James Wilkes is either the greatest crusader for better care of the elderly or a greedy lawyer who makes nursing homes more expensive for everybody. Or a little of both.

She arrived at Jim Wilkes' compact, windowless law office near the Howard Frankland Bridge dressed in church-going clothes. She had to be in her 80s, reserved, meek even, and a formal hat covered her gray hair.

In a soft voice that hinted of backwoods Florida, she told a pitiful story of nursing home neglect. Her older sister, nearly 90, had been left to rot for four months. Nobody took the time to shift her weight on the mattress. Nobody noticed the way the skin on her lower legs gave way to bedsores. Nobody noticed until it was too late. Then the surgeons had to cut off both her legs.

She was dead now, and her sister, this woman with the quiet, dignified voice, wanted Wilkes to do something about it.

She said she'd already been to another lawyer. He was sympathetic, but told her nursing homes were practically immune from lawsuits. Even if she won, there wouldn't be enough money to cover his expenses, much less his fee, and there certainly wouldn't be any money left for her.

But he suggested she try Jim Wilkes. He's a fighter, the other lawyer said. Maybe Wilkes could make a few phone calls, at least put a little scare into those nursing home people.

So now here she was in Wilkes' drab office, space he had chosen solely for the price: the leasing agent offered the first eight months rent for free.

He was making a decent living on whiplash cases, slip 'n falls and the medical malpractice cases friends occasionally tossed his way. Nobody made a living suing nursing homes. There was no money in it.

Wilkes was getting ready to tell her how it was with nursing homes when she handed him an envelope. Inside were pictures, mortuary shots of a frail woman with bedsores you can't even imagine, the pearly shine of bone at the bottom of the deepest ones. The worst pictures Wilkes had ever seen.

He told the woman he would do something. He wasn't sure what, but something.

That was 10 years ago. "Old people didn't have a lot of economic value," he recalls.

Notice that Wilkes uses past tense: Old people didn't have a lot of economic value. Now they do.

A suing machine

Wilkes and the sister sued the nursing home and settled the case for the maximum value of its insurance policy.

In the decade since, Wilkes has sued hundreds of nursing homes, continuing his full-court press even as some of them inch closer to bankruptcy. He flies to depositions in a $5-million corporate jet, runs offices in three states and brags that he has made enough money to retire at 49.

With a series of multi-million-dollar verdicts, including a state record $15.2-million this year in Tampa, Wilkes & McHugh P.A., has put nursing-home litigation on the map.

The state trial lawyers association runs seminars on turning bedsores into dollars. Billboards urging nursing home residents to call a lawyer dot the highways. One Florida underwriter receives nearly twice as many nursing home claims now as eight years ago.

"Nobody thought about nursing homes" before Wilkes, says J.B. Spence, a Miami lawyer known as the Dean of Torts. "This was a sleeping giant. But now they are wide awake. Wilkes was the pioneer."

Nursing-home operators, as you might imagine, are not fond of Mr. James Wilkes. They see a money-hungry ambulance chaser whose groundless lawsuits have sent insurance premiums skyrocketing, cut into funds for patient care and turned residents against their caretakers.

"When do I get to call him a rotten son of a bitch," industry spokesman Ed Towey says, offering his unsolicited comment for this story. "Talking about him is like talking about Beelzebub, about Satan, about the Antichrist."

Well, then.

Pre-law: a singing fool

Before Stetson Law school, Wilkes traveled the bar circuit. He sang rock and country covers, and got some radio play with a song he recorded, I'd Rather Be a Fool Loving You Than Smart Loving Someone Else. He says it's a little something he came up with driving State Road 50 between gigs in Brooksville and Orlando.

At the Brass Cage on 49th Street in St. Petersburg, somebody didn't take to Wilkes' version of a country song. As Wilkes strummed his guitar, the patron threw his shoe at Wilkes, who stepped from behind the microphone and chased him out of the bar.

"I was going to hit him with the guitar," Wilkes says in the Southern twang he developed in the Army. "It had one of those non- breakable backs."

Wilkes had set a timetable for himself: If he wasn't successful by the time he turned 30, he would leave music and return to college. Years of crisscrossing the country had left him broke. Off to school he went.

He planned to become an entertainment lawyer but instead chose work in the courtroom, which offered as much rough-and-tumble as even the seediest nightclub.

Mostly, though, the work was routine. Wilkes found it hard to get enthused about suing somebody who ran a red light and caused "injuries for which the plaintiff has sustained ongoing medical expenses."

When that first nursing-home case walked in his door, Wilkes took it not only because the story was so pitiful, but because he had a score to settle.

