By Pat Pratt
Aspen Creek Management Inc. is asking a Madison County judge to dismiss a wrongful-death lawsuit filed after a resident of its facility in Troy walked into the cold and, despite the sounding of a door alarm, was not located by staff for approximately six hours.
Kathleen “Kitty” Kinkel was found dead by facility staff at about 8:15 a.m. Jan. 31 in a field approximately 54 steps away from the facility located at 1924-1926 SRA Bradley R. Smith Drive. An ensuing Illinois Department of Health investigation showed she left the facility at 2:14 a.m. that day and staff heard the door alarm, but did not seek to physically locate her.
Following the state’s investigation, Kinkel’s husband Thomas Kinkel filed a wrongful death lawsuit in Madison County Court. In his complaint, Kinkel listed three counts, one each under the Survival and Family Expenses Act, the Nursing Home Care Act and the Wrongful Death Act.
Attorneys for Aspen Creek recently responded to the complaint with a motion to dismiss all three counts with prejudice, meaning the litigation can not be refiled.
In the motion to dismiss, attorney Micheal Walsh of the Chicago law firm Kitch Drutchas Wagner Valitutti and Sherbrook writes two of the counts – the Survival and Family Expenses Act and the Wrongful Death Act – lack a required written report by a healthcare professional attesting to the negligence.
This omission, Walsh states, requires the court to dismiss both of those counts with prejudice.
“Here, there is no 2-622 report, nor is there an affidavit from plaintiff’s counsel attesting to the fact they have consulted with a qualified healthcare professional regarding the facts and circumstances of the case,” the motion states. “Pursuant to 735 ILCS 5-2-619 (a)(9) failure to provide a 2-622 report is grounds for dismissal.”
On the remaining count, brought by Kinkel under the Nursing Home Care Act, Aspen Creek claims it is not a nursing home under the statutory definition and therefore that count should be dismissed as well.
Walsh writes the location in Troy is a “shared housing facility” and therefore governed by the Assisted Living and Shared Housing Act.
“It is not a skilled nursing facility as contemplated by the Illinois Nursing Home Care Act,” the motion to dismiss states. “As such, count II of plaintiff’s complaint should be dismissed with prejudice since Aspen Creek, based upon allegations in plaintiff’s complaint, does not fall within the purview of the Act.”
Cueto Law of Belleville, which is representing Kinkel, had not filed a response to the motion to dismiss as of press time. Judge Dennis Ruth has set a motion hearing in the matter for 1:30 p.m. June 1 in Madison County Court.
Kathleen Kinkel was a well-known resident of Troy having served 26 years as a real estate agent for Century 21 Harrison Group, according to her obituary. She began residing at Aspen Creek on Dec. 28, 2022 about a month prior to her death, which triggered an investigation by the Illinois Department of Public Health.
Among several violations which resulted in a $4,000 fine for Aspen Creek, investigative documents provided by the state also show on the evening she left the facility, Kinkel expressed she wanted to go home.
“Around midnight, (Kinkel) was angry and combative and wanted to go home,” staff reported, according to the IDH investigation. “I assisted her back to her room and she got in bed so I left the room and turned out the light.”
About two hours later, Kinkel put on her coat and at 2:14 a.m. Jan. 31 walked out the door. This triggered an alarm. Staff responded about three minutes later at 2:17 a.m.
“The alarm for back door building went off so I looked at the cameras and only saw a different resident walking,” staff reported according to the IDH investigation. “We then walked over to building b and checked the back door and the light on the keypad was green so I peeked my head outside and saw nobody and saw no footprints in the snow right outside of door.
“We then went and checked all the residents’ rooms and when we looked in (Kinkel’s) room it looked like she was laying in bed so we didn’t go all the way in there.”
Three more hours would pass before staff would make another required end-of-shift count of residents. Again during the 5:30 a.m. count, staff still did not seek to physically locate Kinkel. Day shift staff arrived at 6 a.m. and told investigators that they were informed “everything was ok” and all residents were accounted for.
It was not until 8 a.m. Jan. 31 that staff coming on-duty realized Kinkel was missing, informed the duty nurse and initiated a search. During the search, the nurse spotted Kinkel in a nearby field about 54 steps away from the door she exited.
National Weather Service records show the temperature at 7:25 a.m. Jan. 31, about an hour before Kinkel was found, was 11-degrees.