10 Things to Know
If You Suspect Nursing
8 Common Problems
in Iowa Nursing Homes
6 Smart Questions
You Should Ask BEFORE Hiring an
Iowa Nursing Home Attorney
THE LAW GUIDE TO
THE LAW GUIDE TO IOWA NURSING
HOME ABUSE CLAIMS
Author’s Note...1 Introduction
Should I Read This Guide?...2
10 Things to Know If You Suspect Nursing Home Neglect or Abuse...8
8 Common Problems In Iowa Nursing Home...16
8 Steps to Selecting The Right Nursing Home...20
The Wrong Way to Pick an Iowa Nursing Home Abuse Attorney...26
The Step-by-Step Guide to Find the Right Iowa
6 Smart Questions You Should Ask an Iowa Nursing Home Abuse Attorney...31
What Clients Say About RSH Legal...46
Cases and Verdicts...37
What RSH Legal Does For Our Clients...39
What Cases Does RSH Legal Not Accept...42
What Cases Does RSH Legal Accept...44
What Does it Cost to Hire RSH Legal?...45
What Can I Do Now?...46 Contents
It is a hard decision to put a family member into a nursing home. When that difficult decision must be made, families trust nursing homes to provide necessary care, treatment and respect to loved ones, who often cannot speak for themselves.
That is why it is so gut wrenching when family members learn that their trust has been betrayed and a nursing home resident has been neglected or abused.
The imbalance of power after an incident of nursing home neglect or abuse is obvious. The victim’s family is vulnerable, dealing with unexpected death, disability or bills. The nursing home industry and its insurance corporations have the upper hand – they know the rules and they have the money.
These corporations will often take advantage of this situation by convincing victim’s families to do things that will cost them their rights. Whether it is using unnecessary delay tactics, making lowball settlement offers or refusing to accept full responsibility, the nursing home industry’s goal is the same – paying as little compensation as possible.
We don’t think that is right – not morally, ethically or legally.
We hope this Law Guide to Iowa Nursing Home Abuse
Claims will help victims and their families stand up to the
bullies of the nursing home industry. Sincerely,
John Riccolo Tim Semelroth Pressley Henningsen
SHOULD I READ THIS GUIDE?
This guide is an important first step if you or a loved one has been the victim of negligent or abusive care in an Iowa nursing home. If you or a loved one has suffered a preventable injury at the hands of those who were supposed to provide support and care, the information we give you here can help. We personally guarantee it.
If you read this entire guide and believe you did not learn something important about Iowa nursing home claims, send a letter to our office and we will make a $100 donation to the Iowa Foundation for Justice in your name. After a nursing home injury, your mind is probably swirling with questions. This guide can answer questions like:
• How do I find out if I have a case against the nursing home? • Who is responsible for what happened to my loved one? • How long do I have to do something?
• Where can I go for honest answers?
Who is behind this guide and why should I listen to them?
Our names are John Riccolo, Tim Semelroth, Pressley Henningsen, Emily Anderson and Farl Greene. We are Iowa attorneys who represent people injured in nursing homes. If you want a divorce, need a will or have a traffic ticket, we are not the attorneys for you. We only handle cases involving serious
injury or disability and we only represent people - not big insurance corporations.
John Riccolo is listed in both The Best
Lawyers in America and SuperLawyers.com.
He has also served as president of the Iowa
Academy of Trial Lawyers and the Iowa Trial Lawyers Association. For more, go to
Tim Semelroth is a board-certified trial attorney, is a past president of the Iowa
Association for Justice and has taught as an
adjunct professor at the University of Iowa College of Law, one of the top-ranked schools in the country. For more, go to TimSemelroth.com.
Pressley Henningsen has served as president of the Iowa Association for Justice and has been interviewed on ABC, CBS, NBC and FOX as part of The Consumer's Advocate television show regarding his work
against nursing home neglect. His written work on nursing home neglect issues is published frequently. For more, go to PressleyHenningsen.com.
Emily Anderson has served in the Young Lawyers Division of the Iowa State Bar
Association as co-chair of both the
Professional Development Committee and the Mock Trial Committee. For more, go to EmilyAndersonLaw.com.
The Million Dollar Advocates Forum is a national organization of attorneys who have had verdicts or settlements of a million dollars or more. At the time of this guide’s publication, only thirty-five Iowa attorneys have been inducted into this Forum. All five attorneys at RSH Legal are qualified members of the Million
Dollar Advocates Forum.
Farl Greene has a degree as a doctor of chiropractic medicine as well as a law degree. Farl serves on the Continuing Legal Education Committee of the Iowa Association for Justice. For more, to go: FarlGreene.com.
Why did they write this guide?
Nursing home abuse litigation is a very specialized area of the law. Very few attorneys in America, and even fewer in Iowa, specialize in this area. This area of law is not talked about much—but as our society ages it is becoming increasingly important. Our primary attorney in nursing home abuse law, Pressley Henningsen, did not realize that a specialty like nursing home abuse even existed. Then one day, several years ago, he got a phone call that changed the focus of his legal career.
Pressley’s phone call was from the daughter of an elderly woman who had died in a nursing home in the Quad Cities. She told him that her mother had died in unusual circumstances and that, when she died, there were bruises found all over her body.
After Pressley got off the phone, he began his initial investigation into her case. He was deeply saddened by what he found and became greatly motivated to seek justice. Had the nursing home taken simple steps to ensure the safety of this woman’s mother, her death could have easily been prevented. Pressley took the case to trial and secured a verdict for the family.
After that case, other families harmed by nursing home abuse began contacting our firm. Unfortunately, we learned just how widespread nursing home neglect and abuse had become. These stories motivated us to provide effective legal service to nursing home abuse victims and their families. Not only did we learn that there are federal regulations governing the care nursing homes must provide for their residents, but we also learned that there are common problems found in nursing homes all across Iowa that endanger residents’ safety, and sometimes their lives. Now we want to share some of that information we have learned with others who can benefit from it, and we want you to understand that there’s someone on your side when you’re facing nursing home abuse or neglect.
