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The dignity of life

Seeing Patsy's health decline reminded me of my maternal grandmother, who spent 30+ years in nursing homes after a stroke paralyzed her in 1985. The common denominator between the two was witnessing the most vulnerable among us pass away with dignity.

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A quick Google search provided the following definitions of "dignity," as follows:

1. The state or quality of being worthy of honor or respect. That is, ‘a man of dignity and unbending principle.’

2. A composed or serious manner or style. That is, ‘he bowed with great dignity.’

3. A sense of pride in oneself; self-respect. That is, ‘it was beneath his dignity to shout.’

We all deserve the right to go out on our own terms ... with dignity. While witnessing Patsy's declining health, I could not help but think ... what happens when our dignity is taken away from us against our will by those responsible for our care? The only legal recourse we have is to file a lawsuit against the responsible parties, which are most commonly nursing homes where elderly residents are provided with long-term care.

It shouldn't come as a surprise to learn the nursing home industry, whose trade association is called the Arkansas Health Care Association, is a significant contributor in favor of Issue 1 that will be on the November 2018 ballot in Arkansas. Issue 1 is a proposed constitutional amendment to the Arkansas Constitution, which if passed, will have the following effects:

  1. A cap of $500,000 for non-economic damages in any lawsuit resulting in injury or death. "Non-economic" damages are defined as "damages that cannot be measured in money, including without limitation any loss or damage, however characterized, for pain and suffering, mental and emotional distress, loss of life or companionship, or the visible result of injury;
  2. A cap of $500,000 for punitive damages unless the facts show a wrongdoer intentionally pursued a course of conduct causing injury or damage, and the intentional conduct caused damage to an injury victim;
  3. Give the General Assembly the authority to enact laws amending, repealing, or adopting on its own initiative rules of pleading, practice, or procedure, which supersede such rules adopted by the Arkansas Supreme Court. This section explicitly states these rules include the presentation and admission of evidence; and
  4. A cap of 33 1/3% for contingency fees of an injury victim's attorney of the net amount recovered, regardless of how the recovery is obtained.

How do you measure the loss of someone's dignity? Wouldn't you have to know how someone's dignity was lost? The facts of the individual case matter. A case in point is what is commonly referred to as "the Mena Nursing Home case," or Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003) ("Sauer"). The court opinion provided the following facts:

  • The nursing home resident, Margaretha Sauer, died in the care of Rich Mountain Nursing and Rehabilitation Center from severe malnutrition and dehydration;
  • At the time of her death, Ms. Sauer had signs of bedsores on her body, stemming from lying in urine and excrement; she also suffered from contractures from Alzheimer's Disease, which involved contraction of her limbs into her sockets; she also had a urinary infection and had been experiencing foul vaginal discharge;
  • Before her death, Ms. Sauer was found at times with dried feces under her fingernails from scratching herself while lying in her own excrement;
  • Ms. Sauer's food tray was often times found in her room untouched because there was no staff member available to feed her;
  • Ms. Sauer's son complained on one occasion he found his mother in the middle of the afternoon, still in her gown, we with urine, disturbed, and upset;
  • Ms. Sauer was often times found wet without being changed in four hours;
  • Ms. Sauer had pressure sores on her back, lower buttock, and arms on days she was found sitting in urine and excrement;
  • A former staff member at the nursing remember seeing Ms. Sauer with a pressure sore the size of a softball, which was open;
  • Ms. Sauer's sores and blisters became infected;
  • Ms. Sauer was frequently double or even triple padded, rather than single-padded for her incontinence problems;
  • At times, Ms. Sauer had no water pitcher in her room, and did not receive a bath for a week or longer, due to the facility being understaffed; the owner's of the facility knew this from surveys conduct by the Office of Long Term Care, but the understaffing was never rectified;
  • Ms. Sauer was not "let loose" from a geriatric chair every two hours as required by law; and
  • Ms. Sauer was found to suffer from poor oral hygiene with caked food and debris in her mouth.[1]

Ultimately, a Polk County jury allowed a combined compensatory and punitive damage amount of $78,420,000 for Ms. Sauer's estate. In the appeal, the Arkansas Supreme Court found as follows:

There was ample testimony and evidence presented to demonstrate that Ms. Sauer suffered considerably and was not properly cared for, that [the nursing home] was short-staffed, and ... tried to cover this up by ‘false-charting’ and by bringing in additional ‘employees’ on state-inspection days. [A former regional vice-president of one of the corporate owner’s of the facility] testified that these deficiencies were due to a shift in corporate philosophy that placed profits over proper patient care.

