Massachusetts attorneys, Bernard J. Hamill, Quincy

News: Dedham Superior Court: November, 2008:

Kindred Settles 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.

Other 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.

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