Last March, Florida's powerful nursing home industry was on the warpath. Nursing home operators were lobbying the Legislature fiercely for restrictions on lawsuits which allege that poor care in their facilities injured or killed their elderly and disabled residents. The plaintiff bar and senior advocacy groups were pressing equally hard to preserve the right to sue.

Republican legislative leaders were torn between giving business groups what they wanted and not offending elderly voters. To broker a deal on the touchy issue, House Speaker John Thrasher, R-Orange Park, held several meetings between the two camps. On one side were pro-tort reform GOP lawmakers and representatives from the nursing home and insurance industries. On the other side were Jim Wilkes and Tim McHugh, the founding partners of Tampa-based Wilkes & McHugh, the state leader in suing nursing homes for abuse and neglect of residents.

During the meetings, insults were traded. At one point, Wilkes stormed out of the room, but Thrasher ran out and persuaded him to return. The two sides managed to reach tentative agreement on limiting legal fees. But the talks broke down over damage caps and other lawsuit restrictions, and Wilkes & McHugh walked out again. The all-out political battle resumed. The Legislature ended up taking no action.

Now lawmakers are returning to Tallahassee to face this tough issue again. The nursing home industry and its allies have renewed their drive to restrict abuse and neglect suits, which they say jeopardize the survival of the state's 746 nursing homes, serving 84,000 residents.

Their evidence? Companies which own more than 20 percent of the beds in Florida are under Chapter 11 bankruptcy protection and about 100 facilities are on the brink of closure, according to state officials and the Florida Health Care Association, a nursing home trade group. Many facilities are operating without liability insurance because, they say, they can't afford the soaring premiums. A task force established by the Legislature to study the quality of care in nursing homes, the impact of suits and the adequacy of state funding is expected to issue its recommendations this month.

“If we allow these outrageous suits to continue, there won't be any nursing homes left that can afford insurance,” says Andrew McCumber, a prominent nursing home defense attorney and partner at the six-attorney Quintairos McCumber Prieto in Tampa. “Putting caregivers out of business is not the way you improve care.”

But Elma Holder, founder of the National Citizens — Coalition for Nursing Home Reform in Washington, D.C., says lawsuits play an important role in protecting vulnerable residents. “They create a deterrent for nursing homes that think they can get away with abuse and neglect,” she says.

With no legislation to bar their way, Bennie Lazzara and Brian Thompson, associates at Wilkes & McHugh, convinced a Pinellas Circuit Court jury last September that Charles McCorkle Jr. perished as a result of negligent care at the Colonial Care Center in Kenneth City.

The 65-year-old McCorkle, a retired trucker diagnosed with Alzheimer's disease, suffered from starvation, dehydration and gangrenous bed sores during his stay from 1997 to 1998, and died soon after. His family's attorneys presented evidence that the nursing home lacked enough nursing aides, and that the facility altered its records to make it look like it had provided care which actually was never delivered.

The jury hammered the owner, Milwaukee-based Extendicare, with the largest nursing abuse and neglect verdict in Florida history — $3 million in compensatory damages and $17 million in punitive damages. “The extreme verdict will have helped even if just one patient receives better care as a result,” a juror told the St. Petersburg Times after the verdict. Extendicare, which operates 282 homes in the U.S. and Canada, plans to appeal.

The McCorkle jackpot is the latest of hundreds of nursing home verdicts and settlements — many worth millions of dollars — won by 33-lawyer Wilkes & McHugh. The firm's success has allowed it to open offices in Tallahassee, Birmingham, Little Rock and Memphis over the last three years. “This type of outrageous behavior isn't unusual at many, many nursing homes,” Wilkes says. “If this kind of thing were taking place in someone's private home, they would be arrested.”

Wilkes & McHugh currently has nearly 1,000 suits pending against nursing homes on behalf of residents allegedly killed or injured by negligent nursing home care. Half have been filed in Florida. It also has sued facilities in Arkansas, Alabama, Tennessee, Texas, Georgia and Mississippi.

Nursing home abuse and neglect litigation is one of the fastest-growing areas of personal injury law. While hundreds of Florida firms dabble in the field, just a dozen or so handle the bulk of the cases. One busy nursing home litigator is Clearwater attorney Leonard Milcowitz, a Wilkes & McHugh alumnus whose firm, Milcowitz & Lyons, has grown to 45 attorneys. T. Patrick Ford, a partner at Miami's six-attorney Ford & Sinclair, is another active practitioner. He says his firm has handled between 500 and 1,000 nursing home suits in the past 10 years.

Wilkes, who teamed up with McHugh after they graduated from Stetson University law school in 1983, initially concentrated on general civil litigation and medical malpractice. But in 1989, he accepted a case involving an 89-year-old woman who had died in a nursing home, her body riddled with large bedsores.

