A Denver jury last week found Atlanta-based Mariner Health Care Inc. -- the third-largest nursing-home company in the country -- liable for negligence, extreme and outrageous conduct and deceptive trade practices. Plaintiff John Gordy, a 41-year-old quadriplegic who suffered injuries at Red Rocks Health Care Center in Denver, was awarded $3.2 million in damages.
"It shows that the jury was angry that this nursing-home chain was misrepresenting themselves in advertisements to frail and vulnerable people," said Gordy's lawyer, Jay Reinan. "If you're looking to place your husband or wife or mother and you rely on these ads and they're not true, it's pretty devastating."
Gordy was admitted to Red Rocks in 2002, two years after being paralyzed in a bicycle accident. He was completely dependent on staff, and over his three-year stay, Gordy found himself in constant fear for his safety because the nurses didn't know how to prevent and treat his wounds or how to transfer him properly. His call lights were frequently ignored. He was left sitting in his own urine and feces. He was retaliated against when he complained. He suffered a burn to his chest, two falls and a pressure sore that was left to deteriorate to the point of needing surgery.
The subsequent complaint -- one of several lawsuits Reinan has filed against Mariner ("Switch Hitter," May 25) -- accused the defendants not only of hurting Gordy, but of failing to correct a system-wide pattern of shoddy care. Using the Colorado Consumer Protection Act, Reinan accused Mariner of deceptive trade practices. In the complaint and at trial, Reinan contrasted the company's marketing materials promising high-quality care and excellence in wound treatment and prevention with a long list of deficiencies for which the Colorado Department of Public Health and Environment had cited Mariner facilities. The agency repeatedly found that Mariner nursing homes failed to prevent falls, to prevent and treat pressure sores and to maintain adequate records. The federal government had even sued Mariner for fraud because of its substandard care and fined it $26 million in 2002.
"Mariner is going to be watching what you do closely," Reinan told the jury at closing arguments. "They're most concerned about the CCPA claim. They want to sucker people into their facilities by promising a high level of care. These are not used cars they're selling; they're selling health care. They have the utmost responsibility to be honest. This is one of the most sacred things there is."
Brian Johnson, Mariner's national counsel, accused Reinan of "emotional manipulation" for repeatedly telling the jury that Gordy sat in his own urine and feces. Instead, Johnson painted Gordy as a difficult, angry person who often refused care. And while Johnson said the company did take responsibility for accidentally burning Gordy, he maintained that the pressure wound was clinically unavoidable and that there was no evidence of injury from any fall. With regard to the CCPA claim, Johnson said Gordy was not shown advertising material before he was admitted to Red Rocks. "This is Mr. Gordy's case, not anybody's else's. We did not, through any advertising, cause harm to Mr. Gordy. The burn was an accident."
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The jury disagreed. They awarded Gordy approximately $350,000 for negligence, $388,000 for extreme and outrageous conduct, and $827,143 for the CCPA claim. What the jurors didn't know was that the Colorado Consumer Protection Act allows plaintiffs to recover triple damages and attorney's fees as a means of deterring deceptive trade practices. "Not many nursing-home cases get tried, period," Reinan says. "It's pretty rare in and of itself. I'm not aware of any others in Colorado where deceptive trade practices have been tried to verdict."
Reinan's case against Mariner is far from over. His lawsuit included two other claims and a long list of defendants that the judge, at the defense's request, ordered split into a separate trial that begins March 19. Reinan is suing Mariner, along with its individual owners, investors and sister companies, for "fraudulent transfer" and "civil conspiracy," alleging a shell-game conspiracy to hide assets from debtors that allows the company to provide low levels of care without liability. Thus, what happens with this portion of the lawsuit could depend on whether Mariner makes good on its debt to Gordy.
Red Rocks Health Care Center is now called Jewell Care Center of Denver and is owned by Sava Senior Care, a defendant in Reinan's ongoing suit.