Asking For A Friend: Xavier Carter on Nursing Home Neglect

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Transcript

Jeb Butler:

If you work for long in the field of personal injury, you learn that nursing homes can be scary places. Nursing homes are supposed to be where we put people who are vulnerable and need help, and where they live out the golden years of their lives.

Jeb Butler:

Some nursing homes are like that. There are nursing homes out there that take great care of people who live there. But there are others who don’t. There are others who become so motivated to seek greater profits that they won’t spend the money that they need to spend to take care of their own patients, and really bad things can happen when that occurs.

Jeb Butler:

Today, we’ll talk with Xavier Carter, a friend of mine for a long time. Xavier specializes in this area. He handles a lot of nursing home cases. He’s got some great results and some big verdicts. He’s seen some pretty troubling things. He’s handled cases where patients became dehydrated, severely dehydrated, because the nursing home wasn’t even giving them enough water.

Jeb Butler:

He’s dealt with cases where patients were repeatedly bitten by ants because the nursing home was in such poor condition.

Jeb Butler:

So today, we’ll talk with him about those things, about his practice, and about what you can do if you or a loved one has been at a nursing home and has suffered elder abuse.

Jeb Butler:

Well, thank you for joining us. Tell us who you are and what your practice is.

Xavier Carter:

Sure, Jeb. Thanks so much for having me here. I really appreciate it.

Xavier Carter:

My name is Xavier Carter. I’m an attorney at the law firm of Watkins, Lourie, Roll & Chance. And my practice primarily consists of complex [inaudible 00:01:42] personal injury law. That includes a particular specialty with regard to medical malpractice and nursing home negligence, includes trucking cases, or any… premises liability, any case in which someone is catastrophically injured. Or in a lot of cases, unfortunately, clients are deceased, so wrongful death cases.

Jeb Butler:

Sure. In your practice in particular, is nursing home something that you focused on?

Xavier Carter:

Yeah. Yeah. A significant portion of my personal docket relates to nursing home litigation and cases in which someone has been treated poorly in a nursing home or an assisted living facility, or other type of long term care facility.

Jeb Butler:

Sure. Well that’s what I wanted to ask you about today. I want to hit you with a little bit of a fastball to start. And that’s this idea that I think a lot of people have.

Jeb Butler:

Taking care of older people is not easy. Their bodies are declining. They can be sometimes maybe not easy to deal with. Sometimes their families aren’t easy to deal with. We have these people who aren’t getting paid that much, working really hard to take care of these folks. And here you are suing them. What’s that about?

Xavier Carter:

Yeah, that’s a good point, Jeb. And that’s a good question. The way we view it is… Because the one point that you made is oftentimes you’ve got really good people within the facility who are trying to do their best to take care of these individuals, take care of our senior population.

Xavier Carter:

But they are put in such a poor position by the corporations that generally and typically run these nursing homes and long term care facilities that relate to under staffing, just not giving them the resources and the time that they need to give the care that our elder population really needs to thrive in their later years.

Xavier Carter:

And so we don’t view it as we’re suing the people who are taking care of our senior population. We view it as we’re suing usually the larger corporation that is failing to give those individuals, those caretakers, what they need to take care of our loved ones.

Jeb Butler:

Well, so who’s in charge then in the nursing homes that you’ve, I guess, encountered-

Xavier Carter:

Yes.

Jeb Butler:

In litigation. Who’s really running the show? Is it the doctor who’s supposed to be the medical director? Is it the nurses? Is it some offsite corporation run by dudes in gray suits?

Xavier Carter:

Yeah, that’s a great point. So most of the times it’s really being run from the gray suits, in a far off corporation. You’ve got the nursing home facility that’s there on the ground. And they’ve got an administrator or an executive director who is oftentimes and usually reporting to someone that’s in a larger corporation maybe a-

Jeb Butler:

What do you mean reporting to?

Xavier Carter:

Reporting to in the sense that their boss is the regional director or the district director for such and such who reports on up to the senior vice president of such and such, who reports on up to the CEO of such and such.

