Georgia lawyers may target nursing homes in advertising

This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Schenk Firm of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.

Schenk: Hello and welcome to the Nursing Home Abuse Podcast. My name is Rob Schenk.

Smith: And I’m Schenk Firm.

Schenk: And we are trial attorneys and we practice in the areas of nursing home abuse and neglect in the state of Georgia and we are your co-hosts for the Nursing Home Abuse Podcast, which you, the listener, may watch on our website at NursingHomeAbusePodcast.com, or watch on our YouTube channel, or you, the audience, may also download the audio portion on Stitcher or iTunes or wherever you already get your podcasts and whatever and so forth.

Welcome again to the episode. We’ve got a lot of great stuff for you today. Interesting stuff in terms of – at least interesting on our side of the table, because what we’re going to spend a few minutes talking about is the right of nursing home abuse and neglect attorneys to advertise their services to the public. And what I mean by that is there have been recently in our fair state of Georgia a Georgia Supreme Court decision that came down that affects the rights of our colleagues, our esteemed colleagues across the state of Georgia to advertise their services. So let’s dive right in.

So March of this story, I feel like Paul Harvey – did you ever listen to Paul Harvey when you were a kid?

Smith: And that’s the rest of the story.

Schenk: Yeah, that’s Page One. Stand by for news, everybody. Page one. So in March of 2015, a law firm called McHugh Fuller Law Group, they are a nursing home abuse and neglect law firm based not out of Georgia – they’re out of…

Smith: Mississippi.

Schenk: Mississippi or Alabama.

Smith: Yeah, Mississippi.

Schenk: Mississippi. They’re based out of Mississippi. I apologize. So March of 2015, the law firm began running an advertisement in a newspaper called “The Moultrie Observer” in Moultrie, Georgia. Is Moultrie a county? I think it’s a county.

Smith: Yeah, it is.

Schenk: In Moultrie County, there’s a news organ called “The Moultrie Observer,” and the purpose of that advertisement by the law firm was to bring attention to the residents of that county to a particular nursing home long-term care facility targeting Pruitt Health Incorporated. So Pruitt Health is the nursing home facility which the lawyers are trying to call attention.

Speaking of attention – and this is going to be a time in which I think this will be the inaugural – I don’t know if inaugural is the right word – but this is going to be the first time on our video podcast’s short history in which I will, if you’re watching this video podcast, I will put up on the screen the actual advertisement in question.

Smith: Great.

Schenk: This will be the first time we get a graphic because I can describe it to you, but if you watch the video podcast, you can actually see what’s going on. So again, in this particular advertisement, we have a picture of what looks to be the façade of the facility and the sign of the facility, of Pruitt Health, of this particular facility owned by Pruitt Health with the words in large print – “Attention, McHugh Fuller Law Group is currently accepting cases against Pruitt Health Moultrie for resident care related issues. If you suspect that a loved one was neglected or abused at Pruitt Health Moultrie, call McHugh Fuller today.” And then at the bottom it says, “Has your loved one suffered bed sores, broken bones, unexplained injuries, even death? If so, call us”

So this advertisement with the graphic includes the image of a particular location that Pruitt Health owns and it ran in The Moultrie Observer newspaper for about a month. So guess what happened, Will.

Smith: They were sued.

Schenk: That’s right. So Pruitt Health – so that ran in March, and in looks like late March, so the end of the month, Pruitt Health filed a one count complaint against the law firm, for trademark dilution. And they sought, they being Pruitt Health, sought to have the ad taken down, so they were looking for an injunction.

In May, the court in Moultrie County, the Superior Court in Moultrie County, had a hearing on the issue of trademark dilution. So what trademark dilution is in Gerogia, because this is under the Georgia Dilution Act – this isn’t federal trademark law or anything, this is Georgia trademark law – so what dilution is, it’s a count where one person, one entity, uses the trademarks, the trade name, the goodwill of one company in furtherance of the goods and services of another. So for example, if I’m selling widgets and I say, “These widgets are great. These widgets are just as good as Company Z’s widget,” I’m diluting their trademark because I’m using it to sell my own. I’m saying, “Look how good we are. We’re as good as these guys.” It’s kind of like that. And I think Jean – Jean is flapping his arms in emergency disgust that…

Smith: Moultrie is actually a city and it’s in Colquitt County.

