What makes a nursing home abuse case worth fighting for? The value of a lawsuit can hinge on several critical factors that are often overlooked. Understanding these factors can mean the difference between a nominal settlement and a truly fair compensation. In this week’s episode, nursing home abuse attorney Rob Schenk discusses the top five factors that impact the value of a nursing home case, from the severity of the injury to the clarity of the evidence, and how these elements influence the legal strategies used to advocate for victims and their families.

5 Factors that Affect Nursing Home Case Value

Schenk: 

Five factors driving nursing home case value. Stick around.

Hey out there. Welcome to the nursing home abuse podcast. My name is Rob. I will be your host for this episode. And today we are talking about the, some of the factors, not all the factors that drive the typical nursing home case value, whether that be negotiated settlement value, mediation value, or verdict there are typically going to be certain types of factors.

And again, unfortunately, you’ve just got me rambling on for however many minutes with no guests this week. We’re going to be talking about something that it’s, we’ve talked about it in previous episodes. I think in reality, what are we what episode was this? This was number 25. It was one of the first episodes.

Why does arbitration afffect nursing home case value?

We talked a little bit about this, about why an attorney might take a case and what it, what affects case value. Essentially, I will get. And that, cause I’m a very small firm. I might get one or two calls a day of potential clients wanting to see if they have a case. So what is that about?

Let’s say I get 75 calls a month of those 75 calls, maybe four or five of them. If I’m lucky, will be worth investigating of those four or five that are worth investigating. Maybe one or two will be viable cases. I don’t get a lot of calls. I don’t take a lot of cases. And the reason why, unfortunately is because typically, as you can see, 95 percent of the calls I get, there’s going to be an issue with one of these five things that I’m going to talk about.

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The only thing that an attorney can do. is to get you compensation for whatever your loved one has gone through. The civil justice system cannot undo harms. They can’t make the nursing home hire more people. They can’t make the nursing home say they’re sorry. The only thing that a. A lawsuit or a claim can do is to provide you in some ways compensation for monetary compensation money for what happened.

And as I mentioned, there are going to be, there’s many factors, but I’m going to be talking about five factors that affect how much money ultimately the claim or the case. And, I’m sure that for every attorney, there’s a different opinion about this, but this just happens to be mine in, this year, 2024, 2025.

This is what I’m thinking are major drivers, not the only drivers, but the major drivers of case value in nursing home cases. So the first thing is forum. In other words, where Is the case going to be heard? Primarily what we’re dealing with forum is the concept of arbitration. So oftentimes when we put our loved ones in nursing homes, we get a stack of paper.

Actually, that’s not true. We get now we get an iPad put in front of us and we just hit buttons without reading anything. But buried in those documents buried in that E data is an arbitration agreement. And we signed that arbitration agreement on behalf of our loved ones, oftentimes. And there’s a reason why that arbitration agreements get put into these these admission packages.

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And that’s because statistically, the Arbitration award is typically going to be less than a jury verdict. So there have been studies on this that the, that a jury verdict tends to be higher, all things considered than the average arbitration award. Now, of course, there’s many other reasons why the nursing home wants to arbitrate their claims versus have it heard in a court of law.

But fact that we’re worried about today is the fact that typically the award. Is going to be less and I’m sure there’s many reasons for that. The a jury of our peers perhaps are driven by. Other things than an arbitrator arbitration panel is the arbitrator perhaps turns off some of their emotion.

I don’t know, but for whatever reason, that jury is going to typically award more money than an arbitrator arbitration panel. So that the forum is one of the first things that we look at. I know many attorneys that if the claim is going to be heard in arbitration, they won’t take the case. That’s not me, but that is how serious this particular factor is in, in case selection is forum, if it has to be arbitrated or not.

Learn about the importance and process of MDS assessments in ensuring quality nursing home care from the article What Is an MDS Assessment? on Chron.com.

How does venue or county of the case affect case value?

The second one is, and these are no particular order, and again, these aren’t, they’re only five factors, is the venue. We actually talked a little bit about this in our episode with Attorney Jeff Helms. What county the case is going to be heard in at least in the state of Georgia can be the difference between, a major settlement or a major verdict or no offer and a defense verdict.

Because it just so happens demographically in certain parts of whatever state you’re in, there are going to be counties that are conservative and not necessarily politically conservative, but conservative in the sense of not awarding very much money. And they’re going to be more plaintiff friendly counties that typically you have larger verdicts or the quote unquote nuclear verdicts, although I don’t.

