Nursing Home & Home Care Agency Wrongful Death

Download PDF Version


COUNT IX (NINE)

RES IPSA LOQUITOR

EDNA BRIGGS GUNTHER

NOW COMES the Plaintiff TERESA ZAGAL as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, and next best friend of EVELYN ZAGAL, Deceased, and ALEX O'CAMPO, a minor, by her attorneys, THE SZYMANSKI KOROLL LITIGATION GROUP, and complaining of the Defendant, EDNA BRIGGS GUNTHER, states as follows.

1.-8. Plaintiff realleges and reaffirms paragraphs 1 through 8 of Count VI as paragraphs 1 through 8 of this Count IX as though fully set forth verbatim herein.

9. That on or about May 9 and 10, 2006 EVELYN ZAGAL was a patient of EDNA BRIGGS GUNTHER.

10. That EVELYN ZAGAL was an infant incapable of monitoring her own tracheostomy site and ensuring its' placement and patency.

11. That EVELYN ZAGAL relied on EDNA BRIGGS GUNTHER to monitor and protect her tracheostomy site and to ensure the continuous placement and patency of the tracheostomy cannula, to avoid decannulation, to promptly treat decannulation if it occurred and to promptly resuscitate EVELYN if required.

12. That the duty to monitor and protect the tracheostomy site was in the sole and exclusive control of EDNA BRIGGS GUNTHER.

13. That the nursing care of EVELYN ZAGAL, an infant child was in the sole and exclusive control of EDNA BRIGGS GUNTHER.

14. That on May 9 at 11:00 pm through May 10, 2006 up to and including the time of the respiratory arrest of EVELYN ZAGAL, the nursing care of EVELYN ZAGAL was in the sole and exclusive control of EDNA BRIGGS GUNTHER an employee of INDEPENDENCE PLUS, INC.

15. While EVELYN ZAGAL was in the care of EDNA BRIGGS GUNTHER she suffered severe and permanent injuries which resulted in her suffocation and death.

16. That the injuries to EVELYN ZAGAL would not have occurred in the absence of negligence on the part of the Defendant, EDNA BRIGGS GUNTHER.

17. That the Defendant, EDNA BRIGGS GUNTHER had a duty to avoid negligence in the care and treatment of EVELYN ZAGAL.

18. That as a direct and proximate result of one or more of the aforesaid negligent acts, EVELYN ZAGAL was injured, suffered personal and pecuniary damages, including her pain and suffering and disability prior to her death.

WHEREFORE, the Plaintiff, TERESA ZAGAL individually and as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, prays for judgment against the Defendant, EDNA BRIGGS GUNTHER, in a sum in excess of $50,000.00 plus costs of suit.

COUNT X (TEN)

WRONGFUL DEATH -NEGLIGENCE

TAMARA MULLER

NOW COMES the Plaintiff, TERESA ZAGAL as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, and next best friend of EVELYN ZAGAL, Deceased, and ALEX O'CAMPO, a minor, by her attorneys, THE SZYMANSKI KOROLL LITIGATION GROUP, and complaining of the Defendant TAMARA MULLER states as follows.

1. At all times relevant hereto, the Plaintiff, TERESA ZAGAL, individually and as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, and next best friend of EVELYN ZAGAL, Deceased, and ALEX O'CAMPO, a minor was a resident of Winnebago County, Illinois.

2. At all times relevant hereto, the Defendant, TAMARA MULLER was President and Chief Nurse Executive of INDEPENDENCE PLUS INC., a home care specialist company providing home care services to “catastrophic survivor” patients. Defendant's place of business is located at 6707 North Avenue, Oak Park, Illinois, Cook County.

3. On or about April 12, 2005 TAMARA MULLER as Owner, President and Chief Nurse Executive of INDEPENDENCE PLUS, INC. contracted with the Plaintiff, TERESA ZAGAL, to provide home care services and nursing care to her daughter, EVELYN ZAGAL.

4. EVELYN ZAGAL, a minor child, had a tracheostomy site on her body through which a trachea cannula was inserted. The tracheostomy and inserted cannula was necessary to maintain the airway of EVELYN ZAGAL.

5. That TAMARA MULLER as Owner, President and Chief Nurse Executive of INDEPENDENCE PLUS, hired EDNA BRIGGS-GUNTHER as her employee and allowed EDNA BRIGGS-GUNTHER to provide home care services to EVELYN ZAGAL.

6. TAMARA MULLER, as Owner, President and Chief Nurse Executive of INDEPENDENCE PLUS INC. permitted EDNA BRIGGS-GUNTHER to provide home care services to EVELYN ZAGAL on or about May 9 and 10, 2006.

7. On and about May 9 and 10, 2006 EVELYN ZAGAL required observation and skilled nursing care to monitor her respiratory status and to maintain the patency of her tracheostomy cannula, to protect her from decannulation, to treat decannulation if it occurred and to resuscitate EVELYN if required.

8. EVELYN ZAGAL's home was equipped with monitoring devices and life saving medical equipment ordered by her medical providers.

