Russell A. Sacks
Attorney at Law
3301-R Coors Blvd., NW
PMB No. 295
Albuquerque, NM 87120
Tel: (505) 681 -8333
Fax: (505) 342-2758
[email protected]
April23 , 2014
BY CERTIFIED MAIL/
RETURN RECEIPT REQUESTED
Steve Chappel, Chair (Dolores)
Board of County Commissioners of the
County of Montezuma
Montezuma County Courthouse
109 West Main Street, Room 302
Cortez, CO 81321
(7013 1090 0001 7180 9351)
Keenan Ertel, (Cortez)
Board of County Commissioners of the
County of Montezuma
Montezuma County Courthouse
109 West Main Street, Room 302
Cortez, CO 81321
(7013 1090 0001 7180 9375)
Sheriff Dennis Spruell
Montezuma County Sheriffs Office
730 East Driscoll Street
Cortez, CO 81321
(7013 1090 0001 7180 9368)
John Baxter, Esq.
Montezuma County Attorney
109 West Main Street, Room 105
Cortez, CO 81321
(7013 1090 0001 7180 9382)
Re:
Kent Helwig, Chief Executive Officer
Southwest Memorial Hospital
1311 North Mildred Road
Cortez, CO 81321
(7013 1090 0001 7180 9399)
William Thompson, Chair
Board of Directors of the
Montezuma County Hospital District
c/o Jan Saunders, Executive Assistant
1311 N. Mildred Road
Cortez, CO 81321
(7013 1090 0001 7180 9405)
Brooks & Brooks, LLC
Registered Agent for
Southwest Health System, Inc.
P.O . Box 179
Montrose, CO 8 1402-0 179
(7013 1090 0001 7180 9412)
John W. Suthers, Esq.
Attorney General
State of Colorado
1300 Broadway, 101h Floor
Denver, CO 80203
Harrison M. Begay, Deceased
Gentlemen:
On or about October 27, 2013, Harrison M. Begay, an enrolled ember oftfie
avajo Nation and an alcoholic, died while in poliGe custody in Montezuma County jail,
but not before he received medica care at Southwest emorial Hospital ESouthwest) in
Cortez, Colorado after his arrest where he was treated for aGute alcohol intoxication. Mr.
Begay was the second of three inmate deaths that occurred in Montezuma County jail in
2013.
Pursuant to section 24-10-109, C.R.S. (as amended) ofthe Colorado
Governmental Immunity Act (CGIA), timely notice is hereby provided that my office
epresents the Estate o Harrison M. Begay (Estate) in a wrongful death and surviYors'
action brought on behalf of the Administrator of the Estate, Felicia Herder. This notice is
respectfully provided to Attorney General Suthers to the extent required by applicable
law.
Harrison M. Begay has seven surviving biological children and was not married at
the time of his death. Felicia.Herder is Mr. Begay's biological sister and the duly
appointed as the Administrator of her brother's Estate by the Kayenta Family Court
(Navajo Nation) on November 18,2013. (A true and correct copy ofthe Order of
Appointment entered on November 18,2013 is attached for your reference as Ex. A.)
Such action under the CGIA will be brought against the Montezuma County Sheriffs
Office and Southwest Memorial Hospital and certain employees of the Sheriffs Office
and the Hospital under the waiver of sovereign immunity created in section 24-10106(1.5)(b), C.R.S. (as amended) as paragraph (b) applies "to claimants who are
incarcerated but not yet convicted of the crime for which such claimants are being
incarcerated if such claimants can show injury due to negligence," id. , and as the CGIA
waives a public entity's immunity for injuries (or death) resulting from the "operation of
any public hospital," respectively. § 24-10-1 06(1 )(b).
Detentio-n and correctional facilities..have an obligation to provide adequatt>
medical care to detainees and prisonerS>. This letter will also provide notice of the
Administrator's intention to pursue federal civil rights action under 42 U.S.C. § 1983
against the Montezuma County Sheriffs Office and certain employees of the Sheriffs
Office for their deliberate indifferenc to Mr. Begay's life~hreatening medical condition
and failing to provide required~reatment for that need.during his 'ncarGeration on
October 26 and October 27, 201'3, and after he was discharged from Southwest Memorial
Hospital on October 26, 2013 for treatment of acute alcohol intoxication.
