"You don't prove neglect with a bedsore," says Dirk J. Derrick, Esq., who explains why signs of possible nursing home neglect require a closer look at the surrounding facts. Talking with Pearl Carey, on the firm's professional staff, Dirk offers three practical questions to consider when evaluating possible neglect: what the resident needed, what the facility knew, and what the facility did in response. He also explains the difference between neglect and abuse, warning signs to look for, and why he urges families who suspect neglect or abuse not to wait to investigate.
While past results do not guarantee future results, you are guaranteed our best efforts. Dirk J. Derrick, 901 Main St., Conway, SC, 29526.
Dirk Derrick (00:00):
Welcome to The Legal Truth, the podcast created to provide you general legal information about South Carolina law, lawyers, and the legal process, and hopefully prevent you from being surprised by the unexpected. We will answer many of the questions I've been asked during the past 35 years about South Carolina, personal injury claims, and workers' compensation claims. We will also discuss existing laws and proposed changes in the law and how they affect you. My name is Dirk Derrick. I'm the founder of the Derrick Law Firm, and I'm your host.
Voiceover (00:35):
Please see required ethics disclaimers in show notes.
Pearl Carey (00:42):
Hello everyone, and welcome back to The Legal Truth Podcast. I'm Pearl Carey, and today I'm here with my co-host Dirk Derrick, and today we're here to discuss the truth about nursing home abuse and neglect in South Carolina. Dirk, why don't you give us a brief introduction about nursing home abuse and neglect?
Dirk Derrick (00:55):
I think, especially as I age, I can understand it better, but I think there's a fear and a reluctance and almost a sadness about times when people have to put family members in a nursing home situation. And I don't know how many times I've told my mom, "You'll never go to a nursing home. I promise you, you won't have to go to a nursing home." And I think people have a fear of that. And the truth is there's situations where there's no options. As people age, if they get dementia or they can't take care of themselves and they can't feed themselves, they can't wash themselves, people don't have the capacity physically, financially to take care of them, it's a huge decision and a very difficult decision for people to make.
(01:34):
I don't see many people making it lightly. It's very stressful for the parents or grandparents who are going into the nursing home, but also for the kids who've run out of options. So that's what we're talking about. If that day comes, how do you protect your loved one? How do you make sure that they get the dignity, the care, the attention that they deserve and the law says they should get in that situation? We've been involved in some nursing home cases, abuse, and neglect. Sad stuff. They are, whether diminished physically or mentally. They deserve for those years to be dignified years. We're talking about when someone has to put someone in a nursing home and just some of the common questions people have when they contact us about nursing home cases.
Pearl Carey (02:20):
Absolutely. So my first question for you is, Dirk, what exactly are my loved ones' rights when they enter a nursing home facility?
Dirk Derrick (02:28):
Overall, the law says when someone's put in that situation, they cannot be treated as a number. They cannot be treated as a bed that has been filled in order to get some kind of governmental check. They are entitled to dignity and respect. And that's not just society's rule, it's the law in South Carolina. So the overall theme and the umbrella that covers everything, they are entitled to dignity, respect. If they are of sound mind, if they are not of sound mind, they are still entitled to that respect and dignity. And that's the overall rule. We'll break down further about sometimes when it breaks down, but that's what they're entitled to.
Pearl Carey (03:09):
So what actually qualifies as nursing home neglect under South Carolina law?
Dirk Derrick (03:13):
Generally, neglect is when someone doesn't get what they need. In this environment, it's food, it's medicine, it's care, it's supervision if they have a hard time walking on their own, could be treatment, and it's going to be different. It's going to be different if someone comes in and can't walk and has all the mental capacity. But three questions. Number one, what did this particular patient need? What did your family member need? What did the facility know they needed? Because they can need something and the facility doesn't know about it. You got to ask that question. What did they need, what did the facility know they needed, what they knew that they needed, and then what did they do about it? That's probably the easiest way to break down what neglect is in a nursing home facility.
Pearl Carey (04:00):
Absolutely. So tell me a little bit about what differentiates nursing home abuse from nursing home neglect.
Dirk Derrick (04:06):
Neglect is usually withholding something that they need, not doing something that they were required to do, whether it involves food, medicine, medical treatment, supervision, whatever. Abuse is the opposite. Abuse is when they do something to a resident, and there's different kinds of abuses. They can be physical abuse. I mean, you've seen some horrible videos, been involved in cases where people were just hit and beat. That kind of physical abuse with somebody who's taking care of them, hurting them physically. It can be mental abuse. It can be threatening. It can be threatening them with physical abuse if they didn't do something. It can be putting them in confinement and leaving them alone for a long time as mental abuse. They're harming their mental facilities. That kind of abuse happens.
