Friday, August 25, 2017
Anatomy Of A Scam: How Lawyers Hurt Clients And Crush Nursing Homes
There is no shortage of aggrieved nursing home negligence or medical malpractice plaintiffs who express serious misgivings about the quality of their representation, and the fees lawyers assess against them after securing awards. One such attorney is Michael Fuller of McHugh Fuller, a Mississippi-based firm specializing in nursing home litigation.
A Daily Caller News Foundation investigation suggests that McHugh Fuller and its allies bankroll a nonprofit that promotes litigation in the states where they practice. The firms then collect a huge percentage of the awards they secure, while quality long term care is compromised by their tactics.
Fuller‘s former clients describe an attorney who is elusive and inattentive, but all too eager to collect large percentages of the awards he secures. His firm also evidences a history of misleading advertising that has resulted in sanctions from state courts. What’s more, his law partner, James McHugh, is intimately connected to a Pennsylvania-based law practice that bankrolled a nursing home oversight group called Families for Better Care, which tax records suggests may be a front to provoke litigation in jurisdictions where the firm frequently practices.
As a result of relentless litigation in certain jurisdictions of the sort practiced by these firms, quality longterm care has all but withdrawn from states like Ohio, Pennsylvania, Kentucky, and West Virginia.
McHugh Fuller declined comment for this story.
Big Awards, Bigger Fees
Fuller represented Mrs. Keffer in litigation she brought against a West Virginia nursing home she claims abused her late husband, Ralph Keffer, while he was in their care. Mr. Keffer subsequently died while in the care of a separate facility. After a lengthy mediation process, the nursing home agreed to settle for $80,000. Mrs. Keffer recovered $50,000 of that award.
Per an initial settlement agreement reviewed by The Daily Caller News Foundation, Medicare and Medicaid were entitled to collect a $25,000 lien from the award, and McHugh Fuller kept $5,000 in attorneys fees. However, Medicare and Medicaid declined to collect the lien, so Fuller kept the $25,000.
“He didn’t ask me if he could take it or anything like that, he just took that amount,” Mrs. Keffer told TheDCNF. Thereafter, she attempted to contact him repeatedly over a period of several months.
“Every time I called him he would be out of the office, he would never call me back,” she said. “He just wouldn’t talk to me.”
After settling the case, Keffer received an itemized bill from McHugh Fuller for $71,000. TheDCNF obtained a copy of the statement. Ultimately, she was not made to pay out any of the charges.
In the early going, Keffer says Fuller was diligent in his supervision of the case and in communicating with her on a regular basis. As the litigation progressed over time, however, he became less and less interested.
“In the beginning, he cared about my case, but then as time went on … he didn’t want anything to do with [it],” she told TheDCNF. She further said she regrets her decision to settle the case, especially after learning of the full extent of the abuse to which her late husband may have been subject.
“He treated me very unfairly in the end,” she said of Fuller.
Keffer ultimately lodged a complaint against Fuller with the West Virginia Bar Association, which dismissed the claim. According to documents reviewed by TheDCNF, Fuller said he guaranteed the Keffer estate a $50,000 award. He further claimed that he told Mrs. Keffer any reduction in the Medicare/Medicaid lien would be retained by the firm.
“The remaining allegation in this complaint is a fee dispute,” the Bar Association’s ruling read. “The Lawyer Disciplinary Board will not resolve such disputes unless the fee charged is in violation of law or grossly excessive on its face and that does not appear to be the case here.”
Complaints about Fuller‘s fees have been voiced by other clients. McHugh Fuller represented another litigant, Lora Jarrell, in a wrongful death action she brought against the nursing home where her mother, Ursula Gerencir, died in 2009. Fuller secured a $250,000 award for her and her brother — and kept $150,000 of it.
“I never understood why they needed $150,000 for expenses, but I didn’t argue,” she told TheDCNF.
“They’re taking more of their share of the money than they’re supposed to,” she added.
Like Keffer, Jarrell also claims she did not confer often with Fuller. Neither Fuller nor his law partner came to the case’s final proceedings.
“I wasn’t happy about that,” she said. “But they took all the money.”
Jarrell was unable to produce an itemized bill from the firm for TheDCNF. She also said that she was pleased McHugh Fuller was able to secure an award against the nursing home.
Some nursing homes around the country have accused the firm of deceptive, misleading, or false advertising. An Ohio nursing home, Heartland of Urbana OH, LLC, brought a suit against McHugh Fuller late in 2014 for violations of the Deceptive Trade Practices Act and defamation. The firm bought full page ads in a local paper indicating the nursing home had been sanctioned by the federal government for “failing to provide necessary care and service to maintain the highest well-being of each resident.” The ad specifically solicited contacts from individuals whose loved ones may have suffered “bedsores, broken bones, unexplained injuries, or death” in Heartland’s care.
Heartland argues the ad falsely left readers with the impression the facility had been cited recently. In point of fact, the nursing home had not been cited for concerns even remotely similar to those expressed in the advertisement since 2010.
