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Predatory legal advertising: How nursing homes can respond

February 17, 2016
by By Alan C. Horowitz, JD, RN
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“Attention! If you suspect that a loved one was neglected or abused at ABC Nursing Home, call the lawyers at XYZ Law Firm today!”

Attention-grabbers like the one above scream out from highway billboards and full-page ads in local newspapers. They are ubiquitous on the Internet and on television. But, at what point does advertising by a law firm that “specializes” in “nursing home negligence” cross the line and become misleading and deceptive? This article attempts to suggest ways of dealing with ads that are predatory, deceptive and unlawful.

What is a predatory advertisement?

There is a yawning chasm between a legitimate advertisement by a lawyer or law firm and a predatory advertisement that casts a wide net, hoping to draw in potential clients with its deceptive and misleading wording. The definition of predatory, in part, is “inclined or intended to injure or exploit others for personal gain or profit.” Specific examples of predatory advertising are addressed below.

An advertisement claimed a nursing home “FAILED to provide care for residents in a way that keeps or builds each resident’s dignity and respect for individuality.” However, the surveyors did not allege a “failure” to provide care to residents. In addition, the basis for the ad was survey allegations that were almost four years old.

Ads that rely on old information and deceptive wording are often followed by statements such as “These deficiencies are known to cause severe injury, health deterioration, bed sores and even death.” However, the conclusory statement above is a non sequitur. It does not follow that just because a deficiency might have been cited, a resident has been or is likely to be harmed. In fact, the specific F-tags cited in the survey had no relationship to the speculative harm in this instance.

Another tactic used in some ads is the inclusion of statements like this: “Poor care and understaffing can lead to bed sores, choking, falls, broken bones, dehydration, infections/sepsis, malnutrition or unexplained death.” While the statement is true in a vacuum, the operative term is “can lead to.” The statement is speculative and doesn’t acknowledge that some pressure ulcers and some falls are unavoidable despite a facility’s best efforts—a fact even the Centers for Medicare & Medicaid Services recognizes.

Surveyors cite more than 90 percent of nursing homes with deficiencies. Thus, deficiencies are the norm, not the exception. Under the federal regulatory scheme, they are graded according to their scope and severity, which can range from an isolated instance of the potential for more than minimal harm (not even a small bruise, just the “potential”) to widespread “immediate jeopardy” (serious harm has occurred or is likely to occur in the very near future).

Impact of predatory ads on nursing homes

Litigation involving nursing homes has grown exponentially over the past two decades. It has become a cash cow for some law firms. Multimillion-dollar verdicts are not unusual. A few years ago, a jury in West Virginia returned a verdict of $91 million, subsequently reduced to about $32 million, against a nursing home. Similarly, a California jury returned a verdict of $29 million, and a Florida jury returned a verdict of $110 million in compensatory damages and $1.0 billion in punitive damages.



Alan C. Horowitz

Partner at Arnall Golden Gregory

Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at...