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Archive for Thursday, July 12, 2012

3 claims dismissed in elder abuse suit

July 12, 2012

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A Douglas County judge has dismissed three of eight claims in a lawsuit filed against Brandon Woods at Alvamar alleging an 87-year-old resident was sexually assaulted and staff members acted to conceal it.

Attorneys for both sides said Chief District Judge Robert Fairchild’s recent ruling was positive, although they acknowledged it was only one step in the legal process.

The family of Jean Allen filed the suit in January alleging a nursing aide, who is not named in the suit, assaulted Allen in October 2010 when she was in hospice care and that staff members at the retirement center attempted to conceal it from her family members, medical personnel and police. Her family moved Allen to a different facility after the alleged incident, and she died in November 2010.

“The Allen family is pleased that they will have an opportunity to present their claims to the court,” Lawrence attorney Bill Skepnek said. “They are very serious, significant claims.”

Officials at Brandon Woods, 1501 Inverness Drive, have denied the suit’s claims and said Allen was protected while in their care.

“Our client is pleased that the motion to dismiss, which is one of the first stages in the litigation process, resulted in the dismissal of certain causes of action,” said Jim Nordstrom, an attorney with Fisher Patterson Sayler and Smith, LLC of Overland Park, representing Brandon Woods. “Our client is fully prepared to vigorously contest both the factual and legal allegations before the court as we move ahead.”

Fairchild dismissed:

• An allegation Brandon Woods violated the Kansas Consumer Protection Act because he found Allen was considered the “consumer” in the case and not her family members, so the claim abated with her death.

• A claim Brandon Woods breached its fiduciary duty with Allen’s family after her husband signed a contract for her care. The judge found the claims were covered in a separate negligence claim in the suit.

• A battery tort claim against Brandon Woods about the alleged assault because “vicarious liability does not extend to an act of an employee motivated by a purpose personal to the employee.”

Fairchild did allow five other claims to go forward. They are allegations of fraud, civil conspiracy, negligence, infliction of mental or emotional distress and a claim Brandon Woods employees destroyed possible evidence when they gave Allen a bath the day before she was taken to the hospital for an examination. No one was ever criminally charged in connection with the sexual assault allegation.

Attorneys for Brandon Woods are expected to soon file a response to the remaining five claims in the suit, and then the case would likely proceed with depositions and discovery.

Comments

Tammy Copp-Barta 2 years, 7 months ago

I need to update the information as it's been a while - however, the history of the event doesn't change .. but the same thing happened to my grandmother in a nursing home here in Lawrence in 1995. It's extremely frustrating when our loved ones are abused and the courts side with the nursing homes. Most of these people can't communicate about the events and we become their voice. While I don't know about all the items in this case, I do know what happened in my grandmothers. Here is the webpage:

           http://www.sunflower.com/~tbarta/nannie.html

We need to stop elder abuse NOW! You can talk to someone at Kansas Advocates for Better Care here in Lawrence if you suspect abuse or have questions.

Jayhawk1958 2 years, 7 months ago

Yes everything is the government's fault. Lets get rid of government altogether and let everyone be their own government even if he creates mass confusion.

ctutgo 2 years, 7 months ago

If only B woods had come to the family and said..."this horrible thing happened, we have reported it, and the man will be punnished." That did not happen. They tried to cover it up and got caught (thanks to LMH!) The B woods social worker and DON in this case committed a crime!

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