Free Amended Complaint - District Court of Arizona - Arizona

A. James Clark, #002901 CLARK & MOORE 2 256 South Second Avenue, #E Yuma, AZ 85364 3 Telephone (928) 783-6233 [email protected]
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Attorneys for Plaintiff Rubecca Mikkelsen, etc.
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John A. Micheaels -- 05917 BEALE, MICHEAELS & SLACK, P.C. 1440 E. Missouri Avenue, #150 7 Phoenix, Arizona 85014 (602) 285-1444 8 [email protected]
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Attorneys for Plaintiff Dennis Mikkelsen UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA
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RUBECCA MIKKELSEN, surviving) spouse of Kelly Mikkelsen, deceased) and personal representative of the) Estate of Kelly Mikkelsen, on behalf of) MILES MIKKELSEN, JERRET) MIKKELSEN and ALLISON) MIKKELSEN, the minor children of) Kelly Mikkelsen, deceased, and on) behalf of DENNIS MIKKELSEN,) natural father of Kelly Mikkelsen,) deceased; and on behalf of TAYLOR) R. FOX, a minor, by her next friend) and natural mother, TRACY FOX-) TANGA, ) ) Plaintiffs, ) ) vs. ) ) C O R R E C T I O N A L H E A L T H) RESOURCES, INC., a foreign) corporation; KENNETH L. FAIVER) and JANE DOE FAIVER, husband and) wife; JOSEPH EDWARD RICH, M.D.) and JANE DOE RICH, husband and) wife; DOES I through V, inclusive, ) ) Defendants. ) ______________________________ )

No. CIV 02-2252-PHX-JAT

THIRD AMENDED COMPLAINT (Assigned to the Honorable James A. Teilborg)

Case 2:02-cv-02252-JAT

Document 285

Filed 11/07/2005

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GENERAL ALLEGATIONS I. Plaintiff Rubecca Mikkelsen is the surviving spouse of decedent Kelly Mikkelsen and the Personal Representative of the Estate of Kelly Mikkelsen. Miles Mikkelsen, Jerret Mikkelsen and Allison Mikkelsen are the minor children of decedent Kelly Mikkelsen. Dennis Mikkelsen is the natural father of decedent Kelly Mikkelsen. Taylor R. Fox, a minor, is a minor child of decedent Kelly Mikkelsen. Tracy Fox-Tanga is the next friend and natural mother of Taylor R. Fox. Kelly Mikkelsen was a citizen of the United States. This action is brought for negligence, medical negligence, violation of the Arizona Vulnerable Adult Statute, A.R.S. § 46-451, et. seq., and violation of 42 U.S.C. § 1983, the Civil Rights Act of 1971.

II. Defendant Correctional Health Resources, Inc. (CHR) is a foreign corporation doing business in Arizona. Plaintiffs are informed and believe that CHR is a licensed health care provider in Arizona providing, by contract with Defendants Yuma County, Yuma County Adult Detention Center and Yuma County Sheriff's Office Jail District, medical and health care to inmates incarcerated in the Detention Center.

III. Defendants Kenneth L. Faiver and Jane Doe Faiver are, upon information and belief, husband and wife. At all times material hereto, Defendant Kenneth L. Faiver, individually and as the alter ego of Defendant Correctional Health Resources, Inc., has been conducting, managing and controlling the affairs of Defendant corporation since its incorporation, as though it were his own business, and he has used Defendant corporation for the purpose of defrauding Plaintiffs, as hereinafter set forth.

IV. Defendants Joseph Edward Rich, M.D. and Jane Doe Rich are, upon information and
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M.D. was acting in his official and/or professional capacity for Defendant Correctional Health Resources, Inc. V. The true names or capacities, whether individual, corporate, partnership, associate or otherwise, of Does I through V, inclusive, are unknown; and said Defendants, and each of them, are therefore sued by such fictitious names. Plaintiffs allege that each of the Defendants designated by fictitious names herein are responsible for the events and happenings alleged. Leave to amend is hereby reserved to add said Defendants' true names and capacities when known.

VI. As a direct and proximate result of Defendants' negligence, substandard medical care and the violations of the statutory provisions set forth herein, decedent Kelly Mikkelsen died on October 11, 2001; and Plaintiffs Rubecca Mikkelsen, Miles Mikkelsen, Jarrett Mikkelsen, Allison Mikkelsen, Dennis Mikkelsen and Taylor Fox have: 1. Lost the love, affection, companionship, care, protection and guidance of Kelly Mikkelsen since his death and will in the future; 2. Suffered pain, grief, sorrow, anguish, stress, shock and mental suffering already experienced and to be experienced in the future; 3. 4. 5. Lost the income and services of decedent; Incurred funeral and burial expenses; Incurred expenses for the necessary medical care and services prior to decedent's death. COUNT ONE (Negligence) VII. On or about October 11, 2001, Kelly Mikkelsen was confined in the Yuma County Jail also known as the Yuma County Adult Detention Center. At said time and place, Kelly
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Mikkelsen suffered from severe pain associated with a fracture of his right ankle and a severe illness resulting from the ingestion of Propoxyphene and Diazepam and was in poor mental and emotional health. Defendants had notice that Kelly Mikkelsen required medical care and attention to his ankle fracture, including appropriate medication and a prosthesis, and that Kelly Mikkelsen required immediate medical care and treatment as a result of the ingestion of drugs and as a result of his poor mental state; but Defendants did nothing to provide such medical care. On October 11, 2001, Kelly Mikkelsen died of mixed drug intoxication. Had proper and timely medical attention been provided, Kelly Mikkelsen's death would have been avoided.

