cE2 d? - Arkansas House Of Representatives
Transcription
cE2 d? - Arkansas House Of Representatives
________ B2 P$eaae BEFORE TH print In ink or type COMMISSION STATE CLAIMS Stale of Alk2nsas Of the ci Mr. o Mrs Do Nøt Write oM, ‘-‘ [I..r.-,,-1 ,,.‘.,-.. (ii These S,ites 110698_CC C1.ueNo ‘ ‘ r,.L . L)eFg.d 944- (Y> Ammo(Ck$ 1,000,000.00 [AM ENDED ATTACHED] Stat. of Arkmoxa.s Respondent SiD DHS/Deveiopmental Disabilities Services Wrongful COMPLAINT & Death, Suffering Negligence, Pai etc ahese cd (Nee,,) (&eRJ’DkN,,.) repr...o..dhy’ (&S.a) a (Z. 04o) t4 ,r]”- H — (fl.yuo.e h,ma No.) t’ 1’’ i ‘‘ (Lop L,iti ,,, . “1 . 44,,—— — , — ( mad No.) (Cgy) (Sr.o) (Zq Codr) (Pbmao No) (Fox No.) •iIi,’.iHL’ “ Mh.4oyy..esofI_.do.,k, LiP ‘cnyj “ - -S ‘ — :t.__ -—-- — - Michael Allen Fornell, age 25, choked to death at the Booneville Human Development Center (BHDC(. Specifically, on May 23, 2010, Michael was allowed to choke to death on cheese and bologna in the kitchen at BHDC. This was in spite of the fact that he was known to have an “obsession especially mUon with food.” and “a history of food grabbing and choking.” He was supposed to have “all foods chopped” according to his dietary plan and was supposed to be “monitored at all meals and snacks for choking precautions” Because of all these known risks, the staff was required to provide one-to-one supervision for Michael to keep him safe, On the day in question, Michael was able to get from his room to the kitchen unseen by staff and unlock the kitchen door without a key. This defect in the kitchen door lock had been previously known by staff and facility, but was never corrected. Moreover, just a week earlier, on May 17, it was reiterated that Michael was to be “one-on-one with the recommendation that the staff be very vigilant at all times” because he was found to be choking on crackers. Fortunately, on that date a Heimlich rnaneuvei was performed to save his life. For all of this, the facility was cited with an Immediate Jeopardy tag for system wide as well as individual staff deficiencies with at least one of (Continued on page 2.) dam eta A.pm oat hr. mIW,maea, o.Jw.th1kqojmaa .amthr (i)RaIda)mbmaapea daomaywdutaoaao. oI(l,arthm4? “hi’ r ‘.‘ins,-,. Pich F-sri r.e t-,9 .. ‘.1 r t S (Day) (Mmit) (YO, No) mad th Oeak D-r’ Ys ,Jr,”.— (Ycar) , ,i.’, r t th— “..i., aa? wupa.dlhamma: (2) Ha. .aythrdpaim areap.mrma ma ‘ (Dmortat) trer wa 7 “ttli’-nt (ram ar (Name) madihdtk,endaa,othar.o(,aa.Sttlowa. H RID. & Na.) _.rf.o ma.nmama mad .&hr , (Z Code) (St..) (ehy) :wdwrnopi.dma__U__‘ 11th UNDERSIGtthD eWe, ma ..Ih be or ehe b WOMar w*th the nWtaes and tbge eat loath -U (PrInt CInimaanURepmeniath’c Name) the ebese cE2 that be or the vor’ betSeoma d? (Signature o(Qeian.at/Rapre.enlathe) 94reath) 0y) (Year) ltE The Law Offices Of DARREN O’QUINN rue Explanation of Complaint Cont. Page 2 the aides being reported for Adult Maltreatment/Neglect and being terminated, It took Michael about 67 minutes to choke to death. According to records, by the time Michael was found he was “unresponsive had no pulse and blood pressure was not recordable [and] appeared cyanotic per staff members” A choking death is a most unpleasant was to die, with a period of approximately 2 ... ... minutes of extreme distres5, the simulation of which has even been used as a method of torture. Liability, causation, and damages will be undisputed, with only the value of Michael’s life being in dispute The Special Administratrix brings this claim for the benefit of Michael Allen Fornell and his estate due to the negligent supervision, care, and treatment of BHDC and its employees and agents and for all damages allowable under AMI (Civil) 2216, including Michael Allen Fornell’s loss of life, reasonable