In June 2008, Brandon Woods nursing home, in Dartmouth MA, accepted an elderly patient (LL) with previous diagnosis of dementia, delusions, anxiety disorder, depression and paranoia. Brandon Woods, owned and operated by the Essex Group, who under Elder Services name operates various facilities throughout Massachusetts, chose to accept this patient, because she paid at a higher rate. This delusional patient was roomed with an one-hundred years young woman (BB) who was a long term resident of the facility and who shared that room with her husband until his passing few years earlier.
Over next year resident LL exhibited intermittent episodes of paranoia and confusion, as well as jealousy and anger at her roommate however Brandon Woods did not change the rooming arrangement.
On the evening of September 23, 2009, while preparing the residents for bed, LL got out of bed, screamed, was verbally abusive and hit nursing home staff member. She was observed “really going crazy,” was “really swinging away,” and later on “complaining about having to share her space.” Nursing home staff told LL to stop “working herself into a frenzy” but did not separate the two roommates, or assigned anyone to keep a closer watch on them.
Next morning, a different staff member found resident BB in bed, dead, with a plastic bag on her head and the covers pulled entirely up. The psychotic roommate LL was few feet away in the bed, pretending to be sleeping.
The case was placed in litigation against the nursing home, the management company, the owners, the various staff members, and the roommate (who also faced criminal charges, but was determined by the Court unfit to stand trial).
As the case was finally set for jury trial in 2016, Defendants moved for summary judgment to keep the issue of punitive damages away from the jury, but the motion was denied. As jury selection was underway, the case settled for $500,000.00 with the only conditions being the payment of the $500,000.00 for the dismissal of all the claims against the nursing home defendants.
Because the jury was already selected, when the Trial Court was informed of the settlement, the Judge would not entertain a nisi dismissal and instead ordered the parties to either try the case now, or dismiss it outright. Thus, in light of the settlement agreement the case was dismissed and Plaintiff made a demand for the tender of the settlement sum.
The defendants’ insurer (HealthCap RRG) did not tender the agreed upon amount and instead, weeks later, had their retained defense counsel (Morrison Mahoney) insist on execution of a release, which contained numerous additional (and onerous) terms that were never discussed, agreed to, nor compensated for.
Thus Plaintiff served on the defendants’ insurer chapter 93A and 176D demand for the immediate payment of the settlement sum and interest on it from the date the case was dismissed (the performance of Plaintiff’s part of the settlement agreement) which at that time amounted to approximately two thousand dollars.
The defendants’ insurer (HealthCap RRG) upon receipt of the chapter 93A demand immediately tendered the $500,000.00 but did not pay the interest that accrued due to the delay in making the payment. Few weeks later defendants’ counsel (Morrison Mahoney) responded conceding that in light of the dismissal there was no need for the release and that none of the extra terms that were included in the release were necessary or had to be agreed to, but denied any wrong doing.
In light of the insurer’s and the defense attorneys refusal to accept responsibility for their wrongdoing, the case was placed in suit for the chapter 93A violations – to recover the lost interest which by the time the $500,000.00 was finally tendered amounted to just over three thousand dollars – and fees and costs.
Once served with the new complaint the insurer moved to dismiss but when the motion was finally heard on the merits, it was denied. In order to prevent the costs from escalating, Plaintiff made a demand to settle for $10,000.00, which encompassed the interest on the loss of use and the approximate fees and costs to date. The insurer HealthCap RRG did not respond and instead moved to have the Plaintiff’s counsel disqualified to avoid having to respond to discovery requests. However, that motion was also denied and the insurer finally had to respond to the initial written discovery requests.
From the documents produced it was evident that the insurer could easily pay the settlement amount within a day and thus there was no reason to require long periods for the delivery of funds. It was further discovered that the defendant insurer knew that it had no basis for asking for the additional terms, such as confidentiality, indemnification, or to have the claims against itself released in the underlying case.
While noticing first set of depositions to be taken, Plaintiff made a new demand on HealthCap RRG of $25,000.00, which amounted to double the interest lost and all the fees and costs to date. HealthCap RRG accepted the demand and the case settled. It appears that HealthCap RRG has learned its lesson as no onerous or additional terms were included in their proposed release.