Nursing Home Abuse & Neglect Litigation with Michael Bonamarte

Law Firm Innovator: Michael Bonamarte of Levin & Perconti

Full Interview Transcript

Chris Princis (00:05):
Hi everyone, Chris Princis with Consumer Attorney Marketing Group. And for today’s podcast, we’re going to be covering an update on the nursing home litigation. And we’re joined today by Mike Bonamarte, managing partner at Levin Perconti. Not only a fellow Chicagoan, but you’d be hard-pressed to find a better resource to get us all up to date on what’s going home with nursing home cases. Levin Perconti, just as far as background, they specialize in serious injury, specifically nursing home abuse, whereas most of you probably already know, they’re seen as the pioneers in this, the godfather so to speak on this important litigation, they’ve been doing it for quite a while. As well as med mal and national birth injury. Mike personally has tried some of the biggest cases and has gotten some of the biggest results. His last five verdicts have been seven to eight figures. And the firm also deals with large settlement numbers. We’re pretty proud to have Mike join us and get us up to date on these very important cases. And Mike, welcome.

Michael Bonamarte (01:13):
Thank you very much for having me, Chris.

Chris Princis (01:15):
Yeah, Mike, thanks. Yeah, let’s get right into it. Especially with the pandemic, there’s a lot of confusion around nursing homes and litigating these cases. Can you give us maybe just a top-level summary of the current state of the nursing home litigation?

Michael Bonamarte (01:32):
Yeah. I mean, a hot topic, obviously, across the country right now is COVID-19 and how it’s impacted nursing home residents. At one point in time, at least in Illinois, 50% of the people that died in the state of COVID were, in fact nursing home residents. And it’s a difficult discussion because Illinois, and I know because I’m the head of a national COVID committee amongst lawyers that are prosecuting these types of cases, there’s been a lot of legislation, executive orders that have been passed providing nursing homes with some level of immunity. Meaning that during certain time periods, again, it’s specific to the jurisdiction that you’re practicing in, there’s usually a heightened standard that has to be shown in order to be successful on these types of cases. In Illinois, during a period of time of April through, I believe the date is June 27th, we have to show willful and wanton conduct, which is akin to either gross negligence or reckless conduct by the nursing homes.

Michael Bonamarte (02:44):
And it sort of remains to be seen what’s going to happen. A lot of people across the country, ourselves included, are still in the pleading stages, although we’ve started to progress into some of the more substantive discovery depositions, things of that nature. I think we’re on the right side of these cases. I think that the nursing home industry’s response to the pandemic was woefully inadequate, but it remains to be seen whether or not the industry frankly has enough resources to defend and prosecute the cases. And ultimately, insurance is also going to be a significant consideration about whether we can do anything for these people. There’s been some successful results, settlements, in other parts of the country. I know was a significant amount of deaths involving a VA home in New Jersey that recently resolved.

Michael Bonamarte (03:44):
We’re currently handling 27 death cases on behalf of veterans at a nursing home in LaSalle, Illinois, who died over a period of one month in November of 2020. And it’s been very eye-opening. And then, just more generally, I think insurance is starting to become more of a frequent issue that we’re having to deal with in Illinois and nursing homes not carrying sufficient coverage. I would warn people that if they see any type of aggregate represented, aggregate insurance coverage represented in answers to interrogatory to really probe what that means. I mean, we have found that in a single case where they’re representing a million dollars in coverage, but then they say there’s a $3 million aggregate, what we’re finding out, oftentimes too late, is that the aggregate coverage has been blown through, or it applies to not just the one home, but if you’re dealing with a larger chain, multiple homes sometimes throughout the country. It’s a very serious issue that I think I would suggest very careful questioning and interrogatories to get to the bottom of what actually is available to satisfy your client’s claims.

