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Juries Treat Nursing Home Industry With Multimillion Dollar Verdicts

Apr 23, 2001 Mary Roden, an Alzheimer's patient, spent more than two years at the Starcrest Nursing home in Newman, Ga. Before she got out, she had suffered at least 32 separate injuries.

For example, in March 1999, Roden was allegedly left for hours with her legs touching a heat register near her bed. She couldn't move off the register herself, and by the time the nursing home staff found her, she had suffered second-degree burns.

Hospitalized, Roden was found to have undiagnosed pneumonia and a urinary tract infection, says Nancy Lak-McPherson, a nurse consultant to Edward H. Kellogg Jr. of Atlanta's Kellogg, Saccoccia & Sigelman, who represented Roden. Roden's daughter, as guardian, sued Starcrest and its owner, Care More Management Inc., which denied any neglect.

In February, a Coweta County, Ga., jury awarded $550,000 in compensatories and $2.75 million in punitives to Roden. The nursing home, accused at trial of generally neglecting residents by allowing them to sit for hours in their own urine and feces and by letting them dehydrate or become malnourished, is appealing.

The Roden verdict is one of the latest in a series of substantial awards against the nursing home industry. In the past 12 months, there have been verdicts of $312 million and $82 million in Texas, $5 million in California, $20 million in Florida and $3 million in Arkansas.

Dozens more cases have been settled before reaching trial; hundreds more are in pretrial stages. One Florida-based law firm, Tampa's Wilkes & McHugh, has about 1,000 cases pending.

WHY THE SPIKE

The stated reasons for this jump in litigation vary, depending on who's talking.

According to the nursing home industry, greedy plaintiffs' lawyers are targeting a vulnerable industry, unfairly charging the homes with causing the deteriorating condition or death of residents who were already in severely declining health.

According to plaintiffs' lawyers, the nursing homes, particularly those owned by large for-profit corporations, are systematically operating at inadequate staffing levels to maximize profits.

Whatever is driving the rise in litigation, the reason for the increase in the amount of judgments seems clear: Plaintiffs' lawyers have developed increasingly sophisticated ways of evaluating, building and trying these lawsuits.

The first step in developing a case against a nursing home is similar to that of any personal injury case, notes David T. Marks of Houston's The Marks Firm, who won an $83 million verdict against one nursing home in 1997 and recently reached a $7 million settlement with another.

"You have to screen the case and make sure it's legitimate," he says. "Find out what the specific injuries were and get the medical records."

But, he adds, these cases require a different method of evaluation. Unlike medical malpractice, in which the claim is generally based on one event, attorneys in nursing home litigation have to find a pattern of neglect.

To find it, "look at the injuries," says H. Dustin Fillmore III of Fort Worth, Texas' Fillmore Law firm, who won the $312 million verdict this year.

"If there are pressure sores, malnutrition, dehydration, it shows the patient isn't being turned over in bed, is not being fed, has not been given water," he says. These injuries "indicate systematic, shift-after-shift, day-after-day, month-after-month neglect."

To establish a pattern of understaffing and neglect, plaintiffs' attorneys rely heavily on former and current workers.

Their testimony can be compelling, reports James Wilkes of Tampa's Wilkes & McHugh. Last year he won a $3 million verdict in Arkansas against a corporate nursing home operator, representing the family of a 94-year-old woman who had died after sustaining "multiple unexplained fractures" and multiple severe pressure sores while at the home.

A major factor in the win was the testimony by the director of nurses that, although the home was understaffed, she would be called by the corporate administrators and told to send home nursing home staff.

"It was strictly a profit-motive decision made by accountants, not by caregivers," Wilkes says. This case was settled after the verdict on confidential terms.

The testimony by the workers in the Roden case was also "extremely effective," says Lak-McPherson. The workers contended there was no way to treat the large number of residents at the home.

"The ratio of staff to patients was 1 to 35," she notes. Roden v. Care More Management Co., No. 00-SV-152 (State Ct., Coweta Co., Ga.).

