Note: This post was originally published on a blog I kept during the 2012 election cycle. I have updated some of the links.
By Lee White
Kasie Ducharme, a 27-year- old mother of three, was arrested by Augusta police the afternoon of June 21, 2007, on a probation violation warrant and taken to the Butler County Jail. Four days later, she was dead, the victim of an infection known as methicillin-resistant staphylococcus aureus (MRSA). Click here for some facts about MRSA from the U.S. National Library of Medicine.
In 2009, Ducharme’s mother, Dana Rogers, sued Butler County, Sheriff Craig Murphy, several deputies and jail medical staff, as well as Dr. Richard Kuhns, an El Dorado physician who, at the time, had a contract with the county to provide health care for inmates. The lawsuit was settled out of court on July 20, 2011. The county’s insurer paid $75,000, but the terms of the settlement with Dr. Kuhns and his company, El Dorado Internal Medicine, LLC, were confidential. None of the defendants admitted being at fault for Ducharme’s death.
Medical staff at the jail, including an advanced registered nurse practitioner — a nurse allowed to prescribe medications and order procedures under the supervision of a physician – a licensed practical nurse, and a certified nurse aide examined Ducharme at various times during her incarceration. A physician never examined her while she was in custody except for the one who pronounced her dead when she was taken by ambulance to Susan B. Allen Memorial Hospital in El Dorado the evening of June 25.
Legal and other public documents regarding Ducharme’s tragic death not only reveal an apparent failure to detect and treat a survivable illness, but they call into question the investigative procedures of current Butler County Sheriff Kelly Herzet, who was the lead detective assigned to the Ducharme case. The documents also show that Butler County Commissioners and County Administrator Will Johnson, took an active role in choosing jail health care providers, including terminating the contract with Dr. Kuhns in 2008. Under Kansas law, the sheriff is in charge of the jail; however, county commissioners hold the purse strings.
The facts presented in this story were obtained from two orders signed by U.S. District Judge J. Thomas Marten, who presided over the case, as well as the deposition of Herzet. A deposition is sworn testimony taken before trial in an attempt to discover the facts of the case. Butler County Commission minutes were also examined. Links to the documents appear below.
The day after arriving at the jail, Ducharme complained of right hip pain. She stated that she didn’t remember what happened to her hip. An examination noted “drug track marks” on both arms and that Ducharme reported using one gram of methamphetamine a day. At autopsy, however, the only drugs discovered in Ducharme’s system were Tylenol and Tramadol, painkillers she had been given at the jail, according to Herzet’s deposition.
Ducharme’s next request for medical treatment came at 3:34 a.m. June 24. Deputy Dana Burns sent Tamara Harper, the advanced registered nurse practitioner, this e-mail: “Ducharme #2520 In complaining of pain from her right knee up to her right hip. Her right knee is double the size of her left knee. No bruising that I can see, pulses are good in her foot and she was able to apply pressure to my hand and pulls against my hand with her foot. She stated she was seen by a nurse when she was booked in on the 21st.”
Jean Valentine, a licensed practical nurse, then examined Ducharme at about 9:30 a.m. Valentine noted that Ducharme’s knee was swollen and gave her some Motrin, a painkiller, and an ice pack.
Ducharme filled out a medical treatment request form at 11 p.m. stating, in part: “My leg is broke. I need to go to the hospital now I can’t take the pain any more it’s hurting my chest now. Please thanks, Kasie. What time and day did the injury or illness begin? Day I got arrested.” Marla Park, a certified nurse aide, then examined Ducharme.
In his June 1, 2011, order dismissing some of Rogers’ claims and allowing others to go to trial, Judge Marten wrote: “Initially she complained of chest pain and stated that her leg was broken. Park asked her why she was in medical and she stated, ‘I need to go to the hospital, I can’t breathe, my leg is broken, I want to stay in here, it’s cool, my chest hurts, you need to give me something for the pain, or take me to the hospital.’ However, she talked without distress and did not stop to take a breath. Ducharme further expressed her desire for medication because ‘there were lots of other women in the dorm that get all kinds of meds, and their leg isn’t hurting them and I want what they’re getting.’ Park explained to her that she could not just get any medicine she wanted. Ducharme then said ‘my leg is causing my chest to ache.’ Park asked if her chest was hurting and she said no. Park notified Harper, and they gave Ducharme 6 packets of Ibuprofen and an ice pack.”
Harper, the nurse practitioner, first examined Ducharme at about 9:30 a.m. June 25. Ducharme was taken to the jail medical facility in a wheelchair. In addition to leg pain, she complained of intermittent pain in her left lower rib and chest wall when she breathed in. Harper prescribed the painkillers Ibuprofen, Tramadol, and Tylenol, ice packs, and ordered an X-ray of Ducharme’s knee, which revealed no fracture.
