All the talk of “end of life counseling” and the demagoguery of “death panels,” raises issues that all of us need to answer: What are your wishes when your time comes? How do you want to die? What steps do you want taken to prolong your life? We should spare our families the guilt of making difficult decisions by making these tough choices ourselves–now. And, we don’t need to wait on a government regulation to start–so what to do? Read the rest of this entry »
End of Life Decisions Shouldn’t Be Put off Until the End of Life
January 31st, 2011
NPR Nursing Home Resource Helpful For South Carolina Families
January 23rd, 2011Folks in South Carolina have limited options for 24/7 skilled nursing care, and the difficulty of accurately assessing quality of care in advance only adds to the problem. As we have pointed out before, understaffing is one of the major causes of neglect in nursing homes. (It is elemental that a nursing home must have enough quality staff to provide adequate care for residents.) So any information related to a facility’s staffing levels is helpful in finding quality care.
But how much staff is enough? Unfortunately, figuring that out can be difficult, but any such analysis must be rooted in the facts. One important fact to consider is the acuity level of a nursing homes’ residents; facilities with more independent residents, the lesser nursing care they will require. National Public Radio’s website has a new database, which provides this Medicare information about acuity for each of the 16,000 nursing homes in the United States.
Medicare.gov, has some other information relating to staffing, although self-reported information should always be taken with a grain of salt. And it helps to have information from a variety of sources. We will try to provide some resources over the next several weeks.
Power of Attorney: The Arbitration Trap For The Elderly
October 3rd, 2010
As people age, they are forced to rely on friends and family to take care of their affairs, and a smart way to do this is to make sure someone you trust is legally appointed to act on your behalf. This is particularly true when someone moves into a nursing home. A power of attorney (POA) is a legal document, which under South Carolina law may grant general and specific legal authority to take actions on your behalf; a durable power of attorney endures even in the event you are no longer competent to take care of your affairs (such as with Alzheimer’s). Many a parent will grant a son or daughter the POA to sign checks, sign contracts, make purchases, make gifts to others, and/or any combination of activities that are legally binding. Many times a lawyer’s power of attorney is a standard form document; unfortunately, most POA’s also set a standard trap for the unwary.
South Carolina Lawyer Completes National Nursing Home Litigation Sessions
October 3rd, 2010Okay, 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.
Nursing Home Negligence: Breach of the Standard of Care
August 31st, 2010In most nursing home cases, it is all about the standard of care. In South Carolina, a nursing home negligence case will generally have an experienced and knowledge nurse who testifies that there was a breach of the standard of care (if not multiple breaches). In this way, these cases resemble medical malpractice cases, except most of the time you are dealing with corporate wrongdoing as much as human error.
Couple of extra points: First, the expert requirement increases the complexity of these cases as well as increasing the expense. Normally, I will have two nurses review, although only one to testify. Sometimes, I may need a wound care expert or a pain expert or a dietician or even a doctor. And sometimes there are differences of opinion and it can take time and money to wade through all of the issues. So, a lawyer who takes these cases on must not only believe in the the truth and merit of the case, but he must have an experienced health care provider who validates his belief with an objective opinion based upon the facts of the case.
McDonald’s Hot Coffee Continues to Spill into Tort Reform Debate
July 21st, 2010
I heard someone discussing the McDonald’s hot coffee case the other day, and like most folks, the speaker knew nothing about the real facts of that case. Regardless, this case still impacts the debate about reform of our civil justice system (i.e., tort reform). A new documentary, Hot Coffee, to be released in 2011 explores how the case has been misrepresented to advance the anti-civil justice agenda of big business, including the health care lobby. I thought this was a good time to help spread the truth about the facts of this case. Read the rest of this entry »
Learned Hand: The Spirit of Liberty
July 1st, 2010
I like to read. Of course, I like to write also, but this is the first blog post in a month. And likewise, I started and finished only one book in June: Learned Hand: The Man and The Judge by Gerald Gunther. Judge Learned Hand was a name first encountered in law school; although he became a judge in the early 20th Century, his fifty years on the bench produced many valuable opinions, some of which end up in law school texts. He was a non-partisan yet also a progressive, who believed in judicial restraint even when he was in the majority. In this regard, Judge Hand would be one of a kind today.
Law Basics: Employment at Will
May 28th, 2010The most fundamental concept in employment law is “employment at will.” Most employees are employed “at will.” Employment at will is a presumption that applies to employment relationships of an indefinite duration. An employee at will can be fired for good reason, bad reason (including an immoral reason), or no reason at all–at anytime and without any notice. Ouch. Pretty harsh. Read the rest of this entry »
Video Infoclip: My First Nursing Home Neglect Lawsuit
May 8th, 2010There were lots of facts that lead to the favorable result in my first case. First, the family was good people. Second, there were multiple examples of understaffing with harmful consequences. Third, there were clear falsifications of records, like the flow care chart that indicated my client ate most of her three meals on days she was not at the facility. (I am sure this provided much of the motivation for the punitive damage award.) And, finally, we presented an honest case and did not ask for astronomical damages. After the case we presented, the jury knew the case was significant.
It was a case that changed my practice and changed me.
There were lots of facts that led to the favorable result in my first nursing home neglect case which I tried in Union, South Carolina. First, the family “was good people.” Second, there were multiple examples of understaffing with harmful consequences at the South Carolina nursing home owned by a billion dollar corporation. Third, there were clear falsifications of records, like the flow care chart that indicated my client ate most of her three meals on days when she was not at the facility. (I am sure this provided more than a little of the motivation for the punitive damage award.) And, finally, we presented an honest case and did not ask for astronomical damages. After the case we presented, the jury knew the case was significant.
A Pragmatic View of Employment Law
April 19th, 2010The life of the law has not been logic; it has been experience.
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The confusion with which I am dealing besets confessedly legal conceptions. Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
Certainly, an evaluation of “what the law is?” must begin with the text of the law, whether statutory or court decisions. But, instead of the text being the end of the inquiry, it is usually only the beginning. Each case is unique. Facts will blend with the Law, which in some respects is a social practice. And so, the question in practice is “how will the law be used?” Experience is a good guide; a broad perspective is best. Read the rest of this entry »