Xavier Carter:

And you’ve got this larger corporation who is extracting value in a number of different ways from the facilities that are there on the ground, supposedly taking care of our elder population.

Jeb Butler:

I have not ever heard this phrase, but I’m interested in it, “extracting value.”

Xavier Carter:

Yeah. Yeah. Yeah.

Jeb Butler:

Tell me what that means.

Xavier Carter:

Yeah. So, you mentioned earlier that it takes a lot to take care of the senior population. And the government typically pays for a lot of that. Right? And so our government has come in and said, “Hey, we like the nursing home set up. We will pay people to run these nursing homes. And we will reimburse for certain types of services provided.”

Xavier Carter:

And so these larger corporations understand how the reimbursement is working, how the payment structure is working. And they charge for the various services that are being provided to the individuals on the ground.

Xavier Carter:

And what I mean by extracting value is the larger corporation is finding all of the ways that it can charge for services that are being provided. And even if they are not providing those services, sometimes we see that they will bill for. And they will extract the value from the lower level, from the on the ground facility, up to some parent corporation or some consulting company that’s also owned by the parent corporation and things of that nature.

Jeb Butler:

So money comes in through the patient insurance, which is usually the government?

Xavier Carter:

That’s right.

Jeb:

And that’d be like Medicare, most of the time, I guess.

Xavier Carter:

Medicare, Medicaid, Tricare, various, government payment form. Sometimes it’s private insurance, so various payment sources. But lots of times with our elder population, it’s Medicare and Medicaid.

Jeb Butler:

Okay. So money comes in to the nursing home where, say, my grandmother lives. And is the money most time staying there in that facility? Or is it moving… What you laughing at? Where’s it going?

Xavier Carter:

No. No. I laugh because, Jeb, it’s oftentimes controlled so much… I thought, when you said that, I thought of a particular case that we had where the on the ground nursing facility had a bank account. Right? And the administrator for the bank account for the facility, which is the top person in the facility that’s on the ground taking care of grandma, she had no control over the bank account.

Xavier Carter:

So if she wanted to buy a new bed or a new piece of equipment for someone in her facility, she had to ask the corporation up above, the corporation that was somewhere else, to stroke a check or make a payment to… and just had no control over the bank account itself.

Xavier Carter:

So every night the funds would sweep out of the bank account for the on the ground facility, along with the other 20 or 30 or 40 facilities around the state or around the country. The money would sweep out from that bank account into the bank account of the larger corporation. And so-

Jeb Butler:

How much of it would sweep out?

Xavier Carter:

Oh, we’re talking thousands, and hundreds of thousands of dollars. And it’s going straight up to the parent corporation who’s controlling costs at every level and pushing down on the facility.

Xavier Carter:

We see emails all the time where the emphasis in focusing on control costs, control staffing. And it really has an impact on patient care. It really does.

Jeb Butler:

Controlling cost, do you see… I’m going to use a big word that I learned in school, hope I use it right. Do you see a, wait for it, dichotomy between concern over controlling costs and concern about taking care of patients, on the other hand?

Xavier Carter:

There is a dichotomy, Jeb between-

Jeb Butler:

Oh, yeah. Tell me about this dichotomy, Xavier.

Xavier Carter:

Right. And so the biggest cost for a nursing home or long term care facility is typically in its staff, right? The people that come in and take care of grandma and grandpa and mommy and dad.

Xavier Carter:

And what is often required for someone who’s in that stage of life is hands on care to help them get dressed, help them get bathed, help them get fed, all those things. Well, you need people to do that. You need people who can spend quality time, significant time, with that individual to do all those things. All that costs money. Right?

Jeb Butler:

Right.

Xavier Carter:

And that costs money. So the more individuals you have doing that, and the more time that they’re spending doing that, your costs are increasing. And what we often see in… But that’s what you need. That’s what you need to take care of someone, provide someone who’s in that condition, the level of care that they need.

