w

M

MODESETT WILLIAMS PLLC

EXPERIENCED     TRIAL     LAWYERS

515 CONGRESS AVENUE

SUITE 1650

AUSTIN, TX 78701

512.472.6097

FACSIMILE: 512.481.0130

OUR LATEST News AND Updates

 

what's happening in our world

Call to Support Senate Bill 932

Modesett Williams - Wednesday, May 10, 2017

The Texas Senate unanimously approved Senate Bill 932, the bill that would crack down on bad nursing homes, and now the House is deliberating on whether these bad nursing homes should be held accountable for their wrongdoings. Jack Modesett wrote a letter in February congratulating Senator Schwertner for his work on this bill and on behalf of some of our most vulnerable citizens, which can be read here.


This morning's Austin American-Statesman features a full page ad in support of the bill and we strongly encourage you to check it out, learn more about the low quality of care provided by Texas nursing homes, and take action.


"Tell your legislator to make nursing homes safer and protect Texas seniors by passing Senate Bill 932. Call 1-844-305-8852 today."

Jack's Take on the Bill that would Crack Down on Bad Nursing Homes

Modesett Williams - Tuesday, February 28, 2017

Read the Austin American-Statesman article about Senate Bill 932 here. The bill was filed by State Senator Charles Schwertner on Thursday, February 16, 2017.


Jack Modesett has spent twenty-five years representing patients who have suffered abuse in the long-term care setting. He feels that Senator Schwertner is to be congratulated for his work on behalf of some of our most vulnerable citizens, but he knows there is still work to be done in protecting these people.


The two agree that nursing home operators must be held accountable for their acts of malfeasance. In handling hundreds of these cases across Texas, Jack has seen every kind of horror one can imagine and recognizes that these types of abuses and neglect occur all too frequently in nursing homes. He asserts that this will continue as many nursing home operators have used recent changes to Texas law to "associate" with county hospitals and then claim Tort Claims Immunity. These "associations" are a sham and change nothing about how the homes are operated or who really operates them; some of the "associations" are with county hospitals that are not within a hundred miles of the home.


If Jack can offer any assistance in representing these victims, holding nursing home operators accountable, or improving the long-term care industry, Modesett Williams stands ready.

CNN: Over 1,000 Nursing Homes Cited for Mishandling and Failing to Prevent Sexual Abuse

Modesett Williams - Wednesday, February 22, 2017

CNN investigation published: February 22, 2017


"The unthinkable is happening at facilities throughout the country: Vulnerable seniors are being raped and sexually abused by the very people paid to care for them.


"It's impossible to know just how many victims are out there. But through an exclusive analysis of state and federal data and interviews with experts, regulators and the families of victims, CNN has found that this little-discussed issue is more widespread than anyone would imagine.


"Even more disturbing: In many cases, nursing homes and the government officials who oversee them are doing little - or nothing - to stop it.


"Sometimes pure - and even willful - negligence is at work. In other instances, nursing home employees and administrators are hamstrung in their efforts to protect victims who can't remember exactly what happened to them or even identify their perpetrators.


"In cases reviewed by CNN, victims and their families were failed at every stage. Nursing homes were slow to investigate and report allegations because of a reluctance to believe the accusations - or a desire to hide them. Police viewed the claims as unlikely at the outset, dismissing potential victims because of failing memories or jumbled allegations. And because of the high bar set for substantiating abuse, state regulators failed to flag patterns of repeated allegations against a single caregiver.


"It's these systemic failures that make it especially hard for victims to get justice - and even easier for perpetrators to get away with their crimes."


Continue reading about the mishandling and lack of prevention of rape, sexual assault and sexual abuse cases in nursing homes here:

http://www.cnn.com/interactive/2017/02/health/nursing-home-sex-abuse-investigation/

What I Learned from a Recently Settled Case

Modesett Williams - Monday, June 20, 2016

We recently settled a business dispute involving claims for breach of contract, breach of fiduciary duty and fraud. We quickly realized that an insurance policy would likely cover the claims, but its limits were about one-third of our damages. It was also a "declining" policy, meaning the limits declined as attorney's fees were paid. The defendants were likely judgment proof.


