Profits & patients
By STEPHEN NOHLGREN
© St. Petersburg Times, published March 18, 2001
First of two parts
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ST. PETERSBURG -- A decade ago, Charlie McCorkle's nursing home stay wouldn't have drawn even a nibble of interest from trial lawyers. A man with Alzheimer's disease loses weight and develops a horrible bedsore, so what?
Nursing homes are crying uncle and want the Legislature to rein in the lawsuits. The lawyers give it right back: If the homes would just give decent care, the lawsuits would wither away.
Then along comes a McCorkle. Even his lawyers acknowledge his was not their grimmest case: no grisly amputations, no broken bones or agonizing death. His suit was about the basic, hands-on care that 80,000 Floridians need every day.
Except for the unexpected heir who surfaced at the last minute, McCorkle's story could have unfolded at dozens of nursing homes.
Which is precisely why this case rocked the industry.
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Charlie McCorkle worked as a long-haul trucker for 39 years. A native of Chicago, he was widowed once, divorced once and never fathered children. After his parents died, the closest thing to family was his maternal aunt, Marie Weldon, who lived in Redington Beach.
After Charlie was diagnosed with early-onset Alzheimer's about five years ago, Weldon put him in an assisted living home in Florida. He lasted two days before falling and mashing his face. In June 1997, she moved him to Colonial Care Center, a nursing home in Kenneth City. At first, she was happy with his care, she said, but over time noticed that aides always seemed to be scurrying around and didn't have enough time for the residents. After 11 months, she moved Charlie out. He died a few months later at a cousin's home. He was 65.
Weldon opened the Yellow Pages and called a lawyer at random. Could he look into a lawsuit against the nursing home? No, he told her, he didn't handle such cases. But he knew who did.
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Ensconced in a glass high-rise at Dale Mabry Highway and Kennedy Boulevard in Tampa, the law firm of Wilkes & McHugh is the Godzilla of nursing home litigation.
Nine years ago, it was just the two of them challenging the conventional wisdom that old people had little value as clients. Jim Wilkes and Tim McHugh found leverage in Florida's tough resident rights law. They gambled their own money, shelling out as much as $300,000 to prepare a single case for trial.
Their strategy yielded such rewards that the firm has grown to 42 lawyers, with hundreds of cases in the pipeline and a corporate jet that whisks litigators around eight states. The firm doled out $500,000 last year in campaign contributions. Republican? Democrat? It didn't matter.
Wilkes, 50, is the front man. A nursing home industry lobbyist has compared him to Satan; peers see a prosperous role model.
McHugh, 42, is the organizer, sorting through hundreds of potential clients a year. He says most inquiries are meritless or unsupported by medical records.
But McCorkle's decline sounded serious. Weldon described a precipitous weight loss and a gaping, gangrenous bedsore on his buttock that required surgery down to the bone.
As always, the firm's first step was to pore over the patient charts, the soft underbelly of nursing home defense. When did they feed him? Did he get his medicine? Did aides turn him every two hours as the law requires?
Charts are so important to tracking care, according to one nursing school maxim, "If you didn't chart it, you didn't do it."
Of course that's not always true: Maybe an aide is feeding one resident and two or three call lights are buzzing. Another resident could be in trouble. You don't stop to chart, you move on. You provide care.
Some nursing homes reconstruct incomplete charts after the fact, with ludicrous results. Charts in big-verdict cases sometimes show residents getting fed two days before admission, or bathed a day after the hearse picked up the body. Or a resident got taken for a walk on Feb. 30.
For a plaintiff's lawyer, McCorkle's records at Colonial were golden.
His weight at admission was listed at 190 pounds, compared to 130 at discharge 11 months later. While McCorkle was fighting his bedsore, good nutrition was critical to skin repair. So what did his meal charts say? More than one-third were blank.
A dietitian prescribed zinc and vitamins to fight the sore. Did the nurses call the doctor to get an order? No mention on the charts. They did get an order to treat diarrhea, but the charts documented nothing about him actually getting the medicine. Three days later, a physical therapist noted that diarrhea had soiled the bedsore bandage.
