Photo by Amy Cantrell.
Nursing homes are an incredibly lucrative business, with the U.S. market estimated at over $70B. But for the staff and the elderly in their care, that might come as a surprise. Many facilities appear chronically underfunded and in need of maintenance or renovation, which became painfully clear during the rapid spread of infections during the pandemic. What’s more, front-line caregivers are often paid minimum wage, despite the skills needed for this demanding and crucial job.
So where is all that money going?
Stephen Garcia has dedicated his career to fighting for the rights of elders in nursing homes and residential care facilities, advocating for funds to be dedicated to proper care. He has represented elders who had suffered abuse and neglect, and families who have lost loved ones to wrongful death at these facilities for over 25 years. His efforts have frequently led to seven-figure verdicts, and, crucially, called attention to systemic causes of this mistreatment.
Garcia and others at his firm, Garcia & Artigliere, have made incredible strides in seeking justice and protections for elders in care facilities, particularly in recent years with the issue of chronic understaffing.
In one ground-breaking case, he achieved a rare class certification in a lawsuit accusing a residential care facility of understaffing. The case went on to be settled, with the facility agreeing to increase staffing to meet the needs of its residents.
Understaffing is a critical battleground for fighting abuse against elders in these facilities, since having more workers, particularly CNAs, or certified nursing assistants, can reduce neglect and ensure each resident is getting appropriate attention and care.
“The people on the floor in nursing homes, they’re good people, by and large,” says Garcia. “It’s not the people on the floor that create the problems, it’s the robber barons who own the facilities. They’re paying themselves eight ways from Sunday, taking money out of the facility that could be paying people fairly, and that’s required for appropriate care.”
They don’t teach you tactical understanding in law school. They don't teach you how to zig when the book says you should zag.
Garcia’s advocacy for increased staffing at nursing homes extends beyond lawsuits to legislative lobbying. While he has had some incredible wins, including over $25M in recoveries, it remains a chronic issue that the pandemic only exasperated.
It’s frustrating because, as Garcia explains, “with the robber barrons just taking a little less for their riches, say one and a half percent of gross income, they could hire, train and pay fairly sufficient staff to meet the needs of the residents, but nope that will never happen.” Instead, too many facilities are chronically dealing with a small, underpaid staff.
In California, where Garcia does much of his work, a bill was passed a couple years back that required a 10 percent increase in staff at these facilities. He celebrated at the time, but has been frustrated to watch the implementation fall flat.
“They built in a right to be exempt from the law, and every single nursing home claimed to be exempt,” says Garcia. “And the government grants the exemption. It’s all a facade.”
The firm made a decision early on not to take on any Covid-related cases against these facilities. The thinking was, as Garcia explains, “if the government, and our president, and our health professionals can't figure out what we should be doing, and it's all constantly evolving, how the heck can these nursing homes be expected to do it?”
That said, the pandemic has correlated with injuries and abuses to the elderly at a frequency that Garcia hasn’t seen since before the revisions to the federal Elder Abuse Act in the early 90s.
In one of his current cases, a resident went missing from a facility – for three whole months. The 87-year old woman had trouble with walking and other movements, yet the management claims she scaled the 12-foot fence surrounding the facility and wandered off.
“We’re at a curious time right now,” says Garcia, “where litigation and plaintiffs’ lawyers are back to being the last bastion of safety for the poor and underserved.”
Remarkably, Garcia doesn’t seem wearied by these setbacks. Instead, his energy is crackling and robust. He has the force of a silverback gorilla protecting its young, and his passion for his work, several decades into this epic up-hill battle, is glisteningly clear. What keeps him so motivated?
“What keeps me going is the younger people in the field,” says Garcia. “It’s my legacy, and I want to teach them about the intricacies of it, so they can carry on and make meaningful social change. I want to stay around long enough to teach them how to do it right.”
Two of those younger people are Garcia’s son, Taylor who is law school, and daughter, Ali who is heading to law school. He would like to see them both join the firm one day.
“I think my son was preordained to be a trial lawyer,” says Garcia. “He spent a lot of time in the car with me, seeing what I do. My daughter has gone her own path, and wants to effect change outside of the courtroom. She wants to be a politician, and help work in some of the less advantaged areas and provide people with assistance.
“That’s what she plans to do with her law degree, whereas I think my son is probably planning on throwing me out the door and trying cases instead of me,” he quips.
We’re at a curious time right now, where litigation and plaintiffs’ lawyers are back to being the last bastion of safety for the poor and underserved.
Garcia, who has extensive trial experience, advises the younger generation to “be direct” in the courtroom. “You need to be genuine.” He advises young lawyers to work as waiters or bartenders in order to “develop your interpersonal skills, your ability to be compelling, to evoke emotion and evoke thought.”
Garcia is hands-on, and trains his mentees to be the same. “Paper isn't going to make you real,” he says. “What's going to make you real is getting your hands dirty. Do the grunt work when nobody else wants to do the grunt work, and go talk to every witness.”
Beyond being authentic and straightforward in the courtroom, Garcia advises that, “you need work ethic and tactical understanding. They don’t teach you tactical understanding in law school. They don't teach you how to zig when the book says you should zag. They don't tell you how, when your trial's been prepped one way and it's not going well, how to go home at night and figure a new way for the morning.
“Those are the talents that make really remarkable trial lawyers.”
As part of his legacy in this fight for elders’ rights, Garcia has brought on some remarkable people to join him at his firm. Bill Artigliere is a decorated West Point graduate and former star baseball player who has worked side by side with Garcia for going on 15 years, and has been counsel of record in matters leading to well over $100M in awards for elder and infirm adults throughout the country.
Matthew Coman is a former federal prosecutor who served as the Deputy Chief of the Criminal Division in the Eastern District of Louisiana. He has tried an impressive 160-plus jury trials to verdict, and was given the National Award for Superior Performance in Litigation by the U.S. Justice Department for his work prosecuting the former mayor of New Orleans on corruption charges in United States v. C. Ray Nagin.
David Medby, of counsel to the firm, has already successfully litigated over 100 cases of elder abuse. He was a former law clerk for Garcia at his prior firm, The Law Offices of Stephen Garcia, and has significant class action experience as well.
“We really focused on creating a very, very strong bench and team players,” says Garcia, “and I think we've got the right people in place.”
The firm operates on a full contingency basis, which is a philosophy Garcia inherited from his father and three uncles who were all lawyers.
“That’s just the way I was brought up. You’re taking a chance with the cause you’re supporting, and you’re in it with your clients, trying to help them, and not imposing on them to fund your cases,” says Garcia.
This is particularly advantageous for clients in an elder abuse practice, because these aggrieved plaintiffs often lack the funds to take on a corporate Goliath, despite the merits of their case.
“The way we operate, you don't have to worry about an inability to pay to seek justice,” says Garcia, “because we'll make sure you get justice.”
Garcia started practicing shortly before the Elder Abuse and Dependent Adult Civil Protection Act was amended in California in 1991, and much of his career has been bringing that legislation to bear in civil courts.
He doesn’t believe passing new laws is necessary to address the issues he takes on today.
“Legitimate, credible enforcement of the rules they have is all that's required,” Garcia says. “If they did that, if the state did that, the Department of Public Health did that, we would finally see proper care to our loved ones.”