Advertising Injunction Against Law Firm Vacated

The Georgia Supreme Court has vacated a permanent injunction and remanded a case where a nursing facility had sued to enjoin a law firm's advertisement seeking potential clients against it.

The case was described in this post by Alyson Palmer of the Daily Report

As recounted in briefs for both sides, the advertisement said the government had cited a nursing facility, Heritage Healthcare of Toccoa, "for failing to assist those residents who need total help with eating/drinking, grooming and personal and oral hygiene." The ad rhetorically asked whether readers' loved ones had suffered bedsores, broken bones, unexplained injuries or death. Providing the firm's contact information, the ad invited anyone concerned that a loved one was being "neglected or abused" at the facility to call McHugh Fuller.

The day after the ad ran, the owner of the facility, PruittHealth-Toccoa, sued the law firm in the Mountain Circuit Superior Court. Beside citing Georgia legal ethics rules on advertising and contacting prospective clients, the complaint alleged the ad had violated Georgia's version of the Uniform Deceptive Trade Practices Act because it was false and misleading. The nursing home company initially requested damages but later amended its complaint to seek only injunctive relief.

Superior Court Judge B. Chan Caudell promptly granted PruittHealth's request for a temporary restraining order prohibiting the law firm from running similar advertisements, then set the case for a hearing a little less than a month later.

In its defense, the firm pointed to a 2012 inspection report by the Department of Health and Human Services' Centers for Medicare & Medicaid Services. That report listed multiple deficiencies at the site under the heading "Assist those residents who need total help with eating/drinking, grooming and personal and oral hygiene." In particular, the document referred to one resident not having access to mouthwash in her room and another resident's long, dirty fingernails.

At the close of the hearing, Caudell found the ad was misleading and deceptive because it said the nursing facility had been cited "for failing to assist" residents in certain areas, while the government report did not use that "failing to" language in its report. He later issued a written order prohibiting McHugh Fuller from publishing or causing the ad to be published in the future and giving the firm 20 days to make sure any electronic posting of the ad by the newspaper was removed.

The law firm appealed to the Georgia Supreme Court, raising several arguments. The firm says that Caudell abused his discretion in finding the ad false and misleading. But the law firm also raises a procedural argument, saying it didn't have advance notice that the judge was going to make a final decision in the case based on the May 2014 hearing. McHugh Fuller later filed a separate appeal complaining that Caudell had excluded from the appellate record materials that the law firm thought should be included.

The court found that the trial court had erred in granting a permanent injunction without clear notice to the law firm that such an order was contemplated. (Mike Frisch)