Friday October 5, 2012

KEITH WHITCOMB JR.

Staff Writer

BENNINGTON -- The son of a nursing home resident who died in 2010 after she wandered into another resident’s room and was knocked down has filed suit against the care facility.

Died two days later

According to Bennington police, on Nov. 24, 2010, Dorothy Papero, 84, a dementia patient at the Crescent Manor Nursing Home went into the room of Rodolpho Davalos, then 58. Police said staff heard Davalos shouting and went in to find Papero on the floor, having suffered severe injuries.

Police said they believed Davalos made contact with Papero and fell on top of her as they both went to the ground. Papero died two days later of her injuries at Southwestern Vermont Medical Center.

The lawsuit, filed in Bennington Superior Court Civil Division on July 31 by attorney Thomas E. McCormick, of the law firm McCormick, Fitzpatrick, Kasper & Burchard, on behalf of Papero’s son and executor of her estate, Michael Papero, alleges that when Dorothy Papero entered Davalos’ room he shouted "Get out," and knocked her to the floor, causing "laceration to her head, fractured right clavicle, multiple left rib fractures, a left sided pneumothorax (a collapsed lung), and acute fracture of her L2 vertebrae."

According to the complaint, Papero was admitted to the home on Feb. 5, 2010, and was known to be frail and at risk of wandering about the facility. It also alleges that Davalos suffers from schizophrenia and paranoia, and had previously threatened people as well as told them to stay out of his room.

The suit claims negligence on the part of Crescent Manor, saying the staff was "under continuing duty to exercise reasonable care in its treatment, care, and supervision of Mrs. Papero in light of her known conditions."

The complaint alleges the home had a duty to protect Papero from third party threats including those posed by other residents. It also claims a breach of contract, saying the home had an agreement with Papero to provide that type of care.

Michael Papero, through his attorney, also accuses the facility of medical malpractice. "From and after Mrs. Papero’s admission to Crescent Manor, Defendant negligently failed and refused to properly insulate and prevent Mrs. Papero from wandering into other Crescent Manor residents’ rooms, including those residents who posed a threat of physical harm to Mrs. Papero," wrote McCormick. The complaint asks the court award damages in an amount to be determined.

On Sept. 28, 2012, CSR Corp doing business as Crescent Manor Care Centers, filed a response through attorney Barbara R. Blackman, of the Burlington law firm Lynn, Lynn & Blackman. In it she denies the claims made by McCormick.

In 2010 the police report was submitted to the Bennington County State’s Attorney’s Office, which declined to prosecute Davalos because of competency issues. State’s Attorney Erica Marthage said Davalos had been found incompetent to stand trial on criminal matters in 2003.

In January 2011 the Department of Disabilities, Aging, and Independent Living announced it had issued the home a "deficiency" over the incident involving Papero and Davalos. The deficiency required the home to create and implement a "corrective action plan" to prevent future incidents.

Neither McCormick nor Blackman returned calls seeking comment.