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LAW OFFICES OF DAVID M. FELDMAN DAVID FELDMAN, SBN #179679 100 Wilshire Blvd., Suite 950 Santa Monica, California 90401 Telephone: (310) 578-7171 Facsimile: (310) 578-7731 Attorney for RICHARD DETTY

SUPERIOR COURT OF THE STATE OF CALIFORNI A 7 COUNTY OF S ANTA BARBAR A 8 9 10 11 Law Offices of David Feldman 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 political subdivision organized and existing under and by virtue of the laws of the State of California. 3. At all relevant times, Defendant PSYCHIARTRIC HEALTH FACILITY
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RICHARD DETTY individually and on behalf of Decedent CLIFFORD DETTY, Plaintiff, vs. COUNTY OF SANTA BARBARA, PSYCHAITRIC HEALTH FACILITY, EDWIN FELICIANO, ANN DIETRICH, CHARLES NICHOLSON, MOIRA OCONNOR, REYANTE ENRIGQUEZ BUGAY, ALEX ROMANO, ERMA GOMES, CAROL SMITH, and DOES 1100: Defendants.

CASE NO. 1377795 HON. JUDGE BEEBE DEPT.: SM4 ACTION FILED: APRIL 26, 2011 FIRST AMENDED COMPLAINT FOR DAMAGES (Violation of Federal Civil Rights Statutes; Punitive Damages & Attorneys Fees Requested; Wrongful Death) JURY TRIAL DEMANDED

100 Wilshire Blvd., Suite 950 Santa Monica. California 90401 (310) 578-7171 FAX (310) 578-7731

Plaintiff RICHARD DETTY (DETTY or plaintiff) alleges: PARTIES AND CAPACITIES 1. At all relevant times, DETTY was and is a citizen and resident of the State of California. 2. At all relevant times, Defendant COUNTY OF SANTA BARBARA (hereinafter COUNTY) was a public entity, a California County within this judicial district, and a

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100 Wilshire Blvd., Suite 950 Santa Monica. California 90401 (310) 578-7171 FAX (310) 578-7731

(hereafter PHF) was a psychiatric facility operated by the COUNTY. At all relevant times, PHF was responsible for providing mental health services to the unincorporated areas of Santa Barbara County and is part of the Countys Alcohol, Drug & Mental Health Services (ADMHS). 4. Defendant EDWIN FELICIANO, ADMHS medical director (hereafter

FELICIANO) was continuously employed by COUNTY from at least January 1, 2010 through at least April 29, 2010. At all relevant times, FELICIANO was the medical director for PHF and had direct responsibility for the training of PHFs staff regarding the safe use of seclusion and restraint. 5. Defendant ANN DIETRICH, ADMHS director (hereafter DIETRICH) was

continuously employed by COUNTY from at least January 1, 2010 through at least April 29, 2010. At all relevant times, FELICIANO was the medical director for PHF and had direct responsibility for the training of PHFs staff regarding the safe use of seclusion and restraint. 6. Defendant CHARLES NICHOLSON, M.D. (hereafter NICHOLSON) was

continuously employed by PHF from at least January 1, 2010 through at least April 29, 2010. At all relevant times, NICHOLSON was the on-call physician for PHF and had direct responsibility for the care and treatment of Decedent while he was a patient at PHF. 7. Defendant MOIRA OCONNOR, R.N., 53, (hereafter OCONNOR) was continuously employed by PHF from at least January 1, 2010 through at least April 29, 2010. At all relevant times, OCONNOR was a Registered Nurse and unit

supervisor in charge of the Night Shift. At all relevant times, OCONNOR had direct responsibility for the care and treatment of Decedent while he was a patient at PHF.
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100 Wilshire Blvd., Suite 950 Santa Monica. California 90401 (310) 578-7171 FAX (310) 578-7731

