Mark Michel v. State of Illinois

OPINION

BURNS, J. This claim is before the Court upon a recommendation from Commissioner Herbert B. Rosenberg following an evidentiary hearing.

Claimants, Mark Michel, Individually and as the Independent Administrator of the Estate of Robert Brian Michel, deceased, Brian Michel, Kevin Michel, and Melissa Michel are seeking damages for the death of Robert Brian Michel. Claimant is requesting $100,000 in damages for each of four surviving children of Robert Brian Michel. The four surviving children are: Mark Michel (son), Brian Michel (son), Kevin Michel (son), and Melissa King (f.k.a. Melissa Michel; daughter). In February of 1998, Robert Brian Michel was serving a sentence at the Illinois Department of Corrections facility in Taylorville, Illinois, an agency of Respondent. Claimant alleges that Respondent is liable for the death of Robert Brian Michel due to negligent medical care provided to Mr. Michel that fell short of the requisite standard of care.

Evidentiary hearings were held before Commissioner Herbert B. Rosenberg. Ms.

Kimberly Halvorsen of Clifford Law Offices and Mr. Timothy Tomasik of Tomasik Kotin Kasserman appeared on behalf of the Claimant. Mr. Martin Burzawa from the Office of the Illinois Attorney General appeared on behalf of the Respondent.

FACTS

The evidence in the record shows that Robert Brian Michel died of a heart attack on Monday, February 16, 1998, while an inmate incarcerated at the Taylorville Correctional Center (“Taylorville”). Prior to his heart attack, Mr. Michel was treated by the nurses in the medical unit at Taylorville on Saturday, February 14, 1998 and Sunday, February 15, 1998. On the dates of those visits and at the time of Mr. Michel’s heart attack, Respondent had entered into a contract with Wexford Health Sources, Inc. to provide the health care services at Taylorville.

On February 14, 1998, Mr. Michel was taken to the medical unit at Taylorville where he was seen by Nurse Alde, a registered nurse. Nurse Alde was relieved by Nurse McCoy at 11:00 p.m. Mr. Michel was observed during the night and was released back to the housing unit the [*96] following morning on February 15, 1998 by the nurse on the Sunday dayshift. On the morning of February 16, 1998, the Taylorville prison guards spotted Mr. Michel buckled over, sweating, and exhibiting signs of having difficulty breathing. At the insistence of the guards, Mr. Michel was taken to the medical unit at Taylorville. At the time, Mr. Michel was exhibiting numbness in his extremities, shortness of breath, chest pain, sweating, and irritability. Mr. Michel again received treatment but went into cardiac arrest. Mr. Michel was transported by ambulance to St. Vincent’s Hospital where Mr. Michel died.

LEGAL ANALYSIS

The State has a duty to provide inmates with proper medical care, and the State must exercise ordinary and reasonable care under the circumstances of the case. Williams v. State, 53 Ill. Ct. Cl. 135 (2001). However, prior to seeking a final determination of a claim against the State, Claimants have an obligation to exhaust all other remedies and pursue all other sources of recovery. See 705 ILCS 505/25 and 74 Ill. Admin. Code 790.60. This rule is statutory and mandatory. Rubidoux v. N.E. Ill. Univ., 51 Ill. Ct. Cl. 275 (1998). The exhaustion of remedies requirement will bar a claim for damages when recovery has not been sought from all other potential sources. Id.

In the present case, the claims being pursued against the State allege that the medical care provided to Robert Brian Michel at Taylorville fell short of the proper standard of care which resulted in Mr. Michel’s death. Claimant provided an expert witness, Nurse Cheryl Randolph to establish the standard of care for nursing and explain how the nursing care provided to Mr.

Michel fell short of the required standard of care. Claimant also provided an expert witness, Dr.

Marc Tenzer, M.D. to establish the standard of medical care and explain how the medical care provided to Mr. Michel fell short of the required standard of care. Based on the totality of the evidence entered into the record, it is clear that the medical care provided to Mr. Michel at Taylorville fell short of the standard of care required to treat a patient exhibiting the cardiac symptoms that Mr. Michel was exhibiting during the time period of February 14th to February 16th in 1998. This breach of the standard of care was a proximate cause of Mr. Michel’s death. It is clear from the testimony of Claimants’ experts that had Mr. Michel received medical care that conformed to the necessary standard of care, he very likely would have survived.

Respondent has presented as an affirmative defense that the Claimant did not exhaust all available remedies prior to pursuing this claim against the State in the Court of Claims.

Respondent alleges that the medical personnel that provided the insufficient care to Mr. Michel were actually employed by a third party, Wexford Health Sources, Inc. (“Wexford”), an independent contractor which was originally contracted to perform the medical services at Taylorville in 1998. The general rule is that one who employs an independent contractor is not liable for the acts or omissions of the latter. Freeman v. State, 55 Ill. Ct. Cl. 329 (2003).

