25 Trial Lawyer • Winter 2023 New Year. Year. N w Firm. • Elder abuse and neglect, child abuse, sexual assault, and more. • Dedicated advocates, experienced litigators, proven results. johnsonmccall.com Megan Johnson Kristen McCall Maggie Donohue Kate Glasson my surprise, at the mediation, the CEO of the defendant company came to my office to participate. That CEO offered to meet with the family to hear their ideas about how to improve the company’s services. The mediator facilitated a listening session (without lawyers) where the CEO earnestly listened and took notes. The family rejoined me in my office breathing more deeply, having let go of years-long frustration about what had happened, because, for the first time, the company that hurt their father listened to them and acknowledged their pain. Remarkably, the company agreed to list remedial measures in the release agreement and paid exactly the amount they should have in noneconomic damages. In the second experience, which came just a few weeks later and with the same mediator, I represented two daughters whose parents were mistreated by inhome hospice providers. One of the daughters had what I call a “grief disorder” and she worked as a medical assistant, sometimes having to refer patients to the same provider who had wronged her parents. The other, the eldest, was doing everything she could to reckon with the wrongful death cap and how no amount of money would bring back her parents or right the wrong that had occurred. These daughters wanted capital “J” justice, but the laws in Oregon, and the limits of medical evidence were never going to achieve that for them. They also wanted a change in hospice care — the “I-don’t-want-this-to-happen-to-anyone-else” kind of change. It had been two years since we filed the lawsuit. I set their expectations low. The mediator had reached out before mediation day to discuss the goals of the parties. He knew my clients valued their role in making change for elders receiving in-home hospice care. Then, remarkably, the mediator learned the company had already made changes to its practices after these daughters’ parents had suffered unnecessarily. Knowing the daughters wanted — with every fiber of their being— to hear about these changes, the mediator hosted a Zoom meeting with the executive director of the company (and this time with the lawyers) who gave a 15-minute presentation of all the changes the company had made. It literally took the breath away from these daughters and me! And contrary to your suspicions, it did not take the breath out of the monetary compensation — the main meal so to speak — in a combined personal injury and wrongful death settlement for their parents. We resolved the case with reasonable (and remarkable) terms on all fronts. In practice, I’ve learned to counsel my clients through the hard reality that making actual change to the system is not generally the work of the civil justice system, but is the job of the regulatory agencies, the activists, the lobbyists and the Legislature. I usually default to sharing the idea that our work is worthwhile because if we get an insurance company to pay, that matters because the defendant’s leaders and insurance company will likely require the facility to make changes, motivated by the fact the insurance company doesn’t want to pay for other claims with the same facts. The reward Representing elderly victims takes practice, patience and heart. We must carefully and mindfully work with the guilt, grief and the metaphorical grey hair. Finding ways to add a little gravy on top makes the project even more rewarding and enhances the success of our representation of elderly individuals and their loved ones. Kristen McCall is a partner at Johnson McCall LLP, 200 SWMarket St., Ste. 950, Portland, OR 97201. The firm specializes in representing victims of abuse and neglect. McCall is an OTLA Guardians member at the Guardians Club Plus level. You can contact her at kristen@johnsonmccall.com or 503-471-9901.
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