8. Defendant REYANTE ENRIGQUEZ BUGAY, R.N., 38, (hereinafter BUGAY) was continuously employed by PHF from at least January 1, 2010 through at least April 29, 2010. At all relevant times, BUGAY was a Registered Nurse assigned to the Night Shift. At all relevant times, BUGAY had direct responsibility for the care and treatment of Decedent while he was a patient at PHF. 9. Defendant ALEX ROMANO, L.V.N., 41 (hereinafter ROMANO) was continuously employed by PHF from at least January 1, 2010 through at least April 29, 2010. At all relevant times, ROMANO was a Licensed Vocational Nurse assigned to the Night Shift. At all relevant times, ROMANO had direct responsibility for the care and treatment of Decedent while he was a patient at PHF. 10. Defendant ERMA GOMES, L.P.T., 69, (hereafter GOMES) was continuously employed by PHF from at least January 1, 2010 through at least April 29, 2010. At all relevant times, GOMES was a Licensed Psychiatric Technician assigned to the Night Shift. At all relevant times, GOMES had direct responsibility for the care and treatment of Decedent while he was a patient at PHF. 11. Defendant CAROL SMITH, L.P.T. (hereafter SMITH) was continuously

employed by PHF from at least January 1, 2010 through at least April 29, 2010. At all relevant times, SMIT was a Licensed Psychiatric Technician assigned to the Night Shift. At all relevant times, SMITH had direct responsibility for the care and treatment of Decedent while he was a patient at PHF.

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12. Except where otherwise noted, defendants who are natural persons, and each of them, engaged in the acts and conduct complained of herein while within the course and scope of their agency or employment by or for defendant COUNTY, or by or for a department or office or agency of the COUNTY, or otherwise were acting for or on

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behalf of defendant COUNTY, or one of its departments or offices or agencies, and under color of law in doing or not doing the things complained of herein. 13. DOES 1-10 are other individuals or entities responsible in some way for the unsafe condition in which Decedent was restrained. DOES 11-20 are other individuals responsible for the training or supervision of other persons or of any named defendant, and are somehow responsible for the violations of law alleged herein. Consequently, Plaintiff sues these defendants under the fictitious names, DOES 1-20, inclusive. Plaintiff will amend this complaint to allege their true names and capacities if or when ascertained. JURISDICTION AND VENUE 14. The jurisdiction of this Court over the subject matter of this action is predicated on 28 U.S.C. 1331 and 1343, and 42 U.S.C. 1983 and 1988, and the State Court has concurrent jurisdiction. 15. Venue is proper in the Santa Barbara County Superior Court because Plaintiffs claims arose in this District and because, on information and belief, all defendants are and were at all times mentioned herein residents of Santa Barbara County, State of California. COMMON ALLEGATIONS 16. Plaintiff and Decedents federal claims, arise under the United States Constitution, and at least the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments

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thereto, and under federal law, including but not limited to the federal Civil Rights Act, Title 42 of the United States Code, 1983 and 1988. The acts and omissions of defendants and others as alleged herein were committed by defendants and others, and each of them under color and pretense of the Constitution, statutes, ordinances, rules,

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regulations, practices, customs, patterns, and usages of the State of California and/or of the COUNTY, and as officials, employees, or agents of defendant COUNTY or of a department or office or subdivision or agency of the COUNTY, including but not limited to PHF. 17. On April 28, 2010 Decedent, CLIFFORD DETTY, was contacted by Santa Maria Police Department. The Decedent had been reported as a person disturbing people at a number of businesses in Santa Maria (it is believed that those businesses include Colonial Motel, Seven Eleven, Burger King, and Ross Dress for Less). The Decedent had been aggressive and was yelling at people. Throughout the day these businesses contacted the police department and requested they do something about the disturbing person. Officers finally arrived in the Ross Dress for Less parking lot and contacted the Decedent. The Decedent was known to many officers due to numerous contacts over the years. Based on the circumstances and the Decedents actions, the officers suspected the decedent was experiencing a mental health problem. They

requested CARES (Crisis and Recovery Emergency Services) respond to the scene and evaluate the Decedent. 18. At about 2:50 p.m., CARES personnel responded to the scene and

evaluated the Decedent. It was noted that Decedent appeared highly agitated and was confrontational. The Decedent took off his shirt and shoes, and his speech was

disorganized. The Decedent reported he was hearing voices. The Decedent had taken 23 24 25 26 27 28
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off his pants and urinated and spoke of jerking off.