But why put it in this guide? We wrote it for three main reasons:
First, it is disheartening to get phone calls from families of seriously injured people who have been exploited because they did not understand their rights as nursing home abuse victims in Iowa. We are sick of having to tell Iowans they made early mistakes that cannot be fixed. We believe the solution to these problems is providing helpful information to injured Iowans and their families before they:
• Talk to an insurance representative before they are educated about their rights
• Make costly errors that limit their ability to recover damages
• Miss an important legal deadline that will eliminate an opportunity to get fair compensation
• File a complain with the State
Second, we wrote this guide because we believe you deserve to learn about Iowa’s nursing home laws in the comfort and privacy of your own home. This guide will allow you to take your time and review information at your own pace.
You can read this guide without insurance corporations pressuring you to settle your claim or lawyers pushing you to file a lawsuit. This guide contains helpful information you can use to make your own decisions. It is also a valuable resource you can save for family or friends should they ever face questions about nursing home neglect.
Third, this guide saves us time as well. We get phone calls every day from people who want us to represent them. This guide contains the same general information that we would give you if you called and spoke to one of the attorneys in our office. Writing this guide gives us the chance to explain need-to-know information about nursing home abuse claims in Iowa. It can assist you in making informed decisions about what steps to take in your situation. We cannot accept every case. In fact there are many cases we are not able to accept. Even if we are unable to take your case, we believe you still deserve access to this essential information.
This guide, which is based upon Iowa law, is designed to inform. It should not be regarded as legal advice. We are offering strategies and identifying traps, but please do not consider anything in this guide to be counsel for your individual case. No person should ever apply or interpret any law without the aid of an experienced attorney who knows the facts, because the facts may change the application of the law. Reading this guide does not make you a client of our law firm or its attorneys. We can only represent you after you have signed a written contract with RSH Legal. If you have any questions about your legal rights after reading this guide, you can contact us at 1-800-67-FAIRNESS (1-800-673-2476).
THIS GUIDE IS NOT
10 Things to Know if You Suspect Neglect or Abuse
10 THINGS TO KNOW IF YOU SUSPECT
NURSING HOME NEGLECT OR ABUSE
Fact 1: Nursing home abuse and neglect are serious problems
There are 1.5 million Americans residing in nursing homes today who depend upon their homes for safety, security and daily quality of life. Sadly, a report for the U.S. House of Representatives has called nursing home abuse a “widespread and significant problem.” Almost one-third of America’s 17,000 nursing homes have been cited for an abuse violation according to the report. Of these violations, 10% have put residents in harm or caused serious injury or death, and 25% of nursing homes receiving citations have committed multiple abuses. Worst of all, the report has found that nursing home abuse has substantially increased in recent years.
Residents of nursing homes often cannot protect themselves from physical, sexual or verbal assault or communicate the abuse to family members. At a time in their lives when nursing home residents are vulnerable, they should not be subjected to abusive treatment or be ignored in their daily life. Nursing home abuse is a serious problem that should not be ignored. Fact 2: Residents have rights
Not only are nursing home residents entitled to receive adequate nursing care, but all residents have fundamental rights established and protected by federal law. These rights are
important and designed to safeguard the dignity of nursing home residents. Their rights include, but are not limited to, the following:
• A right to privacy
• A right to access to visitors and medical records • A right to live in clean and safe surroundings • A right to be treated with respect
The fundamental right guaranteed to residents of a nursing home under federal law is this: each resident in a long-term care facility “must receive, and the facility must provide, the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.” If you have questions about what other rights are available to those living in nursing homes, you should speak to an experienced Iowa nursing home abuse attorney.
Fact 3: Many injuries are preventable
The following is a list of common injuries that are often caused by negligence or abuse and can typically be prevented with appropriate nursing home administration and care:
• Falls causing broken bones or head injuries
• Decubitus ulcers, bed sores, related infections, septic shock and gangrene
• Sexual/physical assault and/or abuse • Severe malnutrition and dehydration • Restraint injuries
• Transfer, gait assist or wheelchair injuries • Elopement or wandering injuries
10 Things to Know if You Suspect Neglect or Abuse
These injuries are not always caused by neglect or abuse, but they do raise questions about the level of care being provided to residents in that nursing home. If a loved one has suffered one of these injuries, it is in your best interest to investigate to see if the injury was caused by - or could have been prevented by - the nursing home staff.
Fact 4: Nursing homes must be proven negligent before victims or their families receive compensation
Caring for the elderly is not easy; each nursing home resident has unique medical, physical, and emotional factors that influence the way he or she needs to be cared for. You’ll know when something wrong has happened that exceeds all boundaries of common sense, decency and acceptability.
High-quality nursing homes are competent in meeting residents’ personally-tailored needs. Sometimes injuries are caused by factors which were unforeseen and have no explanation. For example, it is unlikely but possible that a resident may fall and injure themselves despite a home taking every possible precaution. Therefore, just because a resident of a nursing home was injured does not mean you have grounds for a lawsuit or compensation.
In order to sue a nursing home, you need to prove they were “negligent,” and the only way to know for sure if negligence occurred is to do a complete investigation. Under Iowa law, negligence is only proven in cases where nursing homes caused an injury or should have prevented the injury from taking place. Until an investigation has been conducted, it can be difficult to determine whether or not a particular injury was a result of negligent behavior.
Fact 5: Residents or their families are responsible for initiating nursing home abuse and neglect investigations
Iowa law requires you to ask the Iowa Department of Inspections and Appeals to formally investigate whether an injury to you or a loved one occurred due to nursing home abuse or neglect. This requires going online and filling out a complaint form or calling in the complaint.
There is a particular way to fill out the form online, so it can be helpful to have an attorney with experience in nursing home abuse and neglect law assist you in filling it out. The bottom line is that it is your responsibility to investigate whether negligence or abuse is to blame for a nursing home injury or death. If you find out the cause was, in fact, nursing home abuse or neglect, it is also your job to do something about it
The best time to ask the Iowa Department of Inspections and Appeals to investigate whether nursing home abuse or neglect occurred is right now. You shouldn’t feel guilty – by filing a complaint, you hold the nursing home accountable and make the system safer for everyone.