(04:49):
And it can be allowing third parties to abuse them. It can be allowing, through their policies or their lack of supervision, allowing other people to hurt their guests, their resident. But we've been involved with that type of case before too, when you get people in a nursing home facility or it can be a mental health facility, some of the same stuff happened where when you know what dangers exist in that environment and you don't protect the people from those dangers, and that can be a neglect case where you fail to do something, but it also can rise to abuse if you know someone has the tendency or has the ability to abuse somebody and you let it go on. So the biggest difference is neglect is not doing something you should do and abuse is either doing something to harm the resident or allowing a third party to do so.
Pearl Carey (05:35):
So when we're talking about nursing home abuse and neglect, I know that one of the common symptoms of abuse and neglect could be a bedsore or a pressure ulcer. Are these necessarily indicative of nursing home abuse and neglect or could that just be something that occurs?
Dirk Derrick (05:49):
You don't prove neglect with a bedsore. You don't prove neglect with a fall. You got to know the facts surrounding it. You got to investigate why it happened. If people lie in beds and they lay in one position, bedsores can occur. Elderly people fall. So you have to look deeper than that. You have to look at were reasonable steps taken to prevent things from happening, knowing about this individual patient or this individual resident. Do they know the person who fell was a fall risk? Did they know there was a danger there? And then did they do everything reasonable knowing what they knew about that patient to prevent that from happening?
(06:24):
Same thing with bed sores. Anytime someone calls us with a bedsore case, we're going to investigate it because bedsore can definitely come from neglect. And sometimes that can be from understaffing, don't have enough people hired to take care of the patients. It can come from someone's inability to move themselves in the bed. Understaffing's a problem. The inability to move and change positions is a problem. But you can't just say they got a bed sore, therefore there was neglect and we can win a trial. You got to have more than that. But it is a piece of evidence that when you go back and investigate everything that led up to it, it can be neglect.
Pearl Carey (07:02):
So what would be the difference between ordinary nursing home neglect, for instance, a patient getting a bedsore because staff didn't turn them over when they needed to be turned, and medical malpractice in the state of South Carolina?
Dirk Derrick (07:15):
In that type of case, you have to ask yourself what actually happened that led to this injury and death and then what kind of judgment was used in decisions that led to the injury or death? For example, if someone misdiagnosed someone or someone made a decision about medication and medicating a patient and it was wrong and caused injuries, if someone made a decision to cut medicines off because of some side effects that were going on, those types of decisions, you got to have medical knowledge and you got to have a medical basis of doing what you're doing. And those don't usually fall within medical negligence type of case. Other things don't. If someone is a fall risk and their chart says, "Don't let this person go to the bathroom by themselves," and then the staff lets them go to the bathroom by themselves and fall, that's not a medical negligence case, that's general negligence. Someone doesn't have to be a doctor to read that in the chart and know not to let them do that.
(08:13):
So that's where it's decided. A lot of these cases is mushy in the middle. So we look at things and we often, we do neglect and abuse cases. We don't do a lot of medical negligence cases, so we will actually team up with someone who... That's what they do. They do medical negligence and we will send them the facts once we determine and say, "Hey, this looks like this could be general negligence, but this over here may be medical negligence. How about take a look at it and tell me what your opinion is as far as the strength of a medical negligence claim on this?" You look at it both ways. You look, some of them very clear, some of them mushy, but you need to know what you're doing because there's different processes for those two different claims. Medical negligence, there's more hoops to jump through to bring a medical negligence claim. It's a lot easier to bring a general negligence claim that is not involving medical negligence. But that's the difference, and sometimes it's clear and sometimes it's some gray area that you really have to decipher.
Pearl Carey (09:05):
So earlier you mentioned that staffing can be an issue in these types of facilities. Do nursing homes have the right to staff as many people as they want to or are there laws surrounding this?
Dirk Derrick (09:14):
No, there's laws in South Carolina how many staff they need during a day shift, an evening shift, a night shift. There's some requirements that the law place on them. And that can be a problem. If they are not properly staffed, that can go into the investigation as far as neglect, whether it's neglectful. But being understaffed won't get you there by itself unless you can prove that it is the reasons it contributed to the cause of the injury or death. If it's a staffing problem, you need to show it's understaffed, but also that it has some causal relationship to the damage that was caused. And I will tell you that that is often... I mean, you can see that in the records. Understand when we do an investigation on this thing, we're looking at the medical records when this patient walked in the door. It's telling the facility, "Here goes who this person is, here goes their conditions, here's their medications, here goes what they need, here goes what proper care you've got to do to take care of these people."
