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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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