About Joel Siegal

For more than 25 years, I have represented people who don't always have the resources to take on litigation against the big powerful institutions of our society: big corporations, insurance companies and governments. I have the experience, the brains, the chutzpa, the resource and the desire to fight on your behalf. I have represented people in many of California's counties. I have spent my life in public service because I believe in it. I am passionate about it.

CASE: Cupertino High School students create a racist “Kill List”

Monta Vista High School students have been accused of creating a “kill list,” targeting African-American students, and some parents are claiming the school district tried to cover it up. Attorney Richard Richardson filed suit on behalf of one of the students who has since left the school. “They gave a specific and credible threat that they would kill her with bullets, and they talked about how many bullets it would take.” The hit list reportedly was not the only act of racism. Two months ago, a message that used the word lynch and the “N” word was posted on Instagram. Richardson says the students were not punished. See video: https://youtu.be/zhZtuyulyYE

The Power of Prayer

I just returned from a one-month trip to Israel, where we celebrated the bat mitzvah of my eldest daughter, Maya. Israel is, in my opinion, the most incredible country on Earth. For someone like me who loves history, archaeology, spirituality, politics, good food, great weather, and spending time with family, there is no better place to be (apologies to the Grateful Dead’s “Tennessee Jed”). Yet my time in Israel did not afford me enough opportunity to delve into its depth. I could, and probably should, spend a lifetime there to explore and understand that depth.Maya_Nava

Since we traveled as a family, I wanted to include lighter activities for our daughters, aged 12 and 8, such as plenty of beach and pool time, rafting on the Jordan river, and making chocolate at a kibbutz chocolate factory. The one activity I did not enjoy was shopping. But I live with three women. My wife graciously encouraged me to take off for Jerusalem on the days when she and our daughters went shopping in malls near her family village of Gedera. This allowed me plenty of time in Jerusalem, a city I really love.

For a Jew, Jerusalem is the center of the world. And at the center of that center is the Kotel, or Wailing Wall, the western remnant of the Temple Mount, destroyed by the Romans over two thousand years ago. The Kotel is where Jews have for generations gone to pray, as it is near to the sites of the First Temple and the Second Temple, where ancient Jews sought to be close to G-d.Kotel

I must admit that, as far as prayer goes, my ability to pray is much like my “prowess” in jogging and tennis. Without constant practice, I’ve lost my skills.

When I first approached the Kotel, I was in awe. I also realized my prayers felt dry and rehearsed. I had asked G-d for the usual stuff (i.e., good health for me and my family, a good living, etc.), except that it felt like I was eating at the best restaurant in the world but could not taste the food. I sensed I was in a spiritual block. Before consulting a rabbi (there are plenty hanging around the Kotel), I decided to try to work it through myself.

The next day my girls accompanied me to the Kotel. As we approached the wall, I told my daughters, Maya,12, and Nava, 8, some of its history, though they both knew a bit about it from their Jewish day school classes. I decided to add a mystical twist, suggesting they each approach the wall and seek out one of its embedded Herodian stones, set in place more than two thousand years ago. I advised them: “Find a stone that speaks to you. Then open your heart and pray to G-d.”

After about forty-five minutes of prayer, we reconvened at the plaza. I queried the girls on how it was for them. Maya, who had celebrated her bat mitzvah ten days prior on top of Masada, volunteered “It was good.” She confided that she was a little anxious about starting the sixth grade in the fall. She had heard that the math curriculum was harder than fifth-grade math, and she was worried about it — and whether all the kids in sixth grade would be as sweet and kind as they were in the fifth grade. She was also concerned about the California drought and asked G-d to deal with that. After sharing all this with me, she broke into a big smile and then told me that she felt her younger sister did not really understand the difference between praying and making a wish before blowing out candles on a birthday cake. She had listened in on Nava’s appeal at the Kotel: “if you get me a pony, I promise we will keep it in the back yard, and I’ll be responsible for feeding her.” Maya and I both chuckled. But later that night I reflected on both daughters’ prayers. I wondered if they were the spiritual teachers I needed for my own breakthrough on praying.prayer

