Senator Harris for the Defense
On the evening of June 19, 1997, Anita Paschal was admitted to the Fireside Lodge Retirement Center, an independently owned nursing home on the west side of Fort Worth. She had been in the hospital for over a month, receiving care and rehabilitation following a debilitating stroke she had suffered that spring. Her doctors felt she had recovered enough to be transferred to a nursing home for a brief stay, after which she would return to her own home to resume living on her own.
When she arrived at Fireside Lodge, Paschal was alert but disoriented – nurses’ notes recorded that she knew the year, but not the month or day. Along with instructions for medication and diet, her physician’s orders included a common safeguard for stroke patients: “fall precautions.”
When Paschal’s brother, George McMurray, arrived early the following morning, he found his sister lying on the floor in a pool of blood. His sister told him she had fallen trying to go to the bathroom by herself because no staff person would assist her. McMurray called for an ambulance and rode with his sister to the emergency room, where she was treated for head and facial injuries. She lapsed into a coma and died the next morning.
When Department of Human Services investigators arrived three weeks later to investigate, the first nurse interviewed reported that the home had “no firm policy or procedure” for precautions against falls, and that she had received no special training on that subject. A second nurse interviewed said she also received no specific training on fall precautions. Such precautions typically include lowering the patient’s bed, placing a mat on the floor, using a bed alarm that alerts staff when a resident gets up, and checking on the resident more frequently than usual. McMurray told investigators that the siderails on his sister’s bed were in the raised position when he arrived. But use of siderails for restraint purposes is not permitted without a physician’s orders, which were not given in Paschal’s case. By adding an extra two to three feet to the height of a bed side, such rails can make a fall more likely. The investigators’ report concluded that the home’s failure to follow proper procedure “contributed to the death of the resident.”
When George McMurray sued Fireside Lodge for negligence a year later, his attorney sought to introduce that D.H.S. document, known as a survey report, into evidence. The home’s defense attorney, Gail Friend, countered with a motion to quash the report, using a convoluted argument that equated survey reports with internal peer review committee documents, which are protected by a well-established statutory privilege. Peer review committees, made up of employees and directors of health care institutions, are designed to allow practitioners to give frank reviews of their colleagues’ performance without fear of suits or reprisals stemming from the use of their testimony or records. Friend’s argument was a stretch, essentially purporting that the state agency charged with licensure and regulation of nursing homes is also a de facto member of the peer review committee of every home it licenses.
Friend’s argument also flew in the face of a key reform passed by the last Legislature, S.B. 190, which specifically stipulates, in very simple language, that such reports are to be considered open records admissible in a civil action (and, further, that they must be made readily accessible to prospective customers of nursing homes). But Friend had an ace in the hole. Her motion was signed by her co-counsel, Arlington State Senator Chris Harris.
Friend, an attorney based in Houston, has secured Harris as local counsel in five nursing home suits being heard in Tarrant and Johnson counties. Friend says she chose Harris simply because she needed a local attorney with litigation experience. “I didn’t even know he was a senator until months after I first visited with him,” she said. Imagine Friend’s surprise when she found she had signed up a Senate committee chairman, and one of the most senior Republicans in Texas government. Plaintiffs’ attorneys in the cases contend that Harris was brought on not for his litigation experience – he has a small family law practice in Arlington – but for his ex officio qualifications. Chief among these is the opportunity to take advantage of the legislative continuance provision in the state constitution, which automatically entitles any state legislator to a postponement of major case proceedings for the duration of the legislative session, plus thirty days afterward. The only stipulation is that the legislator must have been retained at least ten days before the trial date, and he or she must sign an affidavit indicating an intent to “participate actively” in the case. Harris has filed for legislative continuances in two of the five cases, and obtained a docket change in a third – postponing the trial date by seven months – without even filing a motion.
More importantly, her adversaries say, Friend now has the advantage of Harris’ clout as a legislator, and his status as a member of the Senate Human Services Committee, to influence Tarrant County judges – virtually all Republicans – on the question of the admissibility of D.H.S. reports. Friend has filed identical motions to quash surveyor reports in three of the five cases. Harris has appeared in court to argue on behalf of the motion in each case.
