DISTRICT COURT, CITY AND COUNTY OF
DENVER, STATE OF COLORADO
Court Address:
2nd Judicial District
1437 Bannock Street
Denver, Colorado 80202
Plaintiffs: LIANNE MANGINES and JAMES
MANGINES, Individually and as Personal
Representatives of the ESTATE OF CARSON
MANGINES, Deceased

DATE FILED: September 19, 2016 9:06 PM
FILING ID: EEA12C33457D2
CASE NUMBER: 2015CV32639

▲COURT USE ONLY ▲

vs.
Defendants: UHS of DENVER, INC., d/b/a
HIGHLANDS BEHAVIORAL HEALTH SYSTEM and
UHS of DELAWARE, INC.
Hollynd Hoskins, # 21890
David P. Mason, # 41333
Leventhal & Puga, P.C.
950 S. Cherry Street, Suite 600
Denver, Colorado 80246
Phone Number:
FAX Number:
E-mail:
E-mail:

Case Number: 2015CV32639
Courtroom: 414

(303) 759-9945
(303) 759-9692
hollynd@leventhal-law.com
dmason@leventhal-law.com

PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT TO ASSERT
EXEMPLARY DAMAGES CLAIM AGAINST DEFENDANT UHS OF DENVER, INC.
d/b/a HIGHLANDS BEHAVIORAL HEALTH SYSTEM

Plaintiffs, Lianne Mangines and James Mangines, respectfully move this Court for leave
to assert an exemplary damages claim against Defendant Highlands Behavioral Health System
based on prima facie proof of triable issues of willful and wanton as well as fraudulent conduct
attending the death of their late son. On July 18, 2013, Defendant Highlands Behavioral Health
System admitted 22-year-old Carson Mangines for mental health and substance abuse issues.
Nine days later, on July 27, 2013, Mr. Mangines was found in full rigor mortis in the “quiet
room” of locked, secure Unit I at Highlands Behavioral Health System, having died hours earlier

 of acute fentanyl toxicity. This is because of the transdermal fentanyl patches administered to
him by the facility’s staff. Mr. Mangines’ death was as tragic as it was preventable, and the
egregious conduct of Highlands Behavioral Health System warrants exemplary damages claims
in this case.
As detailed in the 66-page Summary of Deficiencies issued against Highlands Behavioral
Health System by the Colorado Department of Public Health and Environment (“CDPHE”) in
October, 2013, the conduct of the facility in the chain of events leading up to Mr. Mangines’
death is more than mere negligence. Plaintiffs’ prima facie proffer indicates that Mr. Mangines’
death was, instead, a foreseeable and preventable consequence of Defendant’s willful and
reckless practices in operating its facility at the expense of patient safety.
As Plaintiffs meet the lenient standard under Colorado law for asserting an exemplary
damages claim, and because allowing such a claim here would advance important public policies
of punishing and deterring egregious conduct as led to the death of Mr. Mangines, this Court
should grant Plaintiffs’ Motion for leave to amend and permit them to present their exemplary
damages claims to the jury at trial.
Conferral Certificate – Undersigned counsel has conferred with counsel for Defendant
Highlands Behavioral Health System and is authorized to state that Defendant opposes the relief
sought herein.
I.

PRIMA FACIE PROOF OF TRIABLE ISSUES OF EXEMPLARY DAMAGES
BASED ON WILLFUL AND WANTON CONDUCT AND/OR FRAUD BY
DEFENDANT HIGHLANDS BEHAVIORAL HEALTH SYSTEM
A. Mr. Mangines voluntarily presents to Highlands Behavioral Health System for
treatment of his mental health and substance abuse issues on July 18, 2013.
1.

Carson Mangines was admitted by Highlands Behavioral Health System at

approximately 7:30 p.m. on July 18, 2013, with suicidal ideation and self-injurious behavior. See
2

 Highlands Medical Records – July 2013 Admission, Exhibit 1, at HBHS 0024 (Comprehensive
Assessment Tool). At that time, Mr. Mangines reported a lengthy history of drug abuse including
opiate abuse, which had also been reported and documented during his previous admission to
Highlands Behavioral Health System in May, 2013. See id., at HBHS 0027; Highlands Medical
Records – May 2013 Admission, Exhibit 2, at HBHS 0236 (Inpatient Admission Form,
documenting current use of IV heroin and cocaine). 1
2.

At the time, Highlands Behavioral Health System was advertising treatment for

“addiction (secondary to a primary mental health diagnosis.” See Highlands Behavioral Health
System Web Page, May, 2013, Exhibit 1A.
3.

Mr. Mangines was admitted to Highlands Behavioral Health System that evening

with prescriptions for 100 mcg transdermal fentanyl q 72 hours and 10 mg valium PO TID. See
Exhibit 1, at HBHS 0027, 0145 (medication reconciliation form).
4.

Duragesic transdermal fentanyl patches contain a high concentration of the

dangerous and potent Schedule II opioid, fentanyl. See Duragesic Transdermal Fentanyl
Package Insert, Exhibit 3, at 1-2; 2 see also PDR Section on Duragesic Transdermal Fentanyl
Patches, Exhibit 3A. At the time, it was well-known that transdermal fentanyl patches carried
significant risks of patient injury and death, and that this powerful and dangerous medication was
a kind of opioid with “the highest potential for abuse and associated risk of fatal overdose due to
respiratory depression.” Id.
5.

In July, 2013, Highlands Behavioral Health System had no written policy or

procedure pertaining to the safe and appropriate administration of transdermal fentanyl to its
1

Pursuant to previous orders of the Court, Plaintiffs intend to hand-deliver the exhibits to this
Motion in hard copy form to the Court no later than September 21, 2016.
2
Available at https://www.accessdata.fda.gov/drugsatfda_docs/label/2005/19813s039lbl.pdf (last
visited September 13, 2013).
3

 patients despite the known risks of patient injury and death associated with fentanyl in general
and transdermal fentanyl patches in particular. See CDPHE Summary of Deficiencies, Exhibit 4,
at 45-46, 48. It did not include fentanyl on its list of “high alert” medications requiring additional
safety steps and checks to avoid medication errors and patient injuries. See Highlands Behavioral
Health System High Alert Medication Policy, Exhibit 5. It did not provide its staff with any
training on indications for use of fentanyl patches, safe administration of fentanyl patches
(including requiring its staff to double check the accuracy of each dose according to physician
orders), safe disposal or wasting of fentanyl patches, or potential for misuse of fentanyl patches.
See Exhibit 4, at 45-46, 48; see also, e.g., Deposition of Jody Jenney, R.N., Exhibit 6, at 70:3-8,
71:24-73:8; Deposition of Jill Orr, R.N., Exhibit 7, at 167:1-19, 168:19-169:7, 170:20-171:9.
6.

Facility staff administered an initial dose of 100 mcg Duragesic transdermal

fentanyl to Mr. Mangines on July 19, 2013, pursuant to his physicians’ orders, and then another
dose on July 22, 2013 at approximately 2045 hours. See Exhibit 1, at HBHS 0146 (medication
administration record indicating 100 mcg transdermal fentanyl administered at 1000 hours to “L
chest”), 0148-49 (documenting “1st dose now” at “7/22/13 2045” hours).
7.

Mr. Mangines was initially admitted to Unit II of Highlands Behavioral Health

System on July 18, 2013, but then transferred to Unit I late on July 21, 2013. See Exhibit 1, at
HBHS 0059. At the time, Unit I was the “higher acute unit” at Highlands Behavioral Health
System, intended to house “more acute” patients such as patients with “schizophrenia or
psychosis” and “paranoid” or “assaultive” patients. See Exhibit 7, at 37:17-22.
8.

Pursuant to his physicians’ orders, Mr. Mangines received a third dose of 100

mcg transdermal fentanyl at 0900 hours on July 25, 2013. See Exhibit 1, at HBHS 0149.
B. Highlands Behavioral Health System recklessly ignores staff concerns about unsafe
nursing medication and documentation practices on Unit I, directly causing
4

 egregious and life-threatening medication errors relating to Mr. Mangines’
transdermal fentanyl prescription.
9.

In July, 2013, Highlands Behavioral Health System used nurses on its overnight

shifts for transcribing physician medication orders onto a patient’s medication administration
record by hand and reviewing and comparing the chart with the record to ensure the orders were
transcribed correctly. See Exhibit 6, at 53:23-56:10. 3
10.

Tacy Loera, R.N., worked the Unit I overnight shift from 2300 hours on July 25,

2013 to 0730 hours on July 26, 2013. DCSO Statement of Tacy Loera, R.N., Exhibit 8, at 15;
Highlands Behavioral Health System Nursing Daily Schedules for July 18, 2013 – July 27, 2013,
Exhibit 9, at HBHS 00108. Ms. Loera was responsible for transcribing Mr. Mangines’
prescription orders, including 100 mcg transdermal fentanyl q 72 hours, in his medication
administration record by hand on that date. See Exhibit 8, at 95, 97; see also Exhibit 7, at
134:10-135:17 (identifying handwriting on “7/23 Fentanyl Patch 100 mcg Q 72 [hours]” Tacy
Loera’s).
11.

