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A nursing home resident’s painful ankle injury goes untreated. Her pleas to nurses’ aides for a bedpan or portable commode go unanswered. Walking to the toilet, she falls down, suffering heart and respiratory failure and massive injuries to the head and spine. She dies painfully. Another woman, 82, becomes dehydrated and develops serious bedsores after nursing home staff neglects to monitor her diabetes. She dies five weeks after moving into this facility. An 83-year-old man suffers a broken hip after falling three times in his first week at a nursing home. His charts note obvious signs of outward injury but the medical director who examines him makes no diagnosis. The delay in treatment compromises his level of functioning. Horror stories like those, which could incense even the most cold-hearted juror, seem tailor-made for litigation. And plaintiffs lawyers who sue nursing homes for abuse and neglect say there’s no shortage of potential clients. But the incidence of such cases has been low in New Jersey, largely because they are difficult and don’t pay much. Settlements are confidential, so there’s no pooled data on cases. For the same reasons, few lawyers concentrate their practices in that area. Conventional wisdom says there’s little money to be made representing old, sick people with no earnings and short life expectancies. Until now, that is. For a combination of reasons, the sleepy field is getting some attention. For one thing, plaintiffs lawyers driven out of automobile-injury work by the tougher verbal threshold are marketing their services to families of nursing home residents. “Because of the situation with verbal threshold, they’re looking for other areas to practice,” says Karin Hassel, of Patrick D’Arcy’s firm in Galloway, N.J., who after 10 years of nursing home litigation experience has observed a recent influx of personal injury lawyers. A case in point is Joseph Musso, who started out with a personal injury practice but now accepts only nursing home injury cases. He says that juries are generally sympathetic to nursing home neglect and abuse cases. “When you work in a personal injury law firm and you walk into a courtroom, if you say the words neck or back, you start out as the devil until you prove your case,” says Musso, of Cherry Hill, N.J.’s Aronberg, Kouser & Paul. “When I go into a courtroom and I represent the family of someone who was killed in a nursing home, I’m immediately wearing the white hat.” David Cohen of Stark & Stark has likewise shifted from personal injury work to filing nursing home cases over the past six years. After taking a few nursing home cases, Cohen says he realized that generalists were often overwhelmed by the time commitment and complexity of suing nursing homes. There’s also foreign competition. Wilkes & McHugh, a Florida firm known for some large verdicts in nursing home litigation, has set its sights on New Jersey. And there has been a shift in the method of attack in nursing home cases. Rather than traditional tort claims, plaintiffs lawyers are advancing novel theories of liability that blame the homes’ corporate owners for the understaffing that typically leads to injuries and mishaps. The Association of Trial Lawyers of America has a Nursing Home Litigation Group that instructs members on such strategies. Perhaps as a consequence, the volume of nursing home litigation has been rising since 2000. Susan Cardone, who defends nursing home cases, says she has noticed an increase in complaints alleging breach of contract or consumer fraud. Cardone, of Hoagland, Longo, Moran, Dunst & Doukas in New Brunswick, N.J., attributes the rise to ATLA’s efforts, which include annual conferences on nursing home law. “Plaintiffs counsel seem to get some of their ideas from these seminars and attempt to put them into effect in New Jersey,” she says. Plaintiffs lawyers also check state and federal Web sites for information about inspection results, violations and staffing levels for the defendant nursing home and other facilities with the same ownership. Networking with ATLA members in other states also alerted New Jersey lawyers to a string of very large verdicts against nursing homes in Florida, Texas and other Sun Belt states. They include the $78.4 million that an Arkansas jury awarded in 2001 to the estate of an 88-year-old nursing home patient who became ill and then died after receiving no food or water for 24 hours, in Sauer v. Advocat. Last September the Arkansas Supreme Court cut the award to $26.4 million but upheld the verdict. CREATING A MARKET Marketing is seen as a big part of the recipe for success in nursing home litigation. The plaintiffs firm in the Sauer case, Tampa, Fla.’s Wilkes & McHugh, opened a Philadelphia office a month ago and claims to have signed up New Jersey clients already. Wilkes & McHugh is advertising heavily on Philadelphia television stations, reaching central and southern New Jersey. The firm has no New Jersey-admitted lawyers but will come in as co-counsel to Hassel’s firm. Hassel, who spent five years doing nursing home litigation at another Tampa firm, McLean & Schnecht, predicts that Wilkes & McHugh, based on its track record, will “out-market, out-advertise and out-spend in dollars any other firm I know of in the state of New Jersey.” Aronberg Kouser’s Musso gives talks to community groups about nursing home liability and advertises in the Yellow Pages and local newspapers. In fact, the strength of the plaintiffs bar determines the volume of nursing home litigation more so than existence of