The Court also found the jury's verdict to be excessive, and granted a remittitur in the amount of $52,420,000.[2] A remittitur is "the process by which a court requires either that the case be retried, or that the damages awarded by the jury be reduced." Bryan A. Garner, Blacks Law Dictionary 1073 (8th ed. 2005). Thus, the Court reduced the total verdict to $26,000,000. 

The facts of Ms. Sauer's death demonstrate she was robbed of the right to pass away with dignity as a result of understaffing, which was a symptom of the corporate culture of putting profits over patient care. Under Issue 1, Ms. Sauer's dignity would be capped at $500,000, and likely seen as "the cost of doing business" by the owners of the facility. Consequently, the facts of each individual case will not matter. Even if a jury gave more than the cap, the family of the deceased would only be able to recover $500,000. Without Issue 1, Ms. Sauer's case serves an example of the proper remedy the civil justice system provides when a jury verdict is excessive.

The whole purpose of tort law[3] is to make an injury victim whole, and to deter wrongdoers from similar conduct.[4] Issue 1 will significantly weaken both of these purposes. What will happen to the family of the next Ms. Sauer if Issue 1 passes? What about the family after that one? And the next one? And the next one? Will a nursing home ever be held accountable again for purposefully understaffing its facilities?

Issue 1 disregards the dignity of life. It assumes the only value people have is by the amount of money an individual earns, or is capable of earning. All of us are entitled to our own dignity, and there should be consequences when it is taken away because corporations are more interested in profits than caring for those they are supposed to protect.

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[1] Sauer, 353 Ark. at 39-51, 111 S.W.3d at 353-58.

[2] The Court stated "[t]he remedy for an excessive-damages award is for the court to grant a remittitur. This remedy dates back to 1841 in our case law. Remittitur can be applied to compensatory damages as well as to punitive damages." Id. at 47, 111 S.W.3d at 356.

[3] A "tort" is a civil wrong.

[4] See City of Monterey v. Del Monte Dunes, 526 U.S. 687, 727, 119 S. Ct. 1624, 1647, 143 L. Ed. 2d 882, 917 (1999) (Scalia, J., concurring); Minneci v. Pollard, 565 U.S. 118, 127, 132 S. Ct. 617, 624, 181 L. Ed. 2d 606, 614 (2012).

Patsy's obituary

On June 12, 2018, we had to make the decision to put down our inherited yellow lab, Patsy. We inherited her when Nathan and his family moved to Little Rock after he took a job with UAMS in 2016. The apartment they moved into wasn't suitable for a pet and two small children, and none of us felt like it was best for her to leave our neighborhood.

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Patsy becoming a member of our family is a classic Nathan Chaney story, as told by my best Nathan Chaney impersonation. When Nathan met Hilary during his first year of law school at Washington and Lee, he told her "babe ... the dog is with me." The dog he was referring to was Trooper:

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When Nathan and Hilary graduated from law school, Hilary clerked for a federal judge in Virginia while Nathan moved to Fayetteville. After Hilary moved to Fayetteville a year later, Trooper and Hilary butted heads until one day Hilary told Nathan:  "the dog has to go." Without missing a beat, Nathan replied, "babe ... the dog is with me." The solution was Patsy.

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As these pictures show, Patsy worked like a charm. Trooper finally had someone else to play with.

In the summer of 2011, Trooper's sight and hearing deteriorated to the point where he began putting teeth on people. The decision was made to put him down. The picture below was his last time on the river:

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Patsy had been content being submissive to Trooper's masculine domineering attitude. After he passed, we saw an entirely new personality in Patsy we had not seen previously. It was bright and bubbly, and brought joy to everyone she encountered, including our mailman who gave her a treat everyday.

Patsy usually slept at my front or back door if it wasn't too cold outside. She had a chair in my kitchen that she had slept in since she was a puppy in Fayetteville, and I let her inside when it was cold. If she needed to go potty, she'd walk back in my room to wake me up to let her out.

One time this happened and I let her out and went back to bed without going into the kitchen. A few hours later I discovered a very large #2 accident that left a stain on the linoleum floor. Patsy wasn't let inside for a while after that.

The worst thing Patsy would do is occasionally get into the neighbor's trash, which was somewhat aided and abetted by Slacker, the stray cat. When she was a puppy, Patsy chewed off the end of a cup that went to a thermos Don used in the duck woods. Don still uses the thermos. Other than those few things, Patsy was an angel.

