What Nursing Home Lawsuits Reveal About Staffing, Documentation, and Risk

In this episode of Senior Living Executive Strategy, Melissa Brown welcomes Rob Schenk of Schenk Nursing Home Abuse Law for a candid conversation about what senior living and skilled nursing leaders need to understand about legal risk.

Rob shares the perspective of a plaintiff’s attorney who works on nursing home cases, including what attorneys look for when evaluating potential claims, why staffing data has become more important, and how documentation gaps can create serious risk for providers.

The conversation also covers how PBJ data, acuity, AI-generated documentation, ignored alerts, private equity ownership, and administrator decision-making can all play a role in nursing home liability.

For operators, owners, administrators, DONs, and senior living executives, this episode is a valuable look at the legal blind spots that can develop inside a building, especially when staffing, documentation, and care delivery are not aligned.

Read the companion article here: https://gravityhealthcareconsulting.com/senior-living-executive-strategy-podcast/nursing-home-risk-management-staffing-documentation-lawsuits/ 

Senior Living Executive Strategy is brought to you by Gravity Consulting, an outcomes-focused consulting firm for senior living, skilled nursing, and home health organizations.

If something in today’s conversation connects to a challenge you’re facing—or if your organization has an operational, clinical, reimbursement, or growth issue that needs to be solved—visit gravityconsulting.com to learn how Gravity can help.

Transcript

Melissa Brown:
Hello, everyone, and welcome to the podcast. Today I am excited to welcome Rob Schenk from Schenk Nursing Home Abuse Law. And we are going to be talking about all the hot topics, legal, and the things you should be thinking about as a senior living executive.

Welcome, Rob.

Rob Schenk:
Thanks for having me.

Melissa Brown:
Great to have you. So tell us a little bit more about your background, how you got involved in nursing home law, and what listeners can expect today.

Rob Schenk:
I am an attorney. I focus exclusively on pursuing claims against long term care facilities in the state of Georgia. So I feel like I'm in the lion's den right now, and I've been doing that exclusively for probably the past ten years. I've been an attorney for 20 years. But, um, I've been doing this exclusively for the past ten years.

Hopefully today your listener might have a better understanding as to the mindset of a plaintiff's attorney, someone who you don't want to have on the other end of the phone call, or the Zoom, or being an opposite side of the table in a deposition.

So I hope that at least at the end of this, you'll have an understanding as to the perspective, at least that I have when I'm pursuing these cases.

Melissa Brown:
I think that's really helpful. That's one of the reasons I was excited to have you on the podcast, because like you said, we all hope that our paths don't cross, but I believe that most of our listeners are just like we are here at Gravity. We're trying to do the right thing as owners, as people that manage these communities.

And sometimes there's blind spots that we just don't see unless an expert like yourself helps to shine light on them and gives us that perspective. So really looking forward to what you have to share today.

Rob Schenk:
Great.

Melissa Brown:
So let's just jump right in. What are some of the newest, latest things that you're seeing developing that a senior living executive should really be mindful of in the current landscape?

Rob Schenk:
I think that staffing is probably one of the—it's, and I say staffing. That's not new. I know your question was what's new? But for me at least, what I'm seeing in the plaintiff's bar is that there is more access to staffing data than there was, say, ten years ago.

So the typical long term case, at least, that I have is it necessarily nurse committed negligent act and therefore resident was injured. The case is a little bit more broader. You're looking from a 40,000 foot view.

Is that the nurse committed X negligence and injured the resident because perhaps he or she was in a hurry because there wasn't enough staff? So we're looking at a staffing problem and that data, whether it's the PBJ data, where we can really deconstruct.

Okay. Before I even have to file anything, I know whether or not you're at least meeting the state minimum requirements. At least in Georgia, I'll know whether or not you're meeting the state minimum, let alone whatever the acuity is for the facility itself.

So I feel like the data that's out there, there's more of it that we can use. I feel like people are becoming more, like yourself, becoming more expert at it. In other words, it's a little bit easier for me to find someone who understands what PBJ is not. It's not peanut butter and jelly. Or understands what PDPM is, and I can call them as experts to testify and explain to a jury, you know, this is what it means to staff appropriately.

And if it was staffed appropriately, perhaps the negligent act wouldn't have happened.

Melissa Brown:
That's a really helpful explanation.

And so in the successful cases that you litigate, do you find that, you know, sort of a one-off circumstance, that of staffing that resulted in negligence, is that ever really successful? Is it really more about a pattern of understaffing that tends to result in a favorable award?

Rob Schenk:
That's a great question. Yes, I think the answer is yes.

So if you have a one-off incident, because, I mean, our civil justice system is based on if someone does you wrong, you should be made whole.

