After almost a decade in a semiconscious state, Donald J. Herbert woke up lucid on a Saturday afternoon in April 2005 and was talking and catching up with family and friends – for nearly 16 hours that first day and also at times the next two weeks.
But when the injured Buffalo firefighter slept at night, he thrashed around the bed in the nursing home where he had lived since a roof caved in on him while fighting a fire.
“It was like he was reliving the fire, like he was underneath the debris that crushed him,” Simon F. Manka, his uncle, recalled in a deposition. “I would have to physically restrain him. I would have to grab him, and I would have to tell him, ‘Donny, Donny! It’s OK.’ Eventually, he would calm back down again.”
For two weeks after the awakening, Manka or another family member spent the night with Herbert at Father Baker Manor in Orchard Park to prevent him from hurting himself.
Exhausted, his uncle decided not to stay with him in the early-morning hours of May 16, 2005 – it would be the first overnight without someone from the family in Herbert’s room.
Shortly after midnight, Herbert fell out of bed, injuring his head.
Herbert was taken to Erie County Medical Center, where it took nine stitches to close the wound on his forehead. Three and a half hours later, an ambulance returned him to the nursing home.
At that time, with the family trying to protect its privacy amid frenzied national attention, it was not clear how long or how well Herbert and his loved ones were able to communicate. His fall was described as a minor setback.
But what happened to Herbert after the awakening at Father Baker Manor and ECMC is now at the center of a State Supreme Court lawsuit his wife, Linda, has filed against the facilities and several doctors.
Her lawsuit for unspecified damages claims their negligence contributed to or caused her 44-year-old husband’s death on Feb. 21, 2006.
In court papers, those closest to Herbert describe how he slid back into a minimally conscious state after the injury.
The doctors being sued offer differing opinions.
Dr. David P. Hughes, the attending physician that night at ECMC, said he told Herbert’s wife that he wanted to admit Herbert for observation, because a head scan showed he suffered a hemorrhage within his skull but outside of his brain tissue. Hughes said Herbert was discharged against his medical advice, at Mrs. Herbert’s request.
And Dr. Elizabeth M. Love, a physician at the nursing home and also among those being sued, denied any connection between Herbert’s head injury and his regression and eventual death.
The cocktail of different drugs that aroused him on that April Saturday afternoon simply did not have a lasting effect, Love said.
Whoever prevails in court, this post-script to the stirring story of Herbert’s awakening provides a clearer picture of the family’s joy over what seemed like a miracle but also the frustration and heartbreak his loved ones lived through.
The news of Herbert’s awakening was jolting.
His uncle was on the Thruway headed downtown when he took a call alerting him.
Herbert – a father of four who had spent his days in a wheelchair, blind and on a feeding tube after he was hurt fighting the December 1995 fire – had stunned the Father Baker Manor staff when he unexpectedly asked for his wife.
Manka said he had visited Herbert weekly at the nursing home for years. He remembered the incredible day in April 2005 when the two embraced amid crying and laughter.
“Me and my wife walk into the room,” Manka said in a deposition. “Donny’s sitting in the wheelchair, facing away from me at the window. There’s a lot of people in there, and I go, ‘Donny, how are you?’ And he goes, ‘Uncle Simon, how are you?’ I said, ‘Great, Don. Great.’ ”
For nearly 16 hours Herbert talked to his wife and sons and friends – recognizing their voices and joking, smiling, hugging and crying as he caught up with them.
“Talking like unbelievable,” Manka recalled in the deposition. “People were coming in and out, right and left, talking to Donny.”
Other good days followed for Herbert.
On May 7, his 44th birthday, seven days after his awakening, he sat in his wheelchair outside the nursing home throwing a football to his sons.
“It sticks in my mind,” Linda Herbert said in her deposition, recounting how their oldest son, Don Jr., then 23, had just returned from traveling outside the country.
“He was playing football with the boys, throwing the ball,” she said of her husband. “It was Don’s birthday, and he was … verbalizing that day with him.”
Linda Herbert remembers it as a “very good day.”
“We had a party. A lot of family,” she said. “My son had just come back. So it was the first time he was communicating with his dad.”
The nights, though, turned anxious, Manka said.
Manka slept on a recliner next to Herbert’s bed so he could prevent Herbert from falling.
Even for the former policeman, it was not easy restraining Herbert. Manka said he had to restrain him at least once a night, sometimes twice.
“It took all my strength to get him back down in bed,” Manka recalled.
The grueling routine was wearing on Manka. He said the topic of restraints was brought up at meetings with nursing home staff.
“We were looking for some relief from the nursing home to come up with some solution,” he said.
“If they had worked with us, I wouldn’t have had to be there every night,” he said.
The family asked about restraints, even a helmet, anything to protect Herbert, according to the lawsuit.
“Their answer was pretty much always the same,” Manka said. “We can’t do that. It’s against the law.”
Father Baker Manor is run by the Catholic Health System.
