PHILLIP ZEZULAK v. STATE OF ILLINOIS DEPARTMENT OF HUMAN SERVICES (2011)

ORDER

This case comes before the Court on the Complaint of the Claimant, PHILLIP ZEZULAK, and against the respondent, STATE OF ILLINOIS, DEPARTMENT OF HUMAN SERVICES (“DHS”). Claimant contends that the charges brought against him by DHS through the Office of the Inspector General (“OIG”), alleging “egregious neglect” while he was employed as a Qualified Mental Retardation Professional, (“QMRP”), failed to sustain a preponderance of the evidence, and therefore pursuant to 5 ILCS 100/10-55(a)¹ , the claimant seeks reimbursement for his associated attorney's fees and litigation expenses.

PROCEDURAL HISTORY

On March 23, 2003 OIG received a report from the Ray Graham Association for People with Disabilities, that a disabled resident, identified in this Order only as “IK”, had choked while eating her dinner and died as a result. The matter was then investigated.

After an investigation, OIG concluded that the Claimant, who had been assigned to provide IK's care, had demonstrated “egregious neglect,” resulting in IK's death. On February 15, 2005, OIG sent the Claimant a “Notice of Intent to file a Report of the Finding” of “Egregious Neglect” to the Nurse Aide Registry, pursuant to 50 Ill. Adm. Code 50.10.

Claimant filed a timely Notice of Appeal.

On April 11, 2006, a hearing was held before Administrative Law Judge Susan Bradshaw. On June 25, 2005, Judge Bradshaw issued a written opinion finding that DHS failed to demonstrate, by a preponderance of the evidence, that the finding of “egregious neglect” warranted reporting to the Nurse's Aide Registry.

On October 2, 2005, the Claimant filed his complaint in the Court of Claims, seeking reimbursement for attorney's fees and litigation expenses.

FACTS

On March 23, 2003, IK was a seventy-seven year-old female resident of The Starling Home (“Starling”). Starling is a residential placement facility providing mental health and developmental disability services, and was run by the Ray Graham Association for People with Disabilities. IK had been diagnosed with severe mental retardation, Tourette syndrome, Tardive dyskinesia, depression with psychotic features, and hypertension. IK had resided at Starling since December 2002, when she was transferred from another Ray Graham facility.

Claimant, a QMRP, had been employed at various Ray Graham facilities since 1987. A QMRP degree requires a bachelors level college degree, plus one year's experience with persons with disabilities. In addition, Claimant also had first aid and CPR training.

The Claimant was the staff member who was charged with coordinating delivery of services to IK. An initial staffing took place when IK was transferred to Starling. Claimant testified that he attempted to obtain IK's prior records, but they could not be located. Claimant did not receive a clinical order for IK's dietary restriction.

IK's “face sheet,” which was maintained at the front of her record binder and intended to highlight important patient issues, indicated “soft food, prune juice daily, no sweets, low caffeine intake” under the heading “Special Medical Instructions.” At that time, the ray Graham Facility policy, as set forth in its training manual, stated that a “soft food diet” may be a general diet that is changed in consistency, meaning that foods may be “chopped or ground.”

On March 23, 2003, Claimant reported for work as a replacement for another employee. At that time, Claimant was the only staff member on duty, and was responsible for six residents, including IK. The staff on the earlier shift had prepared pot roast for the resident's dinner, which Claimant served the residents at approximately 4:30 p.m. Claimant claims that he cut the pot roast into pieces of approximately one by one-half inches, and put some on each plate and the residents sat down to eat.

Claimant admitted that the meat had to be cut into smaller pieces, but he claimed that he was attempting to teach the residents to cut their own meat. Claimant also acknowledged knowing that IK had a history of eating too quickly. Claimant claims he was assisting the residents at the opposite end of the table from where IK was sitting. Claimant observed IK sit at the table briefly and then took her glass of juice and left the table to sit in the living room. Claimant testified that he did not observe IK take any meat from the plate. Claimant finished serving the residents their meal and proceeded to clean the kitchen.

Claimant then noticed that IK was unnaturally quiet. Claimant continued to be concerned about IK and observed that “she did not look right” and was taking deep, gasping breaths. Then IK's head dropped to the side and she became unresponsive. Claimant called 911 and the Naperville paramedics responded within minutes to find IK unresponsive with no pulse or spontaneous breathing.

The paramedics' initial attempts to incubate IK were not successful. The paramedics then cleared IK's airway be removing a piece of meat from her throat with long forceps. Paramedics continued resuscitation, but lifesaving efforts were unsuccessful. IK was transported to the hospital, where she was declared dead by Dr. Suail Mathews. Dr. Matthews declared the cause of death to be “fatal cardiopulmonary arrest.”

Upon notice of IK's death, OIG initiated and completed an investigation into the circumstances of IK's death and determined Claimant failed to observe the proper dietary restrictions of the deceased, and thus a finding of “egregious neglect” was warranted.

