June 1, 2010

Newspaper: Boston Herald
By Jessica Fargen  link to article

An Easton woman who battled for years to hold a nursing home accountable for the disfigurement and death of her stepfather has been awarded a $400,000 jury verdict.

“I feel like I got some closure and some justice for him,” said Marlene Owens, 76, whose stepfather, John J. Donahue, a nursing home resident, died in 2005 at the age of 93.

The Donahue case was highlighted by the Herald in March in a two-day series examining quality of care at nursing homes.

Donahue died 46 days after suffering an eye injury at Embassy House nursing home in Brockton, which was owned by Kindred Healthcare.

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, according to a state investigation. Donahue’s eye was removed and he later died of sepsis, which occurs when the immune system overreacts to an infection.

The jury in Plymouth Superior Court in Brockton found negligence at Kindred was a substantial contributing factor in the eye injury and awarded the $400,000 plus interest for pain and suffering and disfigurement, attorneys said.

They did not find Kindred responsible for his death, said David Hoey, attorney for the Donahue estate. He called the $400,000 award high given Donahue’s age.

“By giving that kind of verdict, the jury is saying this type of conduct is not acceptable in our community, ‘Don’t do it,’ ” Hoey said.

Hoey fought another legal battle with Kindred to get the lawsuit to trial.

In February 2009, a judge invalidated an arbitration agreement that Donahue signed in 2003 when he was 91 and suffering delusions. The agreement prevented Donahue or his estate from suing if he was killed or injured at the nursing home.

Christopher Lavoie, a Boston attorney for Kindred, said the nursing home chain still asks residents to sign predispute arbitration agreements. It is voluntary, he said.

On the Donahue case verdict, he said, “It was an unfortunate accident that happened during a transfer.”

Kindred owns more than 40 nursing homes in the state. The company no longer owns Embassy House.