A Legal Matter

Litigators and legislators play chicken-or-egg with nursing home issues

Sometimes, it takes a lawsuit to punish a bad nursing home. But state lawmakers may rein in the lawyers by making it tougher to sue.

In June 2001, Katherine Johnson, 72, was found unconscious at her apartment on Camelback Road. Doctors at Phoenix Baptist Hospital said she was suffering from dehydration. After three days at the hospital, she was sent to Glendale Care Center. A doctor told David Leary that his mother should be able to return home after a few weeks of rehabilitation.

She died 12 days later, on the Fourth of July. She had a bedsore on her buttocks the size of a football. Surgeons told the family that an emergency colostomy to divert Johnson's waste from the sore would probably kill her, but she would surely die without it.

Johnson was rushed to the hospital at her son's insistence, after he found his mother in a fever, lying in feces, unresponsive, covered by blankets in a sweltering room with the window left open. She had a temperature of 102.5 and a pulse of 130 beats per minute when she got to Phoenix Baptist.

Leary says nurse's aides at Glendale Care Center were watching television.

Leary hadn't known that the sore was serious until his mother was rolled over in the emergency room. The stench was overpowering when a bandage fell from the rotting wound, which gushed yellow and green drainage. She screamed as nurses started scrubbing away dead flesh.

"I still see my mom laying there, suffering, hollering, crying, stinking," Leary told a Maricopa County Superior Court jury last month. "In the state of Arizona, they won't allow an animal to be treated in this manner. It should be equally unacceptable for my mother to be treated that way. I will never forget it."

That concluded the day's testimony in a trial that began September 20 and isn't expected to end until early this month. Leary looked at his shoes as the jury filed out, his shoulders heaving. Then he walked, sobbing, from the courtroom.

This is a big-money case. Pat McGroder, one of Phoenix's best-known personal-injury lawyers, is on the Johnson family's legal team. McGroder plays for high stakes. He represented Jason Schechterle, a Phoenix police officer severely burned when his Crown Victoria blew up, winning a settlement from Ford, with terms undisclosed. He was also the lawyer for Bishop Thomas O'Brien, who got off with probation after a hit-and-run that killed a pedestrian.

According to discharge notes from Phoenix Baptist, Johnson's sore was the size of a quarter when she was sent to Glendale Care Center. After she was rushed back to the hospital, the Glendale staff added addendums to her record stating that the sore was huge when she arrived at the nursing home.

Glendale Care Center is owned by Tennessee-based Life Care Centers, the largest privately held nursing home chain in the nation. The company owns nine nursing homes in Maricopa County. A Life Care accountant has testified that Glendale Care Center hasn't been profitable for at least five years. However, Life Care Centers has plenty of money, according to Meyer Cohen, a nursing home expert who examined the company's financial statements.

While the company's books show it has broken even or been slightly in the red during recent years, those are numbers crafted to avoid taxes, Cohen says. He told the jury that Life Care Centers has realized annual profits of more than $20 million in recent years if depreciation and amortization aren't factored in.

Leary filed a complaint with the state Department of Health Services shortly after his mother died. An inspector who didn't check the hospital's records came back saying the charges couldn't be substantiated. Leary went back to the health department, demanding they take another look. This time, a different inspector looked through records at Phoenix Baptist and determined that Glendale Care Center had, in fact, harmed Johnson, ruling the home failed to "give each resident care and services to get or keep the highest quality of life possible."

The penalty? The federal government imposed a two-day ban on accepting new Medicaid patients. The state levied no sanctions.

It was an incredibly light punishment, considering Glendale Care Center's record. And it's typical, says H. Michael Wright, an attorney on Leary's legal team. Wright, who represented the Arizona Trial Lawyers Association when lawmakers last year considered curbs on nursing home lawsuits, says he's handled about 40 cases against nursing homes since 1996. Only three times, he says, was a home in his crosshairs hit with a fine from the government.

The year before Johnson died, the federal government fined Glendale Care Center $17,000 and barred the home from taking new Medicaid patients for three weeks. The state Board of Nursing suspended the home's training program for certified nursing assistants. The sanctions came after the staff at St. Joseph's Hospital complained that patients from the nursing home were showing up with pressure sores and dirty feeding tubes. Judging from lawsuits, the punishments were mere wrist taps.

Plaintiffs say at least four Glendale Care Center residents besides Johnson died because of poor care in 2000 and 2001. Life Care Centers has settled most of the cases.

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