9. It was the duty of the Defendant, TAMARA MULLER as a Registered Nurse and Owner, President and Chief Nurse Executive of INDEPENDENCE PLUS, to apply the knowledge and use the skill and care ordinarily used by reasonably well-qualified Registered Nurse and Chief Nurse Executive officers in the same or similar circumstances as alleged herein.

10. That the Defendant TAMARA MULLER was negligent in the care and treatment of EVELYN ZAGAL in one or more of the following respects:

a. Failed to follow company policies and procedures in checking the references of EDNA BRIGGS GUNTHER;

b. Negligently hired EDNA BRIGGS GUNTHER;

c. Negligently retained EDNA BRIGGS GUNTHER;

d. Negligently placed EDNA BRIGGS GUNTHER in the ZAGAL home;

e. Failed to provide “IPI Vent and SCI training” to EDNA BRIGGS GUNTHER;

f. Failed to provide Pediatric Advanced Life Support training to EDNA BRIGGS-GUNTHER;

g. Failed to provide training to EDNA BRIGGS GUNTHER;

h. Failed to provide specific instructions regarding the care of EVELYN ZAGAL;

i. Presented and held out the Defendant, EDNA BRIGGS GUNTHER, to the ZAGAL family as a person who was qualified and fit to perform in home nursing services for Plaintiffs' decedent, EVELYN ZAGAL, when she knew or in the exercise of reasonable care, should have known she was not so qualified, fit, adequately trained, or competent to render pediatric care to Plaintiffs' decedent, EVELYN ZAGAL;

j. Presented and held out the Defendant, EDNA BRIGGS GUNTHER, to the ZAGAL family as a person who was qualified and fit to perform in home nursing services for Plaintiffs' decedent, EVELYN ZAGAL, when she knew or in the exercise of reasonable care, should have known she was unfit for night shift duties as she was employed in a full time day position, had responsibility for the care of her grandchildren and had been found sleeping soundly on the job and used medication decreasing her alertness on the job, therefore increasing the likelihood of her lack of attentiveness, sleeping and lethargy rendering her unqualified or unfit to perform pediatric nursing services exposing Plaintiffs' decedent, EVELYN ZAGAL, to an unreasonable risk of harm.

11. That as a direct and proximate result of one or more of the aforesaid negligent acts or omissions, TAMARA MULLER as a Registered Nurse and as Owner, President and Chief Nurse Executive of INDEPENDENCE PLUS, INC. allowed EDNA BRIGGS-GUNTHER to be negligent in the care and treatment of EVELYN ZAGAL and EVELYN ZAGAL suffered severe anoxia and multi-system organ failure and was declared brain dead and died on May 11, 2006 as a result of suffocation and asphyxiation.

12. The acts and omissions of TAMARA MULLER deprived EVELYN ZAGAL of an opportunity to survive or recover from her condition.

13. That EVELYN ZAGAL left surviving her mother and father, TERESA AND CARLOS ZAGAL who have been deprived of their child's love, affection, companionship, friendship, comfort and society and her brother ALEX O'CAMPO a minor who has been deprived of his sister's love, affection, companionship, comfort and society.

WHEREFORE, the Plaintiff, TERESA ZAGAL individually and as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, prays for judgment against the Defendant, TAMARA MULLLER n a sum in excess of $50,000.00 plus costs of suit.

COUNT XI (ELEVEN)

FAMILY EXPENSE ACT 750 ILCS 65/15 (a) (1)

TAMARA MULLER

NOW COMES the Plaintiff TERESA ZAGAL as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, and next best friend of EVELYN ZAGAL, Deceased, and ALEX O'CAMPO, a minor by her attorneys, THE SZYMANSKI KOROLL LITIGATION GROUP, and complaining of the Defendant, TAMARA MULLER states as follows.

1.-12. Plaintiff realleges and reaffirms paragraphs 1 through 12 of Count X as paragraphs 1 through 12 of this Count XI as though fully set forth verbatim herein

13. As a direct and proximate result of one or more of the foregoing acts of negligence of the Defendant, the Plaintiff was caused to incur medical expenses in an effort to be cured of her illness and injury and expended necessary expenses for the decedent's funeral, burial, and related services.

WHEREFORE, the Plaintiff, TERESA ZAGAL individually and as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, prays for judgment against the Defendant, TAMARA MULLER in a sum in excess of $50,000.00 plus costs of suit.

COUNT XII (TWELVE)

SURVIVAL ACTION

TAMARA MULLER

NOW COMES the Plaintiff TERESA ZAGAL as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, and next best friend of EVELYN ZAGAL, Deceased, and ALEX O'CAMPO, a minor by her attorneys, THE SZYMANSKI KOROLL LITIGATION GROUP, and complaining of the Defendant, TAMARA MULLER, states as follows.

1.-12. Plaintiff realleges and reaffirms paragraphs 1 through 12 of Count X as paragraphs 1 through 12 of this Count XII as though fully set forth verbatim herein.

13. That as a direct and proximate result of one or more of the aforesaid negligent acts, EVELYN ZAGAL was injured and died, suffered personal and pecuniary damages, including her pain her pain and suffering from suffocation and pain due to the death of her organs before her death occurred and had she survived she would have been entitled to bring an action for such damages and such action survived her death.

