Attorneys for Kinkel family respond to motion to dismiss wrongful-death claims

By Pat Pratt

ppratt@timestribunenews.com

Attorneys for the family of Kathleen Kinkel have responded to a motion to dismiss a wrongful-death lawsuit filed against the Troy memory-care facility where she resided – challenging claims raised by Aspen Creek Management Inc. that expert testimony must accompany the complaint and the facility is not a nursing home as defined by state law.

Kinkel was found dead by facility staff at about 8:15 a.m. Jan. 31 in a field approximately 54 steps away from Aspen Creek of Troy, 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 until six hours later. 

Following the state’s investigation, attorneys with Cueto Law of Belleview, which is representing Kinkel’s husband Thomas Kinkel, filed a wrongful death lawsuit in Madison County Court. The complaint lists three counts – one each under the Survival and Family Expenses Act, the Nursing Home Care Act and the Wrongful Death Act. 

Defense attorneys with the Chicago law firm Kitch Drutchas Wagner Valitutti and Sherbrook in late April challenged each of those counts in a motion to dismiss the lawsuit with prejudice, meaning it can not be refiled. 

In the motion to dismiss, defense attorneys argue a written report by a healthcare professional attesting to the negligence is required and that was not filed with the complaint. 

In the count filed 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.

Cueto Law, in a response to the motion to dismiss filed May 12, countered each of those claims. 

Regarding the need for expert testimony, attorney for the plaintiff James Radcliffe challenges that the average juror will know that Kinkel should not have been left outside the facility on the coldest day of the year. 

“It is within the average juror’s knowledge that an elderly dementia patient should not be left outside on the coldest day of the year and expert testimony is not required to establish that practice,” Radcliffe stated in the responsive motion. 

Radcliffe continued it is not the Kinkel’s who are pursuing a medical malpractice complaint anyway, rather that is a premise raised by the defense in its motion to dismiss. 

He said the wrongful death complaint at hand alleges rather that Aspen Creek failed to properly monitor Kinkel, who wandered outside and froze to death.  

“Defendants’ alleged tortious conduct did not involve medical judgment – employees simply failed to properly supervise Kitty resulting in her freezing to death,” Radcliffe wrote. 

Regarding Aspen Creek’s claims it is not a nursing home under the statutory definition, Radcliffe writes attorneys for the plaintiff do not have enough information at this juncture to determine whether it is or not. He suggests in the responsive motion, it could be a hybrid facility – part long-term care and part assisted living. 

“The complaint alleges defendant advertises itself as a memory-support residence, which may implicate the Nursing Home Care Act,” the responsive motion reads. “Beyond bare assertions, defendant provides no proof it is not a long-term care facility.” 

The Kinkel family is requesting the motion to dismiss be denied. If parts are granted, attorneys for the family ask for leave to file an amended complaint.  A June 1 hearing on the motions with Circuit Judge Dennis Ruth presiding was continued to June 29 following a request by Aspen Creek. 

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.