Jim Wilkes, as we'll see later, likes to tell a story. Almost every newspaper or TV story about him includes this one: A year or so earlier, he had checked his grandmother into a nursing home. He came to check on her four hours later. The bed was made, but she wasn't in it.

"She was under the bed," Wilkes says. "Naked, in a fetal position under the bed. I went all the way down the hall and I couldn't find an aide."

A back-door way inside

If nursing homes acted carelessly toward the elderly, so did the courts.

"A young plaintiff is worth more than an old plaintiff," says Michael Trentalange, a Tampa personal-injury lawyer. "A working plaintiff more than a non-working plaintiff. They just don't value older people as much as they should."

In negligence cases, a person's salary helps determine damages. For a retired person in his 80s, that figure usually is piddling. It's worse for dead plaintiffs. The law allows only spouses and young children to sue. Under traditional negligence law, the sister couldn't even get into court.

It adds up to this: The negligent death of a widow whose child- bearing years are well behind her goes unpunished.

Enter the patient's bill of rights. The Legislature passed it in 1976, following publicity about patient abuse at nursing homes. The law lengthened the list of relatives who could sue nursing homes and allowed the elderly to recover damages. It forced nursing homes to pay the lawyer fees for patients who sue and win.

Until Wilkes took his first nursing-home case, that law had escaped the notice of most lawyers.

Wilkes says he probably would have passed on the case, too, but for the bed-sore pictures. "I thought they would be like a rash or something," he says. "They were the most horrific photos I've ever seen."

Wilkes plotted strategy with Tim McHugh, the other half of their two-man operation. McHugh's brother Jim, a researcher at the firm, tried to find some way around traditional negligence laws. He found the patient's bill of rights.

Forcing the nursing home to settle that first case had Wilkes thinking big. They could change their law practice, specialize in nursing-home cases. But McHugh was the voice of reason. Who knew if the firm would be able to repeat its victory? The law on nursing-home negligence was unclear. What if judges arrived at new interpretations that made it harder for plaintiffs to win? Were there enough cases to support an entire law firm? McHugh had a lot of questions.

For several months in 1992, Wilkes cajoled McHugh after work while they exercised on Stairmasters at the Harbour Island Athletic Club.

They agreed to refocus their practice, but gradually. Wilkes took out ads in newspapers and on television, urging neglected nursing- home residents to call.

Dozens of cases rolled in. Florida's first nursing home specialists were in business.

Taking the chorus to court

When Wilkes rises before a jury, he comes off like he's preaching the Gospel.

"Jim Wilkes is Martin Luther King and (the defense) is Al Gore," says Trentalange. "Al Gore is a good speaker. But he's a fact- intensive, workmanlike speaker. Wilkes has the zeal of a preacher."

The country songs Wilkes used to sing onstage at the Sand Dollar bar in St. Petersburg told a story. They had a chorus, and they appealed to the heart.

It's the same way in court. The tale Wilkes tells is one of shameful neglect. It's a rare juror who can close his heart to photos of a wasted patient. And the chorus, which Wilkes hammers again and again, is corporate greed.

Listen to him preach about James E. Lowe Sr., whose case yielded a $2.7-million verdict against a nursing home in Ocala three years ago:

"You heard a lot of lawyer talk from (defense lawyer) Mr. Kelly, telling you how tough it is, how sorry you should feel for this company, this publicly traded, largest nursing-home corporation in the world, this for-profit institution. How sorry you should feel for them, how tough it is that they can't hire good people," Wilkes said. "That's not what this is about. It's about, did they treat him bad? Did they do bad things to him?"

"Some of the things were evil. Letting him lie there until his feces dried to his body. Letting him lie there turning blue with no air. That's wrong. Allowing a man like Mr. Lowe to be abused and neglected, his wife to be fooled, the state lied to, and all paid for in the name of the State of Florida . . . that's heinous."

The recent $15.2-million Tampa victory was classic Wilkes & McHugh: While some lawyers might have dwelled on their client's medical condition, the firm put the spotlight on the nursing home administrator. They demonized him as an evil agent of corporate greed, who cared less about the patients than about improving the nursing home's bottom line so his corporate bosses could sell the facility at maximum profit.

The administrator, Wilkes says, "wanted to make a lot of money while the residents couldn't even get toilet paper."

In his western-style suit and cowboy boots, Wilkes cuts the figure of a front-man. Behind him is the band: 21 lawyers, seven nurses and an army of roadies to fetch lunch and carry documents. In this war, he recently benefited from a sweet defection: The chief litigator for nursing home giant Beverly Enterprises Inc. switched sides and joined Wilkes' firm. Also coming aboard last year, one of Tampa's best-known criminal defense lawyers, Bennie Lazzara Jr. It was Lazzara who made the closing argument in the $15.2-million case.