Upon the completion of the

CARES evaluation the Decedent was detained for a 5150 Welfare and Institutions evaluation. An ambulance was requested to respond to the scene for transport of the

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Decedent to Marian Medical Center for a medical clearance prior to the Decedent being placed in PHF. 19. Upon arrival the ambulance workers noticed that Decedent was handcuffed and sitting on the ground. The Decedent was still very agitated, he yelled and cursed, and would get up and move around until the officers convinced him to sit down. It was determined that the safest way to transport the Decedent was with the Decedent restrained in a four point restraint system. The Decedent was un-cuffed and cooperated while the wrist restraints were put on. As the foot restraints were being put on, the Decedent started kicking, but was successfully placed into the restraint system.

Decedent was semi-cooperative while being placed in the restraints, but he continued to yell and make derogatory remarks. During the ambulance ride to the emergency room Decedent thrashed around as much as the restraint would allow. The ambulance

workers advised the emergency room personnel of the Decedents combativeness. They arrived at the emergency room and were greeted by ER staff and a Security Officer. They told the Decedent that he would be released from the restraints and transferred to the hospital restraint system. Decedent cooperated with the hospital staff as they released him from the first set of restraints and placed him in the hospital restraints. As the restraints were being switched Decedent cooperated, but continued yelling and screaming. . 20. The Decedent arrived and was then evaluated by the ER staff. He was

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noted to be profoundly agitated to the point of being combative, yelling, and physically requiring restraints. He reported hearing voices. The Decedent had a previous medical history at the ER for paranoid schizophrenia, agitation and drug abuse. The Decedent was also known to be non-compliant with medications. Upon evaluation by the ER staff

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100 Wilshire Blvd., Suite 950 Santa Monica. California 90401 (310) 578-7171 FAX (310) 578-7731

the Decedent was found to be agitated, suffering from acute psychosis, with a history of paranoid schizophrenia. The Decedent was restrained upon his arrival at the ER at 3:23 p.m. and was given medications to calm him. While the Decedent was at Marian Medical Center he was placed on one-to-one security and was placed on medical observation. A toxicology screen was conducted and indicated positive for

amphetamines. At 4:45 p.m. the Decedent was evaluated and was found to be more reasonable and was easier to talk to. The Decedent was subsequently checked at 7:00 p.m., and at 8:10 p.m. He was then cleared for transfer to PHF. 21. At 8:30 p.m. the Decedent was transported by ambulance from Marian

Medical Center to PHF. The Decedent was released from the restraint system and was moved from the hospital bed to the ambulance gurney by the ambulance crew with the assistance of two officers from hospital security. The Decedent was placed in soft restraints on the ambulance gurney. The Decedent slept during the transport to PHF, but was noted to have been very aggressive and restless while he slept. The

ambulance arrived at PHF at about 9:30 p.m. Upon arriving at PHF, the Decedent was placed on a holding room bed and restraints were maintained. PHF personnel assisted in the transfer of the Decedent from the ambulance gurney to an evaluation bed. At that time PHF personnel assumed care of the Decedent. 22. When Decedent arrived at PHF, the staff, Defendants OCONNOR, BUGAY, ROMANO and GOMES were present at the time of Decedents arrival at PHF. These four Defendants reviewed the clearance evaluation from Marian Medical Center and noted the Decedent was very agitated, delusional and aggressive upon admission. Additionally, it was noted the Decedent had tested positive for amphetamines and

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100 Wilshire Blvd., Suite 950 Santa Monica. California 90401 (310) 578-7171 FAX (310) 578-7731

negative for other substances including alcohol. administration at Marian Medical Center was noted.