Prior to July 26, Highlands Behavioral Health System administrators had been

alerted to staff concerns with the safety and quality of Ms. Loera’s nursing practices. See DCSO
Statement of Dannette Maestas, Exhibit 10, at 23, 50, 63-70. Dannette Maestas, a registered
nurse who worked on Unit I at the time, advised law enforcement investigators that she had
relayed concerns to hospital administrators that Ms. Loera’s practices were not “up to par” –
including, for example, her observations of Ms. Loera administering patient medications despite
documentation indicating the medications had been discontinued, and doing “blanket charting,”

3

Highlands Behavioral Health System employees indicated to law enforcement that the printer
otherwise used for transcribing medication orders into the medication administration record was
broken in July, 2013 and was not repaired prior to Mr. Mangines’ death. See Exhibit 7, at
131:23-132:24.
5

 where Ms. Loera would complete entire sections of the patient chart with documentation of
patient clinical information or completed tasks without actually observing the information or
performing the tasks. See id.
12.

According to Ms. Maestas, Highlands Behavioral Health System administrators

responded to her concerns about Ms. Loera by moving Ms. Maestas to a different unit of the
hospital several days before Mr. Mangines died – leaving Ms. Loera as the charge nurse on the
Unit I overnight shift. See Exhibit 10, at 23, 50, 63-70; see also Exhibit 9, at HBHS 00107-09.
Instead of investigating and addressing the safety concerns with Ms. Loera’s performance,
Highlands Behavioral Health System administrators effectively penalized Ms. Maestas for
bringing these concerns to their attention. See Exhibit 10, at 67-70.
13.

Highlands Behavioral Health System’s reckless handling of staff complaints

concerning the safety of Ms. Loera’s nursing practices had disastrous consequences for Mr.
Mangines. During the July 25-26 overnight shift, Ms. Loera incorrectly transcribed Mr.
Mangines’ order for 100 mcg transdermal fentanyl q 72 hours onto a medication administration
record, documenting he was due for a dose of 100 mcg transdermal fentanyl on “7/26” (after
receiving a dose earlier on July 25) when in fact his next dose of 100 mcg transdermal fentanyl q
72 hours would not have been due until the morning of July 28. See Exhibit 1, at HBHS 0149
(old record), 0151 (new record transcribed by Ms. Loera); see also Exhibit 7, at 134:10-135:17.
14.

Ms. Loera later indicated to investigators with the Douglas County Sheriff’s

Office (“DCSO”) and the Colorado Attorney General’s Office that she often felt rushed and that
she did not have enough time to complete all necessary “paperwork” during her overnight shifts,
including transcribing all patient medication orders by hand and reviewing and comparing

6

 patient charts for accuracy, because doing so would take her “so many hours.” See DCSO
Exhibit 8 at 78 95-96.
C. Highlands Behavioral Health System’s persistent understaffing and failure to
appropriately train Unit I nurses on safe medication administration practices
pertaining to transdermal fentanyl directly results in an egregious medication error
that causes Mr. Mangines’ death from acute fentanyl toxicity.
15.

The next morning, the Unit I day shift medication nurse, Leslie Vannucci, R.N.,

administered a dose of 100 mcg transdermal fentanyl to Mr. Mangines pursuant to Ms. Loera’s
erroneous handwritten documentation; this dose was administered to Mr. Mangines
approximately 24 hours after his prior dose on the morning of the 25th, contrary to physicians
orders for 100 mcg transdermal fentanyl every 72 hours. See Exhibit 1, at HBHS 0151 (initials
“LV”); see also Exhibit 4, at 38-49; Exhibit 7, at 134:10-135:4; DCSO Statement of Leslie
Vannucci, R.N., Exhibit 11, at 13, 18-22, 31-33, 35.
16.

Ms. Vannucci later indicated to law enforcement investigators that Highlands

Behavioral Health System never provided her with any training on transdermal fentanyl patches
or how to safely document and administer this dangerous medication prior to her shift as Unit I
medication nurse on July 26, 2013. See Exhibit 11, at 59-62. Ms. Vannucci told law enforcement
that she did not have a lot of experience with patients receiving fentanyl patches and in fact had
“never dealt with them before” Mr. Mangines’ July 2013 admission. See id. at 18, 37.
17.

Ms. Vannucci advised law enforcement investigators that she did not attempt to

check the previous medication administration record, which had been placed in Mr. Mangines’
chart the evening before, to confirm the accuracy of the documentation in the medication
administration record concerning his transdermal fentanyl prescription. Exhibit 11, at 25-26.
Pursuant to Highlands Behavioral Health System’s “high alert medication” policy, such
verification was not required prior to administration of transdermal fentanyl patches. See Exhibit
7

 5. Instead, Ms. Vannucci relied on the (inaccurate) documentation of Mr. Mangines’ 100 mcg
transdermal fentanyl prescription handwritten in the patient’s medication administration record
by Ms. Loera the night before. See Exhibit 11, at 52.
18.

Numerous Highlands Behavioral Health System employees described persistent

issues with understaffing at the facility during law enforcement investigations following Mr.
Mangines’ death. These employees related that there was high turnover because of the facility’s
persistent practice of understaffing its Units, a practice they say endangered the safety of staff
and patients alike, leaving staff at the facility to do the best they could “under the conditions we
were working under, which was understaffed, overworked, and not supported by management.”
DCSO Statement of Debbie Reece, LCSW, Exhibit 12, at 59, 85; DCSO Statement of Brittany
Wake, BHA, Exhibit 13, at 27-28, 40; DCSO Statement of Robert Kuyon, R.N., Exhibit 14, at 8,
43; DCSO Statement of Elizabeth Schafer, R.N., Exhibit 15, at 10-11, 98-99; see also Exhibit 6,
at 107:17-24; Exhibit 7, at 44:3-14, 45:12-46:9.
19.

Highlands Behavioral Health System’s practice of understaffing its Units directly

contributed to the egregious medication errors that contributed to the death of Mr. Mangines.
When confronted by law enforcement investigators, Ms. Vannucci justified her erroneous
administration of the second dose of 100 mcg transdermal fentanyl by pointing out that the Unit I
day shift medication nurses did not have time to review a patient’s prior medication
administration record or chart for accuracy of transcribed medication orders; because the
medication nurse had “thirty plus patients to pass medications to … within an hour timespan,”
Ms. Vannucci’s practice in July, 2013 was to rely entirely on the transcription by the night shift
nurses – in this case, the inaccurate handwritten transcription by Ms. Loera. Exhibit 8, at 51-52.

8

 20.

Highlands Behavioral Health System’s persistent understaffing of Unit I, which

was “all for profit,” Exhibit 14, supra, and its failure to institute any policies or provide any
training to critical nursing staff on safe medication administration practices relating to
transdermal fentanyl patches, directly endangered the safety of its patients by exposing them to
unnecessary risks of life-threatening medication errors involving this powerful and dangerous
opioid medication, as unfortunately occurred in Mr. Mangines’ case.
D. Highlands Behavioral Health System staff recklessly fail to advise any physician or
seek emergency medical attention for Mr. Mangines’s increasing oversedation and
developing fentanyl overdose on July 26, 2013.
21.

Following Ms. Vannucci’s erroneous administration of a second dose of 100 mcg

transdermal fentanyl to Mr. Mangines within a period of 24 hours, Highlands Behavioral Health
System staff documented that Mr. Mangines was presenting oversedated throughout the day on
July 26, 2013.
22.

Social worker Debbie Reece documented that Mr. Mangines was “overmedicated,

almost falling out of his chair” with eyes swollen and “rambling” speech during the morning
group meeting. Exhibit 1, at HBHS 0130.
23.

Nursing staff documented that Mr. Mangines was “confused” at 1145 hours.

Exhibit 1, at HBHS 0185. The day shift staff documented Mr. Mangines was “rushing
everywhere” with “manic behavior much of shift” and “moving from one thing to the next,” but
also “lack[ed] focus” with “slurred speech,” “unsteady at times,” and “random short naps.”
Exhibit 1, at HBHS 0103.
24.

Staff documented Mr. Mangines’ vital signs as abnormal with only 90 percent

oxygen saturations at 1945 hours that evening, and his condition as “confused” from 2045 hours
through at least 2240 hours. Exhibit 1, at HBHS 0161, 0185.

9

 25.

That evening, the Unit I Charge Nurse, Robert Kuyon, documented that “Mr.

Mangines was presenting oversedated at end of shift.” Exhibit 1, at HBHS 0104-05. Mr. Kuyon
further documented that Mr. Mangines was placed in the quiet room on Unit I that evening after
endorsing suicidal ideations and then intentionally cutting himself with a broken pencil in the
shower. Id.
26.

