Josephine Ochoa v. State of Illinois

ORDER

BIRNBAUM, J. This matter comes before the Court on the complaint of JOSEPHINE OCHOA, as Guardian of the Estate of RALPH OCHOA, a disabled person and against STATE OF ILLINOIS, ILLINOIS DEPARTMENT OF HUMAN SERVICES, Respondent, alleging personal injury and seeking damages in excess of $50,000.00.

A hearing was held before Commissioner Elizabeth Rochford on June 28, 2006. The entire record together with Commissioner Rochford’s thorough and thoughtful recommendation is before the Court.

THE FACTS

[*321] On July 29, 2002, Claimant, Ralph Ochoa (hereinafter Ralph) was a 31 year-old resident at W.A. Howe Development Center (hereinafter Howe).

Ralph’s medical records indicate he suffers from profound development disabilities, blindness, spastic quadriplegia, bilateral hip and knee flexion contractures, scoliosis, hydrocephalous with shunt, and other medical challenges. He requires a wheel chair with assistance for mobility. Ralph’s speech and expressive language abilities are established at approximately 21-23 months.

At all relevant times, Ralph was a resident at the Howe Center.

Residents are assigned to and live at an institutional home facility and are transported to various locations for exercise and other activities.

When Ralph first came to Howe, he was not capable of participating in therapy, but he made significant progress. At the time of the subject incident, Ralph was participating in one to one physical therapy at the Adult Therapy Center for two-hour sessions, two times per day. He formed a rapport with some of the staff, smiling and laughing when they would interact with him.

The record reflects the fact that Ralph’s family support network is strong with his mother and other family members visiting and expressing concern about his well being. A Howe Center individualized support plan dated August 23, 2001 elaborates: “They (Ralph’s Family) bring him new clothes and items for his recreational use and they help him decorate his bedroom especially for the holidays. They also attend most parties which are held at Howe Center.

Ralph enjoys their visits, smiling, laughing and talking while they interact with him.”

On July 29, 2002 Ralph’s mother Josephine Ochoa received a call that Ralph was being treated in the hospital with a broken leg. The investigation that ensued revealed as follows: The night shift of July 28, 2002 to July 29, 2002 claimed that Ralph was in bed and slept calmly through the night. He was changed during the night after he wet himself, and went immediately back to sleep afterwards. There was no transfer out of his bed during the night and he was in bed at the time of the 7:00 a.m. shift change on July 29, 2002.

On July 29, 2002 at approximately 7:00 a.m. Ralph woke up, was dressed and fed with the assistance of mental health technician trainee, Cassandra Houston. Ms. Houston enlisted the assistance of Marlene Henley a group manager of Ralph’s building, to assist in what they claim was a two person lift to transfer Ralph to his wheelchair. Houston and Henley also claim the transfer was performed without incident.

Ralph was transported by Ms. Houston, to the ATC gym where he was first observed by ATC group manager, Danielle Richmond, who testified that Ralph appeared to be in pain with tears coming down his face. According to Richmond, Ralph appeared to not be his usual self.

Ralph’s therapist, Daniel Kerwin, a veteran Howe Center employee was called to examine Ralph. He testified that when he approached Ralph, he immediately noticed he was very agitated, soaked with sweat and very clammy.

[*322] Ralph was leaning forward and making verbalizations. Using the proper twoperson lift, Kerwin transferred Ralph to the mat for his therapy. Ralph seemed to calm down and appeared less distressed than upon arrival, but his discomfort persisted.

Mental Health technician Latara Watson made similar observations about Ralph. She noticed that he was sitting slung over his tray, making loud sounds and appearing to be in extreme pain.

When it became clear to Danielle Richmond that Ralph was in distress, ATC director Vivian Richards was notified, who in turn notified the medical staff. A nurse arrived, examined Ralph, and referred him for X-rays. The resident physician examined Ralph and the X-rays revealed the following: Deformity of the right femur due to a comminuted fracture involving the diaphysis of the right femur, with displacement of the fracture fragments. Adjacent soft tissue swelling noted.

Ralph was transferred to the University of Chicago Hospital for orthopedic care.

University of Chicago orthopedic, Dr. Terrence Peabody’s opinion as to the cause of the injury is as follows: Ralph sustained a long spiral fracture of the right femur for which he underwent operative treatment. The mechanism would be rotational. There is no way of knowing the exact cause; however it is likely that the right lower extremity is rotated with respect to the upper body. It is possible that his foot was in something and his body twisted away from it or in alternative, that the limb was rotated and the body fixed. It is not likely the result of a fall.

Dr. Peabody letter to W.A. Howe Development Center, August 27, 2002.