You should also start gathering any related information you have on the nursing home and the resident, like the medical charts, photographs, and anything else that can help document what happened.
Fact 6: Iowa law places deadlines on victims of nursing home abuse and neglect
In general, Iowa law says a person has two years from the date that the resident was aware of the injury to file a lawsuit. After that deadline, a lawsuit is no longer an option. However, if you start the investigation near the end of the two-year deadline, it
10 Things to Know if You Suspect Neglect or Abuse
may be too late. People forget, and evidence disappears, and that will make it much harder for you or your loved one to receive compensation. You should start the investigation as soon as you can.
It is important to know that there are some exceptions to this deadline. Whether an exception applies to a particular case is a question to be answered on a case-by-case basis by an experienced Iowa nursing home neglect attorney.
Fact 7: Lawsuits are not easy to win
Over the last three decades, the insurance industry has been mounting an aggressive public relations campaign to try to convince Americans that lawsuits are out of control and that trial lawyers are bad people.
Unfortunately, many jurors believe this and come into the courtroom distrusting people who bring lawsuits and the trial lawyers who help them. Lawyers are often vilified and made to seem like “bad guys” in movies and on television. As you can probably imagine, it can be very difficult to win cases in this type of environment and, every year, deserving people with legitimate cases lose them in court.
What makes this so sad is that the insurance industry’s claims are just plain wrong - especially here in Iowa. We do not have a problem with out-of-control lawsuits. A study conducted by the U.S. Chamber of Commerce ranked Iowa as one of the top five states for overall legal fairness.
The truth is, nursing home abuse lawsuits are not common here in Iowa. There are not many law firms who actually specialize in these claims, so not everyone in Iowa who deserves compensation is able to get the legal help they need.
In Iowa, most claims are settled out of court even if an attorney is involved – some studies say as many as 90% of claims settle before trial. Insurance corporations will often settle cases for a fair amount because an attorney is involved. They know that a good nursing home abuse attorney presenting a legitimate case at trial poses a risk of a big payout for them. Insurance corporations will often want to avoid that risk by offering a fair settlement before trial.
It is also important to know that the choice to go to court always rests with the client. The client decides whether to take a case to trial – not the attorney. Good attorneys will offer their opinions about whether going to trial is in the client’s best interest but, ultimately, it is the client’s decision.
Fact 8: Only neglect that causes permanent injury or death typically justifies filing a lawsuit
Nursing home abuse and neglect cases are very complex and expensive. With medical research and costly expert witnesses, it could easily cost as much as $50,000 or more in out-of-pocket expenses to prepare a case for trial – this is in addition to the time and effort our firm will dedicate to your case. Many law firms, including ours, will advance those costs if we believe you will receive enough money through either a settlement or a jury verdict to be fairly compensated after the payment of fees and expenses. As a result, in order for a case to be financially feasible, it is not enough that a nursing home made a serious error. There also must have been significant injury suffered by the resident.
This means the resident must have died, incurred high medical bills, or suffered from a significant, permanent disability that
10 Things to Know if You Suspect Neglect or Abuse
has resulted in continuing pain or suffering. Unfortunately, without these types of harms, by the time a nursing home case is done and medical experts are paid, there may be little money actually left for the injured resident or their family.
It is a sad fact about today’s legal system that not everyone who is hurt can be compensated for his or her injury. It is too bad that sometimes nursing homes are able to get away with neglect and abuse, just because the injury they caused is not permanent. However, the risks of pursuing a case with few permanent damages are just too high for the resident, the family, and the attorney.
Even if you decide not to file a lawsuit, you should still file a complaint with the Iowa Department of Inspections and Appeals. If you have concerns about the lack of care that your loved one received, it is important to file a complaint to ensure that the issue is recorded and investigated.
Fact 9: A supportive and active family is one of the most important aspects of a nursing home neglect case
Families bringing a case on the behalf of an injured or deceased nursing home resident can face unique challenges. The physical and mental capacities of many nursing home residents make it difficult to prove that abuse occurred. In some instances, residents are not even able to communicate to others that abuse has taken place. In these cases, a victim’s family and friends may need to testify in order to help explain to the jury how a resident was injured. As a result, it is often the case that the family of the resident who has been injured or killed is thrust into the spotlight of the courtroom. How the jury reacts to the family can – fair or not – determine the verdict in the case.
For this reason, it is important that a family had been supportive of the resident and had actively visited them while they were in the nursing home. Especially in cases where the resident has died, juries are suspect of families who put their loved one into a nursing home, never visited, and then asked for money after that person is injured. Staying active and involved in the life of your loved one is not only the right thing to do, but it may protect his or her legal rights in the event of abuse or neglect. Fact 10: It may be necessary to do an autopsy In a nursing home abuse case, the person bringing the lawsuit has the burden of proving that a nursing home’s error was a direct cause of the resident’s injury or death. In cases where the resident dies, cause of death is often best proved by an autopsy. Often the last thing on your mind after nursing home abuse or neglect is bringing forward a claim later, but whether you have an autopsy done or not can affect that claim. If in doubt, we generally recommend proceeding with the autopsy.
An autopsy can help clarify what caused the resident to die and that may help your case. The reason an autopsy may not be helpful, however, is that often they find numerous underlying conditions which a defense attorney will use to distract the jury away from the real issues in the case. That is why you should not always order an autopsy in every case. Consult your attorney and make the best decision you can.
8 Common Problems in Nursing Homes
8 COMMON PROBLEMS IN IOWA
Over the years we have heard of nearly every imaginable issue that could occur in a nursing home, but some problems happen routinely. These problems can lead to serious injuries to nursing home residents. When looking for a nursing home for your loved one, or if you suspect neglect or abuse has taken place, you should look for these problems in the home:
Problem 1: Not enough staff
Often you’ll find that there are not enough staff working at nursing homes, especially in the evenings and overnight shifts. Think about it: how can two or three people possibly care for fifty or sixty residents who have numerous medical, social and emotional needs? Caring for nursing home residents is not a glamorous job. It is difficult to find staff who are passionate and empathetic to the needs of the residents, especially given what some corporations pay their staff.