Mr. Kuyon documented that Mr. Mangines “had emesis x2, vomiting his [] pills”

and that the patient was “still having difficulties coping and may be withdrawing from excess
amounts of narcotics in system.” Exhibit 1, at HBHS 0104-05.
27.

Confusion, slurred speech, trouble walking or talking, oversedation, abnormal

oxygen saturations, and nausea are among the classic signs of opioid overdose. Accord Exhibit
4, at 31-35, 41.
28.

Mr. Kuyon candidly advised law enforcement investigators months later that he

did not advise any physician of Mr. Mangines’ increasing oversedation on July 26 or the
“withdrawing from excess amounts of narcotics in system” he noted at that time. See Exhibit 14,
at 17-18; see also Exhibit 4, at 44. Jill Orr, the other nurse on the July 26 evening shift, testified
in her deposition that she has no evidence that any staff advised Mr. Mangines’ physicians of this
information prior to the end of the shift at approximately 2300 hours. See Exhibit 7, at 149:21151:7, 156:19-157:13.
E. Highlands Behavioral Health System recklessly staffs Unit I overnight on July 26-27
with an insufficient number of new and untrained staff members, directly creating a
substantial risk of serious injury or death to the patients on the unit, including Mr.
Mangines.
29.

The Unit I shift change at Highlands Behavioral Health System occurred at

approximately 2300 hours on July 26; at that time, the evening shift nurses, Mr. Kuyon and Ms.

10

 Orr, departed, and the Unit I overnight shift of Ms. Loera, Elizabeth Schafer, R.N., and Michael
Cole, BHA, came onto the Unit. See Exhibit 9, at HBHS 00109. 4
30.

Although Ms. Maestas was also scheduled to work that overnight shift in Unit I,

the nursing schedule indicates she was moved to Unit II, see Exhibit 9, at HBHS 00109,
consistent with her testimony that Highlands Behavioral Health System disregarded her concerns
about Ms. Loera’s unsafe nursing practices and instead moved Ms. Maestas to another shift. See
Exhibit 10, at 23, 33-34, 50, 64-69.
31.

Numerous Highlands Behavioral Health System employees later told law

enforcement investigators that the facility had a pattern and practice of hiring brand new nurses,
newly graduated and/or licensed, with little or no experience and minimal training, to staff its
Units, including critical charge nurse and medication nurse positions. See, e.g., Exhibit 7, at
35:10-19; Exhibit 10, at 6-7; Exhibit 15, at 6-7; DCSO Statement of Maya Morfoh, R.N.,
Exhibit 16, at 3-4, 7-8, 108-09, 115; DCSO Statement of Julie Brooks, R.N., Exhibit 17, at 19;
DCSO Statement of Cynthia Hamilton-Hardin, RN, Exhibit 18, at 7-9; DCSO Statement of
Charmagne Harada, RN, Exhibit 19, at 8-11; DCSO Interview of Jill Orr, R.N., Exhibit 20, at
3-4.
32.

Michael Cole, BHA, the third member of the overnight Unit I staff, advised law

enforcement investigators that the majority of nurses he met working at Highlands Behavioral
Health System were “new grads.” DCSO Statement of Michael Cole, BHA, Exhibit 21, at 82.

4

Ms. Orr has testified that Unit I nurses in July, 2013 would create an audio recording of report
and written “report sheets” to pass along to the oncoming nurses at shift change. It is undisputed
that the audio recordings and written report sheets for the Unit I shift changes at 2300 hours on
July 26 and 0700 hours on July 27 were lost or destroyed by Highlands Behavioral Health
System after Mr. Mangines’ death. See Exhibit 7, at 97:22-101:10, 121:20-122:18.
11

 33.

For example, Highlands Behavioral Health System hired Ms. Schafer, the

overnight Unit I medication nurse, straight out of nursing school in March 2013. Exhibit 15, at
6-7. Ms. Schafer was one of only two nurses staffed on Unit I overnight on July 26-27, the other
being Ms. Loera. See Exhibit 9, supra.
34.

Ms. Schafer and other nurses told investigators that Highlands Behavioral Health

System did not provide any additional training to its brand new nursing hires on how to safely
run a Unit, instead immediately placing these inexperienced nursing staff into critical Charge
Nurse and Medication Nurse roles without necessary additional training. See Exhibit 15, at 22;
see also Exhibit 11, at 59-60; DCSO Statement of Rachel McNair, R.N., Exhibit 22, at 6-7.
35.

Numerous staff members told law enforcement that “pretty much nobody knows

what they’re doing” and that Highlands Behavioral Health System’s practice of hiring mostly
brand new, inexperienced nurses and immediately putting them into charge and medication roles
with little or no training was directly endangering patient safety. See, e.g., Exhibit 16, at 109,
116; Exhibit 14, at 47 (Mr. Kuyon commenting that he was “basically” working as charge nurse
on the July 26 evening shift “because others getting paid for it didn’t know what they were
doing”).
36.

The law enforcement statements indicate Ms. Loera, Ms. Schafer, and Mr. Cole

had never worked together before the overnight shift on July 26-27, 2013. See Exhibit 8, at 18;
Exhibit 15, at 21-22, 32, 37; Exhibit 21, at 16. The evidence in fact indicates Ms. Schafer and
Mr. Cole did not even work on Unit I, but were “floated” to that Unit for the July 26-27
overnight shift from other, less acute units in the Hospital. See id.
37.

At approximately 2345 hours, Mr. Mangines presented to the nurses’ station on

Unit I. See Exhibit 1, at HBHS 0106. Ms. Schafer documented that Mr. Mangines appeared

12

 heavily sedated at that time: “Pt was falling asleep while standing at med window. While Pt was
drinking Boost, Pt was falling asleep. While talking to Pt and trying to assess Pt for PRN meds,
pt was falling asleep.” Id. Ms. Schafer further documented that “Pt [then] went to [quiet room]
to lay down and fell asleep,” “slept through the night,” and “snored loudly for rest of night.” Id.
38.

It is undisputed that the overnight nursing staff on Unit I did not contact or advise

any physician of Mr. Mangines’ oversedated presentation at any point during the overnight shift
from July 26 to July 27. See, e.g., Exhibit 8, at 40-41; see also Exhibit 4, at 36, 44.
F. Highlands Behavioral Health System staff falsely document performing patient
safety checks and observing Mr. Mangines “sleeping” every fifteen minutes during
the overnight shift on July 26 and 27, 2013, when in fact such safety checks were not
performed and such observations not actually made.
39.

At the time of Mr. Mangines’ July, 2013 admission, Highlands Behavioral Health

System’s written patient safety observation rounds policy provided that facility staff were
supposed to observe patients who were sleeping or on bed rest by looking for the rise and fall of
the chest, counting at least three respirations, and making sure the patient had moved from their
previous sleeping position. See Highlands Behavioral Health System Patient Observation Policy,
Exhibit 23, at 2; see also Exhibit 4, at 31-32.
40.

Despite the written requirements of the policy, however, numerous Highlands

Behavioral Health System staff told law enforcement investigators that they were not trained on
this policy as written or that the policy was not enforced as written prior to Mr. Mangines’ death.
See, e.g., Exhibit 17, at 9-11, 13; Exhibit 19, at 14-15, 68-70, 89; Exhibit 21, at 53; Exhibit 22,
at 35; DCSO Statement of Cindy Molello, R.N., Exhibit 24, at 7-8. According to a Unit I charge
nurse later interviewed by law enforcement, Highlands Behavioral Health System did not start
training its staff to “watch[] them with three respirations until after [Mr. Mangines’] passing.”
Exhibit 12, at 68. At that time, “we would just have to walk in and make sure they’re not
13

 harming themselves.” Id. at 70. This nurse candidly admitted that she “definitely was looking for
respirations” on her observation rounds until Highlands Behavioral Health System altered its
implementation of the policy after Mr. Mangines’ death. Id. at 89.
41.

Highlands Behavioral Health System staff completed documentation of Patient

Observation Rounds on Mr. Mangines for the July 26-27 overnight shift. See Exhibit 1, at
HBHS 0187. According to the documentation and facility video recordings, Mr. Cole was
responsible for the patient safety rounds on Mr. Mangines from approximately midnight until
0115 hours on July 27. See id.; see also DCSO Summary of Unit I Video Recordings of July 27,
2013 Observation Rounds, Exhibit 25.
42.

Mr. Cole documented completing his patient safety observation rounds every

fifteen minutes from 0015 hours until 0115, and observing Mr. Mangines “sleeping” on each of
these documented rounds. See Exhibit 1, at HBHS 0187. Facility video recordings indicate this
documentation was false; Mr. Cole is seen on video not once entering Mr. Mangines’ room
during this period, but instead either glancing into the door while walking down the hall or not
looking into the room at all. Compare id. and Exhibit 25; see also Exhibit 4, at 58-61.
43.