Two nights ago (June 10) I had to search for her just to give her steak fat. I knew something was badly wrong when Patsy wasn't around when people were eating steak. She never met a meal she didn't like, and rarely missed any meals. I found her in the creek trying to get cooled off.

Over the last several months, I often came home wondering if today was the day I'd find her non-responsive. During the last few weeks her mobility worsened. She'd always had heart worms. Breathing had become much more difficult. Dysplasia had always limited her to some extent, but it had gotten to the point where she couldn't stand up without a significant amount of trouble. The vet said she had fluid on her lungs, which was making it even more difficult for her to breath. We all knew it was time to put her down. June 12, 2018 was the day.

Patsy was a kind soul. She never met a stranger, and didn't have a mean bone in her body. We will all miss her.

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Arms Around Arkadelphia - reprised

From June 4-8, 2018, Arms Around Arkadelphia ("AAA") resumed work. If you follow this blog, then you'll remember the last blog post was about AAA's two-day projects from May 18-19, 2018. For the week-long reprisal, I was assigned to help rebuild the shower at Sammy and Flora Blackmon's home with Mr. Byron Jones, Dr. Jimmy Hankins, and Ms. Freddie Whiting. Mr. Jones' grandson, Cole, also pitched in for a couple of days.

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Monday, June 4, 2018

We arrived on the job site around 8:30 am and got started shortly after that. Here is what it looked like then:

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Then the fun began:

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The slideshow below documents what we accomplished on day number one.

Tuesday, June 5, 2018

Mr. Jones was a master plumber, and did a great job directing Dr. Hankins, Freddie, and me.

Day #2 brought light at the end of the tunnel, as seen below.

Wednesday, June 6, 2018

Day #3 brought hanging sheet rock, and using liquid nails to install the paneling, as seen below.

Thursday, June 7, 2018

Day #4 had two projects take place at the same time and place. At the 2018 ATLA Convention, I was nominated to be the New Lawyer Network's first Community Service Committee chair. Our first service project as a group was demolishing this shed for the Blackmons, while the shower project was ongoing:

Mr. Blackmon told us his father built the shed in the '50s. Before we could begin demolition, the contents of the shed were removed:

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Then the fun began:

We also found some cool stuff in the shed:

 This old lawn mower was found underneath the floor of the shed.

This old lawn mower was found underneath the floor of the shed.

 This World War 2 era canteen also came out of the shed.

This World War 2 era canteen also came out of the shed.

The Daily Siftings Herald was there to document our demolition activities:

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Other projects the ATLA crew worked on included power washing at a local non-profit, and helping paint the ceiling of another homeowner.

 Pictured from left to right are Jay Neal and Richard Bright.

Pictured from left to right are Jay Neal and Richard Bright.

 The ATLA crew included from left to right, Jessica Mallett of the Law Offices of Peter Miller in Little Rock; Amanda Boulden with the ATLA office located in Little Rock; Caleb Baumgardner of the Baumgardner Law Firm in El Dorado; Brian Trubitt and Jay Neal of Taylor King & Associates in Arkadelphia; Nader Afsordeh of the Law Offices of Peter Miller in Little Rock; me; Joseph Gates of the Paul Byrd Law Firm in Little Rock; and Chase Mangiapane of the Law Offices of Peter Miller in Little Rock. Not pictured:  Richard Bright of Taylor King & Associates in Arkadelphia.

The ATLA crew included from left to right, Jessica Mallett of the Law Offices of Peter Miller in Little Rock; Amanda Boulden with the ATLA office located in Little Rock; Caleb Baumgardner of the Baumgardner Law Firm in El Dorado; Brian Trubitt and Jay Neal of Taylor King & Associates in Arkadelphia; Nader Afsordeh of the Law Offices of Peter Miller in Little Rock; me; Joseph Gates of the Paul Byrd Law Firm in Little Rock; and Chase Mangiapane of the Law Offices of Peter Miller in Little Rock. Not pictured:  Richard Bright of Taylor King & Associates in Arkadelphia.

While we were demolishing the shed, Mr. Jones, Dr. Hankins, and Freddie carried on with the shower project:

Friday, June 8, 2018

The shower project shaped up nicely on the last day:

Monday, June 11, 2018

We didn't quite get finished on Friday, so the final pieces were put in place the following Monday.