Detective T'yson Cox noted 'n his Incident Repo dated October 27, 2013 that
Mr. Begay was found in his cell with "blood in his nostrils and around his nose#' See
Cox Incident Report at 6. Mr. Begay had been discharged from Southwest hours before
h was found dead in his Gell on October 27, 2013 . It is inconceivable that Southwest
would have discharged him bleeding from the heacl. Ms. Herder has reason to believe
that her brotlrer was brutalized gratuitously by certain Sheriff s deputie_s during his
transport fr_om the hospital to jail on October 26, 2013 that resulted in Mr. Begay's head
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injuries noted in the Cox Report. A 1983 action will be pursued for such police
misconduct and deprivation of Mr. Begay's constitutional rights.
In addition, during the e arly morning hours of October 26,2013, Felicia Herder
and her mother, Elizabeth Be gay- the biological mother of the decedent-pulled into the
Montezuma County Sheriff's parking lot and saw Mr. Begay being transported fr_om the
hospital back-to jail. The mother and daughter smelled a strong odor of pepper spray and
saw one of the deputies wielding his flashlight like a weapon immediately after exiting
the transport vehicle carrying her brother. Felicia Herder then aw several deputies
remove her brother from the transport vehicle loosely strapped to a prisoner restrain
chair with at Least one of his legs dragging on the flool(, leeding from the head, his head
tilted to one side, drooling and unconscious. Based on her brother's grave medical
condition, which was obvious to her, Ms. Herder demanded on of the deputies to
readmi Mr. Begay to the hospjtal. The deputy refuse er request and simply told Ms.
Herder that Mr. Begay had been medically cleared to return to jail without bothering to
acknowledge the present risk to Mr. Begay's health and the need for further emergency
medical care. The aeputy also callously told Ms. Herder that she could readmit Mr.
Begay to the hospital herselfi:P he could post a $500 cash bond for her brother's release,
which was not possible. A 1983 action will similarly be pursued for such police
misconduct resulting in the deprivation of Mr. Begay's constitutional rights and
deliberate indifference to the known risk of harm to Mr. Begay by failing to provide
medical treatment.
For purposes of the instant notice of claim under the CGIA, Ms. Felicia Herder is
the claimant under section 24-10-109(2)(a) as the Administrator of her brother's Estate.
Her name and address is:
Ms. Felicia Herder
Administrator of the Estate of Harrison M. Begay
P.O. Box 71
Tonalea, AZ 86044
As counsel for Ms. Herder in this matter and on behalf of the Estate, my name and
address is stated on the above letterhead.
The following is "[a] concise statement ofthe factual basis of the claim, including
the date, time, place, and circumstances of the act, omission, or event complained of."
24-10-109(2)(b) . Mr. Begay's alcoholism was well known to the local law enforcement
community and to Southwest. On May: 8, 2013, Mr. Begay was arreste by the Cortez
Police Department (or public intoxrcation, transported to the emergency room at
Southwest for medical clearance, and then jailed. On May 21, 2013, Mr. Begaywas
arrested by the Cortez Police Department for-public intoxication witlLa .276 BAC an
jailed. The officer noted that lie" ... had been on two calls the previous day (May 20,
2013) where Bega was o intoxicated he was-transportecMo-th hospital. The first
ineident h€ was transported and released a coupl hours late· w_he~he could walk again.
A short time later he was transporte to the hospital (Southwest) after he became
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intoxicated and fell down." On Octeber 2', 2013, Mr. Begay was arrested for public
intoxication by the Cortez Police Department with an open warrant for his arrest,
transported to Southwes or emergency medical treatment, and then incarcerated in the
Montezuma County jail. In the months before his death, Mr. Begay was therefore no
stranger to the_Montezuma County Sheriffs Office due to a..number of his arrests for
publiG- intoxication and/or trespassing which resulted in his treatment at Southwest
Memorial Hospital on multiple occasions. Mr. Begay's alcoholism became more acute.
On 8 ctober 2~, 2013 a 5:06p.m., Harrison M. Begay, a 8 year old Navajo male,
was admitted to the Emergency Room at Southwest Memorial Hospital with "acuity
evel4." According to hespital records, Mr. Begay had walked back from the local
shelter to Walmmi to obtain Listerine and was found on floor of the bathroom with a
bump on right side of his head above the eye. 'fodd Fowler, M.D., was the attending
physician, who noted a BAC of "376" at 5:48 p.m.- a fatal BA level. Dr. owler gave
Mr. Begay a "rally pack" and discharged him o The Brioge Emergency Shelter with a
"courtesy rid€'' at 8:15p.m. Mr. Begay egistered a BAC of .223 when he checked into
The Bridge, where he checked himself out at 10:51 p.m that night.
