August 2023:
The MLO Minute: “PART THREE: Injuries To Persons with Disabilities in Care Facilities And Schools – Overcoming The Obstacles” —
A Three-Part Series By Dennis McAndrews, Esq., Lesley Mehalick, J.D., LL.M., and Daniel Woody, Esq. —
In the first two segments of this topic, we discussed obtaining recovery for injuries in public/charter schools and publicly operated care facilities using particular federal statutes, and the means by which to prove “gross negligence” in private mental health treatment programs or facilities. In this edition, we will discuss obtaining recovery for injuries in private care facilities for individuals with intellectual disabilities by overcoming the heightened legal standard pertaining to those matters.
Pennsylvania enacted its Mental Health/Intellectual Disabilities Act in 1966 (“1966 Act”) which established a legal basis for various programs for individuals with intellectual disabilities and mental illness. However, in 1976, the Mental Health Procedures Act (“MHPA”) superseded the portion of the 1966 Act with respect to individuals with mental illness, but the 1966 Act remains the legal basis for the provision of care for individuals with intellectual disabilities in Pennsylvania.
One aspect of the 1966 Act is its immunity section, which provides that providers of services for persons with intellectual disabilities are only liable for injuries caused by “gross negligence or incompetence.” 50 P. S. § 4603. The standard is, of course, higher than simple negligence, which merely involves a failure to exercise due care which results in injury or harm to another. In order to establish “gross negligence” or “incompetence” the deviation from that duty of care must be more significant, and can cause difficulties of proof not found in other cases.
Our firm has had substantial success over the years in establishing gross negligence or incompetence where individuals with intellectual disabilities are injured or abused in facilities created for their care. We are able to overcome this evidentiary barrier of a heightened standard of proof by carefully reviewing the client records and Individualized Service Plans for the injured person with disabilities, and have frequently found that the injuries in question stem from inadequate levels of supervision, inadequate levels of staff training, or repeated neglect to fulfill the expressly stated requirements of the Individualized Service Plan. In some particularly troubling cases, the intellectually disabled person has been subject to abuse in the facility or in transportation from the facility, which may or may not have resulted in criminal charges. By carefully marshaling this evidence, we have met the heightened gross negligence standard in many cases and have recovered appropriate financial recovery for the injured person with disabilities.
If a loved one has been injured in a care facility, we welcome the opportunity to speak with you in our free consultation. All such cases are handled on a contingency basis without hourly charges to our clients. CLICK HERE TO CONTACT US or call any of our phone numbers listed on our website.
