One of the most concerning calls I get in a week are the calls from a family asking me to evaluate an injury to their parent. I get them probably a few times a month. I do not actually sue nursing homes, but because we have “elder care” in our name, people call to ask if what happened to their elder loved one is neglect.
It may not come as a surprise that when it comes to elders and wrongs done to them, I immediately get my haunches up and want to charge off to pursue the wrongdoer. That is my first instinct. Because I do not practice in the area of personal injury or wrongful death, I usually call a colleague and set off in advocate mode.
The conversation starts with my normal lawyer voice. I begin to get caught up in the emotion of it all. “The client presented with dementia to a local nursing home, she is 87 years old with multiple co-morbid health problems,” I start. I sound like an episode of Grey’s Anatomy. My brother, the doctor, would be proud. Then I start to think about the child who came in to helplessly recount the neglect.
“The pressure ulcer presented in 2013 as a small sore and developed over 3 months into a gaping wound,” I continue. The facility failed to disclose it to the family until the odor became so bad that it could not be ignored. As the care aide turned the mother, the daughter catches a glimpse of the most horrid thing she could see. When the skin that is intended to protect us from all sorts of external threats breaks down, the results are shocking. I have seen road rash after a bad bicycling fall or even burn victims, but to me, the sight of a pressure sore reminds me of the worst horror movie makeup, only it is real and comes with unimaginable pain.
The skin gets so infected that it begins as a small sore and quickly deteriorates until the bone can be seen and the infection tunnels into any healthy flesh it touches.
I recount this to my tort lawyer co-counsel who by now is asking me to slow down and back up. They want to know facts, not emotions at this point. When did the ulcer start, do I have records, did the facility follow protocol? Why was the family member forced to live their final days in such agonizing pain?
I look for the date the wound was discovered, the date the doctor was notified, and the date the doctor prescribed medication. Then I look for whether the facility followed a turning regimen, whether they kept measuring the wound, whether they notified the doctor when something was not improving. Many times an elder, who is in bad shape, will go into a facility and a good facility will do everything right but will not be able to resolve the issue. We know as much as anyone that bad things happen when multiple systems start to fail. All we want is to see that the facility tried to help our loved one.
The other thing families want to have is communication. There is nothing like coming to visit your mother at her facility from a long day at work to see her being turned and then see a deep infected skin wound as the first time you are informed about the problem. They want to see the facility communicating with them, even if there is a problem. Frankly, and I digress, most facilities and doctors would avoid malpractice if they simply acknowledged the frustrations of a family and communicated with them as equals.
But then the final question from the tort lawyer comes: “Rachel, what are the damages?” I hate this question more than any other. I want to scream “did you see that thing?” Did you see how many times they dropped her and covered it up? Can you think about the pain and frustration of a person with dementia trapped in her body, unable to communicate effectively enough to say what is wrong?
I know the question is valid. I know having handled tort cases as a young lawyer that these cases are expensive. I remember from law school that each tort case requires 1) an injury 2) a duty is owed to the victim, 3) breach of the duty and 4) damages.
Damages are tricky. I get that my life as a working person with earning potential is worth more for purposes of a case than an unemployed drifter. I get that my medical bills in a car accident are the basis for any award of “pain and suffering” money. I understand that the client on Medicare or Medicaid does not have as many bills on which to base their award. I know that when an elderly person gets an award, it takes them off Medicaid and must be paid back to Medicare.
The issue of damages is a real one. I want to punish the nursing home or other wrong doer. I want there to be a change in the system more than anyone, and I get that the only way to do that is to hit them in the pocketbook. I am frustrated that the ever-so-popular “tort reform” has curtailed damages without looking at the unintended consequences. Tort reform has made a real dent in the personal injury bar. It has done so not by deterring frivolous lawsuits, but by hurting innocent patients. The law changed to require all compensation to be tied to actual, quantifiable damages, which can be less for the poor and elderly. It changed the statute of limitations (the time you can bring a case) to one year in most cases which also hurts those families who do not even realize substandard care in the haze of their grief.
So most of the time, I have a conversation with the injury lawyer and then dejectedly have to call the client back and try to explain the fact that there is probably no way to sue the facility or person that caused their pain and grief. I have the difficult job of telling a grieving family that their pain will never be acknowledged in a meaningful way because the “system” does not work in their favor.
So here is the lesson: Fight for good care when your loved one is alive. Your mother, father, brother sister, child is counting on you. Check everything and if your radar goes up, call a care conference, call the ombudsman, call an elder law attorney. It is infinitely better than asking “what if?” later.
Rachel Kabb-Effron is a certified elder law attorney with the Kabb Law Firm in Beachwood Ohio 216.991.5222 www.kabblaw.com