Problem 2: Poorly trained staff
Each nursing home resident requires different care, and sometimes nursing home employees are not properly trained in the special skills that elderly care requires. Some of them have problems communicating, which makes it difficult for them to relate to residents. Others have no training at all and are simply left in charge of meeting the daily needs of a dependant population.
A lack of background checks will allow dangerous, abusive individuals to care for residents. Simple training and background checks for employees could stop a great number of preventable injuries from occurring every year.
Problem 3: Overmedication of residents
Another serious problem in nursing homes is the overmedication of residents. In some instances, with too few staff and too many residents to care for, overmedicating can seem like an easy way to sedate residents to make them easier to manage. When you enter a nursing home, look to see if many of the residents are sluggish or do not respond when others attempt to speak with them. Overmedication is never an acceptable form of treatment. Overmedication can cause serious health problems or even kill residents.
Problem 4: “Restraint-Free” homes
In an attempt to seem more “kind” toward residents, there are a growing number of nursing homes in Iowa that label themselves as “restraint free.” However, there is no such thing as a restraint-free Medicare nursing home. Nursing homes with Medicare and Medicaid residents must meet all the requirements of applicable federal laws, including meeting the physical needs of a resident.
If a resident cannot safely reside in their nursing home without restraints, then restraints must be considered to keep the resident from endangering themselves through elopement, falls or other injuries. A recliner, wheelchair wedge, double bed rails, or other devices can be used to prevent the resident’s free movement. Restraints should always be a safety device of final resort, but sometimes they are the only option to prevent harm.
8 Common Problems in Nursing Homes
Problem 5: Inadequate opportunities for therapy or social interaction
This is a concern that greatly affects the quality of life for residents in a nursing home. It is important to realize that, despite the special care needs of its residents, the facility is still a home. No human being can live well without interaction with others, and nursing homes should provide opportunities for social, religious, or other activities in which the resident may desire to participate. Without these types of activities, residents can develop problems such as depression.
Every nursing home should have some kind of activities coordinator. When you are considering a home, you should talk to that person to see what kinds of programs are available and what they can do to individualize the experience of each resident.
Problem 6: Inadequate skin care or toileting supervision
Many residents require daily help to perform the life activities that the rest of us take for granted, including bathing and using the restroom. In a nursing home without proper staffing, the supervision and assistance of these activities can be a real concern with serious health risks. Inadequate opportunities for bathing or failing to assist with skin care can lead to infections, disease and other health dangers. Unsupervised toileting can lead to falls. Failing to provide the proper staffing to assist in these daily activities can be a negligent act on the part of the nursing home.
Problem 7: Poor record keeping
Many nursing homes are notoriously bad record keepers. In some cases, they fail to keep records in an adequate or timely
fashion. Other times they simply falsify records. In one case we worked on, nursing home employees had documented taking a resident into the bathroom every two hours, even during days when she was in the hospital and the day after she had passed away. In addition to records kept regarding the medical care of residents, nursing homes must record all incidents of injury and report those incidents to the Department of Inspection and Appeals, the government body responsible for evaluating and inspecting nursing homes in Iowa.
Residents, or family members with appropriate Power of Attorney, are entitled to many of the records that nursing homes are required to keep. A resident is entitled to a copy of all incident reports that take place regarding his or her care. The resident also must have access to his or her medical records within 24 hours of request. Copies of these records must be made at a reasonable cost and within two days, if requested. Problem 8: Forced arbitration agreements This especially frustrates us as attorneys. When you sign your contract with a nursing home, the home often includes a section in the contract that actually takes away your right and your loved one’s right to a jury trial in the event the nursing home makes a mistake in the future.
This is wrong. It is a fundamental right for every American citizen to bring a case in court if he or she believes a wrong has been committed.
If a nursing home tried to force you to agree to arbitration in the event of a dispute, reconsider the home. What does it say about the home if they are trying to limit your ability to sue before your loved one even moves in? Have they had serious problems with abuse or neglect litigation in the past?
8 Steps to Selecting the Right Home
8 STEPS TO SELECTING THE RIGHT
With all the problems we have identified in this guide that plague nursing homes in Iowa, it may seem there is no way to protect yourself. This is not true. For all the problems we see, there are many nursing homes in Iowa that take great care of their residents and provide a wonderful quality of life. The trick is knowing what things to look for to identify those good nursing homes. Here is a list of eight steps you can take to greatly increase the chance that the nursing home you select will be a good home for you or your loved one.
Step 1: Start your search early
It takes time to figure out which nursing home is going to best meet the needs of your loved one. You will benefit from having time to investigate the various choices, especially when you are not under pressure to immediately have your loved one admitted to the home. As your loved ones age, you should have discussions about what they feel is important in a nursing home. Step 2: Look and listen
You must visit each prospective home yourself without first announcing your visit. You cannot base your decision solely on recommendations, phone calls, internet research, or marketing materials. Your gut check is required. As you visit, ask yourself some questions: How does it feel to be in this place? What
stands out? Do the residents appear to be safe, occupied and enjoying themselves? Is any resident left alone who should not be? Many incidents in nursing homes occur because of a lack of
supervision. Pay particular attention to this issue by trying to talk to a resident, if possible.
Be very careful about facilities that try to prevent you from freely walking about the facility or talking to residents who are willing to talk to you. Visit the facility at different times of the day. Sometimes a facility can look adequate in the morning when the staffing level is usually the highest. Try going during the evening or on the weekend. Nursing homes’ staffing levels are usually the worst on the weekends, between 4 and 8 pm on the weekdays, and on the overnight shift.
