revenues are spent might provide for greater accountability. In New Jersey, a bill proposed this past summer (SB 2769) would require facilities to have a website where there is a link to their consolidated financial statements, ownership information, and organizational charts. https://legiscan.com/NJ/text/S2769/2022. Building access Legislation and agency practices that provide for greater access to information by the public is also helpful. In New Jersey, the Office of State Comptroller posts information on poorly rated nursing homes that are still receiving Medicaid funds. https://www.nj.gov/comptroller/ ltc/. In Oregon, there is complaint information available online. However, complaints that are not substantiated are not included on the website, and the website is often not up-to-date. Informal agreements, like letters of understanding, about deficiencies in care, are not included on the website either, which prevents the public from knowing about quality issues. Oregon requires facilities receiving Medicaid funds to provide cost reports. Perhaps Oregon should make these available online so the public can know what percentage of revenue is spent on direct care and what is spent on profit, including profit disguised as expense, like lease payments to a related corporate entity. Increasing staffing levels and providing transparency is important, but these changes, if they are adopted, will not solve every problem. Changing the culture is also important. Staff members need to be trained and supervised, and they need to be encouraged to report abuse and neglect. Administrators should be rewarded for quality care. Facilities should not hide problems but should instead pro-actively work to solve them. Bad facility culture can result in cases such as these: • The facility administration knew a medication aide was not giving resi-
13 Trial Lawyer • Winter 2023 dents prescribed medication for months, which resulted in the death of one patient. • The facility administration destroyed reports by facility staff of physical and emotional abuse committed by a caregiver and failed to report the abuse to law enforcement. • Facility administration destroyed medical records of residents to cover up repeated infectious outbreaks. Safe and protected How the top brass at a facility behave is critical in creating a safe environment for residents. Oregon’s Abuse of Vulnerable Persons Act, ORS 124.100, provides treble damages and attorney fees for a vulnerable person who suffers injury, damage or death due to physical abuse. The Act specifically excludes health care facilities. ORS 124.115(1)(b). That means the individual caregiver or administrator is on the hook, but the nursing home itself can avoid financial responsibility under current law. Removing immunity for nursing homes under the Act could be a significant motivator for owners and operators of nursing homes to establish strong safety cultures within all of the facilities. The nursing home residents we are talking about are important to all of us. It is time Oregon steps up and embraces the progressive ideals that we, as a state, claim to hold. These ideals involve ensuring that the most vulnerable Oregonians are safe and protected. The laws designed to protect residents must be bolstered to achieve this. Lara Johnson is a shareholder in the Corson & Johnson Law Firm. She specializes in motor vehicle collisions, nursing home abuse and neglect, and medical negligence. She contributes to the OTLA Guardians at the Guardians Club level. Her office is located at 940 Willamette St., Ste. 500, Eugene, OR 97401. She can be reached at ljohnson@corsonjohnsonlaw.com or 541484-2525.
14 Trial Lawyer • Winter 2023 By Chris Kuhlman OTLA Guardian Sitting in the courtroom, five minutes after a 10-2 defense verdict, watching the defense lawyers smiling, congratulating each other, and shaking hands with the insurance adjuster and the corporate administrators of a nursing home facility is never fun. Having profited off your client for 10 plus years (and also the taxpayers who pay for Medicare) and then killing her and getting away with it, is an experience no trial lawyer wants to be a part of, let alone have to witness. What makes it worse, your client, a 96- year-old woman, served as a nurse in Bastogne during World War II, was an elementary school teacher for 40 plus years in the town where the trial took place, volunteered for the local Kiwanis for another 20 years, and raised five children and was daily involved in her grandchildren’s lives. How could this happen? Many plaintiff lawyers whose focus is primarily on motor vehicle or medical malpractice cases occasionally find themselves in a situation where a nursing home case walks in the door. While any good trial attorney who is willing to work hard and learn can certainly handle a nursing home negligence case, there are distinct pitfalls, tools and resources that make litigating a nursing home case unique from the general personal injury or even medical malpractice case. Those who are venturing into their first nursing home case should be aware of those pitfalls, tools and resources, so they can be prepared, get a good result for their client and exponentially increase their chances of being on the right side of the verdict. The client Understand your client and who the jury will identify with as your client. The first step when the nursing home case comes into the door is understanding your client and your client’s limitations that placed them in a nursing home. Many nursing home clients are not in the facilities just for medical care, but also for cognitive issues. If the gruesome stage IV pressure ulcer case comes in, it might seem simple, but keep in mind that once you get the nursing home chart, you will likely be confronted with a chart that says “all care was provided” day in and day out, even though the degradation of the wound and its severity tell a different story. If your client has cognitive issues, they will not be able to remember or communicate that they were not regularly turned and repositioned. Further, if the client’s child lives hundreds of miles away, they may not have visited frequently enough to fill in these gaps. You will have to build a case through the records. Further, problematic is the fact that while you may represent a sweet 96-yearold woman, who lived a life beyond reproach, if the defense counsel has their way, the jury likely won’t identify with the beloved great-grandma as the true client of the case, particularly if she has cognitive issues or has passed away prior to trial. Instead, as insurance company defense lawyers are keenly aware, the jury can be manipulated into viewing the mother’s adult child bringing the case on behalf of the estate as the most important party to the case rather than the parent who needlessly suffered at the hands of the nursing home. In the earlier case, that happened to be the 68-year-old daughter Chris Kuhlman Nursing Home Case Preparation Many other jurors, however, will have no experience with nursing homes
