Lawyers Switch Sides in Nursing Home Cases

Roger Glasgow is a member of a small but growing club, and he’s not particularly happy about it.

Glasgow, a partner at the Wright Lindsey & Jennings law firm in Little Rock, has almost abandoned the product liability defense work that he enjoys and is spending most of his time defending nursing homes sued by the Wilkes & McHugh law firm or one of its imitators.

Nursing home defense has become a steady, profitable line of work: Unlike the plaintiffs’ attorneys whose fee is contingent on winning, defense attorneys get paid by the hour. But for a guy who likes to win, it is a frustrating job.

“You almost never walk away with a defense verdict. It’s almost always a matter of damage control,” Glasgow said.

Glasgow heads Wright’s nursing home defense unit, which also includes two lawyers and a paralegal.

“I can tell you that with the explosion of cases — we are getting in probably a couple of new cases a week — we are going to have to probably double the size of our unit,” Glasgow said.

The Mitchell Williams Selig Gates & Woodyard firm in Little Rock, which has a large health care specialty area, currently has the state’s largest nursing home defense practice. Eight lawyers work pretty much full time on nursing home cases, and the firm’s nursing home regulatory practice — which includes helping nursing homes avoid litigation — has ballooned from one lawyer to five, said Debby Nye, head of the regulatory section.

“In the near term, it is an unending stream” of hourly fees, Nye said of the nursing home practice.

At the Friday Eldredge & Clark firm in Little Rock, Tonia Jones, formerly a medical malpractice specialist, has become the go-to lawyer for nursing home defense.

And while Little Rock lawyers traditionally have had a corner on the market, smaller firms across the state are also beginning to get a share of the defense business.

At the beginning of this year, the two nursing home defense attorneys at Dover Dixon Horne left to form their own firm — and are now suing nursing homes. (See sidebar.)

The spark

“The spark that fired the explosion” of nursing home defense, Glasgow said, was the arrival in Arkansas of Wilkes & McHugh. It is a Tampa, Fla., firm whose founding partner, Jim Wilkes, pioneered a highly successful model for negligence cases against nursing homes and an aggressive advertising campaign for locating potential plaintiffs. Other firms, from inside and outside the state, have followed Wilkes & McHugh’s lead.

Nursing home litigation was not unheard-of in Arkansas before Wilkes & McHugh opened shop in Little Rock in early 1999, but the cases were few and the dollars involved were relatively small. Typical settlements were in the $25,000-$30,000 range, according to Tonia Jones of the Friday firm.

“Legally, they weren’t very big cases because there are no lost wages and not much life expectancy,” the two categories of damages that typically determine the dollar value of a wrongful death case, Jones said.

But Jim Wilkes, a highly vocal critic of the nursing home industry as a whole and particularly of facilities run by large corporations, transformed nursing home litigation into a high-dollar industry.

“It’s not rocket science once you understand the model,” Jones said. “I think [Wilkes] was brilliant to recognize the potential, but as a legal strategy it is not that difficult.”

The Wilkes & McHugh model, as Jones described it, is three-pronged:

n Repeat the mantra of “profits over people.”

n Find disgruntled former employees to testify against the nursing home.

n Point out problems with patient charts — “which there always are.”

Brian Reddick, the former Beverly Enterprises lawyer who manages the Wilkes & McHugh office in Little Rock, scoffed.

“That’s an over-simplified defense attorney description of our model,” he said.

Wilkes & McHugh cases always include the claim that the nursing home operator made profits a priority over patient care, Reddick said, because the firm doesn’t file suits based on simple human error. Instead, he said, Wilkes & McHugh looks for patterns of negligence.

And, he said, he calls nursing home employees to testify because “I like the jury to hear the person who actually took care of the resident … Ms. Jones likes to characterize them as disgruntled former employees because they give testimony that is detrimental to her clients.”

Nursing home patients invariably have multiple, serious health problems; most are in what Glasgow called a “death trajectory” that makes a “bad outcome” unavoidable. But the Wilkes model, Glasgow and Jones say, depends more on emotions than on medical facts.

