Lena Clay v. State of Illinois

OPINION

STORINO, J. Claimant, Lena Clay, as the Independent Administrator of the Estate of Tertius Amaal Yelvington, a deceased inmate of the Illinois Department of Corrections (“Respondent”), filed a Complaint on September 8, 2014, alleging Respondent’s negligence in the wrongful death of Mr.

Yelvington due to a fatal asthma attack suffered by Mr. Yelvington on September 10, 2013.

Specifically, Claimant brings a cause of action under both the Illinois Survivors Act and Illinois Wrongful Death Act and alleges that Respondent’s employees negligently failed to recognize and attend to Mr. Yelvington’s medical needs while he was suffering from an asthma attack and failed to provide Mr. Yelvington with appropriate and timely emergency medical care. Claimant seeks damages in excess of $50,000.00. This cause is before this Court for a final ruling following a hearing which was held before the assigned Commissioner in this matter on September 13, 2016.

FACTS

Tertius Amaal Yelvington was an inmate within the Du Quoin Impact Incarceration Program, which is a satellite facility of the Illinois Department of Corrections’ Pickneyville Correctional Center. On February 8, 2013, Mr. Yelvington was committed to the Illinois Department of Corrections for a drug offense. After a screening process, Mr. Yelvington was admitted by court order, as a participant in the Du Quoin Impact Incarceration Program (“Du Quoin IIP”). The Du Quoin IIP is a short term, paramilitary style rehabilitation program which functions as a boot camp, whereby eligible, non-violent offenders approved by the sentencing court and accepted by the Department of Corrections, have their sentences reduced to time served between 120-180 active days, upon successful completion of the program requirements.

On September 10, 2013, three days prior to his release date, Mr. Yelvington suffered an acute asthma attack at the Du Quoin facility and died. Mr. Yelvington was 25 years of age.

As a young child, Mr. Yelvington had been diagnosed with asthma. Throughout his life and into adulthood, Mr. Yelvington used an inhaler to treat his condition and was capable of participating in physical activities, including sports such as football, baseball and basketball. Mr.

Yelvington would occasionally require emergency medical attention at a hospital when his inhaler did not provide the appropriate relief, although his medical records show that his last hospital visit occurred in 2010. During the screening process for entry into the Du Quoin IIP, it [*182] was noted that Mr. Yelvington suffered from asthma but he still met the criteria for the boot camp. Throughout the duration of his time at the Du Quoin IIP, Mr. Yelvington participated in physical training regularly. While at the Du Quoin facility, with the exception of the instance on September 10, 2013, Mr. Yelvington never needed special medical attention for asthma related issues, although he used his inhaler on a regular basis.

On September 10, 2013, prior to the asthma attack that resulted in his death, Mr.

Yelvington participated in his usual daily activities that included physical training. He used his inhaler during his daily activities, but such use was not out of the ordinary. By about 7:30 p.m., Mr. Yelvington began to use his inhaler more excessively and was noticed by other inmates as not being able to breathe well. At approximately 7:45 p.m., Mr. Yelvington and another inmate were caught sitting on a bunk bed, in violation of the institution’s rules, and were required by Correctional Sergeant Regina Barnes to report to Dorm Control to stand “Nose and Toes” (facing the wall with nose and toes touching the wall). After a few minutes of standing “Nose and Toes” to the wall, the inmates began looking around and Correctional Officer Jaelene Bryan (“C/O Bryan”) escalated the discipline to physical training exercises. At some point during the extra physical training, Mr. Yelvington fell to his knees, used his inhaler and told C/O Bryan that he could not breathe. When Mr. Yelvington used his inhaler, he held it approximately six inches from his mouth. C/O Bryan commented something to the effect that he was not using his inhaler correctly and asked him if he was “BS’ing” her. C/O Bryan yelled at Mr. Yelvington to keep going and to continue physical training, despite the fact that Mr. Yelvington fell to his knees several more times and was laboring to breathe. Several accounts of inmates in the area indicate that C/O Bryan told Mr. Yelvington that she did not believe him and that he was faking. The duration of the disciplinary physical training exceeded 15 minutes in violation of the Du Quoin IIP’s procedures for such discipline. In addition, C/O Bryan failed to document the fact that she had instituted disciplinary physical training as required by the Du Quoin IIP procedures.