Step 3: Research online
There are many helpful websites that give advice on selecting the best nursing home. In addition to the many private websites available, we personally recommend visiting the federal government’s site and comparing statistics of the nursing homes you are considering. To do so, go to: www.medicare.gov and at the bottom of the page you will see a link entitled “Compare Nursing Homes in your Area.” Click on this link and follow the directions. You can do a statewide search, or focus on a certain county or zip code. These comparisons are not fail-safe, but they can point out information that might otherwise be missed. Step 4: Question the administrator and staff Draft a list of specific questions you want answered regarding the care of your loved one. When you visit a home, ask to speak with the Administrator. Every nursing home is required to have one. Allow the Administrator to describe the home, treatment philosophy and anything else they find important. You should
8 Steps to Selecting the Right Home
simply listen. When they are done, pull out your list of questions and ask the ones that remain unanswered.
Step 5: Do not ignore your nose
Use your common sense. If a place smells awful then there is likely a problem. Do not assume all nursing homes reek, because they don’t. However, some will attempt to cover up smells with air fresheners. There is a difference between clean and sanitary and perfumed hallways. If a nursing home does not respect the living environment, they likely do not respect those living in it.
Step 6: Look for CNAs
Ask about the level of staffing for each shift: morning, evening, and overnight. Ask how many nurses and Certified Nursing Assistants (CNAs) are on duty. Compare that number to the number of residents. If there is less than one CNA for each 5-8 residents for the morning shift, there may be a serious quality of care problem. Also note how many residents require total care in daily activities such as toileting, grooming, drinking and eating, as well as those who are bedridden or in wheelchairs. If there is a large number of these types of residents, more CNAs will be required.
Step 7: Test the food and water
Visit during mealtimes and observe the dining room with the residents who need assistance eating. Often this dining room is separated from the main dining room. Look at the residents who are being fed. See how much time the aide spends with each resident and how much of the food is actually eaten. Also check the residents in the dining room and see how many of them appear to be thin when compared to a general population of seniors. Be concerned if there appears to be a high number of
really thin residents. Check to see if the residents are rushed or if they are given enough time to eat. Try to smell the food and see if it seems palatable. Check to see if milk and juice are served and if there are any fresh fruit and vegetables or if everything is from a can.
Also be sure to walk around the facility and check on the residents being fed in their beds. Are there trays sitting in front of residents without anyone assisting them with eating? Are the aides running from room to room trying to feed bedridden residents? Is the food cold? How much of the food is eaten? Are there water pitchers filled with fresh ice water within reach of the residents in their rooms? Look to see if any of the aides ever offer water to those residents who cannot get it themselves. Proper nutrition and hydration are necessary regimens in order for the elderly to stay healthy.
Step 8: Look for social, religious and leisure opportunities
What are the home’s scheduled social and leisure activities? How good is the attendance? Do they allow personal televisions, radios, and phones? Is there a Resident’s Council or similar group? Do they foster cultural and religious programs? Do they administer any intergenerational programs? Talk to the activity director about special activities and individualized plans.
IMPORTANT WARNING FOR PEOPLE
TRYING TO SETTLE WITHOUT AN
It is possible for a health insurance company to take your money after a settlement or verdict from a nursing home abuse or neglect
It is the result of a federal law called The Employee Retirement Income Security Act of 1974 (“ERISA” for short). ERISA, in some instances, can allow an insurance company to collect the money they spent providing your medical care if it was the result of another’s negligence.
Here is an example of what this means: Janice is a resident of a nursing home in Iowa. She was not properly supervised in her home and, as a result, fell while she was walking late one evening. Janice broke her hip and had to spend over a month in the hospital recovering from the injury and receiving physical therapy. The total cost of her medical treatment was $31,000 and it was covered by her health insurance. Janice’s family helped her sue the nursing home for negligence and she was offered a settlement of $40,000, which covered the cost of the medical treatment plus some money for the pain caused by the lengthy rehabilitation. Janice accepted the settlement. A month later, she gets a bill from her insurance provider for $31,000 – the entire cost of her medical treatment! They threaten to sue if she does not pay.
It does not seem fair, but it can happen. Do not get caught off guard by an ERISA claim. A skilled nursing home attorney can also help you understand how Medicare and Medicaid relate to your potential claims as well. Before attempting to settle a case or deciding whether to file a suit, it is important to review your case with a qualified Iowa nursing home attorney to find out whether or not this could happen to you.
The Wrong Way to Pick an Attorney
THE ABSOLUTE WRONG WAY TO PICK
A NURSING HOME ABUSE ATTORNEY
Make no mistake - hiring your nursing home abuse attorney is an important decision with real consequences. Your choice of an attorney can mean the difference between receiving fair compensation and being stuck with a lifetime of uncompensated pain, suffering and unpaid medical bills.
The absolute wrong way to pick a nursing home abuse attorney is to make a hasty decision based on convenience or guesswork. Here are a few examples of the misguided ideas that lead people to choosing the wrong attorney for their case:
• “I’ll just go to the lawyer who handled my divorce.” A common mistake is hiring the only attorney you happen to know to represent you in a nursing home abuse claim. Doing a good job on a divorce case or a drunk driving charge does not qualify an attorney to handle a nursing home abuse claim. Some of the best nursing home abuse attorneys have highly-focused practices - you are not likely to find one who also handles family law, criminal law and probate matters. A lawyer you already know and trust can be a useful resource in finding a qualified nursing home abuse attorney, but your search should not end there. • “I’ll just go to the lawyer with the office down the street.”
What are the odds that you just happen to live minutes away from one of the relatively few Iowa attorneys who
specialize in serious nursing home abuse cases? The sad truth is that most people are willing to drive several hours for a good deal on a new car, but they do not look beyond their hometown for an attorney. What many people don’t realize is that a nursing home abuse attorney who is licensed to practice law in Iowa can file a lawsuit anywhere in the state. Rather than picking the nearest attorney, focus on picking the best and most qualified one for your case. That kind of decision can and should involve a statewide search.
