Roger Glasgow is a member of a small but growing club, and he's not particularly happy about it.

Glasgow, a partner at the Wright Lindsey & Jennings law firm in Little Rock, has almost abandoned the product liability defense work that he enjoys and is spending most of his time defending nursing homes sued by the Wilkes & McHugh law firm or one of its imitators.

Nursing home defense has become a steady, profitable line of work: Unlike the plaintiffs — attorneys whose fee is contingent on winning, defense attorneys get paid by the hour. But for a guy who likes to win, it is a frustrating job.

“You almost never walk away with a defense verdict. It's almost always a matter of damage control,” Glasgow said.

Glasgow heads Wright's nursing home defense unit, which also includes attorneys Jerry Sallings and Kristi Moody and paralegal Rita Hoover.

“I can tell you that with the explosion of cases — we are getting in probably a couple of new cases a week — we are going to have to probably double the size of our unit,” Glasgow said last week.

The Mitchell Williams Selig Gates & Woodyard firm in Little Rock, which has a large health care specialty area, currently has the state's largest nursing home defense practice. Eight lawyers work pretty much full-time on nursing home cases, and the firm's nursing home regulatory practice — which includes helping nursing homes avoid litigation — has ballooned from one lawyer to five, according to Debby Nye, head of the regulatory section.

Mitchell attorneys Rick Beard and Stuart Miller were representing Beverly Enterprises Inc. of Fort Smith in a case in Pulaski County last week. Others on the firm's nursing home litigation team include Lyn Pruitt, Jeff Hatfield, Kyle Heffley, Tim Howell, Delanna Padilla and Elizabeth Smith.

“In the near term, it is an unending stream” of hourly fees, Nye said of the nursing home practice.

At the Friday Eldredge & Clark firm in Little Rock, Tonia Jones, formerly a medical malpractice specialist, has become the go-to lawyer for nursing home defense.

“There are not very many lawyers who want to do it,” Jones said. But several have stepped up to the plate. Other Little Rock lawyers who have defended nursing homes, although not exclusively, include Bruce Munson of the Huckabay Munson Rowlett & Tilley firm, Mariam Hopkins of Anderson Murphy & Hopkins and Bill Edwards of Barber McCaskill Jones & Hale.

And while Little Rock lawyers traditionally have had a corner on the market, smaller firms across the state are also beginning to get a share of the defense business.

At the beginning of this year, the two nursing home defense attorneys at Dover Dixon Horne left to form their own firm — and are now suing nursing homes.

The Spark

“The spark that fired the explosion” of nursing home defense, Glasgow said, was the arrival in Arkansas of Wilkes & McHugh. It is a Tampa, Fla., firm whose founding partner, Jim Wilkes, pioneered a highly successful model for negligence cases against nursing homes and an aggressive advertising campaign for locating potential plaintiffs. Other firms, from inside and outside the state, have followed Wilkes & McHugh's lead.

Nursing home litigation was not unheard-of in Arkansas before Wilkes & McHugh opened shop in Little Rock in early 1999, but the cases were few and the dollars involved relatively small. Typical settlements were in the $25,000-$30,000 range, according to Tonia Jones of the Friday firm.

“Legally, they weren't very big cases because there are no lost wages and not much life expectancy,” the two categories of damages that typically determine the dollar value of a wrongful death case, Jones said.

But Jim Wilkes, a highly vocal critic of the nursing home industry as a whole and particularly of facilities run by large corporations, transformed nursing home litigation into a high-dollar industry.

“It's not rocket science once you understand the model,” Jones said. “I think (Wilkes) was brilliant to recognize the potential, but as a legal strategy it is not that difficult.”

The Wilkes & McHugh model, as Jones described it, is three-pronged:

• repeat the mantra of “profits over people,”

• find disgruntled former employees to testify against the nursing home and

• point out problems with patient charts — “which there always are,” she said.

Brian Reddick, the former Beverly Enterprises attorney who manages the Wilkes & McHugh office in Little Rock, scoffed.

“That's an over-simplified defense attorney description of our model,” he said.

Wilkes & McHugh cases always include the claim that the nursing home operator made profits a priority over patient care, Reddick said, because the firm doesn't file suits based on simple human error. Instead, he said, Wilkes & McHugh looks for patterns of negligence.

And, he said, he calls nursing home employees to testify because “I like the jury to hear the person who actually took care of the resident. Ms. Jones like to characterize them as disgruntled former employees because they give testimony that is detrimental to her clients.”

Nursing home patients invariably have multiple, serious health problems; most are in what Glasgow called a “death trajectory” that makes a “bad outcome” unavoidable. But the Wilkes model, Glasgow and Jones say, depends more on emotions than on medical facts.