On etobe 26,2013 a 1· 2 a.m., Mr. Begay was again admitted to the
Southwest Memorial Hos:Qital emergency roo by EMS, and triaged, merely eight hours
after he was admitted to Southwest for aGute alcohoLintoxication on October 25,2013 at
5:06p.m. At 1:22 a.m., Dr. Fowler, the attending physician, noted, "patient presents with
alcohol intoxication" with symptoms beginning "today" with patient having "experienced
similar episodes in the past." Dr. Fowler noted that Mr. Begay was "seen earlier in the
evening (1 0-25-13) for etoh intoxication, fall, found down in Walmart bathroom. cleared.
neg head CT. was taken to shelter. walked back to Walmart. found intoxicated on floor.
no cleo." Dr. Fowler's hospital narrative also noted, "patient was seen and released from
the hospital two hours prior" to this EMS call, and Mr. Begay was taken by police to the
local shelter. In other words, after Mr. Begay was discharged from Southwest on
October 25, 2013, he checked himself into The Bridge acutely intoxicated at about 8:00
p.m., checked himself out of The Bridge at about 11 :00 p.m. that night, and returned to
Walmart where he was found on the floor of a bathroom in the early morning hours of
October 26, 20 13- and where he continued to drink Listerine. Mr. Begay was then
arrested for trespassing and public intoxication, and readmitted to the Southwest
Emergency Room where he was again treated by Dr. Fowler.
On ®Gtober 26, 2.013 at 1:22 a.m., Mr. egay w discharged to j il and released
back into the custody of the Montezuma County Sheriff by Dr. ewler wit instructions
to follow-up with privat physician in wo-three days; and that alGohol intoxi_cation "is
an ongoing problem" with Mr Begay. Dr. Fowler also noted that Mr. Begay was "stable
on discharge" and to "stop alcohol or you will die." Mr. Begay gave his informed written
consent for his discharge while acutely intoxicated.
On Gctober 26, 201 3 a 1:26 a.m., Mr. Jkgay was discharged £om the Southwest
emergency room with Dr. F:owler's 'prisoner medical clearanc " and to take back to jail:
"I have examined the prisoner and--find him acceptable for admission to the jail. I have
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no specific suggestions regarding the care of the prisoner for the condition for which I
have examined him." Mr. Begay's eport of Autopsy states tha 2 hours after being in
jail, Mr. Begay had CLBAC of 0.15 %. Robert Kurtzman, M.D. , the pathologist who
performed the autopsy, may attest that when Mr. Begay wa first jailed on October 26,
2013 by the Montezuma County Sheriffs Office, he likely had a BAC of approximately
0.40%, a fatal level. While in the parking lot of the Sheriffs Office, Felicia Herder and
Elizabeth Begay, Mr. Begay's mother, then observed Mr. Begay being transported
inhumanely from Southwest back to jail, as referenced above.
The t-laims against tlie Nlontezuma ounty Sheriffs Office are, and without
limitation, the negligent and grossly-negligent ailure to follow and/or adopt appropriate
standards of treatment for acutely intoxiGated inmates such as Harrison M. Begay; the
pegligent and grossly negligent failure to have a propriate and certifted.medical staff for
Mr. Begay's intake when he was taken back to jail from Southwest on October 26, 2013;
the inhumane transport of Mr. Begay fi'om Southwest to baGk to jai on October 26, 2013,
in which the Administrator has reason to believ one or more Sheriffs deputies
brutalized her brother and hastenecLhis death, while failing to document any injuries he
sustained during the transport, including the use of pepper spray; the negligent and
grossly negligent failure to provid necessary health care tO> Mr. B ~gay when he was
taken ack to jail on October 26, 2013, including but not limited to readmitting him to the
hospital for further treatment or administering appropriate medical care to him while
incarcerated; the negligent and grossly negligent failure to implement effective policies
ancLprocedun~s for tt=eatment of alcoholic inmates or: ·nmates with other known diseases
er ·sabilities; the negligent and grossly negligent failur to roperly screen Mr. Begay
giYerrthat when he was jailed on October 26, OB, he likely had a BAC of
approximately 0.40% as Dr. Kurtzman, the pathologist who performed the autopsy, may
attest, including but not limited to the use of special protocols for alcoholic prisoners or
detainees to be performed by qualified health care professionals or specially trained
correctional staff; the negligent and grossly negligent ailure to properly segregate and
house Mr. Begay as a vulnerable prisoner :with pecial needs, who was inexplicably jailed
with two other inmates at the time of his death; the negligent and grossly negligent ailure
to conduct visual observations an medical checks on Mr. Begay at proper intervals after
his release from the hospital to determine the need for further treatment; the negligent and
grossly negligent failure to provide necessary health care to Mr. Begay by a qualified
11€alth care professional knowing he was acutely (and fatally) intoxicated-when he was
booked on October 26, 2013; and the negligent and grossly negligent failure to provide
continuity of Mr. Begay's medical care after his discharge fro Southwest--o n October
26, 2013. Ail of the foregoing resulted in the Montezuma County Sheriff's Office's
deliberate 'ndifference to Mr. Begay's obvious and grav medical needs as a prisoner
with a.known alcohol dependency, and all of which proximately caused his death on or
about October: 2'7, 01 .