The plan was straight-forward: gather all of the evidence we could find and give it to the defendants. Within 30 days of the case being filed, we had our persons with knowledge of facts, a decent (but not perfect) damage model and most of the facts understood. We sent responses to request for disclosure before a request was sent. We produced about 1000 pages of documents we had identified. We answered interrogatories within a few days. Then we spent hours interviewing the important witnesses and got detailed affidavits from two of them.


Then we sent a detailed Stowers demand for policy limits. Rejecting our demand would mean the insurance company risked being on the hook for the entirety of a judgment. The time for the demand expired. We gave defendants an extension. Then defendants wanted to mediate and we agreed. Then we filed a summary judgment motion on one of our claims - as a plaintiff. I had even written a preliminary opening statement to test the logic of our position.


We prepared mightily for mediation and had a great presentation. Nevertheless, mediation was unproductive because we argued over what the facts were, rather than what the numbers should be. We adjourned the mediation. Then we provided additional declarations, designated experts on damages and liability issues, which were all issues the defendants had with our case. Having fixed the "problems" with our case, our mediator went to work. We settled for policy limits.


Insurance makes a case much easier to settle. It is designed to pay claims. It also removes some of the emotion defendants feel when they get sued. It also changes your audience. Insurance companies like to "build" a file, so the more information you give them, the easier it is to justify payment of significant sum. There is nothing more intimidating to a defendant than having a plaintiff with all the facts available and understood early in the case. PowerPoint presentations are helpful, but not as big a deal as you think they will be. The Stowers doctrine is a powerful bargaining chip, but has its limitations.

Consumers Know Best

Modesett Williams - Wednesday, April 22, 2015

The federal government recently revised its nursing home ranking system to offer fairer nursing home quality evaluations for families to consider (see http://www.modwill.com/blog/1-3-of-nursing-home-industry-rocked-by-scoring-system-reform for more details). However, it has been argued by many that the new system, while improved, is not comprehensive enough. Specifically, individuals are calling for consumer input in nursing home ratings. 

 

Nursing home placement decisions are significant choices for families, and who better to rate a nursing home than the residents themselves? Currently, consumer reviews for nursing homes are available, but their validity is questionable at best. The reviews are offered on bias, un-monitored sites that anyone can post on. Nursing homes have long had a reputation for mistreat and abuse, and thus, the available consumer reviews could be forged attempts to alleviate the bad reputation they hold. 

 

John Hale, an author for the Des Moines Register, offered a convincing solution: making consumer surveys mandatory and administered through objective third parties, such as the federal government. Mr. Hale argues that with this strategy, families could make nursing home placement decisions more confidently. 

 

 

To read the full article, visit: www.desmoineregister.com/story/opinion/abetteriowa/2015/03/31/nursing-home-compare-consumer-input/70717818/

Soaring Long-Term Health Costs

Modesett Williams - Wednesday, April 15, 2015

In the 1980s, private insurance providers preached that purchasing insurance policies to cover long-term health care would financially prepare Americans for elderly life. However, these providers offered faulty advice: the insurance policies they offered have proved to be more expensive than ever anticipated. 


About 30 years ago, the long-term care market looked to be an attractive one, and many insurance providers were eager to get in the business. The industry made predictions about American lifespan, health care expenses and interest rates, all of which turned out to be skewed. The average life expectancy in the United States is the highest it has ever been: 79 years old. This life expectancy suggest that Americans are living longer than ever anticipated, meaning more individuals will live in nursing homes and perhaps spend longer periods of time there. In addition, "the rate for staying at a nursing home has gone up an average of 4 percent every year for the past five years. The 2014, the median bill for a shared room topped $6,000 a month," financial figures that were highly unanticipated by insurance providers. Lastly, the industry predicted high interest rates and the market has provided much lower rates than anticipated.