Additionally, the medication

23. The Decedent was then officially admitted to PHF at about 9:45 p.m. The Decedent was then placed in a seclusion room and restrained with a leather hard restraint system without the supervision physician first conducting a proper review of Decedents chart. The supervision physician and the PHF staff, who are the four

individually named defendants, ignored the fact that Decedent lab results from Marian Medical Center revealed that Decedent tested positive for methamphetamines, thereby placing him in a high risk while being placed in restraints on his wrists, ankles and chest. Furthermore, the aforementioned defendants failed to continually visually

monitor Decedent through the Closed Circuit Television and through the audio monitoring. These Defendants also failed to check on Decedent every 15 minutes. In fact there are only two entries in the interdisciplinary records, the first one an admission note from 9:45 p.m., and the second one from 1:15 a.m. indicating that Decedent was found nonresponsive. 24. At 9:45 p.m. Defendants gave Decedent 10 mg of Zyprexa, he supposedly

continued screaming and pulling against his restraints. At 11:55 p.m., the Decedent was given 10mg of Zyprexa and 2mg of Ativan. After the second dose of medication the Decedent continued screaming at the Defendants and pulling against the restraints. However, defendants noted the Decedent began a cycle of pulling against the restraints

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and screaming for 5 minutes, and then he would relax and snore for about 30 seconds. After the relax period Decedent would resume yelling and pulling against the restraints. At 1:00 a.m., a defendant noted on the observation log that the Decedent was on the bed pulling on the restraints. At 1:13 a.m. a Defendant monitoring the video

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100 Wilshire Blvd., Suite 950 Santa Monica. California 90401 (310) 578-7171 FAX (310) 578-7731

system noticed the Decedent stopped pulling against the restraints. Additionally, the Defendant no longer heard Decedent snoring. Defendants went to Decedent and noted that he was unresponsive and was not breathing. Defendants called 911. Defendants notified Santa Barbara County Sheriffs Department deputies that Decedent had been at PHF for about 3 hours and that he had tested positive for amphetamines during the medical clearance examination. 25. In 1982 in Youngberg v. Romeo, 457 U.S. 307, the United State Supreme Court held that mentally retarded people in state custody have a substantive due process right to "reasonably safe conditions of confinement, freedom from unreasonable bodily restraints, and such minimally adequate training as reasonably [might] be required by these interests". The Youngberg analysis holds state actors liable if they fail to use professional judgment, based on accepted standards, in their decisions regarding an involuntarily committed person who is injured in their care. The Ninth Circuit follows the Supreme Court's reasoning in Youngberg and applies a professional judgment standard to such state actors. 26. Plaintiff alleges that Defendants violated the due process rights of both

Decedent, an incapacitated and involuntarily civilly committed individual, and Plaintiff who is Decedents father, because Defendants judgment was such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a

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judgment. See Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). The 9th Circuit interpreted the Youngberg standard to be the equivalent of conscious disregard amounting to gross negligence. OConner (9th Cir. 1988) 846 F.2 1205, 1208. See Estate of Conners v.

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27. Defendants, and each of them, and others, both by action and inaction, created or executed or condoned or ratified policies, customs, practices, patterns of conduct, and rules and regulations designed, or with the effect, to promote unsafe and dangerous conditions while being admitted to PHF and Defendants and others acted knowingly or with gross negligence or reckless disregard or deliberate indifference to the rights of Decedent and Plaintiff under the United States Constitution. 28. As a proximate result of the acts and omissions of Defendants, and each of them, as set forth in this First Amended Complaint, Decedent has suffered loss of freedom, pain, suffering, inconvenience, mental anguish, humiliation, fear, emotional distress, loss of constitutional rights, loss of income, loss of earning capacity, and loss of familial relationships and Plaintiff has suffered loss of love and affection of his son the Decedent. 29. Defendants, and each of them, by acts of omission and commission, as complained of herein, acted recklessly, maliciously, fraudulently, and/or oppressively with respect to the rights of Decedent and Plaintiff secured to them by the United States Constitution. Defendants, and each of them, actually caused the deprivation of

Decedent and Plaintiffs federal civil rights and other injuries suffered by plaintiff. FIRST CAUSE OF ACTION Violation of 42 U.S.C. 1983: Failure To Train And Supervise Defendants (Against Defendants COUNTY, PHF, FELICIANO and DIETRICH

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and DOES 1 through 20, inclusive) 30. Plaintiff realleges, and incorporates herein as if fully restated, the allegations of paragraphs 1 through 29, ante.