Mr. Yelvington returned back to his dorm after 8:30 p.m., sweating profusely and gasping for air. He attempted to get relief by using his inhaler about ten or more times, but to no avail. Mr. Yelvington asked another inmate if he had an inhaler that he could use, but the other inmate did not have an inhaler. After getting a drink of water, Mr. Yelvington appeared to settle down and during the 9:00 p.m. headcount, Mr. Yelvington did not tell any officer that he was having trouble breathing.

At around 9:30 p.m., Mr. Yelvington approached Correctional Officer Charlie Bratcher (“C/O Bratcher”), the Dorm Officer and indicated that he was having an asthma attack and could not breathe. By other inmate accounts, Mr. Yelvington appeared to be barely breathing or struggling to breathe. Mr. Yelvington asked C/O Bratcher for the nurse and was told by C/O Bratcher that the nurse wasn’t there. Mr. Yelvington asked for a nurse a couple more times and C/O Bratcher told him to sit down. C/O Brathcer told Mr. Yelvington that he would have to go to Pickneyville for medical assistance and asked him if he wanted to go. Mr. Yelvington responded in the affirmative. C/O Bratcher told Mr. Yelvington that he had two choices, to sit in the chair and catch his breath, or to go tell the Lieutenant that he wanted to go to Pickneyville. C/O Bratcher observed Mr. Yelvington continue to struggle to breathe. Instead of calling for assistance, C/O Bratcher dismissed Mr. Yelvington and instructed him to report to Lieutenant Ronald Williams (“Lt. Williams”), the shift commander, to get the help he needed. Mr.

[*183] Yelvington asked if C/O Bratcher could get the Lieutenant himself. Lt. Williams was located in the Dorm Control area, which was approximately 15 feet away from Mr. Yelvington. In addition to requiring Mr. Yelvington to self-report his condition to Lt. Williams, C/O Bratcher made Mr.

Yelvington carry his own chair to the Dorm Control area to speak to the Lieutenant, all the while knowing Mr. Yelvington was in distress.

Upon his arrival to the Dorm Control area at about 9:40 p.m., Mr. Yelvington approached Lt. Williams and Correctional Officer Samuel Burns (“C/O Burns”). Mr. Yelvington displayed obvious signs of distress while breathing. Lt. Williams instructed Mr. Yelvington to use his inhaler, sit down and try to calm down and control his breathing. C/O Burns took over the conversation and asked Mr. Yelvington if he had used his inhaler, which he was holding, and Mr.

Yelvington shook his head in the affirmative and told him that he had used it several times. C/O Burns asked Mr. Yelvington if “several times” meant 15-20 times. Because he was not getting enough air, Mr. Yelvington responded nonverbally again by shaking his head in the affirmative.

C/O Burns instructed Mr. Yelvington to calm down and sit in the chair. C/O Burns told Mr.

Yelvington to try to take deep breaths and turned a fan toward him. About 30 seconds later, Mr.

Yelvington fell unconscious and was caught by C/O Burns before collapsing from the chair. Lt.

Williams immediately called 911 and notified the control center to get a van and unlock the entrance gate. Another inmate assisted C/O Burns in carrying Mr. Yelvington to the administration building where they could either retrieve the van to transport Mr. Yelvington to the hospital or meet the ambulance. While in the administration building, Mr. Yelvington began gasping for air. C/O Burns performed rescue breaths on Mr. Yelvington with a one-way breather.

C/O Burns and the assisting inmate then transported Mr. Yelvington into the van. As Mr.

Yelvington was loaded into the van, his bowels released which indicated to C/O Burns that he was close to death. Just as the van was leaving the grounds, the ambulance arrived at approximately 9:50 p.m. The paramedics took over and transported Mr. Yelvington to the Marshall Browning Hospital, where they arrived at approximately 10:10 p.m. Mr. Yelvington was pronounced dead at 10:25 p.m.

The autopsy report confirmed that Mr. Yelvington died of sudden death occurring in bronchial asthma and classified the manner of death as natural. Mr. Yelvington was survived by his parents, siblings, and a son, Tristen Amaal Yelvington.

