Ad featuring old, mild citations against health facility was false by necessary implication

Heartland of Urbana OH, L.L.C. v. McHugh Fuller Law Group,
P.L.L.C., 2016 WL 5375676, 2016 -Ohio- 6959, No. 2016–CA–3 (Ct. App. Sept. 23,
2016)
Heartland appealed from summary judgment granted to McHugh
in Heartland’s deceptive trade practices case against McHugh, and the court of
appeals reversed, finding that the relevant ad was false by necessary
implication and that injury was presumed because the ad targeted Heartland.
In 2014, McHugh published a full-page ad and online ad in
the Urbana Daily Citizen newspaper that discussed Heartland, a skilled nursing
care facility located in Urbana, Ohio. The ad contained a picture of
Heartland’s facility in Urbana, and stated:
ATTENTION!
The government has cited HEARTLAND OF URBANA NURSING AND
REHABILITATION CENTER for failing to provide necessary care and services to
maintain the highest well-being of each resident. If you suspect that a loved
one was NEGLECTED or ABUSED at Heartland of Urbana, call McHugh Fuller today! Has
your loved one suffered?
Bedsores
Broken Bones
Unexplained Injuries
Death
“Attention,” “Neglected or Abused,” and “Death,” were in
red, bold type. “Cited” was also underlined in red.
In fact, Heartland had not had a citation of any kind for
over two years, and had not had a citation remotely similar to the one alleged
in the advertisement since June 24, 2010, more than four years previously. Even
the June 2010 citation did not cause harm to any nursing home patient, and the
deficiencies had been corrected in June 2010.  Under Federal standards, violations are assessed
by letters ranging from “A” to “L,” with “L” being the most severe. “J,” “K,”
or “L” violations mean that a nursing facility is in immediate jeopardy, and is
in risk of being cut-off from Medicare reimbursement. The particular violations
on June 24, 2010 were only “E” and Level 2 violations, “which, at worst,
contemplate only minimal physical discomfort and the potential to undermine a
given resident’s ability to maintain or reach his or her highest practicable
well-being, in light of definitions of that resident’s plan of care.”
According to Heartland, “negligence, abuse, bedsores, broken
bones, unexplained injuries, and death” would have Level 4 severity. By
contrast, three matters that were involved in the June 24, 2010 citation, were:
a failure to document and administer laxatives prescribed for constipation; a
failure to timely reassess abdominal pain for 18 hours; and a failure to apply
prescribed antibiotic for two weeks after a physician had ordered a culture.
Subsequently, the legislature amended state law to prohibit
the use of the results of an inspection or investigation of a home in an ad unless
the ad included:
(i) The date the inspection or
investigation was conducted;
(ii) A statement that the director
of health inspects all homes at least once every fifteen months;
(iii) If a finding or deficiency
cited in the statement of deficiencies has been substantially corrected, a
statement that the finding or deficiency has been substantially corrected and
the date that the finding or deficiency was substantially corrected;
(iv) The number of findings and
deficiencies cited in the statement of deficiencies on the basis of the
inspection or investigation;
(v) The average number of findings
and deficiencies cited in a statement of deficiencies on the basis of an
inspection or investigation conducted under this section during the same
calendar year as the inspection or investigation used in the advertisement;
(vi) A statement that the
advertisement is neither authorized nor endorsed by the department of health or
any other government agency.
Query: what are the First Amendment implications of this
rule?
The trial court found that this legal change had mooted
Heartland’s claim.  The court of appeals
reversed, because if McHugh willfully violated the state Deceptive Trade
Practices Act, Heartland would be entitled to attorneys’ fees.
Ohio courts follow the Lanham Act in interpreting the DTPA.  The court of appeals found the ad false by
necessary implication.  “When the
advertisement was published, McHugh, a law firm, would have known that any
claims based on the June 24, 2010 citations were barred due to the statute of
limitations.”  McHugh also had access to
information that Heartland wasn’t cited in 2012 or 2014, and that none of the
2010 citations related to harm to residents. “[T]he only reasonable conclusion
is that the advertisement falsely implied Heartland was a facility where
patients were being exposed to very dangerous conditions, including death,”
which justified a finding of intent to deceive consumers.

In noncomparative advertising, plaintiffs must show
causation and harm, but a material, misleading comparison to a specific product
necessarily causes harm to the target, relieving the target of its burden of
separately showing causation and harm. 
The court of appeals applied this rule here, to the broader category of “misleading
advertisements identifying a specific party,” although the ad wasn’t
comparative. The court of appeals did say that the presumption of causation and
injury was rebuttable.

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