CLARKSBURG – An assisted living facility is being accused of improperly restraining a mentally impaired woman and breaking a bone in her hand.

On Feb. 13, Brendan Donnellan, as legal guardian for Andria Donnellan, filed a lawsuit against United Summit Center in Harrison County Circuit Court. The lawsuit, which was recently removed to federal court, alleges USC did not implement a behavioral plan that prohibited the use of such a restraining maneuver.

The complaint says Andria is an incompetent adult and was receiving services in Brendan’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 says.

“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 plaintiff 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.

On Oct. 15, USC filed a motion to dismiss the lawsuit. It says the plaintiff’s attorney did not comply with pre-suit notice requirements of the Medical Professional Liability Act.

The memorandum in support of the motion says USC is a health care facility as defined by the state’s MPLA, which includes any “behavioral health care facility or comprehensive community mental health/mental retardation center.”

Thus, the negligence and battery claims should be dismissed because the plaintiff did not filed a notice of claim or certificate of merit at least 30 days before filing the complaint, as is required by the MPLA.

“Even if the allegations in the Complaint and Amended Complaint have been crafted in an attempt to avoid the application of the MPLA, the allegations, in effect, amount to torts committed by a health care provider within the context of rendering health care and, therefore, fall within the provisions of the MPLA,” the memorandum says.

The civil rights claim should be dismissed as it has not been alleged with sufficient specificity, the memorandum argues.

“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 is 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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