15 Trial Lawyer • Winter 2023 See Preparation 16 of the deceased, who had ongoing disagreements with her siblings and who lived several hundred miles away and, as such, could only visit her mother once or twice a month. While the defense counsel will not disparage the deceased, they will relish every opportunity to take cheap shots at the daughter, drag her name through the mud and interject their manufactured contempt for her. In the defense view, the daughter had the audacity to try and hold a corporate nursing home accountable for not regularly bathing and grooming her mother, allowing her to develop and suffer from horrific pressure ulcers and die a slow painful death from those ulcers. Making assumptions Keep in mind the jury may not understand basic concepts like why nursing homes exist or concepts of dementia, and you will have to explain these to the jury. Jurors’ experiences with nursing homes will be widely varied. Some will have had to place a loved one in a nursing home before and others will even have worked at one. Many other jurors, however, will have no experience with nursing homes. Jurors inexperienced with placing a loved one in a nursing home will never think that they themselves will ever live in one at any point because their chidren or siblings will take care of them. In every focus group and every jury pool I’ve ever encountered, there are jurors in their 20s, 30s, 40s and 50s who carry the strong opinions that families who put their loved ones in a nursing home lack compassion for their parents and are selfish. From lack of personal experience with a loved one in failing health and with serious medical issues, these jurors simply do not understand that those in advanced age with cognitive limitations and mobility issues, combined with other advanced medical conditions, require nearly 24hour care that no one or two people, untrained in medicine, could possibly facilitate. As trial lawyer Keith Mitnik has said, caring for those with multiple medical issues which require constant monitoring and intervention is something that requires professional care, “it’s simply not a Home Depot, do-it-yourself job.” This is something that carefully needs to be addressed with potential jurors in any nursing home case as most who have not lived through it simply do not understand. Be sure to discuss these topics with potential jurors in voir dire and be ready to educate them on this at opening and throughout your case. Also, don’t make assumptions about jurors’ understanding of common medical conditions like dementia or Parkinson’s that most of us believe all folks understand. I recently had a case with a resident in his late 80s who suffered from Alzheimer’s and for several months, after a change in his medication, had made inappropriate sexual comments to nursing staff. This stood in direct contrast to how he’d lived his life the previous 80 years. I assumed jurors understood the basics of Alzheimer’s and dementia and knew it was common for those afflicted by these conditions to utter uncharacteristic sexual comments that should not be blamed as intentional acts. I was dead wrong. At the focus group, two jurors were insistent that Alzheimer’s was like alcohol — it just loosens a person’s inhibitions — so once a pervert, always a pervert. These two jurors were convinced that because my client had made inappropriate sexual comments attributable to his Alzheimer’s, was nonetheless a “pervert” and a “creep,” and he had been a pervert and creep his whole life. Now he was just getting caught because the Alzheimer's was loosening his inhibitions. With no evidence whatsoever to support this position, they were convinced my client had likely intentionally groped hundreds of women from his 20s through his 80s, and now was only being caught because of the Alzheimer’s. As such, I eventually brought a motion in limine and fought
16 Trial Lawyer • Winter 2023 Preparation Continued from p 15 hard to keep this information out when I didn’t think that it would have been necessary to begin with because I mistakenly thought all jurors knew these were common and blameless symptoms of Alzheimer’s. I wasn’t alone in this mistaken assumption. The judge was somewhat inclined to keep the information in based upon his experience with his parents’ cognitive issues and out of characteristic behaviors later in life. He said it is natural for those with cognitive issues to have these issues and no one will hold it against the client. Frommy experience with the focus group, I had to remind him that while many folks did have experience observing loved ones with dementia, there were also many others who had not and the correct analysis for the court to engage in was balancing the probative value and relevancy of the evidence against its prejudicial nature. You can also explore difficult topics like these during discovery and depositions. Most CNAs, nurses and nursing facility administrators will readily admit that inappropriate sexual comments are known, common side effects of dementia, and they do not take it personally or become offended, because they are trained in this area. In their experience, most of the comments are infrequent, and because of the advanced age and frailty of the resident and the resident’s general disposition, the staff workers are never concerned for their safety. Gathering information Do your work on the front end with witness interviews and on the back end going through the records. When you accept the case, a lot of attorneys think the smoking gun will be found in the nursing home chart. While this can be the case, it is not a given, and will take tens of thousands of pages to review to find it, if it exists. Many times, though, with electronic charting, the