The following day I approached the Kotel with a new paradigm, and suddenly, I felt like an in-shape athlete. Instead of merely asking G-d for the things I wanted, I realized G-d and I were in a relationship, and like every relationship, there needs to be communication and love before asking for things. Instead of praying for stuff for me, I prayed for the ability to give more heart-based charity and to be less judgmental and more compassionate. In the ensuing days, I noticed my praying was more fluid and deeper. I noticed something else remarkable. During my first trip to the Kotel, I had been standing in prayer next to a fellow who wore shabby clothes and, frankly, smelled pretty bad. Even in this most holy of places, I could not avoid judgmental thoughts about the man. Yet, gradually, after my paradigm shift in prayer, my feelings about this fellow changed. No longer did I view him in a negative way. He was like everyone else here, a person who was reaching out to G-d.

As I mused over this radical change in my thinking, I recalled a Reb Shlomo Carlebach story about a student who, after encountering a gruff and course person, has a similar paradigm shift. The student realizes that the person whom he had harshly judged was in reality one of the hidden thirty-six righteous people in the world. I am not so enlightened to know if the man I encountered at the Kotel was at that level, but it did make me wonder. It demonstrates to me I still have a lot of spiritual work to do.

Celebrating The Dead Reunion at The Dead Sea:

Another perspective on the fifty year farewell tour of the Grateful Dead

Grateful_Dead_Sixties

Grateful Dead at Haight/Ashbury

My intense and everlasting connection to the Grateful Dead is well known to those who know me – and to those who happened to have read my earlier blog post about my experiences with the Dead. While a high school and college student in New York, I attended over fifty Dead shows  and considered myself a legitimate “head,” traveling to see the band at Harpur College, Cornell, Long Island, Knickerbocker Arena, and Madison Square Garden, amongst some of the many East Coast venues. By 1978 I found myself as a first year law student in San Diego California (having tired of New York winters). I happened to meet my neighbor, Bill Walton, who had just signed a contract to play with the then San Diego Clippers. Bill and I became instant friends. Shortly thereafter we attended the close of Winterland in San Francisco. And later that year the Dead came to San Diego to play shows in Golden Hall. There were parties and dinners at Bill’s house after the concerts. I met and became friends with Ramrod (legendary “president” of the Grateful Dead and head of the road crew) and was awed when he introduced me to Jerry, Bobbie, Mickey and Bill K. Within a few weeks Ramrod had given me a number of legal assignments and, while still a first-year law student at California Western School of Law in San Diego, I found myself doing legal work for the Grateful Dead. Talk about a long strange trip! Over the next twenty years I worked off and on for the Dead and attended over 300 shows, often backstage.

1995 was a tough year for me. Not only did Jerry Garcia leave this world but, by coincidence (if there is such a thing), my mother died that year too, along with my best friend, Arthur H. Hartfelt, a rather “famous” Deadhead.  Jerry and my mother had met once. My mom was a unique and wonderful Jewish mother from a very tough neighborhood called Bensonhurst in Brooklyn, New York.  In the early 1990s she came to San Francisco as a tourist and was mugged outside of the St. Francis Hotel. It was a big local news story, and KTVU sent a camera crew to the hospital to interview my mom, recovering from broken hips. I suppose the media angle was this: a sweet grandmother from a tough neighborhood in Brooklyn, who had never been assaulted there, gets assaulted in San Francisco.  The owner of David’s Deli on Geary Street sent a package of matzah-ball soup and corned beef sandwiches to my mother’s hospital room daily.  Jerry Garcia, too, had seen the TV coverage and was so moved he drove to St. Francis Memorial Hospital to visit my mom.  I missed seeing Jerry, but when I arrived later that day my mother told me that Jerry had come to visit.  She told me he was very pleasant.  She also told me that she had told Jerry he was very handsome but would look better if he trimmed his beard. (My mother said that to all of my friends – to get haircuts.)