Any allegations of understaffing, Fillmore says, have to be connected to corporate decisions. "[I]f the reason for the neglect is that the nurse's aide did something wrong because the bean-counter was in pursuit of greater profits, then the nurse's aide was set up to fail."

Blaming this neglect on the corporate decisions, he believes, is more effective at trial.

"The focus is on sophisticated people who made a decision to do harm to patients for profit," he says. "Juries get really upset with this. You have to juxtapose the helplessness and trust of the patient against the greed and betrayal of the nursing home and its owners."

Depending on the state, the causes of action may vary. Negligence is the most common claim, but there can be restrictions on recovery, particularly if the resident dies.

In Florida, Wilkes notes, survivors other than a minor child or spouse cannot collect damages for a decedent's pain and suffering, just for their own grief. And juries are likely to believe that there is relief, rather than grief, when an ailing nursing home resident dies.

A PIONEER

In the early 1990s, to increase chances of recovery, Wilkes pioneered suits against nursing homes for violating Florida's residents' rights law.

Under the law, passed in 1976 and amended in 1980, nursing homes are required to provide proper care for residents. Residents have the right to sue for violations of these rights. Violation of a resident's rights, through neglect, is a separate cause of action beyond simple negligence, says Wilkes.

For years, the statute was not used civilly against the homes. In his first test case in 1993, Wilkes says, the nursing home was so sure of victory that "they admitted fault. They thought the jury wouldn't hit them." The jury awarded $2.7 million, which was upheld on appeal.

Before then, says Wilkes, "the perception was that it was cheaper to abuse them." According to Steven Vancore, a spokesman for Wilkes' firm, 36 states now have some form of residents' rights laws. Residents' rights are also established under federal law, says Vancore.

In Texas, the lawsuits that have brought the biggest verdicts have included a charge of violation of the state's law against abuse of the elderly.

This charge is useful, because if a jury finds for the plaintiff, any caps on punitives are lifted. For example, in Fillmore's $312.71 million victory in February, the award included $310 million in punitives. Texas caps punitives at two times actual damages, but this award was not subject to the cap because the jury found felony violation of the Texas penal code.

HIGH COST

These cases are not cheap to pursue, Wilkes says. His firm spent $550,000 to win the $3 million verdict in Arkansas.

"There wasn't much profit in that," he says. However, information learned in one suit can be used in others against the same home or owner, he says.

Indeed, two of the largest-ever verdicts against the industry -- $312 million and $83 million -- came against one nursing home in Texas, the Heritage Hills Nursing Center in Fort Worth, owned by Columbia/HCA.

Actions against nursing homes are not slam-dunks, Wilkes warns. Less experienced lawyers are getting beaten regularly by nursing homes' defense teams.

Such plaintiffs' attorneys are "resolving claims presuit for a fraction of what they're worth," says George W. Mauze II of San Antonio, who recently won an $82 million verdict against a nursing home that was settled for $20 million.

One major obstacle to victory, Wilkes says, is getting medical personnel to testify for the plaintiffs.

"Most people in the medical community do not like plaintiffs' lawyers. We've done a lot of work to find physicians and experts who will be advocates for nursing home residents." His firm also has on staff one full-time physician and 11 registered nurses who help to prepare cases.

In addition, Wilkes says, "Juries don't like us. They don't like our clients."

A common perception by jurors, he says, is that a plaintiff who is suing over injuries to a dead relative dumped an old person in a nursing home and is now trying to get rich off that person's misery.

As a result, Mauze says, he takes his client's motives into consideration.

"If their motive is to bring to light wrongs or to punish wrongdoers, that's a good motive," he says. "But if their first question to me is how much money can we get, that's a negative in my mind."

There may soon be another obstacle. Legislation has been proposed in several states to cap damages on these actions. In Texas, the nursing home industry is pushing a proposal to apply caps to punitive damages against nursing home operators.

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