14. That pursuant to 755 ILCS 5/27-6, the Plaintiff, TERESA ZAGAL individually and as Executor of the Estate of EVELYN ZAGAL, Deceased, has the right to bring this survival action.

WHEREFORE, the Plaintiff, TERESA ZAGAL individually and as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, prays for judgment against the Defendant, TAMARA MULLER, in a sum in excess of $50,000.00 plus costs of suit.

COUNT XIII (THIRTEEN)

RES IPSA LOQUITOR

TAMARA MULLER

NOW COMES the Plaintiff TERESA ZAGAL as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, and next best friend of EVELYN ZAGAL, Deceased, and ALEX O'CAMPO, a minor, by her attorneys, THE SZYMANSKI KOROLL LITIGATION GROUP, and complaining of the Defendant, TAMARA MULLER states as follows.

1.-9. Plaintiff realleges and reaffirms paragraphs 1 through 9 of Count X as paragraphs through 9 of this Count XIII as though fully set forth verbatim herein.

10. That on or about May 9 and 10, 2006 TAMARA MULLER permitted EVELYN ZAGAL to be a patient of EDNA BRIGGS GUNTHER.

11. That EVELYN ZAGAL was an infant incapable of monitoring her own tracheostomy site and ensuring its' placement and patency.

12. That EVELYN ZAGAL relied on TAMARA MULLER to provide a homecare nurse to monitor her tracheostomy site and to ensure the continuous placement and patency of the tracheostomy cannula.:

13. That TAMARA MULLER as a Registered Nurse and Owner, President and Chief Nurse Executive of INDEPENDENCE PLUS, INC. had in her sole and exclusive control the right to assign EDNA BRIGGS GUNTHER to the nursing care of EVELYN ZAGAL, an infant child.

14. That on May 9, 2006 at 11:00 pm through May 10, 2006 up to and including the i time of the respiratory arrest of EVELYN ZAGAL, the nursing care of EVELYN ZAGAL was in the sole and exclusive control of EDNA BRIGGS GUNTHER an agent, employee or apparent agent of TAMARA MULLER.

15. While EVELYN ZAGAL was in the care of EDNA BRIGGS GUNTHER she suffered severe and permanent injuries which resulted in her suffocation and death.

16. That the injuries to EVELYN ZAGAL would not have occurred in the absence of negligence on the part of the Defendant, TAMARA MULLER.

17. That the Defendant, TAMARA MULLER had a duty to avoid negligence in the care and treatment of EVELYN ZAGAL.

18. That as a direct and proximate result of one or more of the aforesaid negligent acts, EVELYN ZAGAL was injured, suffered personal and pecuniary damages, including her pain and suffering and disability prior to her death.

WHEREFORE, the Plaintiff, TERESA ZAGAL individually and as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, prays for judgment against the Defendant, TAMARA MULLER in a sum in excess of $50,000.00 plus costs of suit.

COUNT XIV (FOURTEEN)

NEGLIGENT HIRING, TRAINING AND PLACEMENT

TAMARA MULLER

NOW COMES the Plaintiff TERESA ZAGAL as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, and next best friend of EVELYN ZAGAL, Deceased, and ALEX O'CAMPO, a minor, by her attorneys, THE SZYMANSKI KOROLL LITIGATION GROUP, and complaining of the Defendant, TAMARA MULLER, states as follows.

1.-8. Plaintiff realleges and reaffirms paragraphs 1 through 8 of Count X as paragraphs 1 through 8 of this Count XIV as though fully set forth verbatim herein.

9. That prior to May 9 and 10, 2006 EDNA BRIGGS-GUNTHER was hired at INDEPENDENCE PLUS, INC.

10. That the only pre-employment in person interview of EDNA BRIGGS-GUNTHER was one conducted by INDEPENDENCE PLUS, INC. Scheduling Coordinator Nicole Stracka.

11. That Nicole Stracka is not a registered nurse.

12. That TAMARA MULLER had a duty to perform a background check on EDNA BRIGGS-GUNTHER prior to placing her in the home of EVELYN ZAGAL, a disabled infant.

13. That TAMARA MULLER had a duty to perform an investigation to determine that EDNA BRIGGS-GUNTHER had adequate skills and training to monitor and manage the tracheostomy tube in the neck of EVELYN ZAGAL and to protect EVELYN from injury from decannulation and to resuscitate EVELYN if required.

14. That at the time of hiring and placement into the home of EVELYN ZAGAL, EDNA BRIGGS-GUNTHER lacked the requisite skills and training to provide homecare services to home care to a pediatric hygroma patient who had a tracheostomy cannula in place.

15. That TAMARA MULLER had a duty to determine the fitness for duty of EDNA-BRIGGS GUNTHER prior to assigning her to night shift duty at the home of EVELYN ZAGAL.

16. That TAMARA MULLER allowed EDNA BRIGGS-GUNTHER to work at the ZAGAL home on May 9 and 10, 2006.

17. That TAMARA MULLER, as a Registered Nurse and Owner, President and Chief Nurse Executive of INDEPENDENCE PLUS, INC, endorsed the placement of EDNA BRIGGS-GUNTHER in the ZAGAL home to provide homecare services to EVELYN ZAGAL.

