Family of villa beating victim launches $9m suit
The family of James Acker, the senior attacked in his sleep and severely beaten by another resident at St. Joseph’s Villa, is suing the Dundas nursing home for $9 million, alleging his death was preventable.
Acker, 86, died of his injuries after being viciously attacked last year in late January by a resident with Alzheimer’s who wandered into his room about 2 a.m.
Acker was taken by ambulance to Hamilton General Hospital with head trauma and other severe injuries, but never recovered. He died in hospital two-anda-half months later.
His wife Diane, daughter Tammy Carbino and son James Robert Acker said St. Joseph’s Villa failed to give Acker “a safe and secure environment and protection from abuse,” despite its responsibility to provide a place to live with “dignity, security, safety and comfort.”
They say the facility failed to take proper steps to prevent or stop the attack and was “well aware the attacker had a prior history and propensity for violence and aggression toward other residents and staff.”
The allegations are part of a statement of claim filed against the Villa, St. Joseph Health System, and the Villa’s foundation in a Hamilton court on Friday.
St. Joseph’s public affairs director, Agnes Bongers, said the Health System, which owns St. Joseph’s Villa, just recently received the statement of claim, but is unable to respond further, out of respect for the legal process.
The allegations in the statement of claim have not been proven in court and statements of defence have not yet been filed.
Carbino said with the lawsuit, the family wants to send a loud message to nursing homes that they must protect their residents.
“It is their duty and obligation to keep them safe,” she said. “It is their primary duty.”
Carbino said no amount of money will bring back her father or “change the way he suffered,” but she believes it will give him, and others like him, a voice that says “they deserve better.”
Acker had dementia, but was high-functioning before the attack.
Carbino said she is haunted by what happened to her father and by the images of his badly beaten face and body.
She hopes the lawsuit will scare long-term care homes into realizing they need to take violent attacks seriously, she added.
The statement of claim asks the courts “to teach others that such conduct will not be tolerated,” by making an example of the Villa in ruling in favour of the family.
The lawsuit includes $3 million for negligence and breach of duty; and $3 million for Family Law Act violations, because there was “such an obvious disregard for Acker’s safety and protection.” The other $3 million includes $1 million for breach of fiduciary duty and $2 million for punitive damage.
The statement of claim also alleges the man who beat Acker was unattended, unsupervised and unmonitored. He entered Acker’s private room and attacked by “repeatedly striking, punching, and biting James on his face, head and body while he was in a helpless and defenceless state.”
It alleges Acker’s death was preventable had the Villa ensured its care met applicable standards.
The statement of claim includes at least 35 failures by the Villa that led to neglect and breach of duty, among other problems, including allegations of a lack of a zero-tolerance abuse policy, and no analysis of injuries that led to actions to prevent them in future.
And insufficient staffing levels and nighttime supervision.
The severe beating prompted an investigation by the Ministry of Health and Long-Term care, and a homicide investigation by Hamilton police.
The ministry cited the Villa for nine violations after finding it failed to protect its residents. Police laid no charges after finding that the attacker could not form the intent to knowingly carry out a criminal act.