“Due to patient privacy laws, we cannot comment specifically on the care and treatment of individual patients,” Catholic Health said in a statement. “We do, however, have established policies and procedures in place that adhere to state guidelines and industry standards to ensure the welfare and safety of all our long-term care residents, striving to provide the highest quality of life.”
Love, a physician with whom the nursing home contracted, said in an affidavit she was not told the family expressed concern about Herbert falling.
“If there had been concern regarding Mr. Herbert’s overall condition, including an increase in his risk of falling, the nursing staff would have brought it to my attention, as they were best positioned to note such changes,” Love said.
Herbert was transferred to her unit on May 10.
“No member of the Herbert family advised me that they believed Mr. Herbert to be at risk of increased falls when he was transferred,” Love said.
Daily shift notes written by nurses, contained in the case file, indicate Herbert tried to get out of bed several times around 3:30 a.m. on May 3 but do not indicate any other attempts after his awakening.
Manka said Herbert talked on May 15. And by then, Herbert had slept several nights without incident, he said.
So that night, for the first time since the awakening, no one from the family spent the night with him.
“I didn’t want to stay there every night,” Manka said. “I loved Donny. I would do anything for him. But I was hoping that the facility would work with me so that we did not have to have a family member there 24-7.”
Manka said he advised the nursing home staff.
“I told them, ‘I’m not going to be here. Make sure the alarm is on. Make sure the bed is against the wall. Make sure the mattress is out, that kind of stuff,’ ” he said.
Only hours into his first night alone, Herbert fell out of bed. A nurse found him at 12:35 a.m. lying on his stomach on the floor, bleeding from his forehead. Manka said it looked like Herbert hit his head on a table when he flung himself out of bed.
Herbert’s wife called Manka, asking him to go check on him.
When he arrived, he saw his unconscious nephew on a gurney being readied to be taken to ECMC.
Stitches and scans at ECMC
Herbert arrived at the hospital at 1:58 a.m. Dr. Hughes, in his deposition, said he fast-tracked Herbert’s care on that busy night in the emergency department, quickly putting him in a room when anybody else might have waited.
Hughes told the chief resident to check on Herbert immediately, saying, “We have a firefighter here, go see him.”
Linda Herbert and Manka recall waiting for the results of the head and spinal scans.
Both said in depositions they were told the test results came back OK, so Herbert could be discharged. At 5:50 a.m., Herbert was taken back to Father Baker Manor.
“We were told everything was fine,” Manka said. “I would not have left and Linda would not have left and discharged him had we known anything was wrong.”
“It was a bad cut, and it looked bad with the stitching and the big gauze covering it,” Linda Herbert recalled. “And I was thankful at the time this doctor had told me everything was clear.
“So as bad as it looked, I was under the impression that it was a laceration on the outside, stitched up and in a week it would come out and that was the end of it,” she said.
A nurse at Father Baker Manor also told lawyers that she spoke with someone from ECMC – she did not remember the person’s name – who said the results of the scans were OK.
However, Father Baker Manor’s patient records for Herbert included paperwork from his ECMC visit showing the results of the head scan and follow-up care instructions. ECMC’s lawyer has said this shows the hospital did not fail to communicate with other health care providers.
Hughes, the attending physician in ECMC’s emergency department, gives a different account of Herbert’s discharge than Linda Herbert.
Hughes said he informed Herbert’s wife that the head scan showed an extra-axial hemorrhage adjacent to the parietal lobe on the right side.
Hughes said he recommended to her that Herbert be admitted to ECMC for further observation and so that a neurosurgeon could check on him.
“I recall speaking with his wife about the results of his studies and what the options were to her, including the risks, and I recall her wanting to take him back to the nursing home against my recommendation,” Hughes said in a deposition.
Hughes said in his deposition that his conversation with her was not documented. He could not recall if he gave her a form to sign noting Herbert’s discharge was against medical advice.
“My recollection is that she told me about a rehab program that she had struggled to get him into out of state,” he said.
She was concerned that hospitalizing him at ECMC would jeopardize his admission into the rehabilitation center, Hughes said.
“Per Mrs. Herbert’s request, her husband was transferred back to the nursing home,” Hughes said in an affidavit.
While Herbert was Hughes’ patient, there was no medical intervention which would have improved his condition, Hughes added. Herbert was not a candidate for surgery. If Herbert had been admitted to ECMC, his outcome would not have been any different, Hughes said.
Manka said Herbert’s condition started to diminish.
Herbert could no longer throw a football. He stopped talking.
“And it just kept going down from there,” Manka said.
“He could still move around, thumbs up a little bit, that kind of thing,” Manka said. “He just couldn’t talk and it just kept getting worse and worse up to the point in Chicago.”
No progress in Chicago
Manka helped put Herbert on a medical plane to Chicago two weeks after the head injury. Herbert headed for the renowned Rehabilitation Institute of Chicago, where he spent the summer.
