A Douglas County judge is considering the future of a lawsuit filed against Brandon Woods at Alvamar alleging an 87-year-old resident was sexually assaulted at the retirement center.

“It’s our contention that this basically means that there is not really a valid petition on file, and the case should be dismissed in its entirety on that basis,” said James Nordstrom, an attorney for Brandon Woods.

Nordstrom made several legal arguments in a hearing Tuesday afternoon, mainly contending that family members under Kansas law don’t have legal grounds to sue Brandon Woods. But Bill Skepnek, an attorney representing the family of former Brandon Woods resident Jean Allen, alleged the plaintiffs have “direct evidence” that Brandon Woods staff members in October 2010 attempted to conceal from Allen’s family, police and medical personnel a claim that a nurse’s aide sexually assaulted her.

“We have their notes. What they were doing was they were lying,” Skepnek said. “We have this. It’s alleged, and we have the evidence to prove it.”

Skepnek said family members had grounds to sue Brandon Woods because the family members made a collective decision to take Allen to Brandon Woods, where she was in hospice care because she was nearly immobile.

“This is a case about why Jean Allen was abused,” Skepnek said. “Jean Allen was abused because Brandon Woods had fundamentally failed in its duty to care for people.”

The suit alleges Brandon Woods staff members were initially notified of the assault allegation by a family member of Allen’s roommate. Skepnek accuses staff members of destroying possible evidence when staff members bathed Allen the day before she was taken to the hospital for an examination.

But Nordstrom argued that the lawsuit didn’t specifically say that Brandon Woods was notified about the alleged assault by the roommate’s daughter before staff members gave Allen a bath. So staff members, he said, couldn’t have known they potentially were destroying evidence.

He also said the Allen family’s claims that an aide — who is not named in the suit — assaulted her appeared to be more in line with medical malpractice allegations instead of a broader lawsuit alleging Brandon Woods operators defrauded the Allen family while she was in their care.

“That’s a malpractice case,” he said, “pure and simple. Nothing more than that.”

Fairchild asked several questions during the hearing and said he would rule later on whether to allow it to proceed.

According to the suit, Allen’s family members moved her to another facility after the allegations surfaced, and she died weeks later.