Wrongful death case settled

Hospital pays $75K
for alleged fatal fall

By David Baker
Posted Friday, July 29, 2011

A lawsuit which alleges that an elderly and infirm resident of a nursing home who had been taken to the emergency room at Samaritan Hospital and then, after being left unattended, fell, breaking a hip and who died six days later has been settled.

According to the wrongful-death suit filed by John McCarty on behalf of his mother’s estate, Sally McCarty, 81, had dementia and was acting erratically and irrationally when she was transported by ambulance to the hospital from the Van Rensselaer Nursing home in North Greenbush for a mental health evaluation.

“Sally McCarty was not property treated at Samaritan Hospital Emergency Department, upon information and belief, in that she was left alone, unattended, unsupervised,” the suit says. “She was permitted to walk about the hospital without assistance and supervision and while doing so, fell and fractured her hip.”

McCarty’s health deteriorated, according the suit, and she died in Samaritan Hospital six days after the fall.

The suit alleges that in dealing with McCarty, staff ignored several of the hospital’s own protocols, including a ‘generic (high risk behavior, restraint management protocol),’ and a ‘mental health protocol.”

A document filed in the suit says that despite repeated requests, the hospital failed to provide a copy of its accident report on McCarty’s fall

The lawsuit was settled in March 2005 for $75,000.

The McCarty estate was represented by Denis R. Hurley of Conway & Kirby of Niskayuna. Samaritan Hospital’s lawyer was Karen Butler of Carter, Conboy, Case, Blackmore, Maloney & Laird in Albany.

A search of the archives of the Albany Times Union produced no indication the that lawsuit was reported by the newspaper.
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Lawyers get almost as much as
the claimant in hospital fall case

Of the $75,000 paid by Samaritan Hospital in the Sally McCarty wrongful-death case, less than one-third went to the deceased woman’s estate. Medical and nursing home liens, legal costs and lawyers’ fees took the rest.

The distribution, according to an affidavit filed in the case, was as follows:

Rensselaer Country Department of Social Services Medicaid program (toward services provided prior to the fall: $25,000.

Reimbursement to Medicare for medical care following the fall: $2,473

Legal costs (filing fees, stenographers for depositions, etc.: $2,677.

Attorneys’ fees - 30 percent of net recovery (total settlement minus legal expenses): $21,697.

Remainder paid to Sally McCarty’s estate: $23,152.

– David Baker

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