Bedside Advocate

REVIEW SUMMARY
Firm. Wilkes & McHugh P.A.
Practice. Nursing home abuse
Key. Fighting industry standards, calling for change

Over the last 26 years, Jim Wilkes has built a reputation as a vanguard against nursing home abuse and neglect. It's a job he would rather not do, but he vows to do it for as long as he is able.

“There are no nursing home residents roaming the halls of Congress or state legislatures,” says the 60-year-old managing partner of Wilkes & McHugh P.A., a Tampa-based law firm with eight other offices nationwide. Nursing home operators have plenty of lobbyists, he says, and they enjoy the ability to operate as virtual fiefdoms in local markets without much government oversight.

“There's no incentive to give good care,” Wilkes says. “It's always been about how many people you can put in beds and how much money you can make. It's never been about how you best meet the need.”

Without competition or regulation, he says, there is often only one way left to get nursing homes to do what they are supposed to — in the same courtrooms where civil and criminal cases are heard, before the same types of juries.

That's why Wilkes takes exception to being described as a “holy terror” in a recent issue of Long-Term Living magazine that names him among the 10 most influential people in the long-term care industry. He is in good company, among other national notables such as the late U.S. Sen. Ted Kennedy, former Health and Human Services Director Tommy Thompson and Elma Holder, founder of the National Citizens' Coalition for Nursing Home Reform.

Results through fear

“Wilkes may claim to have materially raised the level of care in American nursing homes out of sheer fear, if nothing else,” wrote Richard L. Peck, the magazine's contributing editor. “Nursing homes counter that he is potentially responsible for damaged reputations and overpriced insurance coverage for thousands of conscientious facilities, putting their already shaky existence in even deeper jeopardy.”

While he appreciates the recognition, Wilkes emphasizes he has done nothing innovative. “All I did,” he says, “was use existing remedies to hold people accountable.”

However, building this reputation was not as easy as most people might think. Wilkes served in the Army for three years from 1969 to 1972, including a year in Southeast Asia, then spent nine years attending the University of South Florida part time to earn a bachelor's degree in 1981 before going two more years to Stetson University College of Law, graduating at age 33.

He had his own practice before partnering with Tim McHugh on their current law firm in 1985. A couple years later, they took on their first nursing home case, representing a resident with horrible bedsores against a powerful county commissioner who owned the home.

Given his prior experience in Vietnam, Wilkes says he wasn't fazed by the political overtones of the case, which he and McHugh won. “I was used to being on the outside looking in,” he says with an equal amount of defiance and humility. “I wasn't going to fraternity parties when I was 18. I was on a rifle range.”

Awards nearing $500M

Over the last 26 years, Wilkes & McHugh have garnered close to half a billion dollars in verdicts against nursing homes and other defendants, with many of its 51 attorneys earning honors from various law publications.

Among its most lucrative courtroom victories is a $114-million verdict against Trans Healthcare Inc., in which a 76-year-old resident of an Auburndale nursing home suffered head trauma, a broken arm, bedsores, dehydration and malnutrition, leading to her death in 2003. Sadly, the woman's family had placed her in the nursing home's care for what was only intended as short time while she regained enough strength to be cared for at her own home.

Wilkes spreads the blame for these type occurrences to everyone involved, from understaffed nursing homes to the federal and state agencies licensing the facilities. He points out that standard nursing homes are approved for 120 beds when they should operate smaller, and that the same method of care established three decades ago for residents in their 70s is still being done with people now living well into their 90s.

“The model is broken,” he says, adding that he foresees catastrophic consequences — and more deaths — as baby-boomers live longer than previous generations. “It's an absolute farce.”

As boomers live longer, they are likely to become afflicted with Alzheimer's disease or other limiting ailments, increasing their need for assistance. Therefore, Wilkes says, it will be left to younger generations to take on nursing home care later this century.

“You're going to have hundreds of thousands of people die of neglect before something is figured out,” he says. “It's going to be an absolute economic disaster. That's what is going to wake everybody up.”

More casework ahead

This undoubtedly secures a broad time horizon for Wilkes & McHugh to take on more cases against nursing homes. Long-Term Living notes that even though Wilkes' verdicts have led to tort reform laws in several states limiting judgments and lawyer fees, “the big cases keep coming, with major trials under way in California, Tennessee and Florida — evidence that Wilkes' fertile field in liability litigation is continuing to produce bumper crops.”

But Wilkes says it doesn't have to be that way. Beyond forcing nursing homes to prioritize proper care over profits, he suggests governments give families the money to care for elderly members that would otherwise go to nursing homes that are increasingly being run by large corporations.

“Give people the option of taking care of their parents at home,” he says. He adds that he already made this suggestion to Gov. Rick Scott, a former health care executive, but “we don't see eye to eye.”

Wilkes & McHugh's additional offices, which extend from Philadelphia to Los Angeles, are placed either in retirement areas or cities where nursing home companies are based. A few are located in areas with large concentrations of retired factory or mining workers who may require care, since “not everybody can afford to move south” upon retiring.

Aside from nursing home abuse, the firm's other areas of law include personal injury, medical malpractice, vehicular and motorcycle accidents, catastrophic injury, product liability and wrongful death.

Taking the fight to the enemy is something Wilkes relishes, drawing on his Vietnam war experience to parallel courtroom battles. Although he admits he has gotten calmer with age, he says he has no intention of retiring anytime soon.

“I'll keep going another 20 years, whatever God gives me,” he says. “I'm not gonna quit fighting.”

Friendly fire

Jim Wilkes is known best in legal circles for hauling nursing homes into court, but his practice isn't limited to those type cases. He points to one special example that involved a military veteran who, like himself, served overseas.

Last fall, Wilkes represented Mark Rogers, an Army Reserve staff sergeant who was badly burned in 2008 while rescuing his wife and two children from a traffic accident on Interstate 40 near Biscoe, Ark. Rogers' car was corralled by six tractor-trailers when one of the rigs ignited, setting the Pontiac on fire.

Rogers, a combat engineer, had returned from his second tour of duty in Iraq shortly before the accident. “He searched out and disabled bombs, then ended up burned on a highway,” Wilkes says.

Five of the companies sued settled out of court for at least $20 million, while the remaining defendant, U.S. Xpress Inc., denied liability and went to court last September. After a month-long trial, in which Wilkes successfully proved the driver of the company's rig was following too close and rear-ended another to start the blaze, a jury in Prairie County, Ark., awarded Rogers' family $10.3 million.

Wilkes says he took the case not just as a change of pace or to help a fellow soldier, but as a way to stay sharp in his practice.

“I like to take on cases that make me feel good, and where I can address a remedy,” he says. “If you want to continue to do this, you want to be fresh.”