value of funeral expenses, conscious pain and suffering, and medical expenses, but not for any damages suffered by the beneficiaries of Michael Allen Fornell. Please review attached exhibits: Exhibit Exhibit Exhibit Exhibit Exhibit A: Copy of the DHS investigation into Michael’s death B: Copy of the BHDC investigation into Michael’s death C: Copy of Michael’s Death Certificate D: Copy of the Order Appointing Special Administratrix E: Copy of the Letter of Administration Plaza West Building Telephone 501-975-2442 * 415 North Mckinley Street, Suite 1000 Facsimile 501-975-2443 • Little Rock, Arkansas 72205 Toll Free 1-800.455-0581 • www.DarrenOQuinn.com ___________ ARKANSAS STArE CLAIMS COMMISSION PkaaepñntInmkortyp 1 i/ j RECEIVED BEFORE THE STATE CLAIMS COMMISSION Of the Stale of Arkansas OM6 O Ms OMiss DoNetWrThtmSps .‘leula Wht C R6cs, f the tilate of di Spect Ao,uitsattix, 1lael Suet Fotoe), — t.tmNo Date,od D.joj — -—— fimd State fA anas, Rcpondent FIRST AMENDED Oeile Marie khode’ a C 0 M P LA I N T 2iei 6 Ausori .t, .rtz Ia 1 the Estate of Hrehsel Riles Foretli, — —— ire rsuti R.F I) & No s A,ssrrs,i261 N, roe 14rkorrlay ite 1006 - (z aid No.) (Lai Caanot. d Little Root —---— - 122 Arkr,a f U.m) Our— 10-2442 ——-----—-—-- ——--—-----——— —-- 9 0—11-; 021 —-----——--— — (Zqt Code (Ste) (Cay) ARDH(BoorvrileHumsnOeve1oonent Month, day, 1059, roreCrrJr.. feeler (Z, ode (D.ye,oc Pb No.) (Sa) II i1-1’ti (Ftrraie No) (Fax No.) Cuter) 6 soonesille Moran Dese I open it Certet aid pIaeeotko4dot —. ExplanatIon-’ 1. CLA1IIANT INCORPORATES NY REFERENCE, ORIGINAL COMPLAiNT FILED 2. CLAIMANT FILES FUSS PURSUANT TO ARK. CFJ. P. lU(c; P. .ME IN THIS MA’S OEM. AMFNOMENT SHE STATUTORY WRONGFUL DEATH FOR TIlE SOLL 1-URPIJIE Oc ADDllJ BEUFFICSARIES OF MICHAEL ALIEN hUh CLfuIriir Oh rND Nb ON BEHALO- OF FORNFIL ESTATE. 3 IN ViEW OF TUE FOREGOiNG, WRONGFUL DEATH THE ARKANSAS WRONGFUL DEATH SUFFERING RESULTING FROM THE AS CLAiMANT Al SO BRINGS S1A’SUTE, EMOTIONS, CODE ANN. ARK. SUCH AS PROVIDED BY AMI ln—62-l(r2, S GRIEF AlL) LOSS OF THEIR CHILU/BROTHER IN SUCH A HORRIBlY DEPAIR, tilL SET 106TH Iii THE IILUAL Für’ AOEOCIATED LIT,) TRAGIC hUb SUDDLN FA,3HION, 2216 AND OTHER APPLICABLE LAWS. THEREFORE, IN ADDITION TO CDMPLAINT, CLAIMANT ONE RELIEF PREVIOUSLY RIQUESTLO REQUESTS TIlE ecember 28, ., D 7 2010 iN ONE ORIGINAL ABOVE DAMAGES, gqu1a, .ojith: i,1 ) Hodannbi pimodw aiy aaadaztn -L’ithnaf’ aid aionthefol Yea INIa ACTION STATUTORY BLNEF1CEARIL, OF’ MiCHAEL ALLEN FORIJEI L AS 7 ; DM5 Office of Chief Counsel Rich Rosen, (YNo) A settlement dtthegainwastüai as made, bUt the parties could not agree to amoUnts. 0.00 S (Name) aidthnttheintorethaiai8dlo..,: wuprdtbna: (2) Hai aiy thailp&oni (&r N A onpo.-6 an ad ailtila claim? RED. & No> A (Print Clalmant/Repreaentath’e Name) SWORN TO and subscribed ;, onamnanri arkcai Codc) ,(Z 4 N/A TUE UNDERSIGNED itnta, tan o.th that ha or ahe h tmIar wIth the maum and thbaga that they are true. 14. Darren 0 QUinn No (Ssc) (Ciy) aaao,ntai - — (>SE7 ’ __L 0 I before me at above eoaipl.t. at Faith ha ( ad lhnhe or abe sadly bellasna / L—’ — (Signature of C’IalmanhfReprnlsontatlve) I , 1 I Qr-../ I I. 4— ‘a—. (SEAL) 4pfly SHRUM Mcan.a*. Pulaski County Nobly Public . Comml 12365421 My Comminbon Expires Mat 31, 2018 SF1- R7/99 h) (Day) (Ymer) ___________ ______________________ __ ARKANSAS STATE CLAIMS COMMISSION NON vcLE PROPERTY DAMAGEIPERSONAL INJURY INCIDENT REPORT FORM SECTION 1 CLAIMANT ADDRESS______________________ ‘ & STATE DATE OF INCIDENT:__________________ ZIP CODE_______ TIME__________________________ Give a brief description of incident, showing how incident happened, exact loss and extent of damage to property and/or injury to person: MS 1 — 11 .. (If personal injury claim only, move on to Section N) SECTION U Has this property been repaired? Yes ( ) No () If repairs have been made, give the following information: Amount Have you paid for the repairs? Yes ( ) No () NOTE: Attach a copy of repair bill. $_____________________ ___ If repairs have not been made, list three estimates below and attach copies of each of them. NAME ADDRESS AMOUNT 1 $_________ _ 2. 