Schenk: For any listener that cares, that might be outside of Georgia, Georgia has…

Smith: 155, I think – 150 or 155 counties. It has more counties than I think any other state in the union.

Schenk: There’s no way – and these counties, like you know if you’re in Oregon or Idaho where they took time and used longitude and latitude lines for their county’s boundaries? That’s not the case here. It’s like next to Uncle Willy’s farm, walk 36 steps, go to the left by the creek, that’s the border or Bumpkin County versus Moultrie County or whatever it is. So anyways, that’s why we didn’t know that. Now we know. Knowing is half the battle. We are now at page two where we have a lawsuit filed by Pruitt Health against the law firm for trademark dilution on the account under Georgia trademark law basically.

Smith: And just to clarify who Pruitt Health is – they’re one of the, if not the largest healthcare company, one of the largest nursing home operators in the southeast. Pruitt Health is enormous. They have more – if you have nursing home cases, you have a case against Pruitt Health. Just statistically speaking, you have to because they have so many nursing homes.

Schenk: Right, so the case was filed under Georgia trademark statute for dilution of trademark. So dilution of trademark in Georgia means that courts having jurisdiction therefore shall grant injunctions to enjoin use by another of the same or similar trademark, trade name, label or form of advertisement if there exists a likelihood of injury to business reputation or dilution of the distinctive quality of the trademark. So in other words, if a person uses another person’s trademark in furtherance of their own goods or services in a bad manner, that leads you to this lawsuit for dilution under Georgia trademark law.

So in a May hearing, getting to kind of the nuts and bolts of what this law firm is being accused of, it looks like a representative of Pruitt Health, Nick Williams, who is a chief development officer, says to the judge, “Hey listen, the ad campaign, by associating Pruitt Health’s marks with brightly colored words like death tarnishes the marks and Pruitt Health’s business reputation noting that hospitals, the major referral source for nursing home patients have contacted them personally for an explanation.” So he’s saying that, “You used a picture of us. You’re using the words ‘bedsores,’ ‘death,’ ‘broken bones,’ that kind of thing. You’re diluting our trademark. You’re diluting our trademark, okay?”

And so in rebuttal, literally one of the two lawyers in the firm – I’m going to say there are more than two – one of the two main lawyers, partners in the firm, testified this, and it was Fuller, Michael J. Fuller. Fuller explained how his firm uses information from a federal government website, including annual nursing home survey results, staffing levels and quality measures to identify facilities that the firm believes are likely to have residents who have been injured through negligence. Fuller testified that since running ads targeting specific Pruitt Health facilities in 2014, the law firm had received about 200 calls from potential clients, was engaged by roughly 50 clients and filed about 11 negligence lawsuits against Pruitt Health alleging that patients had suffered bed sores, broken bones, unexplained injuries and deaths. In other words, it’s not like they just decided to randomly put symptoms of abuse onto an advertisement. They had researched Pruitt Health, and through federal government websites like the Medicare websites and other rating systems had discovered that Pruitt Health System, particularly those in this city and within this county, had repeated accusations of these symptoms. So I thought that was interesting. In the hearing, the attorney says, “Hey, this is not willy-nilly. We’re deciding this, that or the other. This is from our experience this is what’s going on.”

So the judge says, “Okay, when you have a case of Georgia trademark dilution, that means that the dilution, if you have dilution, the dilution is the tarnishment that occurs when the defendant uses the same or similar marks in a way that creates an undesirable, unwholesome or unsavory mental association with the plaintiff’s mark. And the case that the judge cites in this decision is Original Appalachian Artworks v. Topps Chewing Gum, which is…

Smith: The baseball card chewing gum.