(10:07):
And then you investigate from a chronology standpoint what they walked in with, what the facility did for them, did they do it in the way that the law requires? Did they do it the way with the needs required? And see if there's a violation of that standard as you're going through the records and the daily reports. Understaffing can show up when so many hours is supposed to be turned and rotated so they won't get a bed sore and you start seeing that time get longer and longer or there's a missed turn and somebody trying to get somebody to help them go to the bathroom, they ring, ring, ring and nobody can come and help them. There'll be evidence if you have a family member in there when you talk to them, you can pick up evidence that they're just understaffed. They just don't have enough time to get things done in a timely fashion.
Pearl Carey (10:51):
That makes sense. So when we're speaking about nursing home abuse and neglect, what are some warning signs that could be considered evidence in these cases that people should watch out for?
Dirk Derrick (11:01):
It is very important, if you have a family member or loved one in one of these facilities, to be aware of what may be going on. I've seen situations where a patient sent home, when they sent home, a big bed sore is found that for the first time the family never knew it was there. No one ever told them while they were in the facility that, "Hey, this person got a hole in their back." There's things to look for. I made a list so I could tell the audience everything, bruises or injuries, repeated falls, pressure wounds, significant weight loss, dehydration, medication problems, infections, poor hygiene, soiled clothing or bedding, changes in alertness, sudden behavior changes, or fear of a particular caregiver.
(11:44):
If somebody's being abused by someone, if you pay close attention, you may see some fear in somebody's eyes when that person comes around. If your mom or your grandmom saying, "Nobody comes when I press the button, I get my medications three hours after I'm supposed to be taking them," listen to them. And also look for bruising, look for things in them and see if you see any symptoms from a physical standpoint. They're missed. They can be missed. When you get elderly people, a lot of people will write things off as somebody aging when it can be neglect.
Pearl Carey (12:14):
So if I do suspect that one of my loved ones is being abused in one of these care homes, what should I do? What should my first step be?
Dirk Derrick (12:21):
The first step should be taking care of your family member. The first thing I'm going to do in that situation is get them out of the environment. If I feel like I cannot protect them in the environment, I want to get them out. Now, that's easier said than done if there's limited funds and you're trying to find another place to put them and all that stuff. But the primary thing to do is try to stop it and protect your family member. The second thing is to start documenting everything, write down names, writing down what you've learned, write down the people at the facility who's involved with the care of your mom or your grandmama or your granddaddy, start documenting evidence. But all that stuff should be done after you take care of your loved one. You can also take photos. You can start asking questions to the people who are there and document what you're being told.
(13:07):
It's not bad to really question them hard about things to see what their position is at that time, because if they tell you something at that time and you can document it, that may be preserving evidence that down the road that person doesn't remember or that person doesn't say it quite the same way if litigation has begun. When litigation happens, the other side gets a lawyer and they may not be quite as open about what's going on and what's happened and the failures of the facility after lawyers get involved.
Pearl Carey (13:39):
That makes sense. So when we're talking about documentation and collecting evidence, et cetera, what does a lawyer actually investigate in one of these nursing home cases?
Dirk Derrick (13:49):
When we investigate these, we're trying to reconstruct the entire experience of the patient. We're trying to get the patient's condition, mentally, physically, everything about them when they walk into the facility, and then their entire experience. So we're looking at nutrition, charts, staffing problems, any neglectful act going through this process, any abusive act. If there's any evidence of that, we're looking at the daily charts, the hospital bills that may be involved. We're making a chronology and a story of everything that's happened. And then you're trying to look and see if they were damaged, when did the damage happen? When did the injury happen? Did anything lead up to it? Was it a slow process that led them to this condition or was it an event? Go back and look and see what led up to it and why it happened.
(14:39):
And then you want to establish when it happened, what did the facility do to take care of the injury or to take care of the patient and then their conduct after the event? Did they give proper care? Did they take the patient to the hospital? So if you think about it, you're also looking at their policies. A lot of times companies have policies that say this is what we should do, and they have these policies and they would admit to you that their policy is to protect their patients, but then they violate the policies. And that can be done because of poor management, that can be done because of understaffing, that can be caused by a number of reasons, but you look at the policies and compare it to what they did, which is often very good evidence.
Pearl Carey (15:19):
Got it. So when we're talking about nursing home abuse and neglect cases, how long does a family have to bring one of these cases? What is the statute of limitations on a nursing home abuse and neglect case?