3. SECTION III Was property covered by Insurance? yes, what is the deductible? $ Yes ( ) No If NAME OF INSURANCE CARRIER ADDRESS SECTION IV Is injured covered by medical insurance? Yes If yes, what is the deductible? $ NAME OF INSURANCE CARRIER ( ) No (X) N ADDRESS N_A SECTION V If incident was investigated by the police or by some other agency, give name and title of officer/person making the investigation:The Deve I oprnenr Arkcisas D.nartvent of Hurr,an Ser’i.ces and hoonvi11e Hurn Center SECTION VI The undersigned states on oath that he/she is familiar with the matters an thin s set forth in the above statement, and that he/she verily believes that they are true. f\, Signature of Claimant L tjz”. worn to and subscribed before me at n this - 7 * L Lday f year My Commission Expires L )1 7/ ‘ i. naturWofNotaly Public - __________ __________ __________ __________ __________ __ ARKAN8A DEPAR1T4ENTOF HEALTh ‘dILal Rcuds CR11PCATEOF DEATh • ‘XtA’4VLi’iM NAMF 5p$AOA MIMI Id 2 ‘AX I. (‘c(Mq*) ‘4Ichae1 Alimfl Porneli. IC’l*L SECi:TY NO. 5 401 am - N .AIE ( S LAIE11SGN ‘?IlW Na. t. 10, *.APT.NO . • . 1984 QET 3 V., . . . . . ZNN . . . • W.NTli Ic,2JmcIW Ti. Inp.Nim U .EE4F 124. v e Nmar eF C. 0 Nl•. Logan ‘1T?7l7 ‘NC MAIL1NS NLXFT$ (iMmaamft.d le 1r. . 0 CMAM _,,_,, wElir 0 0 1 N4IIIAAOE FM4 OIa4 EMA. ,Cai Bateev le Atkaneas 725 1 a c’.. -cr LOCAl an I 11 LIP COCS Boonevi].].e 4 .a aw, ., , I IN. CITY *S TO’M t er CITY LST5? Zv,. I’ThFWflWi A ,irib.: ,Aam.q Im... I (1 m LmamI40Ny 6.rl : TM. L4YCS%MP TO IC lie Uam’a’.’ evelo ment Center. . I 7z92i Ii SIIWMNO EPOTJ%’S NAME S.at a ‘‘“ . •1 . a mafIM’Il’ II . IS EANeTA TAPJ.AT.llMl’ LI.ATh. ci a’.mM ci ci IN.wMd.bi • ci 0 AL’ ‘11: IF 4TN ccc SCI OnAmal .NM ci ii. • Mmd Ti . Fort Wayne, IN RooneviilN3 • E!ENaIIIJL I F”I.ACE $ am aic - raaq) , Lo • . IJ(W!4 SNM,I cwm f,MA.NIA .•..•• a... . •. AU’l’ ‘ . •• I’Ll . F 2454r . -. . 7. ics€ a e lb iz1.• aN. m .Mrwav Obstruction .__. 391 II MI’CECAL Bl4MINR C€ CONOIaFR CONTACTED? U UIENCaI.,M-4am &iaImii6ThE jMM. DONQTN.WmpCm I.W’U Md Ua,7NaCMMa. , a.Vis ,,aa woT AllAW , ea,.’ (EMM PRNOuNcNeAmFTiI’) cus. Jim T r’’’ . .• II 251 Dr;oavidson.Edmond .I.u: 2S’*Rl L as k I. . . •I1 — APvNI1MATE IN .EVAL. —— . , . _n_____ .. - LI.:1IIZ4L• . - . . drq.d4CJJT : - . . : e.NLM4MAr.LEl”U ..aN.iaO am aman’4RT I - • - •- . . SWIL E - I . . . ci 2ThNE4UJWC. a ci ‘4a.’,C. Neaeim4c”si’ ci ci P b7aEi ci AJi’ ci NMp.gJCM’ ’ 2EC Aid.. . . . . oone’iiIle, -. . 2 TNJ!RV ATA(UE’ ci lea . AX. . Subt hoked on food . EbII.i,fla,IE . . . I a .• . I-’ . WAcar ci ci rreci ‘11I I 2. AMSAN AIITOP’IY OI4MO? !!‘f’E ONO 211 WE AU 1ON4138 AVAN.AMS TOCOUPLETS TCAEO”CEATN? ONa . . . CF’l - . . MANI4ATI -. aN . - ••. DOIN(U a •• II’ . .. . •. . p . -.. TRAN.ORTACtFN :NJ..RY. aPEOFY a . . pa..n,., a Do.. . . . CA PhIn -.lb . ,.JN4,ed. aNrdngLC.rJSrl FNaicam-TaS’. C .MITa,mAaNI..Em. MdpCe. laNd’. WVa’.lfl”E ce.r-oe. b N iad’n aamwramddHMIflIaE a Efl.IM OcCUid C AN .d.Ie..rdDIaC. ml Ad’ N SN Cd’SCIIEI .‘dnA”U miiid. a Ca-MU- (MAN baa eraw.aamd’afl, EMA. Mad, ..r.d .;SN.n.. d, a-i dad’. waNd’.. E,.MCi(4I .,dnMfli’ CbA Ta . i..... &‘IV ‘.am: NnA aconmN ma NW. awieIlIIidW.d ’WEli%Ego(ate Medical bGNAT.RE 25, 2!0 -. a . a p. . . . . iJ . . - . Ii 0 ol . •. NEANOCEMU Adam Craig,.M.D __,p, . 55dP.3IlIC a, rtaP’4 . 3Natural Resource5.Dr Littie Rock, AR 72205 Pb. . 