18. That TAMARA MULLER as a Registered Nurse and the Owner, President and Chief Nurse Executive of INDEPENDENCE PLUS, INC. knew or should have known that on or about May 9 and 10, 2006 EDNA BRIGGS-GUNTHER also was employed full time on the day shift at a Rockford nursing home.

19. That TAMARA MULLER knew or should have known that EVELYN ZAGAL required diligent, constant observation and care to monitor her airway and tracheostomy cannula and to protect her from injury due to decannulation.

20. That TAMARA MULLER knew prior to her endorsement of the placement of EDNA BRIGGS-GUNTHER in the home of EVELYN ZAGAL that EDNA BRIGGS-GUNTHER had been reported on INDEPENDENCE PLUS, INC. job evaluation to be “sleeping soundly on the job.”

21. That TAMARA MULLER knew or should have known that EDNA BRIGGS-GUNTHER'S lack of training and skills created unfitness for the position of homecare nurse to EVELYN ZAGAL so as to create a danger of harm to EVELYN ZAGAL.

23. That TAMARA MULLER knew or should have known that EDNA BRIGGS-GUNTHER'S propensity for sleeping on the job created an unfitness for the position of homecare nurse to EVELYN ZAGAL so as to create a danger of harm to EVELYN ZAGAL.

24. That TAMARA MULLER knew or should have known that EDNA BRIGGS GUNTHER'S daytime job and home schedule prevented her from having the required degree of alertness on night shift and created an unfitness for the position of homecare nurse to EVELYN ZAGAL so as to create a danger of harm to EVELYN ZAGAL. That EDNA BRIGGS-GUNTHER was not certified in Pediatric Advanced Life Support (PALS).

25. That prior to the care of EVELYN ZAGAL, EDNA BRIGGS-GUNTHER had not provided home care to a pediatric hygroma patient who had a tracheostomy cannula in place.

26. That TAMARA MULLER failed to provide skills lab training to EDNA BRIGGS-GUNTHER to train her in the home care to a pediatric hygroma patient who had a tracheostomy cannula in place.

27. That TAMARA MULLER required nurses attending to EVELYN ZAGAL to be trained in “IPI Vent and SCI training.”

28. That TAMARA MULLER failed to provide “IPI Vent and SCI training” to EDNA BRIGGS-GUNTHER before placing her in the home of EVELYN ZAGAL.

29. That on or before May 9 and 10, 2006 Defendant, TAMARA MULLER as a Registered Nurse and chief nurse executive had a duty to exercise that degree of skill and care in the hiring, training and placement of Defendant EDNA BRIGGS GUNTHER in the home of EVELYN ZAGAL as required of Presidents and Chief Nurse Executives of home health care services in the same or similar localities.

30. That not withstanding the above mentioned duty, the Defendant, TAMARA MULLER committed one or more of the following acts of negligence:

a. Failed to follow company policies and procedures in checking the references of EDNA BRIGGS-GUNTHER;

b. Negligently hired EDNA BRIGGS-GUNTHER;

c. Negligently retained EDNA BRIGGS-GUNTHER;

d. Negligently placed EDNA BRIGGS GUNTHER in the ZAGAL home;

e. Negligently permitted the placement of EDNA BRIGGS-GUNTHER in the Zagal home;

f. Failed to provide “IPI Vent and SCI” training;

g. Failed to provide Pediatric Advanced Life Support (PALS) training;

h. Failed to provide training to EDNA BRIGGS GUNTHER;

i. Failed to provide specific instructions regarding the care of EVELYN ZAGAL;

j. Presented and held out the Defendant, EDNA BRIGGS GUNTHER, to the ZAGAL family as a person who was qualified and fit to perform in home nursing services for Plaintiffs' decedent, EVELYN ZAGAL, when she knew or in the exercise of reasonable care, should have known she was not so qualified, fit, adequately trained, or competent to render pediatric care to Plaintiffs' decedent, EVELYN ZAGAL;

k. Presented and held out the Defendant, EDNA BRIGGS GUNTHER, to the ZAGAL family as a person who was qualified and fit to perform in home nursing services for Plaintiffs' decedent, EVELYN ZAGAL, when she knew or in the exercise of reasonable care, should have known she was unfit for night shift duties as she was employed in a full time day position, had responsibility for the care of her grandchildren and had been found sleeping soundly on the job and used medications decreasing her alertness, therefore increasing the likelihood of her lack of attentiveness, sleeping and lethargy rendering her unqualified or unfit to perform pediatric nursing services exposing Plaintiffs' decedent, EVELYN ZAGAL, to an unreasonable risk of harm.

31. That as a direct and proximate result of one or more of the aforesaid negligent acts, EVELYN ZAGAL was injured, suffered personal and pecuniary damages, including her pain and suffering and disability prior to her death.

WHEREFORE, the Plaintiff, TERESA ZAGAL individually and as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, prays for judgment against the Defendant, TAMARA MULLER in a sum in excess of $50,000.00 plus costs of suit.

