EP 602- Sexual Assault Case

Episode Notes

Transcript

Announcer:

Welcome to The Jury is Out a podcast for trial attorneys who want to sharpen their skills and better serve their clients. In a recent sexual assault trial in Champaign County, Illinois, the Simon Law Firm won a $535 million verdict. A 13-year-old girl was raped at the Pavilion Behavioral Health facility. The jury found pavilion failed to take proper measures to keep her safe. Let’s turn now to the firm’s founder, John Simon, lead attorney Tim Cronin and associate attorney Nathan Perlmutter for details of the case.

Tim Cronin:

We had a case that recently went to trial that was about our minor client, we’ll use her initials at, who was unfortunately raped while she was in a mental health facility, a behavioral health facility by another patient who was about three years older than her. And that’s what the case was about. A lack of security and a lack of keeping her protected that led to her being lured into another patient’s room and

John Simon:

S exually assaulted and raped. Among the issues, one of the primary issues was the housing where she was placed. It was what, a 30 bed unit. And they use the

Tim Cronin:

Unit across about 20 different rooms,

John Simon:

And they called it the Youth slash Adolescent Unit. And they housed patients from ages, I believe it was ages four to 17, both male and female,

Tim Cronin:

Except a witness told us on the stand that they had children as young as three. So

John Simon:

Yes, that’s right. And that was the thing to me that was the most surprising, shocking thing about the case initially was when I heard that actually we heard it through witness testimony when we were taking depositions, and I literally, I questioned it. It was from one of their employees. And I questioned that just like my gut reaction was, it couldn’t be. I mean, there’s no way you put a 4-year-old female and a 16-year-old male or 17-year-old male

Tim Cronin:

On the same unit. I, same unit would be no younger than 11 to 16,

Nathan Perlmutter:

17. And you’d think when you’re putting such a diverse group of people, you’d have a bunch of staff watching over them, but in reality, they only had two, maybe three people at a time during certain portions of the night, during a long portion of the night.

Tim Cronin:

So really the most powerful exhibit we had is the one that we kept. And what I think I said in closing, the only thing the jury needed in order to decide the case was to look at the map of the unit that night. And we had a map that showed where all the various rooms were, and we had an F for female, an M for male and blue and pink and coloring to show where everybody was in the unit that night. And it showed really no segregation between males and females. It showed 11-year-old females stuck in a corner of the unit around 16 and 17-year-old males. And we kept that up. I think it stayed up for every single witness through throughout the whole trial right next to the jury box. That kind of framed everything else that we did in the case. They were able to look at the unit and see how everything was housed that night.

John Simon:

And I think one of the challenging things in the case early on, we wanted information first. We were critical of the housing, how it was housed to begin with generally, generally having male and female patients together in that age group in the same unit. And then we started looking a little closer at every one of these patients has severe problems. They wouldn’t be there if they didn’t have mental health issues. And so we started thinking about what did they know about this young man who was 16 years old when they decided to place him, where they placed him. And the trouble that we had early on, and you guys remember this is for months and months, we couldn’t get the records. We couldn’t get the records of the minor, the other minors, 16, he was legally a minor.

Tim Cronin:

So we started asking for them 6, 7, 8 months before we actually started taking depositions. And we filed a motion to compel saying, we need these records to know what they knew about the assailant, the rapist. And we fought that. We won it with the court, and yet they continued to not be turned over. We had to go forward with taking the depositions. I think the first, John, you took the first seven, eight depos in the case after our clients were deposed our client and her mom and didn’t have the benefit of those records, and they wouldn’t answer any of those questions until before we even got the records. There was one former nurse from the unit who was willing, a former employee, former employee nurse, the person who the rape got reported to by our client two days after who was willing to, regardless of whether there would be consequences with disclosing privacy information, was willing to say the information that they knew about the assailant, that they knew he was aggressive and had a sexually violent history.

John Simon:

And I think that had a big, big effect on their decision, the defense’s decision to turn over the records.

Tim Cronin:

Yeah,

John Simon:

Because what she was saying, I mean said just as strongly what was in the records,

Nathan Perlmutter:

And she was the nurse in charge of the unit when he was admitted. And so she was the perfect person to talk about what they knew or didn’t know about

Tim Cronin:

Him.

Nathan Perlmutter:

So

Tim Cronin:

They turned over the records. I think they felt they had no choice and argued from the records that there were things in the records that are just mistakes. And actually he didn’t have a sexually violent history. While he did have a history of assaulting other patients and staff patients,

John Simon:

Employee staff

Tim Cronin:

And other facilities, and had punched out a second story window and jumped out, he was an elopement risk.

