49 Trial Lawyer • Fall 2023 implicitly know RCF staff can punish a resident (or limit a parent’s visitation) if a parent complains. They know placement is difficult and time-consuming, and re-placement even more so. Parents give up their “guardianship” rights when their child goes into a RCF. It is often up to DHS to remove a resident and while they have powers of immediate termination, it can still take months and months for a persistent parent to see any action taken. The reality in these cases is you may be looking at suing a facility while your resident client is still there. Some RCFs may preemptively terminate your resident’s placement in an effort to create a “problematic resident” defense, i.e., “we did nothing wrong; the resident was abusive and unmanageable.” This 30-day termination maneuver also threatens the re-placement process as DHS simply cannot facilitate an adequate transfer in that amount of time. For one client, in an exit evaluation interview, the RCF facility paraded the very uncomfortable, self-conscious resident client into the interview room stark naked with nothing but a thin blanket to cover himself. Proving your client’s losses Our vulnerable clients are often the most segregated and socially isolated. Many, like Brandon, would not be able to communicate or articulate the predatory conduct to others and would not have the means to end and redress that wrong. What the defense gets wrong is this false narrative that our clients with disabilities like Brandon’s lack the ability to make choices, determine for themselves what they need, and instinctually understand abuse and suffering. It again pits our clients as “other” and dehumanizes them in the same way the abuse and mistreatment at the RCF dehumanized them. In a case like Brandon’s, you must look into the past, as far back as you can, to get a sense of your client’s personality, characteristics and, in particular, his preferred methods of communication. This may include limited sign language, a communication board, grunts, gestures, etc. Talk to your client’s family. They learned the language of your client years ago. In these cases, your clients may have needed greater support services but they still had the right to actively participate in their daily lives and to communicate their wants, needs and boundaries. Often, whether because of trauma or the failure of RCF to understand your client’s communication needs, your client is left withdrawn, isolated and skittish, with increased behavioral outbursts. Their independence and autonomy was stolen from them. If your main method of communication was through a communication board you can no longer use, what is that worth? If your client could once toilet on his own with limited assistance but regresses back to diapers, what is the value of that humiliation? Proving these cases is very detail-oriented and requires comfort with nuance. In many ways, I think these cases ultimately come down to human dignity, that special value we possess as humans that has nothing to do with our race, gender, abilities, but something inherent and deserving in us all. If I could, my practice would handle these cases exclusively and I would dedicate my professional life to shutting these residential care facilities down and transforming the regulatory and statutory framework that prevents more of these cases from moving forward. Blair Townsend specializes in personal injury, wrongful death, medical malpractice and business litigation. She contributes to the OTLA Guardians at the Guardians Club level. She practices at The Townsend Law Firm LLC, 50 Pine St., Ste. 400, Portland, OR 97204. She can be reached at blair@btownsendlaw.com or 503-7151896.
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