The tort claims against the Montezuma County Sheriff's Office are, without
limitation, egligence, gross tl.egligence, egligen training aHd supervision, espondeat
superior, vicarious liability, negligent misrepn~ sentatto n, breach offiduciary duL)',
reckless and/or intentional infliction of emotional distress, and wanton and willful
5
misconduct o public employees whose acts or omissions created a danger or risk to Mr.
Begay and to his Estate, and that such employees acted or failed to act without regard to
the danger or risk to Mr. Begay and to his Estate.
To the extent Southwest is a public entity covered under the CGIA, the claims
a ainst Southwest are, and without limitation, based on mediGal malpractice and fot
failure to follow appropriate protocols for the treatment of acutely intoxicated patients
such as Mr. Begay who most likely presented on October 26, 2013 with a BAC close to
0.40%. Southwes negligently and grossly negligently failed to properly consult.Mr.
Begais medical records for chronic alcohol abuse; under the circumstances and knowing
that Mr. Begay was acutely intoxicated upon his readmission to the hospital on October
26, 20 13 after hinging on Listerine, again, at the local Walmart, Southwest had a right
and therefore a duty to have prevented ML Begay from leaving the...hospital and to have
rovided specialized medical care, and to the extent Mr. Begay was in that narrow
category of patients whose medical needs were so serious that the hospital should not
have cleared him to return to jail on October 26, 2013; Southwest's negligent and grossly
negligcmt ailure to refer Mr. Begay to the detoxification facility in Durango-only one
hou ·' s drive-on October 26, 2013, which may have sav€d his life, instead of releasing
him back to jail during an unmistakable medical emergency; Southwest's negligent and
grossly negligent failure to have a detoxification uni ·n the hospital given the prevalence
of alcoholism 'n the community, thus laying bare the glaring service gap in Cortez
between the time alcoholic inmates are booked by the Sheriff's Office, transported to
Southwest for treatment, and then taken back to jail- instead of being referred to the
local detoxification unit, which does not exist; Southwest's-maliciou , ;willful and wanton
abandonment of a patient-who was a,_danger to himseJ · and others, including Southwest's
failure o put a "medical hotd" or a "mental health hold" on Mr. Begay to give him time
to stabilize arid obtain a psychiatric consultation; Southwest's breach of its primary duty
to protect the health of the public; and Southwest's failure to consult a surrogate decisionmaker for Mr. Begay's treatment and discharge before his release from the hospital back
to jail on October 26, 2013, to the extent that being acutely intoxicated, Mr. Begay lackecl
the ability to give his informed written consent to his-release from the hospital on that
date.
The t0rt claims against Southwest are, without limitation, medical malpractice,
negligence, gross negligence, m~gligent training and supervision, respondeat uperior,
vicarious liability, n.egligent.misr_epr.esentation-, re ch offiduciar~ duty, eckless and/or
intentional infliction of emotional distress, and wanton and willful misconduc of pub lie
employees whose acts or omissions created a danger or risk to Mr. Begay and to his
Estate, and that such employees acted or failed to act without regard to the danger or risk
to Mr. Begay and to his Estate.
Pursuant to 24-10-1 09(2)( c), the names and address of any public employees
involved are Sheriff Dennis Spruell, Montezuma Gounry-Sheriff's Office, 730 E. Driscoll
St., Cortez, CO 813 21 and John and Jane Does 1-1 0 who at all material times were
involved employees oftfie Sheriff's Office ana who iaentities are not 1own at this time;
and 'Fodd Fowler, M.D., Southwest Memorial Hospital, 1311 North Mildred Rd., Cortez,
6
CO 81321 and Jane and John Does 1-10 who at all material times were ·llYolYed
employees of South_west whose-identities are--not known at this time.
Pursuant to 24-10-1 09(2)(d), my client has authorized a request for monetary
damages in the amount of $5,000,000, to include exemplary damages under applicable
law. I look forward to hearing from you in an effort to resolve this matter prior to
litigation.
Sincerely,
LAW OFFICE OF RUSSELL A. SACKS
c
Ms. Felicia Herder
Administrator of the Estate of Harrison M. Begay
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