Nathan Perlmutter:

He tried to elope as soon as he got to the defense

John Simon:

Facility. Actually, as I recall the story was he was transferred directly from a facility in Chicago and in that facility he punched out a second story window

And jumped out the window and then was apprehended, I think by probably the Chicago police or whatever suburb it was in, and then was driven in a secured the records, remember the records said secured car to the facility in champagne. And then when he arrives in champagne, he somehow managed to escape custody of the two people and the secured car. And so literally the champagne police had to find them, apprehend them, put ’em in a police car, and he was brought, remember the note, there was a note in the medical record saying arrived in a police car. So he arrived at the unit of police

Tim Cronin:

Car from police car to unit,

John Simon:

From police car to this unit. I mean, that was the most shocking

Tim Cronin:

And put. So he was 16 years old. He was put in a room right next to our 13-year-old client.

Announcer:

It’s important to understand the questions and concerns about staffing for this youth and adolescent unit, the duties and responsibilities of the staff, their training and the proper ratio of patients to staff.

Nathan Perlmutter:

Well, this unit had three different shifts. They had a day shift from 7:00 AM to about three o’clock. And then what they called the evening shift was 3:00 PM to 11, and then a night shift from 11 to seven. And so we were mostly concerned about the evening and the night shift since that’s when a lot of the pertinent event occurs. And so during the evening shift, there was a four to one staff ratio, which means if there’s 28, 30 patients in that unit, they should have at least seven or eight staff members watching them all.

Tim Cronin:

And the unit was pretty much always fully staffed. I mean, we got information about the census and it was always, the average was like 28 or 29 of 30.

John Simon:

You said fully staffed? Fully, fully, fully. Patient occupied. Fully patient, fully occupied, right?

Nathan Perlmutter:

Yeah. The unit usually had about 28 or 29 patients out of the 30 available beds on any given day. And so once after that four to one staffing ratio, they went to the night shift, it went down to 10 to one, and one of those staff members was the nurse who had a lot of roles involved in the nurses’ station itself, such as filling medications. And a lot of ’em testified they never had the opportunity to leave the nursing station during their shift. So what you had were two other individuals who were called mental health techs or Mhts who only needed a high school education, had to be 21. And then they were hired on with a few days of training and were said, good to go. Two mental health techs were responsible for watching 30 patients in a hallway that when you did look at the map, it’s kind of hard to describe in words, but there would

Tim Cronin:

Be, so you have a hallway like this, and then it goes up and around and there’s a U. So there’s a long hallway where the girls and younger boys were supposed to be. We found out that they didn’t follow this and then a U, and they would have one person assigned to that U and you literally cannot be on one side of that U and seeing what’s going on on the other side.

John Simon:

And everybody agreed this was their own standard, that eyes on the halls at all times. Isn’t that what they said? That the biggest concern? Yeah, continuously. And the biggest concern was nighttime. The patients are in their rooms and what they didn’t want to happen was supposed to be in the rooms, which they weren’t want one patient to end up in another patient’s room. And so in order to prevent that, obviously you need to be watching the halls at all times. And they were supposed to do that in two ways. One, the mental health techs who had more to do than they could do to begin with, were also assigned that responsibility. And the evidence in the case was it was literally impossible and it was not really disputed by the personnel and the employees of the defendant. They all admittedIt was Impossible. They all admitted it was impossible to watch the hallways and do the jobs that they were assigned. For instance, 30 kids on this unit and their requirements, their regulations required them to assess and evaluate each of these patients every 15 minutes and document it. So in other words, each mental health tech had 15 patients and they needed to visit each of those 15 patients every 15 minutes document, several things in terms of their sleeping position. For instance, they had

Tim Cronin:

To go into their rooms,

John Simon:

Go into their room, watch and count three breaths to make sure they were okay. That’s why they were there to be watched. And so they had to do this 15 times every 15 minutes, once every 60 seconds go into a room and then also documented in the chart at the same time monitoring the hallways, which was absolutely impossible.

Tim Cronin:

They couldn’t do, even if they didn’t have to do that because two sides of

John Simon:

It. And then to top it all off, believe it or not, they had to do the laundry and admissions and paperwork, laundry, admissions discharges. And so the whole idea of going from a four to one to a 10 to one because it’s nighttime, just didn’t make any sense, didn’t make any sense at all. It

Tim Cronin:

Didn’t. And so to cap this off, Nathan talked about the staffing and that’s just if they have everybody there that they’re supposed to. And what we figured out when we got

Nathan Perlmutter:

The shift report,

Tim Cronin:

Right, the shift reports and the shift scheduled report is that on the evening shift, so the rape happens at about 11:15 PM on the evening shift. Leading up to that, there’s two other things that we got that I think showed that what happened was just completely unacceptable and unexplainable to show, try to say that it was reasonable. We got all the video footage from that night from the security cameras, and we’ll get into that in a second. And the evening shift where they’re supposed to have seven to eight staff for those 30 beds because it’s a four to one staffing ratio, half of ’em left early. So they actually only had three or four people there

John Simon:

And weren’t even the ones on that shift. Most everybody that we looked at were doing double shifts.

