by Daniel J. Rucket
drucket@rawle.com

Wilke, et al. v. BGI of Brandywine, Inc., d/b/a Bowling Green Brandywine, CCP, Chester County, PA, No. 2009-09716-CA

On July 2, 2008, 21-year-old Michael Wilke, Jr. was taken by his parents to Bowling Green Brandywine, a drug and alcohol treatment facility in Kennett Square, Pennsylvania, for heroin detoxification.  During the admissions process, Wilke signed a consent for treatment with an exculpatory provision in which Wilke agreed “that the facility will not be responsible for the safety or care of the client if the client leaves the facility premises”.  Despite some physical withdrawal symptoms that included stomach cramps and leg pain, Wilke was doing well mentally.  He was taken from the admissions office down to the nurse’s station in order to obtain a nursing assessment, which is an hour-long interview with the patient.

Under federal and state regulations, Bowling Green was not allowed to administer narcotic medicine, such as Methadone or Suboxone, to treat Wilke’s opiate dependency until it obtained the results of a urinalysis test—which typically took 24 hours or more—and Wilke met with a medical doctor.  The only medication that Bowling Green could provide initially was “comfort medications”, such as Motrin and Tylenol, to help reduce physical withdrawal symptoms.  However, the comfort medications would not treat his cravings for drugs or opiate dependency.

Wilke was provided lunch in the cafeteria, which he ate.  A nurse’s assistant began the nursing assessment by taking Wilke’s vital signs, which were relatively normal, and reviewing a Preliminary Treatment Plan with Wilke.  Wilke then decided that he wanted to leave the facility.  Throughout the course of the next three hours, multiple Bowling Green employees attempted to convince Wilke to stay for treatment.  All of the employees did not feel that Wilke was in severe withdrawal, impaired, or a danger to himself.  At around 4:45 pm, Wilke asked nurse Stephanie Pirches when he would be getting Methadone.  Pirches explained to him that Methadone could not be provided until the following day.  Wilke was determined that he did not want to stay and refused the nursing assessment.

Wilke then left Bowling Green against medical advice.  Less than an hour later, Wilke was crossing Route 322 near Conchester Road, approximately 15 miles from Bowling Green, and was hit by a car driven by Teresa Tobin.  The accident rendered Wilke unconscious.  He died later that evening.

The Wilke family then filed suit against Bowling Green. Trial commenced on February 20, 2013.  Plaintiffs’ primary theory was that Bowling Green should have assessed Wilke quicker and provided him with comfort medications, which would likely have resulted in him not leaving the facility.  Wilke’s liability expert claimed that Bowling Green employees had no contact with Wilke and that no care was provided to him.  We contended that Wilke was not in severe withdrawal or distress, that comfort medications were not necessary and would not have convinced him to stay, and that multiple employees tried in vain to convince Wilke to stay for treatment.  As Wilke was a voluntary patient, Bowling Green could not force him to stay.  We argued that Wilke was like many patients suffering from the disease of heroin addiction who are not ready to accept treatment or unable to overcome their cravings to stay for treatment, which is normal in this industry, and leave against medical advice.  The trial judge denied our nonsuit motion to preclude these claims based on the exculpatory provision of the admissions documents.  The case went to the jury on the seventh day of trial.  The jury returned in two hours with a defense verdict for Bowling Green.

Daniel J. Rucket concentrates his practice in general casualty litigation, including premises, motor vehicle, construction, product liability, catastrophic injury, uninsured/underinsured motorist, bad faith, insurance coverage, and civil rights litigation. Dan graduated from the William and Mary Law School in 1993 and subsequently clerked for the Honorable Albert R. Subers in the Montgomery County Court of Common Pleas.  Mr. Rucket is admitted to practice in Pennsylvania and the U.S. District Courts for the Eastern and Middle Districts of Pennsylvania. He has been selected as a Pennsylvania Super Lawyer every year since 2010. He was selected as a Pennsylvania Rising Star in 2005, 2006 and 2007.