Mr. Cole, who was a BHA with no medical or nursing training, advised the

Charge Nurse, Ms. Loera, shortly after midnight that Mr. Mangines was “making some very
weird noises” during his rounds. Exhibit 21, at 32-37. Mr. Cole told law enforcement
investigators that Ms. Loera voluntarily took over his patient safety observation rounds after this.
Id., at 37. The documentation and video corroborate Mr. Cole’s statements to law enforcement,
indicating that Ms. Loera, the Unit I charge nurse on that shift, took over the patient safety
observation rounds from Mr. Cole from approximately 0127 hours through 0300 hours. See
Exhibit 1, at HBHS 0187; Exhibit 25; see also Exhibit 4, at 58-61.

14

 44.

Like Mr. Cole, Ms. Loera also falsely documented performing the patient safety

observation rounds on Mr. Mangines during this time period and observing that he was
“sleeping” every fifteen minutes. Facility video recordings instead indicate Ms. Loera, like Mr.
Cole, never even entered Mr. Mangines’ room and on several occasions walked past his room
without looking through the doorway. Compare Exhibit 1, at HBHS 0187 and Exhibit 25; see
also Exhibit 4, at 58-61.
45.

Ms. Schafer, the Unit I medication nurse for the overnight shift, took over patient

safety observation rounds from Ms. Loera at approximately 0300 hours. Like Mr. Cole and Ms.
Loera, Ms. Schafer also documented completing her patient safety observation rounds and
observing Mr. Mangines “sleeping” in the quiet room every fifteen minutes, in her case, from
approximately 0315 to 0415 hours. See Exhibit 1, at HBHS 0187. Like Mr. Cole and Ms. Loera,
Ms. Schafer’s documentation was false; the facility video recordings indicate Ms. Schafer never
entered Mr. Mangines’ room and never even looked into the room on several of her documented
rounds. Compare Exhibit 1, at HBHS 0187 and Exhibit 25; see also Exhibit 4, at 58-61.
46.

Mr. Cole, Ms. Loera, and Ms. Schafer each handled the remaining patient safety

observation rounds on Mr. Mangines from 0430 hours until shift change at approximately 0730
hours on July 27, 2013. See Exhibit 1, at HBHS 0187 and Exhibit 25. Although each
documented observing Mr. Mangines alive and “sleeping” in the quiet room every fifteen
minutes during this three-hour period, facility video recordings indicate this documentation was
false; instead, these staff members did not even look into Mr. Mangines’ room on most of their
patient safety observation rounds. Compare Exhibit 1, at HBHS 0187 and Exhibit 25; see also
Exhibit 4, at 58-61.

15

 47.

The dayshift BHA, Cassandra Roybal, who came on shift at approximately 0700

hours on July 27 and who documented performing patient safety observation rounds from 0745
hours until 0845 hours, was likewise observed on video not once entering Mr. Mangines’ room
during this time period – despite documenting, like the other Highlands Behavioral Health
System staff, that she observed Mr. Mangines “sleeping” every fifteen minutes during this
period. Compare Exhibit 1, at HBHS 0187 and Exhibit 25; see also Exhibit 4, at 58-61.
G. Mr. Mangines is discovered dead in full rigor mortis in the quiet room at
approximately 0915 hours on July 27, 2013.
48.

Ms. Orr, the Unit I day shift Charge Nurse, discovered Mr. Mangines

“unresponsive” in the quiet room at approximately 0915 hours on July 27, 2013. See Exhibit 1,
at HBHS 0187; see also id. at HBHS 0206 (Code Blue Documentation). Ms. Orr called a Code
Blue and initiated resuscitation efforts. See id.; see also Exhibit 7, at 179:23-180:5.
49.

Facility video recordings indicate additional staff entered the quiet room at 0914

hours in response to the Code Blue. See Exhibit 25; see also Exhibit 1, at HBHS 0206.
50.

Mr. Mangines’ condition was documented at that time as “unresponsive, cyanotic,

molted, stiff.” Exhibit 1, at HBHS 0206.
51.

Numerous staff later told DCSO investigators that Mr. Mangines was obviously

deceased and in rigor mortis when they responded to the Code Blue. See, e.g., Exhibit 16, at 2324 (Mr. Mangines “blue” with “rigors … set in” at time of Code); Exhibit 18, at 41-42 (Mr.
Mangines appeared to be in rigor mortis with arms and legs sticking up); Exhibit 22, at 18-19
(Mr. Mangines “appeared to be dead,” blue, “bloated,” with terrible smell).
52.

First responders likewise confirmed Mr. Mangines was obviously dead and in full

rigor mortis within minutes of responding at 0920 hours. See DCSO Statement of Eric Pracht,
EMT, Exhibit 26, at 8-10; DCSO Statement of Jonathan Calton, EMT, Exhibit 27, at 11, 18.
16

 53.

The 66-page Summary of Deficiencies issued against Highlands Behavioral

Health System in October, 2013, likewise indicates numerous providers and witnesses relayed to
state investigators that Mr. Mangines’ body was in full rigor mortis when he was discovered
dead in the quiet room at approximately 0915 hours on July 27, 2013, indicating he had already
been dead for hours prior to that time. See Exhibit 4, at 32.
54.

The Douglas County Coroner’s Office (“DCCO”) concluded on autopsy of Mr.

Mangines’ remains that the cause of Mr. Mangines’ death was “complications of acute fentanyl
toxicity,” based on postmortem blood and vitreous fluid testing revealing highly toxic levels of
fentanyl. See Autopsy Report, Exhibit 28, at 2; see also Death Certificate, Exhibit 28A;
Toxicology Reports, Exhibit 28B, at DCC 0046-50.
H. State and Federal Regulators publicly cite Highlands Behavioral Health System for
numerous legal violations in relation to the death of Mr. Mangines and a number of
other patients of the facility.
55.

Numerous law enforcement and governmental agencies investigated Highlands

Behavioral Health System’s role in causing the death of Mr. Mangines in the days, weeks, and
months following discovery of his body in full rigor mortis.
56.

For example, on October 7, 2013, CDPHE issued a 66-page, public Summary of

Deficiencies against Highlands Behavioral Health System, finding Highlands Behavioral Health
System committed numerous legal violations in causing Mr. Mangines’ death. See Exhibit 4. For
example:
a. CDPHE found that Highlands Behavioral Health System violated 6 C.C.R. §
1011-1, Ch. 18, Part 7, and Ch. 4, § 7.101(1), (2), (3), and (4) by failing “to
ensure that nursing staff had adequate training and experience to conduct
effective patient observation rounds,” failing “to ensure that nursing staff

17

 safely administered medications and monitored/documented medication
responses,” and failing “to ensure that nursing staff had adequate training and
experience to identify patient changes in condition, initiate appropriate
monitoring

and

other

interventions,

and

document

patient

care

activities/assessments provided.” Exhibit 4, at 20-22.
b. CDPHE concluded that Highlands Behavioral Health System failed to
appropriately train and oversee its staff on patient monitoring in violation of 6
C.C.R. § 1011-1, Ch. 18, Part 12, 12.101(1), (2), (6), 12.102(1), (2). Exhibit
4, at 30-37. 5
c. CDPHE concluded that Highlands Behavioral Health System failed to ensure
its non-physician staff administered Mr. Mangines’ medications consistent
with his physicians’ orders, failed to ensure staff were appropriately
monitoring Mr. Mangines based on changes in his condition, and failed to
investigate the medication errors that occurred in his case, in violation of 6
C.C.R. 1011-1, Ch. 18, Part 13 and Ch. 4, Part 13, 13.102(5). Exhibit 4, at 3856. 6

5

“Based on review of medical records and facility documents and staff interviews, the director
of nursing services failed to ensure that nursing staff adequately assessed and documented
patient changes in conditions [and] care and complied with related policies and procedures.” Id.
CDPHE specifically found that Highlands Behavioral Health System staff “failed to adequately
reassess and document the findings for [Mr. Mangines] when there was evidence of a change of
condition.” Id.
6
“Based on the document review and interviews, the facility failed to ensure that staff Registered
Nurses administered medications per physician orders. Transdermal Fentanyl patches were
administered to [Mr. Mangines] at a more frequent time interval than ordered by the patient’s
physician. Nursing staff also failed to adequately assess the patient’s change of condition that
may have been related to the combination of medications being administered. The facility also
failed to investigate the medication regime and medication administration variances that may
have contributed to the death of [Mr. Mangines].” Id. CDPHE specifically found that 1)
18

 d. CDPHE concluded that Highlands Behavioral Health System failed to ensure
the ongoing physical safety of patients admitted to the facility,” including that
“[p]atient safety observations were not conducted by facility staff per the
facility’s policy and expectations,” in violation of 6 C.C.R. 1011-1, Ch. 18,
Part 26, §§ 26.101-102, and Ch. 4, Part 26, § 26.101(1), (3), and (7). Exhibit
4, at 57-65. 7
57.