Tim Cronin:

They had worked at the day shift before that. Nathan figured that out. All

Nathan Perlmutter:

The people, all the people that left early had already worked an eight hour shift in the morning, and then they stayed later, but not for a second new entire shift. They

Tim Cronin:

Just stayed for. So they were having them do double shifts to try to meet their staffing ratio. But after 12 hours on, they went home. And the reason that was important, even though the rape happened at 1115 when the night shift had started is everything that happened in the hours before the rape. And we only learned that we were able to get the video, which again, we had to fight to get. We had to file motions, they opposed it. And then all of the video had to be edited to blur out the faces of other patients for privacy reasons, obviously. And so we got that video footage.

John Simon:

Well tell ’em how many cameras were on the, there’s

Tim Cronin:

17 cameras on the unit. They’re not in the patient’s rooms for privacy reasons, but they cover every portion of the hallways, including the exits. So there’s locked doors on the unit so they can’t get to the elevators and they can’t get to the stairwell doors. And then there’s other swing doors that can be closed and locked. We figured out they pretty much never did that. But there’s 17 cameras all over the unit, and there’s three that cover the hallway where our patient client was with the rapist and he had an accomplice. Lights out time is at 9:00 PM and because of that lights out time is one of their justifications for having less staff during the night shift. And they don’t enforce lights out time, which means having less staff if you’re going to have kids in the hallway anyway, doesn’t make sense. And about 75 minutes before this incident happened, the rapist and his accomplice had gone around and covered up the cameras in that hallway with toothpaste

John Simon:

Six different times.

Nathan Perlmutter:

And one of the things that was,

Tim Cronin:

And went back and did them again,

Nathan Perlmutter:

That was so consistent, is if you saw them do that, you would’ve told them to stop. If you noticed afterwards that the cameras are covered, you would’ve investigated it and they had 75 minutes

Tim Cronin:

Keep an eye on the kids who were covering up the, there’s a reason they’re doing it.

Nathan Perlmutter:

Exactly. And they had 75 minutes and no one noticed it or no one did anything about it. And it was just a huge period of time where a really obvious observation could have been made for

Tim Cronin:

An hour and a half before that, an hour and a half after that. There’s repeated misconduct in the hallways.

John Simon:

And it was about 400 hours of videotape that we went through. And this was all security videotape. I mean, this hadn’t anything to do with treatment. It was security video. And what we found out, it’s interesting, every time we pushed a little bit further and asked more questions, what we found out, it surprised us even more than what we already knew. And one of the things was there are monitors, there’re security cameras, there had to be monitors. So where are they? Well, they’re in the nurse’s station, literally right in front of the nurse’s desk that the nurse is sitting down at the nurse’s station and the monitors to these 17 cameras are right in front of her. And we know the cameras were blocked for an hour and a half or 75 minutes, and we could tell that from the timestamps on the video. And yet here she is supposedly in the office with several of the monitors whited out. And so we find out that you want to ask the question who’s supposed to be watching the monitors? You have security cameras who is assigned to watch. And so we found out, the more we pushed and asked questions was literally that no one was in the whole place was assigned the responsibility to watch the security cameras,

Tim Cronin:

Not just that night ever.

John Simon:

Ever. And then the other thing too that was interesting, obviously, what’s the next question? Well, who made that decision? It doesn’t sound like a good decision. And we pressed and pressed with that, and we were told that the executive committee consisting of the CEO, the risk manager and the chief nursing officer had monthly safety meetings. And that issue was discussed at monthly safety meetings. And up until the time of our incident and even after, they still decided not to assign anyone to watch the security cameras

Tim Cronin:

As of the last day of trial

John Simon:

Still, which I thought was just inexcusable.

Tim Cronin:

Yeah, crazy. They have no secure, I mean, they don’t hire any security guards for the unit or to be elsewhere in the building to watch the monitors. Obviously if you have somebody watching the monitors, they notice something like that’s going on in addition to the fights going on in the hallways between these particular kids going in and out of our client’s room that night leading up to it.

John Simon:

I mean, one 30 in the morning, there were kids, we looked at some of the video. This happened at 1115, lights out was at nine and one 30 quarter to 2:00 AM and we’re watching a video of kids literally running through the hallways, fighting horsing around whatever. Actually there were a couple of fights that we actually saw on the video.