a remedial statute, says a report from an insurance industry consultant firm. Nursing homes in Alabama and Mississippi have seen some of the highest litigation costs in the nation but neither state has a nursing home patients’ rights law, according to the report issued in June by Aon Risk Consultants Inc. of Chicago. “There is a correlation between the presence of law firms specializing in long-term care litigation in a given state and the number and size of claims,” the Aon report said. A STRONG LAW FOSTERS SETTLEMENTS By rights, New Jersey should have always been a friendly forum for litigation. The state has had a strong nursing home law that has been around for more than 25 years. Under N.J.S.A. 30:13-1 et seq., adopted in 1976, facilities must provide a safe environment and proper care. The law also has provisions concerning patients’ finances, privacy and dignity, forbids use of drugs or restraints as a punishment and says attendance at religious services can’t be compulsory, among other things. And there is an individual cause of action for asserting violations of the statute, allowing actual and punitive damages. Prevailing plaintiffs may recover attorneys’ fees and costs. But there is also plenty to scare off plaintiffs attorneys. The typical plaintiff is over 80 years old, has numerous health problems and dies before the case is resolved. Traditional measures of personal injury damages, like lost wages, loss of enjoyment of life and reduced life expectancy, don’t apply, leaving pain and suffering as the foundation of most cases. To boot, most nursing home care is paid by Medicare or Medicaid, which asserts liens of $100,000 or more against any recovery. Suits also require extensive and costly preparation, which includes hiring medical experts, finding and deposing nursing home employees who may have switched jobs, and wading through reams of hand-written patient care reports. It’s common for nursing home lawyers to decline a case after obtaining costly expert reports that fail to establish that a patient’s death or suffering was clearly related to the acts of the nursing home rather than the patient’s pre-existing health problems. For all these reasons, trials are rare. “In New Jersey no one has really tried these cases. No one really knows their true value,” says Jerold Rothkoff, a Cherry Hill elder law attorney whose practice includes nursing home abuse and neglect. “If you handle these cases selectively, I believe these cases can command a large jury verdict.” Settlements in New Jersey nursing home suits frequently reach the low six figures, according to plaintiffs lawyers. An Essex County case was settled for $450,000 without a confidentiality clause in March of this year. Jack Wurgaft represented Annie Brooks, 72, whose left leg was amputated after she developed a bedsore on her heel while residing at the New Community Corporation Extended Care Facility in Newark, N.J. She claimed the nursing home failed to treat the sore. A 2001 nationwide study by Jury Verdict Research found the median jury award in all nursing home negligence cases was $192,977. The median demand was $250,500 and the median offer was $45,000. The report found that claims for physical or sexual abuse were worth the most, with a median award of $376,500. Improper medical treatment claims were second at $275,000, followed by negligent supervision claims, $150,000, and premises liability claims, $125,000. But there have also been multimillion dollar verdicts, notably in Florida and Texas, which tend to warp the curve. As a result, nursing homes are reducing or eliminating their liability coverage. Half the nursing homes in Arkansas and a fourth in California are “going bare,” or carrying no liability insurance, the Wall Street Journal reported on June 3. Florida and Texas have in fact enacted caps on nursing home damages. The Jury Verdict Research report found that nationwide 60 percent of plaintiffs recover in nursing home suits that go to trial, compared with 34 percent in medical malpractice cases. As for the new breed of cases premised on corporate negligence or other aspects of the business practices of facilities’ owners, no New Jersey court has yet ruled on the admissibility of such evidence, says Michael Brennan, who frequently defends nursing home cases at Marshall, Dennehey, Warner, Coleman & Goggin in Cherry Hill. “We’re just seeing the start of a trend,” he says. Stark & Stark’s Cohen predicts more nursing home cases in New Jersey will go to trial but some will inevitably bring no-cause verdicts. He likewise sees juries here as “more tempered” than in the southern states. Defense lawyer Hassel notes that New Jersey juries don’t hand out multimillion-dollar verdicts generally and its judges and defense lawyers still “have difficulty getting past the age factor” in nursing home cases. Plus, the plaintiff is generally deceased by the time the case is settled. “The money is going to a family that didn’t care for them or didn’t have any pain and suffering,” says Brennan. Plaintiffs lawyers say juries generally are sympathetic to nursing home residents, since such cases remind them of their own or their parent’s impending old age. Cherry Hill elder law practitioner Rothkoff cautions that evaluating the patient’s family members is an important part of vetting a case, since the decision to put a relative in a nursing home may be judged harshly. “If you do not have sympathetic family members who visit the person on a regular basis, the jury will see the family as greedy,” says Rothkoff.

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