EDWARDSVILLE – Aspen Creek memory care home in Troy, where Kathleen Kinkel walked out and froze to death on Jan. 31, claims her estate can’t pursue a wrongful death suit under nursing home law because Aspen Creek doesn’t operate a nursing home.
Aspen Creek counsel Michael Walsh of Chicago classified the facility as shared housing in April in a motion to dismiss the suit in Madison County Circuit Court.
Walsh claimed the Illinois Nursing Home Care Act specifically excludes shared housing, assisted living, and Alzheimer’s management centers.
Estate counsel James Radcliffe of Belleville opposed the motion in May, and Circuit Judge Dennis Ruth plans to hear argument on June 29.
Radcliffe sued Aspen Creek, which has principal offices in Sullivan, for estate administrator Thomas Kinkel three weeks after Kathleen Kinkel died.
Thomas and Kathleen were married 57 years. She is survived by daughters Julie Kinkel and Elizabeth Kinkel and son Timothy Kinkel.
In Aspen Creek’s motion to dismiss, Walsh first argued that the complaint didn’t contain a physician’s report “as mandated by all healing art malpractice claims.”
He claimed there was no affidavit of counsel regarding consultation with a qualified provider regarding the facts and circumstances.
Walsh also argued that Aspen Creek is not a skilled nursing facility under the purview of the Illinois Nursing Home Care Act.
Instead, he claimed the Assisted Living and Shared Housing Act applied.
Radcliffe responded that the estate didn’t have enough information on Aspen Creek’s structure to determine which law applies.
“In certain instances, there may be a hybrid between the two,” he wrote.
He claimed Aspen Creek provided no proof that it isn’t a long term care facility.
“The complaint alleges defendant advertises itself as a memory support residence which may implicate the Nursing Home Care Act,” he wrote.
As for an affidavit, Radcliffe claimed expert testimony wasn’t required to establish that an elderly dementia patient should not be left outside on the coldest day of the year.
He claimed Illinois courts consistently hold that an affidavit isn’t required when a complaint is not predicated upon healing art malpractice.
He quoted a precedent that, “Whether allegations sound in healing art malpractice depends upon their substance rather than the label that a plaintiff uses to describe a claim.”
“If the court is inclined to dismiss any part of plaintiff’s complaint, plaintiff requests leave to amend,” he wrote.