This article was first published in The Trial Lawyer’s College Spring 2016 Warrior Magazine. The Trial Lawyer’s College has the copyright. Special thanks to TLC for letting RSH Legal re-publish the article.
In many of my cases I am representing the family of a deceased parent who died at the hands of a nursing home corporation. I’ve been doing this work for a little over 15 years now. Every case sticks with me. To this very day, I think about Ethel White a lot; she was my first nursing home trial. She was 93 when she died. She went to the nursing home because of a broken hip and over her 30-month stay there she fell 18 times. She did not survive the last fall. Of course, there was a great causation debate at trial as to what actually caused the death of an elderly woman with so many co-morbidities.
To make matters worse, Iowa has a miserable wrongful death statute. It is primarily a wage earner’s statute – there is no value given for the loss of life. Generally, the only vessel for damages in a nursing home case is pain and suffering and any accompanying punitive damages, if allowed. I had so many lawyers and judges think I was off my rocker to be taking a 93-year-old’s wrongful death case to trial. Right before trial I reread How to Argue and Win Every Time. During the trial I did a few things right, but I also made mistakes. I know I was at least honest with the jury and by the time we arrived at closing, I delivered a story of betrayal. The jury agreed and returned one of Iowa’s earliest nursing home negligence verdicts.
Since that first trial with Ethel White I have devoted a fair amount of my time representing people injured or killed by nursing homes. I have had a measure of success at it, but I also have been schooled on some painful lessons. So as I remember the positive lessons of Ethel White I also remember Robert Lane, another case I tried before attending the College.
Robert was left to lose over 40 pounds in a few short months under the so-called “care and supervision” of staff – his bleeding ulcers decimating his body so much so that his own son did not recognize him after a three month time period and upon a return visit. I was angry the day I learned about Robert’s case. My anger and frustration grew as the court allowed two continuances because the defendant failed to provide discovery. I was angrier still when the court sustained three of my motions to compel but no meaningful sanctions were ever set down. I was truly angry when we finally arrived at trial, nearly eight years into the case, and the judge demanded that the case be submitted to the jury within five days. One fiasco after another occurred during the trial. I could have secured a mistrial in that case – I should have done so – but my anger was controlling me, and I lost that case.
After losing Robert’s case I spent some time seeking answers, re-reading some of Gerry’s work, doubting myself, and so on. Coming out of that funk and finding a way to get back on the path was not easy. All of us who have lost cases can relate. It hurts and it brings with it a stampede of self-doubt and self-loathing.
After graduating from the Trial Lawyers College in July 2015, I had my first “post-grad” elderly neglect case in November 2015. Dean Heppner lived in the front of the assisted living facility for several months. It was a pretty facility up front. There was a pool table, an ice cream machine, and people seemed to be active, coming and going. But when Dean’s dementia worsened, the facility moved Dean into its “memory care” unit in the back, assuring Dean’s family that this was for the best as he would not have to move to a full-blown nursing home – and the memory care unit was not like the front of the house.
The memory care unit was behind a locked door. About ten highly demented folks lived there. At night, the nursing home staffed the memory care unit with just one person to bathe, feed, supervise and keep them all safe – an impossible job for one person to do. Simply put, the staff was set up for failure. Dean Heppner declined quickly in the back of the house, engaging in numerous harmful behaviors, losing weight, and losing all of his dignity. One night he stood on a chair, fell, broke his hip, and died ten days later.
Per usual, the insurance and elder care corporations did not value the risk associated with the Dean Heppner case. It is a circle: they did not value Dean in the first place, which is why we ended up here, and to be consistent, they did not value the loss of Dean either. I’m actually glad they did not value the risk because it made it very easy to go to trial.
The judge was confused at times by my approach. He interrupted me a few times during this process and I finally asked him, as nicely as I could: What would you like me to ask the jury? I’m sure he was concerned we were in a never-ending rabbit hole talking about damages when in reality the tribe was having a very meaningful discourse that was unifying us – and that magic moment happened as they were discussing why give money at all if it wasn’t going to fix what was broken, what was lost…one juror leaned back in his chair and offered: “Maybe we are here to punish them, to make sure this never happens again?” “Thank you for sharing that,” I replied and then got the hell out of the way so they could keep talking. It worked.
