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Thurston v. Workers Compensation Fund of12/26/2003
(For Official Publication)
Warren and Frances Thurston are the parents and lawful heirs of Roger Thurston and the plaintiffs in this wrongful death action. The trial court entered summary judgment in favor of all three defendants and dismissed Plaintiffs' causes of action, based in tort and contract, due to the lack of sufficient evidence that would allow a jury to determine that any negligence of Defendants was the proximate cause of Roger Thurston's death. We affirm on the merits.
BACKGROUND
Roger Thurston was injured in a mining accident on May 3, 1983, which rendered him severely disabled. The majority of his body was burned, and he eventually had to have both arms amputated and became almost completely deaf. Workers Compensation Fund (WCF), the insurance carrier for Thurston's employer , paid nearly $2 million in medical and compensation benefits until Thurston's death in 1998.
After Thurston was discharged following his initial hospitalization, WCF retained Community Nursing Services (CNS) to provide him with home health care. According to the original complaint, twenty-four-hour home nursing care was provided by CNS, and in the second amended complaint, Plaintiffs allege that WCF hired CNS " n or around December 18, 1986." According to the referring doctor's orders, CNS home health aides were directed to ensure a safe environment for Thurston and assist him in meal preparation and household management four times a week, for a total of 48 hours per week. Starting on January 29, 1998, the visits of the health aides occurred only when requested by Thurston, and the last visit was on May 14, 1998.
Heal & Company (H&C; was retained by WCF to supervise Thurston's personal healthcare plan, occasionally assess his needs, and prepare a healthcare cost projection. H&C;s services were completed in April 1998.
On June 25, 1998, Thurston was found dead at his home. According to the medical examiner's report, Thurston was found nude in the driver's seat of his vehicle with his seat belt fastened, the ignition on, the battery dead, and the garage door closed. The medical examiner found the immediate cause of death to be carbon monoxide intoxication. Due to the unusual circumstances of the death, Thurston's disabilities, and his blood alcohol level of .22, the medical examiner found the manner of Thurston's death could not be determined. The examiner opined there was at least a "possibility that the decedent may have been assisted in his suicide or have been placed in the vehicle by another person(s) without his understanding and consent."
On March 23, 2000, Plaintiffs commenced this action. In their second amended complaint, Plaintiffs asserted several causes of action, both tort and contract, and sought over six million dollars in damages. All of their claims revolve around the general allegation that Thurston committed suicide as a result of the "totally inadequate" care he received from Defendants. Plaintiffs allege in their brief that "Thurston's health aides frequently neglected their duties and provided with insufficient care, if any at all." Plaintiffs allege that Thurston was depressed during the last month of his life and that Defendants were negligent in not recommending and/or performing a psychological evaluation. Plaintiffs state that " his negligence, among other acts, by Defendants caused Mr. Thurston's depression and alcohol/drug problem to become so severe as to cause him to die." Other specific acts Plaintiffs allege are that CNS employees deprived Thurston of care and were aware of his problems with drugs and alcohol but did not report those problems to their supervisors; that WCF
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