How Plaintiffs’ Lawyers Work

(And Why It Works)


For itself, Families for Better Care says that it’s “a nonprofit citizen advocacy group dedicated to creating public awareness of the conditions in our nation’s nursing homes and other long term care settings and developing effective solutions for improving quality of life and care.”

The website of the Florida-based group (slogan: “Empowering Families to Advocate for Quality Nursing Home Care”), lean in its design, nonetheless bombards the reader with horror stories (under a banner titled, “Latest Nursing Home News”) and even offers a state-by-state “nursing home report card.”

What the group does not say on its website is that all but a few thousand dollars of the group’s budget comes from Wilkes & McHugh, a Tampa, Fla., law firm that has pioneered—and profited from—nursing care center litigation. Nor does Families for Better Care say that its president, as of 2013, was Steve Vancore, Wilkes’ top lobbyist, nor that its secretary-treasurer was Drew Jones, then a lawyer with Wilkes, nor that its director was Kim Mask, also then affiliated with Wilkes. That information can be gleaned from the group’s most recent tax return.

Families’ Executive Director Brian Lee, Florida’s former long term care ombudsmen, bristles at the suggestion that he shills for Wilkes, claiming in an interview last year, “I’ve never even spoken to these guys.”

‘We Wouldn’t Be Able To Exist’

Still…“I have to admit,” Lee admitted in that same 2014 interview, “we wouldn’t be able to exist without Wilkes & McHugh.”

Whatever their actual relationships with plaintiffs’ lawyers, groups such as Families for Better Care are for many provider advocates front organizations in the long struggle against nursing care centers. Hotlines proliferate, “advocacy” groups are formed, and nursing centers find themselves buried in, and by, litigation.

“You think you’re calling someone who really cares,” says Dianne De La Mare, vice president of legal affairs at the American Health Care Association/National Center for Assisted Living. “But you’re really being led to someone who is trying to make money off of you.”

The Refrain

Plaintiffs’ lawyers argue back that they’re merely picking up the pieces of a broken regulatory system where elders are left in the hands of merciless businessmen who (and this really is a refrain) “put profits above people.”

“When Wilkes & McHugh, P.A., opened its doors in 1985, nursing center abuse lawsuits scarcely existed,” Wilkes’ says on its website’s front page. “Although many cases of nursing home neglect were documented, very few law firms would challenge nursing home corporations when they engaged in elder abuse. … Wilkes & McHugh, P.A., was one of the first law firms to help families hold nursing homes accountable when they engaged in abuse in a nursing home. We have come a long way in the fight against elder abuse, but too many frail elders are still paying the price for nursing home neglect.”

It is certainly true that “nursing home abuse lawsuits scarcely existed” three decades ago.

Making Fear Of Death Pay

But, as the population has aged, and the business has grown, trial lawyers saw opportunity in all that suffering and death. What if, instead of arguing against inevitability or going after front-line workers (who, after all, are likely to be sympathetic witnesses), they argued that a death or suffering was the result of sinister, corporate forces that used front-line workers as their disposable drones?

While sorting those questions out, tort artists discovered something else, says Paul Killeen, senior vice president of Golden Living.

“A few plaintiffs’ lawyers plowed money back into jurors’ psychology. And they learned that jurors tend to have fears that they cannot control: that we fear the future and we fear our own helplessness, and that there’s just a feeling that a person who is old and sick deserves the very best in every case,” he says. That allowed lawyers to make people’s fear of aging and death—and their sublimated guilt about these issues—into a lucrative niche. The plaintiffs were probably grieving long before their loved one suffered injury or died, Killeen says.

Starting From Guilt

“First, there’s guilt at having had to make a placement to begin with. It’s not rational: We know people can’t care for their loved ones; they’re already working two jobs. The second is grief. By grief, I mean the grievous incident that happens every week when people begin to lose their memory of who you or your kids are,” he says.

But that makes it all the easier for a lawyer to turn those tortuous feelings into a weapon against the nursing center.

“Of course they [the plaintiffs] never acknowledge that they’re in it for the money. They find a way to transform their guilt into a crusade: ‘I don’t want this to happen to anyone else.’ Really, it’s just part of their rationale that is causing them to want to lash out at you in the first place.”

Meanwhile, jurors “come in conditioned to be afraid that the same thing is going to happen to them,” Killeen says. “That some big company is going to tell the local people that they don’t have the resources. It turns you 180 degrees.”

The Science Of Law Firm Trolling

Whatever one thinks of the law firms’ skills, some lawyers have now got it down to a science. The way it works is, a law firm will target a specific care center, preferably in a plaintiff-friendly state such as Kentucky. The firm then goes through the center’s records, looking for deficiencies.

In some cases, law firms are even partnering with states’ attorneys general. New Mexico, for instance, has ordered a review of state policies that allow private firms to sue nursing centers on behalf of the attorney general’s office.

Then the firm takes out an ad—sometimes in the local press, sometimes on billboards, increasingly on the Internet. (One firm even took a run at Provider’s ad sales department a year ago. The offer was declined.) Under the banner of “raising awareness,” the firm sets up a number to call if “you or a loved one” has questions or concerns about the care in the center.

Having signed up a few potential clients, the firms then recruit former or current employees. The pitch is simple: We know it’s not your fault; we think it’s because corporate headquarters wouldn’t give you the staff, the time, or the money you needed to provide the very best care.

From there, it’s just a matter of producing graphic pictures of what suffering or dying looks like (easy to come by), and care centers are suddenly hit with six, seven suits at a time.

Set Up For Failure

“I’ve talked to the plaintiffs’ lawyers about those ads,” says Daniel Moriarty, vice president and counsel at Kindred. “They think it gets them not only the big cases, but also the lower-value ones, too. The ads have a demoralizing effect on the facility staff who are trying to stay focused on providing quality care. In many cases the issues outlined in the ads were addressed through the survey process years earlier and do not reflect what is happening currently.”

For Golden Living’s Killeen, providers have their work cut out for them. He says that providers must tackle people’s fears of aging and death at both the micro and the macro levels.

“If you don’t have an equal and opposite effort to teach people that death is a part of life,” he says, “to inform people about what’s coming next, and earning their trust by being an articulate spokesman for what their loved one is going through and will be going through, you’re set up for failure.”