Negligence lawsuits against Fort Smith-based health facilities settled out of court

Oct. 02--Two negligence lawsuits with Fort Smith-based health care facilities have been settled out of court for an undisclosed amount.

Lawsuits with Bost Inc. over the 2015 death of Jimmy Don Abner, and with Valley Behavioral Health for the alleged 2016 rape of a male minor by another male minor in an Area Agency on Aging van were recently settled out of court by McCutchen & Sexton Law Firm in Fort Smith.

Abner was 58 in February 2015 and suffered from early-onset dementia and Alzheimer's disease when he was found in a wooded area near Cedarville days after his live-in home health-care aide reported him missing from Fort Smith.

Because Bost Inc. had pleaded "charitable immunity," Humana American Insurance Co. and Stacy Click, an independent contractor who had supervision over Abner's care, were added to a negligence lawsuit.

Shawn Howard, Abner's 24-hour caregiver, is still serving a 10-year sentence for second-degree murder. Howard, who had been Abner's caretaker for seven years, is eligible for parole in December 2020.

"There were multiple red flags," Joey McCutchen of the firm said. "By taking depositions we were able to ask tough questions and one of the shocking things was the CEO had zero knowledge of policies and procedures."

The CEO at the time was Kent Jones.

Other "egregious" violations" in the case, McCutchen said, was the lack of a relief plan for Howard to keep from having "burn-out" from the stressful job, and a lack of unannounced visits as policy demanded. A fictional person named "Steve Howard" was also listed in Bost Inc.'s records as the one who relieved Shawn Howard, McCutchen noted.

"They really set him up for failure," McCutchen said. "There was no relief whatsoever ... There was no backup plan for providing care."

A request for comment from Bost Inc. was requested Monday.

Child rape case

A jury trial had been scheduled to take place in Sebastian County Circuit Court on Monday to determine if Area Agency on Aging and Valley Behavioral Health System in Barling were negligent in the alleged rape of a 10-year-old boy by a 14-year-old boy on an Area Agency on Aging van in early 2016.

This case was also settled out of court by McCutchen & Sexton Law Firm recently for an undisclosed amount. The alleged rapist, 14 at the time, was declared mentally incompetent to stand trial.

A video of the incident was produced in discovery for criminal prosecution of the Area Agency on Aging van's driver, Jordan Byrd.

Byrd, a relative of the alleged rapist, was 71 at the time the incident and according to the Franklin County Circuit Clerk in Charleston, Byrd pleaded guilty in July 2017 to endangering the welfare of a minor, a Class D felony, and was sentenced to 60 months probation.

Byrd also received 12 months probation for the misdemeanor charge of child maltreatment because he was a mandated reporter who failed to report the alleged rape. Byrd was fined $850 for the crimes and $150 in court costs.

Acadia HealthCare, owner of Valley Behavioral Health, was also a third-party defendant. Dale Greenlee was the plaintiff in the lawsuit against the groups.

David Corley and Paula Corley, guardians of the alleged juvenile rapist, are also defendants but filed a cross complaint. That case is still pending.

McCutchen said last week that it was Area Agency on Aging's van, but Valley Behavioral Health Systems was "equally culpable" for the alleged rape since mental health counselors knew of the rape suspect's tendencies. The two agencies were supposed to be in communication with one another about the threat, McCutchen said.

A home safety plan had been created by the rape suspect's counselor and his step-grandmother to keep him from being alone with siblings and "private time" was allotted for the suspect to dress in women's garments. But there was no safety plan for his transportation, McCutchen noted.

Mental health counselors had also discussed shortly before the incident whether or not the alleged rapist's reasons for exposing himself to others was because of a "low IQ" and whether he was "grooming" other children on the bus for his satisfaction.

"None of the incidents were reported to the hot line," McCutchen said of the alleged rapist exposing himself to his sisters and requested sexual favors, and exposing himself to other children on the agency's van.

Prior reports were made, however, by Valley Behavioral Health to the Arkansas Child Abuse Hotline, when the alleged rapist was hospitalized for mental illness and exposed himself to people while fondling himself in public at the hospital.

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