The issue is typically if the injured resident can make the case about systemic failures, whether it's staffing or whether it's we don't have enough staff because all the money is being funneled to different companies that are all, you know, basically it's a subterfuge of the ownership, then that means that the likelihood of a larger verdict is higher because that inflames the jury.

There are members of the community just like the resident was. So it's like, whoa, whoa, whoa. The chance of a verdict is higher because of that. Like where you're able to make the story about what the nursing home has been doing wrong for the past weeks, months and years versus what one specific nurse did on this one occasion.

Melissa Brown:
Yeah. And so, you know, as an owner myself, you know, thinking through how we triage whenever there's an unusual staffing crisis, you know, maybe it's an outbreak of COVID or something like that where you suddenly lost half of your staff and there's no one that could come in and replace them if it's just for a few shifts, you know, is there any way for a provider to protect themselves or, you know, document in a way that helps to prove that unique scenario and that they took all the efforts that they could to try to fill that staffing to not be in an understaffed situation?

Rob Schenk:
Just that mindset. I would probably not take the case.

Like if I look and I have the data that supports, like your agency and your percentage of agency workers jumped by like 80% because your normal staff, because of extenuating circumstances or not even extenuating circumstances, doesn't have to be COVID.

But if your facility is, we don't, oh man, we don't have enough W-2 right now. Let's get some agency people to pick up the slack or whatever. That's not who I'm talking about. Those aren't the facilities where there's a systemic failure.

There's the facilities that I'm talking about, that is the standard operating procedure, is to be understaffed because we want to pocket that money and send it to other, you know, entities that we also own.

So that your very question shows that you're probably one of the good guys, that probably you are one of the good guys. And if your listeners are listening and that's how you feel in your heart, I mean, I don't have a crystal ball. I mean, I can't predict the future, but I mean, that wouldn't be a case that I would take.

Melissa Brown:
That's really helpful. Really helpful. Thanks so much for sharing all of that, Rob.

So let's transition. Talk to me about other things beyond staffing that you're seeing as a hot button right now.

Rob Schenk:
So, and this is like, I love this. This is such a good conversation.

So I was thinking about this before we went to air. And I think that what I would love for your audience to know is that we as the injured residents, or advocates for the injured residents, are better. Like, we're in a better position to say you guys did wrong with whatever the negligent act is, whether it's a pressure injury or a fall or something like that, if there's lack of documentation.

Lack of documentation is a problem not for the resident. Most of the time it's a problem for the facility a lot of the time, because if it's not documented, it's not done right.

It's either not documented, or if it's not documented, it's either because it wasn't done, or it's because it was done and not documented. But you can't ever tell the difference because maybe it's been a week, a month, two years.

And so, not every time, but a lot of times the jury makes the inference that if you would have done it, it would have been documented. Again, outside of circumstances where, like, all hands are on deck in the next room, and we didn't have a chance to write down that we, you know, turned and repositioned, you know, Miss Johnson or, you know, Miss Johnson only ate 30% of her meal. Things like that.

So really having the in-services, really having a policy and procedures to emphasize that. I understand that your first job is taking care of people. But we got to know what you did. Like even shift to shift. We have to know what you're doing.

So a lot of times I see that in a specific instance I get a lot is the idea or the issue of if a resident comes in, let's say with a pressure injury, if that's not documented, then what will happen is that, okay, well, the resident's been there for a week and now there's a wound and present on admission.

Well, where was all that documentation for that week? Now I can make the inference that, okay, if you're saying that it was present on admission, then where is the treatment for it? Did you go without treatment for a week? Right. Or the opposite or vice versa.

So I feel like, and again, this is not maybe necessarily new, but it's new to me in the sense that I continually see it. I guess that's the opposite of new. It's old. This is an old thing.

Documentation, having policies and procedures in place for, you know, really reiterating documentation is important. That's what I would emphasize to the audience.

Melissa Brown:
How do you see things changing with that as we move forward into this AI world where, you know, there's products out there right now like prediction healthcare that do transcription and are putting notes in on behalf of clinicians? Do you think that's going to reduce this liability, or what are the risks that you see with that type of a strategy? And what should a provider who's thinking about adding something like that into their workflow be mindful of?

Rob Schenk:
I think it's interesting because there's always advantages to these new things. And there's things that might come back and bite you in the butt.

So to respond to your question, now we have, like there's more and more, from what I'm seeing, alerts. Like you entered this or you didn't enter this because it was time to enter this. So there's an alert and there are now ways, and again there's more and more professionals that understand this, that there's more and more nerds that can go in there and go, this is the amount of times that the nursing staff at this facility clicked off of that notice or that alert.

And they did it from this terminal. It was this person. They were logged in as this person. All of that information is retained and stored.

