By Charles Wolfe
The Associated Press

LOUISVILLE - The nursing home linked to the sex scandal that engulfed Gov. Paul Patton gets a chance today to defend itself in court against state regulators who want to shut it down.

Its attorney said he would use employees of Birchtree Healthcare and relatives of Birchtree residents to attest to the quality of its care. He also hoped to have results of an inspection Birchtree arranged on its own.

"This is the first opportunity to dispel all the innuendo about `immediate jeopardy' this facility has supposedly placed its patients in," attorney Fred R. Simon said last week.

On the other side is the Cabinet for Health Services, which in the past year has compiled a thick dossier on the nursing home in Clinton. It contains reams of reports of alleged deficiencies, plus a pair of Type A citations, the most severe available, for conditions that allegedly put Birchtree residents in jeopardy.

The cabinet now is trying to revoke Birchtree's license for "continued and substantial failure" to meet minimum requirements for a nursing home, according to the revocation notice.

Licensure fights are usually contested in a trial court. The battleground over Birchtree is U.S. Bankruptcy Court, where the nursing home is seeking protection from creditors. The facility had 12 residents and 104 empty beds last week. Its lender, First National Bank of Clinton, has sued to foreclose on a $2.7 million loan. The bank wants Bankruptcy Judge David Stosberg to appoint a trustee for the property.

The cabinet will try to convince Judge Stosberg that Birchtree has consistently failed to meet state standards "and has essentially lost its right to continue on as a licensed facility," cabinet attorney Steve Davis said. He said he planned to have testimony from some of the state inspectors who have been to Birchtree in the last year.

Birchtree owner Tina Conner alleges the cabinet and its inspectors hounded the nursing home into bankruptcy after she ended a two-year affair with Mr. Patton. She alleges it was Mr. Patton's way of retaliating - a charge now under state and federal investigation.

Ms. Conner, in a brief meeting with reporters last week, also said she did not know whether she could survive the licensure fight. "They're hitting us pretty hard," she said.

Mr. Patton has acknowledged the affair but denied doing anything to aid or damage Ms. Conner's business. Likewise, cabinet officials deny that the crackdown on Birchtree was politically motivated.

The state has inspected Birchtree at least five times in the last year. Of the violations cited, the most drastic involved Elsie Perry, who died at Birchtree Dec. 26 while inspectors were present.

Their report said she had been wracked with fever for most of a month, but Birchtree staff did not tell her doctor that the fevers had defied antibiotics. Nor did he realize that lab tests he ordered had not been performed until the day Ms. Perry died. The report blamed understaffing.

Ms. Conner has insisted that Birchtree rendered high-quality care. "We had no other problems that other nursing homes don't experience," she said last week.

The Associated Press was unsuccessful in repeated attempts to reach Ms. Perry's relatives for comment. Relatives of other Birchtree residents were divided about its quality of care.

Faye Smith said she was dissatisfied enough to have her father-in-law, Walton Smith, moved to the other nursing home in town, Clinton-Hickman County ICF.

Birchtree did not have a large enough staff, in Ms. Smith's opinion. "Every time you went out there, he was nasty and he stunk. There just wasn't no help out there to take care of him," she said.

But Glen French of Wingo had no complaints about the care afforded his stepmother, Mary Nell French, who died at Birchtree 22 days before Elsie Perry.

"Only rest home I ever went in that you couldn't smell an odor when you went in," Mr. French said in a telephone interview.