WV Supreme Court: DHHR not responsible for man’s death - WBOY.com: Clarksburg, Morgantown: News, Sports, Weather

WV Supreme Court: DHHR not responsible for man’s death

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The West Virginia Department of Health and Human Resources was not responsible for the death of a man who choked on his food and died because of found deficiencies within the facility he was staying in, West Virginia Supreme Court justices recently ruled.

Justice Margaret Workman delivered the opinion June 12, reversing and remanding a Kanawha County Circuit Court's decision to deny summary judgment on qualified immunity grounds against the West Virginia Department of Health and Human Resources, the West Virginia Office of Behavioral Health Services, the West Virginia Bureau for Medical Services and the West Virginia Office of Health Facility Licensure and Certification.

In the opinion, justices said the executors of the deceased's estate did not present any evidence that the DHHR failed to properly conduct inspections or require implementations of plans of correction.

"In short, the regulations do not require the DHHR defendants to micro-manage the daily functions of the facilities within their regulatory enforcement power to ensure constant, unwavering compliance in all aspects of their affairs," the opinion states. 

This decision stems back to February 2007 when 22-year-old Craig Allen Payne — who had severe cerebral palsy, causing him to have difficulties eating — died after choking on a hot dog during his stay at the Nitro DEAF Education and Advocacy Focus Inc day habilitation center.

West Virginia Advocates and the DHHR's Office of Health Facility Licensure & Certification investigated the facility after Payne's death, finding "serious deficiencies" threatening clients' health, safety and welfare, the opinion states.

The investigation further found Payne should have been given a modified diet and that the staff member in charge of feeding him was a newly-hired former felon who did not have proper training on the Heimlich maneuver or have special instructions on Payne's needs.

Authorities also found, the opinion continues, that the facility did not have an emergency plan in place. So, when Payne choked, there were delays in contacting emergency services, the opinion states.

DEAF's license was revoked in 2007; however, this was not the first time a revocation happened. According to the opinion, DEAF's license was revoked a year before Payne's death but reinstated upon a written plan of correction.

Payne's parents, Gregory Payne and Betty Jo Payne, filed the suit later that year against the DHHR, DEAF and Brailey & Thompson Inc., a DEAF service provider.

The Paynes alleged the DHHR defendants should have monitored and enforced the standards of care.

Licensing was one of the topics in which the Paynes took issue, saying DEAF should not have continued to be licensed after 2006.

However, justices said the deficiencies leading to the 2006 revocation "were quite different in character" than those contributing to Payne's death.

Justices additionally said the intervening plan of correction was implemented to correct those deficiencies and "nothing in the record demonstrates that they were not implemented."

The opinion states the Paynes did not provide evidence supporting that the DHHR was previously aware of deficiencies that contributed to Payne's death. 

DEAF and Brailey & Thompson later settled for $850,000 and the DHHR moved to dismiss the Paynes' suit.

However, the circuit court denied the DHHR's motion, saying there were "disputed material facts … which could allow the trier of fact to determine that the decisions made by the defendants in connection with and relating to plaintiffs' claim were not discretionary."

Reversing and remanding the case back to circuit court to grant summary judgment in favor of the DHHR and dismiss the action against it, justices said the lower court's order failed to identify the material facts in this case and also failed to identify actions that were outside of the DHHR's scope.

"Respondents seem to argue simply that if the DHHR defendants were doing their job properly, this incident would not have occurred. … Although, this overly simplistic analysis may be appealing in light of these tragic events, qualified immunity insulates the state and its agencies from liability based on vague or principled notions of government regulation."

"Requirements for stronger oversight and monitoring of facilities such as DEAF may be wise; however, it is for the Legislature to impose such requirements," the opinion later states.