Suffice to say, the Dead have been an important part of my life. So when I first heard about the Grateful Dead reunion tour I became somewhat sad, knowing I would miss it. Earlier this year my wife and I were wrestling with the idea of how to celebrate our oldest daughter’s Bat Mitzvah. A Bat Mitzvah is a right of passage for a Jewish girl upon reaching the age of 12, becoming obliged to fulfill more of the rights and responsibilities of being an adult. Maya had come home from school one day and told us that she had learned of the history of Masada, the desert fortress on the shores of the Dead Sea. This story deeply affected Maya and she announced that she wanted to have her Bat Mitzvah on top of Masada!

Masada_ruins

Masada, the fortress where almost 1000 Jewish zealots committed mass suicide rather than surrender to the Romans.

For those of you who do not know the history, over two thousand years ago the imperial Roman army attacked and destroyed Jerusalem and other centers of Jewish life in the land of Israel. The Romans sacked the temple, the center of Jewish practice and culture, and cast all Jews out of the country. The exiled Jews were scattered across the globe. Israel was renamed Palestine. In resistance, a small group of Jewish revolutionaries (who weren’t about to take that shit) fled Jerusalem and set up camp in an abandoned mountain fortress called Masada in the desert. The Romans were not content to let these revolutionary zealots live there, so they invaded Masada. As a statement of ultimate protest – refusing to become Roman slaves – they took their own lives.

When Maya told us of her Bat Mitzvah wishes, I was inspired to take out a recording of Jerry Garcia singing with Merle Saunders The Harder They Come, a Bob Marley classic.  “I would rather be a free man in my grave than living as a puppet or a slave.”  The next thing I did was to begin planning a one-month trip to Israel to celebrate Maya’s Bat Mitzvah.  Needles to say we selected the dates, and purchased airline tickets, long before the Grateful Dead announced their reunion farewell tour.

Maya_Israel

Maya milks a goat in the days before the Bat Mitzvah at the moshav of mystical rabbi Shlomo Carlebach

Oh well. So I write this essay from Israel, where I make a l’chaim ( a toast to Life). I make a l’chaim to those who will be attending the shows this weekend and next weekend. And to those like me who have other weekend obligations and responsibilities that are as meaningful and awesome as the Dead concerts.

If Jerry were here (or at my daughter’s Bat Mitzvah in Masada) I’m sure he would understand and say, l’chaim! –  To Life!

Civil Rights Lawsuit Filed Against SFPD

The Law Offices of Joel H. Siegal has filed a federal civil rights lawsuit against the San Francisco Police Department and the City and County of San Francisco after uniformed and plainclothes police officers arrested and detained at gunpoint 19 innocent African-American men who were recording and performing a music video in the Bayview-Hunters Point section of San Francisco. The suit alleges that without probable cause or a search warrant, SFPD officers subjected each of the 19 African-American men to unreasonable search and seizure and humiliation at gunpoint. The 19 men were told to get on their knees and were then handcuffed, an act reminiscent of the most vile chapters of US history when government policies allowed whites to imprison any black person who failed to produce freedom papers or a certificate of freedom because it was assumed that African Americans were subhuman chattel, not fit to enjoy any civil rights. 

How the Boycott Divestment and Sanctions Movement (BDS) Exposes Universities to Title VI and Trustee Liability.

By: Joel H. Siegal, Attorney at Law, and Neal M. Sher, Attorney at Law

On March 13, 2013, the student council at U.C. San Diego passed a nonbinding resolution calling for boycotting firms with business ties to Israel. The resolution proposed by a Registered Student Organization (RSO) called Students for Justice in Palestine, (SJP) was similar to resolutions previously passed at U.C. Riverside and U.C. Irvine. The resolution names Boeing, General Dynamics, Hewlett Packard, Ingersoll Rand, Caterpillar and Raytheon among those companies that “profit from Israel’s occupation and violence against Palestinians ….” Eyes are now turning toward U.C. Berkeley to see if another BDS resolution is on the horizon there. A divestment measure was passed in 2010, but subsequently vetoed.