Claimant filed a timely appeal of the finding. At the administrative law hearing, Claimant contended that he was not aware of, or properly notified of, any special dietary restrictions of IK. Claimant further asserted that the medical evidence, including the expert testimony of Claimant's expert witness, Dr. James Taylor, suggested that IK's cause of death could not be determined with a reasonable degree of certainty because no autopsy had been performed. Dr. Taylor testified that at least two causes of death other than choking (including, but not limited to, stroke or heart attack) were consistent with the circumstances.

The Administrative Law Judge found that OIG had substituted its own judgment in the absence of expert testimony and, therefore, had deprived the claimant from having the opportunity to challenge its conclusions with cross examination. The Judge concluded that OIG failed to demonstrate Claimant's “egregious neglect” by a preponderance of the evidence, and therefore the matter would not be reported to the Nurse Aide Registry.

ANALYSIS

This section for recovery of attorney fees is brought pursuant to 5 ILCS 100/10-55. The statute at issue, and under which the Claimant seeks relief, has the following requirements:

1. There must be a contested case initiated by an agency that does not proceed to the court of judicial review;

2. There must be an allegation made by the agency without reasonable cause;

3. That allegation must be found to be untrue;

4. There must be no stipulation by the Claimant, which requires the Claimant to take corrective action or pay a monetary sum. That a demand for fees was made of the agency and denied.

A claimant in a matter brought pursuant to 10-55(a) bears the burden of strict proof and persuasion on each element to recover. There is no dispute between the parties that Claimant's burden has been met as to elements 1, 3, and 4. The issue before this Court is whether the Claimant has met his burden in establishing that the allegation made by the agency was without reasonable cause.

The law is clear that the “reasonableness of the agency's charges is to be determined as of the date of those charges, and not retrospectively with the advantage of hindsight.” Lake Environmental, Inc. v. State, 54 Ill. Ct. Cl. 408, 414 (2001). The court also found that the determination of the “reasonable cause” issue shall not be made by the administrative law judge, but is rather within the jurisdiction of the Court of Claims. Id. at 415.

The OIG investigation revealed the following information:

Community Connector Lisa Kriller stated that she had been at a staffing meeting with claimant on December 16, 2002, during which she informed Claimant of IKs dietary restrictions of mechanical soft diet. Her statements were corroborated by Summer Home Manager Tabitha Moore. The Starling Home Clinical Record Face Sheet documented that IK was to be on a “soft food diet.”

The investigation revealed that on March 23, 2003 Claimant was the only staff member on duty at Starling Home, and that he served IK, and other residents, a meal of pot roast.

OIG's investigation further revealed that Claimant gave two conflicting versions of the events that took place. First, he stated that he cut the pot roast into bite-sized pieces and placed the meat on each resident's plate. At about 4:30 p.m., Claimant observed IK run into the kitchen, take a piece of meat and gulp it down with prune juice. He stated that he was aware of IK's habit of grabbing and gobbling her food. She left the dining room to watch television, and Claimant continued to check on her. Claimant stated that IK made eye contact; she did not speak to him. At about 6:30 IK began to breathe strangely and her head rolled to the side and her eyes closed. Claimant called 911.

In the second version, Claimant stated that he was in the kitchen at 6:00 p.m. and placed the meat on the plates of the residents. He noticed IK go from the kitchen table into the living room, he went to check on her and she grabbed his arm and began to perspire and then became unresponsive. He called 911 at 6:30 p.m.

The report of the responding paramedics indicated they received the call at 6:04 p.m., and they arrived at 6:07 p.m. When paramedics arrived, they observed IK sitting on the couch with her eyes open and she was unresponsive. While attempting to incubate her, they noted an airway obstruction. A check of her throat revealed a blockage and they used forceps to remove a piece of meat “one and a half inch by one and half inch.” The life-saving efforts were unsuccessful, and IK was pronounced dead at 6:45 p.m. at Edwards Hospital. The report of the DuPage County Coroner determined IK's cause of death to be the result of asphyxia, due to airway obstruction. The OIG reported concluded that specific dietary restrictions for IK had been established and communicated and that the meal IK served was not compliant with the requirements. OIG concluded that Claimant's failure to provide proper diet result in her death. OI made a finding of “egregious neglect” against claimant.

IK's family chose not to have an autopsy. Therefore, the exact cause of her death was never officially established by a medical examiner. On appeal, Claimant presented testimony of Dr. James Taylor, a doctor of internal medicine. Dr. Taylor testified that he reviewed the records from the facility, the hospital, and the coroner. In sum, Dr. Taylor disputed the coroner's finding and testified that in absence of an autopsy, IK's cause of death could not be conclusively determined. Dr. Taylor testified that he could not exclude asphyxia as the cause of death, but absent evidence of IK having demonstrated a gag reflex, he did not consider asphyxia to be the most likely cause of death. He testified that the other causes of death including a coronary or stroke were consistent with the circumstances as detailed in the reports.

