Boston Herald had a great article about a family's attempt to learn the truth behind a document a resident allegedly signed while suffering from delusions and memory loss. They hope to shed light on what she called an “outrageous and deceptive” practice. Having demented residents sign their right to a jury trial away. This is a tragic story that I hear all the time. Resident clearly gets hurt by negligence of facility. The facility, instead of taking responsibility, tortures the family by ridiculous legal machinations such as arbitration, health courts, malpractice tribunals. This family has waited years for closure.
John J. Donahue died after suffering injuries at a Brockton nursing home in 2005. Donahue, a paralyzed retired railroad engineer, spent the final 46 days of his life being shuffled between nursing homes and hospitals following an eye injury he suffered at Embassy House, Hoey said. On Sept. 5, 2005, Donahue’s left eye was gouged by a metal safety hook on a machine an employee was using to move him from his bed. Two people were supposed to operate the machine, called a Hoyer lift, per facility policy, according to a state investigation on the incident. The state Department of Public Health investigated Sept. 21, 2005, and found the allegation of neglect to be valid. The certified nursing assistant who operated the Hoyer machine alone was fired.
He was taken to the hospital more than 15 hours later, where his eye was removed. Donahue died weeks later of sepsis causing blood clots and organ failure. Hoey said experts will testify at trial that the eye trauma placed Donahue in a compromised state, which made him more susceptible to disease and infections.
Two years later, Owens filed a lawsuit alleging the nursing home’s negligence led to her father’s health decline, and in turn, his death. The nursing home claimed that Donahue had signed an arbitration agreement in 2003, when he was 91, waiving his right to a trial if he was injured or killed.
Arbitration agreements are becoming more common at nursing homes and they are costly and time-consuming to contest, said Donahue’s attorney, David Hoey of North Reading. Hoey said he fought the alleged agreement for two years, until the Court held the agreement was void based on testimony and records from staff at Embassy House Skilled Nursing and Rehabilitation Center in Brockton.
In December 2003 - the month Donahue signed the agreement - staff noted that Donahue made “confused, depressed (and) delusional statements” and showed “delusional ideation,” according to the February 2009 Plymouth Superior Court order signed by Judge Charles J. Hely. Hely ruled that Donahue was “unable to act in a reasonable manner” on the arbitration contract and that Embassy House “had reason to know of this significantly impaired condition.”
On Feb. 9, a Superior Court medical tribunal cleared the case to go forward to trial. In Massachusetts, medical malpractice lawsuits must be heard by a tribunal before going to trial.