CDPHE’s October, 2013 Summary of Deficiencies against Highlands also

discusses an alarming episode during Mr. Mangines’ July, 2013 admission – never documented
in his medical records – where a nurse manager (Jody Jenney, R.N.) admitted placing a
medication patch on Mr. Mangines “sometime between 7/22/13 and 7/25/13” after finding the
patch outside on the ground. See Exhibit 4, at 46-48. There is no documentation of this incident
in Mr. Mangines’ medical records, or documentation indicating “that the patient’s physician was
informed of the incident,” or documentation of “communication with [Highlands Behavioral
Health System’s] pharmacy regarding placing the found patch on the patient.” Accord id. at 46-

“Registered nursing staff did not administer Fentanyl per a physician’s order” and “changed a
patient’s transdermal Fentanyl patch sooner than the 72 hour time interval ordered by the
patient’s physician”; 2) “The nursing staff failed to adequately reassess and document the
findings for [Mr. Mangines] when there was evidence of a change of condition that may have
been related to the medications the patient was receiving”; and 3) “The facility failed to
appropriately review the death event … and insure corrections were made to avoid further
serious medication errors of a like nature.” Id. at 38, 49, 54.
7
“Facility staff did not perform patient safety observation rounds (15 minute checks) per the
facility’s policy.” Id. CDPHE specifically found that Mr. Mangines had been “found dead and in
a condition of rigor mortis (indicating that the patient had died hours prior to being discovered)
despite patient observation rounds having been conducted.” Id. at 58. It further found that,
“[d]espite subsequent staff training and reeducation and implementation of additional video
monitoring of staff performance of rounds, on 9/27/13, video observation of patient observation
rounds conducted on the night shift of 9/23/13 to 9/24/13 on Sample Patient #22 revealed that the
patient observation rounds were still not being conducted correctly per policy/procedure.” Id.
19

 47. 8 CDPHE quoted the facility’s Corporate Clinical Director and Nurse Educator as stating that
“the lack of documentation of the event was unacceptable [and] the patches should have been
initialed and dated,” and as expressing “concern that the patch had been re-applied to the
patient.” Id. at 47-48. 9
58.

Even more shockingly, CDPHE’s October, 2013 Summary of Deficiencies

against Highlands Behavioral Health System documents how the facility never even investigated
the egregious medication error that contributed to Mr. Mangines’ death. See Exhibit 4, at 54-56.
The report quotes Highlands Behavioral Health System’s CEO as stating the medication errors
with Mr. Mangines’ transdermal fentanyl prescription were “not reported as an ‘incident’ or
‘event’” because it was felt by facility management that these “did not constitute … medication

8

Ms. Jenney was clear in her deposition testimony that she believes she would have notified Mr.
Mangines’ “attending psychiatrist” of the incident involving the patch found on the ground. See
Exhibit 6, at 149:3-150:15. Neither psychiatrist attending to Mr. Mangines during the period
from July 22 to July 25 has any recollection of being advised, by Ms. Jenney or anyone else, of
any episode involving a patch found on the ground, much less of instructing Ms. Jenney to apply
the found patch to Mr. Mangines. See Deposition of Ronald Berges, D.O., Exhibit 30, at 220:2222:14; Thomas Vertrees, M.D.’s Responses to Plaintiffs’ First Set of Discovery, Exhibit 31, at
6-7 (response to non-pattern interrogatory #3 detailing all of Dr. Vertrees’ communications with
Mr. Mangines’ health care providers during the July, 2013 admission). Highlands Behavioral
Health System has since re-hired Ms. Jenney to serve as its Director of Nursing. See Exhibit 6,
at 6:23-7:4.
9
Although Highlands Behavioral Health System has led state and federal investigators to believe
the incident with the found patch occurred “sometime between July 22 and July 25,” see Exhibit
4, at 47, the only documentation relating to reported loss or removal of a fentanyl patch
following Mr. Mangines’ transfer from Unit II to Unit I on July 21 is from the morning of July
26, when Unit I staff documented Mr. Mangines as stating, “Do I get a new patch? This one fell
off.” Exhibit 1, at HBHS 0103. Plaintiffs’ experts opine in their respective reports that if this
documentation is a reference to the incident Ms. Jenney reported as occurring “sometime
between July 22 and July 25,” and that this incident in fact occurred on July 26, the conduct of
Highlands Behavioral Health System staff in applying a patch found on the ground to Mr.
Mangines’ body was reckless and likely contributed to his death from acute fentanyl toxicity. See
Expert Report of Richard Ries, M.D., Exhibit 40, at 7; Expert Report of Srjdan Nedeljkovic,
M.D., Exhibit 41, at 7-8; Expert Report of Daylene Blankenship, Exhibit 42, at 9.
20

 error[s].” Id. Accordingly, these errors were “not documented for discussion in Quality
Meetings” at the facility and “not reviewed further by facility staff” or managers. Id.
59.

CDPHE’s investigation and detailed Summary of Deficiencies is, on its own, a

shocking indictment of Highlands Behavioral Health System’s reckless and egregious practices
endangering patient safety, including the egregious practices that led to numerous errors in Mr.
Mangines’ case and directly caused his death. 10
60.

The findings set out in the 35-page Statement of Deficiencies issued against

Highlands Behavioral Health System in October, 2013, on behalf of federal investigators with
the Department of Health and Human Services (“DHHS”) are perhaps even more alarming. See
DHHS Statement of Deficiencies, Exhibit 29. DHHS’s report sets out additional deficiency
findings against Highlands Behavioral Health System for numerous violations of federal law,
including, for example:
a. Violation of 42 C.F.R. § 482.13, “A hospital must protect and promote each
patient’s rights.” DHHS found that Highlands Behavioral Health System
violated this federal law requirement by failing to “ensure that a safe patient
environment was maintained by staff through consistently conducted patient
observation rounds.” Exhibit 29, at 2.

10

The CDPHE report also sets out information further establishing systemic problems with
patient care and safety at Highlands Behavioral Health System in other respects, including but
not limited to the facility’s failure to appropriately investigate patient death events and its failure
to incorporate investigatory findings into improving its discharge planning process. See Exhibit
4, at 1-30. These additional findings further support Plaintiffs’ contentions that Highlands
Behavioral Health System managed and operated its facility in a reckless fashion that directly
endangered the safety of its patients, and that the death of their son from an overdose of
medications administered to him by facility staff during his admission to a locked, secure Unit
was part of this systematic conduct by Defendant, and not an isolated incident.
21

 b. Violation of 42 C.F.R. § 482.13(c)(2), “The patient has a right to receive care
in a safe setting.” DHHS found that Highlands Behavioral Health System
violated this federal law requirement by failing “to ensure the ongoing
physical safety or patients admitted to the facility,” noting that “[p]atient
safety observations were not conducted by facility staff per the facility’s
policy and expectations.” Exhibit 29, at 2-12 (emphasis added).
c. DHHS further found that “[t]he failure to perform adequate safety checks
placed all patients at risk because of threats to their health and welfare
going unidentified by staff.” Exhibit 29, at 3 (emphasis added).
d. Violation of 42 C.F.R. § 482.23, “The hospital must have an organized
nursing service that provides 24-hour nursing services,” which “must be
furnished or supervised by a registered nurse.” DHHS found that Highlands
Behavioral Health System violated this federal law requirement by failing “to
ensure that the Director of Nursing Services ensure[d] that nursing staff
complied with policies/procedures related to assessment/reassessment of
patients, patient monitoring, and medication administration.” Exhibit 29, at
12 (emphasis added).
e. DHHS further found that Highlands Behavioral Health System failed to
ensure “that nursing staff adequately documented patient care and complied
with all patient care policies and procedures, including those related to patient
observation rounds, medication administration, and assessment/reassessment
of patients.” Exhibit 29, at 12 (emphasis added).

22

 f. DHHS also documented that Highlands Behavioral Health System violated
federal legal requirements pertaining to “Administration of Drugs.” See
Exhibit 29, at 12-13. DHHS specifically found “[t]he facility failed to ensure
that facility nursing staff administered a medication, transdermal fentanyl
patches, to [Mr. Mangines] as ordered by the patient’s physician.” Id. at 13
(emphasis added).
g. DHHS also documented how Highlands Behavioral Health System risk
managers reported six medication errors in July and nine medication errors in
June, 2013, to the facility’s “Committee of the Whole,” and that all nine errors
“reached the patient,” but that “the fentanyl patch error” in Mr. Mangines’
case “was not included in the data presented to the Committee [of the Whole]
for the month of July.” Exhibit 29, at 22 (emphasis added).
61.