VIII. Defendants and their employees and agents were negligent in failing to provide timely and proper medical care, treatment, attention and/or supervision to Kelly Mikkelsen. Defendants were also negligent in the hiring, training, supervision and/or retention of their respective employees and agents. Said negligence was a direct and proximate cause of Kelly Mikkelsen's death.

IX. The tortious conduct of defendant CHR and its employees and/or agents was intentional and/or in knowing and conscious disregard for the welfare, safety and protection of Yuma County Detention Center inmates, including decedent Kelly Mikkelsen, so as to warrant the imposition of punitive damages against Defendants CHR, Faiver and Rich.

COUNT TWO (Medical Negligence) X. On or about October 10, 2001, and October 11, 2001, in rendering medical services, nursing services and other health related services to Kelly Mikkelsen, Defendants and their employees failed to exercise the degree of care, skill and learning expected of a reasonable,
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prudent healthcare provider in the class to which they belong acting in the same or similar circumstances. The medical care and treatment provided to Kelly Mikkelsen fell below the applicable standard of care and the standard of care expected under the circumstances, and Defendants and their employees were negligent and careless and failed to conform to the standard of practice and care customarily exercised by similar healthcare providers. Defendants' medical negligence was a proximate cause of Kelly Mikkelsen's death.

COUNT THREE (Vulnerable Adult Neglect/Abuse) XI.

At all times material hereto, Kelly Mikkelsen, was an incapacitated and/or vulnerable adult under A.R.S. § 46-451, et. seq., and entitled to the protection afforded incapacitated and/or vulnerable adults under said statute and the laws of the State of Arizona. Defendants and their employees were required, by law, to take custody of Kelly Mikkelsen under circumstances such that he not be deprived of proper and timely medical care. Prior to Kelly Mikkelsen's death, Defendants and their employees took charge of Kelly Mikkelsen when he was helpless and inadequate to aid himself. XII. At all times material hereto, the life and health of Kelly Mikkelsen was being endangered and injured by the neglect and abuse of Defendants and by Defendants' failure and refusal to provide proper medical care and treatment to decedent while incarcerated in the Detention Center. Said action by Defendants violated A.R.S. § 46-451, et. seq., including, but not limited to, A.R.S. § 46-455. Plaintiffs are, therefore, entitled to recover actual, consequential and punitive damages from Defendants, as well as attorney's fees.

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COUNT FOUR (Violation of Civil Rights) XIII. At all material times, Defendants, under color of State law, regulation, custom, policy, procedure, usage or official decision, deprived decedent Kelly Mikkelsen of his civil rights and immunities guaranteed by the United States Constitution, including the right to be free from the infliction of cruel and unusual punishment. Acting with deliberate, reckless and/or callous indifference, Defendants, and each of them, denied required and necessary medical care and treatment to Kelly Mikkelsen, thereby subjecting him to excruciating pain and to his ultimate death. Plaintiffs are, therefore, entitled to the recovery of actual, consequential and punitive damages from Defendants, and each of them, as well as attorney's fees, as a result of Defendants' violation of 42 U.S.C. § 1983 and the Eighth Amendment to the United States Constitution. WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, on Counts One, Two, Three and Four of the Second Amended Complaint, as follows: 1. 2. 3. 4. 5. For compensatory general and special damages; For punitive and exemplary damages against all Defendants; For reasonable attorney's fees incurred herein, expended and accruing; For Plaintiffs' taxable costs herein incurred, expended and accruing; and; For such other and further relief as the Court may deem just and proper.

DATED this 7th day of November, 2005. BEALE, MICHEAELS & SLACK, P.C. By /s/ John A. Micheaels John A. Micheaels 1440 East Missouri Avenue, #150 Phoenix, Arizona 85014 Attorneys for Plaintiff Dennis Mikkelsen

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*Original/copy of the foregoing e-filed this 7th day of November, 2005, to: *Clerk of the U.S. District Court 401 West Washington Street Phoenix, Arizona 85003 A. James Clark, Esq. CLARK & MOORE 256 South Second Avenue, Suite E Yuma, Arizona 85364 Attorneys for Plaintiffs Rebecca Mikkelsen, et al, . James W. Barnhouse, Esq. RENAUD, COOK, DRURY & MESAROS, P.A. One North Central Avenue, #900 Phoenix, Arizona 85004 Attorneys for Defendants Correctional Health Resources, Inc., Faiver and Rich

Michael J. Aboud Esq. ABOUD & ABOUD 12 100 North Stone Avenue, #303 Tucson, Arizona 85701 13 Co-Counsel for Plaintiff Fox Mary K. Boyte, Esq. BOYTE & MINORE, P.C. 15 150 W. Second Street Yuma, Arizona 85364 16 Co-Counsel for Plaintiff Fox
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Copy of the foregoing delivered this 7th day of November, 2005, to:

Honorable James A. Teilborg U. S. District Court 401 West Washington Street 20 Phoenix, Arizona 85003
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By

/s/ Sue Ketz