Mother’s suit faces challenges

Kathleen Smith was a sweet, 52-year-old woman whose body aged but her mind did not.

She lived in state care from age 14 until her death at the Lakeland Village Nursing Facility in Medical Lake in 2006. Smith drowned after she was left unattended in a bathtub despite having a seizure disorder that required arm’s-length supervision at all times.

Smith’s mother is now fighting to change a state law that makes it almost impossible to hold anyone responsible for her daughter’s death.

Smith suffered brain damage at birth caused by a lack of oxygen. At the time of her death, on March 21, 2006, she had the mental capacity of a 6- or 8-year-old, said her mother, Bettyjean Triplett.

In addition to developmental problems, Smith suffered from severe seizure disorder. At one point during her childhood, Smith would drift into grand mal seizures every couple of minutes, Triplett said.

“I had to have her in a padded crib. She was taking all my time,” said Triplett, of Seattle, who also had two other children.

At Lakeland Village, her care provider, Michael Noland, admittedly left her side during a bath to deal with some other crisis within the facility. A staff member arrived a few minutes later to find Smith face down in the bathtub. The autopsy showed she had a seizure and drowned, according to court records.

Spokane County prosecutors charged Noland with second-degree manslaughter, but a jury exonerated him in 2009 of any criminal wrongdoing.

Local attorney Mark Kamitomo filed a civil suit against the state Department of Health and Social Services, arguing that the state failed to protect Smith.

Late this summer state attorneys attempted to have the case dismissed, arguing that state law leaves no remedy for Triplett to sue the state for wrongful death.

Washington does not allow families to sue for pain and suffering in wrongful death cases, leaving only lost wages as an alternative. Since Kathleen had been institutionalized, however, and had never held a job, that left Triplett with no remedy to hold the state responsible for what she thought was negligence.

“If the state prevails,” Kamitomo said, “there is no lawsuit. Unless you can show that Kathleen was supporting Bettyjean, you can’t make a claim for the loss of her child. That’s wrong.”

But Superior Court Judge Linda Tompkins ruled in August that the state could not shield itself from wrongful death law and allowed the case to proceed, saying that Smith should be treated under the law as a minor because of her disabilities. The case has now stalled until the Division III state Court of Appeals decides whether to keep Tompkins’ ruling intact.

The state is being represented by Assistant Attorneys General Jerry Cartwright and Carl Warring. Warring said he was limited on what he could discuss about the case.

“I want to be clear, that it is not unusual for minds to differ about what the law provides,” he said. “The wrongful death statutes are a legislative creation. Ms. Smith, at least from our reading of the law, doesn’t fit into one of the categories where someone could bring a claim under the wrongful death statute.”

Kamitomo said the state Legislature has considered changing the law a few times but has kept the statute intact.

In the meantime, he and Triplett are waiting for appellate judges to determine whether the case goes forward, allowing Triplett to sue for the loss of her daughter. That hearing is not expected until early next year.

Said Triplett of her daughter, “she was a precious little girl and she never hurt anyone. She was so happy. I have an awful hard time getting by this.

“I hope that law can be changed someday so other parents don’t have to go through what I’ve gone through,” she said.