It was very important for the jury to understand the vast difference between the front of the house and the back, where the memory care unit was located. The front was simply so nice, so clean it could not have been the setting of such bad care. The memory care unit was very different and a place no one should have to live – the home did not have the staff and resources to care for people with such severe dementia. In order to make this demarcation clear, during the direct examination of my client’s daughter, I had her step down and show us the layout of the assisted living unit. I asked if it would help the jury to understand the layout of the facility if she could step down and just show us how it was laid out. She walked about the well and pointed out the general location of the front of the house, the nurse’s station, the main office, the pretty marble mosaic on the floor as you entered the building. We then pointed out the location of the locked doors directly in front of the jury box. It just so happened that the jury box became the location of the memory care unit – a reference I would make use of during closing arguments. In closing I specifically said to the jury, “What if eight people with severe dementia were really behind these closed doors and there was only one aide to care for them all – what would be happening, what would the risks be, is this how we should care for our elderly?” My takeaway here is that not every courtroom reenactment needs to be about the most dramatic event in your case. Using reenactment with a witness to set a scene, as opposed to a dramatic event, allowed me to bring the jury back to the location during closing where we would relive the important moment of Dean Heppner’s fall together. In closing I was able to bring the jury back to the location of the fall by reminding them where the cold marble was located as I touched the courtroom floor, the smells of the cleaning solutions described by the daughter, and ultimately to those locked doors again. I asked the jury to imagine me as Dean’s daughter in that moment when she saw her father on the floor writhing in pain with a broken hip and I picked his body up off the floor and handed Dean to the jurors. His legacy was in their hands. It was not a gimmick or trick, it was genuinely necessary in order to share the true and accurate story.
I never met the defense nursing expert until trial. We took her deposition telephonically. She was very kind on the telephone. But when she appeared in the courtroom in her overly tight gray flannel suit and ruffled shirt poking out like a proud bird, my instinct was to attack. On direct, her attitude was curt and arrogant. She turned to downright smug on cross-examination. I could feel my anger. I put it back in my pocket and instead kindly asked her about what it meant to her, as a nurse, to be a patient advocate. I reminded her that her first calling was to help people, to help patients and now she finds herself today in a courtroom and how that must feel odd given all of her training geared toward helping patients.
We then gently discussed some of the errors in her report and contrasted that with the importance of accuracy in medical charts. When she would ramble and try to sell something to the jury, I would let her go for a while – then I would turn and look right in the eyes of my jurors, asking with my look for their permission to silence her and when I received it I would slowly raise the palm of my hand as you might to a child who is yelling and you want them to play quitter. I kept my hand raised and did not look at her until she would eventually stumble, sputter, and then stop. And I would return to the conversation by saying something like: “I appreciate you would like to share something else with the jury, before we do that, and I promise I’ll let you go back and explain what you were talking about, what I asked was medical charts need to be reliable because subsequent caregivers are going to base medical decisions on what is in that chart – such as did this patient get the medicine on time?” She would have to agree. And after she agreed, as I promised, I turned to the jury and would say, “Thank you for answering that for us, please go ahead and share with us whatever it is you were trying to say.” I did this a couple times. By the third time she finally got it – the tribe wanted the answers to the questions I was asking on their behalf – not her ramblings. About the third time she replied: “I have nothing to add.” She simply answered my questions after that and she knew she could not sell bad nursing care to the jury. She knew she was in conflict with herself as a patient advocate. She had lost creditability with the tribe. She was dejected and frazzled and I never ever once shared any anger with her.
I know this next statement has an element of judgment and let me apologize up front – but I am tired of bearing the burden of lawyers who did not go into the courtroom, sold their clients short, and accepted a poor settlement because of fear. I have fear. I make mistakes. But I have to fully represent my clients or get a new job. I have learned to embrace my fear. I do not want to give credence to another judge, mediator, lawyer, or adjuster when they declare: you can’t ask for that, cases here are not worth that much, no one will value the life of a person who is already dying, etc., etc., etc..
During trial the defendants kept increasing their offers but my courageous clients stayed strong, and we saw the case through to a verdict. In Dean’s case I asked for what I consider to be a fair amount for his pain and suffering – even though he was a man who could barely remember himself, probably had less than a year left to live, and was on heavy pain killers the last ten days of his life. I truly feel in my heart that what I asked for was a reasonable amount – maybe even too little. The jury disagreed with me and set an amount at less than what I asked for but still significant. I accept this and can be at peace with their decision.
Like most TLC attendees, the cathartic process of the Trial Lawyers College was both the respite and the motivation I needed. With endless thanks to the College instructors and staff (a very special shout out to psychodramatist Kathryn St. Clair, our TLC group leaders, and the Stupid Smarties) I found exactly what I was looking for: a tribe of warriors and a reassurance that justice is a truth to be sought and shared through the personal story.
The truth of the matter is the Trial Lawyers College helped me fully accept the power and the justice that only the jury can deliver. It is my job to share the personal story and ask for justice. It is the jury’s job to determine exactly what that justice is – whether I feel it is good, bad, or ugly – I must accept it. The beauty of this is that I can only truly accept the jurors’ judgement, without any guilt or second guessing, if I have fully done my job. I now know I can only completely do my job if I apply what I have learned at the College at every step along the way. For those of you who have felt the lonely struggle, the long path to justice, do not give up. Keep walking this path. I have deep gratitude for you all and I no longer feel alone in this daily battle. Please know you too are not alone.