Lawyer: Woman's kin will get justice

The attorney representing the family of a nursing-home patient whose death led to a negligence lawsuit at the center of a federal investigation of campaign contributions to Circuit Judge Michael Maggio said he believes the woman's family will see justice.

"When that takes place is anybody's guess," said Thomas Buchanan, who represents two of Martha Bull's daughters. "On behalf of the family of Martha Bull, I'm confident that we will make sure [of that] ... and we'll absolutely leave no stone unturned to make sure that her death was not in vain."

Two state commissions have now disciplined Maggio, but not over any potential conflict of interest involving the contributions. The FBI is investigating. Agents were in Maggio's office as recently as last month.

The Arkansas Judicial Discipline and Disability Commission recommended "harsh" sanctions against Maggio last week, but reached "no finding" regarding campaign contributions from seven of eight political action committees financed almost entirely by nursing-home owner Michael Morton of Fort Smith.

David Sachar, the agency's executive director, said the contributions issue would have taken "considerably more time" to pursue and that the agency had already given Maggio its toughest punishment, making additional sanctions moot.

Buchanan had asked the judicial agency and the Arkansas Ethics Commission to investigate thousands of dollars in donations Morton made to eight PACs in checks dated July 8, 2013. On that same date, Maggio heard a plea to lower a Faulkner County jury's judgment against Morton's Greenbrier Nursing and Rehabilitation Center where Bull, 76, of Perryville died on April 7, 2008.

Three days after hearing the plea, Maggio lowered the judgment from $5.2 million to $1 million. Seven of the eight PACs later contributed to Maggio's since-halted Arkansas appeals court campaign.

The judicial commission announced Wednesday that it and Maggio had agreed on sanctions under which he would be suspended from all judicial duties until his term in office ends at year's end and that he would never again be allowed to serve as a judge in Arkansas. The measures are subject to the Arkansas Supreme Court's approval.

"We couldn't do any more to him [Maggio]" beyond ending his career as a judge, Sachar said in an interview.

In a statement Friday, Maggio's attorney, Lauren Hamilton, said, "Any informed person who is concerned with the facts or has read the voluminous and thorough investigation as conducted by the Ethics Commission -- which is their charge under the law -- knows there was no violations of law with respect to campaign contributions from PACs."

The judicial agency's recommended sanctions resulted, in part, from statements Maggio, 53, made online about women, sex, bestiality and other topics. He also referred online to a closed, or confidential, adoption in 2012 by actress Charlize Theron.

Those sanctions followed the Ethics Commission's June 27 announcement that it had fined Maggio $750 for accepting campaign contributions above state limits. That commission also investigated whether his campaign had accepted money from unregistered PACs that are prohibited under state law. But Commission Director Graham Sloan said evidence showed that the PACs were registered before Maggio accepted the contributions.

Buchanan said at the time that the Ethics Commission's action "underscores the importance of both the civil ... and the criminal justice system and the faith that we put in juries."

"What has become apparent is a lot of these state agencies are so limited in what they can do that the public must understand that it's up to the juries and the civil and criminal justice system to deliver justice," he added.

Neither commission's findings addressed the question of whether the contributions were tied to the reduced monetary judgment.

Morton and two of his attorneys did not return phone messages seeking comment.

Records show that Morton told the Ethics Commission that "he was not trying to buy a favorable ruling," but agreed that the timing of his checks to the PACs looks bad, according to a commission staff summary of his testimony.

When he wrote the checks to the PACs, Morton said he thought the money would go to Maggio's campaign, the summary states.

In her statement Friday, Hamilton also said, "There have now been two agencies which have either dismissed or made no finding of wrongdoing against Judge Maggio regarding campaign contributions. No contributions were received by Judge Maggio at the time of the trial or in exchange for rulings in the trial. Mr. Buchanan and his clients attempted to try this case and dismissed it without prejudice.

"In the subsequent case, Mr. Buchanan and his clients had a choice in determining what justice was for their loved one: they had a choice to appeal the reduced verdict; accept the reduced verdict; or be granted automatically a new trial. They chose that justice for their loved one was accepting the reduced verdict," Hamilton added. "The Defendants could have also appealed but they chose not to as well."

Buchanan said the plaintiffs "dismissed [the first case] without prejudice voluntarily. It was a strategy call we made for particular reasons."

When a case is dismissed without prejudice, it can be refiled.

As for not appealing, Buchanan has previously said his clients "obviously didn't know about the PACs that were formed around the time of the hearing and the fact that Mr. Morton or someone within his organization wrote checks to these PACs on July 8 [2013], which was the date of the hearing. Certainly, we would like to have had the benefit of that information in making our decision."