25 LICENSE I E-4586 . - 51Nj 7I’ . V. 1SF EXHl8 OF p fit SEAL A• •1 •,. i,.. •-• .• ctTueI A. . — y . . . :• . • • ‘,• pr’--vI N ‘-“ • tTe Reaslrar 0 — WARNING: REPPODUOTION OF THIS 0OUME4T EHDER IT VOID AND NvALID. DO NOT ACEPr UiLE5S MB0SSED SEAL CF THE ARKANSAS DEPARMH1 OF HEALTh 5 “RES cr. 1 IS ILLGAi...TO ALTER CI COuNThiiFIr h!S £OCUME’U. 2169 811 I . . . . . . • LJ W: ine Law Offices O DARREN O’QUINN PILL May 11, 2010 Exhibit C I, M. Darren O’Quinn, hereby certify that the attached Exhibit C is a true and correct color copy of the copy of the death certificate of Michael Allen Fornell contained in our firm for this case. cc—;, cr) “‘ M. Darren O’Quinn Law Offices of Darren O’Quinn, PLLC Plaza West Building 415 N. McKinley, Suite 1000 Little Rock, AR 72205 (501) 975-2442 telephone (501) 975-2443 facsimile Plaza West Building 415 North McKinley Street, Suite 1000 • Little Rock, Arkansas 72205 Telephone 501-975-2442 — Facsimile 501-975-2443 • Toll Free 1-800-455-0581 • www.DarrenOQuinn.com __________________________ INDIVIDUAL ACKNOWLEDGMENT ,çc . State/Commonwealth of __i County of On this the day of _JL4_____, zcLL__ me, before the undersigned Notary ii, Public, personally appear:d <‘‘rsonally known to me — OR — I proved to me on the basis of satisfactory evidence — — — — — to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same for the purposes therein stated. — — I4HARY SHRUM puiaslrj County Notary Public CommS 12365421 My Commission Expires Mar 31, 201 WITNESS my hand and ocial seal. - - ‘1 j\//4\ nature o Nqjary Public *i\;W- Other Aequired lnforjnation ( rinted Name of Notary, ResKience, etc.) Place Notary Seal and/or Any Stamp Above OPTIONAL Although the information in this section is not required by law, It may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Right Thumbprint of Signer Top of thumb here Description of Attached Document Title or Type of Document: Lt- 4’JiC’k Document Date: ç’ (11i CtI Number of Papes: 2- Signer(s) Other Than Named Above: © 2002 National Notary Association Item No. 5936 • 9350 De Soto Ave., PC. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Reorder: Call Toll-Free 1-800 US NOTARY (1-800-876-6827) 800NEVILLE HUMAN DEVELOPMENT CENTER 87 REED ROAD BOONEVILLE, AR 72927 Syed Hamid, M 0 “ 4/ ‘ , DISCHARGE SUMMARY MICHAEL FORNELL 05-24-10 Michael Fornell Is a 25 year old male with past medical history of Schizo affective disorder, obsessive compulsive disorder, moderate mental retardation, hypoth yroidism, and constipation. He was admitted to Booneville Human Development Center May 24, 2004. He has been following up with me and Dr. Callahan for his medical and psychi atric needs. During his course of stay at BHOC obsession seemed to lead him into behavi or problems. He was tried on multiple antipsychotics and SSRI’s here to stabilize his behavi ors. It seemed that his behavior had improved some. His current list of medications included: Synthroid 50 MG 1 tab qd; Clozarll 175 q am; Clozaril 750 mg q pm; Depakote ER 1000 mg p0 bid; Colace 100 mg po bid; Prozac 60 mg po qd; Multi Vitamin po qd; AblIlfy 10 mg P0 q pm. His recent history is also remarkable for an episode of seizure 04-07-10 for which he was evaluated at Booneville Community Hospital, He was found to be Hyponatremi c (NA 123) He was hydrated, observed in emergency room and released from hospital in stable condition. His Sodium levels were normal on discharge. No further episode of seizure observ ed after that. He was also evaluated by Dr. Elaine Wilson (Neurology) who attributed his episode of seizure to low NA levels and he was scheduled for an EEG. I had recently seen him status post choking episode 05-17-10 (see note) where he had found crackers and placed the whole