Q & A With The Chair of Ashcraft & Gerel’s Nursing Home Litigation Group
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Q:What are the primary driving factors that bring clients to you?
A:"I can honestly say after twenty years of representing abused and neglected residents and their families that most of my clients come to me angry and betrayed. The decision to place a loved one in a nursing home is a sacred trust. Betraying that trust is brutal for most family members and when they come to me they usually are understandably angry, guilty and heart broken. They want justice. They want answers and they want accountability."
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Q:Why did you choose this area of law 20 years ago?
A:"Honestly, it was really just a blessing. I was clerking for a law firm in New Jersey. The founding partner of the firm had a winter home in Florida. He saw attorneys trying to bring these types of cases down there and he had the foresight to realize that it was only a matter of time with our aging population before every state in America would have an epidemic of neglect on their hands. He asked me to learn the law and start a practice. At the time (1992) lawyers didn’t want to represent the elderly. They had no lost wages, they were at the end of their life, they were already sick and frail when they went into the facility – in short most lawyers and even judges felt that the elderly just weren’t worth much. For me, becoming a lawyer was about devoting my life to something good. If nobody else wanted to represent these folks, I would. I started a nursing home practice in my first year out of law school and I’ve never looked back. Even today, I routinely meet clients who have been rejected by multiple lawyers because their loved one “is just too old and sick to sue over”. I’ve made an entire career representing that group and I consider myself truly blessed to be the one that gets to say “yes, I will help you.”
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Q:How do you feel about the increasing numbers of lawyers joining your practice area?
A:"Honestly, I’m thrilled about it generally. The more lawyers willing to enter this fight the better in my opinion. But there’s a caveat. If you are going to come into this arena, you better know your stuff. Don’t try to make a quick buck on a nursing home case. Since I began the practice in 1998 I have routinely taught other lawyers how to handle these cases. I have spoken dozens of times to Trial Lawyer Associations, Bar Associations, Elder Law Academies and Continuing Legal Education Seminars on how to handle a nursing home case properly. They are tricky cases. The defense lawyers are strong and the underlying condition of the resident is always being thrown out as a defense to the claims. The regulations are complex and they are typically treated as medical malpractice claims in all jurisdictions. It’s not for the faint of heart. That said, if a lawyer calls me and wants help on a nursing home case, I am always happy to do so. This isn’t just a job for me, it’s a calling and I will take anyone who wants to join this war on behalf of our country’s elderly. What I won’t tolerate however, is a lawyer who holds themselves out as a nursing home neglect attorney only to victimize these families again when they get themselves stuck in a case they weren’t ready to handle. Greed causes that. Greed is also what caused the abuse or neglect in the first place. I have no tolerance for greed. I get referrals from all over the Country and I work with other lawyers in co-counsel agreements so that they know they will not get themselves or their clients into trouble. If you’re a lawyer who genuinely wants to represent these great families, I’ll help in any way I can."
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Q:With caps on damages, tort reform, and the inherent limitations on suing over an elderly person with no lost wages, no financial dependents, what do you want to accomplish in your cases?
A:"Well there really are two distinct but inseparable objectives in these cases and I believe they generally align well with what my clients are looking for when they reach out to me. First, I am a guilt alleviator and a justice provider. The first thing I am trying to do is stop my clients from remaining victims. When they come to me they feel victimized and understandably so. They question why they chose the nursing home. They question why they didn’t remove their loved one earlier. They question why they didn’t ask more questions or seek help earlier when it might have made a difference. That is a lot to live with. Our parents typically protect us in our vulnerable years and the feeling that we have not returned that gift in their vulnerable years can be debilitating. What I want to give every one of my clients is that moment when the case resolves or the jury verdict comes in where they get to move from victim to victor. Whether through settlement or verdict my clients get to see that it wasn’t their fault but the nursing home business’ fault. They get vindicated. The money doesn’t make the pain go away for a lost loved one especially one that died from neglect from a company you trusted. But knowing that you held them accountable and that you got that determination by settlement or verdict, that acknowledgement that it wasn’t your fault, it was theirs – that can make life worth living again. My clients routinely tell me that without the lawsuit they would have been haunted forever. So I like to think that my work gives families peace and the ability to shift from focusing on how their loved one died to how their loved one lived. The second component is what I refer to as “the long game.” It is exceedingly rare that a single lawsuit will bankrupt a nursing home business or certainly a chain for all the reasons you just mentioned. That said, one of the primary objectives of my clients is to ensure that what happened to their loved one never happens to anyone else. I explain to my clients that while their case alone won’t likely close the nursing home down, it can and probably will save someone’s life. I have had the benefit now of 20 years of suing nursing homes for abuse and neglect. I have seen what these cases can do in the aggregate. I have seen policy changes because of my cases. I have seen staff added because of my cases. I have seen new leadership put in place at nursing homes because of my cases. That is a lifetime goal of mine – to improve the quality of care in nursing homes so that when I leave this world I am leaving it better than when I entered it. The beautiful thing about that is that every client gets to join me in this goal. Their loved one gets to leave a legacy of helping others. They didn’t suffer for nothing when our lawsuit is over. They suffered, which is a tragedy but because of the lawsuit, that family knows that the suffering likely improved the quality of life for other elders who enter that nursing home after their loved one and I have seen that over and over again and it really is something to behold. That is what it means to “turn victims into victors” which is our departments mission."