Chris Princis (05:10):
Yeah, Mike. And you bring up a good point, right? A lot of this is from state to state with how it’s handling COVID-related issues. And this is a very, very sensitive litigation when you’re dealing with families and their loved ones. And I know you’ve worked with some folks we’ve sent your away, some other attorneys that are, because it’s very confusing here, especially depending on the state you’re in. I highly recommend if you have a case and there’s some questions, obviously Mike and his team are geared up pretty well to help you navigate through that. Just specifically on nursing home cases, if you could shed some light on why they’re a little unique or a little different than other, say, personal injury cases.

Michael Bonamarte (05:51):
Sure. I mean, traditionally I think what sort of makes them unique from other PI cases is the population of individuals that are affected by it. You’re obviously mostly dealing with an elderly population, most of the time medically compromised, meaning that they have other health conditions that require them to be in the nursing home in the first place. And I think that a lot of lawyers, especially in the seventies, eighties, nineties, shied away from taking these types of cases because the population that was being neglected and injured, they weren’t wage earners, they were at the end of life. They just didn’t see the type of value in these cases that they would in other personal injury cases. And what we’ve found is that, I think, the conduct that you’re dealing with, it aggravates people, it infuriates people.

Michael Bonamarte (06:54):
And a lot of times that drives some of the bigger awards, and in our situation and other people across the country, we’ve had significant seven-figure awards when we’ve tried these cases to juries. Another thing that’s unique is that they’re highly regulated. There’s federal regulations that apply to facilities that accept Medicare funding. Often times, there are state regulations that mirror the federal regulations. In Illinois and in other states, you may have a nursing home care act. In Illinois, we have a nursing home care act that actually gives us a lot of leverage because it requires the defendants to pay our attorney’s fees and costs if we’re successful at a jury trial. And the other thing that I think is a little bit unique is, and I don’t know if unique is the right word, but you see the same types of cases over and over.

Michael Bonamarte (07:53):
And once you have a good handle on the medicine, they’re not really medical malpractice cases. They’re corporate malfeasance cases. They are cases that result because corporations, they put profits over people. They don’t have enough resources to appropriately staff the facilities in number, training, and supervision. And as a result, a lot of good CNAs, a lot of good nurses become burned out and the residents are the ones that suffer. There’s a process that’s supposed to be in place in every single one of these cases, regardless of the type of injury that you’re dealing with, and it is assess the resident, develop a plan to address any specific risk factors that are identified in that assessment, and then make sure that the plan gets communicated and implemented by the staff. And when it’s not working, try new things. And if you’ve chosen your case wisely, and you’re thinking about this when you’re deciding whether or not to pursue a case, there’s going to be a breakdown somewhere along that process and sometimes in multiple phases throughout the process.

Chris Princis (09:13):
Yeah. And you bring a good point. Just working with you guys for a bit here, I’ve learned a lot about this litigation and it’s really confusing. I think to your point there about making sure you’re choosing a good case, maybe talk a little bit about why a law firm, even a claimant, a family or a victim should most likely partner with Levin Perconti.

Michael Bonamarte (09:35):
Well, I think number one, our years of experience in doing this. And I think to be successful in any practice of law, you need to develop the necessary knowledge of either state or federal regulations, the law that applies to the types of cases that you’re prosecuting, and we certainly have that specialized knowledge. I mean, digressing for a second. I mean, we’ve recently started handling a lot of birth injury cases. And what we did when we decided to take on these types of cases is we partnered with the people who I believe in this country have the most medical knowledge of any lawyers that are handling these types of cases, and Dov Apfel and Seth Cardeli in Maryland.

Michael Bonamarte (10:24):
I think we also provide our clients with a lot of resources, we’ve become a little bit more compartmentalized as the firm has grown from, I think about seven law lawyers when I started to 31 lawyers now almost 20 years later, and we have a dedicated case acquisition department that’s made up of two lawyers, multiple paralegals, assistants, and their sole job is just to talk to these people at intake, find out the necessary information and get the medical records that we need to evaluate the case. And then we train all of our lawyers on how to handle these cases. And I think the biggest thing in this area and any other area of law if you’re a plaintiff’s lawyer and you want to be successful is you have to have a willingness to try the cases. And we’ve shown that, and that gives us leverage in our settlement discussions and allows us to maximize the value of our cases. When you try a nursing home case, and we tried several of them and we’ve been successful, it’s amazing what it does to increase the value of the other inventory in your firm. And I think that’s across the board, regardless of the types of cases that you’re handling.

