Last week, I shared my thoughts about the return of my former partner, Mike Manners, to private law practice after spending over 12 years as a circuit judge. This week, I want to tell you about an important case that he argued in the Western District Court of Appeals within a week after he began practicing law again.
The decision was handed down on Nov. 26, but it is not final because there are other steps in the appellate process. Once the case is decided, the losing parties have a right to ask the court for rehearing before all 11 judges in the Court of Appeals. The case can then be appealed to the Missouri Supreme Court if that court determines it is one of general interest and importance, or that it is in conflict with other appellate decisions in the state. This process can take several months.
This case arises out of the alleged wrongful death of five people at the Hedrick Medical Center in Chillicothe, Mo., between May and January of 2002. The lawsuits were not filed until 2010 and 2011, which ordinarily would be problematic because the statute of limitations for wrongful death is three years.
The underlying deaths received considerable notoriety, because a respiratory therapist at the Hedrick Medical Center had allegedly administered lethal doses of insulin and another drug to a large number of patients back in 2002, including the five people whose survivors filed wrongful death lawsuits.
According to an affidavit of a Chillicothe physician, attached to the lawsuits, he was working in the emergency room when a patient coded. An emergency room physician suspected that someone had put insulin in the patient’s IV bags because the patient was releasing so much insulin according to blood tests. The doctor was then told by an ICU nurse of two other suspicious deaths prior to that incident, which prompted the doctor to voice his concerns to hospital personnel. It is alleged that the director of nurses and the administrator of the hospital instructed nurses that they would be fired if they were seen talking or even walking with the doctor. The doctor stated that he was aware of 18 codes and nine suspicious deaths from Feb. 2, 2002, through May 17, 2002.
Another affidavit from a nurse at the hospital states that she informed the hospital administrator that she believed a respiratory therapist was harming patients at the hospital. In her duties for the hospital, the nurse continued to receive incident reports of code blue events and deaths. The nurse and two other nurses brought the suspicious deaths to the attention of the administrator and nursing supervisor and threatened they would alert the media if the hospital did not do something to stop the respiratory therapist and the suspicious deaths at the hospital. The respiratory therapist was fired two days later.
The five families who filed the wrongful death cases allege that the medical center failed to notify the families of the hospital’s suspicion that the five patients were intentionally harmed or murdered by an employee of the hospital. A medical expert for the family has stated that it is a violation of the standard of care for a reasonable and prudent provider of medical services to not report to the families that a sentinel event had occurred. A sentinel event is an "unexpected occurrence involving death or serious physical or psychological injury," and "signals the need for immediate investigation and response." The expert stated that the medical center had a duty to disclose to the family members that these events were taking place based on their investigation and the notice by staff members.
The hospital was successful in obtaining dismissal of the lawsuits on the basis of the three year statute of limitations. The families appealed claiming that the cause of action for wrongful death did not "accrue" until the families could by reasonable diligence, ascertain that they had an action. Because the parties had alleged that they could not ascertain that they had an action because of the fraudulent actions of the defendants in concealing the cause of the deaths, the appellate court allowed the cases to proceed.
This case is actually an extension of existing law. In a case from 1992 involving wrongful death cases filed over the serial murders committed by Robert Berdella, who had confessed murders that had happened more than three years earlier, the court determined that the wrongful death action did not accrue until the plaintiffs could reasonably ascertain that they had an action. Since the purpose of the wrongful death act is to provide compensation for bereaved plaintiffs, to ensure that wrongdoers pay the consequences of their actions, and generally to deter harmful conduct that might lead to death, the purposes of the wrongful death laws were served by extending the statute of limitations.
The Chillicothe case, if ultimately upheld, could have long-term consequences in other cases. If indeed an unexpected occurrence involving death is not disclosed to the family and the medical provider conceals the true facts from the family, it could be argued that the statute of limitations does not begin to run until the family discovers the true facts. Perhaps this will make health care providers more forthcoming in telling family members the true cause of a loved one’s death. Honesty is always the best policy.
Bob Buckley is an attorney in Independence. Email him at firstname.lastname@example.org