But he showed no improvement.
“I did not see him getting better,” said Linda Herbert, who stayed with him in Chicago.
Some days he seemed worse, she said.
“They told me he was obviously not in the condition he was when they observed his medical records,” she said. “It was like looking at the records of somebody different.”
He had lost much of his ability to communicate.
“He looked like a stroke patient, like he wanted to talk to you,” said Manka, who visited him in Chicago. “He’d give you a thumbs up or something, but he was starting to diminish at that point.”
After Herbert’s death, Dr. Jamil Ahmed – the physician who prescribed the drug cocktail that helped bring Herbert into a more cognitive state, told The Buffalo News that the bleeding in Herbert’s brain was likely worsened by the air pressure from the flight. Ahmed is not one of the doctors named in the lawsuit.
Doctors in Chicago reviewed scans taken of Herbert before and after his May 16 fall.
“It was felt that perhaps the … hemorrhage that he sustained at the outside institution had contributed to the patient decreasing in vocalization” and thinking, according to the facility’s discharge summary.
By the end of the summer, the Chicago doctors told Linda Herbert her husband was not at a level at which they could help him, she said.
Back to New York
St. Camillus Health and Rehabilitation Center in Syracuse, which offered subacute and brain injury rehabilitation programs, had an opening.
So Herbert was flown back to New York. He arrived at the Syracuse facility in September 2005 and stayed a couple of months.
His condition did not improve there, Linda Herbert said, although his discharge papers indicate “he did make some gains.”
“I would say he was pretty much slipping back,” she said in her deposition. “It was a gradual decrease, and he was not as responsive. He was sleeping more. He wasn’t doing well in rehabs.”
He could not speak in sentences. He no longer uttered simple words.
“He was nodding or thumbs up, but it was very minimal,” she said.
By November, Herbert was moved to Ridge View Manor Nursing Home in South Buffalo.
“St. Camillus wasn’t doing anything more than he could receive in the Buffalo area, and after five months of being separated pretty much from my house, my kids, it was time to get him back to the Buffalo area and start square one again,” Linda Herbert said in her deposition.
“I wanted him in the area where he could visit with the kids again and the family,” she said. “We needed a break. We all did.”
Her husband, meanwhile, “was pretty much just back to slouched over in his wheelchair,” she said.
On Feb. 19, 2006, a Sunday, Herbert was taken to Mercy Hospital with pneumonia. He was running a high fever. Doctors treated Herbert with antibiotics, but he did not respond to the treatment. He died the following Tuesday.
His cause of death was listed as complications related to brain damage caused by absence of oxygen sustained during the roof collapse. His death was an accident, the chief medical examiner said.
Linda Herbert filed her lawsuit in 2007.
“This family lost their husband and father twice,” said attorney Brian A. Goldstein of Cellino & Barnes, who said he is handling the case pro bono. “Donny Herbert deserved better treatment than he received.”
Images taken of Herbert’s brain on May 13, just days before his fall, showed he had “a good chance of recovery of meaningful neurologic function, but the amount is uncertain,” according to the University Nuclear Medicine report.
A doctor retained by Cellino & Barnes submitted an affidavit saying doctors at Father Baker Manor should have been more aware of Herbert’s condition and put in place safeguards to protect him from falling. And ECMC should have admitted him after his fall, according to the lawsuit.
ECMC and several doctors asked State Supreme Court Justice James H. Dillon for a summary judgment dismissing the lawsuit against them.
Dillon ruled that the credibility and weight of the conflicting medical expert opinions should be determined in a trial.
A lawyer representing Love submitted an affidavit on her behalf.
“The medical evidence in this case does not support plaintiff’s position that Mr. Herbert’s fall on May 16, 2005 caused injuries which ultimately led to the decline and death of Mr. Herbert,” said attorney Mark Spitler of Gibson, McAskill & Crosby, who represents Love and Geriatric Associates.
Dr. Eileen Reilly, another doctor named in the lawsuit, evaluated Herbert two times between March 15 and May 6 at Father Baker Manor.
“I did not think he was at any increased risk,” she said in a deposition when asked about Herbert’s risk for falling between May 2 and May 6.
Dr. Fredric M. Hirsh, who submitted an affidavit on Reilly’s behalf, said the records and testimony in the case show her care for him was “in all respects proper.”
“Mr. Herbert had a change in his mental status – he was more alert – but his physical status did not change,” Hirsh said. “He still required the same assistance and remained the same level of risk for falls.”
“Mr. Herbert’s apparent increased cognition was short lived,” Love said in her affidavit.
The day after the awakening, he slept through the better part of the day and was difficult to arouse, she said.
“It is my opinion, to a reasonable degree of medical certainty, that Mr. Herbert regressed because he had a severely damaged and atrophied brain from his injury in December 1995,” she said. “It is also my opinion that the neurological stimulants used on Mr. Herbert were not capable of producing a sustained improvement in cognition.”