John O'Brien Feb. 25, 2015, 3:17pm



COLUMBUS, Ohio (Legal Newsline) – The initial ruling in a lawsuit brought by a nursing home against a plaintiffs attorney partly came down to initials.




Judge James L. Graham, of the Southern District of Ohio’s Eastern Division, recently refused to extend a temporary restraining order previously entered in state court in favor of Manor Care of Westerville.




Manor Care of Westerville is alleging Houston attorney Nick Johnson is lying in advertisements that solicit business for lawsuits against it. The ads were published in the Columbus Dispatch.




Graham declined to extend a temporary restraining order partly because, he said, Manor Care of Westerville has not shown it will be irreparably harmed if the ads continue to run because the ad only uses the initials "MCHS," short for Manor Care Health Services.




The ad begins:




IMPORTANT NOTICE




This Westerville nursing home has been cited for multiple deficiencies




MCHS---Westerville




140 Old County Line Rd, Westerville 43081




“Plaintiff argues that the advertisement will cause it to suffer reputational harm in central Ohio,” Graham wrote.




“However, the advertisement does not identify plaintiff by name (Heartland of Westerville), but by initials (MCHS) that plaintiff’s counsel stated… were not used by plaintiff.




“Plaintiff is affirmatively identified in the advertisement only by street address. This is not a situation in which plaintiff’s name is being loudly announced in an allegedly defamatory advertisement.”




Manor Care of Westerville attorney Bob Anspach said he respectfully disagreed with the ruling.




“(W)e take exception to the court’s notation that because the advertisement itself identified the facility by the initials, as opposed to ‘Uptown Westerville,’ that the ad may not even direct the reader to the appropriate facility,” Anspach said.




“As I understand it, MCHS was the former name of the facility and actually used in some of the surveys quoted in the advertisement.




“Anyone familiar with long-term care facilities in the Westerville area would believe that the facility referenced was the one currently known as Uptown Westerville. And of course the address remains the same.”




The lawsuit is one of five that nursing homes that operate under the ManorCare umbrella recently filed against plaintiffs attorneys.




Three of those suits were filed against Johnson, and two others were filed against the Mississippi law firm McHugh Fuller.




Each was filed in an Ohio state court that granted a temporary restraining order, which lasts for two weeks if it is not extended.




Each was also removed by the defendant to federal court. Heartland of Portsmouth’s lawsuit against McHugh Fuller has been sent back to state court.




Motions to remand to state court remain pending in the other four.




The federal Centers for Medicare & Medicaid Services referred to the nursing home as “MCHS-Westerville” in its surveys of it.




The ad in question lists citations issued against the nursing home under a header of “IMPORTANT NOTICE.”




Manor Care of Westerville says the ads violate the state’s Deceptive Trade Practices Act, arguing that the statement “these deficiencies are known to cause severe injury, health deterioration, bedsores and even death” is false and deceptive because the conduct giving rise to the citations was not serious enough to have caused severe harm.




The nursing home was cited for “failure to provide care for residents in a way that keeps or builds each resident’s dignity and respect of individuality.” Johnson listed that in his ad.




“The conduct that led to that citation, according to the complaint, was that several residents were given disposable drinking cups rather than glass cups,” Graham wrote.




The nursing home has also resolved all deficiencies through plans of correction, it claims.




In the cases against McHugh Fuller, the firm has agreed to extend the temporary restraining order until there is a hearing on a preliminary injunction.




In the two other cases against Johnson, the judges split on whether to extend the temporary restraining order. It will remain in effect in ManorCare Health Services-Belden Village’s case until the court can schedule a preliminary injunction hearing.




Graham’s explanation was the lengthiest. He said Manor Care of Westerville has not proven that it has a likelihood of prevailing in the case.




“The court is not persuaded at this preliminary stage that plaintiff will be able to establish by clear and convincing evidence that the advertisement has a tendency to deceive a substantial segment of the target audience,” Graham wrote.




“In the absence of actual evidence of confusion, plaintiff gives a somewhat strained interpretation to the advertisement’s statement that the deficiencies are known to cause severe harm or health deterioration.




“The advertisement does not claim that the deficiencies found at plaintiff’s facility actually did cause such harm, nor is there a suggestion that each and every deficiency carried the same level of risk or seriousness.”




Lastly, Graham addressed the nursing home’s argument that is relationships with other businesses in the industry will be harmed.




“However, these are the audience members most likely to know better – to understand plaintiff’s underlying complaint that sometimes the cited deficiencies sound much worse than they really were and to discount the statements made in the advertisement,” Graham wrote.




Anspach, obviously, disagreed “because these audience members to whom the court refers are also the competitors of our facility.”




From Legal Newsline: Reach editor John O’Brien at jobrienwv@gmail.com.


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