Questionable tactic led to 'novel' lawsuit against nursing homes, NYTimes claims

A controversial decision could be a "nightmare" for the government, a legal expert says.
A controversial decision could be a "nightmare" for the government, a legal expert says.

A “novel” lawsuit is based on the idea that poor care can be inferred from nursing home staffing levels, The New York Times reported in a front-page article Friday. The suit can be traced to a questionable tactic used by plaintiffs' attorneys, the newspaper claimed.

Some plaintiffs' attorneys approach state attorneys general with fairly vague ideas for possible lawsuits, Times reporter Eric Lipton wrote. If an attorney general pursues one of these cases and hires the plaintiffs' attorney to help, the attorney's firm and the state both stand to make substantial sums of money if they win a favorable outcome. As an example, Lipton focused on a case involving Texas nursing homes.

Former Washington, D.C. Attorney General Linda Singer now is a plaintiffs' attorney; in that capacity, she approached New Mexico Attorney General Gary King and proposed that he sue the owner of a nursing home in that state, Lipton reported. There had been no “specific complaints,” but Singer reportedly showed King low staffing numbers that she said implied substandard care.

After hearing this “pitch,” King did go on to sue a nursing home company, according to the Times. King's office is working with Singer's law firm on the matter, and the case indeed is rooted in staffing levels.

“Mr. King acknowledged that the lawsuit relied on a novel claim, developed through the use of a software program, that estimated resident harm based on the ratio between nurse's aides and residents,” Lipton wrote. The state can take a risk on this untested type of claim in large part because Singer's firm, Cohen Milstein, is largely covering costs, King told the Times.

There also now are “confidential witnesses” backing up the claims against Texas-based Preferred Care Partners Management Group and other entities, according to the article. After the charges were announced, the provider indicated that the allegations might be related to practices that pre-date the company's current ownership. The company acquired the properties in 2012, and it denies the charges, The Associated Press reported.

Singer is particularly active in pitching possible cases, according to Lipton, but many other plaintiffs' lawyers also engage in this practice. King and other attorneys general defend it, saying that engaging private practices is the only way to take on major corporate interests with deep pockets, such pharmaceuticals and banking.

But critics say it is unseemly, and point out that the private law firms are contributing to the campaign funds of the attorneys general they work with, Lipton wrote. Some state legislatures have passed rules to curb the practice, such as requiring an openly competitive process in order for law firms to work with the AG's office.