Dirk Derrick (15:30):
In south Carolina, a general negligence case when it's not medical negligence is three-year statute of limitation. Medical negligence cases can differ. Sometimes it can be down to two years. In some facilities it's three years. There's some exceptions. If something happened and the patient couldn't discover it, there's some discoverable rules where you can try to get some additional time if it took somebody a while to realize that they had committed malpractice and done something to hurt them. So there's some exceptions there. Medical negligence is a little quirky and you got to be careful with those statute of limitations. General rule for general negligence in South Carolina is three years. What I tell people is whatever they do, don't think, "Okay, I got three years. Let's sit back a couple years and see what the outcome is," because evidence disappears.
(16:15):
If I had one message to everybody who has a potential claim, and it's not just in nursing home cases, it's in all cases, man, get it investigated. There are so many surveillance cameras everywhere nowadays that if you catch things early, you can get videos of things, if it overwrites itself in seven days or 10 days or 30 days, now that video's gone, you just missed a big piece of evidence. You also have employees coming in and going out. That evidence can disappear. You got people who are living in the facilities who may be witnesses, who may be going out or moving and getting gone. People's memories. When somebody contacts us after two and a half years and say, "Hey, I've been trying to handle this myself, but I want y'all to take this case," sometimes we'll do it if they have preserved evidence.
(17:01):
But sometimes we can look at the evidence and what's gone and stuff and say, "I don't know if we can help you. I mean, we're really behind an eight ball now because we haven't preserved any of the evidence that we use or that would be very strong in your case to go with the evidence that we can get." So you got a statute of limitations, don't think, "Okay, that's how long it is before I need to start working on this matter." If you do, chances are your case is going to be weaker.
Pearl Carey (17:25):
Absolutely. So like all personal injury cases, the faster you can collect evidence and talk to an attorney, the better.
Dirk Derrick (17:30):
Pearl, you've heard me say it 1,000 times, maybe 2,000 times. How long you been here?
Pearl Carey (17:37):
Three years, so long time.
Dirk Derrick (17:37):
Three years, that's probably 2,000 times. What I have learned after 38 years of practicing law is that every one of my clients want the real value of the case, they want it as fast as possible, and they want to be treated with respect. So those three things are the foundation of the Derrick Law Firm. Everything we do, people we hire, a process we've put in place, any automation to speed stuff up, our focus group service to determine the truth... You can't get the real value if you don't know what the real value is so we do a lot of focus groups to find out what the community thinks the real value is, and then we leverage it for the speed aspect. So it's a bad thing to wait any time before you start investigating.
(18:15):
I understand this too. I understand that if someone dies because of negligence or abuse, people are going through life and grief and that kind of stuff, and I understand lawyering up is not the first thought people have, and it probably shouldn't be the first though they have. I've had situations where people I knew had something happen, whether it was a bad injury or a death, and they weren't immediate family members, I knew them, and I may visit them, talk to them, tell them we're thinking about them, "We're praying for you, we're thinking about you." And the lawyer inside me wants to say, "Investigate this thing immediately." The human inside of me is like, "Man, we're praying for you. Let us know if you need anything."
(18:54):
And I don't want to be that lawyer who says, "We need to investigate this," but I always hope that in this situation, there's a member of the family or someone close to them who can lovingly tell them, "Hey, you need to talk to somebody. You need to investigate this thing." And there's some things we investigate, there's no claim, there's no neglect, there's no abuse. But if you think there is, we need to investigate it quickly so we can base the decision on facts that we can acquire quickly. Does that make sense?
Pearl Carey (19:23):
The speed of every case, every type of personal injury case is paramount when it comes to getting the real value and getting justice.
Dirk Derrick (19:29):
Absolutely. And I will tell you, you know what everybody wants to see, what every juror wants to see? Show me the video. Show me the surveillance. There's video cameras everywhere. I know they got video cameras. When we get involved in these cases early, we very often get videos that prove what we're trying to prove, and it just makes it so much easier to get justice for the person who's injured or killed when we can capture the video quickly before it disappears. And they disappear. And the number of cases where we got the video, it makes a huge difference. The number of cases where we tell them... The defendant said that the camera wasn't working that night or it overrode itself in seven days and the jury said, "Hmm, hmm." They always turn their head sideways and say, "I wonder if they got rid of that video," but they want to see it. Because they want to see it, as an attorney, we want to get it for them.
Pearl Carey (20:15):
Absolutely. Going back to maybe the initial stages of one of these cases, what would you say are very common misconceptions among family members regarding these types of cases?
