Saturday, June 22, 2019

Advertising Litigation On Georgia Docket

The Georgia Supreme Court will issue an opinion next Monday in a case described in McKnight's Long-Term Care News

The Georgia Supreme Court was set to hear arguments Tuesday on whether a law firm’s allegedly misleading ads about three nursing homes are protected by freedom of speech provisions.

Wilkes and McHugh took out advertisements in 2016 in several newspapers, noting that providers had been fined for various regulatory deficiencies, citing information unearthed in the Georgia Department of Community Health’s annual surveys.

However, those three facilities — the Rockdale Healthcare Center in Conyers, GA; Powder Springs Transitional Care and Rehab, Powder Springs, GA; and Bonterra Transitional Care and Rehab in Atlanta — argued that those citations were years old and had since been remedied. The ads also did not disclose that no harm had come to residents, the Marietta Daily Journal reported Tuesday.

The trio of providers sued Wilkes and McHugh in October 2017, alleging that the ads were false, fraudulent, deceptive and misleading, and in violation of a Georgia law that restricts the use of nursing home survey data in ads, unless accompanied by specific disclosures.

Wilkes and McHugh filed to dismiss the claim, citing another Georgia statute meant to prevent litigation that is aimed at intimidating critics. A county court dismissed that request in November and the law firm is now appealing to the state’s highest court, according to the Daily Journal. The Wilkes and McHugh firm long ago acquired a notorious reputation among nursing home operators for its aggressive filings against providers in numerous states.

“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 Court of Appeals had transferred the case to the Supremes noting that it presented novel issues.  (Mike Frisch)

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