• “I’ll just open my phonebook and see the first lawyer who
takes my call.” The costly mistake some people make is
calling only one law office or only talking to the first lawyer who returns their call. Any lawyer can seem qualified or knowledgeable if you don’t have anything to compare. A consumer should only use the phonebook to come up with an initial list of names that can then be carefully investigated, nothing more. Keep in mind that many qualified attorneys, including those in our firm, no longer advertise in the phonebook.
• “I’ll just let an attorney referral service direct me to a
lawyer in my area.” This type of service asks you to
describe your situation and give your city and state. In exchange you are then given the name of an attorney to contact. A lawyer who is listed by an attorney referral service or website is not necessarily there because he or she has a good reputation. Some referral services will list any lawyer who is willing to pay a fee. Without more information, it is dangerous to rely solely on an attorney referral service’s recommendation.
Finding The Right Attorney For You
THE STEP-BY-STEP SYSTEM TO FIND
THE RIGHT IOWA NURSING HOME
ABUSE ATTORNEY FOR YOU
What can you do to make sure that the attorney you hire is qualified to handle your case? Here is a step-by-step system that will greatly increase the odds of finding a nursing home abuse attorney who is both qualified and will represent you well. 1. Create a list of names of Iowa attorneys who handle nursing home abuse cases.
This sounds simple, but it is a very important first step. In many cases, people do not explore their options before hiring an attorney. When you combine the amount of time and money invested into a serious nursing home abuse case, it could worth as much or more than a new house. You would not buy the first house that you saw without stopping to look at others in the market and examining your options. You should not do that with an attorney either. Unfortunately, finding a good attorney is not as easy as opening up the Sunday classifieds. Here are a few places to start your search:
Ask your friends who are attorneys. If you have a friend who
is a lawyer, ask him or her for a list of names of attorneys who handle serious nursing home abuse cases. The odds are that your friend does not handle these cases, but he or she probably
knows attorneys who do. Your friend can give you the names of Iowa attorneys who have a good reputation for handling your type of case. If you have several lawyer friends, ask all of them for names. If a few names come up from every lawyer you ask, those named are probably the nursing home abuse attorneys with the best reputation in the area.
Do an Internet search. The Internet can be a great tool for
starting a list of names of Iowa nursing home abuse attorneys, but be careful. We already outlined some of the dangers of relying too heavily on online referral services. The key to searching the internet for an attorney is to search specifically for an “Iowa nursing home abuse attorney.” Look at all of the results – not just the lawyer who paid to be listed first on Google. Also, do not rely too heavily on the information contained in a particular lawyer’s website. The purpose of searching the Internet is not to hire an attorney on the spot, but to start a list of names that you can investigate more closely. 2. Call the attorneys on your list and ask for written information.
Now it is time to collect information on the different attorneys you have found. Start by calling each attorney’s office and requesting the attorney’s written materials on nursing home abuse cases. It is important to say that you want information specifically on nursing home abuse because you want to know right away whether they specialize in this type of case. If a lawyer does not have anything to send you or if he or she tells you that you have to come into their office to get their written materials, you should look elsewhere. Remember, you are just collecting information at this point. You want written materials rather than an in-person consultation because you want to be able to evaluate each attorney’s qualifications carefully and at
Finding The Right Attorney For You
your own pace. You don’t want to be talked into anything over the phone or get a high-pressure sales pitch until you are ready to ask the right questions.
Once you receive the written information, read it. Compare that information to the information in this guide. After you have finished reviewing the written information, create a short list of Iowa nursing home abuse attorneys (no more than 3 or 4) who clearly have the expertise and experience that your case requires.
3. Arrange in-person interviews with your short list of attorneys.
Call each of the offices on your short list and schedule an appointment to speak with an attorney. There is absolutely no substitute for sitting down with an attorney to decide if he or she will be a good fit. An attorney can only represent you well if you feel comfortable with and trust him or her. In addition to your general feeling about each attorney, it is also important that you ask each of them the right questions. We have included some important questions in the next chapter. They are not the only questions to ask, but they are questions that reveal important information about an attorney’s expertise and experience with nursing home abuse claims.
6 SMART QUESTIONS YOU SHOULD
ASK BEFORE HIRING AN IOWA
NURSING HOME ABUSE ATTORNEY
As of the time of this guide’s publication, there were over 9,000 attorneys licensed to practice law in Iowa. With so many options, how do you make sure you are talking to the right attorney for your case? Here are 6 key questions to help you identify the most qualified person for the job.
1. Are you a member of the Iowa Academy of Trial Lawyers?
The Iowa Academy of Trial Lawyers is limited to 250 attorneys who have displayed exceptional skills, the highest integrity and have dedicated their professional lives to trial practice. Membership is by invitation only, with recommendation from peers, judges and unanimous approval by the Board of Governors.
2. Have you been inducted into the American Board of Trial Advocates ?
The American Board of Trial Advocates (ABOTA) is a national association of experienced trial attorneys and judges. Membership is by invitation only. Attorneys qualify for membership if they are judged to be of high personal character, have an honorable reputation and have tried the required amount of jury trials. At the time of this guide's publication, only 82 Iowa attorneys are ABOTA members.
6 Smart Questions
3. Are you a member of the Million Dollar Advocates Forum?
The Million Dollar Advocates Forum is a national organization of attorneys who have had verdicts or settlements of a million dollars or more. At the time of this guide’s publication, only 35 Iowa attorneys have been admitted into this Forum.
4. Are you rated as a Super Lawyer?
Super Lawyers is a rating service of outstanding lawyers from
more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations. At the time of this guide's publication, only 28 Iowa attorneys were rated as Super Lawyers for personal injury cases.
5. Are you board-certified?
The National Board of Legal Specialty Certification is an organization that provides board certification for attorneys. Certificate holders undergo a thorough screening of their credentials, including: documentation of their experience, judicial and peer references, an exam, and they must report any disciplinary matters to the NBLSC Standards Committee. At the time of this guide's publication, only 18 Iowa attorneys were board-certified in Civil Trial Advocacy.