pack in his mouth, Staff had done Heimliac maneu ver on him and it was safely removed at that time. Because of his obsession especially with food and his habit of eating items off floor he was placed on 1 to 1 with the recommendatio that n staff needs to be very vigilant at all times. I was called around 7:00 PM 05-23-2010 that Michael Fornell found unresponsive in kitchen at BHDC. He had no pulse and blood pressure was not recordable. He appeared cyanot ic per staff members. CPR was initiated appropriately and EMS called. Michael Fornell Discharge Summary 05-24-2010 Page 2 of 2 It seem that apparently he had opened the kitchen door and had access to food, he stuffed his mouth with cheese and bologna and choked himself, Heimlich maneuver was performed times 3 by staff without success. He was transferred to Booneville Community Hospital Emergency Room (code 3) where he was intubated after vigorous suctioning. CPR continued for approximately 20 minutes with no results. He continued to be pulse less and cyanotic. He was pronounced dead at 1952. I have reviewed his ER records and it is documented that they were initially unable to establish airway due to big chunks of food obstructing his airway, which caused him to go into acute respiratory failure leading to his death. Autopsy has been requested. Syed MD. Date IN THE CIRCUIT COURT OF LOGAN COUNTY, ARKANSAS N 2 DIVISION In The Matter of the Estate of MICHAEL ALLEN FORNELL, Deceased *N. NO. PR2O1O-44 ORDER APPOINTING SPECIAL ADMINISTRATRIX NOW flEFORE THE COURT is the Petition of Sheila Marie Rhodes for the appointment of a Special Administratrix of the Estate of Michael Allen Fomell, Deceased, for the purpose of pursuing claims related to the Decedent’s wrongful death claim against the parties responsible. The Court, having reviewed the Petition and Exhibits “A” and “B” attached thereto and other matters of proof before the Court, finds that the need exists for the appointment of a Special Administratrix for the reasons stated. It is, therefore, ORDERED, CONSIDERED and ADJUDGED that Sheila Marie Rhodes be, and is hereby, appointed Special Administratrix of the Estate of Michael Allen Fornell, Deceased, for a period of time necessary to pursue all claims related to the wrongful death of Michael Allen Fomell, deceased, during which time she is empowered to, and shall, perform all duties and acts required to pursue such claims and upon termination of the duties set forth hereinabove or upon completion of the term of her appointment hereunder, whichever shall first occur, she shall immediately make a full and complete report of her actions and condition and affairs of the estate to this Court; that no bond shall be required; and that Letters of Administration shall be issued to said Special Administratrix upon filing of the Acceptance of Appointment. It is further ORDERED, CONSIDERED and ADJUDGED that Sheila Marie Rhodes be, and is hereby, authorized to retain legal counsel identified in her Petition and that the contract for legal services, as set forth in Exhibit “B,” shall be approved in its entirety. FILED FOR RECORD ocT . .3LipAGE ai 5 zoio Cou’dL e 1 rk Logan C; ty, AR I!SLict4 k I 1 üñEEi5AVJojJcK p1_______ PREPARED BY: N. Darren OQuinn Law Offices of Darren O’Quinn, PLLC Plaza West Building 415 N, McKinley, Suite 1000 Little Rock, AR 72205 (501) 975-2442 telephone (501) 975-2443 facsimile 2 BOOK X 3 L) PAGE 3o IN THE CIRCUIT COURT OF LOGAN COUNTY, ARKANSAS N 2 DIVISION In The Matter of the Estate of MICHAEL ALLEN FORNELL, Deceased NO. PR2O1O-44 Letter of Administration Be it known that Sheila Marie Rhodes, whose address is 91 Tinkle Drive, Batesville, Arkansas, having been duly appointed Special Administratrix of the Estate of’ Michael