Both C/O Bryan and C/O Bratcher were disciplined by the Illinois Department of Corrections for their conduct related to their interaction with Mr. Yelvington. Specifically, C/O Bryan was disciplined for unprofessional behavior, for failing to stop the physical training when Mr. Yelvington indicated he was in distress and for failing to report that she had escalated the “Nose and Toes” discipline to physical training. C/O Bratcher was disciplined for unprofessional conduct and for failing to keep Mr. Yelvington safe.1 At the hearing, Respondent objected to the introduction of the disciplinary memorandums prepared by the Illinois Department of Corrections regarding C/O Bryan and C/O Bratcher. However the disciplinary memorandums related to C/O Bryan and C/O Bratcher should have been contained in the Departmental Report submitted by Respondent. (740 Ill. Adm. Code 790.140). Accordingly, these memorandums shall be considered as part of the Departmental Report, which is prima facie evidence in this matter. (Id.). As such, Respondent’s objection is overruled.

[*184] LEGAL ANALYSIS

The State owes a duty of ordinary and reasonable care for an inmate’s health and safety, and failure to provide such ordinary and reasonable care constitutes negligence. Koss v. State, 51 Ill. Ct. Cl. 98, 111 (1999). Failure to provide timely medical attention has been held to constitute negligence. Bynum v. State, 44 Ill. Ct. Cl. 1, 6 (1992)(citing Davidson v. State, 35 Ill. Ct. Cl. 825 (1983)). The burden of proof is on the Claimant to warrant the imposition of liability against Respondent.

Although the State is not an insurer of an inmate’s safety, it is without question that the State and its agencies, including the Du Quoin IIP facility, owe their inmates the duty of protection and reasonable care. Hefti v. State, 49 Ill. Ct. Cl. 63, 79-80 (1997). These duties of care must take account of the inmate’s known condition, and may include safeguarding an inmate from dangers due to physical incapacities that are known to the State, or that by the exercise of reasonable care ought to be known by the State. Id. In any suit predicated on negligence, the elements of recovery are the breach of a duty of care, consequential injury resulting proximately from the breach, and damages. Id.

The record in this case establishes that, by a preponderance of the evidence, Respondent failed to provide Mr. Yelvington with reasonable care. While undergoing extra physical training at the direction of C/O Bryan, Mr. Yelvington displayed obvious signs of distress with respect to his breathing. It is also undisputed that Mr. Yelvington attempted to use his inhaler in the presence of C/O Bryan to remedy his troubled breathing. As such, it was clearly inappropriate for C/O Bryan to continue to exercise Mr. Yelvington further. Doing so only escalated the asthma symptoms exhibited by Mr. Yelvington. In addition, the record indicates that C/O Bryan did not believe Mr. Yelvington’s pleas for assistance and also exercised Mr. Yelvington in excess of the maximum 15 minutes permitted for disciplinary physical training.

The record also establishes that C/O Bratcher violated his duty of reasonable care toward Mr. Yelvington. Despite the fact that it was obvious Mr. Yelvington was suffering from an asthma attack and could not breathe, C/O Bratcher did not pay adequate or proper attention to Mr. Yelvington’s requests for medical assistance. Instead of calling his supervisor for immediate assistance, as mandated by the facility’s policies, C/O Bratcher dismissed Mr. Yelvington and instructed him to report to the Lieutenant to get the help he needed. C/O Bratcher persisted in his refusal to care for Mr. Yelvington when Mr. Yelvington asked C/O Bratcher to get the Lieutenant himself, knowing Mr. Yelvington was in a state of troubled breathing. C/O Bratcher further required Mr. Yelvington to walk another 15 feet to speak to the Lieutenant while carrying his own chair.

The conduct of Correctional Officers Bryan and Bratcher establishes a violation of the standard of reasonable care owed to Mr. Yelvington and implicates liability on Respondent.