COUNT XV (FIFTEEN)

WRONGFUL DEATH -NEGLIGENCE

CELESTE CLARK

NOW COMES the Plaintiff, TERESA ZAGAL as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, and next best friend of EVELYN ZAGAL, Deceased, and ALEX O'CAMPO, a minor, by her attorneys, THE SZYMANSKI KOROLL LITIGATION GROUP, and complaining of the Defendant CELESTE CLARK states as follows.X

1. At all times relevant hereto, the Plaintiff, TERESA ZAGAL, individually and as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, and next best friend of EVELYN ZAGAL, Deceased, and ALEX O'CAMPO, a minor was a resident of Winnebago County, Illinois.

2. At all times relevant hereto, the Defendant, CELESTE CLARK was a Social Worker employed as a Medical Social Worker and Director of Social Work at INDEPENDENCE PLUS INC., a home care specialist company providing home care services to “catastrophic survivor” patients. Defendant's place of business is located at 6707 North Avenue, Oak Park, Illinois, Cook County.

3. At all times relevant hereto, the Defendant, CELESTE CLARK was employed as Human Resources Director at INDEPENDENCE PLUS INC., a home care specialist company providing home care services to “catastrophic survivor” patients. Defendant's place of business is located at 6707 North Avenue, Oak Park, Illinois, Cook County.

4. On or about April 12, 2005 INDEPENDENCE PLUS, INC. contracted with the Plaintiff, TERESA ZAGAL, to provide home care services and nursing care to her daughter, EVELYN ZAGAL.

5. EVELYN ZAGAL, a minor child, had a tracheostomy site on her body through which a trachea cannula was inserted. The tracheostomy and inserted cannula was necessary to maintain the airway of EVELYN ZAGAL.

6. That CELESTE CLARK as Director of Human Resources and Director of Social Work of INDEPENDENCE PLUS, INC., was responsible to review EDNA BRIGGS-GUNTHER'S job description, and task and duty job directly related to EDNA BRIGGS-GUNTHER'S placement as an employee providing home care services to EVELYN ZAGAL.

7. That CELESTE CLARK as Director of Human Resources of INDEPENDENCE PLUS, INC., was responsible to ensure compliance with all legal obligations of the company.

8. That CELESTE CLARK as Director of Human Resources of INDEPENDENCE PLUS, INC., had the authority to hire, fire, promote, discipline, any employee of the company.

9. That CELESTE CLARK as Director of Human Resources of INDEPENDENCE PLUS, INC., was required to help establish, document, update, maintain, communicate and enforce all company policies and procedures.

10. That the job description of CELESTE CLARK as Director of Human Resources of INDEPENDENCE PLUS, INC., required her to oversee training and safety programs.

11. That sleeping while on duty was against the policies and procedures of INDEPENDENCE PLUS, INC.

12. That CELESTE CLARKE, as Director of Social Work and Director of Human Resources of INDEPENDENCE PLUS, INC, endorsed placement of EDNA BRIGGS-GUNTHER to provide home care services to EVELYN ZAGAL.

13. On and about May 9 and 10, 2006 EVELYN ZAGAL required observation and skilled nursing care to monitor her respiratory status and to maintain the patency of her tracheostomy cannula.

14. EVELYN ZAGAL's home was equipped with monitoring devices and life saving medical equipment ordered by her medical providers.

15. It was the duty of the Defendant, CELESTE CLARK, Director of Social Work and Human Resources of INDEPENDENCE PLUS, INC. to apply the knowledge and use the skill and care ordinarily used by reasonably well-qualified medical social workers and Directors of Human Resources of homecare health companies in the same or similar locale.

16. That notwithstanding said duties, the Defendant CELESTE CLARK was negligent in her roles related to the provision of care and treatment of EVELYN ZAGAL in one or more of the following respects:

a. Failed to follow company policies and procedures in checking the references of EDNA BRIGGS- GUNTHER;

b. Negligently hired EDNA BRIGGS-GUNTHER to perform services at the ZAGAL home;

c. Negligently retained EDNA BRIGGS-GUNTHER;

d. Negligently placed EDNA BRIGGS-GUNTHER in the ZAGAL home;

e. Failed to provide or ensure the provision of “IPI Vent and SCI” training to EDNA BRIGGS GUNTHER;

f. Failed to provide or ensure the provision of training to EDNA BRIGGS GUNTHER;

g. Failed to provide specific instructions or ensure the provision of special instructions regarding the care of EVELYN ZAGAL;

h. Failed to enforce Company policies and procedures;

i. Presented and held out the Defendant, EDNA BRIGGS-GUNTHER, to the ZAGAL family as a person who was qualified and fit to perform in home nursing services for Plaintiffs' decedent, EVELYN ZAGAL, when she knew or in the exercise of reasonable care, should have known she was not so qualified, fit, adequately trained, or competent to render pediatric care to Plaintiffs' decedent, EVELYN ZAGAL;

j. Presented and held out the Defendant, EDNA BRIGGS GUNTHER, (and/or allowed to be presented and held out) to the ZAGAL family as a person who was qualified and fit to perform in home nursing services for Plaintiffs' decedent, EVELYN ZAGAL, when she knew or in the exercise of reasonable care, should have known she was unfit for night shift duties as she was employed in a full time day position, had responsibility for the care of her grandchildren and had been found sleeping soundly on the job, therefore increasing the likelihood of her lack of attentiveness, sleeping and lethargy rendering her unqualified or unfit to perform pediatric nursing services exposing Plaintiffs' decedent, EVELYN ZAGAL, to an unreasonable risk of harm.