He decided to take it after coming across the little-used Nursing Home Bill of Rights in the Florida Statutes. Relying on its provisions, Wilkes won the family what he calls a substantial amount in a confidential settlement. After that, his firm refocused its practice on nursing home abuse and neglect, though it has continued handling malpractice, toxic tort and insurance fraud matters.

The resident bill of rights was enacted in 1976 in the wake of a grand jury investigation that documented horrifying quality problems in Miami-Dade County nursing homes. Twenty-one other states, including California and New York, have similar statutes. The Florida law has become key to abuse and neglect litigation — and the target of industry wrath.

The law established rights to privacy, freedom from abuse, and dignified treatment. Four years after its passage, the legislature gave residents and their families additional rights to sue facilities which infringe on any of the original rights, and to recover legal fees over and above damage awards.

Wilkes & McHugh relies on both the resident bill of rights and negligence law in its abuse and neglect suits. One of its top guns is Kenneth Connor, who was hired as of counsel attorney in 1997. Connor has been suing nursing homes successfully since the early —80s.

Two years ago, Connor represented the family of a 65-year-old man who died from malnourishment, dehydration and infected bed sores after living in the Brian Center Nursing Care Facility in Tampa. In the state's largest nursing home verdict up to that time, a Hillsborough Circuit Court jury awarded the family $15 million in compensatory damages for the resident's pain and suffering. The facility's owner, Atlanta-based LCA Operational Holding Co., is appealing.

Connor demonstrated that the Brian Center nursing director had warned the owner that there weren't enough staffers to provide proper care. Connor also showed that when staffers learned that state inspectors were coming, they would gather for “charting parties,” during which medical records were altered to make it appear that professional standards of care were being met. Connor found this out when he subpoenaed staff time cards and noticed that some staffers supposedly updated medical charts on their off days.

High-profile victories like this have resulted in Connor and Wilkes being invited regularly to speak before congressional and state legislative committees addressing nursing home issues. Their standard message: To boost profits, nursing home companies are endangering residents by short-staffing facilities.

“[Corporate owners] are more interested in the bed than the patient,” says Connor, who in September was named president of the politically conservative, Washington, D.C.-based Family Research Council. Since his appointment, Connor has reduced his caseload at Wilkes & McHugh. “A bed means a revenue stream. What they forget is that these are human beings.”

But nursing home operators in Florida and across the nation contend they are being forced out of business by an increasing number of lawsuits, which have driven their liability insurance premiums sky-high.

A Florida Health Care Association study released last January showed that the state's for-profit nursing homes are three times more likely to be sued than facilities in other states. The number of claims against Florida homes has increased an average of 20 percent annually for the past five years, compared with an average of nine percent nationally, the report said. The study also found that the average per-bed liability insurance cost for Florida facilities in 1999 was $6,200 — eight times the average cost in the rest of the country. The average size of a damage claim in Florida was $278,637, compared with a nationwide average of $112,351.

Jim Wilkes calls the report “bogus.” One flaw, he says, is that it didn't examine nonprofit or smaller operators, who provide two-thirds of Florida's beds. In addition, it failed to mention that nursing homes face a growing number of Medicare fraud, shareholder and employment suits, which contribute to their rising liability premiums.

Still, Viki Lawson, administrative director of the Freedom Village Nursing Center, a 120-resident nursing home in Bradenton, insists that an increase in abuse and neglect suits has driven up her facility's liability premiums. This year, Freedom Village, which is owned and operated by Murfreesboro, Tenn.-based National Health Corp., will pay $250,000 in premiums, up 600 percent from last year, Lawson says. The facility can't afford the increase, she says, because most of its residents are on Medicaid, which pays less than $700 a month. Lawson complains that the premium hike is unfair because her facility has never been sued.

But some studies suggest that nursing homes generally have themselves to blame for climbing liability costs. Last July, the U.S. Health Care Financing Administration reported that more than half of the nation's 17,000 nursing homes were dangerously understaffed. The study linked understaffing to premature deaths among the nation's 1.6 million nursing home residents.

Another study released last January showed that Florida nursing homes receive more state citations for certain quality problems than facilities in other states. Researchers at the University of California at San Francisco found that Florida homes received an average of 13.9 violations for insufficient staffing in 1998, compared with a national average of 4.6 violations. Florida facilities also received an average of 7.2 violations for failing to meet standards on food and sanitation, accidents, pressure sore care and respect for residents — dignity. That compares with 5.2 violations per facility nationally.