Wilkes talks to governors about nursing home abuse. He donates a healthy chunk of his winnings to political candidates, Republicans and Democrats alike, hoping to keep them from tinkering with the patients' bill of rights.

He commissioned a statistical analysis to document the number of nursing-home employees who have criminal records. He hired a pollster to conduct focus groups to help him learn which arguments work best on jurors.

He is no slouch at selling himself. He hired a Tallahassee P.R. firm to boost his image. Newsweek rang him up for a story on the rising tide of nursing-home litigation. He invited a camera crew from 48 Hours for a ride on his jet. When a reporter contacted him for this story, Wilkes offered to fly back to Tampa from vacation on Boothbay Harbor in Maine for an interview and photo shoot. His wife put a stop to that.

The former mobile-home salesman, used-car salesman and home- appliance salesman describes himself as one of the few people in the country dedicated to working full time for the rights of nursing home residents.

Government regulators? Too lax.

The AARP? "They're great at giving out motel discounts."

"If I didn't lobby for nursing home residents, who would? There is nobody there."

He likes his niche. His clients get justice, he gets to crusade for a worthy case, and he makes a bundle of money.

Great digs, tough seminar

About five-dozen nursing home executives gathered recently in a crystal-chandeliered ballroom at the Boca Raton Resort & Club. They passed up an afternoon in the gourmet restaurant or out on either of the championship golf courses to spend four hours in legal hell with Karen Goldsmith, a lawyer for the nursing-home association.

On an overhead projector, Goldsmith posed situations a nursing- home administrator might face.

Q: What if relatives want side-rails on the resident's bed, but the patient doesn't meet the standard that would allow such restraints?

A: You will probably be sued.

Q: What if you tell a hospital you don't have enough staff to take care of a particularly complex new admission?

A: You will probably be sued.

Q: What if a patient becomes overweight but says eating is the only reason she wants to live?

A: You will probably be sued.

The man nursing home operators blame for all this suing? Jim Wilkes.

"I think every CEO in America is familiar with him and his ability to create a presence and focus on malpractice in nursing homes," says Stephen Guillard, president of Harborside Healthcare, which runs nine homes in Florida.

Since Wilkes won that first case, Guillard says, the ensuing litigation has driven insurance rates for some Florida nursing homes to nearly 10 times the national average.

Tom Kelly, a regional director for Genesis Eldercare, worries that relatives of patients receive most of their information about nursing homes from the wrong place, from TV ads that lawyers like Wilkes produce to drum up business.

Those ads, and news reports about nursing home lawsuits, discourage workers from applying at nursing homes and dishearten those who work there. The industry already has problems recruiting nursing assistants because of the back-breaking work and low pay.

"The public image doesn't help," Kelly says. "My staff gets very depressed when they see the attitude toward nursing homes."

The administrators and their lawyers say that in a fair legal system, Wilkes wouldn't be winning - or even filing - most of the lawsuits.

They say the state's nursing home laws leave operators vulnerable to cases that cannot even be filed against hospitals and doctors. With public perception the way it is, the lawsuit-as-morality-play that Wilkes perfected almost guarantees a jury will rule against the nursing home.

"There is a fear that, my God, this could go to a jury," says Guillard. "They take a situation that is not caused by poor care. They get the pictures. They set all the facts aside and drive the emotional side. It's an easy win."

That fear prompts nursing homes to settle even frivolous lawsuits.

"Jim Wilkes will walk in and say: 'Give us $200,000 or we go to trial,' " Kelly says. "It is legalized extortion."

Kelly dreams of a day when nursing homes are treated like other health-care providers, no better, no worse. But he thinks Wilkes and other plaintiff's lawyers won't let that happen.

"They don't want to level the playing field," Kelly says. "Ask Jim Wilkes what happens to his beautiful jet planes if that happens.

But even Guillard acknowledges that Wilkes' lawsuits have prompted improvements in the industry. The court cases force nursing-home operators to focus on their weaknesses and eliminate them - or pay for them.

Ruben King-Shaw, the state's chief nursing home regulator, considers the verdicts just. If nursing homes never failed their patients, Jim Wilkes and others like him wouldn't be in business.

"A judge or a jury has to find somebody negligent," King-Shaw says. "I don't think you can blame attorneys for those rulings."

Selling appliances, selling juries

Jim Wilkes' office has windows now. From a shining glass tower high above Dale Mabry Highway, he holds forth. This time it's on how to sell washing machines.