“Everyone on the jury can identify [with the patient] to some extent. Everybody, if you are lucky enough, is going to get old. And the plaintiff's attorney can play to that natural apprehension. You don't want your mother or your father or yourself to be mistreated,” Jones said.

“It's a social phenomenon that reverberates in the human psyche because it forces people to face mortality, and no one wants to do that,” Glasgow said.

The Wilkes model, Jones said, puts the nursing home, its owners and the industry as a whole on trial and effectively shifts the burden of proof onto the nursing home.

“Legally, it shouldn't be that way. But the way these cases are set up and the way the plaintiffs — attorneys approach them, that's the way it turns out,” she said.

Nye said the cases seem to be more about human interaction than medicine.

“My opinion, being on the regulatory side and working with the litigators, is that they have very little to do with medical care. These are not what would be a typical medical malpractice case. Those aren't what the issues are at trial,” Nye said,

Instead, she said, the plaintiffs — attorneys “are trying a case to demonstrate a lack of a caring environment, inattention.”

The litigation is teaching regulatory attorneys ways their nursing home clients can avoid future litigation, Nye said, and most of those defensive measures involve documentation rather than changes in patient care.

Winnability

A defense victory is not impossible, as Jones has proven. Assisted in the closing argument by Friday's board chairman, William H. “Buddy” Sutton, Jones was the first lawyer to beat Wilkes & McHugh in Arkansas in a Pope County case last September. She subsequently won a small nursing home case filed in Little Rock by personal injury specialist Peter Miller.

But the vast majority of nursing home cases are settled out of court, which has been the preferred strategy of the insurance companies that write liability policies for nursing homes. Settlements are so common, regardless of the merits of the case, that Jones said, “I wonder if they were feeding the beast.”

Still, the settlement strategy seems prudent in light of the stunning $78.4 million verdict that a Mena jury handed down last year in a case whose facts seemed fairly typical.

The winnability of a case at trial, lawyers on both sides have said, often depends more on the corporate structure of the nursing home than on the particular circumstances of the patient.

“The theory is that the small operator is more a part of the community and that would lend itself to being a more credible defendant in that community,” Nye said.

The huge Mena verdict, which David Couch and Darren O'Quinn defended while they were still at Dover Dixon, was against a nursing home owned and managed by a large Tennessee chain. Jones — win in Russellville — Wilkes & McHugh'sonly outright loss in Arkansas so far — was in a case filed against local owners who operated only three nursing homes.

Wilkes & McHugh typically does not sue nursing homes operated by nonprofit organizations. Reddick said nonprofit facilities are not as guilty of gross negligence as the profit-driven corporations; critics suggest that the Wilkes & McHugh litigation model simply doesn't work when the “profits over people” argument can't be applied.

In some cases, the defenders say, the facts lead them to recommend a swift settlement.

“We certainly are just as aware as the plaintiffs of what will shock a (juror) based upon a review of the record, and clearly some things you cannot overcome,” Nye, of the Mitchell firm said. “And there are some [cases] that have been settled that we, as lawyers, would have loved to have tried. But other factors play into the decision to settle.”

The Mitchell firm has taken a number of cases to trial — but even those have been settled before reaching a verdict, Nye said.

The cases that go to trial are generally those in which the plaintiff's settlement demands make a jury trial seem like less of a gamble. That was the case in all three that Glasgow has taken to trial — and lost.

“We have not gotten a defense verdict, but we have certainly kept the verdict below a million dollars,” Glasgow said. That, he said, is generally considered the “break-even” point for Wilkes & McHugh, which gets 30-40 percent of the damages plus reimbursement for pretrial expenses.

Reddick disputed that characterization.

“I've never met Roger Glasgow, and the last time I checked, he is not our accountant. How the hell would Roger Glasgow know what our break-even point is?” Reddick asked.

Reddick said the break-even point for Wilkes cases varies depending on the circumstances of the case and the amount of pretrial work that is necessary. But he acknowledged that his firm looks for cases that are likely to carry seven-figure verdicts.

“Obviously, we have limited resources and limited personnel. We take only the most egregious cases, and the most egregious cases are multimillion-dollar cases,” he said.

Wilkes & McHugh takes a gamble on every case it files, and the stakes can be high.

“I have never seen anyone throw money at these cases like they do,” Glasgow said. “Every case I've ever had with them, they send their lead attorney from Tampa, and they'll have someone from the Little Rock office in the second chair. Then they have a team of attorneys back in the office to conduct what we call the paper war.”

Settlement Demands

Glasgow's first nursing home case was one of the most highly publicized; he calls it “the famous ant case.” Filed in 2000, it concerned the death of an elderly woman in a College Station nursing home in 1999. When the Pulaski County coroner arrived, as required by law, ants were crawling on the dead woman's feeding tube.