17. That as a direct and proximate result of one or more of the aforesaid negligent acts or omissions of CELESTE CLARKE endorsed, permitted and allowed EDNA BRIGGS-GUNTHER to be negligent in the care and treatment of EVELYN ZAGAL and EVELYN ZAGAL suffered severe anoxia and multi-system organ failure and was declared brain dead and died on May 11, 2006 as a result of suffocation and asphyxiation.

18. The acts and omissions of CELESTE CLARK deprived EVELYN ZAGAL of an opportunity to survive or recover from her condition.

19. That EVELYN ZAGAL left surviving her mother and father, TERESA AND CARLOS ZAGAL who have been deprived of their child's love, affection, companionship, friendship, comfort and society and her brother ALEX O'CAMPO a minor who has been deprived of his sister's love, affection, companionship, comfort and society.

WHEREFORE, the Plaintiff, TERESA ZAGAL individually and as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, prays for judgment against the Defendant, CELESTE CLARK in a sum in excess of $50,000.00 plus costs of suit.

COUNT XVI (SIXTEEN)

FAMILY EXPENSE ACT 750 ILCS 65/15 (a) (1)

CELESTE CLARKE

NOW COMES the Plaintiff TERESA ZAGAL as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, and next best friend of EVELYN ZAGAL, Deceased, and ALEX O'CAMPO, a minor by her attorneys, THE SZYMANSKI KOROLL LITIGATION GROUP, and complaining of the Defendant, CELESTE CLARKE states as follows.

1.- 18. Plaintiff realleges and reaffirms paragraphs 1 through 18 of Count XV as paragraphs through 18 of this Count XVI as though fully set forth verbatim herein

19. As a direct and proximate result of one or more of the foregoing acts of negligence of the Defendant, the Plaintiff was caused to incur medical expenses in an effort to be cured of her illness and injury and expended necessary expenses for the decedent's funeral, burial, and related services.

WHEREFORE, the Plaintiff, TERESA ZAGAL individually and as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, prays for judgment against the Defendant, CELESTE CLARKE in a sum in excess of $50,000.00 plus costs of suit.

COUNT XVII (SEVENTEEN)

SURVIVAL ACTION

CELESTE CLARKE

NOW COMES the Plaintiff TERESA ZAGAL as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, and next best friend of EVELYN ZAGAL, Deceased, and ALEX O'CAMPO, a minor by her attorneys, THE SZYMANSKI KOROLL LITIGATION GROUP, and complaining of the Defendant, CELESTE CLARKE, states as follows.

1.-18. Plaintiff realleges and reaffirms paragraphs 1 through 18 of Count XV as paragraphs through 18 of this Count XVII as though fully set forth verbatim herein.

19. That as a direct and proximate result of one or more of the aforesaid negligent acts, EVELYN ZAGAL was injured and died and suffered personal and pecuniary damages, including her pain and suffering as a result of her suffocation and oxygen deprivation and the death of her body organs and disability prior to her death and had she survived she would have been entitled to bring an action for such damages and such action survived her death.

20. That pursuant to 755 ILCS 5/27-6, the Plaintiff, TERESA ZAGAL individually and as Executor of the Estate of EVELYN ZAGAL, Deceased, has the right to bring this survival action.

WHEREFORE, the Plaintiff, TERESA ZAGAL individually and as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, prays for judgment against the Defendant, CELESTE CLARKE, in a sum in excess of $50,000.00 plus costs of suit.

COUNT XVIII (EIGHTEEN)

RES IPSA LOQUITOR

CELESTE CLARKE

NOW COMES the Plaintiff TERESA ZAGAL as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, and next best friend of EVELYN ZAGAL, Deceased, and ALEX O'CAMPO, a minor, by her attorneys, THE SZYMANSKI KOROLL LITIGATION GROUP, and complaining of the Defendant, CELESTE CLARKE states as follows.

WHEREFORE, the Plaintiff, THERESA ZAGAL individually and as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, prays for judgment against the Defendant, CELESTE CLARKE in a sum in excess of $50,000.00 plus costs of suit.

1.-15. Plaintiff realleges and reaffirms paragraphs 1 through 9 of Count XV as paragraphs through 15 of this Count XVIII as though fully set forth verbatim herein.

16. That on or about May 9 and 10, 2006 CELESTE CLARK permitted EVELYN ZAGAL to be a patient of EDNA BRIGGS GUNTHER.

17. That EVELYN ZAGAL was an infant incapable of monitoring her own tracheostomy site and ensuring its' placement and patency.

18. That EVELYN ZAGAL relied on CELESTE CLARK to provide a homecare nurse to monitor her tracheostomy site and to ensure the continuous placement and patency of the tracheostomy cannula.

19. That CELESTE CLARK as Human Services Director of INDEPENDENCE PLUS, INC. had in her sole and exclusive control the right to assign EDNA BRIGGS GUNTHER to the nursing care of EVELYN ZAGAL, an infant child.