I don’t subscribe to that terminology, I think there’s just verdicts. If the attorney can place that claim under the facts and under the law in a County that is more plaintiff friendly, that is going to seriously affect the settlement value, potentially the verdict of that particular claim.

And of course, in every state, the laws of venue are different, but In this, like the state of Georgia, there, you have three or four ways that you can play, for lack of a better word, with where to bring the claim and what county you’re going to bring the claim. So there are some nursing home chains where the registered agent is in a more plaintiff friendly county.

Understand the timeline and processes involved in settling a nursing home case in our podcast episode, How Long Does It Take a Nursing Home Case to Settle?.

Then the actual facility and based on the laws of the state of Georgia, you can bring the case in the county of the registered agent versus the county of the actual facility itself. So you might bring it in that plaintiff’s friendly county based on registered agent versus where the facility is, and that will affect the case value.

Of course, As we know, they’re form non convenience and all that, but the actual county itself, there’s ways that you can select the county that’s going to be best for you. If you can. Sometimes you’re just stuck in the conservative county and you have to factor that in. So county venue is an important driver of case value.

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Learn about the types of damages awarded in nursing home abuse cases and what they mean for the victims and their families in What Are Damages in a Nursing Home Case?.

Does the defendant affect nursing home case value?

Another concept, and again, we talked about this concept with Jeff Helms in his episode, so go and check that out. Who is the defendant? There is a big difference in terms of your natural reaction to a typical pressure injury case, like a bad pressure injury case. If the nursing home is a mom and pop, if it’s a part of this mammoth corporate chain, if it’s a part of the hospital authority or a nonprofit part of the state government.

So who is the defendant? Who is the, who are you making the villain can factor into value because. A lot of times, even in venues that are plaintiff friendly, if you’re talking about this is the major employer for the county, then you might, there might be less of a chance that you’re going to get a big verdict or less of a chance that you get a plaintiff’s verdict.

From a broader standpoint, what you’re trying to do when you’re bringing a claim is make the defendant. the villain of the story. You’re trying to show that this is, this facility is operating in a way that systemically causes problems. And it’s easier, quote unquote, to do that when you’re dealing with the, like a massive corporate chain, it’s easier to make that corporate chain of villain.

Cause you, Oh, they’re there’s funneling money out. The owners are driving a Lamborghini. You can’t really make that argument as boldly as it with the hospital authority or a nonprofit or mom and pop. So the who the defendant is oftentimes. Really matters. That is a major driver. Oftentimes in the case.

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Why does the resident and resident’s family matter to nursing home case value?

Now, again, like I said, there are asterisks on everything, right? If you have a really bad case, like a really bad incident, there’s, videotape of something bad going on. Some of this stuff won’t matter. Some of it won’t matter. Just talk about in general, these are the drivers in general.

What about the plaintiff? We talked about the defendant, the, who the plaintiff is, has a major effect on the value of the case. It’s a misconception that because something bad happened to person A and something bad happened to person B, they should receive the same amount of money. That’s not true.

The juries are looking at who the resident was in their life, who the resident’s family was in that resident’s life. So what I mean to say is that often the, who that person was, who the resident was, is And the jury oftentimes is going to be more likely to give money to someone who had a loving family.

They talked every day. They’re constantly, showing affection. Perhaps they were a career, the career military, for example or church pastor. How they live their life can matter in a case because that’s going to go towards the damage. It’s going to go towards how inflamed the jury is that the nursing home killed this person.

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Whereas on the other end of the spectrum, you have people that are perhaps spent 40 years in incarceration. or who don’t have any relationship with any other family members. These things affect the value, even though some would argue that they shouldn’t. Pain and suffering of the church pastor who is a military veteran and who, has never gone a day without calling a grandkid for 40 years.

The pain and suffering he went through is just the same as the person who, did 40 years for. murdering two people. That is a factor. The jury takes all that into consideration, the relationship that the resident has with the family, who the resident was a lot of times. So the last factor that I wanted to talk about, and this is probably one of the main reasons why Most of my cases, most of the people that call me, I’m unable to take the case.

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What are damages and how do damages affect nursing home case value?