Dirk Derrick (20:25):
Probably the biggest misconception or attitude may be when someone is in this situation, they're old, they didn't have much of a lifespan or expected life expectancy, and maybe it's not as bad if it happened to them because they were end of the road anyway, especially if they were demanded, had dementia, having some mental problem. And I totally disagree with that. And we've seen that jurors totally disagree with that, a lot of them. We're putting people in those facilities that cannot take care of themselves and they deserve the dignity end of their lives to be treated right. That facility is getting paid by somebody to give them that dignity and give them that care. I believe that if they neglect them or they abuse them, they should be held accountable if they're doing that to somebody.
(21:15):
I will say this, this is not an indictment on every nursing home. There are some good people with good hearts taking care of elderly people in nursing homes across the state. And I don't pretend it's an easy job. I know that it would be tiring and it would be frustrating at times dealing with people with mental issues. This is not an indictment on the nursing home industry as a whole. There's a kind of knowledge, and I was talking to somebody a couple months ago, used to play football with my father, who used to run some facilities who's now a consultant. The people in the industry know who the people are. They know which facilities have problems and they know which facilities are trying to do it the right way. And my advice to people with family members in there is to show up for your family member while they're there, listen to them, don't ignore what they're telling you, observe what's going on, look at them, report any problems you see and try to protect them.
(22:11):
And if that responsibility of the facility has been abused or if that responsibility has been violated, to talk to an attorney, let them investigate and dig down into it and see whether or not there's been some wrongful conduct. From a legal standpoint, a question that I had before we started doing a lot of focus groups was how the jurors would treat this. You could see somebody saying, "Well, they were in bad shape. They're in a better place now." But I've been somewhat surprised that people do want to protect people in this situation and will punish facilities that are doing it the wrong way. Some of that is because they feel the harm and the pain or the suffering that the person went through.
(22:51):
And I think there's also something in the back of everybody's brain that, "Man, I hope if and when I get in that circumstance or in that situation and my family has no other option to put me there, if I can make sure these facilities are doing it the right way by holding people accountable, I'm going to hold them accountable." So I think it's a little bit of self-preservation. I think that's a big fear that people have as they age, or you don't determine, "I'm going to get in a situation where I'm going to be dependent on people I don't know to treat me the right way." It can be a scary though and a legitimate concern, and I think that does help us hold people accountable when jurors see bad conduct.
Pearl Carey (23:26):
So just to recap, in these situations, documenting everything if you suspect that your family member is going through something like this, reaching out to an attorney as fast as you can.
Dirk Derrick (23:35):
You listen pretty well there, Pearl.
Pearl Carey (23:38):
Thank you. I feel like that was a pretty good recap.
Dirk Derrick (23:39):
Yeah.
Pearl Carey (23:40):
Well, thank you so much, Dirk, for joining me on another episode of The Legal Truth Podcast regarding the truth about nursing home neglect and abuse. I'm Pearl Carey. For more episodes, please visit our website and we hope to see you in the next episode. Thank you.
Dirk Derrick (24:00):
Thank you all.
Voiceover (24:00):
Thank you for joining us on The Legal Truth Podcast. If you have questions that you would like answered on a future episode, please send them to thelegaltruth@derricklawfirm.com. If you would like to speak to us directly, call us at 843-248-7486. If you find the podcast valuable, please leave us a five-star review and share The Legal Truth with your neighbor, friend, or family member who is seeking reliable information about a South Carolina personal injury or workers' compensation claim. Dirk J. Derrick of the Derrick Law Firm Injury Lawyers is responsible for the production of this podcast, located at 901 North Main Street, Conway, South Carolina. Derrick Law Firm Injury Lawyers has included the information on this podcast as a service to the general public. Use of this podcast and any related materials does not in any manner constitute an attorney-client relationship between Derrick Law Firm Injury Lawyers and the user.
(24:53):
While the information on this podcast is about legal issues, it is not intended as legal advice and should not be used as a substitute for competent legal advice from a licensed professional attorney in your particular state. Anyone seeking specific legal advice or assistance should retain an attorney. Any prior results mentioned do not guarantee a similar outcome. The content reflects the personal views and opinions of the participants in the podcast and are not intended as endorsements of any views or products. This podcast could contain inaccuracies. The information contained in this podcast does not constitute legal advice and is not guaranteed to be correct, complete, or up-to-date as laws continue to change. In this podcast, you'll hear information about focus groups. Please note that not all of the firm's cases are presented to a focus group. Additionally, when speaking about juries or jurors in relation to a focus group, we are speaking of focus group participants and not actual trial juries or jurors.