Senator Harris appears to have made the desired impression. Take the case of Peter Treviño, Jr., who is suing the Westside Care Center of Fort Worth for medical malpractice. Harris appeared at the hearing in early October, where he sat quietly while Gail Friend and Trevino’s attorney, Kerry Collins, sparred over the admissibility of D.H.S. survey reports. When Harris finally rose to speak, it was on behalf of the Texas Legislature. “When we start getting into questions of whether or not it was the intent of the Legislature to waive this privilege … we very specifically did not repeal that statute on privilege…. And I feel – I serve on the Health Committee, and I feel very strongly this needs to be raised with the Court,” Harris told the judge, according to the hearing transcript. Shortly thereafter, the judge granted Friend’s motion to strike the records. A few days later, the judge reversed himself, but Friend promptly appealed the ruling, eventually taking it to the Second District Court of Appeals. The appeals court rejected her appeal, but the overall effect was to delay the proceedings for almost six months. An appearance by Harris in another case, Donna Pack, et al. v. Watson Nursing Home, has resulted in the D.H.S. records being struck in that case as well. Pack’s attorney Bernard Suchocki is currently preparing for a rehearing on the motion. Harris’ legislative continuances have proved useful, too. The plaintiff in one of the cases, Judy McClendon v. Jackson Square Nursing Home, elected to settle rather than wait until July for Harris to be ready to continue the case. According to the plaintiff’s attorney, Dana Huffman, some of her clients had health considerations which factored into the decision not to wait out the delay.
Gail Friend is described by one colleague as an “old-school, Louisiana-style, whatever-it-takes-to-get-it-done kind of attorney.” She vehemently denies that Chris Harris was brought on solely to obtain continuances, and Harris points out that he was brought on board in each case well before the session began. Nevertheless, the question persists whether Harris has “participated actively” in the cases. For example, in the Pack case, Harris requested and received a legislative continuance, although he did not participate in any of the depositions taken. His primary contribution was to speak in support of the motion to quash D.H.S. reports, although Gail Friend was present for the hearing and actually argued the motion. Friend also said she was the one who prepared the arguments for the lengthy motion, not Harris. Harris says he participated in the depositions “in some of the cases,” although he could not recall in how many cases he was currently involved. Asked about Harris’ specific contributions to the cases, Friend replied, “I have no idea and I can’t remember. If I want him there, he’s there. He’s involved in the cases as much as he needs to be.” After obtaining a postponed trial date in the Pack case, Harris wrote the judge on the eve of a scheduled hearing, explaining that he was out of town and asking for a postponement so that he could attend the hearing. Harris was in Las Vegas, watching his son compete in a rodeo championship.
On the floor of the Senate this session, Harris went one step further on behalf of his clients. On March 18, prior to Senate debate on an assisted living center regulation bill (proposed by Fort Worth Democrat Mike Moncrief), Harris circulated an amendment – written broadly enough to apply to nursing homes as well – that would have made survey reports inadmissible in civil suits against assisted living centers. The response from his colleagues was less than enthusiastic. According to one Senate insider who asked not to be named, “Several senators were extremely concerned about Senator Harris’ conflict of interest, because it’s widely known that the Senator represents nursing homes and has filed a number of motions in court.” In some cases those motions were still pending – meaning that in effect, Harris was using his legislative continuance privilege to go to Austin to try to change the very law on which his cases hinged. Harris shelved his amendment and had Senator Robert Duncan of Lubbock offer a face-saving alternative amendment, which left the reports admissible, but required they be admitted in accordance with the Texas Rules of Evidence, a caveat ostensibly aimed at curbing the use of irrelevant reports strictly for inflammatory purposes (a practice which Harris contends is widespread). But the language in S.B. 190 already requires that the Rules of Evidence be applied, so Duncan’s amendment does little more than recodify existing law. Although Harris now claims he is satisfied with Duncan’s alternative, it is widely rumored that he will find another vehicle for his own amendment before the end of the session.
Harris told the Observer he sees no conflict of interest in his behind-the-scenes efforts in the Senate. “We are a citizen Legislature. What, am I not supposed to do any [legislation] in the family trade because I do a high volume of divorce law?” Harris asked. “This is not some sinister deal. It’s very simple: to me there is a major problem in the law, and I have raised that question to my colleagues.” He went on to imply that the controversy is motivated by plaintiffs’ attorneys: “And the fact that some lawyers’ cash cow might get disrupted is no excuse for us not to have good government.”
