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