With an office in Memphis, Tenn., plans for an office soon in Jackson, Miss., and offices in Florida, Texas, Arkansas and California, the law firm of Wilkes & McHugh is fanning out, much to the chagrin of the nursing-home industry in those states and others.

Wilkes & McHugh sues nursing homes — and is very good at it. With clients in 11 states, the firm has about 1,000 active cases, most targeting the long-term-care industry. Plaintiffs represented by Wilkes & McHugh have scored some of the largest judgments recorded against nursing homes, including three judgments in Arkansas just in June, one for $1 million, one for $12.3 million and one for a whopping $78.43 million.

The $78.43 million award in Polk County Circuit Court was against Franklin, Tenn.-based Diversicare Management Services Co., the third-largest operator of nursing homes in Arkansas. The jury deliberated just two hours before blaming Rich Mountain Nursing and Rehabilitation Center in Mena, Ark., for the 1998 dehydration death of 93-year-old Margaretha Sauer. The jury ordered Diversicare, its subsidiary Diversicare Leasing Corp. and its parent company Advocat Inc. to pay $15.43 million in compensatory damages and $63 million in punitive damages to Sauer's four sons.

“I have always been passionate about representing victims, and nursing home victims seemed to be the least represented in the state,” Jim Wilkes says about his firm's first cases in his home state of Florida more than a decade ago. After initially accepting — and winning — one case representing a woman suffering bedsores due to inadequate care in her nursing home, Wilkes developed a passion for the cause of mistreated elderly nursing-home residents.

In fact, Wilkes has become a vocal advocate for nursing-home residents and founded the Coalition to Protect America's Elders, which championed the idea of nursing-home residents installing security cameras in their own rooms. Wilkes also frequently testifies during state and federal legislative hearings when proposed bills affect nursing-home operations and regulations.

Wilkes and Tim McHugh were law school buddies who launched their firm in 1984. McHugh is the soft-spoken partner, while Wilkes is at the forefront, doing most of the talking and taking most of the heat. Wilkes — detractors, including spokespersons for the nursing-home industry and individual long-term-care corporations, have called the Florida lawyer “a migratory predator,” “psycho” and even “Satan.”

Asked if he worries that legitimate, well-run nursing homes suffer because of his firm's work, Wilkes responds, “I worry that some insurers are not distinguishing good providers from bad ones and that good providers are suffering as a result. I hope the good providers will join me in trying to get rid of the bad ones.” Then he adds, “I can't recall ever suing a well-run home.”

Wilkes and McHugh doesn't have a lot of competition, and the firm's spokesperson, Steve Vancore, says that's because most attorneys aren't prepared to invest the time and money necessary to take a nursing-home case to court.

“When we go to trial, we will invest $250,000 to $500,000 bringing that case to trial,” Vancore says. “The nursing-home industry knows we're not afraid to put those kind of resources on the table to win these cases.”

But why does it take such an investment? “In a medical malpractice case, it's a moment in time. The anesthetist didn't administer the right drug. The doctor cut the wrong artery. In transferring the patient from the gurney to the bed, the patient was dropped. A moment in time. When you try a nursing home case, it's several months in time,” explains Vancore.

Vancore points to the early 1990s as the moment in time when the nursing-home industry changed, when small, locally owned, not-for-profits were purchased by for-profit corporations “set up to put people in slots and maximize revenues. Nursing homes are staff-driven and staff-dependent. If you cut staff, you're killing people. And that's not me saying that, it's the Health Care Financing Administration.” He points to an August 2000 HCFA analysis that concludes that residents who receive fewer than 2.1 hours a day of hands-on care will “needlessly suffer and die prematurely.”

“When you have a home sitting at 1.6, you have big problems,” Vancore says. He calls his boss, Jim Wilkes, “an emotional and passionate man” who believes that the concept of nursing homes is outdated.

And says Wilkes, “Warehousing the elderly is a notion that has come and gone. Nursing homes are a failed experiment. We need to change the way we provide care in this country and de-emphasize the nursing-home model and re-emphasize community-based care systems that allow people to age in place, improve the quality of care and save taxpayers — money.”

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