Schenk: That’s right. And this is basically Garbage Pail Kids versus Cabbage Patch Kids. So Cabbage Kids…

Smith: I had an entire collection of Garbage Pail Kids.

Schenk: Oh, me too.

Smith: Oh, and just so you know, I’m from Cleveland, Georgia, or White County, Georgia. And that is the hometown of Xavier Roberts and the hometown of the Cabbage Patch Kids.

Schenk: Which is why this case was probably filed in Georgia.

Smith: Yes.

Schenk: So Garbage Pail Kids, to me, that was the first time that I saw a true – I mean most of these, if you’re under the age of 40, you’re not going to know Garbage Pail Kids, I don’t think. Garbage Pail Kids were playing cards that featured cartoon children in kind of the same kind of artwork as Cabbage Patch Kids.

Smith: The same style. They had the same look as Cabbage Patch Kids, but their names would be like…

Schenk: So each had a name.

Smith: Vomitous Victor.

Schenk: Well that was later. That was like stage 13, but the original ones would be Fat Matt would be the character, and it’d be a baby and it’d be real fat. Or it would be Bart Fart and it would be a baby farting. And that’s usually the construction of these cards. And I remember that it was the first time I remembered just being taken away by how funny something written could be, and I have it to this day. I’ve saved it. And these were, the Garbage Pail Kids were a name and then a play on that name, so like I said, Fat Matt, Vomitous Victor, No Way Jose, whatever it is. And this particular one, the baby’s name was Faith, and the card was called “Losing Faith,” and it was a baby tied to a bomb that was being dropped. And I thought that was so clever, like that was my favorite thing in the world.

Anyways, in that case, you have Garbage Pail Kids using the trademarks and good will of Cabbage Patch Kids to sell their own products, and that’s the point of that lawsuit. You can’t do that. It’s dilution of the mark. It’s Bad News Brown. You can’t do that.

So luckily for our colleagues, this judge said, “Listen, the law firm is not using the trademarks and images of Pruitt Health to sell healthcare services. They’re using the marks in a completely unrelated matter, and that is to draw attention to legal services. And they even specifically say, ‘Not every unwelcome use of one’s trademark in the advertising of another provides a basis for a tarnishment claim, only if the defendant uses designation of its own trademark for its own goods and services.’”

Smith: And that’s the huge distinction there is that Garbage Pail Kids is a play on Cabbage Patch Kids. It’s similar enough. The law firm isn’t doing that. They’re specifically saying, “Hey, if you stay at this specific facility, Pruitt Health of Moultrie, let us know if you’ve experienced any of these problems.

Schenk: And the opinion goes on to say, “The ad used Pruitt Health’s marks in a descriptive manner to specifically identify the Pruitt Health facility. Indeed, the law firm was counting on the public to identify Pruitt Health Moultrie by the Pruitt Health marks used in the ad. The ad did not attempt to link Pruitt Health’s marks directly to Fuller’s own goods and services. The law firm was advertising what it sells – legal services – which are neither unwholesome, nor degrading – like Garbage Pail Kids – under its own trade name, service mark and logo, each of which appears in the challenged ad. No one reading the ad reproduced above would think that the law firm was doing anything other than identifying a healthcare facility that the law firm was willing to sue over its treatment of patients. In short, the ad very clearly was an ad for a law firm and nothing more.”

Smith: You know, I don’t know how I feel about this case. Clearly I’m a plaintiff’s attorney. Clearly I’m against nursing home abuse and neglect. And clearly I’m always going to side against nursing homes who have a propensity to cause neglect and abuse. But at the same time, I’m just not… I don’t know. I’m on the fence about this. I certainly agree with the ruling in this cause just because the law that they used was trademark law, and based on trademark law, I think the judge made the right decision. But I’m not sure – I’m on the fence with it. I’m on the fence with this as it relates to lawyer advertisement in general. I just don’t know how I feel about it.

