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First, Let's Kill All the Lawyers

A version of this article was published in The Daily Record on December 8, 2015.

This past February, an Ohio-based skilled nursing facility on the wrong end of a negative newspaper advertisement soliciting legal services, took to the courts to stop further publication of the advertisement.

A. The Case

The nursing home sought to restrain temporarily a personal injury lawyer from continuing to run ads in the Columbus Dispatch that highlighted multiple deficiencies for which the facility had been cited. The ad also said that THESE DEFICIENCIES ARE KNOWN TO CAUSE SEVERE INJURY, HEALTH DETERIORATION, BEDSORES AND EVEN DEATH.

Although the advertisement did not specifically name the facility, it did list its address and the 23 deficiencies that the nursing home had been cited for, along with the citation dates. The ad also offered a free consultation to those family members who may have been affected.

At the injunction hearing, the nursing home argued that the ad was both defamatory and violated Ohio?s Deceptive Trade Practices Act because the actual conduct underlying the citations was not serious enough to cause severe harm.

For example, although the nursing home was cited for "failure to provide care for residents in a way that keeps or builds each resident's dignity and respect of individuality," the actual conduct leading to that citation was that several residents were given disposable drinking cups rather than glass cups.

The nursing home did, however, admit that it was, in fact, cited for all the advertised deficiencies, even though the deficiencies had been resolved through a plan of correction.

B. The Law

Temporary restraining orders and preliminary injunctions are considered extraordinary remedies. To prevail, the requesting party must show that (1) it has a strong likelihood of success on the merits, (2) it would suffer irreparable injury absent the injunction, (3) the injunction will not cause substantial harm to others and (4) the public interest would be served in granting the injunction.

To prevail on the defamation and deceptive trade practices allegations, Ohio courts have required a demonstration by clear and convincing evidence that (1) the advertisement contained a false or misleading statement, (2) a substantial segment of the target audience has been or will be deceived, (3) the deception is likely to influence a purchasing decision, and (4) the complaining party has been or is likely to be injured as a result.

C. The Decision

The court, however, was not persuaded that the nursing home would be likely to establish, by clear and convincing evidence, that the advertisement had a tendency to deceive a substantial segment of the target audience. The court determined that the advertisement neither claimed that the cited deficiencies actually caused harm nor suggested that every deficiency carried the same level of risk or severity.

Rather the ad accurately stated deficiencies that were, in fact, cited against the facility, and the date of the citations, asserted that they were of a type that "are known" to cause harm in some instances, and invited potentially affected individuals to engage legal counsel
to determine if a legally actionable harm occurred.

The court stated that a reasonable member of the target audience would appreciate that the statements were made in the context of an advertisement, and, therefore, would approach them with a somewhat critical eye. As a result, the court found that the nursing home failed to demonstrate a likelihood of success on the merits and the irreparable injury necessary to prevail. The court, therefore, refused to issue a temporary restraining order.

This case is yet another example of the risks inherent in attempting to overcome bad publicity through litigation. The nursing home could have instead placed its own advertisement countering the claims made in the lawyer's ad. Or, recognizing that the public has a short memory, ignore the advertisement altogether instead of drawing more attention to it.

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Date

06.11.15

Type

Publications

Authors

Rosen, Barry F.

Teams

Health Care