DHHS concluded that the numerous violation of federal patient safety laws by

Highlands Behavioral Health System were so pervasive and egregious as to constitute an
“Immediate Jeopardy” situation under federal law. Exhibit 29, at 1-2, 13. 11 According to
DHHS, its investigation “established that there was a pattern of continuing failure[s]” at
Highlands Behavioral Health System even months after Mr. Mangines’ death, when the facility
was supposed to have implemented corrective actions to prevent additional patient injuries; this
“pattern of continuing failures,” according to DHHS, included the specific failures involved in
11

Under federal law, an “immediate jeopardy” situation is one “in which the provider’s … noncompliance with one or more requirements, conditions of participation [in Medicare and
Medicaid], conditions for coverage, or conditions for certification [as a Medicare- and Medicaidparticipating hospital entitled to reimbursement under these federal programs] has caused, or is
likely to cause, serious injury, harm, impairment, or death to a resident or patient.” 42 C.F.R.
489.3 (emphasis added). A facility that is determined to be placing its patients in “immediate
jeopardy” is at risk of losing its certification to participate in Medicare and Medicaid and receive
payment for patient care under these federal programs.
23

 Mr. Mangines’ death – patient safety observation rounds and administration of patient
medications – “that placed all patients in jeopardy of serious harm.” Id.
62.

For example, even months later, when Highlands Behavioral Health System had

been telling state and federal investigators about its correction plans and new “zero tolerance”
policy for staff who were not appropriately performing patient safety observation rounds,
CDPHE and DHHS observed video recordings showing ongoing disregard for patient safety and
facility policy by facility staff, who were documented observing patient respirations every 15
minutes as required but seen on video not actually completing this critical task. See Exhibit 4, at
62-65; Exhibit 29, at 8-11, 13-14.
I. Following Mr. Mangines’ death, Highlands Behavioral Health System embarks on
an ongoing effort to impede reasonable investigation efforts concerning the causes of
Mr. Mangines’ death, including by law enforcement agencies.
63.

Highlands Behavioral Health System’s efforts to “circle the wagons” in order to

limit its legal liability got underway on the day Mr. Mangines was found dead in the quiet room
in full rigor mortis. On that date, several key employees changed important details of their initial
accounts to law enforcement after meeting with facility management or attorneys. 12
64.

One Highlands Behavioral Health System employee later told law enforcement

investigators how facility administrators “segregated” the staff members on July 27 “so people
would stop asking us questions.” See Exhibit 16, at 49-51. This and other employees reported

12

See, e.g., DCSO Notes of Initial Interview with Jill Orr, R.N., Exhibit 32, at unnumbered pp.
1-2 (relating statement of Jill Orr, R.N., that Mr. Mangines had endorsed suicidal ideations on
the evening of July 26); DCSO Investigation Progress Report, Exhibit 33, at 11 (Ms. Orr
refusing to include mention of suicidal ideation in her written statement to DCSO, based on
“advice of her HR person”); DCSO Notes of Initial Interview with Cassie Roybal, BHA, Exhibit
34, at unnumbered pp. 3-4 (Ms. Roybal admitting she did not appropriately perform patient
safety checks on the morning of July 27); Exhibit 33, at 31-34 (Ms. Roybal contending, after
meeting with Highlands Behavioral Health System administrators, “that she did proper checks
and would not change how she conducts her checks in the future”).
24

 being given blank paper to write statements for the facility or even being given written
statements to sign by facility Risk Management concerning their involvement in Mr. Mangines’
care. See, e.g., id.; see also Exhibit 21, at 39-40. 13
65.

Numerous Highlands Behavioral Health System employees described to law

enforcement the “debriefing” conducted by Hospital administrators beginning on the day of Mr.
Mangines’ death. Facility documents obtained by law enforcement indicate facility managers
convened a meeting on July 27 intended to begin the process of obtaining facility staff’s
signatures on a written “Acknowledgment” of the facility’s written patient observation policy.
See Ray Martinez Memo and Sign-in Sheet for July 27 Highlands Behavioral Health System
“Debriefing,” Exhibit 35, at HBHS 004115-16; Exemplar “Acknowledgment” Signed by Jody
Jenney, R.N. on July 27, 2013, Exhibit 36.
66.

These employees advised law enforcement that the purpose of the “debriefing”

following discovery of Mr. Mangines’ body was to have it “on record that they gave this to us.”
Exhibit 15, at 93; see also Exhibit 8, at 54-58. Another employee bluntly characterized the July
27 “debriefing” as “a bunch of B.S.” Exhibit 16, at 49-51.
67.

Law enforcement investigation materials further indicate Highlands Behavioral

Health System attorneys resisted early efforts to investigate the circumstances of Mr. Mangines’
death. File materials of the Douglas County Coroner’s Office (“DCCO”) reflect the facility’s
routing of inquiries and request for witness interviews and documentation to the facility’s CEO,

13

As the Court may recall from prior briefing on Plaintiffs’ motion to compel information
Defendant has characterized as subject to the Quality Management Privilege (and the motion to
reconsider relating to this issue), Defendant has never produced any of the written statements
numerous facility staff say facility administrators had asked them to complete and/or sign
following Mr. Mangines’ death.
25

 who then failed to provide responsive information requested by DCCO in its death investigation.
See Douglas County Coroner File Summary, Exhibit 37, at DCC 0013. 14
68.

Law enforcement investigation materials likewise reveal efforts to hinder and

delay efforts by DCSO to conduct its investigation. For example, DCSO ceased efforts to
interview facility employees Highlands Behavioral Health System’s lawyer requested they not
interview anyone at the facility on August 5, 2013. See Exhibit 33, at 34. After agreeing to a tenday extension for the facility to provide documents in response to one of its search warrants,
DCSO investigators noted threats by the lawyer to bypass DCSO by “working with the District
Attorney’s office to obtain a protective order from the court that ensures this information is not
disclosed.” Id., at 37.
69.

The criminal investigation file also contains correspondence from Highlands

Behavioral Health System’s lawyer to the District Attorney’s Office requesting it intervene and
delay DCSO’s investigation “until the cause of the patient’s death is determined.” August 5, 2013
Correspondence from Lamar Jost, Esq., Exhibit 38, at 1-2.
70.

Highlands Behavioral Health System’s documented efforts to hamper and impede

reasonable law enforcement investigation appear to have succeeded in delaying at least one

14

For example, DCCO contacted Highlands Behavioral Health System on July 31 requesting
opportunity to speak with Jill Orr, Maya Morfoh, and Rachel MacNair, “who were all present
and reportedly participated in the CPR for the decedent on the morning he was found.” DCCO’s
investigator “was referred to speak with [risk manager] Tammy Harrison,” who advised that all
questions DCCO had for facility employees “were to be filtered through her.” Id. When the
investigator asked Ms. Harrison for permission to visit the facility and speak with several
employees about clarifying Mr. Mangines’ medication administration schedule, and go over
several other questions, Ms. Harrison advised she needed to consult with someone else at the
facility and would call back. Id. The investigator received a call from Lana Currance, CEO of the
facility, later that day. See id. at 13-14. Ms. Currance provided certain information during that
phone call, but DCCO notes indicate Ms. Currance “specifically did not address the medication
schedule that I asked for clarification on regarding when the decedent was given Fentanyl while
at Highlands Behavioral Health.” Id. at 14.
26

 critical component of that investigation. As the attached witness statements demonstrate, law
enforcement investigators were unable to obtain interviews of most individuals involved in Mr.
Mangines’ care and death until months after his death. For example, interviews with Ms. Loera,
Ms. Schafer, and Mr. Cole, the staff on the Unit I overnight shift on July 26-27, were not
completed until January and February, 2014, respectively. See Exhibit 8, at 1; Exhibit 15, at 1;
Exhibit 21, at 1. Numerous other staff were not interviewed until March, April, and May, 2014.
71.

Further, since the filing of this lawsuit, it has become apparent that Highlands

Behavioral Health System lost and/or destroyed critical material evidence relating to the
circumstances of Mr. Mangines’ death. Jill Orr, R.N., relayed in her deposition how the Unit I
nursing staff was making audio recordings of patient reports for oncoming shift members at the
time of Mr. Mangines’ death on July 27, 2013. See Exhibit 7, at 97:22-101:10. She also
described Unit I staff’s use of “report sheets” setting out “the behavior of a patient or what
precautions they were on when they came in with the room number that they’re in.” Id. at
121:20-122:18.
72.

Defendant has never produced copies of either the audio recording shift reports or

written report sheets from Mr. Mangines’ July, 2013 admission including, most critically, any
such recordings or documents from July 26 and 27, 2013. Although Plaintiffs have made
repeated requests that Defendant produce these materials, see, e.g., Exhibit 7, at 101:6-10,
122:17-18, see also Conferral Letters Concerning Production of Missing Audio Recordings and
Written Shift Reports, Exhibit 39, Highlands Behavioral Health System has never produced the
materials or provided any explanation as to what was done with the materials following Mr.
Mangines’ death. At this point, it is apparent that these critical materials were either lost or

27

 destroyed by Defendant at some point after Mr. Mangines’ body was found in full rigor mortis in
the quiet room on July 27, 2013. 15
73.