And so in our cases there, you know, there are big fights to get that data. But ultimately, almost certainly we get that data and we can go. And when we're sitting across the table from your staff and we go, hey, this alert about this particular medication or this particular risk category came up 16 times in three days, but every time it was clicked off and you went on to different things. Why is that?

So I think that it's good in the respect to the care that the resident gets. But at the same time there remains potentially an audit trail or a record of perhaps negligent actions taken by the facility.

Melissa Brown:
Absolutely. That's really interesting feedback.

And I think providers have to be careful too, because I think it's really easy as a clinician to think, okay, I've used this transcription software for the last couple of weeks and it's been solid. Like, I'm just gonna approve all these notes at the end of every day and not read them.

So I think providers really need to have rock solid policies and education in place to make sure that there's a constant message to clinicians that you are responsible for the documentation at the end of the day. AI is a helper, AI is not your personal scribe.

How do you interpret that side of things?

Rob Schenk:
I agree, but I mean, I guess I don't think typically, unless you're like in an emergency setting where one or two nurse notes that were transcribed incorrectly with one word, or there's a typographical error, I don't typically think that's usually going to be the case.

It might. The case to me is going to be you miss an alert because these vitals are in a crazy range, you know, for three shifts in a row, right? Ultimately ending up in, you know, whatever the case is. That's what I'm talking about.

So again, your question makes me feel better because, I mean, if we're worried about typos in the transcription versus staffing or completely ignoring the help that these alerts or that AI gives you, that's a different problem.

Melissa Brown:
Thanks so much for that, Rob.

And you know, one of the hot button topics right now is private equity. And I think there's an argument to be made on both sides. I think that it's been sensationalized in both directions.

At Gravity, we work with lots of nonprofit, religious-affiliated, especially single-site organizations, but we also work with private equity, private ownership. And we have found that there's wonderful providers on both sides of the field.

What are you seeing from the legal perspective, and what are some of the interpretations that the legal side of things has about private equity versus more of the nonprofit angle of ownership?

Rob Schenk:
So to step back, and I'll answer your question, to step back.

Typically a monster nursing home case, one in which the providers need to watch out for, are cases in which, like I said, you can link an injury, a grievous injury, to a staffing problem, but link that staffing problem to basically greed.

Okay. So the analogy that I learned from an attorney, Mark Kozlowski, is one of the greats. He said that the people on the Titanic did not die because the Titanic hit an iceberg. The people on the Titanic died because the company that owned the Titanic did not want to spend the money for having enough lifeboats to save all the people, in case it did hit an iceberg.

So what I'm seeing with these REITs, these real estate investment groups and private equity is that they gobble up these facilities and they purposely understaffed for the purposes of increasing profits. I mean, for the underlying ownership.

And I'm not saying that they're all like that. I'm not a commie. You know, I think we need facilities. We have to have them. You know, that doesn't necessarily mean they should run amok. There should be checks and balances.

But from what I've seen, when sometimes when they're gobbled up, the care goes down. And so, you know, that's kind of my $0.02 on that.

Melissa Brown:
Yeah. I find it really interesting, too.

You know, we have some colleagues that we work with and, helping them to understand they're coming from the real estate side and they've heard, hey, you know, senior living, that is where the future of dollars is. Let's get invested in that.

And we're helping them with that. But as we've been doing things like going through pro formas and things like that, they'll say, we need you to cut $1 million off the bottom line and we'll say, you literally can't. This is what it costs to run a health care facility.

Yes, there's more dollars to be made if you manage it correctly, but there's also more dollars that have to be invested. You can't run this needle thin and sharpen your pencil and cut, cut, cut.

You know, we even went back through the pro forma and we said the best we can come up with is $85,000 of cuts by removing a half-time laundry person and a half-time maintenance person. Well, if you really think about what that could do to your reputation, how that could lead to issues of things not being taken care of the way they should have, all those kinds of things, it's definitely not worth saving $85,000 a year to have people not be able to get clean laundry and have the facility have an odor, or not be clean on the weekend when lots of people are coming in to visit their loved ones.

So, you know, helping people understand that I agree with you. You have to invest the money that's necessary to provide at least standard care. You know, if it's not your mission, which is not who we are, but if it's not your mission to do more than that, you have to at least provide that standard of care. And it is more expensive than non-health care, you know, investments and things like that.

So I think that's something hopefully that private equity is learning through some of the recent cases that have come out in some of the judgments that have been against some of the bad actors out there.

I agree with you. They're not all bad actors, and I think it's a good thing that there is a reinvestment in the senior living communities, because I'm not sure where we would be without them. I think they've helped to stabilize the value of the communities, which has been a positive all around.

Rob Schenk:
Well, the idea here is that you're either running the ship or you're a silent investor in the ship.

