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Healthier home care

The case of Ward, et al. v. Trusted Health Resources, Inc., et al. had already been turned down by a number of lawyers and was about to expire under the Massachusetts statute of limitations when it reached Timothy Lynch, AB’82, a partner with the Boston firm Robins, Kaplan, Miller & Ciresi. Lynch took over the case in 1994 and eventually obtained a $26.5-million verdict, Massachusetts’ largest jury verdict of 1998 and the second-largest jury verdict in a negligent hiring and wrongful death case in state history. More importantly, says Lynch, the verdict encouraged home-care agencies across the U.S. to radically rethink the way they hire employees.

“The verdict got national attention,” he says. “Members of health-care agency boards of directors come up to me all the time to say they reviewed their policies because of the verdict.”

A 1985 graduate of Boston University School of Law, Lynch has tried cases ranging from insurance litigation to medical malpractice. In Ward v. Trusted Health Resources, Lynch sued the home-care agency on behalf of the parents of John W. Ward. In 1991, only eight out of 200 Massachusetts home-care agencies screened potential employees for criminal records, and Trusted Health Resources did not check the background of Jesse Rogers when it hired the six-time felon to care for Ward, a 32-year-old quadriplegic with cerebral palsy, and his 77-year-old grandmother, Alba Pellegrini. On September 10, 1991, a few weeks after he was removed from the assignment for failing to show up for work consistently, Rogers murdered Ward and his grandmother. In 1994, Rogers was sentenced to life in prison, but the Ward family felt the agency should also be held responsible.

With members of his own family depending on home-care services, Lynch felt the case resonate on a personal note and was outraged at the lack of culpability within the industry.

“Background checks should have been common sense,” he says. “Still, the other side didn’t settle. They thought they were going to win.”

The defense argued that the standard of care in the industry was not to conduct criminal-background checks, while Lynch demonstrated that home-service agencies like telephone and electric companies and UPS had been performing such checks since 1982.

The defense also argued that because Rogers’ prior offenses had been theft-related, a crime such as murder was unforeseeable. But, as Lynch countered, “by not doing a criminal check, even convicted rapists and murderers could be home-health aides.” The jury agreed, and Trusted Health Resources was ordered to pay Ward’s parents $8.5 million in compensatory damages and $18 million in punitive damages. The company declared bankruptcy one day later. The case is now winding its way through bankruptcy court.

Last year, Massachusetts enacted a statute requiring criminal-background checks in all home-care agencies, and other states will soon follow suit. “The only way you’ll get a change in society is to have a law passed, or to obtain a verdict,” says Lynch. “If it’s going to affect their pocket books, they’ll pay attention.”—M.D.B.

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