After lunch, Ducharme, in a wheelchair, attended a court hearing before Butler County District Judge David Ricke. She was throwing up and told Ricke, “they’re being so mean and I asked to go to EMS and they won’t take me ‘cause they said they were low staff.” Ricke ordered that court staff send written communication to the jail to make sure Ducharme was getting the medical treatment she needed; however, there was a dispute as to whether the medical staff was ever notified of Ricke’s order.
“Deputy Chad Archer relieved (Deputy Michael) Schmidt from his shift at about 5:18 p.m. Before he left, Ducharme fell while walking to the restroom,” Judge Marten wrote. “April Blackburn and Amy Cain-Sudderth, inmates, testified that Schmidt laughed and told everyone not to help her up and that if she could not get up on her own she could ‘piss herself.’”
According to a footnote in Marten’s order, Schmidt was on a “period of reckoning” on the night Ducharme died. He had been suspended for three days and placed on probation for obtaining a female inmate’s telephone number about 10 months earlier.
Ducharme’s condition continued to worsen. About 6:30 p.m., a couple of inmates helped Ducharme take a shower. They had to carry her on a mat. She couldn’t hold her head up. Judge Marten’s order describes Kasie Ducharme’s final moments:
“At 8:03 p.m, Park paged Harper at her home and informed her Ducharme was complaining of increased pain and that her hands were purple, blotchy, and she was yellow in color. Harper left her house and arrived at the jail at 8:30 p.m. While waiting for Ducharme, Amy Cain, an inmate, informed Harper she had helped Ducharme shower earlier in the day because Ducharme had trouble standing. A jail deputy then notified Harper that Ducharme had fallen from the wheelchair and was lying on the floor in the doorway of the women’s dorm.
“Harper arrived at the women’s dorm and saw Ducharme lying supine on the floor, she was pale and dry. Her feet were blotchy and her oral membranes were dry. Her pulse was 80. Several other inmates told Harper Ducharme was ‘shooting Dilaudid’ and methamphetamine and that she was walking on her own at times that day. After yelling at her to get up, Harper assisted Ducharme to a sitting position and Corporal Torres transported her to the clinic in a wheelchair.
“In the exam room, Ducharme appeared weak and moaned in response to questions. As Harper lifted Ducharme to help her onto the bed, Ducharme became unresponsive with agonal respirations and no noticeable pulse. Harper yelled at her to get up, then moved her to the floor and began CPR. EMS was notified. EMS applied an Automated External Defibrillator to her and resuscitation efforts continued. EMS then transported Ducharme to the emergency room at Susan B. Allen Memorial Hospital, where Dr. Rundell and the emergency room staff assumed care until all resuscitation efforts ceased.”
At 9:44 p.m. June 25, 2007, Kasie Ducharme was pronounced dead. Survivors included her children, Kaylee, James, and Alexander, and her parents, Jeff and Dana Rogers, all of Augusta. There was a visitation and a private family funeral service.
El Dorado Internal Medicine’s own expert, Dr. David McKinsey, faulted Park, the certified nurse aide, and Harper, the advanced registered nurse practitioner, for deviating from the standard of care. McKinsey criticized Harper for failing to order a chest X-ray, send Ducharme to the emergency room for evaluation of chest pain, or characterize the right lower leg swelling at the morning appointment the day Kasie died. He said Harper should have called an ambulance when she was called to come to the jail and immediately upon seeing Ducharme after arriving at the jail. Although Ducharme had a 50 percent chance of survival 22 hours before her death, she still had “a reasonable shot at survival as late as 8:30 p.m.,” McKinsey testified.
Current Butler County Sheriff Kelly Herzet was a detective the night Kasie Ducharme died. Because he was on call, he became the lead investigator. He was a patrol deputy from 1984 until 1987 when he took a job at the Wolf Creek Nuclear Power Plant. Herzet then returned to patrol in 1993 before being promoted to detective in 2000. Then-Sheriff Craig Murphy appointed Herzet undersheriff in Dec. 2009. Dana Rogers’ attorney, Christian Webb, took a deposition from Herzet on March 1, 2010.
As undersheriff, Herzet was responsible for jail operations and had an office at the jail, which is located just east of El Dorado. Herzet estimated that he had been involved in “probably a hundred” death investigations, including four homicides, during his law enforcement career. He testified that this was his first investigation of a jail death.
Herzet testified that Kansas Bureau of Investigation agent Randy Ewy assisted with the investigation, but did not take an active role. The Kansas Legislature passed a law effective July 1, 2004, requiring the KBI to investigate all inmate deaths. The next year, the Legislature amended the law so that the KBI was not required to investigate inmate deaths if an autopsy, preliminary autopsy report, or death certificate determined a death was from natural causes, or if the inmate had received regular care from a licensed physician, according to an Associated Press story from August 21, 2005.
In his questioning, Webb focused on the manner in which Herzet gathered his information. None of the interviews with inmates or staff was recorded despite the fact that the sheriff’s department has an interview room equipped with audio and video equipment at its offices on South Gordy in El Dorado, as well as portable recording equipment. Herzet also did not ask nurse practitioner Tamara Harper to fill out a written report as he had done with inmates and jail deputies.