"Now, I could sell a washing machine," he says. "Boy I could sell a washing machine. I used to sell them with the super surgilator agitator. I'd take the agitator out and throw it on the ground for them people. Indestructible."

In his voice you can hear the pitchman's flexible intellect, ready to expound on why Toyotas are the best until he finds himself working the Chevy lot.

The law is not so different: The pitch comes first, honed in three years of school and then adapted to suit the needs of whichever client pays the bills.

Wilkes cheerfully acknowledges that selling a jury is only a few steps away from hawking the super surgilator agitator. But he says this is one product that he truly can believe in.

He calls nursing-home operators "self-serving and self-promoting."

"They see nursing home residents as things to be exploited rather than people to be cherished."

Wilkes' daughter, listening to him chatter during a recent photo shoot, whispers: "He looks like Clinton."

He doesn't so much look like Clinton as evoke him - the glibness, the down-home talk, the sense that even he doesn't always believe every word he's saying.

It is on this battleground that Wilkes' critics hit their stride. They say the man talks a good game but values cash more than his clients.

Motivation aside, the man is a force to be reckoned with. Wilkes says his firm has 600 pending cases, and that he has tuned his lawsuit machine to such perfection that he can stamp out multimillion-dollar verdicts one after another. He's moved on from filing cases for one resident at a time.

A $100-million class-action suit he brought two years ago against York Hannover Nursing Centers and National Healthcare is working its way through the courts. The lawsuit alleges the companies failed to provide the level of care specified in agreements with thousands of residents.

In Tampa, he sued to halt the forced relocation of dozens of Medicaid patients at a nursing home owned by Vencor Inc.

But as insurance rates spiral and nursing home profits plummet, some wonder if Wilkes' gravy train may run dry.

York Hannover, which owns six Florida homes, recently sought protection in bankruptcy court. And last month, Wilkes agreed to settle the patient-dumping lawsuit against Vencor because he says he's afraid a large verdict would bankrupt the company.

Other operators are on similar footing.

"I've heard many of them say they are one lawsuit away from closing the facility," says Towey, the trade group spokesman.

Of course, that would leave Wilkes with no nursing homes to sue.

"I have actually been told that by nursing-home people," he says. "They tell me to lay back, don't be so vocal, don't kill the golden goose. Just make money off it."

Wilkes likes to say the world would be a better place without nursing homes, so the idea of widespread closings doesn't worry him. His practice would thrive. He would find something else to sell.

"I've got a meeting this week on lead-paint litigation," he says.

You can almost hear another chorus in the works.

EDITED VERSION OF RECENT VERDICTS INFORMATION NOT PROVIDED FOR THE ELECTRONIC LIBRARY. PLEASE SEE MICROFILM.

Recent verdicts for Wilkes & McHugh topping $1-million

CASE: Estate of James E. Lowe Sr. vs. Ocala Health Care Center

DATE: May 1996

JUDGMENT: $2.7-million

COMPLAINT: Plaintiff alleged the facility failed to provide even basic care for their existing residents because it had too many residents, too few staff, and was severely undersupplied. During Lowe's stay, he was left unturned for so long that he developed severe, infected pressure ulcers.

CASE: Estate of John L. Butler vs. Brian Center Health & Rehabilitation/Tampa

DATE:March 1999

JUDGMENT: $15.2-million

COMPLAINT: Butler suffered over thirty falls during his stay, developed pressure ulcers, shock related to infection, and ultimately died of emaciation and malnutrition.

CASE: Estate of Marion Heide vs. Heather Hill Nursing Home

DATE: March 1999

JUDGMENT: $10-million

COMPLAINT: The facility failed to recognize and treat Hyde's pressure sores, and failed to see that Hyde received adequate nutrition. The pressure sores became infected, and she eventually had a leg amputated above the knee.

CASE: Estate of Katherine L. Bright vs. Arbors at Tallahassee

DATE: November 1998

JUDGMENT: $1.1 million

COMPLAINT: During her stay at the Arbors, Bright developed multiple pressure ulcers on her left hip and back. The plaintiff's lawyers also alleged the nursing home gave treatments without doctor's orders, and that the staff failed to follow doctor's orders.

CASE: Estate of Walter M. Spilman vs. Eastbrooke Health Care Center

DATE: December 1993

JUDGMENT: $2.7 million

COMPLAINT: Spilman was left unattended for extended periods of time in his own waste. The nursing home did not provide enough staff to properly turn and position him and, as a result he developed numerous bedsores. In addition, he developed dehydration and malnutrition.

 

© 1999 All Rights Reserved