Chris Princis (11:46):
Yeah. And I want to talk a little bit here and end on something helpful because these podcasts, a lot of times attorneys aren’t only listening, but folks that need help will find it. It’s not always easy, the physical bed sores is easy to see and that stands out. But some of the trauma isn’t always physical. Talking with you and Steve, I didn’t know sex abuse was rampant in nursing homes. Maybe go through not only some of the physical trauma and injuries, but also some of the nonphysical trauma that folks should be looking out for.

Michael Bonamarte (12:27):
Yeah. And it’s a good question. And it’s certainly more difficult to recognize at the initial intake process when you’re talking to a new person, but just by way of example, I can think of a case where that actually received some national attention that my partner, Margaret Battersby handled, where a resident was being taunted by two CNAs. And the two CNAs actually filmed this incident where our resident, she had some cognitive issues, some mental health issues, she was older. And they were in her room and taunting her with some night gown or blanket or something, it’s sort of innocuous that probably we wouldn’t upset the average person, but it really upset her and it was caught on video. And we got the video because the two individuals that were guilty of this, put it on, I believe it was either Snapchat or Facebook.

Michael Bonamarte (13:31):
And we took the case and there was no physical injuries at all. It was difficult to show the emotional injuries or impact on this particular resident, but we ended up resolving it for several hundred thousand dollars. And-

Chris Princis (13:47):

Michael Bonamarte (13:47):
I think that, again, this is dependent on the elements of damages that are recoverable in your jurisdiction, but our nursing home resident, when we signed her up, was still alive so we had the threat of punitive damage. And I think that this is just the type of conduct that would really, really aggravate people regardless of your demographics. It was infuriating and extremely sad. I’ve handled some cases where there wasn’t any proven sexual abuse, but there were some staff members and residents caught in, I’ll just say, compromising situations or doing things that were inappropriate. And again, those types of cases, I think, have value because of the emotional impact that those types of acts have on the residents.

Michael Bonamarte (14:44):
As well as just the nature of the conduct. In terms of more traditional getting away from the sex abuse stuff, some of the things that might be a little bit harder to pinpoint or see at the initial intake is, I don’t know if I would call this a nonphysical injury, but when you see a subtle change in condition. Someone goes to the hospital and maybe they weren’t doing that well for a several day period of time. Those are not cases that you should just outright decline. I mean, sometimes investigations that we’ve done has shown that there was ongoing changes in condition and something happened at the hospital, whether it was a GI bleed that may not seem like it was as a result of neglect, and maybe the bleed in and of itself wasn’t from neglect. But the failure to respond to the residents changing condition over a period of several days was neglect, and had they responded sooner, it could have changed the outcome. Those are just a few of the nonphysical type things.

Chris Princis (15:51):
Yeah, Mike. No I appreciate that feedback because some of this isn’t always easy to find. I know I speak for more than me, we appreciate the work you guys are doing. I’ve had family members in elderly care and all of us will probably be affected by that. Yeah, it’s a sensitive issue and we want to keep our family safe and sound from this type of a type of abuse. We certainly appreciate what you guys are doing. With that said, Mike, we certainly appreciate you joining us. You’re great information and for everyone listening, I’ll have Mike’s information, email and phone number, at the end of this video. I encourage everyone to reach out to Mike and his team if you have a case that you need help with. Mike, thank you. And everyone, we appreciate you listening and thank you.

Michael Bonamarte (16:41):
Thanks a lot, Chris. Appreciate it.

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