Orlando Sentinel – Orlando, Fla.
Mar 4, 2001
Series: Nursing Homes in Crisis First in a four-part series
Jeff Kunerth of the Sentinel staff contributed to this report. Bob LaMendola can be reached at 954-356-4526 or [email protected]– sentinel.com. See related stories on pages A1, A22 & A23
Just seven years ago, few Florida lawyers bothered suing nursing homes. There was no money in it.
Today, nursing-home law is one of the most lucrative specialties in the state. Attorneys on both sides are making millions in fees as the number of lawsuits swells each year.
Hundreds of attorneys have gotten into the act, but a few prominent law firms account for almost half the suits filed in eight South and Central Florida counties during the past five years, according to a review by the Orlando Sentinel and South Florida Sun- Sentinel.
Forty-seven percent of the 924 suits reviewed came from the 10 busiest firms. The names include the Orlando firms of Morgan, Colling & Gilbert — ranked third with 71 lawsuits — and eighth-ranked Maher, Guiley and Maher.
Wilkes & McHugh, the Tampa firm that pioneered nursing-home lawsuits, tops the list.
Morgan, Colling & Gilbert’s Michael Carter ranked sixth among attorneys who specialize in nursing-home lawsuits in Central and South Florida.
And the firm considers itself picky in choosing suits — turning down one-quarter of people who want to file, Carter said: “We don’t jump right into a lawsuit just because a family comes in and is disgruntled with a nursing home.”
Carter, though, won’t find many believers among the owners of Florida’s nursing homes. To them, he and other attorneys are sucking the life out of the industry by filing frivolous suits that are driving up insurance rates and running many homes into bankruptcy court.
The attorneys answer that they’ll continue suing as long as life- threatening conditions exist in nursing homes.
1 FIRM, 240 LAWSUITS
Regardless of whom you believe, the nursing-home legal field has grown very lucrative and competitive — so much that lawyers now advertise via billboards, television, radio and newspapers.
Morgan, Colling & Gilbert has 240 active suits thanks largely to ads, Carter said.
“They brought in some of the best cases in our inventory,” he said.
All this happened after lawyers figured out that Florida’s 1976 nursing-home Residents’ Rights law offered easier legal grounds on which to sue.
The legal implications of Residents’ Rights were largely ignored until the early 1990s, when a handful of lawyers began using it to win big judgments in court.
One of the first was an ambitious Tampa lawyer named Jim Wilkes. Among Wilkes’ earliest scores was a 1992 suit against a Brooksville nursing home. In that case, the son of Walter Spilman alleged Eastbrooke Health Care Center’s failure to properly feed Spilman and prevent severe bedsores led to his father’s death.
At the time, the $2.7 million judgment was one of the largest ever against a Florida nursing home. But it was only the beginning for Wilkes. His firm, Wilkes & McHugh, went on to consistently win big awards for its clients, culminating in a record $20 million judgment in September.
That suit, filed against Colonial Care Center of Kenneth City by the family of a Georgia man, said the facility failed to prevent bedsores and infections that led to his death.
FOR LAWYER, NO LOVE LOST
Wilkes makes little effort to disguise his distaste for nursing homes.
“Institutional care leads to custodial neglect,” Wilkes said. “The very nature of institutional care is to see people as less than individuals.”
Once Wilkes proved nursing-home suits could be lucrative, firms that routinely turned away elderly clients were rushing to court them. Morgan, Colling & Gilbert is one of them.
The Orlando personal-injury firm started its nursing-home litigation department with one lawyer in 1995. Today, five attorneys each juggle up to 10 nursing-home cases at a time. The firm, in fact, is the biggest purveyor of nursing-home suits in Central Florida, cranking out at least 68, or 28 percent, of the 247 suits filed in the region in the past five years, according to the newspapers’ investigation.
“In the ’80s, actuaries and, by extension, lawyers thought a severe injury to an older person was statistically less valuable than a younger person,” said Melvin Wright, a lawyer at Morgan, Colling & Gilbert. “The juries educated us that was no longer true.”
But it’s not necessary for a lawsuit to go to trial for lawyers to make money.
Lawyers who sue the homes usually handle cases on contingency, taking 25 percent to 40 percent of what the client receives. They almost always collect. More than 90 percent of the resolved lawsuits reviewed by the newspapers were settled out of court, often for six or seven figures.
Often, the attorney receives far more than the nursing-home resident. If the resident receives Medicaid, a big chunk of the money will go back to the state. Medicare also may have a claim on the settlement money. The nursing-home resident gets what is left after the attorney takes his or her cut.
Generoso Hernandez said he settled a lawsuit with a Kissimmee nursing home after his 90-year-old mother fell headfirst out of her wheelchair three times.
But much of the settlement money went back to the state for repayment of his mother’s care under Medicaid.
After his attorney took his cut, there wasn’t much left.
“All I bought my mother with the money was a chair,” he said.
Daytona Beach attorney Philip Chamfrau said he won’t take a nursing-home lawsuit involving a Medicaid resident unless he is assured of a large enough settlement to make it worthwhile.
“When Medicaid comes off the top, there is not a whole lot of extra to go around,” Chamfrau said.
Defense lawyers for nursing homes get paid on retainer or bill by the hour at $200 or better. The average fee for defending a nursing- home case is $30,000 to $50,000, said Eugene Kissane, co-chief of the nursing-home defense unit at Cole White & Billbrough in Miami.
Kissane’s firm ranked third among the top firms defending nursing homes against lawsuits.
“We’re pretty dependent on this type of work,” Kissane said. “Six years ago, we did not do these cases. It’s about half of our business now.”
From zero cases six years ago, his firm now has 30 lawyers defending 300 cases statewide. At $30,000 apiece, those cases would represent $9 million worth of fees for the law firm.
MANY WEAK CASES SETTLE
Nursing homes and their insurers are so defensive that they settle even weak cases, said Raul Romaguera, who defends homes at the West Palm Beach firm of Bobo Spicer.
“The industry realizes it’s not that smart to take a chance,” he said. “Nursing homes are not very popular, and they don’t get the benefit of the doubt [from juries] like doctors and hospitals.”
PHOTO: In Tallahassee. In 1997, lawyer Jim Wilkes, founder of the Coalition to Protect America’s Elders, tackled the problem of felons working in nursing homes. His Tampa firm pioneered nursing-home lawsuits. JOE BURBANK/ORLANDO SENTINEL PHOTO: In Orlando. Morgan, Colling & Gilbert lawyers Melvin Wright and Alexander Clem are part of the firm’s nursing-home litigation team. Five attorneys each juggle up to 10 nursing-home cases at a time. MARK FOLEY/ASSOCIATED PRESS (1997)
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