6. Are you a member of AAJ’s Nursing Home Litigation Group?
The American Association for Justice (AAJ) is a national organization of trial attorneys. AAJ members have formed a special Litigation Group to share accumulated information and
experience when handling nursing home cases. Nursing Home Litigation Group members form a nationwide network that shares cutting-edge resources for handling cases involving nursing home neglect and abuse. At the time of this guide’s publication, only 1 known Iowa attorney was a member of AAJ’s Nursing Home Litigation Group.
How do we measure up to the Smart Questions? Smart Questions Our Answers
Member of the Iowa Academy of Trial
John Riccolo and Tim Semelroth are members and Riccolo is a past president of
Inducted into American Board of
Tim Semelroth has been inducted into the
American Board of Trial Advocates.
Member of the Million Dollar Advocates
All the attorneys at RSH Legal are member os the Million Dollar Advocates Forum.
Rated as a Super Lawyer?
John Riccolo is rated in SuperLawyers.com for plaintiff personal injury cases.
Tim Semelroth is board-certified in Civil Trial Advocacy by the National Board of
Legal Specialty Certification.
Member AAJ’s Nursing Home Litigation Group?
Pressley Henningsen is a member of AAJ’s Nursing Home Litigation Group.
WHAT CLIENTS SAY ABOUT RSH
Below is a small collection of comments from past clients. More comments are available at FightingForFairness.com.
“I learned that my mother’s nursing home in Davenport caused her death. I hired RSH Legal after talking to Pressley Henningsen. He knew the right answers - there was no pressure and all honesty. He gave me no hem-haws and was right to the point. I recommend RSH Legal because of Pressley Henningsen - he is one hell of a good attorney and person.”
Terrell Steinmann, Orlando, Florida
“Because of nursing home negligence, my mother fell and died. It was helpful to talk to Pressley Henningsen about my mother’s death because he was informative about what could be done. Pressley impressed me with his promptness and his willingness to keep me informed on all aspects of our case. I recommend RSH Legal because they can help others who may have similar problems with nursing home neglect.”
What Our Clients Say
“I needed a lawyer because my father was mistreated at a nursing home. The lawyers at RSH Legal were very well known. Pressley Henningsen handled everything very well. He explained what he was doing in ways that I could understand. He goes after what he wants and doesn’t back down. I don’t think anyone could have done a better job.”
Jeff Trenkamp, Clinton, IA
“My father suffered injuries while a resident at a nursing home. Those injuries dramatically shortened his life. My local attorney recommended RSH Legal and, after I spoke to Pressley Henningsen, I was convinced that his firm would be a strong asset in my legal efforts. Pressley impressed me with his knowledge, his experience and his willingness to dig in and become thoroughly up to speed on my father’s situation. I recommend RSH Legal because I was treated honestly and fairly.”
Dale Hemmie, Burlington, Iowa
“I had gone to RSH Legal for a different lawsuit, so I came back to them when my mother had an incident at a nursing home. Pressley Henningsen was clear about what we were doing and explained the advantages of an out-of-court settlement. He took the time to make sure that we understood the issues. His ability to negotiate a settlement impressed me. I believe RSH Legal is the best liability law firm in the State of Iowa.”
OUR CASES AND VERDICTS
Here is a collection of significant nursing home abuse cases our attorneys have handled. You can get information about additional cases at our website, FightingForFairness.com. Please keep in mind that every case is different. These verdicts and settlements, while accurate, do not represent what we may get for you in your case. Nor does it mean we win all of our cases – we don’t. You should certainly ask an attorney about cases they have lost as well as cases they have won. We would be happy to discuss any of the following cases – and many others – with you.
$400,000 – Settlement for Head Injury in Nursing Home 83 year-old woman was improperly transferred into her bed, causing a brain injury and eventually death.
$362,000 - Verdict for Wrongful Death of Nursing Home Resident
93-year old retired nurse’s aide dies after being allowed to fall 18 times during a 30-month stay at a nursing home; jury finds nursing home liable for the willful and wanton disregard of their resident’s rights and safety.
Cases and Verdicts
$275,000 – Settlement for Poor Pressure Ulcer Care and Prevention
An 84-year old man with a complicated health history developed a pressure sore in a hospital and was transferred to a nursing home. The nursing home failed to take care of the pressure ulcer and it greatly worsened eventually resulting in surgery and death.
$250,000 - Settlement for Deceased Fall Victim’s Family An 84-year old resident prone to falls dies after a fall at the nursing home. Records reveal that resident had fallen several days earlier and no additional precautions were taken to prevent subsequent falls.
$200,000 – Settlement for Broken Hip
A 90-year old woman suffered a hip fracture, surgery and death due to nursing home negligence.
$125,000 - Settlement for Broken Hip
A 90-year old temporary nursing home resident falls from his bed and breaks hips after staff fails to answer his calls for toileting assistance; resident eventually returns home and lives additional three years with diminished quality of life.
WHAT RSH LEGAL DOES FOR CLIENTS
Keeping in mind that every case is different, here is a list of the tasks we typically perform for our nursing home abuse clients:
• Interview the prospective client to get the whole story of what happened and what factors were involved.
• Educate the prospective client about Iowa nursing home abuse claims and answer any questions they may have. • Provide the prospective client with our New Client Kit
which contains the following publications:
Are We There Yet?: A Guide to the Stages of a Lawsuit; 5 Simple Actions You Can Take to Help Your Case; The Fastest Way to Ruin Your Case;
6 Things You Should Immediately Report to Our Office; Client Injury Care and Expense Log; and
10 Mistakes People Make When Going to A Doctor After An Injury
• Research and analyze any legal issues relevant to the prospective client’s case.
• Collect and analyze all relevant medical records or other accounts of the nursing home abuse victim.
What RSH Legal Does
• Identify the types of experts necessary to evaluate the quality of the injured resident’s care in the home.
• Hire the necessary experts to evaluate the medical and nursing home records and determine whether abuse or neglect occurred.
If the expert evaluation uncovers a viable nursing home abuse case:
• Recommend whether an attempt should be made to negotiate the case with the insurance company or whether a lawsuit should immediately be filed.