The long-term-care-policies that the private insurance companies offered have proven unprofitable due to the previously discussed financial figures. As a result, these insurance companies are either exiting the market or substantially raising their prices. As fewer private insurance options become available, analysts predict that individuals will turn to Medicaid for help, which could significantly constrain federal and state budgets. Thus, as the private sector reduces its presence in the long-term care insurance market, the United States' government will be forced to take action to properly care for the elderly. 


Read the full article: www.mysanantonio.com/business/health-care/article/high-nursing-home-bills-squeeze-insurers-driving-6166975.php

Antipsychotics used to Tame Residents

Modesett Williams - Wednesday, April 08, 2015

Growing old: it is something we all must face one day, but now, with more caution than before. Nursing homes have been under scrutiny for their abuse of prescribing antipsychotic drugs to control their residents. Specifically, a study conducted by the United States' government in 2008 revealed that "88 percent of Medicare claims for antipsychotics prescribed in nursing homes were for treating symptoms of dementia, even though the drugs aren't approved for that". Not only are antipsychotics not approved for individuals with dementia, they are highly warned against, as they have been proven to increase the risk of infection, heart failure, and death. 


So why are nursing homes unnecessarily prescribing these dangerous drugs? Many claim the reason that nursing homes are turning to antipsychotic drugs to control patients is because the homes are significantly understaffed. Unable to be provided sufficient care, nursing home residents become more restless. The staff in turn controls this restlessness with drug abuse. In addition, patients with dementia, Alzheimer's, and related diseases often suffer from increased levels of aggression and anxiety, and antipsychotic drugs have been said to suppress these symptoms. However, the suppression has been described as "mind-numbing", leaving patients in a state of confusion.


The government has become involved in the efforts to alleviate this drug-abuse issue: in 2011, the U.S. government committed to reducing antipsychotic drug use in nursing homes by 15% within one year. However, the campaign lasted two years and then left over 300,000 nursing home residents still prescribed to these drugs. Requiring informed consent has also been a mechanism used to reduce this abuse. However, nursing homes have often found ways around this required consent as many residents and  family members were unaware of the prescription drugs. Obviously, this is an issue that needs to be legally addressed. If you suspect your loved one has suffered from any sort of abuse in a nursing home, call us immediately for a free consultation at 512-472-6097.


The full article is available at: www.npr.org/blogs/health/2014/12/08/368524824/old-and-overmedicated-the-real-drug-problem-in-nursing-homes

A Threatening Trend: Inexperienced Trial Lawyers

Modesett Williams - Thursday, March 12, 2015

An article titled “Honesty is the Best Policy: It’s Time to Disclose Lack of Jury Trial Experience” was posted in the March 2015 edition of the Texas Bar Journal and discusses a threatening trend in today’s legal world: a lack of experience in trial. Modern lawyers lack the jury-trial experience that more “traditional” lawyers have gained throughout their years. There is a distinction to be made between the terminology “litigator” and “trail lawyer”. According the Kimberlee Kovach, a professor at South Texas College of Law, a litigator in “an attorney who tries cases in court”, while a trial lawyer is simply one who resolves disputes outside of a jury trial. It is important to note that the number of cases resolved outside of trial is increasing, and thus many modern attorneys lack trial experience. Consider the following statistics as an example of this new trend:

·         Within 5 years of litigation experience, 30% of attorneys had tried a case in court, and only 8% had tried more than two cases in court

·         Of these individuals, 93% had settled at least one case through mediation or negotiation

·         Within 10 years of litigation experience, 30% of attorneys had never tried a case in court, and only 36% had tried more than two cases in court

 

These statistics confirm that there are many lawyers who lack proper knowledge of the trial process and court system. This inexperience poses potential harm to clients that hire these individuals. Examples of the negative effects associated with this lack of knowledge is discussed below.

