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Defendants seek dismissal of PTSD claim by Delnor hospital patient after nurse hostage situation

The Northwest Herald - 10/17/2017

GENEVA ? Four defendants named in a federal lawsuit are asking the court to dismiss claims filed by a patient at Northwestern Medicine Delnor Hospital in Geneva that she suffers from post-traumatic stress disorder as a result of a May 13 incident in which nurses were taken hostage.

The lawsuit, filed Aug. 22 by Victoria Weiland, states that as a result of hearing screams she believed were from nurses, she has been "afraid to return to any medical facility for required testing and treatment for unrelated medical conditions based upon her post-traumatic stress disorder."

The incident at Delnor involved inmate Tywon Salters, 21, who reportedly was unshackled so he could use the restroom, took a correctional officer's handgun, took a nurse hostage, released her, then took a second nurse hostage before he was shot and killed by a SWAT team.

Weiland's lawsuit names Kane County, correctional officer Shawn Loomis, Apex3 Security LLC and Northwestern Medicine Delnor Hospital, and seeks an unspecified amount to make up for medical care and services; compensatory and punitive damages; lawyer's fees; and court costs.

In separate filings, the defendants all assert that Weiland has no legal claim that any of them are responsible for her emotional injuries.

Attorney Michael Atkus for Kane County said that Weiland's lawsuit should be dismissed because she "fails to state a single claim against Loomis" and that she was not a victim of "state-created danger."

Atkus also cited case law that "there is no constitutional right to be protected by the state against being murdered by criminals or madmen."

In the filing from Delnor, attorney Ruth Enright argued that the Kane County Sheriff's Office had sole custody and control of Salters, not the hospital.

The law does not impose a duty on the hospital to prevent Salters from escaping and committing crimes against others; therefore, it cannot be held liable for Weiland's claims, Enright's filing stated.

The hospital is obligated by law to accept and treat prisoner patients, but even at another location, the sheriff's office still was the only entity responsible for Salters, Enright's filing stated.

In his court filing, Apex3 Security attorney Adam Jagadich said that the hospital's security firm cannot be held liable for Weiland's claims because the inmate patient was entirely under the legal control of the sheriff's office, not the hospital's security company.

In his filing, Loomis' attorney, Michael Bersani, said that negligence and failure to act on the part of his client are not enough for a federal claim of "state-created danger."

"No one has a federal constitutional right to have an arrestee guarded by an infallible equivalent of RoboCop," Bersani's filing stated.

RoboCop refers to a science-fiction character that is a crime-fighting cyborg superhero.

"If a state actor sloppily performs or even utterly abdicates his task of guarding a person in custody, the public is no worse off than if the criminal had never been arrested at all," Bersani's filing stated.

Bersani's filing also said that Loomis has "qualified immunity," which covers local officials who perform discretionary functions from civil liability.

Were Loomis to be denied qualified immunity, it "would put every officer who guards a shackled detainee with a medical need [to use the restroom] in a no-win situation: Address the medical need and face liability if the detainee escapes, or ignore the medical need for fear of a lawsuit ? and then face liability for deliberate indifference to ? serious medical needs," Bersani's filing stated.

These filings for dismissal follow similar responses to a lawsuit by four nurses and two of their husbands against the county, Loomis and Apex3.


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