As the furor of BDS hits campuses throughout California and the United States, the fundamental question of whether or not these BDS campaigns could expose the University to liability needs to be addressed. University administrators, faced with shrinking budgets to implement fundamental educational programs, need to be mindful of the financial implications of these BDS campaigns.

  1. BDS potentially violates Title Six of the Civil Rights Act. Often times, the debate at Student Senate hearings on BDS resolutions, digress to one sided Israel bashing festivals. Title Six of the Civil Rights Act protects students from a hostile and intimidating environment on Campus. The University needs to be mindful of the vitriol expressed in the BDS campaign. As eloquently stated by Natan Sharansky there is a “three D” test for anti-Semitism. First, double standards singling out Israel for criticism while ignoring the more egregious behavior of major human rights abusers in the world; Second, demonization of  Israel and distorting the Jewish state’s action by means of false comparisons with Nazis or South African Apartheid; Third, delegitimization i.e. denying the fundamental right of the existence of a Jewish state. These are example of anti-Semitism, and when these arguments are expressed are parts of BDS resolution debate, hostile environments to Jewish students have been created. As Thomas Friedman wrote in the New York Times, “singling out Israel for opprobrium and international sanction- out of all proportion to any other party in the Middle East is anti-Semitic and not saying so is dishonest. University officials should recognize that violation of Title Six has significant consequences such as the possible loss of Federal Funds.
  2. Passage of a BDS resolution could expose university urustees to liability under ERISA.  Support of a BDS resolution may well expose the University and its trustees to Liability under the Employee Retirement Income and Securities Act (ERISA) Sec. 404 (a) (1) (A) (B). ERISA is the Federal law that governs many universities Pension and Trust funds. The law provides that fiduciaries, including trustees, must discharge their duties, “solely in the interest of the participants and beneficiaries for the exclusive purpose of providing benefits to the participants and their beneficiaries. The Department of Labor is in concurrence that investment decisions not based upon a portfolio’s ability to provide benefits for beneficiaries may be imprudent and violates of ERISA. It is hard to imagine that a beneficiary, who questioned a Funds decision to divest from a stock that was providing good return, yet did business with Israel, was improper. Such a decision would no doubt expose university trustees to fiduciary liability.

It is clear, that there are potentially huge legal liabilities for Universities’ who support and fail to effectively monitor BDS campaigns. This article has just scratched the surface of potential University liability for support of these resolutions.

Neal M. Sher is a New York Attorney and former Director of the Office of Special Investigations in the U.S. Department of Justice.

Joel H. Siegal is a San Francisco attorney who specializes in civil rights, and labor litigation

Employers and Managers: Red Light or Green Light?

As an employer and manager should you stop, go, or proceed with caution?

Last week I took my seven-year old daughter to a birthday party. I enjoyed watching her and her friends play a game that I had played as a child back on the streets of New York City, many years ago. The game, “Red Light, Green Light, 1, 2, 3,” gave the kids the opportunity to run quickly at the “Green Lights,” stop at the “Red Lights,” and proceed with caution at the “Yellow Lights.”

As I watched the game, I thought that our professional lives, particularly when it comes to making decisions about Human Resources and Employment is much like the game, “Red Light, Green Light.” So sit back, relax and let’s play. As an employer and manager should you 1) stop, 2) go, or 3) proceed with caution?

This week’s question: You are the owner of a 20-person enterprise software firm based in Silicon Valley. You have four software designers who are based in Eastern Europe. You have a sales force of three people. You have other administrative and executive personnel. Claire, your bookkeeper is taking family leave due to the sudden illness of her elderly father. You have met Janet, an experienced bookkeeper who you knew from your last startup firm. You allow Janet to work from home, but require that she spends the first three weeks at your office receiving training in your preferred methods. You wish to hire Janet as a 1099 Contract Laborer rather than an employee.

