Okay, I considered a sexier title for this post, maybe some reference to South Beach, which was not far from the hotel where I stayed when I attended a nursing home litigation seminar. But, first, such a title would be lousy for SEO, and more to the point, I didn’t want to denigrate the suffering and misery that underlies all nursing home abuse and neglect lawsuits. And sure, the title is a bit of self promotion, but I think it is important and helpful for folks to know that I am a member of the American Association for Justice (AAJ) Nursing Home Litigation Group. In the end, South Beach was not much more sexy than Myrtle Beach (S.C.), but the information I brought back to South Carolina made this a trip worth taking.
First, I had my first nursing home neglect case over ten years ago. However, it helped being reminded by more than one speaker that every nursing home case is not about “What happened?” but “Why it happened?” A resident falls. Breaks his hip. As his health declines, he lives in daily pain, sometimes severe and sometimes untreated. He dies. It is a sad ending to any life. But, a jury needs to know why this harmful thing happened. Was it an accident or was it the result of corporate decision making that failed to provide the resources for good care? It is the litigator’s job to provide evidence of the answer and then persuade a jury to own it.
One notion really stuck with me: Lawyers must not do to our clients what the nursing home did to them. Meaning–we should provide the staffing, the resources, the time, the attention, the professionalism, the passion, and anything else required to provide the best representation. If you are going to do the work, then put the time, money and effort in it that it deserves.
Much of litigation is fighting with a defendant to give me information, including staffing information. Instead of answers, I am mostly given objections and claims of privilege. So, winning the discovery battle was a topic of discussion in Miami and for good reason. Although there is much to learn, these are things I live every day. Just the week prior, a South Carolina judge ordered a nursing home to turn over 6 incident reports in a lawsuit. These were reports of my client’s own falls, but they claimed we could not even see them. Information clearly discoverable took 90 days and a hearing to get.
Also, the seminar had a couple of presentations on various tactics of the nursing home industry. The tactic of requiring elderly residents or their power of attorney’s (POA) to sign admissions agreements that condition care on giving up the constitutional right to a trial by jury. Then when the resident is hurt, the nursing home denies responsibility (probably blames the family or the resident) and then informs their lawyer that the POA has signed an arbitration agreement. Justice depends on one hired arbitrator instead of the constitutionally protected trial by jury. I see it all the time, and came back from Miami with an idea to combat it.
In the end, it was no so much specific bits of information that I learned, but what learning triggers inside all of us—whether a trial lawyer or college student. And thinking about the work I do, the people I represent and the way in which I represent them made we want to do better, to raise the bar on the quality of legal services found in Upstate South Carolina. There are some really good South Carolina trial attorneys (a couple of whom were in attendance at the same seminar), but there is always room for more good ones, and always room for the good ones to get better.