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31. Defendants FELICIANO and DIETRICH, and DOES 1 through 20, inclusive, are sued here both in their individual and representative capacities. 32. At all relevant times, the mission of the County of Santa Barbara Alcohol, Drug & Mental Health Services is to promote the prevention of and recovery from addiction and mental illness among individuals, families and communities by providing effective leadership and delivering state-of-the-art, culturally competent services, including PHF a 16-bed psychiatric facility. Defendant COUNTY is responsible for

ensuring the provision of mental health services mandated by the State of California for adults with serious mental illness. During all relevant times, the PHF staff included Defendants FELICIANO and DIETRICH and others. 33. In 2010, PHF staff were trained in the use of seclusion and restraint by utilizing a combination of on-the-job training and classroom training. However, the

Defendants COUNTY, PHF, FELICIANO and DIETRICH failed to train PHF staff that seclusion and restraint may only be used when less restrictive interventions have been determined to be ineffective to protect the patient, a staff member or others from harm. COUNTY/PHF/FELICIANO/DIETRICH failed to ensure that the orders written for the use of restraints and/or seclusion, were comprehensive, complete and in compliance with the facility's policies and procedures. The restraint and seclusion orders written failed to describe, in specific behavioral terms, the patient's dangerous behavior justifying the intervention, failed to specify the type of restraint to be implemented and

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failed to ensure the order for the use of the restraints was time limited. Furthermore, COUNTY/PHF/FELICIANO/DIETRICH failed to ensure its staff that a patient under the influence of amphetamines is at a high risk for suffocation or other bodily harm when placed on his back and restrained by the feet, hands and chest.

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34. In failing to train and supervise COUNTY/PHF/FELICIANO/DIETRICH, and DOES 1 through 20, and each of them, substantially departed, deliberately disregarded, or were willfully blind or grossly negligent to, the substantial risk of violation of the constitutional rights of Decedent and of others; these risks were known to each of the Defendants or would be apparent to a reasonable person in the Defendants position. Among other things, at that time both common and forensic knowledge existed of the high risk of patients under the influence of amphetamines while being restrained. People have died in restraints from many causes, including: Asphyxia; Aspiration that is, swallowing ones own secretions, generally while being restrained face up; and Cardiac events brought on by exertion, medication interactions, and unknown cardiac anomalies. These risks are elevated by numerous medical conditions (e.g., obesity, asthma, bronchitis, intoxication). It was further known that each use of restraint or seclusion poses an inherent danger and significant risk, both physical and psychological, to the individual who is subject to the interventions who has psychiatric disabilities. These risks include serious injury or death. 35. At all relevant times, there was no adequate governing body to review PHF. COUNTY/PHF/FELICIANO/DIESTRICK, and DOES 1 through 20, failed to actively monitor PHF staff so as to preclude governmental actors such as NICHOLSON from creating and perpetuating a dangerous and inappropriate use of the seclusion and restraints. FELICIANO and DIETRICH and DOES 1 through 20 knew or should have

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known that their training procedures and supervision were grossly deficient; they were deliberately indifferent, or acted with gross or reckless disregard, or substantially departed from the accepted standard of care thereby not using any professional

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judgment, to the significant likelihood that the constitutional rights of individuals would be thereby violated. 36. The COUNTY/PHF policy, custom, pattern, practice or persistent course of conduct during 2010 of using seclusion and/or restraint to improperly control the behavior of its patients was a direct and proximate cause of the violation of Plaintiff and Decedents constitutional rights. 37. The foregoing conduct of COUNTY/PHF/FELICIANO/DIETRICH, and DOES 1 through 20, and each of them, was reckless, malicious and oppressive, warranting the award of punitive damages against each of them. WHEREFORE, plaintiff DETTY prays for judgment as set forth below. SECOND CAUSE OF ACTION Violation of 42 U.S.C. 1983: Failure to Use Professional Judgment. (Against Defendants NICHOLSON, OCONNOR, BUGAY, ROMANO, GOMES, SMITH, and DOES 1 through 30, inclusive) 38. Plaintiff realleges, and incorporates herein as if fully restated, the allegations of paragraphs 1 through 37, ante. 39. Defendants NICHOLSON, OCONNOR, BUGAY, ROMANO, GOMES, SMITH are sued here in their individual capacity. 40. Defendants NICHOLSON, OCONNOR, BUGAY, ROMANO, GOMES, SMITH, and other agents or employees of Defendant COUNTY, including but not limited