Schenk: Well I guess what if it was the opposite? What if there’s a legal malpractice attorney that puts an ad up that says, “Law firm A – if you had them and didn’t get what you thought you deserved, call us. You might have a malpractice case.”

Smith: Yeah, because it may smell like defamation. It’s not. Truth is a defense unless there’s an argument implying its an ongoing act of that entity, and if it’s not – “Has your loved one been murdered or raped in Moultrie County Hospital?” – just because that happened one time? I don’t know.

Schenk: Then so you saw that this testimony said this was done, these ads were based on studies and reviews and services, so I guess that’s a different matter. I don’t know. I see what you’re saying, that there’s an element of business reputation that’s being tarnished, but at the same time, it’s all true or allegedly true or enough of a basis of truth that you shouldn’t be – I don’t know. That’s tough. That’s a tough decision, but at the same time, in terms of protecting consumers out there, I’m happy that you’re able, at least under Georgia trademark law, that dilution statute, you can target a specific facility with truthful information about potential lawsuits. So that’s probably a good thing.

Smith: Yeah.

Schenk: But speaking of defamation, I want to segway into that, and the reason why I do is because of a story that comes to us from Chesapeake, Virginia. We have here three certified nursing assistants – Earlene Boone Hill, Angela Benbow and Melissa King – saying they were fired after they reported tying two residents to wheelchairs. According to these three CNAs, they worked the 11 p.m. to 7 a.m. shift at Deep Creek Nursing Home in Chesapeake, Virginia. They say two other CNAs tie residents to their wheelchairs using bed sheets. So they would take the bed sheets and tie them around their waists and tie them down to their wheelchairs. They also saw, I think they were using chemical restraints or chemical sedatives as well. The patients were tied down for five to six hours. The restraints were used for convenience and discipline, the lawsuit says, and the doctor did not order them.

So after they witnessed that, the three CNAs reported the incident in writing to the executive director and the director of nursing and met with them. The three nursing reports had a duty to report obviously under various laws, but the lawsuit says that even though they had that duty to report, the nursing home suspended them and later fired them. Then the nursing home said they falsely reported witnessing what they saw and that basically they were liars.

So the lawsuit by the three CNAs is one of defamation against the nursing home based on the statements that they made. And this is on top of the fact that the nursing home is also being sued for the behavior of the other CNAs there. So the lawsuit, this nursing home got sued twice in a row, basically one from an abused resident and the other from these three CNAs alleging defamation.

So what does this have to do with you, the listener, who has a loved one in a nursing home or a long-term care facility? Do you have to worry about a claim of defamation if you notice abuse or neglect and report it to the authorities or report it to an attorney or go to the news or the ombudsman or whoever it is?

The answer in short is probably not. So defamation by definition in most states is going to be an assertion, a statement, that is false, that lowers the reputation of a person or a business in the community. So falsely stating a fact that hurts another is going to be grounds for a defamation claim. So in this example, if you, the listener or watcher of this podcast, goes to visit your loved one that’s in a nursing home or an assisted living facility, and you see a bedsore and you tell people, “She’s got a bedsore. It’s really bad. The CNAs weren’t really helpful to me,” – these types of things, these types of factual statements, if they’re true, if they happened, then you are probably not going to have very much to worry about, and the reason is, as Will hinted at a little earlier, is that generally in defamation cases, truth is going to be an absolute defense.

So as long as you’re truthful in what you have observed in telling other people or telling, screaming it from the rooftops, you’re not going to find yourself in this situation that this nursing home is. This nursing home described the CNAs’ actions, allegedly in this lawsuit, described the nursing assistants’ actions falsely. They called the CNAs liars. They said, “It’s not true what they saw. Blah, blah, blah.” If that all comes out, the nursing home has committed defamation against these three CNAs.