When McCorkle needed surgery to clean out the sore, hospital admitting records described him as dehydrated and malnourished. What did Colonial's records that same day say?
Resident "discharged to a facility closer to his family. He reached his maximum potential while here."
The charts sealed it. On Feb. 2, 1999, McHugh sued Extendicare Health Facilities, Colonial's Milwaukee-based owner, on behalf of McCorkle's estate and his personal representative, Marie Weldon.
The suit asked for punitive damages, an amount large enough to send a message to the industry: Never let this happen again.
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Under court rules, nursing homes that are sued must supply the names of every employee who worked during the time the plaintiff lived there. Even janitors might stumble across horrible treatment, which makes them potential witnesses.
Such witnesses are invaluable for another reason: If enough feel they were overworked, that cements the inevitable big-verdict theme: Big corporation skimps on staff to turn a profit. Someone gets hurt. Let's teach them a lesson.
Nursing home workers tend to move around a lot, but Wilkes & McHugh hires private detectives to track them down.
Former aide Loxie Kroposky told the lawyers that Colonial was routinely short-staffed. On a typical evening shift, Kroposky said, she would care for 20 to 22 patients, except when state regulators came for their annual inspection. Then, extra aides materialized and she cared for only seven or eight.
How did this affect McCorkle's care?
Proper, basic care will prevent most bedsores. Food. Water. Cleaning. Movement. All it takes is time. But Kroposky said she didn't have that time. She couldn't turn him every two hours to prevent skin breakdown. Once she found him sitting in encrusted feces because aides from a previous shift hadn't cleaned him.
"I've seen aides pull off (diapers) and put (clean ones) back on and not clean the person," she said. "The acid content in urine starts breaking the skin down in hours. This is where your bedsores come from."
As long as aides stayed around to feed him, they said, McCorkle would eat all his meals, ever so slowly. He was so cooperative, his nickname was Smiley, and he loved chocolate ice cream. But feeding him could take 30 minutes, time the aides said they sometimes could not spare.
With shaky medical charts and two-dozen former employees to pick from, McCorkle's lawyers had plenty of ammunition. They also had a potent intangible: The fall that put McCorkle into Colonial Care had stolen his ability to speak. The lawyers knew just how they'd put that nugget to use.
They would ask the jury to be his voice.
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Nursing home lawsuits almost always settle out of court. Lawyers for the residents take the bird in hand and move on. Nursing homes fear the volatility of a jury and hate bad publicity.
Why not settle this one?
Wilkes says he offered to settle for $3.5-million but Extendicare wouldn't top $1.5-million. With about 300 nursing homes at the time, Extendicare was one of North America's largest chains.
"I think they wanted to teach us a lesson," Wilkes says. "We had 40 or 50 other cases (pending) with them."
The people at Extendicare who handled the negotiations would not comment. They have since sold Colonial and all their homes in Florida.
Like Ali battling Frazier again and again, each side knows the other's moves. Sisco would argue that Alzheimer's, not poor care, caused McCorkle's decline. He would attack the credibility of disgruntled former workers, saying they always complain they were overworked. McCorkle's trial lawyers, Bennie Lazzara and Brian Thompson, would hammer away at short staffing and corporate profits.
"They always use alliteration," says Sisco, a 40-year-old former prosecutor. "Profits over people, revenue over residents. In this case, they added "suffering in silence.' "
Sisco recognized that the gaps in the medical records looked bad for Colonial. But that didn't mean the care wasn't given.
Take the bedsore. The plaintiffs contended that a red spot on McCorkle's buttocks slowly evolved into a bedsore, giving Colonial plenty of time to feed him and protect his skin. But Sisco found records that indicated the red spot was just a rash, which was treated with salve and healed. According to his interpretation, the bedsore erupted quickly and was treated aggressively.
The weight records were all over the block, including unexplained, undated cross-outs. Yes, one record showed McCorkle weighed 190 pounds on admission. But that weight might have included a wheelchair. Other records put his initial weight at 174. If so, his weight loss wasn't so dramatic. If the jury would accept the nursing home's interpretation of the records, one could argue that McCorkle lost most of his weight in the hospital, when he went for surgery.