And that has to go with the concept of injury or damages. I often get calls where the resident almost fell out of bed or almost fell out of bed 10 times, or perhaps did fall out of bed, but when they fell out of bed nothing happened to them. No broken bones, no bruising, no anything. And people will say they’re liable because they were, they violated the standard of care.

They should have done something to prevent the guy from almost falling out of bed or from falling out of bed that time. And that could be true. That absolutely could be true, but that’s not the. that’s typically not going to, that’s not going to drive the case value. I call instances in which there is a likely violation of the center to care or negligent act, but no damages or no injury, a close call.

And it’s possible that you could bring a case that’s just a close call, but it’s almost assured that you’re going to get a verdict of nominal damages, meaning they’re going to give you a dollar. Because what’s it worth to fall out of bed, but you’re not be injured. And so a lot of times people will call and say, I this, my loved one got a UTI and they didn’t call me because they didn’t call me that they should have called me, but they didn’t.

Understand the Bates-Jensen Wound Assessment Scale and its relevance in nursing home care on the Schenk Firm’s blog.

That’s, that’s, there’s, yes, they maybe they should have called you based on the state or federal regs. What is the damage in that instance? Unless you’re going to argue that them not calling you had some effect. on the care just because they violated the regulation typically is not enough to sustain a claim.

You have to show that there’s some type of physical or emotional injury involved. It’s not enough for close call. And that’s a problem for the civil justice system of the United States, or at least in the state of Georgia, that you can have a nursing home consistently violate the standard of care, but because there’s not a grave injury there’s no case and it’s not fair for the instances in which there is an injury, but it’s not a grave injury.

So there’s a difference between a person that falls out of bed and perhaps has to go to the hospital and get x rays. But nothing else happens, but they had to spend the night in the hospital, which is uncomfortable and go back versus the person that falls out of bed and gets a subdural hematoma and internally bleeds out and passes away.

Gain insights into the Stages of a Nursing Home Abuse Lawsuit through our detailed discussion on the legal process involved.

Both of those are instances in which there’s an injury. Likely only one of those is going to sustain a lawsuit. Only one of those, which is the death case is going to justify the amount of money it costs to, to take that case. And so that’s the issue that I see the most is the idea of this is, this has happened to your loved one and it’s bad and it shouldn’t have happened, but the injury is not such, or there is no injury, but the injury is not such that we can spend the money to get you recovery because we’d be spending 5.

to make a dollar because typically the driver of the case is the injury itself. And that’s a lot of times that’s a hard thing for the loved one to be able to stomach and be able to understand it. And rightfully it’s not right. Like it should be, I’m not saying that you should be able to 23 skidoo and be in front of a judge, but there is a certain threshold that a lot of people aren’t really Making to get into to the courtroom that maybe should, but I guess on the other end of the spectrum, if there was a lawsuit every day, then maybe we wouldn’t have nursing homes.

Listen to how attorneys decide to take on a nursing home case in our podcast episode, How Does an Attorney Make the Decision to Take a Nursing Home Case?.

I don’t know, but damages, injuries, there typically must be a grave injury, broken bones amputations, extended hospitalizations, great wounds, like bad wounds that last for weeks and months, these type of things. it’s going to be too expensive of an endeavor to take the claim on. So I guess in, in in summary, the five primary drivers, at least for me for now that I’m looking at are forum, the venue, who the defendant is, who the resident is.

And then finally, what injuries are we looking at? And then Ultimately you have to have liability and causation. These are two concepts that are a little bit a little bit beyond the focus of this particular episode, but there has to be obviously the evidence the nursing home did something wrong and there has to be evidence that what they did wrong actually caused the injury.

Those are two components, but typically the case value is going to, it’s going to be driven by one of those five things. I’m not bringing a claim unless I have liability or causation. Cause you have to have those. But anyway I feel like I’ve just rambled on for a while. Hopefully you found this episode educational.

I promise that I’ll have more guests next time. So it’s not just me rambling and rambling new episodes of the nursing home abuse podcast come out every single Monday, wherever you get your podcast from, as well as YouTube. If you have an idea for a topic that you would like for me to talk about, let me know.

Explore the complexities and challenges of nursing home litigation in the podcast, What Makes a Nursing Home Case Difficult?.

If you have an idea for a guest that you’d like for me to talk to, please let me know that as well. And with that folks, thanks for listening and we’ll see you next time.

Again, that’s nursing home abuse podcast.com. See you next time.