Evicted — by his own class action lawyers

by Walter Olson on October 28, 2008

The Center for Public Representation, a Massachusetts “public interest law” group that specializes in disability-related lawsuits, filed a civil-rights class action in the name of 640 profoundly mentally disabled residents of nursing facilities demanding that the state Department of Mental Retardation move them into group homes, the better to be part of the “community”, as the catch-phrase has it. A judge agreed and ordered the transfer. Among the 640 patients was Eric Voss, who is severely disabled and has been living for seven years at a Groton pediatric nursing facility called Seven Hills. Now Eric’s parents, Frank and Barbara Voss, are fighting the order, saying that their son never had any choice about joining the action and that forcing him out would endanger the quality of his care and deprive him of surroundings and staff that have become like home. “U.S. Rep. Barney Frank, a Massachusetts Democrat, has filed legislation that requires parents and guardians to be notified about class-action suits, and to allow them to opt out.”

“Our children can’t speak for themselves, so we will fight for them,” Voss said. “If individuals like Eric are moved, they won’t live long. They shouldn’t have to give their lives for a lawsuit that has nothing to do with them.”

(Rita Savard, “‘We’re prepared to fight’”, Lowell Sun, Oct. 12; alternate version; Rolland v. Patrick settlement agreement, PDF; AvertRollandTragedy.org, advocacy site).

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10.30.08 at 12:08 am

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1 SPQR 10.28.08 at 11:45 am

Remind me again of Chemerinsky’s brilliant riposte to Jacobs …

2 Todd Rogers 10.28.08 at 12:01 pm

I’ve long held that by following the money-trail, one can find the true motives behind almost all endeavors – (this should not surprise many). In such cases, would someone kindly share how such public interest firms are compensated?

3 Rich 10.28.08 at 5:36 pm

What was it Thoreau said about a man intent to do him some good and the apprpriate response.

4 Rich 10.28.08 at 5:37 pm

*appropriate*

5 John Burgess 10.28.08 at 7:09 pm

I would think that anything dealing with groups of those suffering from mental defect in general would fail the ‘similarity of interests’ test, prima facie, and thus be ineligible for class action.

You might make a case for those with particular problems at particular levels of severity, but beyond that, no.

It’s not tidy and it’s probably not cheap, but it’s still the right way to handle each individual separately.

6 Geoff Hannam 10.29.08 at 6:22 am

I work in the Care Home industry in the UK, where we have a piece of legislation called the “Mental Capacity Act”. This protects the rights of the individual, appointing advocates for people unable to speak for themselves.

Really looks like American legislation needs amending to include something like this, as this lawsuit seems to show a callous disregard for the rights of an individual, especally those people who are most vulnerable.

Cynicism aside, imagining that money was no object for the CPR, they really need to re-evaluate their values. I can imagine little way that a class-action lawsuit can ever be described as in the interests of a severly mentally handicapped person. Not only will the possible benefits be lower (at least I imagine so), but the dignity of the person is not being upheld.

If only we did live in a world where the interests of others was put before ones own.

On a more general note, the US class action system seems to be severely flawed (albeit only using this site and other anecdotals for evidence). It seems to do little more than enrich lawyers at the expense of justice.

7 William Nuesslein 10.29.08 at 8:15 am

My friend’s daughter who was mildly retarded was a resident of a New York State institution. Her care was appropriate for her, and her care givers were wonderful. I was proud of my government with respect to her case.

I have trouble seeing doctors and state officials as adversaries of their patients and wards. Litigation is out of place.

8 OBQuiet 10.29.08 at 5:32 pm

Geoff Hannam wrote:

On a more general note, the US class action system seems to be severely flawed (albeit only using this site and other anecdotals for evidence). It seems to do little more than enrich lawyers at the expense of justice.

And the lawyers here respond: Yes. So what’s the flaw?

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