Tim Cronin:

Yeah, I mean they were even messing with the one staff member who was in the hallway, supposed to be watching him, looked

Nathan Perlmutter:

Inappropriate conduct with other patients, inappropriate conduct with our client, inappropriate conduct with the staff

Tim Cronin:

Who was sometimes sitting in a chair looking at a cell phone.

John Simon:

And that particular tech, the mental health tech, I think had been there for a couple months. And when asked at his deposition, well actually we presented the video of him being pulled down the hallway by a patient in a chair,

Tim Cronin:

Them

John Simon:

Taking his cell phone from him, taking a cell phone from him. And the last question that we asked him at his deposition was we showed him the clip and said, what’s going on there? And he said, I guess I lost control. And if you look at the video, I don’t think there ever was any semblance of control at all. I mean, it just paints a picture. And this isn’t just a spur of the moment, something that happened as in somebody turned away for two seconds and this happened. Every single thing that they did, everything that they planned seemed to be profit motivated, and all of it was as if it was designed for this to happen dangerously low staff, nobody watching the security cameras housing. And we got testimony from current and former employees basically saying they were told fill the beds. Fill the beds, was the

Nathan Perlmutter:

Yeah.

Tim Cronin:

So increased average daily census, which is average number of patients occupying the beds per day, increased length of stay, which is mind numbing to think that that’s a goal that you have at a hospital is to increase length of stay, not help them get better and get out and then decrease the employee preoccupied bed ratio. So less staff, preoccupied, bed cut staff reduce overtime. It was all about money.

Nathan Perlmutter:

And those metrics, to be clear, are what we’re directed and reviewed. That’s how you reviewed the CNOs, the chief nursing officers and unit managers performance

Tim Cronin:

Of

Nathan Perlmutter:

That year. So those weren’t just corporate goals. They were like the nurse in charge of everything. That’s what she’s supposed to be focusing on is increasing length of stay, ensuring patients are at the

John Simon:

Hospital. One of the things we wondered about was how can this go on and continue and go on for this long and still nothing be done and no changes. And we kind of caught on pretty quickly that it’s because it’s a sealed unit. The parents aren’t allowed up there. The public’s never allowed there, nobody’s up there. But the staff and whoever’s happens to be looking at the security camera

Tim Cronin:

And nobody’s coming to review the place at night when it’s most dangerous. And the kids are, it matters where they’re

John Simon:

Roomed and during the day they have staffing, what, four times higher. But no, it is just a situation where you just wonder. And the jury got that they recognized there were systemic issues. It wasn’t a one-time, one-off kind of deal, but it was a system that was really designed for profit, not for patient care, not for patient safety. That wasn’t the priority. And I think you summed it up, Tim, with they’re paid to protect and they profit from neglect. And that’s kind of the theme that we went with the frame in the case,

Tim Cronin:

One of our experts, I thought, did a good job explaining the number of things, the number of failures you have to have and institutional, systemic failures to let this something like this happen. It’s like lining up pieces of Swiss cheese. So I mean, first of all, if you had just housed more safely with doors that lock in between so that she never would’ve been in a room next to a patient like this, if you would’ve made sure you had adequate monitoring for a patient with the past, the assailant had, if you had enough staff there to watch all the hallways at night to make sure nobody gets in each other’s rooms. If you have somebody who is watching the security cameras, the number of things that have to line up for something like this to happen should never ever happen.

Nathan Perlmutter:

Even just one of those things being prevented could have prevented this from occurring. But what they all failed.

John Simon:

I think overall, every once in a while you don’t just have a case, you’ve got a cause. And that’s kind of what happened here as we were working on the case and finding more and more information about what was going on and how they were running things. And at some point, and I dunno exactly when it was, but at some point it quit being just a case and it became a cause. And I think to me, what happens next and what comes out of this, the one thing that’s the most important thing I think that’s already come out of it is it’s bringing attention to the problem. And it makes you wonder if that’s going on at this facility, what’s going on at other facilities. And that’s a big, big part of it. And I think the jury saw that clearly early on in the case that we’re here because it’s still going on and we’re here to try to do what we can to have ’em make some changes that are legitimate security and safety changes. And I think just changing the whole approach in philosophy instead of trying to squeeze every dime out of every patient’s admission to actually do something crazy like put the patient’s interest first.

Nathan Perlmutter:

Yeah, I feel like it really transformed from a case to a cause when we realized this wasn’t just one slip up on one bad night. This was them acting business as usual. And in this happening as a result, the culmination of so many systemic failures,

Announcer:

Hopefully this $535 million verdict will indeed change the business model that puts profits over patients. It’s critical to put patient care at the forefront.

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