Hefti v. State

OPINION Epstein, J. This is a wrongful death claim brought by the ad-, ministratrix of the decedents estate, his mother, alleging negligence by the Department of Mental Health and Developmental Disabilities (DMHDD) at its Zeller Mental Health Center which allegedly caused or negligently permitted the suicide of the decedent, Troi Hefti, a 17-year-old patient at the time of his death on June 24, 1987. This cause is before us for final ruling, following a trial before our former commissioner, Richard H. Parsons, on May 19, 1993. Commissioner Parsons’ report and recommendations were submitted to us, as was the trial transcript. This opinion follows our own detailed and lengthy review of this said and very difficult record. Summary of the Claim Claimant Kay Hefti. brought this claim in 1988 in her capacity as the administratrix of the estate of Troi Hefti. Essentially, the allegations are that Troi Hefti was an extremely troubled boy from an early age who had been physically self-abusive for a long time and had been repeatedly diagnosed as such and as seriously dangerous to himself, and had long been in State DMHDD facilities where his behavior and diagnosis were well known. Claimant advances two theories of DMHDD negligent culpability for Troi Heftis suicide: (1) the actions of a DMHDD physician who without any reasonable basis unilaterally ordered the cessation of the 15-minute suicide watch on Troi, on the day of his suicide; and (2) the oversight of DMHDD staff in leaving a hanging instrument openly available to Troi in the shower of his facility, where he obtained it and hung himself. The State, for its part, filed a counterclaim seeking reimbursement for its expenses of caring for Troi Hefti, pursuant to the provisions of the Mental Health Code. This counterclaim is sought, essentially, as an offset against any award that might result. The Facts On June 24, 1987, Troi Hefti was a resident and patient in the George A. Zeller Mental Health Center ("Zeller”) when he was found hanging in a bathroom at approximately 6:15 p.m. on that day. The underlying facts are sad and not seriously controverted. Troi Hefti was born February 16, 1970, and began having behavioral problems at about age five. He was first institutionalized at age 11. He had been in various institutions over the last six or seven years of his life. His history showed extreme and bizarre self-abusive behavior which regularly resulted in serious and permanent injuries. Troi was a problem child and a problem patient. He was a frequent resident of Zeller in particular, where his self-abusive behavior and suicide threats were well known. Ultimately, that pattern of behavior resulted in his death. Troi was last admitted to Zeller on August 20, 1986, ten months before his death; he had been a patient at Zeller on five previous occasions. His typical modus operandi was to tell anyone anything in order to get his own way. He was adamantly opposed to discipline and to reductions of his privileges. The trial evidence, particularly the testimony of several professionals, showed clearly that the staff at Zeller knew of Troi s self-abusive behavior and occasional suicide threats. On the day of Troi s death, the physician in charge (the “staff physician”) of the childrens adolescent unit at Zeller, in which Troi was resident, was Dr. James L. Weiler who was filling in for Dr. Marcia Aranas. Dr. Weiler was somewhat familiar with Troi s behavior history and some of his prior episodes. Dr. Weiler knew that Troi had threatened to kill himself (by putting a necktie around his neck) on December 22, 1986. Dr. Weiler knew that Troi had frequent outbursts of aggression in March 1987, and was unable to handle his anger and frustration, and was also aware that in May 1987, Troi was so frustrated and upset over his mother having removed his clothes (in order to discourage his frequent breakouts or “elopements”) that he became self-abusive, suicidal and threatened to kill himself and others. Dr. Weiler recalled that on one occasion Troi grabbed a pair of sewing scissors and threatened to gouge his own eyes out. He also knew that after Trois elopement from and return to Zeller, Troi had stated that he would not hesitate to do bodily harm to himself if “pushed to the limit.” Dr. Weiler did not recall that Troi told his mother that he was going to do something to himself several days before the suicide. Director Roland Chambers testified that Dr. Weiler and he talked to Troi about the statement Troi had made that he was going to kill himself and at that time Troi said that he was not suicidal. Approximately one week before Trois death, he told his mother he was considering suicide. She was deeply concerned and believed her son. She discussed this with the staff personnel and the director of the unit at