So that when you have these cases, the private equity or the ownership is like, well, we just own it. Like, this is like you can only sue the license holder of the facility, blah, blah. But what you say betrays that you guys need to cut X amount. That's day-to-day operational. That's that is, you know, you're running the ship. And if you're running the ship, you're responsible when the ship crashes into an iceberg.

Melissa Brown:
So how would you advise, let's say I'm a really well-meaning nursing home administrator or assisted living manager or something like that, and I find myself in a situation where maybe the building has sold or I didn't realize what kind of employer this was going to be, and I feel like it is substandard care.

What are my options? What are my responsibilities? What's my risk if I stick around and I don't make the right moves knowing that things are not going the way they're supposed to?

Rob Schenk:
That is a great question.

So I only operate in Georgia. So I think this podcast is nationwide, if I'm not mistaken, so I can only speak to my experience there.

Yes. Sometimes the individual administrators are named in these lawsuits because under the fed regs, at least in nursing homes, because under the fed regs, you know, you're responsible for allocating resources to make sure that everyone, you know, lives according to their highest ability.

And so if through your administration, through your efforts, that is not happening, it's substandard, then yes, you potentially could be a defendant.

I'm not saying that happens every time. I typically don't name the administrator, but people do.

So if you're in a position where the people above you at corporate office are, you know, pushing you in a certain way, you know, fill heads, put heads in beds, but we're not giving you staffing, I don't know, maybe that might be the time to go somewhere else.

Melissa Brown:
Absolutely. I know a lot of, as someone who used to be a clinician myself, and I was never in a building like this, but I can imagine how I would feel like many do.

I was just reading a story this morning about a case from the early 2000s of extremely substandard care where bills weren't being paid for food and clinicians were out buying food for patients, buying milk and bread because they literally were going to starve otherwise.

And I think that same mentality can sometimes go forward where you say, if I leave, who's going to take my spot? These patients need me, especially if it's a building you've worked in for a long time and you really care about the residents.

So what are some steps that I could take to help protect myself in case, as an administrator, I did get named in the case to demonstrate that I did do everything that I could reasonably do as an administrator to secure the necessary care for the residents in my care?

Rob Schenk:
Well, typically in a case, like I said, I'm typically making a narrative that the administrator is not the actor. The actor are the people that are telling the administrator what the budget should be, what should be slashed, how to operate everything today.

So I can't tell you how many depositions I've been in with the administrator. And I would say, hey, where is the bank where the CMS money hits for your facility? I have no idea. Do you have a checkbook? No. Do you have a credit card? No. Do you have a check card? Yes, for petty cash. Well, how much? It's 50 bucks.

And I'm establishing that you're not the administrator. The administrators are at the corporate office somewhere.

So, you know, that's kind of how I look at it. But if you're the type of person that is going to, you know, the dollar store or going to Kroger down the street and getting stuff for your people, you're probably not my defendant. You're probably not my defendant.

Melissa Brown:
That's great. That's great. Very comforting to hear, because I know there's a lot of great people out there trying to do the right thing in the midst of difficult circumstances.

And sometimes you start out in a building that's great, and then it changes ownership and that kind of changes everything. So, you know, lots of us, I think, have experienced those kinds of things over our career.

Well, any parting words you have, Rob? Think anything, any advice that you would give to a nursing home ownership as you view the current legal landscape?

Rob Schenk:
I think that the only advice that I would give is that, and again, like, I mean, I'm just some guy, right?

But it's not about meeting the minimum staffing for your state. The idea is meeting the minimum staffing for the acuity of your facility.

I feel like there are too many administrators or too many DONs that don't understand that concept. But we meet the state minimums. We meet the fed minimums. That's the minimum. That's the minimum.

You could have one person in your facility, one resident. You still got to meet the minimum. The idea is that the minimum might not be enough for the acuity that you have. And that's where the lawsuits lie.

If I can show that you might have met the minimum, but everybody at your facility has high acuity, which means you don't have enough staff, then that's the problem.

So that's the one little kernel of advice that I would give to anybody listening.

Melissa Brown:
That's fascinating. As I think about PDPM, and now especially PDPM and Medicaid, because, you know, the system is set up to essentially incentivize you financially to identify as much acuity as you can.

And so good providers out there are trying to pursue accuracy, and when you pursue accuracy, the CMI always goes up. Those two are just consistent. We've seen that over and over again.

So just something to be mindful of. If your CMI is climbing, take a look at that and figure out if that does demonstrate potential risk for you and where you might need to add some staffing to help offset that risk.

That's a really great point, Rob.

Well, thank you so much for being here and as a guest today. I appreciate everything you shared. And thank you so much for listening to our podcast.

Remember, it's not what you know, but how you apply it that makes all the difference. See you next time.