By Jack Cumming
You may not know Stephen M. Garcia, but he knows your business. Mr. Garcia is one of the toughest nursing home litigators. He may be THE toughest. Recently, he shared his secrets during a Senior Living Executives Course at the University of Southern California’s Gerontology School. His examples can make every senior living executive shutter.
If full occupancy is your dream, receiving a lawsuit from the Garcia law firm is your nightmare. He is a master of deposition, and the best that the defense lawyers were able to offer during Mr. Garcia’s masterful discourse was to advise deponents to tell the truth. Listening to Mr. Garcia one couldn’t help thinking that the truth would be small comfort when confronted by him. While you’re still gathering your thoughts, he’s anticipated your response to his question, and he’s ready to pounce.
You don’t want to become Mr. Garcia’s prey. He is a larger-than-life figure. His commanding stature and volubility fill the room. He insists that he will go easy on you if he senses that you are open, honest, and forthcoming. That leaves the impression that it’s up to him to decide whether or not to bring you down. His wins have given him an enviable lifestyle – including private jets.
Advice for Your Defense
Let’s turn, though, to the defense tips that Mr. Garcia dispensed. His specialty is malpractice within nursing homes and assisted living communities. His discovery requests can be daunting. He may cross match information in the medical record with timecards. Imagine responding to a discovery request for your timecards. But he quickly goes beyond the specifics to ask for the Policy and Procedures Manual and the Job Descriptions. His advice is that enterprises keep these very lean. His insight is that they don’t.
Picture a job description for a Certified Nurse Assistant. Simply Googling for such a job description comes up with one that includes the following: “Serves and protects the [enterprise] community by adhering to professional standards, [enterprise] policies and procedures; federal, state, and local requirements; and [accreditation] standards.” You’ll recognize a common CNA job requirement, just one of ten in this template.
Now comes Mr. Garcia. The CNA is a low paid, but loyal and hardworking employee, for whom English is a second language. Mr. Garcia can have him or her read the job description. “You adhere to enterprise policies and procedures, don’t you?” “Yes.” “How recently were the procedures changed? How recently did you read them? Describe how you followed the procedures in this case.” You get the drift. The mere advice “to tell the truth” is not likely to help the CNA in this situation. That can be costly.
Documents Tell a Tale
Moreover, if the Policy and Procedures Manual is huge, how likely is it that a CNA has been fully trained in its provisions? The job description makes the CNA accountable for all of it. Now, anticipate your own deposition in which your implementation of that manual will be challenged. Mr. Garcia’s advice is to keep both the Policy and Procedures Manual and the Job Description very, very lean and defensible. Think of who writes those documents in your enterprise. How would your documents stand up under the scrutiny of a skilled litigator?
You may be thinking that this is unfair, and there are many who would agree with you. You have taken on a calling that many others would resist. You care for the frail, the failing, and the hopeless. That is a noble calling, and Mr. Garcia insists that he respects the industry and wants it to thrive. Nevertheless, he finds fertile ground in the compassion that many jurors feel for nursing care residents.
Be a Good Guy
What can an executive do to avoid being caught in the tangle of a Garcia deposition? The best thing is to conduct everything you do with the expectation that one day it might be exposed to public view. If your actions are always driven by conscience, then that kind of scrutiny, even under the probing inquiry of which Mr. Garcia is a master, won’t be shameful.
When all is said and done, Mr. Garcia has to be able to convince a jury of 12 ordinary women and men that what was done was shameful and that you should be called to account. The best defense is to put integrity before all other temptations.