The Florida Agency for Health Care Administration has beefed up enforcement of nursing home standards in the past few years, says agency spokesman Pat Glynn. The agency's quality surveyors issued 7,707 nursing home violations in 1998, compared with 5,066 in 1997, he points out. Nursing homes identified as consistent violators now are inspected routinely every six months.

But Elma Holder, of the citizens — reform coalition, argues that the increasing number of standards violations and lawsuits in Florida suggests that state oversight still isn't strong enough. “If enforcement is perceived to be lax,” she says, “there's a greater chance that facilities will try to get away with violations.”

Despite the evidence of quality problems, the nursing home industry and its allies argue that the solution to the industry's woes is to restrict abuse and neglect lawsuits.

Last year, Gov. Jeb Bush considered calling a special session to enact lawsuit restrictions or other possible remedies. After protests from consumer groups, Sen. John McKay, R-Bradenton, instead sponsored a bill to establish a 19-member Task Force on the Availability and Affordability of Long-Term Care. That panel, chaired by Lt. Gov. Frank Brogan, held public hearings across the state last fall. But the plaintiff bar sees it as a stalking horse for tort reform.

Jon Shebel, president of Associated Industries of Florida, a business lobbying group, argues that lawsuit restrictions are essential for keeping the nursing home industry healthy. “A nurse can check on a resident and walk away, then two minutes later that resident could urinate on himself, and some trial lawyer will claim that the resident is suffering horrible treatment,” he says. “That needs to stop, or there won't be any nursing homes left to care for our elderly.”

Industry supporters focus their criticism on the Nursing Home Bill of Rights, which they attack as broadly worded and vague. In other states, abuse and neglect suits against nursing homes typically have to be filed as negligence or medical malpractice actions, which require plaintiffs to prove that the facility failed in its duty to the resident and that the failure caused the resident's injuries. Under Florida law, however, plaintiffs must demonstrate only that the residents — statutory rights were infringed.

Shebel wants to cap damages and abolish the provision that lets plaintiffs recover legal fees over and above the damage award. Andrew McCumber says it's also essential to require that nursing home suits be brought under Florida's medical malpractice statute. That law sets a $250,000 cap on pain and suffering damages, bars punitive damages and allows a deceased resident's family to bring a wrongful death claim only if the resident is survived by a spouse or child under 25.

But plaintiff attorneys argue that abuse and neglect cases don't fit under malpractice law because nursing home care is custodial rather than medical. “It's apples and oranges,” says Scott Carruthers, executive director of the Academy of Florida Trial Lawyers.

Lawsuits aren't the only problem nursing home operators will ask lawmakers to fix. They complain that the $120 average daily rate paid by the Florida Medicaid program, which covers about 70 percent of the state's nursing home residents, isn't nearly enough to enable them to provide adequate staffing. They want $200 million more in Medicaid funding next year, on top of the current $1.6 billion.

Yet officials in the Bush administration have proposed a $25 million Medicaid reduction. In addition, McKay, who's now the senate president, and other key lawmakers want to shift Medicaid funds away from nursing homes and toward home- and community-based care. That draws howls from nursing home operators. “Nursing homes need more dollars from the state, period,” Shebel says. “We'll be fighting for that.”

The plaintiff bar doubts that it can entirely stop the drive for limiting nursing home suits, given the money and clout behind the campaign. The trial lawyers — main allies are consumer and senior groups, which lack large warchests. “Some kind of tort reform is going to pass,” Carruthers says. “The only question is how bad it's going to be.”

The Legislature isn't the only threat to nursing home litigation. Last May, the 4th District Court of Appeal in West Palm Beach unanimously ruled in Knowles vs. Beverly Gulf Coast-Florida Inc. that the Legislature never intended lawsuits filed under the Nursing Home Bill of Rights to continue beyond the life of the alleged victim.

In the wake of that ruling, the only recourse for families of deceased residents in the 4th District may be to file negligence claims. Some attorneys say these are harder to win than bill of rights suits because facilities can argue that the resident died from pre-existing poor health.

The Knowles plaintiff has appealed the ruling to the Florida Supreme Court, which is expected to rule by late spring.

Meanwhile, some trial courts outside the 4th District already are following the Knowles precedent, says Jeffrey Fenster, a partner at Fenster and Faerber in Plantation, who is representing the plaintiff on appeal.

Jim Wilkes says that even if abuse and neglect litigation is restricted by the Legislature or the courts, his firm will survive — though it might have to switch to other types of personal injury or commercial litigation. “We are proud of what we do,” he says, “but we can do other things if we have to.”

Nursing home residents, however, may not fare as well. “If you take away residents — and their families — access to the court,” Wilkes says, “the nursing home industry will have a green light to continue ignoring the neglect and abuse they commit and the deaths they cause.”

 

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