CLARKSBURG – An assisted living facility has reached a settlement in a lawsuit that accused one of its employees of improperly restraining a mentally impaired woman and breaking a bone in her hand.

On Oct. 24, the sides in Andria Donnellan’s lawsuit against United Summit Center in Clarksburg filed a status report in U.S. District Court for the Northern District of West Virginia that showed a settlement has been reached.

Andria’s co-plaintiff is Brenda Donnellan, her legal guardian. The plaintiffs were facing a motion to dismiss filed Oct. 15.

The motion to dismiss claimed the lawsuit, filed originally in February in Harrison County Circuit Court, contained allegations of violations of the Medical Professional Liability Act, and that the plaintiffs did not fulfill the mandatory pre-filing notice rules contained in the MPLA.

A similar motion to dismiss had been granted, without prejudice, in Harrison Circuit Court. The plaintiffs amended their complaint, but the defendant argued counts one and two still fell short.

“If Plaintiffs are permitted to proceed with this suit, without having had an expert review Andria Donnellan’s medical records, radiographic studies and the records concerning the events of Jan. 24, 2011, and to thereafter certify that there is a basis to believe that medical negligence occurred, USC will likely find itself defending just the kind of frivolous suit the MPLA was designed to prevent,” attorneys for USC wrote.

The lawsuit, which was removed to federal court in October, alleged USC did not implement a behavioral plan that prohibited the use of such a restraining maneuver as the one used on Andria.

The complaint says Andria is an incompetent adult and was receiving services in Brenda’s residence in Lewis County and on the USC premises in Clarksburg.

“On (Jan. 24, 2011), USC employees improperly restrained Andria using a physical maneuver that was prohibited by the behavioral plan which was supposed to be implemented in order to deal with such issues as aggression and restraint,” the complaint said.

“The behavioral plan had been approved by Andria’s Multidisciplinary Team, but had not been properly implemented by USC.

“In improperly restraining Andria, USC employees broke the metacarpal bone on Andria’s left hand.

“Had USC implemented and followed Andria’s behavioral plan, the maneuver used by USC personnel to control and subdue Andria – resulting in the broken hand – would not have been used and Andria would not have been injured.”

The original complaint makes a claim of negligence. It was filed by Morgantown attorney David Grunau.

On Oct. 1, the plaintiffs filed an amended complaint to include charges of battery and civil rights violations.

On Oct. 11, the suit was removed to U.S. District Court for the Northern District of West Virginia at Clarksburg because the civil rights claim is one of federal law.

The civil rights claim should be dismissed as it has not been alleged with sufficient specificity, the memorandum in support of the motion to dismiss argued.

“Although the allegations state Andria’s ‘civil rights’ were violated, there is no indication as to what part of the statute provides those rights, what those rights were, what obligation the statute imposes on the States, and how that obligation related to USC,” the memorandum says.

USC was represented by Dana M. Bowers and Christine S. Vaglienti of West Virginia United Health System.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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