One of Sisco's biggest hurdles was Weldon, the gentle aunt. In many cases, the defense can subtly challenge the motives of the relative doing the suing. A brother lives in the same town but never visits the nursing home. An unemployed daughter swoops in to claim a big payoff. Juries take offense and hold down damages.
But on the plaintiff sympathy scale, Weldon was lobster bisque. She had visited her nephew frequently and helped pay for his care. Still, Sisco found one helpful document in the records. Two months after surgery to repair the bedsore, Weldon had filled in an evaluation form.
"We are very pleased with all services," she had written. "They have taken very good care of Charlie."
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When Hollywood portrays a lawsuit, the camera focuses on dramatic testimony and lawyerly eloquence. But many cases are won and lost in jury selection.
St. Petersburg resident Charles Bivins presented an interesting choice. He was a 42-year-old operating room assistant for doctors who perform heart surgery. Conventional legal theory holds that people in the medical profession hate lawyers who sue, so it was only natural that the lawyers for the nursing home were happy to accept Bivins. What was unusual was the lawyers who filed the suit liked him, too.
"I felt some of the things he was going to see in (McCorkle's) charts would be totally appalling," Lazzara says. "When you are in the surgery room, they say, "Pass me that thing,' and they want things done now. No mistakes."
Also in the front row sat Harold Lee Jr., a 33-year-old operations supervisor at the Franklin Templeton Fund. Defense lawyers usually like business executives, and Sisco was no exception. McCorkle's lawyers harbored doubts; in one of the frequent mock trials they conduct at Wilkes & McHugh, a young, male business executive agreed to negligence but wouldn't award much money.
Lazzara and Thompson wanted to avoid Lee, but they had a problem. They planned to use three of their challenges in the front row, and Sisco had used only one of his. If they booted off too many people, too soon, Sisco might later force them to accept a juror they really did not want, like nursing home regulator Suzanne Lewis, who was waiting in the second row.
Lee was in.
During the years Lewis inspected nursing homes for Florida, Colonial Care collected a string of superior ratings. Sisco and co-counsel Jay Dinan would have loved her on the jury. "They can put all this stuff into evidence, but she knew the industry," Sisco says. "She wouldn't have unrealistic expectations."
Lazzara and Thompson weren't about to let her on. Not only might she vote against them, she could decide the entire case if other jurors deferred to her expertise. Lewis was out.
On the back row sat Shirley Perry, a 38-year-old quality assurance worker at Home Shopping Network. She had recently taken in her 72-year-old mother, who had developed a terrible bedsore on her heel caused by poor circulation. Sisco thought Perry would understand that bedsores are difficult to treat, even under the eye of a loving relative. Lazzara and Thompson had no strong feelings. Perry was in.
Jo Ann Brogan, a 67-year-old manufacturing worker, had captured the attention of both sides. She told the lawyers that she was squeamish; graphic photographs of McCorkle's bedsore might upset her. That sent out a big sympathetic signal for McCorkle's side. Then again, if they picked her and showed the photos, she might turn on them.
Sisco accepted her, hoping the other side would show the photos. Lazzara and Thompson also accepted her, then debated how to handle the photos. Lazzara wanted to risk showing them. But Thompson and other colleagues at the firm persuaded him to settle for verbal descriptions, like one aide's image of a Q-Tip disappearing into the bedsore.
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A recent federal study concluded that most of America's nursing homes are dangerously understaffed, leading to malnutrition, serious bedsores, dehydration and hospitalizations. Fewer and fewer nursing aides will clean backsides and give showers for what nursing homes are willing to pay.
Problems are particularly acute at for-profit homes, which average only 75 percent as much staff as non-profit homes, the study said.
Non-profit homes can hire more staff because they attract more private-paying residents. People who can afford to pay $40,000 and more a year gravitate toward Catholic, Jewish and Presbyterian non-profit homes. The for-profit homes are left with more low-paying Medicaid residents.
Lawyers who sue contend that for-profit homes skimp on staff to protect their bottom line. During McCorkle's stay at Colonial, the home made an average yearly operating profit of $1.6-million on revenues of $10.3-million.
