6:20 PM EDT, October 24, 2011
I wanted to shout out, sitting in the dignified, ornate chambers of the state Supreme Court Monday morning, as a string of lawyers debated what should be a basic right.
If somebody you have hired absolutely ruins your life — shouldn't you be able to sue them?
And yet, the Supreme Court is being asked to grant immunity to lawyers and conservators appointed by the probate court, no matter what devastation they create.
The court Monday began considering this fundamental question because of the abuse that Daniel Gross, an elderly New York man, suffered during 2005 and 2006 at the hands of a Waterbury probate court after he became sick while visiting his daughter.
The long-running Gross case has become a battleground for probate court, Connecticut's separate judicial system that handles wills, estates, adoptions, name changes — but also very delicate and controversial questions such as whether an elderly or sick person can live independently.
After he was hospitalized and his children fought over his care, Gross was conserved by probate court in Waterbury, which meant all his rights were taken away. A lawyer, Jonathan Newman, was appointed to advocate for him. A conservator, Kathleen Donovan, was appointed to represent him.
Newman failed to object to the conservatorship, despite knowing Gross' opposition. Donovan made sure Gross was placed in a locked ward of a local nursing home for 10 months.
Remember that for these two people representing Gross wasn't some act of mercy. They were hired and charged the old man for their work — the same way other lawyers and conservators do when they are appointed by a probate judge. That's how the system works, for better or worse.
Donovan and Newman (supported by the state's probate judges, by the way) are looking for special treatment for the lawyers and conservators who make a living off the courts. We all know that if a physician seriously injures a patient, that person can sue. Yet in this case, the Supreme Court is being asked to protect the people who are appointed to work for the elderly and frail — even if they royally screw up.
Gross finally got out of his imprisonment in 2006 when a Superior Court judge ruled that probate court had no jurisdiction over the 86-year-old New York man.
Before his death in 2007, Gross and his daughter sued and the U.S. 2nd Circuit Court of Appeals, while agreeing that Waterbury Probate Judge Thomas Brunnock deserves immunity, referred a key question to the Connecticut Supreme Court: Should lawyers and conservators also be granted immunity from lawsuits?
"What you are really suggesting is immunity from malpractice,'' Justice Ian McClachlan said at one point to an attorney for Gross's court-appointed lawyer during Monday's arguments.
Unbelievably, that's precisely what lawyers for Newman and Donovan want.
A lawyer for Gross, Sally Zanger, reminded the justices that "people lose their freedom" when a conservator is appointed. "We really need to be concerned about frail and elderly people who are conserved,'' Zanger said.
Richard Roberts, a lawyer for Donovan, argued that a conservator "is but an agent of the court,'' merely carrying out the court's wishes. "You shouldn't have to look over your shoulder when you are making these judgment calls."
These judgment calls left Gross, a man who lived independently in his own home on Long Island, locked in a Waterbury nursing home for nearly a year.
These judgment calls meant that even when Gross fled home to New York at one point, his conservator pulled him out of a Long Island hospital and brought him back to Connecticut.
These judgment calls can destroy someone's life.
Attorneys for Donovan and Newman say it will be nearly impossible to find people willing to become court-appointed conservators or lawyers if people are allowed to sue. This is doubtful, since lawyers, like physicians, have malpractice insurance. Among the thousands of conservators who are appointed every year in Connecticut, only a relative handful end up in lawsuits.
"We are not talking about the system grinding to a halt if is conservators are not immune,'' Zanger told the justices Monday.
The real issue is fairness and whether old folks and sick people deserve the right to fight back when they are abused by people who are making money off them.
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