Free speech, misleading advertising and claims of censorship will all come into play Tuesday as the Georgia Supreme Court hears the case of three nursing home companies and a group of lawyers who ran newspaper ads against them.
In 2016, the law firm of Wilkes and McHugh, which operates in Kentucky, Florida, Pennsylvania and Arizona, along with one of its lawyers, took out ads in three local papers about three local nursing homes: Rockdale Healthcare Center in Conyers, Powder Springs Transitional Care and Rehab in Powder Springs, and Bonterra Transitional Care and Rehab in Atlanta.
The ads stated that each nursing home “has been cited” for various regulatory violations uncovered by the annual surveys that the Georgia Department of Community Health conducts as required by federal law.
The nursing homes complained that many of the citations in the ads were several years old and had since been remedied. The ads did not disclose that no harm had come to any patients. Rather they implied, the nursing homes claimed, that the nursing homes’ residents may have suffered “bedsores,” “broken bones” and “death” as a result of the cited deficiencies.
In October 2017, the nursing homes sued the law firm and attorney Gary Wimbish, alleging that the ads were false, fraudulent, deceptive and misleading, and they failed to comply with the requirements of Georgia Code, which restricts the use of nursing home survey report data in advertisements unless specific disclosures accompany the ads.
Under Georgia law an advertiser must state the “number of findings and deficiencies cited in the statement of deficiencies on the basis of the survey and a disclosure of the severity level for each finding and deficiency.” The statute also requires an advertiser referencing a survey to include a “disclosure of whether each finding or deficiency caused actual bodily harm to any residents and the number of residents harmed thereby.” The nursing homes argued the ads failed to follow these directives.
In November, the day before a scheduled hearing, Wilkes & McHugh filed a motion to dismiss/strike the nursing homes’ motion for injunctive relief under Georgia’s Anti-SLAPP statute.
SLAPP stands for “Strategic Lawsuit Against Public Participation” and describes a lawsuit that is filed to silence or intimidate critics. The Cobb County trial court ruled against the law firm and denied McHugh’s motion to dismiss the lawsuit based on the Anti-SLAPP statute.
Wilkes & McHugh are now appealing that decision to the state Supreme Court.
“This case involves a misguided effort by three nursing home companies to suppress constitutionally protected advertising speech concerning a state agency’s findings of health and safety deficiencies at nursing homes,” the law firm’s attorneys argue in briefs. “Such speech enjoys extensive protections under state and federal law.”
The nursing home's attorneys say the trial court made the right decision, arguing the law firm's claims do not merit coverage under the Anti-SLAPP law.
The high court is set to hear arguments during its 10 a.m. session.