Xavier Carter:

And in fact, that’s what we think we’re getting when we put mom and grandma in that facility.

Jeb Butler:

Right.

Xavier Carter:

But the dichotomy is for the corporation that is trying to, again, extract value. The more they can keep those costs down, those labor costs down, the more profit they can extract.

Xavier Carter:

And so that’s generally what we see. And when they’re focused on keeping costs down from a labor perspective… Or also oftentimes there’s different types of equipment that are needed. Right?

Jeb Butler:

Sure. Yeah.

Xavier Carter:

There are different type of treatment and services that are needed. And if they can control the cost of say, “Hey, don’t order too many supplies or too many mattresses or support services,” that can address that wound or address those wounds that are developing, to the extent they can keep that stuff down, they can extract, again, more value for the corporation and for the people at the top.

Jeb Butler:

Because people at top make the money that comes in from the government, the insurance minus what they spend.

Xavier Carter:

Correct. Yeah. Absolutely.

Jeb Butler:

That’d be what profit is, I guess.

Xavier Carter:

Yeah.

Jeb Butler:

More lessons in economics coming next episode. All right. So, Xavier, are all nursing homes run by people? Or I should ask it this way, are all nursing homes places where value is extracted that no one cares about patients? Or are there some good ones out there?

Xavier Carter:

Yeah, of course. Right? Right. Of course.

Jeb Butler:

Yeah to which one?

Xavier Carter:

Huh?

Jeb Butler:

Yes to which? They’re all bad or there’s some good ones?

Xavier Carter:

Right. That’s a good point. I find myself doing in depositions all the time.

Jeb Butler:

Okay. Okay.

Xavier Carter:

Yeah. There are some decent ones out there. And it can be difficult to find those. And so the trick is how do we find them?

Xavier Carter:

There was an article a couple weeks ago from the ‘New York Times’ about there’s a rating system called five-star rating system. And it’s about how some of these larger corporations have found ways to manipulate the five star rating system so that when you are looking for a place to put your loved ones, you say, “Oh, this is a five star facility. It’s five out of five.”

Xavier Carter:

They figure out how to manipulate the process so that it looks like they’re a great facility, but and they do things aesthetically to make it look like it’s a great facility, even when you come and visit. But oftentime, the care is just not there.

Jeb Butler:

So what should I do if I’ve got a loved one in a nursing home facility, and I’m starting to suspect that not everything is as it ought to be?

Xavier Carter:

Yeah. The best thing that you can do, and to the extent that you can do it, is to be an advocate for your loved one. Right?

Jeb Butler:

What does that mean?

Xavier Carter:

Yeah. You want to visit as often as possible. If they know that someone is going to be there, they’re going to have a report to, then if mom is here and her neighbor over here is not having a visitor, and this staffer who was facing this dichotomy that we talked about earlier is figuring out who’s he going to spend more time with.

Xavier Carter:

Well, if neighbor’s family isn’t coming and visit, but mom’s family is, then they’re going to spend a little bit more time with mom’s family, with mom and make sure that she’s clean and-

Jeb Butler:

Because otherwise they might get caught.

Xavier Carter:

That’s right. They’re going to have to… And so advocate with the caretakers that are hands on in the day, advocate with the administrator in the facility. And you think things still are not going right, here in Georgia, we have the state ombudsman’s most states do.

Jeb Butler:

A state what?

Xavier Carter:

Ombudsman.

Jeb Butler:

What is that?

Xavier Carter:

It’s a fancy word for someone in the state that’s charged with making sure that nursing home facilities are treating people fairly. And so reach out to the state ombudsman and say, “Hey, this is what’s going on.”

Xavier Carter:

Now a lot of times, oftentimes, those offices are understaffed and under resourced, and just don’t have the ability to investigate every claim. But at least you’re starting to make a record.

Xavier Carter:

And if, even following that, you think it’s worse than that. If you suspect abuse or the neglect of such that mom or grandma is really in a bad situation, you might want to look into finding legal representation, someone that can do something about it.