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to DOES 1 through 30, and each of them, had statutory and constitutional duties to provide care and treatment to Decedent in a reasonable manner and to comply with these duties before placing Decedent in a serious risk of bodily harm thereby depriving Decedent, of his liberty. Defendants NICHOLSON, OCONNOR, BUGAY, ROMANO,

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GOMES, SMITH worked at PHF, 16-bed psychiatric facility designed to admit people such as Decedent, pursuant to California Welfare and Institutions Code Section 5150 (i.e. the LantermanPetrisShort Act) who as a result of a mental disorder, are a danger to others, or to himself, or are gravely disabled. Prior to being admitted to PHF patients who have been 5150d are taken to an emergency room for medical clearance. Specifically, it is required and essential for the staff at PHF to know the medical condition of a newly admitted patient, such as Decedent, who is not able to provide reliable information to the admitting staff. Moreover, Cal. Welf. & Inst. Code 5325.1, requires that treatment should be provided in ways that are least restrictive of the personal liberty of the individual, and requires the right to be free from harm, including unnecessary or excessive physical restraint, isolation, medication, abuse, or neglect. And it is noted that medication may not be used as punishment, for the convenience of staff, as a substitute for, or in quantities that interfere with the treatment program. 41. Here, Decedent was taken to the emergency room of Marian Medical

Center, in Santa Maria, a mile or so from where he was picked up. Urine and blood tests came back positive for methamphetamines, which automatically placed Decedent in a high risk category for use of restraints. Specifically, pursuant to California Health & Safety Code section 1180.4 holds that [a] physical or mechanical restraint may not be used on a person who has a known medical or physical condition, and where there is reason to believe that the use would endanger the persons life or seriously exacerbate the persons medical condition. Furthermore, prone or supine restraints are contraindicated in patients with the following risk factors: agitated delirium, methamphetamine, preexisting heart disease or respiratory conditions. Defendants NICHOLSON, OCONNOR, BUGAY, ROMANO, GOMES, SMITH knew or should have
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100 Wilshire Blvd., Suite 950 Santa Monica. California 90401 (310) 578-7171 FAX (310) 578-7731

known that Decedent was highly agitated and under the influence of methamphetamines and that he had hypertensive heart disease, they never fully tried preventive measures prior to seclusion and restraints. In fact the seclusion and restraint record from PHF indicates that there was a verbal intervention whereby Decedent was instructed to calm down and listen, even though it was noted on the same form that patient . . . unable to follow redirections. Obviously, a verbal intervention of calm down and listen to someone who is having acute psychosis and unable to calm down and listen is useless. The form in blank as to the rest of any preventive measures used prior to using seclusion and restraint. Furthermore, Defendants NICHOLSON, OCONNOR, BUGAY, ROMANO, GOMES, SMITH knew or should have known that the staff at Marian Medical Center were in touch with Decedents father, Plaintiff Richard Detty, and should have contacted him to inform him of his sons condition. Defendants failed to contact and notify the patient rights advocate of Decedents condition. Defendant NICHOLSON, at 10:30 p.m. noted that Decedent, who was in a five point supine restraint and placed in seclusion, was a danger to others because he was threatening staff; uncooperative. He noted that Decedent was labile, agitated briefly between periods of sleep, and did not appear that Decedent was able to discuss or understand release criteria. Defendant NICHOLSON concluded that he agreed with seclusion and restraint until Decedent was able to vow compliance or maintain calm behavior. There was absolutely no discussion by any of the Defendants of using less restrictive means or whether there was any physical danger to Decedent who was under the influence of methamphetamines. 42. Although these Defendants, and each of them, knew or should have known that under the circumstances placing and keeping Decedent in seclusion and restraints
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placed him in risk for great bodily injury, they failed and refused to correct it and allowed it him to remain in seclusion and restraints until his death. Such behavior was done without using proper professional judgment thereby resulting in conduct that was substantially below the standard of care or simply their conduct amounted to gross negligence or conscious disregard for Decedents safety and was a substantial factor in Decedents death, in violation of Plaintiffs and Decedents constitutional rights. 43. The aforesaid conduct was part of an official policy, custom, practice or pattern of conduct of the COUNTY, directly causing the deprivation of Plaintiff and Decedents federal constitutional rights. 44. The aforesaid conduct of Defendants NICHOLSON, OCONNOR, BUGAY, ROMANO, GOMES, SMITH was reckless, malicious and oppressive, warranting the award of punitive damages against each of them. THIRD CAUSE OF ACTION WRONGFUL DEATH [Code of Civil Procedure 377.60, and Govt. Code 854.8(d)] (Against Defendants NICHOLSON, OCONNOR, BUGAY, ROMANO, GOMES, SMITH, and DOES 1 through 30, inclusive) 45. Plaintiff realleges, and incorporates herein as if fully restated, the allegations of paragraphs 1 through 44, ante. 46. While Plaintiff alleges that Defendants acts and omissions detailed above