Zeller. She strongly disagreed with Mr. Chambers opinion that Troi was just trying to get attention and that the behavior just needed to be ignored. Roland Chambers, director of the unit, testified that he knew Troi had, in fact, injured himself intentionally on more than one occasion. He was aware that Troi had jumped out of a moving vehicle that resulted in the amputation of his arm below the elbow. Mr. Chambers also was informed about the time Troi hung from a third-story window and the time when Troi purposely slammed his fingers in a door to cause injury. He knew about the incident where Troi threatened to gouge out his eyeball with scissors and the time when Troi slammed his fist into the wall. He acknowledged that Troi had been on the status of SOS (suicidal precautions) in the past at Zeller. A week before Trois death, Mr. Chambers was made aware that Troi stated to several people that he was going to kill himself. This was also entered in Trois chart. Nevertheless, on the date of Trois death, Dr. Weiler ordered a discontinuation of the 15-minute suicide checks on Troi. The charge nurse, Delaine Gamble, was acquainted with the threats Troi made to harm himself and was aware of the various times Troi did harm himself. She testified that he previously injured himself four or five times. She knew that Troi had said he would be out of there one way or the other several days before he committed suicide. She stated that all threats had to be put on his chart. She recalls that Troi was on suicide precaution a couple of times in the past. Mary Grimes, a registered nurse on the unit, was asked to transfer to this unit because three other nurses were absent. She also knew about the previous times Troi had injured himself. She had heard from other staff that Troi threatened to take his life a few days before he actually committed suicide. She knew that Troi had been taken off the 15-minute checks. However, she testified that she and charge nurse Gamble did not agree with that decision, that they kept a regular watch on Troi despite the order and that they tried to know where Troi was at all times because they knew of his elopement and suicide threats. Nathan Dixon, a mental health technician on the unit, knew of Troi’s self-inflicted injuries and of the recent threat of suicide. He testified that on each occasion that Troi threatened to elope or eloped, when he returned he would state he was not going to do that again which was also his behavior after each occasion that Troi injured himself. On the day of Troi’s death, he was able to go unattended into the showers in his unit at Zeller, where bandannas and shower hooks were provided by the DMHDD, and which Troi Hefti used, finally, to make good on his threats of suicide. Analysis 1. The Law of the Claim The State and its agencies, including the DMHDD, owe their wards and patients the duty of protection and reasonable care. These duties of care must take account of the patient’s known condition, and may include safeguarding a patient from dangers due to mental or physical incapacities that are known to the State, or that by the exercise of reasonable care ought to be known by the State. However, as our opinions constantly emphasize, the State is not an insurer of the safety of the patients under the care of its agencies, including DMHDD. Reynolds v. State (1983), 35 Ill. Ct. Cl. 647, 649. As 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. In a wrongful death suit, the damages recoverable include the statutorily allowed pecuniary damages for loss of present and future support for those dependent on the decedent (740 ILCS 180/2), as well as loss of society and consortium, but not in the case of deceased children subject to deduction of child-rearing expenses, but recovery is not allowed for mental anguish of the survivors. Bullard v. Barnes (1984), 102 Ill. 2d 505, 486 N.E.2d 1228; Drews v. Global Freight Lines, Inc. (1991), 144 Ill. 2d 84, 578 N.E.2d 970; Holston v. Sisters of the Third Order (1991), 247 Ill. App. 3d 985, 618 N.E.2d 334. 2. The Liability Issue This record is replete with evidence of repeated serious self-abuse and ongoing suicide threats by Troi Hefti, all of which were well known to the Zeller staff of the DMHDD. It is clear to this court, after review of this record, that the DMHDD staff at the Zeller Center were negligent in both of the key respects alleged. First, Dr. Weilers order striking the standing 15-minute checks on Troi was as culpable and irresponsible a medical action as this court has seen in a long time. No basis was shown that might possibly have warranted that decision at the time, based on what Dr. Weiler actually knew and what he should have known from the records and the consensus of his staff. The record provides no basis, after the fact, that might justify that