Smith: And it’s important to note that in Georgia, there’s actually a specific statute that deals with reporting elder neglect and abuse. It’s both Title 30 and Title 31, and I believe it’s Title 31 that has a list – and it’s a pretty extensive list of who is required to report elder neglect and elder abuse. It’s CNAs, it’s nurses, it’s doctors, it’s dietitians. It’s people who have employment around the resident. In addition, the statute says that those who simply knowledge of elder neglect or abuse may file a report. Georgia – this is actually a really big deal in Georgia, and it’s been changing over the course of the past few years, and this is something we’re going to get more in depth on in an upcoming episode, because the legislature has really been cracking down on elder abuse of neglect.

Schenk: In the state of Georgia.

Smith: In the state of Georgia. In the state of Georgia, the Georgia legislature – so the Georgia House has been doing that. But yeah, it’s interesting that this nursing home chose to go in that direction.

Schenk: And again, what Will’s going into is the requirement to alert authorities to abuse.

Smith: And let me make – another reason I’m saying this is if there’s a fear that you might be causing defamation out there, in Georgia, you also have to think about the fact that the failure to report this is a misdemeanor that is punishable by up to one year in prison. That’s the enforcement mechanism. So you can have these shady nursing homes that are threatening people that puts them in an awkward position – “Do I potentially face a misdemeanor charge or do I fight this nursing home and prove myself right and say, yeah, you guys have been causing this neglect and abuse?”

Schenk: But as a family member…

Smith: As a family member, you’re not absolutely required. In Georgia, this hasn’t been heavily litigated, but the statute does say “may report.” It doesn’t say “must.” But generally speaking, when you call the Department of Community Health, it is anonymous. So if you get an issue that’s going on with your loved one or another one – let’s say you’re visiting your mom and you just happen to know that Mr. Johnson is getting mistreated every time you go in there and he doesn’t have any family – if you want to call DCH and let them know, it’s anonymous. If it turns out not to be true, it’s still anonymous.

Schenk: That’s right. So at the end of the day, the issue here is that worrying about being sued by a nursing home for defamation for reporting or speaking about the potential neglect of your loved one should not be high on your list of worries. What should be high on your list of worries is the health of your loved one. But again, as long as you, you the audience member who has a loved one in a nursing home, are adhering to the truth of the matter of what you’ve seen or even what’s been told to you, then you’re going to be mostly, many times – again, facts matter, but you need to be worrying about the health of your loved one versus potential defamation. If you notice neglect or abuse, tell on them 100 percent of the time.

Smith: Is it possible you could be sued for defamation? Sure. It’s not really hard to sue somebody for defamation in the first place. You can be sued for anything. It doesn’t mean it’s going to be successful, but it’s a claim that can be made. But at the end of the day, screw these guys. They can’t just get away with this, so if you notice neglect or abuse, make sure you notify somebody.

Schenk: That’s right. And at the end of the day also, just remember that every attorney in the country must protect what you say to them in the furtherance of legal advice through what’s called attorney-client privilege.

Smith: Sorry, you know I got to hit the microphone.

Schenk: The attorney-client privilege. So in other words, if your loved one you suspect is being neglected and you see the physical evidence of it and you want to talk to a lawyer, spill the beans to your lawyer because oftentimes that information is going to be protected by attorney-client privilege anyways.

Speaking of privilege, it’s been our privilege to bring to you as hosts the Nursing Home Abuse Podcast, but alas, the time for this episode has washed away and we have come to the conclusion of this episode. Again – a lot of mixed metaphors there – you can as always download the audio portion of this podcast on Stitcher or iTunes or wherever you download podcasts, or you can watch us at NursingHomeAbusePodcast.com or on our YouTube channel. And again, this is going to be the very first episode – we’re going to get two graphics this time. The first graphic is going to be the advertisement at issue in the McHugh Fuller case. The second is – if I can find it – will be the Garbage Pail Kids…

Smith: Losing Faith.

Schenk: Losing Faith, which was my favorite. Anyways, thank you so much for your attention and we will see you next time.

Smith: See you next time.

Thanks for tuning into the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher and feel free to leave us some feedback. And for more information about the topics discussed in this episode, check out the show website – NursingHomeAbusePodcast.com, that’s NursingHomeAbusePodcast.com. See you next time.