Allcn Fornell, deceased, who died on or about May 23, 2010, and having qualified as such Special Administratrix was authorized to act as such Special Administratrix for and in behalf of the Estate by the Court’s Order Approving Special Administratrix and Approving Contract entered with the Clerk on October 5, 2010. Issued this j’1ay of October, 2010. -1 (Seall Clerk FILED FOR RECORD OCT 122010 PEGGY F)TZJURLS County and Probate Clerk Logan County, AR BEFORE THE STATE CLAIMS COMMISSION OF THE STATE OF ARKANSAS SHEILA MARIE RHODES, As Special Administratrix Of The ESTATE OF MICHAEL ALLEN FORNELL vs. Claimant Case No. 11-0698-CC STATE OF ARKANSAS, DEPARTMENT OF HUMAN SERVICES, DIVISION OF DEVELOPMENTAL DISABILITIES SERVICES Respondent ANSWER Comes now the Respondent, STATE OF ARKANSAS, DEPARTMENT OF HUMAN SERVICES, DIVISION OF DEVELOPMENTAL DISABILITIES SERVICES (hereinafter “DDS”) and in response to the claim tiled herein, states as follows: 1. Respondent denies liability in the above referenced claim. Account information is: Agency Number: Cost Center: Internal Order: Fund: Fund Center: 2. 0710 419290 HMKXOIXX PWP5500 896 DDS denies liability on this claim. DDS disputes the issues of liability, causation and damages. Claimant’s conclusions in the claim that the issues of liability, causation and damages will be undisputed are self-serving and incorrect. 3. Per Arkansas law, there are two types of causes of action that may arise when a person’s death is allegedly caused by another person’s negligence: (1) a cause of action for the Page 1 of 4 cstate under the survival statute; and (2) a cause of action fur the statutory beneficiaries under the wrongful death statute. Miller Ann, v. Centerpoint Energy, 98 Ark. App. 102, 106 (2007); Ark. Code § l6-62101, l6-62-l02. A survival action is simply a claim by the injured party that would have ended upon his death but for the survival statute that allows those claims to survive the injured party’s death, Id. The legislature enacted the survival statute to allow claims to survive the injured party’s death. Id. Damages for injuries allegedly suffered by the decedent before death are brought pursuant to the survival statute. Actions for damages to the statutory beneficiaries are brought under the wrongful death statute. 4. Per the claim filed herein, Claimant seeks damages here as a survival action not a wrongful death action. See Complaint p. 2. The Claimant states that the claim is brought for the benefit of the decedent and his estate jy for “the loss of life, the reasonable value of funeral expenses, conscious pain and suffering, and medical expenses, but notfor any damages by the beneficiaries ofMichael Allen Fornell.” (Italics added). Consequently, the action here is not brought as a wrongful death action under Ark. Code. Ann. § 16-62-102 but, instead, is a survival action pursuant to Ark. Code. Ann. §16-62-101. See Complaint p. 2. As such, Claimant is limited to damages claimed to have been sustained by the decedent prior to death that would have survived had he not passed away. These damages pass through the decedent’s estate. After payment of all claims against the estate, the remaining proceeds will flow to the beneficiaries of the estate or heirs at law, which include the decedent’s parents, siblings and other relatives. 