Red Light? Green Light? Yellow Light?

As with most employment and human resource issues like this one, and likely the ones that you confront in business are “fact based.” You may be tempted to think that if the sales force and the engineers are 1099 contractors, then the bookkeeper could also be a 1099 bookkeeper. But, slow down, and proceed with caution. This is a Yellow Light.

1099 Contract Labor or Employee?

Under the common law test, a worker is an employee if the purchaser of that worker’s service has the right to direct or control the worker, both as to the final results and as to the details of when, where, and how the work is done. Control need not actually be exercised; rather, if the service recipient has the right to control, employment may be shown. Depending upon the type of business and the services performed, not all of the twenty common law factors may apply. In addition, the weight assigned to a specific factor may vary depending upon the facts of the case. If an employment relationship exists, it does not matter that the employee is called something different, such as: agent, contract labor, subcontractor, or independent contractor.

The following are questions to ask, a comparative approach, to test for Employment Status:

1. INSTRUCTIONS

  • An Employee receives instructions about when, where and how the work is performed.
  • An Independent Contractor does the job his or her own way with few, if any, instructions as to the details or methods of the work.

2. TRAINING

  • Employees are often trained by a more experienced employee or are required to attend meetings or take training courses.
  • An Independent Contractor uses his or her own methods and thus need not receive training from the purchaser of those services.

3. INTEGRATION

  • Services of an Employee are usually merged into the firm’s overall operation; the firm’s success depends on those Employee services.
  • An Independent Contractor’s services are usually separate from the client’s business and are not integrated or merged into it.

4. SERVICES RENDERED PERSONALLY

  • An Employee’s services must be rendered personally; Employees do not hire their own substitutes or delegate work to them.
  • A true Independent Contractor is able to assign another to do the job in his or her place and need not perform services personally.

5. HIRING, SUPERVISING & PAYING HELPERS

  • An Employee may act as a foreman for the employer but, if so, helpers are paid with the employer’s funds.
  • Independent Contractors select, hire, pay, and supervise any helpers used and are responsible for the results of the helpers’ labor.

6. CONTINUING RELATIONSHIP

  • An Employee often continues to work for the same employer month after month or year after year.
  • An Independent Contractor is usually hired to do one job of limited or indefinite duration and has no expectation of continuing work.

7. SET HOURS OF WORK

  • An Employee may work “on call” or during hours and days as set by the employer.
  • A true Independent Contractor is the master of his or her own time and works the days and hours he or she chooses.

8. FULL TIME REQUIRED

  • An Employee ordinarily devotes full-time service to the employer, or the employer may have a priority on the Employee’s time.
  • A true Independent Contractor cannot be required to devote full-time service to one firm exclusively.

9. LOCATION WHERE SERVICES PERFORMED

  • Employment is indicated if the employer has the right to mandate where services are performed.
  • Independent Contractors ordinarily work where they choose. The workplace may be away from the client’s premises.

10. ORDER OR SEQUENCE SET

  • An Employee performs services in the order or sequence set by the employer. This shows control by the employer.
  • A true Independent Contractor is concerned only with the finished product and sets his or her own order or sequence of work.

11. ORAL OR WRITTEN REPORT

  • An Employee may be required to submit regular oral or written reports about the work in progress.
  • An Independent Contractor is usually not required to submit regular oral or written reports about the work in progress.

12. PAYMENT BY THE HOUR, WEEK OR MONTH

  • An Employee is typically paid by the employer in regular amounts at stated intervals, such as by the hour or week.
  • An Independent Contractor is normally paid by the job, either a negotiated flat rate or upon submission of a bid.

13. PAYMENT OF BUSINESS & TRAVEL EQUIPMENT

  • An Employee’s business and travel expenses are either paid directly or reimbursed by the employer.
  • Independent Contractors normally pay all of their own business and travel expenses without reimbursement.