Therefore, Claimant had a cause of action against Wexford which needed to be exhausted before pursuing a claim against the State. As support for its position, Respondent has provided a copy of a contract between the State of Illinois Department of Corrections and Wexford which covered the time period of January 1, 1997 and December 31, 1999.

[*97] From a review of the contract, the plain language of section 4.1 identifies Wexford as an independent contractor. However, under the law, whether a person is indeed an employee or an independent contractor is a factual determination and many factors must be considered. Freeman at 334. No single factor is determinative, but the right to control the manner in which the work is done is the most important factor to be considered. Id. The contract between the State and Wexford places the obligation of hiring personnel on Wexford and makes Wexford responsible for the training of all health care personnel employed. Wexford is also responsible for providing all pharmaceuticals and medical supplies necessary to provide the health care at certain Illinois Department of Corrections facilities. The contract provides for one monthly payment from the State to Wexford each month. The State does not make any payments directly to the health care personnel. The contract additionally makes Wexford responsible for providing professional liability insurance to cover the acts of the health care personnel. While staffing levels are set forth in the contract, the contract only specifies the hours needed for different health care positions each week. Wexford ultimately determines the individual person who will fill the specified weekly on-site hours at the respective Illinois Department of Corrections facility.

With respect to the health care individuals that provided medical services to Mr. Michel, in their depositions they all identified themselves as being employed by Wexford. They did not identify themselves as being employees of the Illinois Department of Corrections. Additionally, Nurse McCoy testified that when she was terminated from her position at Taylorville the person that terminated her employment was employed by Wexford and not the Department of Corrections. The director of nursing, who identified herself as being employed by Wexford, testified that her responsibilities included hiring, firing, and making sure that protocol was followed. The medical director, who identified himself as being employed by Wexford, testified that his responsibilities as medical director were for patient care.

From a review of the contract and testimony of the health care providers, the evidence shows that the individuals that provided health care services to Mr. Michel were employees of a private health care firm and not employees or agents of the State. This is consistent with our decisions from the Court of Claims that have recognized Wexford as a third party that must be sued in order to exhaust all remedies before pursuing a claim against the State in this Court. See Smith v. State, 58 Ill. Ct. Cl. 188 (2005). As Wexford is an independent contractor, any medical care provided to Mr. Michel that did not meet the necessary standard of care would be a claim for medical malpractice against Wexford. Therefore, it was necessary for Claimant to have pursued a remedy against Wexford before proceeding on any claim against the State in this Court.

Claimant responds that Respondent’s exhaustion of remedies defense was previously rejected by this Court. The defense was raised in a Motion to Dismiss on June 7, 2004 and a Second Motion to Dismiss on March 19, 2007. These motions were denied on April 6, 2006 and June 12, 2007, respectively. However, subsequent to these motions, Respondent was granted leave to file its affirmative defense by Commissioner Apostol on November 8, 2007. As a nondispositive motion, Commissioner Apostol was authorized to grant a motion for leave to file under the Administrative Code. See 74 Ill. Adm. Code 790.200(d). Respondent also raised the exhaustion of remedies defense in a Motion for Summary Judgment on June 24, 2009, which was denied on April 15, 2010. However, summary judgment is only proper when there is no [*98] genuine issue of material fact to be determined. See 735 ILCS 5/2-1005(c). In this case, the determination of whether the health care rendered to Mr. Michel was provided by employees of the State or an independent contractor is a factual determination. Freeman at 334. This fact had to be determined before a legal judgment could be rendered by this Court.

Claimant also alleges that Respondent actively misled Claimant by not identifying the health care workers that provided medical services to Mr. Michel as employees of Wexford until 2004, which allegedly prejudiced Claimant because the information was not provided until after the statute of limitations to sue Wexford had expired. From a review of the procedural history, the failure to timely pursue an action against Wexford was not caused solely by the Respondent.

Mr. Michel died on February 16, 1998. Claimants did not initiate a wrongful death claim in this Court until February 10, 2000, which is only 6 days before the two year statute of limitations for a wrongful death claim expires. Much like in the case Lyons v. State, 34 Ill. Ct. Cl. 268 (1981), Claimants waited until the statute of limitations period was about to expire to file a claim and conducted no discovery before the statute of limitations expired. Claimants did not submit a request for any discovery to Respondent until the statute of limitations to sue Wexford had already expired. Regardless of Respondent’s answer to Claimants’ discovery, Claimants could not sue Wexford at that time due to the expiration of the statute of limitations. The fact that Claimant can no longer pursue a potential remedy cannot be a defense to the exhaustion requirement. Id. Claimants had two years to investigate their claims, file a complaint, and conduct discovery. This was sufficient time to become aware of other potential third party tortfeasors.

IT IS HEREBY ORDERED that Claimant’s claims are denied due to Claimant’s failure to timely exhaust all other remedies and all potential sources of recovery prior to pursuing a claim against the State in the Court of Claims.