Motion to dismiss hearing reset in suit against Troy memory care facility
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By Pat Pratt
ppratt@timestribunenews.com
A Madison County judge has reset a motion to dismiss hearing to mid-August in a wrongful-death lawsuit brought by the family of a Troy memory care facility resident who was found dead in January.
Kathleen Kinkel was a well-known resident of Troy who was found dead Jan. 31 after leaving the memory-care facility where she resided, Aspen Creek of Troy. An ensuing state investigation found a door alarm sounded when she left about 2 a.m. that day, but staff repeatedly failed to locate her. The facility was fined for several violations following the investigation.
Following her death, her husband Thomas Kinkel filed a wrongful-death lawsuit against the company that manages the facility, Aspen Creek Management Inc. Attorneys for the company are currently seeking to have the lawsuit dismissed.
A hearing on Aspen Creek Management’s motion to dismiss was set for June 29. Circuit Judge Dennis Ruth that day reset the hearing for Aug. 17. In his order, he gave the defense leave to file testimony from company owner and president Teresa Crawford.
Ruth also extended the docket scheduling to allow for the plaintiff to file a supplemental reply to the motion to dismiss and time for Aspen Creek Management to respond.
Following the state’s investigation into Kinkel’s death, 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. They challenged that the plaintiff’s complaint needs to be supported by expert testimony and that Aspen Creek of Troy is not a nursing home under the statutory definition.
In a response to the motion to dismiss, Cueto Law countered each of those claims. The plaintiffs responded expert testimony is not needed to show a jury Kinkel should not have been left outside the facility on the coldest day of the year. They also say it’s too early in discovery to ascertain if the facility is a nursing home or a hybrid facility.
On Jan. 31, the day she died, Kinkel put on her coat at 2:14 a.m. and walked out the door of the facility located at 1924-1926 SRA Bradley R. Smith Drive This triggered an alarm. Staff responded about three minutes later at 2:17 a.m.
They would later say they did not see any footprints in the snow and while they did not enter her room, it appeared she was in bed.
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, according to investigative documents.
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.
