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WVAJ president says personal injury lawyers holding nursing homes accountable

By Amanda Robert | Nov 12, 2013

CHARLESTON, W.Va. (Legal Newsline) -- Bernie Layne speaks from his experience as a personal injury lawyer and family member when he addresses the importance of representing the elderly and their relatives in nursing home cases.

Layne, the president of the West Virginia Association for Justice and a partner with Mani Ellis & Layne in Charleston, explains that he went to law school after witnessing the vulnerability of the disabled and elderly during his work with the Title 19 Medicaid Waiver Program in southern West Virginia.

He also contends that his area of litigation became important to him after his own grandfather, who was restrained to a bed in a nursing home, choked to death while eating breakfast.

"There are laws to protect those in our nursing homes, but policing them is not something that our government is willing to do or capable of doing," Layne said.

"If nursing homes are following the law, have adequate staffing and are not putting their profits ahead of residents' safety, they have no concerns.

"But if they're not, as civil attorneys, we have the ability to ensure that those nursing homes not following the law will be held accountable for it."

Not everyone in West Virginia shares Layne's perspective, especially in the wake of the $91 million verdict in the Heartland of Charleston case. In recent years, the case not only called into question the state's Medical Professional Liability Act and whether its $500,000 cap on non-economic damages applies to nursing homes, but also intensified the debate over out-of-state personal injury law firms and their role in the state's litigation.

The McHugh Fuller Law Group, which, according to its website, has offices in Hattiesburg, Miss., and Charleston, represented the plaintiffs in the Heartland of Charleston case. It shares office space with Preston & Salango.

In August 2011, a Kanawha County jury found that the 184-bed nursing and rehabilitation center then owned by HCR Manorcare failed to feed and care for Dorothy Douglas, who died after leaving the facility.

The jury awarded Douglas' family $80 million in punitive damages and $11.5 million in compensatory damages. The award was later reduced by nearly $400,000.

In April, Kanawha Circuit Judge Paul Zakaib Jr. denied defendants a new trial in the case, saying the jury verdict was not unconstitutional or excessive. He wrote that "this verdict sends a clear 'deterrence' message to a multi-million dollar nursing home corporation that its misconduct will not be tolerated in West Virginia."

The state Supreme Court will likely decide the issue. McHugh Fuller could not be reached for comment for this article.

Court records show the firm has been busy in West Virginia since 2011. That's when it began filing lawsuits in Kanawha Circuit Court.

McHugh Fuller filed five lawsuits against HCR ManorCare in 2011, 18 in 2012 and another five in 2013. The most recent was filed Oct. 10. Some of the lawsuits name Heartlands in Beckley and Clarksburg as defendants.

Of those 28 lawsuits, 16 of have been settled and 12 remain pending.

The former firm of Jim McHugh and Mike Fuller has also targeted HCR ManorCare but not in Kanawha County. Wilkes & McHugh, which has an office in Pittsburgh, filed five lawsuits in Raleigh Circuit Court, seven in Berkeley Circuit Court and one in Mineral Circuit Court against the company.

McHugh Fuller points out on its website that "nursing home abuse is a serious problem, and with an increasing elderly population entering nursing homes, the potential for neglect grows as homes are frequently understaffed and don't provide the level of care residents require."

"At McHugh Fuller, we have the knowledge and the experience in nursing home abuse litigation to successfully fight for your loved one's rights," the website says. "For almost 20 years, we have been holding nursing home companies accountable for the health and safety of their residents when they have put profits above quality care."

McHugh focuses his practice on nursing home abuse, toxic torts and class action cases. He has supervised and litigated thousands of nursing home cases, with hundreds of those valued in excess of $1 million. Similarly, Fuller has experience in nursing home, medical malpractice and criminal prosecutions and trials.

According to its website, McHugh Fuller has filed cases in nine states, and its attorneys have more than $300 million in verdicts. The website lists 22 verdicts from a period between 2004 and 2009, the highest at $17.5 million in 2009 for a man who needed several amputations after contracting a blood infection and MRSA after routine ulcer surgery.

Greg Thomas, executive director of West Virginia Citizens Against Lawsuit Abuse, casts a different light on the legal work done by McHugh Fuller. He argues that in general, out-of-state law firms bring cases to West Virginia to take advantage of imbalances in the state's courts.

"That inflicts harm on our state as we see more opportunistic litigation with the sole purpose of making the lawyers with the vulture firms rich instead of trying to make potentially harmed clients whole," Thomas said.

He contends that because of lawsuits like those that McHugh Fuller filed in West Virginia, the state has one of the highest frequencies of claims per long-term care bed. He explains that this "flood of litigation" in West Virginia resulted in increasing the liability costs associated with long-term care to three times more than the national average.

"Obviously, these sky-rocketing costs could force some long-term healthcare providers to close, which would mean even fewer available beds for our aging population," Thomas said. "Additionally, taxpayers will be forced to pay much of this increased cost because Medicaid pays for many long-term care residents in West Virginia."

Raymond Mullman Jr., a personal injury attorney with Poliakoff & Associates who contributes to the firm's South Carolina Nursing Home Blog, counters that McHugh Fuller maintains a solid reputation among firms that specialize in neglect and abuse cases in long-term care facilities.

"They understand the corporate issues, and especially with Heartland, they understand Manorcare pretty well," Mullman said. "They know what documents and cost reports to ask for...and they're not afraid of going to trial, which is half the battle. So many plaintiff lawyers don't go to trial. They try to settle it for cheaper."

Mullman also points out that it's unusual to win a $90-plus million verdict like the one McHugh Fuller won in the Heartland of Charleston case.

"You have to explain to the jury that this is taxpayer money that these people are pocketing that is meant to provide services to the most frail and vulnerable in our society," he said. "The jury doesn't like that. They don't like taking away money from the most vulnerable people."

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