Harris insists that despite S.B. 190, the Legislature never intended to make the D.H.S. reports admissible in a private civil trial, but only for the Attorney General’s use in revoking nursing home licenses. The issue is crucial, because plaintiffs’ attorneys and nursing homes alike agree that the reports can be the turning point in civil suits. “What the surveys do is peel the cover back on a very ugly industry, and the juries are reacting very strongly against the industry,” said plaintiffs’ attorney Dusty Fillmore. Fillmore recently won a $92 million verdict against a Fort Worth-area nursing home whose negligent care left his client nearly dead: dehydrated, malnourished, and with several gaping pressure sores, some of which exposed the bone. The Fort Worth Court of Appeals recently affirmed this judgment (though they lowered the amount), and specifically held that the D.H.S. reports were properly admitted into evidence in the trial, despite the nursing home’s objections. “If these verdicts were obtained with improper evidence, then the courts would be overturning these judgements, but that simply has not been happening,” said Fort Worth Plaintiff’s attorney Brandon Boehme, who won a $10.7 million verdict against a North Texas nursing home owned by Texas Health Enterprises, the state’s biggest chain. Other large judgments in the last two years, including a $250 million verdict recently upheld in Hurst, have the for-profit nursing home industry running scared. The judgments are part of a public backlash against an industry whose worst excesses, although catalogued for years, are finally coming to widespread public attention. Nationally, for-profit residential care generates $87 billion a year in revenue, with over 75 cents of every dollar coming from Medicaid and Medicare. In an industry where profits depend on providing as little care as possible for each dollar of public money received, homes tend to be understaffed with underpaid, poorly trained workers. A series of damaging federal reports and promises of a federal crackdown on abuse and negligence have made headlines. One report released last summer found that almost one-third of California nursing homes had been cited for violations that caused death or life-threatening harm to residents. A report released in March, by the U.S. General Accounting Office, was highly critical of nursing-home regulation – the report specifically cited Texas as an example of poor enforcement by state authorities. From July 1995 to July 1997, for example, Texas levied $13.2 million in penalties, but collected only $481,977 of that money.
For-profit nursing homes are represented at the Capitol by the Texas Health Care Association, which has made the admissibility of survey reports one of its top issues this session. In 1995, the association scored a major victory with the passage of H.B. 2664, sponsored by Kerrville Republican Harvey Hilderbran, which largely wiped out state regulation of nursing homes, making surveyor reports off-limits in the process. The effect was devastating. State enforcement fell off dramatically, and only eight nursing home cases were prosecuted by the Attorney General in 1996. A major effort led by advocacy groups (e.g., the American Association for Retired Persons and the Texas Advocates for Nursing Home Residents) for the 1997 session led to the passage of Senator Judith Zaffirini’s S.B. 190. The law restored admissibility of surveyor reports, and expanded the rights of clients and their families. State enforcement rebounded, with thirty-nine cases prosecuted in 1997.
To AARP lobbyist Candace Carter, there was never any doubt about the intent of S.B. 190. “The intent was to overturn H.B. 2264,” she said. “There is an array of opportunities for industry to present its case…. We need to make sure residents have the information to make their case. Sixty percent of residents don’t have visitors. How are they going to make their case, if they can’t use the reports?” Austin Democrat Elliott Naishtat, the bill’s House sponsor, discounts the newly raised questions of legislative intent. “In S.B. 190, we did a 180-degree turn, and made it clear that survey reports, written findings, and investigations of complaints are admissible…. I was the one who debated this on the House floor for seven hours,” said Naishtat, “and there was never any question in my mind that this is what we intended, whether it was a private civil suit or before the Attorney General.”
My major concern in this whole thing is that we still have quality nursing home care in this state,” Chris Harris says. “If all of the insurance companies pull out because of these crazy awards that are based on improper evidence, I don’t want to explain to my constituents why they have to drive to Oklahoma or Louisiana to see their loved ones in a nursing home.” Harris pointed out that the number of major insurance companies underwriting Texas homes has dwindled, while premiums have shot up. But while some companies have stopped doing business in Texas, others are thriving in the state’s regulatory climate.
Consider Texas Health Enterprises, a 100-home chain whose C.E.O., Woody Kern, lives in Pilot Point, just north of Harris’ hometown. K
rn made headlines in 1998, when he purchased a $3.6 million dollar Hill Country mansion at auction. That was roughly the same amount Kern then owed the state of Texas for fines levied from 1995 to 1998 against his nursing homes, which collectively have the worst record in the state. As of December 1998, Kern had paid just $43,000 of the total fines, appealing the remainder. Kern’s eight Tarrant County nursing homes, meanwhile, have been sued by former residents a total of thirty-nine times since 1988. But Kern and his corporate colleagues aren’t likely to get out of the business any time soon. As Dusty Fillmore observes, “I think that these corporations know that there are huge profits to be made off the care and treatment of the elderly. They know their demographics, and they also know that the elderly population in the next decade to twenty years is going to explode, and they’re positioning themselves to be there when it does.” Some have accused Harris, in his ongoing work on behalf of nursing home insurance companies, of lining his own nest. On the other hand, he may simply be looking forward to his own retirement, and taking steps to ensure he won’t end up a permanent guest of Woody Kern.
This article was partially funded by the Observer’s M3 fund for investigative reporting.