Nursing home citations are assessed across a spectrum of “A” to “L,” with “L” being the most severe. Heartland received an “E” level violation in 2010 because of three instances court documents describe as “relatively minor.” They include failure to document and administer a laxative prescribed for constipation, failure to reassess abdominal pain within 18 hours, and failure to administer an antibiotic. In these cases, no serious harm befell any of the residents, and no person in the nursing home’s care suffered the sorts of injuries referenced in the ad because of staff negligence or poor quality of care.
The facility was also cited for violations in 2012, though they were less severe than the 2010 citation. U.S. News awarded the facility a three out of five star rating, matching or exceeding three of the nearest four nursing homes.
An Ohio appeals court found that McHugh Fuller‘s ad was “literally false” by necessary implication in Sept. 2016. Though the fact, it concluded, of Heartland’s citation was literally true, “the words ‘considered in context necessarily imply a false message.'” A lower court initially sided with McHugh Fuller in the dispute.
A Front Group For Litigation?
McHugh Fuller partner James McHugh practiced law at a Pennsylvania-based firm called Wilkes McHugh for 17 years before joining his current firm. Wilkes McHugh is a multi-service outfit representing clients in appeals proceedings, bankruptcy court, and a wide range of personal injury areas, including nursing home negligence.
Tax records show Wilkes McHugh was the primary financier of an advocacy group called Families for Better Care (FFBC), a nursing home watchdog frequently cited as an authority on quality of care. The group’s director, Brian Lee, was cited in a newspaper report as recently as March 3. Lee previously served in Florida state government as an ombudsman for the Department of Elder Affairs, but was ousted from government service in 2011. He claims the administration of Florida Gov. Rick Scott forced him from office under pressure from the nursing home lobby.
The group frequently publishes a national report card ranking the quality of nursing homes in each state and the District of Columbia. The states in which both Wilkes McHugh and McHugh Fuller are active, including Pennsylvania, West Virginia, Mississippi, Ohio, and Kentucky perform dismally in the reviews.
A review of the organization’s tax records from 2011 to 2014 show that Wilkes McHugh essentially bankrolled the group. For example, FFBC reported $69,400 in revenue on their 2011 990. The same record shows the entirety of that amount came from a donation given by Wilkes McHugh. The following year, the group reported $130,000 in revenue, all of which came from a donation from the firm, as in the previous year. The pattern follows for 2013 and 2014. The firm was the group’s sole benefactor in three of the four years during this period.
“Families for Better Care has a diversity of supporters, that in the past, we can proudly state included Wilkes and McHugh,” the group told TheDCNF in response to an inquiry about their relationship to the firm.
Wilkes McHugh partner James Wilkes II denied that his firm directs the organization in any way in an interview with TheDCNF. He said his firm’s motives were entirely philanthropic.
“I don’t think we are the primary benefactor,” Wilkes told TheDCNF. “We got involved when Brian Lee resigned as ombudsman.” Wilkes claims their professional relationship began when he read accounts of Lee’s dismissal in Florida newspapers.
Wilkes claimed he could not recall if he has ever met Lee. He further claims the cumulative total of their conversations runs less than 30 minutes.
In a separate 2014 interview with local media, Lee went even further than Wilkes, claiming he has never spoken with anyone from Wilkes McHugh.
Wilkes has a five-star AV Preeminent rating from Martindale-Hubbell for high ethical standing, and has won several awards for his work litigating around longterm care issues. He is a previous nominee for the AARP’s National Aging and Law Award.
FFBC also disputed that their advocacy was meant to promote business for the firm.
“In regard to our nursing home annual report, our methodology is included on the report card’s website, which shows it’s based on federal data,” Lee told TheDCNF. “Finally, we are proud of our determined advocacy on behalf of residents and their rights, to ensure they receive the best care possible.”
Lee’s activities raise questions about the tax-status of the group, which is a registered 501(c)3 group. The IRS requires nonprofits to disclose any and all lobbying activity and lobbying-related expenses on government forms. Lee has written in the Florida press about matters pending in the state legislature, identified as a “lobbyist” in applying for other positions according to court documents reviewed by TheDCNF, and describes himself as an “advocate for changes in laws and regulations” on his LinkedIn page. Despite this, the organization did not disclose any lobbying on its tax forms.
What’s more, Wilkes McHugh’s lobbying and media firm, Vancore Jones, is intimately connected to FFBC. The firm’s two principals, Steve Vancore and Andrew Jones, registered as officers of FFBC.
Both previously registered as lobbyists for Wilkes McHugh in Florida, according to state records. The registrant-contact for FFBC’s domain name is also an employee of Vancore Jones.
All told, FFBC appears more closely connected to Wilkes McHugh than its principals contend.
In addition to client complaints, court sanctions, and its connection to FFBC, McHugh Fuller attracted notoriety for its involvement in the purchase of a private jet from a judge they had occasion to argue before, and for a bevy of campaign donations to the same judge that campaign finance experts say resembles an illegal straw-donor scheme.
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Anatomy Of A Scam: How Lawyers Hurt Clients And Crush Nursing Homes