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amounted to reckless neglect of a dependant adult, Plaintiff pleads in the alternative that the individually named Defendants and each of them, at a minimum negligently and carelessly cared for Plaintiff in violation of Govt Code 854.8(d). Furthermore,

Plaintiffs injury is a kind which does not ordinarily occur in the absence of someones

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100 Wilshire Blvd., Suite 950 Santa Monica. California 90401 (310) 578-7171 FAX (310) 578-7731

negligence, the injury was caused by an agency or instrumentality in the exclusive control of Defendants, and no voluntary conduct on the Plaintiffs part was a responsible cause of the injury. It was foreseeable that Plaintiff would be harmed by the actions of the Defendants towards Decedent and each of them and that he was harmed as a proximate result of their actions and omissions. As it has been described above,

Defendants failed to protect Decedent from the dangers of being restrained on his back from 9:15 p.m. until 1:15 a.m. and failed to provide Decedent with proper medical care and attention following is admission to PHF. 47. As a proximate result of the professional negligence of the individually

named Defendants, and each of them, Decedent died on or about April 29, 2010. The individually named Defendants are liable to Plaintiff because their conduct amounted to malpractice and under Govt Code 854.8(d) a government employee is not immune when he or she commits malpractice in the carrying out his or her duties. The

individually named Defendants are also liable to Plaintiff under Government Code 855.8(c) and (d) due to their negligence or wrongful act in administering any prescribed treatment for mental illness. And they violated Government Code 855.6 where a public entity and a public employee acting within the scope of his employment are liable for injury caused by the failure to make an examination or diagnosis for the purpose of treatment. 48. Prior to the death of Decedent, Plaintiff Richard Detty cared for his

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troubled son as best he could under the circumstances. At most times prior to his death, Decedent, a man with severe mental illness, was a faithful and dutiful son to this Plaintiff.

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49.

As a proximate result of the negligence, malpractice, abuse of dependent

adult, and of the death of Decedent, Plaintiff has sustained pecuniary losses resulting from the loss of society, comfort, services and support of Decedent in an amount to be determined at trial. 50. As a further proximate result of the negligence, abuse of dependent adult,

and death of Decedent, Plaintiff Richard Detty incurred funeral and burial expenses as well as general damages in an amount according to proof. WHEREFORE, plaintiff prays for judgment as set forth below. PRAYER FOR RELIEF Plaintiff seeks judgment as follows: a. Compensatory general and special damages against all defendants, and each of them, in an amount according to proof; b. Punitive and exemplary damages against each of the defendants herein sued in his/her individual capacity; c. Pre-judgment interest according to proof; d. Reasonable attorneys fees and expenses of litigation as allowed by law, including but not limited to 42 U.S.C. 1988; e. Costs of suit reasonably incurred herein; f. Such further relief as the court deems just and proper; and g. That the COUNTY be required to pay any judgment pursuant to law.

23 24 25 26 27 28 By:__________________________ DAVID FELDMAN ATTORNEY FOR PLAINTIFF RICHARD DETTY


18 FIRST AMENDED COMPLAINT

Dated: October 28, 2011

LAW OFFICES OF DAVID M. FELDMAN

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