Although the death received a great deal of media attention, the settlement of the case for what Glasgow called a reasonable amount received almost no coverage. The plaintiff's attorney was Greg Kitterman.

Wright Lindsey & Jennings — first trial against Wilkes & McHugh was tried, and lost, by attorney Tricia Sievers Harris in Pulaski County Circuit Court in February 2001. It was, Glasgow said, “a horrible case.” The verdict was $1.5 million.

Glasgow personally tried his first against Wilkes & McHugh in Pulaski County in June 2001. The plaintiffs won $1 million.

His second was in Nashville (Howard County) in October 2001, four months after Wilkes & McHugh hit the jackpot in Mena. Jim Wilkes, according to Glasgow, had offered to settle the Nashville case for $10 million, a figure that he said represented the average verdict his firm had won in Arkansas at that point.

Wilkes said the offer was non-negotiable, Glasgow said, so the case proceeded to trial. Damages awarded by the jury: $455,000 — “which [Wilkes & McHugh] considered to be a horrible loss and my client considered a great victory,” Glasgow said.

“If he's classifying almost a half-million-dollar verdict as a loss, I'll take those kind of losses till the day I die,” Wilkes & McHugh's Reddick responded.

Glasgow's third trial against Wilkes & McHugh was also in Nashville. The settlement offered in that one was $2 million, Glasgow said; the jury verdict was $800,000.

He recently settled a Pulaski County case filed by Wilkes & McHugh for $425,000. The settlement demand in that case, he said, had originally been $1 million.

“They still aren't making any money, and they know we aren't afraid to go toe-to-toe with them,” Glasgow said.

And that, he says, may be what eventually slows down the nursing home litigation train.

“Number one, liability [insurance] rates on nursing homes will go so far that nursing homes start going naked or shut down,” Glasgow said, using a term that means operating without liability insurance, a strategy that may make them less attractive to plaintiff's attorneys.

“Or the defense can start making headway against these cases and make them less profitable. And I believe we're making headway.”

Former Defense Lawyers Switch Sides

Last year, David Couch and M. Darren O'Quinn had the dubious distinction of being on the losing side of the biggest jury verdict in Arkansas history.

The two partners in the Little Rock law firm of Dover & Dixon defended the Rich Mountain Nursing Home at Mena, which was ordered to pay $78.4 million to the family of a 93-year-old patient who died of dehydration after more than five years in the facility.

But that was then.

Nowadays the two are partners in their own boutique firm, Couch O'Quinn PLLC, and they are suing nursing homes rather than defending them.

“I've either gone over to the dark side or I'm now wearing a white hat, depending on which seminar I go to,” Couch said last week.

The new firm, which has Jim Rhodes of counsel, has taken about 15 plaintiff's cases against nursing homes, Couch said. And while those represent about 75 percent of the firm's current case load, he said he hopes nursing home litigation will eventually become Couch O'Quinn's sole practice area.

Dover & Dixon merged in January with Horne Hollingsworth & Parker to form Dover Dixon Horne PLLC. Couch and O'Quinn struck out on their own the same month. Couch O'Quinn was incorporated on Jan. 2.

“We just decided that we didn't want to be in a big firm anymore, and we —d just become enamored with nursing home litigation,” Couch said.

They had had plenty of experience — “I would say that when we sent all of our files back, and not all of these were open cases, we had over 100 files,” Couch said — but all of it was on the defense side.

When asked why he decided to switch to the plaintiff's side, Couch said, “It just fits my personality better. I've always been for the underdog.”

In nursing home litigation, however, the plaintiffs almost always win. The vast majority of cases are settled out of court, and the few that go to trial are generally won by the plaintiffs. So how is that representing the underdog?

“You are looking at it as a lawsuit,” he said. “I'm looking at it as the patient is always the underdog.”

Other attorneys who spoke off the record suggested that, after the astonishing size of the verdict at Mena, Couch and O'Quinn's future as nursing home defenders was probably limited anyway.

A number of law firms have made a specialty of nursing home litigation in Arkansas since the arrival in early 1999 of Wilkes & McHugh, the Florida pioneer in the practice. But Couch insists it is neither a crowded nor a competitive field.

“This is the wonderful thing that I didn't understand when I was a defense lawyer, but the competitors are the defense lawyers. They are all competing for the same client, generally an insurance company,” he said. On the plaintiff's side, he said, the law firms are willing to share information, strategies and expertise.

When asked if he was implying that there were enough good cases to go around, he said simply, “There are.”

Couch says he may, when the situation warrants, use a strategy similar to the one that beat him and O'Quinn at Mena: Corporate greed is responsible for staffing shortages and inadequate care.

But he still thinks the Mena verdict, which is being appealed, was “inexplicable.”

“Seventy-eight million dollars is an excessive amount of money,” Couch said.

 

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