• Gather all documentation of the resident’s damages (medical bills, nursing home records, tax returns, etc.). • Initiate contact with the appropriate insurance companies. • Analyze the injured resident’s health insurance policy or
welfare benefit plan to identify whether those groups are entitled to a share of money from a settlement or verdict. • Advise the client about the likely jury verdict value of the
• Conduct settlement negotiations with the defendant’s lawyer.
• File a lawsuit.
• Interview known witnesses.
• Collect physical evidence, like photographs or videos. • Submit written questions to the defendants.
• Assist the client in answering the defendant’s written questions.
• Prepare the client, witnesses and healthcare providers for deposition
• Conduct the depositions of the defendant and the defendant’s witnesses
If a settlement is reached:
• Advise the client about any insurance company’s right to share of the settlement.
• Review all settlement paperwork. If a settlement is not reached:
• File briefs and motions with the court to eliminate surprises at trial.
• Prepare the client and other witnesses for trial. • Prepare and organize trial exhibits.
• Present the client’s case at trial.
• Analyze the jury’s verdict to determine if either side has a basis for an appeal.
• Make recommendations to the client about whether or not to file an appeal.
What Cases Does RSH Legal Not Accept?
WHAT CASES DOES RSH LEGAL NOT
Hundreds of people contact our office every year asking us to represent them. We decline the majority of those requests so we can devote personal, careful attention to a relatively small number of legitimate cases involving serious injuries. The only way we can provide personal service to each of our clients is to refuse any case that does not meet our strict acceptance guidelines. Therefore, we generally do not accept the following types of cases:
Cases that do not involve death or permanent injury: We do not take cases involving no injury or only temporary injury, no matter how blatantly the nursing home erred. As explained earlier, nursing home abuse cases are expensive and time consuming. The last thing we want is to “win” a client’s case at trial and have the client receive little or no money - or actually come out behind - because of the high costs of litigation. The reality is that the cost of pursuing a nursing home abuse case without death or permanent injury is just too high – for both the injured patient and the attorney.
Cases without clear proof that the abuse or neglect caused the injury: We must be able to prove to a jury that it was the nursing home abuse or neglect – and not any other possible
cause – that directly led to the resident’s injury or death. Typically, juries only blame the nursing home as a last resort. If the resident had pre-existing injuries or other medical conditions that could have put them in the same position as they are now, it is highly unlikely that the resident’s case will be successful.
Cases where there is not an involved family: As mentioned earlier, an active and supportive family is crucial to recovering damages in a nursing home abuse case. If this is not present, we may not be able to take the case.
Cases where the statute of limitations will soon expire: It can take as long as six months to fully investigate a claim of nursing home abuse before a suit can be filed. If we are approached without enough time to conduct the necessary investigation, we may be unable to represent you. Therefore, contact us without delay and we can help you determine whether to proceed.
What Cases Does RSH Legal Accept?
WHAT CASES DOES RSH LEGAL
We typically agree to investigate cases involving the following three elements:
• a resident’s death or permanent injury occurring during or shortly after abusive or negligent care; and
• a lack of other likely causes for the resident’s death or permanent injury; and
• evidence suggesting nursing home abuse or neglect did occur.
We accept cases when qualified experts tell us that nursing home abuse occurred and the resident’s death or permanent injury was the direct result. By limiting our nursing home abuse cases to these criteria, we can fully focus on each of our client’s cases. We do not allow ourselves to get “bogged down” with many small claims. Instead, we devote our energies to getting fair compensation for the Iowa nursing home abuse victims who need it the most.
We never file a lawsuit solely to coerce settlement or to harass a nursing home. Such practices can be illegal and could subject the person filing the lawsuit to liability for malicious prosecution or abuse of process.
WHAT DOES IT COST TO HIRE RSH
The vast majority of the injured Iowans who come to us choose to pay for our services on a contingency fee basis. In Iowa nursing home abuse cases, our contingent fee is 40% of the total recovery. The fee is considered “contingent” because you only pay us for our services if we make a financial recovery on your behalf. In other words, if your case does not result in the defendant or its insurance corporation paying you money, we do not get paid for our work.
Hiring our firm on a contingent fee basis provides three main benefits for our clients:
1) it allows you to hire an experienced nursing home abuse attorney without having to make a down payment or pay a retainer up front;
2) it motivates us to work for the highest recovery possible because the more money you receive, the more compensation we receive; and
3) it encourages us not to take unnecessary risks because if you don’t get paid, we don’t get paid.
What Can I Do Now?
WHAT CAN I DO NOW?
You have done the right thing by ordering this guide and educating yourself about Iowa nursing home claims. Remember the general deadline for taking legal action in Iowa is two years after an injury. A person is rarely disadvantaged, however, by starting a search for a qualified attorney as soon as possible after nursing home abuse or neglect.
We hope our Law Guide to Iowa Nursing Home Abuse Claims has been helpful for you. We spent a lot of time trying to identify and highlight the important information every Iowa nursing home abuse victim should know.
Even after reading this Law Guide, we are sure that you probably have specific questions that are still unanswered. In order to provide you with straight answers to those questions, our law firm has created a free case evaluation process that we do over the telephone.
During this free telephone call, you get a personalized, one-on-one case review with an experienced Iowa nursing home abuse attorney who will:
• identify the important legal deadlines in Iowa that cannot be missed if you want compensation for your nursing home abuse or neglect;
What Can I Do Now?
• recommend legal strategies for getting your medical bills paid while you are waiting for a settlement or verdict; • reveal the steps you should be taking to document your
personal accident-related harms and losses; and
• give you an expert evaluation of whether you really need an attorney for your nursing home abuse claim.
Please be assured that these calls are not sales pitches. Our case evaluations are a no-cost, no-obligation opportunity to get the essential information you need to make good decisions about your Iowa nursing home abuse claim.
You can get a free case evaluation of your Iowa nursing home abuse claim either by calling our toll-free number 1-800-67-FAIRNESS (1-800-673-2476) or by going to IowaNursingHomeAbuseFacts.com and filling out the online form.