5. The claimant here seeks inequitable and unjust relief It would be unjust for the beneficiaries of the estate and the heirs at law (decedent’s parents and siblings) to enrich themselves as a result of the decedent’s death. The beneficiaries of the estate and the heirs at law, who are persons who would benefit from an award to the estate, essentially abandoned the Page 2 of 4 decedent years earlier and had no contact with him fir almost a decade. The decedent’s sister had two sporadic and limited episodes of written communications with the decedent separated by years without any contact whatsoever. Decedent’s care was provided solely by DDS and paid for by the State of Arkansas. None of the beneficiaries who now would financially gain from any such award here visited the decedent or participated in his care or care plarming while at the Human Development Center. Moreover, the Circuit Court placed the decedent into the custody of DHS Adult Protective Services (“APS”) in 2004 and APS, not decedent’s siblings or parents, remained his guardian through the date of his death. None of the decedent’s parents, siblings, or other relatives stepped fbrward to provide care, custody or support for decedent. The estate beneficiaries failed and refused to visit Decedent during his years in the Human Development Center. 6. The events that allegedly transpired culminating in the decedent’s choking episode and subsequent death were not foreseeable by DDS. The door to the food pantry was closed and locked. However, Mr. Fornell was somehow able to maneuver the lock in such a way as to force the door to open. Moreover, there was no proximate cause between any alleged negligent supervision of the decedent and his breaking into the food storage pantry. Proximate cause in Arkansas means a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred. Schubert v. Target Stores, Inc., 2010 WL 4910126 (Dec. 2, 2010). Before an act can be said to be the proximate cause of an injury, the injury must be the probable and natural consequence of that act. Gathright v. Lincoln Ins. Co., 286 Ark. 16, 688 S.W.2d 93 1(1985). Page 3 of 4 WI IEREFORE, Respondent, Department of Human Services, Division of Developmental Disabilities Services, moves that the claim be denied and that it be released from liability thereon. Respectfully submitted, Department of Human Services, Division of Developmental Disabilities Services By / Richard Rosen, Bar No. 97164 Office of Chief Counsel Arkansas Department of Human Services P.O. Box 1437, Slot S260 Little Rock, AR 72203 Direct: 501/ 682-8608 Main: 501/682-8934 Fax: 501/682-1390 [email protected] Counsel for Respondent CERTIFICATE OF SERVICE I hereby certify that a copy of the above Answer was mailed, postage prepaid this day of June, 2011 to: Darren O’Quinn, Esquire Jim Keever, Esquire 415 McKinley, Suite 1000 Little Rock, AR 72205 Page 4of4 2 n d STATh CLAIMS COMMISSION DoCKET OPINION Amount of Claim $ I ,000,000.0O Claim No. II -0698-CC Attorneys M Darnsn_Qihiinn &Jim kp.r vs. Attorneys Breck hopkins, Chief Counsel Richard Rosen Attorney DHS/Developmental Disabilities Se vices espondent State of Arkansas clnmant Respondent Jerry Berry, Fiscal Officer Wrun’LDaib_NealiaenePain & Date Filed _Mayji21I_ Type of Claim _ FINDING OF FACTS At the request of Claimant in a “Motion for Partial Voluntary Non-Suit,” the Claims Commission hereby unanimously grants the Claimant’s “Motion for Partial Voluntary Non-Suit” Therefore, the claim for wrongful death is the only matter currently before the Claims Commission. IT iS SO ORDERED. See ..f Opiwion ESjrm, CONCLUSION At the request of Claimant in a “Motion for Partial Voluntary Non-Suit,” the Claims Commission hereby unanimously grants the Claimant’s “Motion for Partial Voluntary Non-Suit.” Therefore, the claim for wrongful death is the only matter currently before the Claims Commission. Date of Hearing February 10, 2012 February 10, 2012 Date of Disposition Commissioner /( // / it / - Commissioner 1 t) kreae (eSri AeeeS prr’ided Py Act #33 A R K A N S A S Richard N. Rosen Office of Chief Counsel DPARTMENTOF 1 SERVICES P.O. Box 1437, Slot S-260 Little Rock, AR 72203-1437 