20. That on May 9 at 11:00 pm through May 10, 2006 up to and including the time of the respiratory arrest of EVELYN ZAGAL, the nursing care of EVELYN ZAGAL was in the sole and exclusive control of EDNA BRIGGS GUNTHER an agent, employee or apparent agent of CELESTE CLARK.

21. While EVELYN ZAGAL was in the care of EDNA BRIGGS GUNTHER she suffered severe and permanent injuries which resulted in her suffocation and death.

22. That the injuries to EVELYN ZAGAL would not have occurred in the absence of negligence on the part of the Defendant, CELESTE CLARK.

23. That the Defendant, CELESTE CLARK had a duty to avoid negligence in the care and treatment of EVELYN ZAGAL.

24. That as a direct and proximate result of one or more of the aforesaid negligent acts, EVELYN ZAGAL was injured, suffered personal and pecuniary damages, including her pain and suffering and disability prior to her death.

WHEREFORE, the Plaintiff, TERESA ZAGAL individually and as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, prays for judgment against the Defendant, CELESTE CLARK in a sum in excess of $50,000.00 plus costs of suit.

COUNT XIX (NINETEEN)

NEGLIGENT HIRING, TRAINING AND PLACEMENT

CELESTE CLARK

NOW COMES the Plaintiff TERESA ZAGAL as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, and next best friend of EVELYN ZAGAL, Deceased, and ALEX O'CAMPO, a minor, by her attorneys, THE SZYMANSKI KOROLL LITIGATION GROUP, and complaining of the Defendant, CELESTE CLARK, states as follows.

1.-15. Plaintiff realleges and reaffirms paragraphs 1 through 15 of Count XV as paragraphs through 8 of this Count XIX as though fully set forth verbatim herein.

16. That prior to May 9 and 10, 2006 EDNA BRIGGS-GUNTHER was hired at INDEPENDENCE PLUS, INC.

17. That the only pre-employment in person interview of EDNA BRIGGS-GUNTHER was one conducted by INDEPENDENCE PLUS, INC. Scheduling Coordinator Nicole Stracka.

18. That Nicole Stracka is not a registered nurse.

19. That CELESTE CLARK had a duty to ensure a background check had been performed on EDNA BRIGGS-GUNTHER prior to placing her in the home of EVELYN ZAGAL, a disabled infant.

20. That CELESTE CLARK had a duty to perform an investigation to determine that EDNA BRIGGS-GUNTHER had adequate skills and training to monitor and manage the tracheostomy tube in the neck of EVELYN ZAGAL and to protect EVELYN from injury from decannulation and to resuscitate EVELYN if required.

21. That at the time of hiring and placement into the home of EVELYN ZAGAL, EDNA BRIGGS-GUNTHER lacked the requisite skills and training to provide homecare services to home care to a pediatric hygroma patient who had a tracheostomy cannula in place.

22. That CELESTE CLARK had a duty to determine the fitness for duty of EDNA-BRIGGS GUNTHER prior to assigning her to night shift duty at the home of EVELYN ZAGAL.

23. That CELESTE CLARK allowed EDNA BRIGGS-GUNTHER to work at the ZAGAL home on May 9 and 10, 2006.

24. That CELESTE CLARK as the Director of Social Work and Director of Human Resources of INDEPENDENCE PLUS, INC, endorsed the placement of EDNA BRIGGS-GUNTHER in the ZAGAL home to provide homecare services to EVELYN ZAGAL.

25. That CELESTE CLARK as the Director of Social Work and Director of Human Resources of INDEPENDENCE PLUS, INC. knew or should have known that on or about May 9 and 10, 2006 EDNA BRIGGS-GUNTHER also was employed full time on the day shift at a Rockford nursing home.

26. That CELESTE CLARK knew or should have known that EVELYN ZAGAL required diligent, constant observation and care to monitor her airway and tracheostomy cannula and to protect her from injury due to decannulation.

27. That CELESTE CLARK knew prior to her endorsement of the placement of EDNA BRIGGS-GUNTHER in the home of EVELYN ZAGAL that EDNA BRIGGS- GUNTHER had been reported on INDEPENDENCE PLUS, INC. job evaluation to be “sleeping soundly on the job.”

28. That CELESTE CLARK knew or should have known that EDNA BRIGGS-GUNTHER'S lack of training and skills created unfitness for the position of homecare nurse to EVELYN ZAGAL so as to create a danger of harm to EVELYN ZAGAL.

29. That CELESTE CLARK knew or should have known that EDNA BRIGGS-GUNTHER'S propensity for sleeping on the job created an unfitness for the position of homecare nurse to EVELYN ZAGAL so as to create a danger of harm to EVELYN ZAGAL.

30. That CELESTE CLARK knew or should have known that EDNA BRIGGS GUNTHER'S daytime job and home schedule prevented her from having the required degree of alertness on night shift and created an unfitness for the position of homecare nurse to EVELYN ZAGAL so as to create a danger of harm to EVELYN ZAGAL. That EDNA BRIGGS-GUNTHER was not certified in Pediatric Advanced Life Support (PALS).

