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Nancy Smith

Brian Lee: Good-Guy Nursing Home Watchdog or Shill for a Trial Lawyer?

February 25, 2014 - 6:00pm

For eight years he headed Florida's long-term-care ombudsman program. Now his critics insist he's whipping up business for one of the state's busiest nursing home litigators.

They say Brian Lee finds disgruntled patients, then Tampa personal injury attorney Jim Wilkes sues the living bedsheets out of their nursing homes.

"That's ridiculous," says Lee. "I don't set up cases for anybody."

But the executive director of Families for Better Care (FBC), a nonprofit citizen advocacy group, doesn't deny FBC gets a lot of its money from the Wilkes & McHugh law firm. "We get donations from unions, families and, yes, the one Tampa law firm. I have to admit, we wouldn't be able to exist without Wilkes & McHugh.

"But I've never even spoken to these guys," Lee said emphatically.

Not possible, says one South Florida AARP activist.

Speaking on condition of anonymity, she asked incredulously, "Lee got thousands of dollars from a benefactor and never picked up the phone even once to say thank you?"

The senior citizen said she now is at the age where she is chronically unwell herself. What she doesn't want to happen to her one day is what happened to her mother.

She told me some years ago her elderly mother was in a nursing home sued by Jim Wilkes' law firm. The home eventually went out of business, displacing patients and staff and causing her mother to relocate in a home 10 miles farther away.

"For lawyers, it's a living, I suppose," she said, "but for my mother, it was a way of life. She was happy and comfortable there and close enough so I could visit every other day. I don't ever want to be that far away from my children."

She and others among the AARP membership tell me they're convinced patients' advocate Brian Lee works hand in glove with Wilkes' very lucrative law firm.Wilkes has made a living suing nursing homes on behalf of Medicaid and Medicare clients who have died or been injured because he claimed he could prove they received negligent care.

Now Lee, she says, is fighting bills in the Florida House and Senate that would make it more difficult to put a nursing home out of business.

"Fighting for better care is good, but why not work with the staff to improve or correct the things that are wrong?" Nursing homes closing down is in no one's best interest, she says.

Lee is suing the State of Florida for wrongful termination of his $78,000-a-year job in 2011. According tonewspaper reportsat the time, he claimed Gov. Rick Scott succumbed to industry claims that he had developed a contentious relationship with too many nursing homes, and by federal law, the governor cannot interfere with, or retaliate against, an ombudsman. Some within the Capitol, however, say Lee was one of many who simply got caught in the change-of-governor transition.

Immediately after, Lee founded Families for Better Care. And threeyears later, the suit is still pending.

Lee admits he's doing everything in his power to kill the bills now in the Legislature. He says they're not far enough removed from similar legislation that went down in flames in 2012. The Senate bill was responsible for the demise of former Sen. Ellyn Bogdanoff, who sponsored the bill, Lee said. The Democratic Party used it in crushing ads to portray the Fort Lauderdale Republican, who lost to Sen. Maria Sachs, D-Delray Beach, as willing to sell out senior citizens.

The 2014 bill, SB 670, has already breezed through the Senate Health Policy Committee. What it does is shield nursing home investors from lawsuits when their homes are accused of abuse and neglect. In exchange, trial lawyers get easier access to documents.

Bill sponsor John Thrasher, R-St. Augustine, said he's proud of it: It benefits elders as well as their loved ones. By shielding nursing homes from lawsuits, the homes have extra protection so they can stay in business, all good for residents.

AARP activists claim that's what they like. They said suing the life out of nursing homes is no way to improve quality in the industry, and the only ones who like that idea are Lee and Wilkes.

Rep. Matt Gaetz, R-Fort Walton Beach, filed the companion bill in the House. It included the new proposal that limits who can be sued to the owner and staff of the nursing home. Lawmakers wanted to protect "passive investors" so that real responsibility rests with those directly running the homes.

"If this legislation passes, nursing homes in Florida will go straight downhill and their owners will rake in even more profits," Lee said. "One in four of our nursing homes is on the 'watch' list -- meaning they've already been identified as causing harm."

But in a state-by-state report card on nursing homes that Families for Better Care recently published, Florida's were graded "B" -- not exactly dire.

Lee also told me, "There is no lawsuit problem out there" -- meaning the legislation is unnecessary.

That's contradictory. Which is it? A mounting "watch" list signifying Florida failure, or a much-improved industry that cleaned up its act since 2001 and earned a "B" grade?

Said Lee, "Despite what the nursing home industry says about me, this bill is a terrible deal for residents."

Kristen Knapp, director of communications for Florida Health Care Association, said the legislation has the support of the FHCA, AARP, the Florida Justice Association (the trial lawyers) and the Chamber of Commerce. "We've made such important strides. We're not perfect but we now lead the nation, for example, in staffing ratio."

"What these organizations like about the legislation -- what we all like about it -- is that it clarifies the process, takes away the ability of others to abuse the system," Knapp said.

If the legislation passes, litigator Wilkes could take a mighty hit. Knapp didn't say that -- it was just something that crossed my mind at the end of the day.

Reach Nancy Smith at or at 228-282-2423.

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