The issue did not come to light until March of this year.

Shortly after Bull's death, the Arkansas Department of Human Services' Office of Long-Term Care found that the conditions in the Greenbrier nursing home "constituted Immediate Jeopardy" to residents' health and safety and recommended, among other remedies, that the nursing home be fined $10,000, according to an April 30, 2008, letter to the nursing home administrator.

Federal records show that the penalties were paid, department spokesman Amy Webb said Friday.

The home is "currently in compliance" with requirements of the U.S. Centers for Medicare & Medicaid Services, and its "license is valid," Webb said in an email.

Bull had entered the nursing home on March 28, 2008, for a "30-day rehab following a stroke and drainage of an abdominal abscess," Buchanan said.

The following timeline of events before and after Bull's death is based on a report obtained from the state Department of Human Services. The report is based, in part, on nurses' notes at the Greenbrier facility. The report refers to Bull as Resident or Resident #1 rather than by name. The events:

April 4, 2008

• She had "mild pain less than daily."

April 8, 2008

• 8 a.m. Nurse notes indicated she complained of nausea and was "visibly upset" at breakfast in the dining room. She was given a suppository.

• 9 a.m. Bull took a Tylenol and was using a light to call for help "frequently."

• 9:47 a.m. A fax sent to a physician said she "has been very depressed last 3 days. Is not on Antidepressant."

"The fax did not document resident complaints of abdominal pain, abdomen being round and firm, resident's skin being cool and clammy, the resident was anxious and calling out or that the resident had a low temperature of 95.8," the document says.

The physician, who is not identified, responded by prescribing Zoloft, an antidepressant.

• 10:30 a.m. There were "no signs of nausea" but she was "agitated and calling out frequently," nurse notes said.

• 12:30 p.m. Bull was "cool, clammy and nauseated" and complained of thirst but was unable to eat, the nurse notes said. She was offered fluids "frequently this shift."

• 12:45 p.m. She was given Mylanta, an antacid.

• 1 p.m. She said the antacid helped.

• 2 p.m. Abdominal pain continued. A digital test revealed blood was in her stool. Nurse notes said that a nurse spoke with a doctor's nurse and that the doctor was supposed to call back with orders.

• 2:20 p.m. A fax was sent to the physician and mentions Bull's abdominal pain, her "cold and clammy" skin and her history of abscess, but not her continued nausea or firm abdomen, the report says.

• 3 p.m. Shift changes, but the report says a licensed practical nurse advised that she had told the second shift about waiting on a call from the doctor.

• 3:15 p.m. The physician responded in a fax saying, "Impossible to [evaluate] for Diverticulitis Abscess or peritonitis in [nursing home] or office. [Resident] needs to be sent to [Emergency Room] for eval of [abdominal] pain. May need CT scan or [surgery evaluation]."

"There was no acknowledgement by the 3:00 p.m.-11:00 p.m. LPN of the fax from the physician," the report says. "The resident was not sent to the ER as the physician had ordered."

• 10 p.m. Nurse notes recorded at 10 p.m. indicated that at 7:30 p.m. Bull was crying and complaining of abdominal pain but not of nausea. The notes said she refused supper and other offers of food. "Poor hydration, is turned every 2 hours and [re-positioned] for comfort. Has not used [call light]. Needs are called out loudly. No call back from [doctor]," they added.

"There was no documentation in the Nurses Notes of any other attempts to consult with the physician regarding the report from the day shift, the failure of the physician to respond to the call from the day shift nurse, of resident crying with pain and calling out loudly for needs," the report says.

• 10:20 p.m. The nurse notes stated, "Found [Bull] in bed. No palpable pulse breath sounds. No [blood pressure]. Knees and fingers cyanotic," meaning they appeared blue or purple.

April 8, 2008

• 10 a.m. The physician's fax saying Bull should be taken to the emergency room was found.

Buchanan said Maggio ruled that, under the Arkansas Rules of Evidence, the jury could not be told about the nursing-home fine. Buchanan said he does not dispute Maggio's decision on that point.

Even so, Buchanan said the $5,000 fine "is a drop in the bucket to someone like Mr. Morton who is a multimillionaire. That's why it took a Faulkner County jury to get the attention of Mr. Morton."

"We trust judges to exercise good judgment in determining rulings in which their discretion is called upon," Buchanan added. "And he [Maggio] exercised his discretion, which clearly has been questioned. Not only questioned, but the Judicial Discipline and Disability Commission found that his discretion is inappropriate."

A Section on 08/10/2014