It was based on the testimony of Dr. Taylor, and the totality of the evidence presented, that the Administrative Law Judge determined that the Respondent had failed to demonstrate “egregious neglect” by a preponderance of the evidence.

The relevant code defines “egregious neglect” as follows:

“the substantive failure by an employee to provide adequate medical or personal care of maintenance that results in the death, serious medical condition, or serious deterioration of an individuals physical or mental condition, as determined by the Inspector General. 59 Ill. Adm. Code 50.10.

Further, it defines “credible evidence” this way:

“Any evidence that relates to the allegation or incident and that is considered believable and reliable.” 50 Ill. Adm. Code 50.10.

In McBride v. State of Illinois, 59 Ill.Ct.Cl. 268 (2007), this Court considered a similar claim for 10-55(a) attorney fees. There, the Illinois Environmental Protection Agency (the “IEPA”) had charged the Claimant with “gross misconduct” in connection with the alleged dumping of waste into the environment. An administrative hearing officer dismissed the claims due to lack of evidence, and the claimant sought recovery of his fees in this Court. In denying the Claimant's claim, the Court found that the Claimant had not met his burden of proof to show that the IEPA had acted without reasonable cause in alleging “gross misconduct” in the first place. “[T]he hearing officer found that there was a discharge…, but that the discharge was ‘essential maintenance’ allowed by the State…” the Court wrote, “It cannot be said that the allegations made in the Amended Complaint were without reasonable cause.” Id.

In the instant case, the OIG, in making its finding, relied on interviews with Claimant, the facility staff, the responding emergency medical personnel, in addition to the coroner's report, and the resident's records. It is undisputed that IK's records reflect that she was to receive a “soft” diet. Claimant claims distinction between “soft” diet and “mechanical soft” diet. However, the OIG reasonably relied on the facilitys policy which states that soft foods be chopped or ground.

OIG also reasonably relied on the testimony of a staff member, confirmed by another staff member, which indicated that Claimant was orally advised of IK's mechanical soft diet requirement. Further, it was proper for OIG to consider the report of the paramedics, which indicated that they removed a one and one-half inch, by one and one-half inch, piece of meat from IK's throat while attempting to resuscitate her.

Based on all the facts and evidence that were available to OIG at the time of its investigation, it was not unreasonable for OIG to conclude that Claimant had committed egregious neglect. Claimant has failed to establish that the allegation made by the agency was without reasonable cause. The Claimant, therefore, is unable to sustain his burden of proof, and his clam for attorneys fees is denied.

IT IS HEREBY ORDERED that this Claim be denied.

ORDER

This cause comes before the court on the Claimant's Motion to Reconsider. The Respondent filed an answer, and the Claimant filed a response. The Court having read the briefs and being fully advised in the premises finds:

On October 5, 2011, the Court found that Claimant failed to meet his burden to prove that the Office Inspector General's (OIG) allegation of egregious neglect against Claimant was without reasonable cause, a necessary element of an attorney's fee claim brought under 5 ILCS 100/10-55, and denied his attorney's fee claim. Claimant argues this decision was in error because the Court failed to adequately take into account that the OIG had conducted an incompetent investigation. Specifically, Claimant cites the OIG's alleged failure to identify, preserve and consider pertinent evidence that was required and that would have, Claimant argues, made it clear that no reasonable cause existed to warrant OIG's finding of egregious neglect.

The Court fully considered all the evidence and arguments in this matter. Among the evidence that was not in dispute was that the Claimant served a dinner consisting of chopped-up pieces of pot roast to a 77-year-old patient with severe mental retardation, Tourette syndrome and various other health issues. The patient later became unresponsive and died. When the Paramedics arrived, they removed a piece of meat that was 1 1/2 by 1 1/2 inches from the patient's throat. The Court does not believe that the missing evidence cited by the Claimant in his petition would have necessarily overcome these facts in terms of the finding of egregious neglect by a state agency charged with investigating claims at a pre-administrative level.

The Court is certainly sympathetic to a claimant who, as here, must pay for his own defense against charges that are later found to be unsubstantiated. The Claimant also raises valid points regarding the quality of the OIG investigation and the public interest served by requiring state agencies to proceed carefully in these endeavors. However, the OIG's duty to follow certain evidentiary and procedural rules, and whether it breached same, was not at trial in this matter. This Court was to determine solely whether the Claimant could prove that OIG lacked reasonable cause, at the time, to initiate an allegation of egregious neglect. The evidence adduced at trial did not support such a finding.

For the reasons set forth herein, IT IS HEREBY ORDERED that Claimant's motion to reconsider is DENIED.

FOOTNOTES

1.  in any contested cause initiated by any agency that does not proceed to court for judicial review and on any issue where a court does not have jurisdiction to make an award of litigation expenses under Section 2-611 of the Civil Practice Law, any allegation made by the agency without reasonable cause and found to be untrue shall subject that agency making the allegation to the payment of the reasonable expenses, including reasonable attorney's fees, actually incurred in defending against that allegation by the party against whom the cause was initiated.

BURNS, J.