WEBB: And did you ask Nurse Harper to fill out a written statement?
HERZET: Nurse Harper told me it would be easier for her just to walk me through her documented medical chart to do my interview.
WEBB: And was that in response to your request for a written statement?
HERZET: I don’t remember if I asked her to do a written statement. She told me her medical record would speak for itself and tell the story.
A bit later in the deposition, Webb asked whether Herzet had inquired about medical tests Harper had ordered or consultation with other providers about Ducharme’s condition.
WEBB: So in your interview with Nurse Harper, did you ask her any questions about what testing was undertaken or did you just listen?
HERZET: I just listened to what she had to say.
WEBB: After you got what she had to say, was there any follow-up with another medical provider independent of Nurse Harper to ascertain —
HERZET: No, sir.
WEBB: — what was done? No?
WEBB: Did Nurse Harper explain who she works for or where she works?
HERZET: No, and I didn’t ask.
WEBB: Did Nurse Harper explain whether or not she consulted with anyone on Ms. Ducharme’s treatment on June 25th, 2007?
HERZET: I don’t know and I didn’t ask.
WEBB: Did you essentially open up your note pad and write down what she told you about Kasie Ducharme’s care?
Herzet testified he neither interviewed Dr. Kuhns, Harper’s employer, nor obtained a copy of the agreement for Kuhns’ company to provide inmate health care at the jail. When Herzet was done with his investigation, its findings didn’t go much further.
WEBB: Who did you submit your investigation to when you were complete — when it was completed?
HERZET: To the file. You mean for review or for — I didn't refer it to anyone. It went into the file.
WEBB: It went to your file in the Butler County Sheriff's Office?
WEBB: Was it forwarded to anyone for review of any kind?
HERZET: Not that I recall.
WEBB: Wasn’t submitted to the attorney general’s office?
WEBB: Wasn’t submitted to the Butler County District Attorney’s office?
WEBB: Was it provided to Sheriff Murphy?
HERZET: I might have briefed Sheriff Murphy afterwards, but, no, he didn’t review the file.
WEBB: When your investigation was completed, it went physically into a file folder?
County Commission’s Role
Dr. Richard Kuhns’ company El Dorado Internal Medicine, LLC, provided inmate health care at the current Butler County Jail from the time it opened in 2003 until 2008. The Feb. 18, 2003, commission minutes indicate he was paid $230,880 a year. On Jan. 7, 2008, Kuhns, Harper, and then-Sheriff Craig Murphy attended a meeting of the Butler County Commission.
“Dr. Kuhns stated that Ms. Harper has done a superb job and spends at least 40 hours per week providing health care at the jail, while the minimum is 20 hours,” according to the meeting minutes. “Ms. Harper updated the Board on the scope of care, services provided, and pharmaceutical costs. Commissioner (Randy) Waldorf asked about attracting inmates because the county provides a high level of medical care on site. Ms. Harper said other counties and the U.S. Marshals do send inmates with medical needs to us because of the onsite medical care.”
Later in the meeting, Commissioner Jeff Masterson discussed “talking to Dr. Kuhns about medical staffing at the jail.”
On June 2, 2008, Murphy presented two bids from separate Peoria, Ill.-based companies to provide inmate health care at the jail. At the June 23, 2008, meeting, Commissioner Mike Wheeler reported Dr. Kuhns was interested in the contract for the jail. County Administrator Will Johnson asked Wheeler to share that with Murphy. Commissioners on Aug. 25, 2008, authorized Murphy to pursue a contract with Advanced Correctional Health Care, Inc., of Peoria, Ill., to be the new provider. Commissioners approved the five-year contract on Oct. 14, 2008, and instructed Johnson to terminate the contract with Dr. Kuhns. Advanced’s annual fee is $374,827, although the county sometimes receives a partial rebate. Advanced is apparently still providing services at the jail today.
Kasie Ducharme’s mother didn’t file her lawsuit against the county until June 22, 2009, so it’s unclear whether her daughter’s death played a role in county commissioners’ decision to change jail health care providers. Sheriff Murphy retired April 17, 2011, and the governor, on recommendation of the Butler County Republican Central Committee, appointed Herzet sheriff. Herzet is seeking his first term as the elected sheriff.
Sheriff Kelly Herzet’s Deposition
Dana Rogers’ Federal Claim Against Butler County
Judge Marten’s Memorandum and Order of Summary Judgment
Judge Marten’s Journal Entry of Settlement
Official minutes of the Butler County Commission referred to in the story:
February 18, 2003, Butler County Commission minutes
January 7, 2008, Butler County Commission minutes
Monday, June 2, 2008, Butler County Commission minutes
Monday, August 25, 2008, Butler County Commission minutes
October 14, 2008, Butler County Commission minutes
Tuesday, October 5, 2010, Butler County Commission minutes