17 Trial Lawyer • Winter 2023 nursing chart has been sanitized and has been carefully curated through electronic prompts to insulate the nursing home and hide mistakes and errors made by the staff. As such, some of your best evidence will come from nursing assistants who have left the facility. Unlike persons who choose to go into nursing school or medical school who either have made a conscious decision that they want to help others or at least are committed to a field they find interesting, the predominant care provided in nursing homes is provided by unlicensed nursing assistants or certified nursing assistants (CNAs). These folks, generally, only have two weeks or less of training. While some do have an unabating love for the elderly or the sick, many do not, and have simply taken the job because it pays $1.35 more an hour than the local big box retailer. As such, there is a never-ending revolving door of nursing assistants providing care at nursing homes with a wide variety in professionalism as to how they approach their job. Some CNAs are angels who go out of their way to make residents feel comfortable and cared for, while others one might question whether they should be entrusted with the care of a goldfish, let alone a human being. Look into the ethical rules of who you can talk to and start reaching out to these folks. Talk to your client and your client’s family — sometimes they will tell you there were one or two really good CNAs, and these CNAs may be willing to tell the truth about the abhorrent care your loved one received from other CNAs or, in general, when they were not there. Sometimes truly great CNAs will even have quit working at the facility because they didn’t want to be a part of such an abhorrent organization that neglects it residents and wanted to work elsewhere at a facility more aligned with their ethics. Sometimes residents will have roommates with no cognitive issues at all who will speak about how they watched their roommate decline through constant neglect. Other times, EMT records will document the abhorrent condition the paramedics found the nursing home in when they came and that no staff spoke with them for 40 minutes after they arrived and no one was even aware of the specific resident’s basic underlying medical conditions. Unlike the car wreck case, where often the most helpful information can be found in the police report or a medical malpractice case where it can often be found in the medical records, don’t take a case expecting that the nursing facility records will prove negligence on their own. Navigating arbitration Find out if there is an arbitration clause and whether it can be busted open. As all plaintiff lawyers know, an arbitration clause can quickly turn the most righteous, strongest and just of cases into an inexplicable defense verdict. Oregon is unique in that there is very little diversity amongst its private nursing homes. There are essentially three to five large corporate nursing homes and just a handful of independent homes offering care in the state. While your client will only have one nursing home case in their lifetime, the corporate nursing homes that operate in the state have several every year, year after year, making it tempting for the arbitrator to deliver a defense verdict or, at least, force a plaintiff down on damages to increase the chances of getting repeat business from the nursing home. Keep in mind that any business savvy arbitrator is keenly aware that the nursing home pays their fees and that if there is a large verdict for the plaintiff in a particular case, regardless if it is righteous and just, they are jeopardizing their future arbitration career. If you are stuck in arbitration, find out as much as you can about the arbitrator. Before you agree to an arbitrator, call one of us who handles nursing home cases on a more regular basis. We are happy to help, share our experiences. We share your desire for a just verdict for your client. Learn state and federal regulations Unlike medical malpractice cases, where there rarely is ever a codified standard of care and the two sides fight over what the standard of care should be, nursing homes are highly regulated. Most nursing homes accept bothMedicaid and Medicare as insurance payments. In doing so, they must agree to abide by Oregon’s state regulations as well as national nursing home regulations. The federal regulations and state regulations will often dictate the type of care that must be provided for certain conditions, with no exceptions. It is much easier to prevail in a nursing home case if you can show that the facility violated state and federal law in their care of your patient. Learn the regulations that apply to your case. Enjoy the fight In a nursing home case, after a careful review of the records and a consultation with your expert, you will know from the outset that you are standing up for someone who was neglected and harmed by the nursing facility, and that you are unequivocally on the side of justice. This makes late nights of briefing, travel away from family and weeks at trial much easier to endure. While it does not guarantee a verdict for your client, it makes getting up and dusting yourself off after a devastating loss much easier. And of course, it makes the wins that much sweeter. Chris Kuhlman is a trial attorney at Kuhlman Law where his main focus of practice is medical malpractice, nursing home abuse and whistleblower cases. He contributes to OTLA Guardians at the Guardians Club level. His office is located at 160 NW Irving Ave., Ste. 203, Bend, OR 97703. He can be reached at 541-385-1999 or ckuhlman@cklegal.com.
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