14. FURNISHING TOOLS & EQUIPMENT

  • Employees are furnished all necessary tools, materials, and equipment by their employer.
  • An Independent Contractor ordinarily provides all of the tools and equipment necessary to complete the job.

15. SIGNIFICANT INVESTMENT

  • An Employee generally has little or no investment in the business. Instead, an Employee is economically dependent on the employer.
  • True Independent Contractors usually have a substantial financial investment in their independent business.

16. REALIZE PROFIT OR LOSS

  • An Employee does not ordinarily realize a profit or loss in the business. Rather, Employees are paid for services rendered.
  • An Independent Contractor can either realize a profit or suffer a loss depending on the management of expenses and revenues.

17. WORKING FOR MORE THAN ONE FIRM AT A TIME

  • An Employee ordinarily works for one employer at a time and may be prohibited from joining a competitor.
  • An Independent Contractor often works for more than one client or firm at the same time and is not subject to a noncompetition rule.

18. MAKING SERVICE AVAILABLE TO THE PUBLIC

  • An Employee does not make his or her services available to the public except through the employer’s company.
  • An Independent Contractor may advertise, carry business cards, hang out a shingle, or hold a separate business license.

19. RIGHT TO DISCHARGE WITHOUT LIABILITY

  • An Employee can be discharged at any time without liability on the employer’s part.
  • If the work meets the contract terms, an Independent Contractor cannot be fired without liability for breach of contract.

20. RIGHT TO QUIT WITHOUT LIABILITY

  • An Employee may quit work at any time without liability on the Employee’s part.
  • An Independent Contractor is legally responsible for job completion and, upon quitting, becomes liable for breach of contract.

In Summary: “Red Light, Green Light, 1, 2, 3,”is a fun game, for kids. But for adults conducting business and faced with employment and human resource issues, beware. Know the facts. And proceed with caution. It is no fun being audited or sued.

This blog is prepared by San Francisco attorney Joel H. Siegal. Mr. Siegal’s primary practice is representing individuals in personal injury cases, and also represents employees and small businesses in labor matters. To learn more about Joel and his practice, please visit www.LitigateForJustice.com

Sports Injuries – How to defeat a waiver of liability.

Most of my clients love to participate in sports. Some are weekend golfers, tennis players, horse back riders, skiers, bicyclist, runners, hunters, backpackers. Others participate in organized leagues of basketball, baseball or football. Regardless of the sport, most of us love to be active and compete! Personally, I love that adrenaline high that comes with athletic activity.

Have you noticed that more and more often these days, when you participate in an event, you are asked to sign a document often entitled “waiver of liability.” Why does the organizer of the event or activity ask you to sign such a document? Chances are, they are doing it at the instruction or suggestion of their insurance company or of the suggestion of a business organization.

sports injury photo

Two questions that I am often asked by clients is, 1) Am I required to sign such a waiver in order to participate in the activity? and 2) What if anything is the affect of my signing the waiver?

Let’s start the discussion with some simple definitions. A waiver of liability is a document that attempts to relieve an organization or person of liability or responsibility for another person’s injury. In theory, a waiver of liability will preclude injured parties from collecting damages for medical expenses, wage losses, and pain and suffering for injuries that they have sustained. For example if you participate in a bicycle race, you may be asked to sign a waiver of liability against the organizers of the race for injuries that you sustain during the race.

So let me do my best to answer the posed questions. First, should you sign the waiver. If you are able to participate in the event without signing the waiver, by all means, I suggest that option. If the organizers or owners require your signature before participation and you want to participate, I suppose you will need to sign the document. However, if an injury occurs, don’t think that the waiver is an iron-clad defense in your being able to recover damages for your medical bills, lost wages and pain and suffering due to someone else’s negligence.