Jeb Butler:

Are there steps that someone should take to preserve evidence, or maybe even from your perspective?

Xavier Carter:

Yeah. That’s a great point. That’s a great point, Jeb, take notes. Take notes of what you’re seeing, what you’re documenting.

Xavier Carter:

Take pictures. One of the things we often see pressure wounds and pressure sores. Pressure sores develop when care is not being provided. Mom, grandma is not being turned as often as they should, not being gotten up out of the bed and exercised and things like that.

Xavier Carter:

And these pressures, the word “pressure sores” sounds like, “Oh, it’s just a small…” These pressure sores can get really really bad, really really gnarly to look at.

Jeb Butler:

If you Google them, you’ll find some pretty disturbing images, I think.

Xavier Carter:

Pretty disturbing images. It sounds not as bad as it really can be. And if that is developing and you see that happening, take pictures. Because that’s what can really drive a case to, or drive a facility. If you can show, “Hey, this is what is happening to my mom.” “This is what happened to my grandfather,” you can really have a visual depiction of what’s going on in that facility. And it helps us to do our jobs. It helps us to do something about it.

Jeb Butler:

Yeah. So what are some of the typical challenges that if you’re handling a nursing home case for a client, what do you face in most of the cases?

Xavier Carter:

Well, one challenge is the loved one who has been mistreated is often no longer here, because-

Jeb Butler:

Can’t tell the story.

Xavier Carter:

They can’t tell the story. They can’t tell the story about what happened to them because they’re no longer here. Because the care was so poor that they developed sepsis from a really bad pressure wound, and their fragile bodies just couldn’t take it anymore.

Xavier Carter:

And they’re no longer here to tell that story. Further, even when they’re being treated poorly, a lot of them have dementia. And the facilities know that they have dementia. So some of that poor care comes from them not being able to advocate for themselves while they’re here.

Xavier Carter:

Other challenges include, we know oftentimes that the understaffing is taking place, that the care providers who are-

Jeb Butler:

Understaffing, just not enough people hired to do the work?

Xavier Carter:

Not enough people hired to do the work.

Jeb Butler:

Okay.

Xavier Carter:

The people who are there having to take care of 15, 16 patients on any particular given shift. So, a lot of times our best witnesses are finding those people who maybe are no longer at that facility who can talk about what it was like at that facility during that time. That’s a challenge.

Jeb Butler:

Well, what do they say when you find someone like that? What kind of things do you hear?

Xavier Carter:

Oh, oh, Jeb, we hear all kinds of stuff… “I didn’t have time to turn and reposition people.” “I often hear call lights and because I was taking care of this person, their call lights would just stay on for [inaudible 00:18:03]”-

Jeb Butler:

What’s a call light call?

Xavier Carter:

Call light is, “Hey, I need help.”

Jeb Butler:

Oh, for like an airplane, you hit the button and it just calls the-

Xavier Carter:

Correct.

Jeb Butler:

Flight attendant.

Xavier Carter:

And even such disturbing things as, “We didn’t have enough adult diapers in the facility. So sometimes we would stick towels in the adult diapers so that it would help with how wet they…” So they would soak up some of the wetness so that [inaudible 00:18:30]-

Jeb Butler:

Good Lord, I ain’t even heard of that.

Xavier Carter:

Yeah. No. It can be really bad. So, and goes back to the cost, that in there, we were talking about earlier. They just didn’t put enough supplies in the facility to take care of this person. And so those are some of our best witnesses in some of our cases, most of our cases.

Jeb Butler:

Do you find that it’s good people-

Xavier Carter:

Yes.

Jeb Butler:

In a bad situation?

Xavier Carter:

Yes. Yes. Yes.

Jeb Butler:

How does that affected them, them being the witnesses that you talk to, the former employees, who were trying to do good work? But didn’t have the resources they need in order to do it.