31. That prior to the care of EVELYN ZAGAL, EDNA BRIGGS-GUNTHER had not provided home care to a pediatric hygroma patient who had a tracheostomy cannula in place.

32. That CELESTE CLARK failed to provide skills lab training to EDNA BRIGGS-GUNTHER to train her in the home care to a pediatric hygroma patient who had a tracheostomy cannula in place.

33. That INDEPENDENCE PLUS INC. required nurses attending to EVELYN ZAGAL to be trained in “IPI Vent and SCI training.”

34. That CELESTE CLARK failed to provide “IPI Vent and SCI training” to EDNA BRIGGS-GUNTHER before placing her in the home of EVELYN ZAGAL.

35. That on or before May 9 and 10, 2006 Defendant, CELESTE CLARK had a duty to exercise that degree of skill and care in the hiring, training and placement of Defendant EDNA BRIGGS GUNTHER in the home of EVELYN ZAGAL as required of Directors of Social Work and Human Resources of home health care services in the same or similar localities.

36. That not withstanding the above mentioned duty, the Defendant, CELESTE CLARK committed one or more of the following acts of negligence:

a. Failed to follow company policies and procedures in checking the references of EDNA BRIGGS-GUNTHER;

b. Negligently hired EDNA BRIGGS-GUNTHER;

c. Negligently retained EDNA BRIGGS-GUNTHER;

d. Negligently placed EDNA BRIGGS GUNTHER in the ZAGAL home;

e. Negligently permitted the placement of EDNA BRIGGS-GUNTHER in the Zagal home;

f. Failed to provide “IPI Vent and SCI” training;

g. Failed to provide Pediatric Advanced Life Support (PALS) training;

h. Failed to provide training to EDNA BRIGGS GUNTHER;

i. Failed to provide specific instructions regarding the care of EVELYN ZAGAL;

j. Presented and held out the Defendant, EDNA BRIGGS GUNTHER, to the ZAGAL family as a person who was qualified and fit to perform in home nursing services for Plaintiffs' decedent, EVELYN ZAGAL, when she knew or in the exercise of reasonable care, should have known she was not so qualified, fit, adequately trained, or competent to render pediatric care to Plaintiffs' decedent, EVELYN ZAGAL;

k. Presented and held out the Defendant, EDNA BRIGGS GUNTHER, to the ZAGAL family as a person who was qualified and fit to perform in home nursing services for Plaintiffs' decedent, EVELYN ZAGAL, when she knew or in the exercise of reasonable care, should have known she was unfit for night shift duties as she was employed in a full time day position, had responsibility for the care of her grandchildren and had been found sleeping soundly on the job and used medications decreasing her alertness, therefore increasing the likelihood of her lack of attentiveness, sleeping and lethargy rendering her unqualified or unfit to perform pediatric nursing services exposing Plaintiffs' decedent, EVELYN ZAGAL, to an unreasonable risk of harm.

37. That as a direct and proximate result of one or more of the aforesaid negligent acts, EVELYN ZAGAL was injured, suffered personal and pecuniary damages, including her pain and suffering and disability prior to her death.

WHEREFORE, the Plaintiff, TERESA ZAGAL individually and as Special Administrator of the Estate of EVELYN ZAGAL, Deceased, prays for judgment against the Defendant, CELESTE CLARKE in a sum in excess of $50,000.00 plus costs of suit.

BY THE SZYMANSKI KOROLL LITIGATION GROUP

BY <<signature>>

CYNTHIA SZYMANSKI KOROLL

Cynthia Szymanski Koroll, #6380
THE SZYMANSKI KOROLL LITIGATION GROUP
One Court Place
Suite 102
Rockford, IL 61101
815.639.9000
815.639.9066 - Fax

Client Reviews
Jonathan Rosenfeld was professionally objective, timely, and knowledgeable. Also, his advice was extremely effective regarding my case. In addition, Jonathan was understanding and patient pertaining to any of my questions or concerns. I was very happy with the end result and I highly recommend Jonathan Rosenfeld.
★★★★★
Extremely impressed with this law firm. They took control of a bad motorcycle crash that left my uncle seriously injured. Without any guarantee of a financial recovery, they went out and hired accident investigators and engineers to help prove how the accident happened. I am grateful that they worked on a contingency fee basis as there was no way we could have paid for these services on our own. Ethan Armstrong, Google User
★★★★★
This lawyer really helped me get compensation for my motorcycle accident case. I know there is no way that I could have gotten anywhere near the amount that Mr. Rosenfeld was able to get to settle my case. Thank you. Daniel Kaim, Avvo User
★★★★★
Jonathan helped my family heal and get compensation after our child was suffered a life threatening injury at daycare. He was sympathetic and in constant contact with us letting us know all he knew every step of the way. We were so blessed to find Jonathan! Giulia, Avvo User
★★★★★
Jonathan did a great job helping my family navigate through a lengthy lawsuit involving my grandmother's death in a nursing home. Through every step of the case, Jonathan kept my family informed of the progression of the case. Although our case eventually settled at a mediation, I really was impressed at how well prepared Jonathan was to take the case to trial. Lisa, Avvo User
★★★★★
Contact Us for a Free Consultation (888) 424-5757
Chicago Office Map