It was a great week. We all learned a lot working with Mr. Jones, and I enjoyed spending time with my former dentist, Dr. Hankins. Freddie began the week as a cheerleader, and ended it ready to build a house. The ATLA crew also enjoyed getting out of their offices to come help others in the Arkadelphia community.

AAA completed 15 other projects, and also provided trash removal and landscaping. Each day lunch and dinner were provided at the First Baptist Church Fellowship Hall, which were all fantastic. Music and a short devotional were provided at each dinner. While a lot of participants in AAA were First Baptist Church members, there were also a significant amount of people who were not. People from all over the community (and beyond) came together for the purpose of helping Arkadelphians. It was a unifying experience that I hope to contribute toward in the coming years. If you're interested in participating in the AAA projects next year, contact David McAllister at d_mcallister@suddenlink.net.

Arms around Arkadelphia

On May 18-19, 2018, First Baptist Church of Arkadelphia had their annual two-day service projects around town. Several volunteers within the community joined First Baptist Church in making home improvements for elders within the community.

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There were approximately 32 projects on the list, which included homes in Gurdon. Taylor joined a group who tore down a rotted porch, and rebuilt a deck in its place, which is seen below.

Arms around Arkadelphia will have its week long service projects from June 4-8.

 If you are interested in helping, please fill out the following form, and return it to Mr. David McAllister at d_mcallister@suddenlink.net.

If you are interested in helping, please fill out the following form, and return it to Mr. David McAllister at d_mcallister@suddenlink.net.

For more information about the Arms around Arkadelphia program, click here and here, which show projects from prior years. 

Brighter Tomorrow Foundation's trip to #MLK50

April 4, 2018 marked the 50th Anniversary of Dr. Martin Luther King, Jr.'s assassination at the Lorraine Motel in Memphis, Tennessee.

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 This plaque is on the left side of the entrance of the museum.

This plaque is on the left side of the entrance of the museum.

Taylor served as a chaperone for the Brighter Tomorrow Vocational Foundation's trip to the National Civil Rights Museum on this important occasion.

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The Foundation took a total of 15 local young people to tour the museum, and learn about the history of our country's evolution of social justice.

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While the Foundation had a reservation for a guided tour, there were thousands of people who toured the museum on such a monumental occasion. As a result, the Executive Director of the Foundation, Mr. Jonathan Boyce, took it upon himself to be the tour guide, and was he! Not only were the kids engaged, but so many others were as well who were not in our group!

While the museum staff encouraged our group to move along several times due to creating a bottleneck, on many occasions Mr. Boyce stood his ground to make sure the kids soaked in the point being made at that particular time. For example, our group caught up to a real-life freedom rider, and the kids had the opportunity to speak with her. The appreciation on her face, and the awe in the kids' eyes was something I'll never forget.

While the kids were asleep on the way home, another chaperone jovially commented that we had accomplished Dr. King's dream by coming together to teach young people about where we've been in the past so we can prevent those injustices from occurring again.

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The Mission of the Brighter Tomorrow Vocational Foundation is to educate, mentor, and assist with the future of underprivileged youth. The design of the Foundation to be the catalyst that will bring change and success to teens and pre-teens who are desperately fighting for a chance at opportunity.

The Objectives of the Foundation are as follows:

  • To reach and uplift children who are at risk of becoming lost in the academic and social economic system;
  • Provide learning opportunities with a stable and safe environment whereby children can grow intellectually and aspire to succeed;
  • Teach youth to become self-sufficient, and in turn, they will become successful and productive citizens.

The Purpose of the Foundation are as follows:

  • Empowered youngsters will create a cohesive community and therefore provide better living conditions for their families;
  • Teach work ethics early in life to strengthen the community;
  • Expose children to various forms of vocational employment opportunities;
  • Provide scholarships to deserving students;
  • Make counseling available to those who need support;
  • Establish an unshakeable internal moral code.

The Community Involvement of the Foundation includes the following:

  • Establish an awareness that our youth are a visible part of the community;
  • As such, they are to remain watchful of current and local affairs, as well as esteem themselves to a higher standard of moral conduct;
  • They are to assist in numbers during disasters, or provide special care/attention for the aged, infirmed, or less fortunate.

The Foundation offers vocational training, community awareness services, seasonal extracurricular activities, health and wellness training, and offers employment opportunities. You can donate to the Foundation by clicking on the "donate" link at the bottom right hand side of this page.