“Everyone on the jury can identify [with the patient] to some extent. Everybody, if you are lucky enough, is going to get old. And the plaintiff’s attorney can play to that natural apprehension. You don’t want your mother or your father or yourself to be mistreated,” Jones said.

“It’s a social phenomenon that reverberates in the human psyche because it forces people to face mortality, and no one wants to do that,” Glasgow said.

The Wilkes model, Jones said, puts the nursing home, its owners and the industry as a whole on trial and effectively shifts the burden of proof onto the nursing home.

“Legally, it shouldn’t be that way. But the way these cases are set up and the way the plaintiffs’ attorneys approach them, that’s the way it turns out,” she said.

Nye said the cases seem to be more about human interaction than medicine.

“My opinion, being on the regulatory side and working with the litigators, is that they have very little to do with medical care. These are not what would be a typical medical malpractice case. Those aren’t what the issues are at trial,” Nye said.

Instead, she said, the plaintiffs’ attorneys “are trying a case to demonstrate a lack of a caring environment, inattention.”

The litigation is teaching regulatory attorneys ways their nursing home clients can avoid future litigation, Nye said, and most of those defensive measures involve documentation rather than changes in patient care.

Winnability

A defense victory is not impossible, as Jones has proven. Assisted in the closing argument by Friday’s board chairman, William H. “Buddy” Sutton, Jones was the first lawyer to beat Wilkes & McHugh in Arkansas in a Pope County case last September.

She subsequently won a small nursing home case filed in Little Rock by personal injury specialist Peter Miller.

But the vast majority of nursing home cases are settled out of court, which has been the preferred strategy of the insurance companies that write liability policies for nursing homes.Settlements are so common, regardless of the merits of the case, that Jones said, “I wonder if they were feeding the beast.”

Still, the settlement strategy seems prudent in light of the stunning $78.4 million verdict that a Mena jury handed down last year in a case whose facts seemed fairly typical.

The winnability of a case at trial, lawyers on both sides have said, often depends more on the corporate structure of the nursing home than on the particular circumstances of the patient.

“The theory is that the small operator is more a part of the community and that would lend itself to being a more credible defendant in that community,” Nye said.

The huge Mena verdict, which David Couch and Darren O’Quinn defended while they were still at Dover Dixon, was against a nursing home owned and managed by a large Tennessee chain. Jones’ win in Russellville — Wilkes & McHugh’s only outright loss in Arkansas so far — was in a case filed against local owners who operated only three nursing homes.

Wilkes & McHugh typically does not sue nursing homes operated by nonprofit organizations.

Reddick said nonprofit facilities are not as guilty of gross negligence as the profit-driven corporations; critics suggest that the Wilkes & McHugh litigation model simply doesn’t work when the “profits over people” argument can’t be applied.

In some cases, the defenders say, the facts lead them to recommend a swift settlement.

“We certainly are just as aware as the plaintiffs of what will shock a (juror) based upon a review of the record, and clearly some things you cannot overcome,” Nye, of the Mitchell firm said. “And there are some [cases] that have been settled that we, as lawyers, would have loved to have tried. But other factors play into the decision to settle.”

The Mitchell firm has taken a number of cases to trial — but even those have been settled before reaching a verdict, Nye said.

The cases that go to trial are generally those in which the plaintiff’s settlement demands make a jury trial seem like less of a gamble. That was the case in all three that Glasgow has taken to trial — and lost.

“We have not gotten a defense verdict, but we have certainly kept the verdict below a million dollars,” Glasgow said.

That, he said, is generally considered the “break-even” point for Wilkes & McHugh, which gets 30-40 percent of the damages plus reimbursement for pretrial expenses.

Reddick disputed that characterization.

“I’ve never met Roger Glasgow, and the last time I checked, he is not our accountant. How the hell would Roger Glasgow know what our break-even point is?” Reddick asked.