decision. However, as negligent and almost cavalier we find that decision to have been, we cannot and will not find liability on the basis of Dr. Weilers negligence. This is because of the testimony of the Zeller staff on Trois unit that they essentially ignored Dr. Weilers removal of the 15-minute checks on Troi. These staffers, more sensible by far than their medical supervisor, tried their best on a difficult service and although sadly that was not enough to prevent Trois suicide, their efforts break any possible chain of causation between Dr. Weilers order and the death of Troi Hefti. Thus, this act of negligence cannot be a proximate cause of Trois suicide. On the other hand, the failure of the DMHDD to prevent access to potential and fairly obvious suicide devices, and to leave such materials in a readily accessible place on the unit which is frequented by a known suicidal patient in a mental- facility is another matter altogether. While we do not doubt for a minute, based on this record, that the Zeller staff tried to patrol the area, it is clear that those efforts were not adequate. We are persuaded in good measure because of the location and frequency of access of the suicide location. It was a failure of due care not to patrol the shower area constantly, as hanging in showers is a known and unfortunately well established suicide technique in institutions. But for Trois access to the bandanna in or proximate to the shower area, he could not have killed himself that day by any other means that have been shown to be available to him at the Zeller unit. Respondents argument that the decedent was not labeled “suicidal” at the time of his death is unpersuasive and almost an admission of negligence in light of the overwhelming evidence in this record. This court is sensitive to the ease with which after-the-fact reviews by courts and other laypeople can second guess medical professionals whose knowledge and perspective at the time, and under trying and pressured circumstances, is very different and whose decisions and actions must take place in a very different context than our more leisurely review. However, this is not a difficult case in terms of the key personnels knowledge and professional understandings at the time. If Troi Hefti was not diagnosed or labeled suicidal on the day of his death, someone blew it very badly. Moreover, by DMHDDs own standards, something was wrong, as its treatment plans specify that patients be placed in "suicidal status” for any attempts at self-abuse, which had occurred with this patient on multiple occasions and was well known. Respondent contends that the Claimant must produce expert testimony to be successful in her claim of medical or professional negligence. Although that may be the general rule for reviewing technical competence of professionals, expert testimony is not required if the negligence is so readily apparent or the treatment is of such a common occurrence that a layman would have no difficulty appraising it. (Dimitrijeic v. Chicago Wesley Memorial Hospital (1968), 93 Ill. App. 2d 251, 236 N.E.2d 309.) There is more than adequate basis in this record for us to find negligence, as we do. It must be clarified that the claim here is not that DMHDD was negligent in failing to diagnose or to affirmatively designate the deceased as a suicidal risk. Instead, the claim here is predicated on the decedents death being the proximate result of the States failure to provide supervision and its actual provision of the means of suicide, in light of DMHDDs extensive knowledge of this patient and lengthy experience with his actual behavior and threats. Provisions of bandannas and shower hooks to a known self abuser who repeatedly threatens suicide is — at a minimum — a failure to exercise due care for that patients safety. Our commissioner has specifically found that this patient (and the unit) was not supervised or patrolled closely enough under the circumstances to comport with reasonable standards of care. From our more distanced review of this record, we agree with his conclusion. Nothing argued by the Respondent comes close to persuading us otherwise. The DMHDD did not use due care in protecting Troi Hefti from harming himself and from committing suicide. As a proximate result of this negligence, Troi killed himself. This case is factually distinguishable, and simply different, from the cases on which the Respondent relies to avoid liability. The gross evidence of self abuse in this case distinguishes it from Dimitrijevic, supra, and other cases cited by the Respondent. In Reynolds v. State (1983), 35 Ill. Ct. Cl. 647, 549, another suicide case, the deceased was known to attempt escape, but was not known to be abusive or suicidal beforehand; escape tendencies or escape behavior do not indicate or suggest