Let me give you an example of a recent case that I handled. My client was a participant in “dressage”, i.e., horse jumping. Having grown up in Brooklyn, New York, I do not know a lot about horse jumping. But having read about Christopher Reaves (aka Superman) and his terrible horse-jumping accident that caused paralysis, I can imagine that being on the back of a horse jumping over fences has some inherent risk.

My client suffered serious personal injury when the horse that she was on fell on top of her. As I interviewed her at our first meeting in her hospital room, I asked her how the accident occurred. She told me that she wasn’t exactly sure but she was unable to control the horse. In that meeting I learned an interesting fact which helped us defeat the waiver and win the case. The waiver was clear and was one of the most comprehensive that I have seen in my thirty-plus years legal career. It acknowledged that dressage (i.e., horse-jumping) is a dangerous sport and that the stable would under no circumstances be responsible for injury as a result of participating in that sport.

But as I filed a law suit on behalf of my client I had a strategy which I knew would defeat the waiver. The facts of the case revealed that the stable had been notified that a neighbor was doing recycling on certain days. We tracked down the facts and found that the recycling occurred on the very day of the accident. What happens on recycling day? Well, there is often the sound of crashing bottles. That is what happened on the day of the accident. The crashing bottles had spooked the horses and caused the fall. The waiver was therefore deemed useless, and I was able to assist my client in recovering significant damages to cover her medical bills, lost wages and money for her pain and suffering.

Whether a waiver of liability is an iron-clad document, or not even worth the paper it is written on, depends on the facts. That said, go out and enjoy sports!

Nursing Home Liability

Many years ago when my father was in his late eighties and suffering from advanced Parkinson’s disease, my mother confided in her children, myself included, that she was no longer able to care for my dad at home. She asked us for permission to have Dad sent to a nursing home. Neither my brothers nor I felt we had the power to say no to my Mom since we no longer lived at home.

And so began the task that many of my generation are now facing, we searched to find an appropriate nursing home for a parent. However, in our case, the old expression “while man plans God laughs” came to bear. On the first weekend we explored nursing home options, our Dad passed away quietly in his own bed, surrounded by his wife and four sons.

Despite missing my dad and feeling terrible about his death, I felt blessed about the manner of his death. Let’s face it, many people do end up spending months or years in nursing homes. The type of these facilities span a broad spectrum. Some of the ones I have visited resembled exclusive resorts, while others fell far short of those standards.

I am often called by relatives about a family member who has suffered serious personal injury or an untimely death at a nursing home. Those of us who do this sort of litigation know there is a body of federal regulations – the Omnibus Budget Reconciliation Act of 1987 (OBRA) – and substantial case law and literature establishing rules and standards that nursing homes need to follow. While not determinative of liability, these standards help me determine whether the nursing home deviated (breached) standards of care, and proximately caused injury to a loved one.
Some aspects of the standard of care are outlined as follows:

Assessment: Everyone admitted or readmitted to the nursing home must undergo a thorough assessment to identify the resident’s needs and risk factors. That assesment is a document that we will obtain in the discovery phase of the case.

Planning: The assessment’s findings are used to develop a care plan specific to the resident’s needs. Again, after obtaining the assessment we can analyze whether or not the plan specifically was followed. If it was not, our case is strengthened.

Implementation: As with many plans, a plan is only useful if it is communicated to the staff and if the staff follows it. We often find that the plan, while written by administrators and initial social workers, is never communicated or implemented by the “line staff” (i.e., the staff who are involved in the day to day care of your loved one).

Reevaluation: Especially with elders, plans need to change and be reevaluated as medical conditions change. We often discover that some nursing homes sit idly by and never reevaluate patients or change treatment or care plans.

Communication: The staff and administration must be in constant communication with the nursing home resident, his/her physicians and the family, to continually evaluate needs or changing needs.

You might be surprised at the number of times we see that communication in a nursing home facility has not followed these standards of care. If you suspect there is a case of nursing home abuse, give us a call. We take abuse of elders very seriously.