Trial inexperience conversely effects an attorney’s decisions on how to handle a client’s situation. Without experience, a lawyer cannot adequately consider the benefits of trial. For example, a case that could produce better results in court often dismisses trial as an option due to fear.  Inexperienced lawyers can be afraid of taking cases to trial because in trial, there are definite winner and losers, and thus, a lawyer’s reputation is at stake. Pre-trial settlement is the safer option to resolve disputes, and thus clients who hire inexperienced trial lawyers are likely to engage in this type of resolution. In addition, lawyers who lack trial experience may not fully understand the discovery process: their inexperience often leads to extensive and unnecessarily costly discovery process. Lastly, a lack of court experience is negatively associated with the capacity to understand jury-value. Jury value is the ability to predict a jury’s reaction to evidence, and further, the value of that evidence. A lawyer who is incapable of estimating this value cannot produce the most effective results, even through means of mediation or arbitration.

Currently, a lawyer has no legal obligation to disclose information regarding their trial experience. However, the results of a recent study reveal that clients expect that their attorney has trial experience, and thus, do not ask these questions. Therefore, a lack of disclosing trial experience has evolved into an ethical issue. Clients trust that their lawyers are knowledgeable in how to properly handle their complex cases, and as it turns out, that trust is often misplaced. At Modesett Williams, we proudly employ two highly experienced litigation lawyers with ample experience in court. Consider Modesett Williams to realize the full potential of your case.

The Eyes of Cameras are Upon You

Modesett Williams - Monday, March 09, 2015

Recently, Illinois and Missouri have been lobbying to allow cameras in nursing home resident's bedrooms. The proponents of these efforts insist that the use of these cameras would make nursing home faculty more conscious of their behavior and reduce abuse. However, there are significant concerns that are preventing the legislation from moving forward.


Legal barriers such as HIPPA and wiretapping laws will need to be considered before the legislation can pass. HIPPA, which is the Health Insurance Portability and Accountability Act, is concerned with protecting the confidentiality of medical providers and of healthcare information. Therefore, recording behavior could pose a possible violation of HIPPA. CBS reports that consent will be the "key legal question in any legislation allowing video cameras". It is likely that in order for this legislation to pass in Illinois and Missouri, the law will have similar provisions to those in Texas. 


Texas does allow the use of "hidden cameras" in nursing home bedrooms, so long as proper procedures are followed beforehand. The procedures include informing the nursing home of the use of cameras and posting a note on the door that discloses that the room is being electronically monitored.



The full article is available here: http://stlouis.cbslocal.com/2015/03/09/hipaa-wiretapping-laws-pose-legal-questions-for-granny-cams/

Monthly Allowance Increase for Nursing Home Residents

Modesett Williams - Wednesday, March 04, 2015

Legislation that would raise the elderly's "monthly allowance" is in the works. On Tuesday, Nebraska's Legislature proposed a bill that would distribute more money to Medicaid beneficiaries in nursing homes. Currently, Medicaid recipients must use all but $50 a month to pay for nursing home expenses. The proposed legislation would raise that amount to a $75 personal allowance. 


Proponents of the legislation argue that the current amount of money that these elderly individuals receive is insufficient, undignified even. The aim of their petition is to raise the standards of living in nursing homes by giving the elderly more purchasing power. Lincoln Senator Colby Coash endorsed the bill, recalling the tale of a nursing home who had a Christmas tree in their lobby where the residents could write "Christmas wish lists". The nursing home residents were asking for basic necessities, such as a pair of socks, a gift certificate for a haircut, or a bottle of shampoo. It is evident, therefore, that a $50 monthly allowance does not provide what our elderly need, and thus, the proposed increase in allowance could benefit their quality of life.



For the full article, visit: www.netnebraska.org/article/news/962546/more-spending-money-medicaid-nursing-home-patient-drivers-licenses-dreamers


Recent Posts


Tags


Archive

© 2014 Modesett Williams, PLLC - Business Trial Lawyers - Austin Texas | All Rights Reserved | Privacy Policy                                                                                         512.472.6097