After two days of jury selection, testimony finally began. Lazzara and Thompson wasted no time in developing their "profits over people" theme.
According to the federal study, bad things start happening when certified nursing aides care for more than 12 patients on average. Florida's legal minimum is a woeful 14, established years ago when residents were healthier than they are now.
Accountant Vicky Fierro testified that Colonial failed to meet the 14-patient standard 28 of the 35 days leading to McCorkle's hospitalization for the bedsore.
In a numbing cross-examination full of time cards, schedules, ratios and department codes, Fierro acknowledged that she had used inaccurate census figures some days and eliminated some aides for technical reasons. And yes, Wilkes & McHugh had paid her more than $100,000 that year to testify in their cases.
But no cross-examination could undo the graphic, anecdotal testimony of former aides. They said they routinely cared for 15 to 20 patients and occasionally as many as 40.
Leslie Cooper talked about skipping the special nutritional drinks that residents like McCorkle needed to maintain weight and fight bedsores.
"A lot of the residents we had to hold their drink for them while they drank it, or we had to feed them their pudding . . . and we just didn't have time to."
Q: "Did you have time to give Mr. McCorkle his snacks?
Q: "Did the nurses ever help you on the floor when your were short-staffed?"
When Lateka Walden would begin her daytime shift, she said, she often found McCorkle lying in his own urine. "He had been sitting so long in his own moisture to where his skin would be wrinkled and pale from not being changed properly."
Tracy Groth said she saw McCorkle and other residents wearing new diapers without being bathed. Aides would just throw on powder to mask the smell.
"You would have someone that smells kind of like they've been out in a pine tree for a while, but the odor's still there, the crystallization's still there and the powder is caked on."
Crystallization? "Well, urine turns to crystal after it's been on the body for a while and it causes redness. This redness can build up."
Tracy Ballard said McCorkle's bedsore was the biggest she had ever seen, the size of a large tangerine or orange. "They would take Q-Tips to . . . take the skin out . . . and there was only a fingertip left to hold (it)."
Residents with families who visited frequently got care first, she said. Ones like McCorkle, "who couldn't speak for themselves," were the last priority. "People aren't getting the right kind of care. . . . I had the fear they would come back and haunt me."
Former staffing coordinator Cassandra Piddock testified that high turnover and aides calling in sick left Colonial scrambling for replacements three days a week. Aides started "to hide from me when they saw me coming down the hall because they knew I was looking for people to work overtime."
Like the aides, Piddock acknowledged that she didn't know what staffing levels the law required.
Administrator James Mason testified that Colonial set its regular staffing levels above the state minimums. When workers failed to show, the staff would complain of overwork, he said, but the minimums still were met.
Could Mason verify that McCorkle got good care? He didn't remember McCorkle.
Joy Calkin, then CEO, testified that Extendicare had an extensive quality assurance program to maintain good care. Juror Shirley Perry, the Home Shopping quality assurance worker, sent up a written question: Did anyone from Extendicare headquarters ever make surprise inspections?
No, said Calkin.
In closing arguments, Sisco described the inevitable decline of Alzheimer's. He talked about the extensive therapy the home gave McCorkle. He had a bedsore, but it was fixed. He lost weight, but so does everyone with dementia.
"Charting in this case was less than perfect," Sisco acknowledged, but "human beings are the people who document these charts . . . people whose first priority was to provide care to residents."
Lazzara talked of McCorkle's "silent suffering" (always alliteration) and reminded jurors about athletes who earn millions and paintings that sell for millions. Surely, McCorkle's suffering was worth that.
"You're really speaking for your community in putting a value on Charles McCorkle and saying we can't just flush him down the toilet like some kind of pet fish."
On Day 13 of the trial, the jury adjourned to deliberate. The judge had just complimented the lawyers for their professionalism, and Lazzara managed to get five words out when the bailiff interrupted. The jury already had sent out a message:
They wanted a calculator.
- Times researcher Kitty Bennett contributed to this report.
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Tomorrow: Inside the jury room.
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