News: Dedham Superior
Court: November, 2008:
Lawsuit during trial
Kindred East, LLC DBA Franklin
Nursing and Rehabilitation settled an assault/abuse lawsuit
against them during Trial in Norfolk Superior Court in front of
Judge Patrick Brady this month. Opening statements were given to
the Jury by Attorney Hamill on Monday November 3rd and the first
witnesses testified. Descriptions by the witness of several assaults
committed against the plaintiff and rough treatment and swearing
were described. They were committed by a 53 year old nurses aid,
Bernadette Stackpole. The following day as 6 more witnesses sat
in the hallway ready to testify, Kindred settled the case for $425,000.
Attorney Hamill tried the case with
co-counsel Attorneys Sally Edgerly and Shayna Slater.
Kindreds original offer was $10,000.
At mediation they bumped their offer to $150,000 which we advised
the executor of my client's estate to reject. A week before trial
Kindred offered $285,000 which we rejected. The day before Trial
Kindred upped their offer to $400,000 which was rejected. During
trial testimony Kindred offered $425,000 which the executor of the
estate instructed our office to accept.
There were no surviving spouse or
children. There were no medical bills or out of pocket 'special
damages'. The case was tried on a theory of 'damage to dignity'
because the nurse aid who slapped the plaintiff John Ferrara on
several occasions violated Federal and State regulations manadating
compassionate care and 'dignity' to nursing home patients such as
the plaintiff who suffered from dementia.
The defendants defense was that (1)
no abuse occured; (2) if it did they immediately stopped it by firing
their employee as soon as they found out and (3) there were no provable
damages since our client suffered from advanced dementia and could
not remember or appreciate or be harmed by a slap, and that he was
incapable of suffering emotional distress. They had an expert doctor
to give that opinion. Throught the cases Kindred denied any wrongdoing.
The defendants tried to further dehumanize
the Plainiff by describing him as a 'violent' man who struck his
caregivers. They also argued that the plaintiff's wife who did not
survive this action did not bring the action or want it to be brought.
They argued that the state conducted an in-depth investigation and
issued no citation against the Nursing Home and "found no wrong".
We subpoened the state investigator who, although no citations were
issued, would testify that there was indeed evidence of abuse.
The reality of the case was that
John Ferrara was a devoted husband who was loved by dozens of neices
and nephews. He loved to dance and attend family functions. He was
a gentle person who reacted as he did on occasion because he was
mistreated by a caregiver and because he suffered from dementia.
John was 100% dependant on Kindred for his daily care and particularly
vulnerable. John couldn't express himself because of his disability.
His wife Adele, came to the nursing home every single day to visit
John and help with his feeding.
This case closes the chapter of abuse
at Kindred's Franklin facility. Our office handled the cases for
three residents who were slapped or mistreated. The prior two cases
brought in Arbitration awards of $300,000 and $450,000 respectively.
Our office conducted 39 depositions from Kindred employees/past
employees who were so reluctant to appear that court orders and/or
sanctions including contempt of court and arrest had to be obtained.
law firms rejected these cases as 'no damage' cases having no or
minimal value. Our office spent over $65,000 out of pocket and three
years fighting to prove these claims which were bitterly contested
and denied by Kindred.
In the end, the
awards for the 3 assault cases totalled $1,175,000 for these 'valueless'
violation of dignity claims.