Respondent contends that the Claimant must produce expert medical testimony to be successful in a claim of medical or professional negligence. That is the general rule for reviewing technical competence of medical professionals. Hefti v. State, 49 Ill. Ct. Cl. 63, 82-83 (1997). However, this case does not involve a professional malpractice claim. In addition, in cases where the negligence is so readily apparent or the treatment is of such a common occurrence that a layman [*185] would have no difficulty appraising it, expert testimony is not critical. Hefti, 49 Ill. Ct. Cl. 63, 82-83(citing Dimitrijevic v. Chicago Wesley Memorial Hospital, 92 Ill. App. 2d 251, 236 N.E.2d 309 (1968)). In this case, there is more than adequate basis in the record for us to find clear and obvious negligence, as we do. A reasonable person would undoubtedly recognize an asthmatic should not be forced to exercise when he is complaining of trouble breathing and is on his knees, struggling to breathe. Furthermore, a reasonable person would not refuse to assist someone having an asthma attack or require them to walk further while carrying a chair to get medical attention.

Finally, this Court finds that Claimant has also established Respondent’s negligence was a proximate cause of Mr. Yelvington’s death. As the coroner’s report provides, without dispute, the cause of Mr. Yelvington’s death was “sudden death occurring in bronchial asthma.”

Respondent argues that Mr. Yelvington should be held contributorily negligent for his death claiming that his own negligence was more than 50% of the proximate cause of the injury, thus barring damages. However, Respondent’s arguments fail to appreciate Mr. Yelvington’s limitations as an inmate in Respondent’s care. He could not obtain an inhaler, call an ambulance, or seek medical attention at his own will. Rather, these decisions were to be made by Respondent’s agents alone. Mr. Yelvington did all that he could to prevent his death by asking medical attention at each moment the need presented itself to him. For these reasons, Mr.

Yelvington was not contributorily negligent for his death.

DAMAGES

Under the Illinois Survival Act, damages are recoverable for the pain and suffering incurred by Mr. Yelvington prior to his death and expenses incurred by his estate. (755 ILCS 5/27-6). Under the Illinois Wrongful Death Act, damages recoverable consist of the value of the pecuniary injuries suffered by the decedent’s next of kin (740 ILCS 180/1, 180/2). Pecuniary damages include benefits of a pecuniary value, such as money, goods, and services. When there are surviving children, it also includes the instruction, moral training, and superintendence of education that the children would have received from the deceased parent. Elliott v. Willis, 92 Ill. 2d 530, 442 N.E.2d 163, 65 Ill. Dec. 852 (1982); Bullard v. Barnes, 102 Ill. 2d 505, 468 N.E.2d 1228, 82 Ill. Dec. 448 (1984). Where the decedent leaves direct lineal kin, such as a child, there is a presumption that they have suffered some substantial pecuniary loss by reason of the death.

Ferraro v. Augustine, 45 Ill.App.2d 295, 196 N.E.2d 16 (1st Dist. 1964); Hall v. Gillins, 13 Ill. 2d 26, 147 N.E.2d 352 (1958); Dukeman v. Cleveland, C. C. & St. L. Ry., 237 Ill. 104, 86 N.E. 712 (1908); Dodson v. Richter, 34 Ill.App.2d 22, 180 N.E.2d 505 (3rd Dist. 1962).

In this case, Mr. Yelvington was survived by his parents, siblings, and a child. Pursuant to section 2-1(b) of the Illinois Probate Act of 1975 (Probate Act) (755 ILCS 5/2-1(b) (West 2008)), when a decedent leaves no surviving spouse but is survived by a descendant, “the entire estate” is distributed to the decedent’s descendants per stirpes. Under the laws of intestate succession, Mr. Yelvington’s son is entitled to Mr. Yelvington’s estate to the exclusion of Mr.

Yelvington’s parents. Forthenberry v. Franciscan Sisters Health Care Corp, 156 Ill. App. 3d 634, 637 (1987); Rallo v. Crossroads Clinic, Inc., 206 Ill. App. 3d 676, 683 (1990).

Consequently, Mr. Yelvington’s son, Tristen Amaal Yelvington, is his next of kin within the [*186] meaning of the Wrongful Death Act, and he alone is entitled to a share of the proceeds under that statute.

CONCLUSION

After reviewing this record, and considering wrongful death awards by this and other Illinois courts, we conclude that the maximum award of $100,000.00 should be granted to the decedent’s estate. The award is allocated as follows:

• $30,000.00 in damages under the Illinois Survival Act for Mr. Yelvington’s own pain and suffering and for medical, hospital and funeral expenses incurred by his estate; and • $70,000.00 in damages for the wrongful death of Mr. Yelvington under the Illinois Wrongful Death Act.