Finding a nursing home for a loved one is among the most difficult processes for families. Unfortunately, once a relative is placed in a home, families also have to worry about the quality of care that can result from understaffing and other problems. That's where Stephen Garcia comes in. Garcia of The Garcia Law Firm in Long Beach has represented tens of thousands of nursing home residents in class-action cases to win improvements in nursing home care. His firm has been involved in litigation that has recovered more than $275 million for clients. Garcia shared with Lawdragon his novel use of state consumer laws in elder-abuse cases and offered some advice to families in need of a nursing home or assisted care.
Lawdragon: First off, how did you develop an expertise in the protection of elder rights?
Stephen Garcia: My father and three uncles were all lawyers. My dad has always been an advocate for those who can't stand up for themselves. I was first a criminal lawyer with a practice in Manhattan Beach, and a Mexican-American family [with elder abuse claims] was looking for someone who spoke Spanish. I had no idea about civil litigation, much less elder abuse. I had assumed that given the horrible circumstances involved that the defendant would stand up and do the right thing. And they didn't. They tried to cannonball this poor family. We went to trial and received a large verdict. The next day when we opened the newspaper, we found out that the large verdict was one of the first cases under the new elder abuse laws in the state of California. Then I just jumped into this head first and have been doing it pretty much uniformly for the last 15 years.
LD: Which cases have had the greatest impact on how nursing home facilities care for the elderly?
SG: I think the class actions in California have had the greatest impact. I don't think there's any doubt. I don't think the other states have a full understanding or appreciation of the depth of the problem of elder abuse. Their laws haven't caught up with the need to address the problem. There's no doubt in California that class actions have the greatest impact because we get to put independent monitors in the facilities. We get to watch the facilities like watchdogs and that really is a strong tool. The amazing thing about these monitors, perhaps the most interesting fact, is that of all the reports I've gotten on a quarterly basis on these facilities, I've only gotten one bad one. So they know I'll have no problem taking them back to court when they blow it.
LD: And these court settlements are open. They used to be closed. The injured party would get compensated in exchange for confidentiality.
SG: One reason why we use a class action mechanism is that, by law, the class action has to be approved and monitored by the court. You have to give objectors to the settlement an opportunity to be heard. The court has to entertain their objections, and therefore it's in open court. When we get a report from one of our experts, we lodge it. So if you went to any of my settlements in these class actions you'd see my declarations after the case is settled. What I'm doing is posting the findings of the experts because I want them to be public. I want them to be available for anyone to see.
LD: Could you tell me about the California Consumer Legal Remedies Act that you've been applying in the nursing home context?
SG: California has a unique consumer statute that's stronger and better than any other state's. It's the Consumer Legal Remedies Act, which basically says, "Don't lie about what you are going to give us. Don't misrepresent the nature and quality of the business services you are going to provide to us. And, if you do, there are going to be ramifications for these types of misrepresentations." It was not created for nursing home long-term care providers; it was created for used car sellers. But its import and scope are the same. It seems to me that it should apply to any company that misleads or lies about the nature or quality of its services - especially when you are dealing with either dementia patients or their family members. These people are particularly susceptible to misrepresentations. You know the facilities have slick packaging and marketing to senior citizens and websites and this or that.
LD: They make them seem like country clubs. That's a huge problem.
SG: Not only are they not country clubs, they can't be. They are long-term health care facilities. They are in a position of trust with our parents and, as a generalization, they don't treat our parents, our heroes, like parents and heroes.
LD: Are there other laws that may apply in the nursing home context as well?
SG: We expect to file lawsuits using other California statutes to protect elders on a class-wide basis. We're going to be using California's Health and Safety Code Section 1430B, which basically says, "Look, if you don't follow the regulations, we're going to fine you $500 a day." We believe that some of these facilities are systemically and purposefully understaffed to maximize profit. One of the rights afforded under 1430B is adequate staffing. We're going to go right after them to their pocketbooks until they stop.
LD: How do assisted living facilities compare to nursing homes in terms of the issues that arise?
SG: Better and worse. I say that because when they're good, they are so good, they're the best. But when they're bad, they're the worst. And here's why. Properly funded residential care facilities for the elderly provide an independent home-like environment and do not have a sterile feel of a nursing facility or hospital. It doesn't smell like a hospital. It doesn't feel like a hospital. Its residents don't look like people who are at a hospital. Rather they look like people who are staying at a community hotel. And their mental faculties and the socialization that comes with that are so much better. So the residents tend to be better and last longer and have a much more enjoyable time. And there are any number of them throughout the United States, particularly in California, that are just wonderful facilities.
LD: I think the problem with the assisted living facilities come in as the residents' health deteriorates.
SG: And that's why I said when they're bad, they're 'really bad. The greedy ones, the profiteers, the exploiters take in residents for whom they know can't provide proper care. And they warehouse them. Because they have no licensed medical people on staff, the injuries become so much more acute, so much more rapid and so much more fatal than they would have been in a nursing home environment where there are doctors and registered nurses walking around, where there are registered dieticians walking around. The problem is that the assisted living facilities are licensed by the Department of Social Services as opposed to the Department of Public Health Services, and the Department of Social Services doesn't have nurses. So they don't really know what's going on.
LD: Are there particular things we should be looking at when choosing an elder care facility?
SG: Yes. Are residents lined up in the hallway? Are they warehoused? Does the facility have a sense of a warehousing or a community home? You will see in the poorer facilities that the residents line the halls. There's no action. There's no interaction. There's no facial recognition or eye contact. In the facilities that are more community like, it's exactly the contrary. People walk by. The elder looks up at you from the wheelchair or from the walker and says hi. Those tend to be places that are promoting a healthy environment and that really embody a home-like environment under which these people foster a more beneficial outcome.
LD: So basically, it's having your eyes open, looking around is the best thing to do.
SG: You need to be active. You need to get involved. If you're a family member and you believe your loved one is warehoused as opposed to cared for, if you aren't involved, you don't visit with regularity, then frankly you are paying your loved one a disservice as well. You're taking a part in this crisis.