suicide. Similarly, while John Rritton was known to be in constant trouble, and to engage in loud talking, fighting and rebelling against institutional rules, that behavior was not enough to put the State on notice of possible suicide. (Woods v. State (1985), 38 Ill. Ct. Cl. 9, 24.) Woods bears no similarity to this case. In the suicide of Jerry Cíanos, Dr. Visotsky, an honored former director of the department, testified that, “A patients telling you that he is going to commit suicide in no uncertain terms is also a higher indicator of risk.” In that case, however, the evidence showed that Jerry Gianos never spoke of suicide to anyone. Dr. Bayardo interviewed him and noted that he did not see any evidence in his behavior that he might hurt himself or others. (Gianos v. State (1975), 30 Ill. Ct. Cl. 373, 376.) Gianos, to the extent relevant here, supports liability as it enhances the duty of care owed. In this case, Troi Hefti s mind was not merely unstable, nor did he simply threaten elopement as were the facts in the cases cited by Respondent. In this case, it is clear he was actively self-abusive and openly threatened suicide. With this knowledge, the State should not have provided or allowed a bandanna anywhere near Troi nor anywhere accessible to Troi. Without very close supervision, a self-abusive, mentally unstable individual who recently threatened suicide is a high-risk patient. The evidence here showed that Troi was obviously and visibly upset on the day of his suicide with denial of privileges immediately beforehand. In these circumstances, the States efforts fell short. 3. The States Counterclaim On November 8, 1991, the Respondent asked for leave to file a counter-complaint for services rendered and paid. Claimant maintains that consideration of a set-off is improper because the State failed to plead and prove demand, proper itemization, and proof as required by the Mental Health Code. This argument, and Respondents argument that Claimant failed to exhaust her administrative remedies, need not be considered. The counterclaim for services of the DMHDD is brought pursuant to the Mental Health Code, which inter alia provides “Except that no responsible relative may be held liable for charges for services furnished to a recipient if such charges were assessed more than 5 years prior to the time the action is filed.” This requires the counter-complaint offset be dismissed as barred as to services accruing more than five years prior to November 8, 1991. Formerly Ill. Rev. Stat., Ch. 911/2, par. 5 — 113; see 405 ILCS 5/5 — 113 (1994). In addition, under the Wrongful Death Act, recoveiy is for the sole benefit of the next of kin for the pecuniary loss (and loss of society) sustained by the death of the relative. (See, e.g., Ohnesorge v. Chicago City Railway Co. (1913, 259 Ill. 424, 102 N.E. 819, 821.) The Wrongful Death Act further provides that the person furnishing hospitalization in connection with the decedents last injury or illness can receive a reimbursement only where the deceased person left no surviving spouse or next of kin. (740 ILCS 180/2.) Even assuming that DMHDD might somehow qualify here as having provided hospitalization, the Claimants survival of the decedent here precludes any payment to DMHDD. 4. The Award Claimant does not contend that she or the family were, or were likely to be, financially dependent on Troi Hefti for support. The court cannot entertain a pecuniary damages award in this case. On the other hand, Troi Hefti left behind a loving family of siblings, as well as his mother, the Claimant-administratrix whose recoveiy must compensate for all their loss. Loss of society is difficult to measure and even more difficult to compensate. The record in this case, however, shows that as difficult a child as Troi Hefti was, he was close to his siblings as well as to his mother, all of whom maintained a genuine and seemingly close relationship with him and regularly visited him, despite his overt self-destructive behavior. Indeed, this record reflects a remarkably close family under extraordinarily difficult circumstances. After reviewing this record and considering wrongful death awards by this and other Illinois courts, we conclude that the award of $100,000 should be granted to the decedents estate for equal distribution to the surviving siblings and mother of the decedent. Conclusion and Order For the foregoing reason, we find for the Claimants negligence claim for the .wrongful death of the decedent, and enter judgment for the Claimant and against the Respondent. The Respondents counter claim is dismissed. It is ordered: Claimant Kay E. Hefti, Administratrix of the Estate of Troi P. Hefti, Deceased, is awarded the sum of $100,000 in full and complete compensation for the wrongful death of Troi Hefti for his estate and his heirs.