Xavier Carter:

Jeb, people don’t like to feel like their jobs don’t matter. People want to feel like if you’re in that, if you’re taking care of an older person, eight, nine times out of 10, it’s because you have a heart to do that.

Xavier Carter:

And so it’s a hard job taking care of older people. And so if you’re in that industry, you’re in that field, it’s because you have a heart to do it, generally. And so when someone doesn’t give you the resources that you need to do that, it can be heartbreaking.

Xavier Carter:

And it’s really frustrating for them to want to take care of these people, to look at somebody that you look at like a grandmother or that school teacher that meant so much to you, and not be able to give them the care that you know that they deserve. Because someone is making the decision above your head to not give you the resources you need. And so, yeah, oftentimes, most of the times, we see good people who are in a bad situation.

Jeb Butler:

Man. Well, we’re going to run short of time, Xavier. I’ll end with one final topic. When you have a client who lost a loved one in nursing home, what do you need through the course of the litigation from your client?

Xavier Carter:

Well, the first thing that you need is to not beat yourself up. Jeb, oftentimes when we’re dealing with a situation where someone has put their loved one in a long term care facility, there’s a lot of guilt associated with that. And then when it turns out poorly-

Jeb Butler:

That just multiplies.

Xavier Carter:

That multiplies [inaudible 00:20:53].

Jeb Butler:

Yeah. Wow. I hadn’t thought about that.

Xavier Carter:

You got to forgive yourself. And it’s not your fault, and understand that it’s not your fault. And have some patience, but we are going to advocate for you and on your behalf to make sure that the system improves. And that’s what we’re trying to do is to improve the system, and that someone’s held accountable for what has happened to your loved one.

Xavier Carter:

But don’t beat yourself up. Don’t go through life thinking that this happened to your loved one because of something you did. Because it’s not your fault. And so that’s the primary thing that I would tell someone who’s going through a situation like this is, “Don’t beat yourself up, because it’s not your fault.”

Jeb Butler:

Thank you, Xavier.

Xavier Carter:

Appreciate you, Jeb.

Jeb Butler:

Great talk.

Speaker 3:

I have something [inaudible 00:21:42] to do, just to videotape, just in case you edit this. Because this is so que when you talk about nursing on cases. Maybe you want to ask him about sometimes people think, “Well, gosh, that person was 90 years old. What did that work?”

Jeb Butler:

The they were going to die anyway defense.

Speaker 3:

Right. And then they… Zavier and Lance both speak so eloquently on it, might not be about you…. I don’t want to put the words in your mouth, but.

Xavier Carter:

Yeah.

Jeb Butler:

I’ll tee it up for you.

Xavier Carter:

Yep.

Jeb Butler:

We’re still rolling?

Speaker 4:

Still rolling.

Jeb Butler:

All right. Xavier, I think some people wonder about nursing home litigation. The people who go into nursing home aren’t doing well anyway, that’s why they’re there. If something bad happens, if they ultimately pass away, I don’t mean to be rude about it, but I think some folks wonder, “Wasn’t that going to happen anyway?”

Xavier Carter:

Yeah, Jeb. A lot of times and most of the times, these people are in there because they got a lot of health problems. And they are oftentimes towards the end of their life.

Xavier Carter:

But this is still somebody’s mama. This is still somebody’s daddy, grandmama. And they deserve in their final years and their final days or final months, or whatever time period that is, to live with dignity. That is they have the right to live and to even die with dignity.

Xavier Carter:

And when you see some of the things that we see in the facilities, the thing that hurts the people who were left behind the most, is the sense that their loved one was not treated with dignity and that there was nothing they could do about.

Xavier Carter:

And so what we are doing, what we are trying to advocate for is to improve the system, this care system, so that all of our loved ones, and even us one day, can live out our days with dignity and respect and to leave here in a way that is becoming of the way that we live. And that’s what we’re trying to do.

Jeb Butler:

It’s a powerful answer.

Xavier Carter:

Yes, sir.

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