On October 10, 2002, following a complete investigation, Jeanne Watson, Director of Investigations concluded that the staff at Howe had not met the standard for proper care of the client for whom they are responsible. Her report stated as follows: This standard is not met as evidenced by: Based on observation, interview, record review, and incident investigation review that the facility failed to insure that all staff implement the two-man transfer protocol for one individual, R1. R1 sustained a fracture of the femur on 7/29/02.

THE LAW

The issue before the Court is whether Respondent is liable to Claimant for his injury. It is a well established rule of law that a state hospital or mental institution is not the insurer of a patient’s safety, although it must exercise reasonable care as the patient’s known condition may require. Oster vs. State, 32 Ill.Ct.Cl. 153, 158 (1978) and Karluski vs. Board of Trustees of the [*323] University of Illinois 25 Ill.Ct.Cl. 295 (1966). Further, for any Claimant to sustain a negligence claim, he must prove by a preponderance of the evidence that One, Respondent had a duty to Claimant; Two, Respondent breached that duty; Three, Respondent’s negligence was the proximate cause of Claimant’s injury; and Four, Claimant suffered damages. Woodering vs. State, 49 Ill.Ct.Cl. 31 (1997).

Respondent contends that Claimant has failed to sustain his burden of proof in establishing Respondent’s negligence and argues that his injury may have been self imposed. But the evidence does not support Respondent’s position. There is no evidence to support this claim. To the contrary, Ralph is unable to walk or stand, and has very limited ability to move on his own. Given his physical limitations, it is not reasonable to conclude that Ralph could have self imposed the injury as was described by orthopedic physician Dr. Peabody.

The overwhelming evidence including the statements of Respondent’s staff, the conclusions of the attending physician, and the investigation performed by Respondent leads this Court to conclude that Ralph’s injury resulted when attendants Houston and Henley transferred Ralph improperly and in violation of facility policy. In making the transfer, Houston and Henley violated the staff training program and specifically, facility training policy CBTA-405, for proper patient transfer. And then, in an exhibit of utter callousness Ms. Houston attempted to cover up the injury to Ralph. The evidence is that Houston and Henley broke Ralph’s leg, knew it, but that Houston transported him to the gym and left him to suffer alone covered by a blanket. It was the failure of these attendants to meet this standard that specifically resulted in the fracture to Ralph’s right femur.

DAMAGES

Claimant has sustained his burden of proof as to duty, negligence, and proximate cause. As to the issue of damages, Claimant contends Ralph sustained significant pain and suffering as a result of the injury. Ralph is unable to communicate verbally, but the pain he endures was evident through the expressions observed by the facility staff and his mother. The staff observed hollering, tears and extreme agitation. As a result of the injury, Ralph was required to undergo surgery. Ralph’s mother testified that he was uncharacteristically resistant to affection during the post surgical recovery period and frequently expressed pain and discomfort by crying and calling out.

Ralph’s recovery period extended for several months during which time he was restricted to bed rest, his movement was restricted and he was unable to participate in physical therapy. Ralph’s family is noted throughout the record as being loving and supportive. Ralph enjoyed these visits smiling, laughing and interacting with his family. As a result of Respondent’s negligence, Ralph lost his one and only simple pleasure.

Claimant asks for an amount in excess of $50,000.00 in the complaint.

In the bill of particulars and in his trial court brief they ask for $200,000.00.

[*324] Section 8 of the Court of Claims Act provides that the jurisdictional limit in a tort claim, other than certain cases involving a state owned and operated vehicle, is $100,000.00 per Claimant, 705 ILCS 505/8.

The Illinois Supreme Court has consistently found that there is no cause of action for loss of society and companionship for a non fatal injury.

Vitro vs. Michelcic, 209 Ill.2nd 76 806 N.E.2nd 632 (2004).

Here, the only Claimant eligible for recovery is Jospehine as Guardian of Ralph’s Estate and the maximum allowable recovery is $100,000.00.

Respondent argues that Claimant injury does not support a significant award, citing prior Court of Claims cases where there were small awards for broken legs. They also argue that Claimants “loss of normal life” should not be valued the same as someone who does not have Ralph’s physical and mental disabilities. We reject both arguments. Here, Claimants leg was broken by the staff who was entrusted with his care. That same staff abandoned him, allowing other staff members to discover him. He suffered greatly. A significant award is justified.

New Hampshire Governor, John Lynch was recently quoted on the issue of a State’s obligation to its most vulnerable citizens. He said: “We have a responsibility as a state to protect our most vulnerable citizens; our children, seniors, people with disabilities. That is our moral obligation. But there is an economic justification too - we all pay when the basic needs of our citizens are unmet.”

Here, we failed to protect one of our most vulnerable citizens and he was badly injured as a result.

IT IS HEREBY ORDERED THAT AN AWARD IN FAVOR OF Claimant is entered in the amount of $90,000.00.