Since the filing of this lawsuit, undersigned counsel has learned that Highlands

Behavioral Health System’s lawyers sent letters to former Highlands Behavioral Health System
employees advising that Plaintiffs had filed the lawsuit, requesting opportunity to interview the
employees about the facts of the case, and telling them not to discuss the case with anyone else.
II.

GOVERNING LAW

Colorado law permits a plaintiff to assert an exemplary damages claim only after “the
plaintiff establishes prima facie proof of a triable issue” of exemplary damages, i.e., “that the
action complained of was attended by circumstances of fraud, malice, or willful and wanton
conduct.” C.R.S. §§ 13-21-102(1), (1.5), 13-21-203(3)(b), (c)(I); accord C.R.S. § 13-64302.5(3), (4)(a).
“Prima facie evidence is evidence that, unless rebutted, is sufficient to establish a fact.”
Stamp v. Vail Corp., 172 P.3d 437, 449 (Colo. 2007). “Prima facie proof of a triable issue of
exemplary damages is established by a showing of a reasonable likelihood that the issue will
ultimately be submitted to the jury for resolution.” Id. As the Supreme Court recognizes, “[t]his
is a lenient standard,” id. at 450, and this Court is instructed to afford Plaintiff “some leeway in
establishing [her] prima facie case. Leidholt v. District Court, 619 P.2d 768, 771 (Colo. 1980),
rev’d in part on other grounds.
Colorado statute defines “willful and wanton conduct” as “conduct purposefully
15

Given Highlands Behavioral Health System conducted what it has characterized as a thorough
internal investigation of Mr. Mangines’ care following discovery of his body in full rigor mortis
in the quiet room, it is apparent that the destruction of the audio recordings and written shift
reports was willful (or worse), and that the documents would have been relevant to multiple
issues in this case, thus warranting an adverse inference instruction at trial. Accord Aloi v. Union
Pac. R.R., 129 P.3d 999, 1002-04 (Colo. 2006).
28

 committed which the actor must have realized as dangerous, done heedlessly and recklessly,
without regard to consequences, or of the rights and safety of others, particularly the plaintiff.”
C.R.S. §§ 13-21-102(1)(b), 13-21-203(3)(b); see also C.R.S. § 13-64-302.5(4)(b).
The Colorado Supreme Court has construed the statutory definition of “willful and
wanton conduct” as including “conduct that creates a substantial risk of harm to another and is
purposefully performed with an awareness of the risk in disregard of the consequences.” Palmer
v. A.H. Robins Co., 684 P.2d 187, 215 (Colo. 1984). As contrasted with intentional tortious
conduct, the Court has treated “willful and wanton conduct” as synonymous with “gross
negligence,” i.e., “such a gross want of care and regard for the rights of others as to justify the
presumption of willfulness and wantonness.” White v. Hansen, 837 P.2d 1229, 1233 & n.5 (Colo.
1992) (quoting Black’s Law Dictionary, 1185-86 (4th ed. 1986)); accord Martinez v. Estate of
Bleck, 2016 CO 58, ¶ 32 (2016) (“willful and wanton conduct is not merely negligent; instead, it
must exhibit a conscious disregard for the danger”); Carlson v. McNeill, 114 Colo. 78, 162 P.2d
226, 230-31 (1945) (defining willful and wanton conduct as conduct evincing “an utter disregard
of consequences, aside from any intentional malice in its odious or malevolent sense” (emphasis
added); C.R.S. §§ 13-21-102(1)(a), 13-21-203(3)(a), 13-64-302.5(4)(a) (listing “malice” and
“willful and wanton conduct” as separate and independent bases for an award of exemplary
damages).
“Ordinarily, determining whether a defendant’s conduct is willful and wanton is a
question of fact.” United States Fire Ins. Co. v. Sonitrol Mgmt. Corp., 192 P.3d 543, 549 (Colo.
App. 2008). “Direct evidence will rarely be available to establish a defendant’s mental state at
the time of performance of allegedly unlawful acts.” People v. Frayer, 661 P.2d 1189, 1191
(Colo. App. 1982). “Therefore, circumstantial evidence and permissible inferences drawn

29

 therefrom generally constitute the basis for establishing the requisite state of mind.” Id.; see also
Kendall v. Lively, 31 P.2d 343, 344 (Colo. 1934) (“[E]vidence of the malice, wantonness or
recklessness entitling to exemplary damages may be either direct or circumstantial.”). “Juries
may find it difficult to determine the mental state of an actor, but they may rely on circumstantial
evidence in reaching their conclusion.” White v. Muniz, 999 P.2d 814, 817 (Colo. 2000); see also
Stamp, supra, at 450 (“[I]nferences that are fairly deduced from other facts are reasonable.”).
The purpose of exemplary damages is “not to compensate an injured plaintiff but to
punish the defendant and deter others from similar conduct in the future.” Leidholt, supra, 619
P.2d at 770. The appropriate test at this stage in the litigation is whether Plaintiffs have provided
prima facie proof of a triable issue that Mr. Mangines’ death was attended by circumstances of
fraud, malice, or willful and wanton conduct; importantly, the test is not whether this Court
believes that a jury could find “beyond a reasonable doubt” that exemplary damages are
warranted. Stamp, supra, 172 P.3d at 449. At issue here is only the preliminary question of
whether Plaintiffs have made a prima facie case.
III.

ARGUMENT

As set forth in section II, supra, the evidence supporting Plaintiffs’ proposed exemplary
damages claims is not merely “prima facie” – it is overwhelming.
Plaintiffs’ prima facie proffer sets out multiple triable issues of circumstances of willful
and wanton conduct and/or fraud on the part of Highlands Behavioral Health System. For
example, Plaintiffs adduce evidence of egregious medication errors by facility staff that directly
contributed to Mr. Mangines’ death: first, the incorrect handwritten transcribing of Mr.
Mangines’ prescription for 100 mcg transdermal fentanyl q 72 hours by Ms. Loera, indicating the
patient was due for a second 100 mcg dose only 24 hours after his previous dose; and second, the

30

 erroneous administering of a second 100 mcg dose by Ms. Vannucci within 24 hours of the
previous 100 mcg dose, without any effort to double-check or verify the accuracy of the
transcribed order before administering the medication. See Exhibit 1, at HBHS 0149, 0151;
Exhibit 4, at 38-49; Exhibit 7, at 134:10-135:4; Exhibit 11, at 13, 18-22, 31-33, 35.
Plaintiffs’ prima facie proffer further establishes how these medication errors resulted
from understaffing and lack of training provided to nursing staff such that the staff involved
rushed through their tasks without taking the time to verify the orders and avoid such errors
because they had insufficient time to complete all tasks assigned by facility managers. See
Exhibit 8 at 78, 95-96; Exhibit 11, at 18, 37, 59-62. It was completely foreseeable that
understaffing the facility would force staff to cut corners, creating the risk of serious mistakes
resulting in patient injury or death.
Plaintiffs’ prima facie proffer further establishes that Highlands Behavioral Health
System ignored (and even discouraged) staff from expressing concerns about unsafe nursing
practices on Unit I, including concerns specifically pertaining to medication administration and
documentation, and involving the same nurse who incorrectly transcribed Mr. Mangines’
prescription for 100 mcg transdermal fentanyl q 72 hours. See Exhibit 10, at 23, 50, 63-70.
Highlands Behavioral Health System responded to these concerns by transferring the nurse who
expressed; that nurse, Ms. Maestas, had been scheduled to work the Unit I overnight shift on the
night Mr. Mangines died, but her transfer to another unit of the Hospital left the problem nurse,
Ms. Loera, in charge. See id.; see also Exhibit 8, at 18; Exhibit 9, at HBHS 00109 (“Dannette
M. to U2”). It was completely foreseeable to Highlands Behavioral Health System that serious
patient injury or death could result from such reckless managerial and staffing decisions, yet the
facility appears to have ignored that risk, with the result being Mr. Mangines’ death.

