Predatory crusaders

One half of the team known as "the US nursing home industry's most hated men"
speaks to Andrew Papanikitas

As America ages, the decision to put a frail, elderly parent into a nursing home confronts tens of thousands of families each year. At the same time, the $87bn a year nursing home industry is coming under increasing attack. The federal government estimates that violations in more than a quarter of homes harm residents or are potentially fatal.

With highway billboards and a multistate team of about 50 lawyers, Jim Wilkes and Tim McHugh own the Wilkes and McHugh law firm. The firm has in the last decade exploded out of Florida in pursuit of plaintiffs' complaints against nursing homes. The nursing home industry has described Jim Wilkes as evil, Beelzebub, and the antichrist. The director of the Alabama Nursing Home Association called him "a migratory predator." Malpractice lawyers expect to win settlements and seven figure verdicts this year.

The industry charges that Wilkes and his ilk have unfairly demonised nursing homes and are driving them into bankruptcy. Wilkes maintains that nursing homes are "inherently evil" and that he would love to put them all out of business--and himself out of a job. "The concept of warehousing the elderly this way is the anathema of dignity," he says and advocates alternatives such as adult day care, assisted daily living. He also alleges that many apparently religious institutions are fronts, "Many of these organisations used to be run by a 'nun,' and now they're run by a chief executive officer."

His firm, which collects on average 40% of damages, won four of the biggest verdicts ever reached against Florida homes. Traditionally, insurance settlements resulting from the death of an elderly person were limited by a person's lack of life expectancy and wage earning capacity. Wilkes and his colleagues have, since 1986, stretched settlements from five figures to eight figures. They won $20m against St Petersburg's Colonial Care Center for not feeding a man for a month and not treating his wounds, which developed gangrene. In June one of the firm's trial lawyers persuaded a jury to rule that a Tennessee-based nursing home chain must pay $78.43m for the death of a 93 year old woman who died of dehydration after complications incurred at a nursing home.

The secret of successfully suing a nursing home

Jim Wilkes has lost only a handful of the over 1500 cases since he started suing nursing homes in 1986. "It's just amazing how awful the care is," he says. "So if you're able to present the facts they either settle or the jury goes against them."

"There is a small group of people, 3-5% in Florida, who believe in 'euthanising' the elderly, and this group are reflected in those staffing nursing homes and society at large. We've done surveys and focus groups. They exist. Watch out for this group of people." Wilkes contends that if they can identify and exclude this small group of people who do not care about the treatment of the elderly they are on the way to success. "Find out what a jury believe and then convince them that they're right." Wilkes plays on jurors' fears and biases.

They have also looked at the most successful type of plaintiff law and found it to be criminal prosecution, so they have applied this model to "elder law." "A specific intent to harm... can include a specific intent to neglect an old person... . We win nine out of ten civil trials."

Wilkes and McHugh make use of whistleblowers. The staff of many of these institutions are overworked and paid the equivalent to a fast food worker. As such many employees are from transient or immigrant populations, have been unable to find other work, and end up staffing a nursing home as a job of last resort. They are often prepared to testify truthfully about mistreatment, especially if aware that a company is diverting profits away from people and into its pockets. Wilkes and McHugh are also prepared to hire nursing homes' defence lawyers; they recently won over the chief defence litigator for Beverly, one of the nursing home chains that they despise.

Insurers pull out of nursing home industry

"We're filing 700 suits in Florida," announces Wilkes, and in the same breath announces that the firm is increasing staff accordingly. They already have eight trial teams on standby in several states; he alleges that because of this many insurance carriers are not renewing policies with nursing homes.

Liability insurers in many parts of the United States are raising rates or refusing to underwrite policies for nursing homes, citing losses stemming from lawsuits. The spillover is also affecting homes that have not been brought to court.

Changes

In Florida, the nursing home industry wants state law changed to reduce monetary awards in lawsuits and place nursing homes under the same malpractice rules as doctors and hospitals. The industry says that lawsuits will eventually sink most nursing homes in the state, if rising insurance costs don't first. Patients' advocates say that they are willing to agree to some changes in the medical malpractice statutes if the industry boosts staffing. Currently, the law requires homes to provide enough staff to give 1.7 hours of care to each resident a day. Last year, Florida passed a law requiring background checks on all nursing home employees after a study revealed that one in five had been arrested or convicted of a serious crime.

Wilkes says that he is pleased with a bill passed by the legislature that combines limits on judgment awards with stricter care requirements on nursing homes in the state. He says his next project is pushing alternative care in Florida. "I'm just happy to see the state [finally] focusing on elder care."

Jim Wilkes and Tim McHugh gave a lecture and answered questions for the St Paul Fire and Marine Claim Department in St Paul, Minnesota, in August 2001. I attended the lecture, and I should like to thank Tim Fletcher of the St Paul Fire and Marine Company.

Bibliography

• Sharp D. Coalition backs 'granny cams.' USA TODAY 14 September 1999.
• Appleby J. Insurers raise premiums for nursing homes. USA TODAY 20 April 2000.
• Osher C. 78.48 million-dollar verdict tied to nursing home death. Arkansas Democrat-Gazette 26 June 2001.
• The nursing home industry's most hated men: http://www.wilkes-mchugh.com/