Law Firm Suffers Rare Court Defeat

Wilkes & McHugh, the law firm whose very name causes nursing home operators and their insurers to tremble, lost a case in Russellville on Sept. 27.

Tammy Harrelson and Melody Piazza, attorneys from Wilkes & McHugh’s Little Rock office, just couldn’t convince the Pope County jury that Atkins Nursing Home, owned by Barney and Bernie Cheek and Marvin Merrill, mistreated Delma Littleton before her death at age 83 in April 1998.

Wilkes & McHugh is a Florida firm that does virtually nothing but sue nursing homes on behalf of neglected or abused patients. It opened a Little Rock office in 1998 and won the first four cases it took to trial in Arkansas — including a $78 million verdict in June against Rich Mountain Nursing Home in Mena. (Wilkes & McHugh lawyers were recently trying another nursing home case in Nashville in Howard County.)

For Wilkes & McHugh to lose one takes on the “man bites dog” quality that is the traditional definition of news. It also holds out a grain of hope for the dozens of nursing homes in the state that are defendants in the 50-plus cases Wilkes & McHugh currently has pending.

“It really does prove we’re not swamis” who have magical powers over juries, said Wilkes & McHugh attorney Marcus Devine, who was not directly involved in the case at Russellville. “When we win big, it’s because of the facts, and when we lose, it’s because of the facts.”

In the Atkins case, there were an awful lot of factors working against the plaintiff’s case. Mrs. Littleton had a list of health problems as long as your arm before she ever entered Atkins Nursing Home — a hip that had already been fractured, diabetes, dementia, diverticulitis and a host of others.

But the fact that she was already sick, Devine said, does not mean the nursing home took proper care of her. Otherwise, he said, “We wouldn’t have taken the case. We thought she was treated outrageously,” he said.

Buddy Sutton, managing partner of the Friday, Eldredge & Clark firm in Little Rock, was on the giant-slaying defense team led by Tonia Jones. It was Sutton’s first nursing home trial and the firm’s first trial against Wilkes & McHugh.

“It was a good win for the nursing home, and I think it does indicate that, with a reasonable jury and a well-run nursing home, a defense verdict is possible,” he said.

But the nursing home industry still faces a crisis, he said, referring to a rash of litigation and the exponential increases in liability insurance premiums that have followed.

“We had no illusions about the crisis being solved or even ameliorated by this one case. The crisis is still there, and this is a very serious picture for the state of Arkansas,” Sutton said.

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State Insurance Commissioner Mike Pickens recently declared that liability insurance for nursing homes is not “reasonably available” in Arkansas. He urged the General Assembly to study the possibility of tort reform to alleviate the problem.

The Arkansas Trial Lawyers Association reacted predictably, arguing that tort reform in one state is not going to cure a national insurance problem. (Nursing home liability insurance premiums have, in fact, grown enormously all over the country.) They also resent what they see as inappropriate meddling in tort law by the Insurance Commissioner.

I’m beginning to think the Arkansas Trial Lawyers Association should change its name to the Arkansas Plaintiffs’ Lawyers Association. Sutton is as much a trial lawyer as anyone at Wilkes & McHugh, but he agrees with Pickens.

“I think there must be some tort reform addressed,” he said.

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Among the evidence presented by the plaintiff was a nude photo taken of Mrs. Littleton by nursing home staff members, Devine said. The defense explained that the photo was taken to prove that the patient did not have bedsores, a very common problem among invalids — especially diabetics — in and out of nursing homes, and one that often is an issue in nursing home litigation.

Now, I agree that it is undignified for an elderly woman to be photographed nude and don’t think it should become standard procedure. But there is some sad irony in the fact that Wilkes & McHugh tried to convict a nursing home operator for a defensive precaution. Why on earth would a nursing home think it might need proof that a patient didn’t have bedsores?

Gwen Moritz is editor of Arkansas Business. E-mail her at [email protected].