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 Plaintiffs further submit prima facie proof concerning Highlands Behavioral Health
System’s failure to develop any written policy or even provide any training to its staff on safe
handling, administration, and wasting of transdermal fentanyl, despite admitting patients like Mr.
Mangines who were being administered this powerful and dangerous opioid medication by staff.
Exhibit 4, at 45-46, 48; Exhibit 5; Exhibit 6, at 70:3-8, 71:24-73:8; Exhibit 7, at 167:1-19,
168:19-169:7, 170:20-171:9. Given the significant risks of injury and death associated with
transdermal fentanyl, which were well-known in 2013, see Exhibit 3, it was completely
foreseeable that having hospital staff administer powerful and dangerous opioid pain patches to
patients without providing any written guidance, policy, or training on how to safely and
appropriately do so was a disaster waiting to happen.
Plaintiffs additionally submit evidence indicating facility staff ignored multiple signs and
symptoms of potential opioid toxicity in Mr. Mangines’ case on July 26 and 27, including
confusion, slurred speech, trouble walking or talking, oversedation, and nausea. See Exhibit 1, at
HBHS 0103-05, 0130, 0161, 0185. The documentation is clear that Hospital staff never made
any effort to advise any physician of Mr. Mangines’ alarming signs and symptoms, or even to
reassess his vital signs on the basis of his changed and deteriorating condition. Exhibit 4, at 36,
44; Exhibit 7, at 149:21-151:7, 156:19-157:13; Exhibit 8, at 40-41; Exhibit 14, at 17-18.
Instead, they sent him to sleep in the quiet room for the night. See, e.g., Exhibit 1, at HBHS
0106. This conduct further reflects Highlands Behavioral Health System’s failure to train and
educate its staff on risks and safety issues concerning fentanyl, or implementing or training staff
on any policy for safe administration of this dangerous drug to minimize those risks.
Then there is the evidence pertaining to the conduct that occurred overnight on July 27,
2013, when at least three different staff members documented performing their required patient

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 safety observation rounds on Mr. Mangines every fifteen minutes and observing that he was
“sleeping.” See Exhibit 1, at HBHS 0187. As established by facility video recordings, and
conceded by the staff members in question, this documentation was demonstrably false and, in
fact, fraudulent. See Exhibit 4, at 58-65; Exhibit 25. But for these circumstances of fraud, Mr.
Mangines would likely have been discovered in time to save his life. 16
Two of the three staff members on the Unit I overnight shift (Ms. Schafer and Mr. Cole)
were newly hired, inexperienced young people who later told investigators Highlands Behavioral
Health System did not provide them with sufficient training prior to putting them on regular
shifts. Exhibit 15, at 6-7, 22; Exhibit 21, at 32-37. Highlands Behavioral Health System had
already received staff complaints that the third (Ms. Loera) was engaged in unsafe nursing
practices such as “blanket charting,” i.e., documenting the completion of tasks she was not
actually performing. See Exhibit 10, at 23, 50, 63-70. Highlands Behavioral Health System’s
response to these complaints was to transfer the complaining nurse to another Unit – according
to the documented nursing schedule, beginning on the very same night Mr. Mangines died on
Unit I. See id.; see also Exhibit 9, at HBHS 00109.
The circumstances surrounding Mr. Mangines’ death from an overdose of transdermal
fentanyl administered by facility staff in a locked, secure Unit of Highlands Behavioral Health
System are truly egregious – even without additional evidence indicating the facility attempted to
delay and impede reasonable law enforcement efforts to investigate his death, and then lost or
16

Accord Affidavit of Thomas Vertrees, M.D., Exhibit 31A, at ¶ 5 (“Regardless of the reason
Mr. Mangines developed respiratory failure secondary to acute fentanyl toxicity, if the nurses
and staff at Highlands Behavioral Health System had appropriately performed their observation
rounds on Mr. Mangines every fifteen minutes overnight on July 26 and 27, 2013, Mr. Mangines
would more likely than not have been discovered in time to have been either found alive or
successfully resuscitated after receiving emergency medical treatment including but not limited
to administration of Narcan, either by providers at Highlands Behavioral Health System or other
emergency providers.”).
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 destroyed key evidence pertaining to his death. See § I(I), supra. Under Colorado law, the prima
facie proof submitted by Plaintiffs is more than sufficient to create multiple triable issues of
exemplary damages such that Plaintiffs’ Motion should be granted.
The Colorado Supreme Court has, in fact, upheld on appeal enormous exemplary
damages awards against corporate defendants based on circumstances far less egregious than the
circumstances of this case. In Qwest Servs. Co. v. Blood, 252 P.3d 1071 (Colo. 2011), for
example, the Supreme Court upheld an $18 million exemplary damages award against Qwest
based on evidence the corporation engaged in willful and wanton conduct by failing to
implement a periodic telephone pole inspection program. The willful and wanton conduct of
Highlands Behavioral Health System in this case is several orders of magnitude worse.
To wit, Plaintiffs’ expert psychiatrist, Richard Ries, M.D., their expert pain management
physician, Srjdan Nedeljkovic, M.D., and their nursing expert, Daylene Blankenship, M.D., each
opine that Highlands Behavioral Health System engaged in reckless and/or fraudulent conduct in
numerous respects in causing the death of Mr. Mangines. These experts’ respective reports are
attached as Exhibits 40, 41, and 42 for the Court’s review.
Likewise, district courts in Colorado have routinely granted Motions for leave to assert
exemplary damages claims in a number of instances far less egregious than the circumstances
here. See District Court Orders Approving Exemplary Damages Claims, collectively attached as
Exhibit 43. For example, district courts in recent years have approved exemplary damages
claims against a Hospital that permitted a physician to bring outside medications into its facility
for purposes of performing pain management injections for which he lacked privileges (the
Rutherford care); against a Hospital System that solicited and accepted acute stroke patients to its
satellite facility while failing to staff that facility with qualified stroke specialists and trained

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 nursing staff (the Acierno case); against a physician who performed medically non-indicated
vascular surgery procedures with a device he knew posed a risk of complications and patient
injury (the Woita case); against a physician who disregarded basic surgery safety rules in
puncturing through the abdominal aorta of a young kidney donor patient approximately one
minute into a donor surgery (the Lechuga case); against a physician who disregarded basic
medication safety rules in failing to secure injectable narcotic drugs in the OR at Rose Medical
Center, facilitating theft of those narcotics by a drug-seeking, opiate-addicted surgical scrub
technician, and consequent transmission of Hepatitis C to the surgery patient (the Kraft case);
and against a physician and orthopedic surgery practice that recklessly delayed assessment,
diagnosis, and treatment of a post-orthopedic surgery patient’s deep vein thrombosis, resulting in
the patient’s death (the Lichtenfels case). See id.
The shocking facts of this case cry out for an exemplary damages claim. Plaintiffs should
be afforded opportunity to test their proposed exemplary damages claims with a jury at trial.
Accordingly, Plaintiff’s motion should be granted.
IV.

CONCLUSION

Colorado law encourages exemplary damages claims for purposes of punishing and
deterring the kind of egregious misconduct that caused the tragic, foreseeable, and preventable
death of Carson Mangines. Plaintiffs’ prima facie proffer – which, far beyond “prima facie,” is,
in fact, overwhelming – supports inferences that Highlands Behavioral Health System
consciously disregarded known, substantial, and foreseeable risks of serious injury or death to its
highly vulnerable and at-risk patients – including young people like Mr. Mangines with a history
of both mental illness and substance abuse problems.

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 Under Colorado’s lenient standard for asserting exemplary damages claims, Plaintiffs
easily meet their burden of prima facie proof of a triable issue of circumstances of fraud and/or
willful and wanton conduct attending the death of Mr. Mangines. Public policy – and public
safety – demand opportunity for a jury to consider punishing Defendant for its misconduct, as
well as opportunity for the jury to exercise its appropriate deterrent function with respect to such
conduct. Accordingly, Plaintiffs should be permitted to test their proposed exemplary damages
claims with a jury at trial, and respectfully request this Court grant their Motion.
WHEREFORE, Plaintiffs, Lianne Mangines and James Mangines, Individually and as
Personal Representatives of the Estate of Carson Mangines, Deceased, respectfully request the
Court GRANT their Motion for Leave to File their Motion For Leave to Amend Complaint to
Assert Exemplary Damages Claim Against Defendant Highlands Behavioral Health System,
accept their proposed First Amended Complaint, conditionally tendered to the Court as Exhibit
44 hereto, for filing, and grant them such other and further relief as the Court deems just.
Respectfully submitted this 19th day of September, 2016.

LEVENTHAL & PUGA, P.C.

By:

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s/ David P. Mason*
Hollynd Hoskins, #21890
David P. Mason, #41333
Attorneys for Plaintiffs

 CERTIFICATE OF SERVICE
It is hereby certified that on this 19th day of September, 2016, a true and correct copy of
the foregoing was electronically filed with the Court and served to the following parties via
ICCES:
Theodore C. Hosna, Esq.
Donna Bakalor, Esq.
Hall Prangle & Schoonveld, LLC
6500 S. Quebec Street, Suite 300
Centennial, CO 80111
Attorneys for UHS of Denver, Inc, d/b/a
Highlands Behavioral Health System and
UHS of Delaware, Inc.

Michael E. Prangle
Hall Prangle & Schoonveld, LLC
200 S. Wacker Drive, Suite 3300
Chicago, IL 60606
Attorneys for UHS of Denver, Inc, d/b/a
Highlands Behavioral Health System and
UHS of Delaware, Inc.

/s/Carmen Smallegan

In accordance with C.R.C.P. 121 § 1-26(9), a printed copy of this document with original
signatures is maintained by the filing party and will be made available for inspection by other
parties or the Court upon request.

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