When regulators fail, a lawyer steps in

Mark Kosieradzki had just finished a grueling, 8-mile ascent up a granite peak overlooking Lake Superior when his smartphone started beeping furiously. Moments later, the attorney was pumping his fist and yelling into the morning air.

"We got punitives!" he shouted. "We won!"

A Minnesota judge had just granted Kosieradzki's petition to pursue punitive damages against an assisted-living facility over the death of a 74-year-old resident with dementia. Left unattended, the woman had wandered away from the home one afternoon. Months later, her skeletal remains were discovered along a highway near Duluth.

The judge's ruling that morning would lead to another in a long history of multimillion-dollar legal victories for the Plymouth-based attorney, who has earned a reputation as one of the nation's most feared elder abuse litigators.

Many in the industry say he is more feared than state regulators.

"When facilities know that regulatory sanctions are not going to result in high fines, a lawsuit becomes the last means to hold someone accountable," said Lori Smetanka, executive director of the Washington-based National Consumer Voice for Quality Long-Term Care. "In many ways, the system needs people like Mark because regulators do not always catch the very serious problems … in these facilities."

Kosieradzki, 64, puts it more bluntly:

"The state could put us out of business tomorrow if it did its job," he said. "We exact the fines that the state doesn't."

Representatives of the senior care industry say the huge payouts to trial attorneys like Kosieradzki do little more than drive up the cost of care. They are pressing the federal government to reverse an Obama-era rule that made it easier for consumers to sue long-term care facilities.

Patti Cullen, president and chief executive of Care Providers of Minnesota, a trade group, said many of the lawsuits are brought by family members seeking to exploit minor mistakes in care and turn them into major windfalls.

"The lawsuits don't really help the people living in these facilities," she said. "The money that's spent on litigation is money that's not spent on patient care or activities."

Kosieradzki argued that the courts stand as one of the last remaining checks against a senior care industry that collects billions of dollars from taxpayers with minimal government oversight.

And, he said, the impact of a lawsuit goes far beyond hefty payments to clients and lawyers. Unsafe bed rails, for example, once caused hundreds of nursing home deaths and injuries every year because elderly residents could get their necks caught in them and suffocate. After a flurry of high-profile lawsuits, the industry and federal regulators redesigned the devices entirely.

In Minnesota, state-imposed fines for serious violations — those with the potential to cause serious injury or death — can be as little as $500. Facilities that fail to report abuse or neglect often avoid fines entirely, records show, even though failing to report is a crime.

When the Minnesota Department of Health imposes fines, it sometimes fails to collect them. State records show tens of thousands of dollars in unpaid fines by senior facilities dating back to 2012.

An Iowa native and son of Polish immigrants, Kosieradzki won his first big legal victory in 1984 representing a pregnant American Indian woman who was denied medical attention after being jailed. The woman, arrested for drunken driving, went into labor in a Sherburne County jail, and the baby died.

A jury awarded his client $1.3 million — at the time the largest payout ever awarded in Minnesota. The state subsequently adopted regulations requiring jails to call a doctor when an inmate is pregnant.

In the early 2000s, Kosieradzki said he grew appalled by inadequate public oversight of the senior care industry. Even when families had photos showing maltreatment and elderly victims were ready to testify, he said, state regulators didn't impose penalties.

Kosieradzki doesn't flinch at putting nursing home executives on the witness stand, often pairing testimony with graphic images. In one case involving an elderly woman who starved to death in a nursing home, he got the facility's chief financial officer to admit that its daily food budget, $3.75 per person, was equivalent to the price of three cans of dog food.

"I guarantee that members of the jury will remember that can of dog food and think about their own mothers and fathers," he said.

"I get grief from lawyers all over the state for these big claims," he acknowledged. "But more often than not, people at the top don't even hear about problems until they have to write these big checks."

Chris.Serres@startribune.com 612-673-4308David.Joles@startribune.com 612-673-7904