501-682-8608 Fax: 501-682-8009- TDD: 501-682-8933 - February 10, 2012 M. Darren O’Quinn, Esquire Law Offices of l)arren O’Quinn 415 N. McKinley, Suite 1000 Little Rock, AR 72205 Re: Rhodes/&rnell i DDS Claims Commission No. 11-0698-CC Dear Mr. O’Quinn: This will confirm our agreement to settle the above referenced wrongful death claim on the following terms: 1. Subject to legislative approval, DDS agrees to pay to the Estate of Michael Allen Fornell, on behalf of the wrongful death beneficiaries, the sum of $125,000 in full payment of all claims made for the death of Michael Allen Fornell that ocurred on or about May 23, 2010. 2. The Estate of Michael Allen Fornell, through its lawful and appointed personal representative, and on behalf of itself (the estate), its heirs and beneficiaries, including the wrongful death beneficiaries, agrees to fully release the State of Arkansas, the Arkansas Department of Human Services (DHS), the Division of Developmental Disabilities (DDS); the Booneville Human Development Center (BHDC), and their respective officers, directors, boards, and employees (past and present) from all actions, causes of actions, and claims of any nature or type relating to or arising out of the care and treatment of Michael Fornell, including all acts or ommissions, and claims that caused or contributed to Michael Fornell’s death and all those claims that could have been as a result therof. 3. The Estate agrees to issue the aforesaid full release prior to reciept of payment. 4. Each of the parties believe that this agreement is in their own best interests and hereby resolve, compromise and settle all of their respective claims and defenses with no admission of liability. Page 1 of2 ii 5. The parties mutually agree that each has authority to enter this agreement upon the terms stated. 7 /, r RA { /Z ;/1I)/ Very trfry yours, . /‘-- QQ i&2xe 13 ‘( Kedt” d Richard Rosen Counsel for DHS/DDS/BHDC Agreed: Th VI M.DarrenO’Quinn Counsel for Estate and Wrongful Death Beneficiaries ‘L -\L date /7 STATt CLAIMS COMMISSION DOCKET OPINION Amount of ClaimS I ,000,000.0O Sheila Marie Rhodes, a’S pecial Administratix of the Estate of Michael Allen Fornell. Deceased vs. AttDrnys 1VI. uanen OQumn, arid Jim Keever. Attorneys Claimant AR Dept. of Human Services! Developmental Disabilities Respondent Jerry Berry, Fiscal Officer Type of Claim !ldeat!__ Myjj,ll Date Filed Claimant Breck Hopkins, Chief Counsel Richard Rosen, Attorney Respondent State of Arkansas I 1-Oo9l-CC Claim No. FINDING OF FACTS This claim was filed for wrongful death in the amount of$l ,000.000.00 against Arkansas Department of Human Services/Developmental Disabilities Services. Present at a hearing February 10. 2012 was the Claimant’s legal counsel, M. Darren O’Quinn, and the Respondent, represented by Richard Rosen, Attorney. The Respondent presented a “Negotiated Settlement Agreement” by the parties and recommended approval with payment in the amount of$ 125,000.00. The Claims Commission hereby unanimously allows this claim in the amount of $125,000.00 and will include the claim in a claims bill to be submitted to the K8 General Assembly, Fiscal Session 2012, for subsequent approval and payment. IT IS SO ORDERED. See 2a’e C’p irlic r, Eorm, CONCLUSION Upon consideration of all the facts, as stated above, the Claims Commission hereby unanimously allows this claim in the amount of$125,000.00 and will include the th claim in a claims bill to be submitted to the 88 General Assembly, Fiscal Session 2012, for subsequent approval and payment. February 10, 2012 Date of Hearing 7_Il Date of Disposition February 10, 2012 , -2Commissioner Commissioner r’,el s[ ,- t,’i Cle,e i cc J ‘is:rc r -, r’3-- Gece’ri ‘ -.ce2’,’ a’c rrcviced ? A’t #33