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Suit over 'wrongful death' of Elizabeth Olten still ongoing

Suit over 'wrongful death' of Elizabeth Olten still ongoing

March 15th, 2014 in News

In this Jan. 10, 2012 file photo, Elizabeth Olten's mother, Patty Preiss, in dark wind breaker center, leaves the Cole County Courthouse with supporters after Alyssa Bustamante entered a guilty plea to second-degree murder. In October 2009, 9-year-old Elizabeth was found murdered near her St. Martins home.

Photo by News Tribune

Confidentiality of patient records may have doomed Patricia Preiss' wrongful death lawsuit.

Preiss filed her nine-page lawsuit Oct. 18, 2012, three days short of the third anniversary of her daughter's Oct. 21, 2009, murder.

Elizabeth Olten was 9 when she was killed.

Neighbor Alyssa Daileen Bustamante was 15 when Olten died, and confessed to the murder Jan. 10, 2012 - just 18 days before her 18th birthday.

Preiss sued Bustamante, Pathways Behavioral Healthcare and two of its employees - Ron Wilson, a counselor who had worked with Bustamante, and Dr. Niger Sultana, a psychiatrist.

Late last week, St. Louis County lawyer Bruce R. Bartlett, representing Preiss, dismissed Pathways, Dr. Sultana and Wilson as defendants.

And Cole County Circuit Judge Jon Beetem filed a docket entry Friday, ordering Preiss' attorneys "to advise status of claim against Defendant Bustamante, having dismissed all others."

Both Thomas B. Snider, a Jefferson City lawyer representing Bustamante, now 20, and Mel Fetter, Pathways's CEO, told the News Tribune they were not able to comment on Beetem's order or details of the case.

The action in Preiss' civil suit came at the same time Cole County Presiding Circuit Judge Patricia Joyce rejected a Bustamante motion to set aside her guilty plea and prison sentences, because her public defender lawyers had counseled her to plead guilty to a second-degree murder charge rather than going to trial on the first-degree charge a Cole County grand jury had issued within two hours of the teen's certification to be tried as an adult.

Her new criminal case attorney, Gary Brotherton of Columbia, had argued that Public Defenders Donald Catlett and Charles Moreland failed to wait, to see if the U.S. Supreme Court would overturn state laws requiring a mandatory life-in-prison-without-parole sentence for a first-degree murder conviction of a teenager who had committed murder.

And, he argued, the public defenders should have taken her case to trial and pressed a jury for a better sentence.

But, Joyce wrote on March 6: "The evidence against (Bustamante) was both strong and aggravating, and this plainly would not favor her at any trial. ... Her attorneys were correct in assessing the strength of the State's case against (her)."

After a two-day sentencing hearing in February 2012, Joyce ordered Bustamante to serve a life term in prison, with a possibility of parole, for the second-degree murder conviction, to be followed by a 30-year sentence for Bustamante's conviction of armed criminal action in the case.

She admitted to strangling, then stabbing, Olten in the woods behind Bustamante's grandparents' home on Route D (Lomo Drive), just south of the St. Martins exit from U.S. 50 West.

Olten's family lived in a rented home at the opposite end of the small group of houses from Bustamante's home, and Olten was friends with Bustamante's younger sister.

In the lawsuit, Preiss accused Pathways and its employees of failing to warn Elizabeth and her family that Bustamante was a threat to Olten's life.

Attorney Matthew P. Diehr, of St. Louis County, wrote in the lawsuit: "Bustamante's violent propensities were well-documented from a young age, including but not limited to a declaration on her "MySpace' page that her hobbies were "cutting; killing people,' a video wherein Bustamante electrocuted (sic) her younger brothers, a picture of Bustamante holding a knife to another girl's throat, and other evidence ..."

Diehr also wrote that Pathways' employees "were aware of the same violent propensities of Bustamante, as well as the specific, identifiable threats to harm Olten (but), despite actual knowledge of the threat Bustamante posed to Olten, none of these defendants took actions to detain Bustamante, none took action to result in her detention, none warned Olten or Preiss of the specific threat on Olten, nor did they take any action that might have prevented Bustamante from harming Olten."

Last July, Diehr complained to Beetem that Pathways had blocked his efforts to get Bustamante's medical records as part of the discovery process.

But Beetem noted that laws and previous court rulings gave Pathways' attorneys little choice but to protect the privacy of Bustamante's records.

"Medical providers are required to assert privilege," Beetem said during a July 10 hearing in open court. "It's not like they are trying to be obstructive."

Beetem said he could consider whether any of that "privilege" - the right to keep medical or legal records confidential - had been waived because of Wilson's testimony during the sentencing hearing.

Court records show Pathways continued to oppose Preiss' efforts to see the records, while at the same time, demanding that Preiss, in the words of a Dec. 31 docket entry, "disclose what facts, documents, and evidence they have or are aware of which indicates that Elizabeth Olten was a readily, identifiable victim."

Beetem ordered Preiss and her attorneys to comply with Pathways' demand and, in that same Dec. 31 docket entry released to the court, "production of any document, not produced and claimed as privileged, which references Elizabeth Olten or other readily identifiable victim. The Court will review that production, determine if the information produced is relevant and then determine if the privilege applies." That information was to be made available to the court, but not the public.

On March 4, Pathways asked Beetem "to Enforce the Court's (previous) Order," and to impose sanctions on Preiss' attorneys for not answering the request.

Although Preiss dropped Pathways, Sultana and Wilson as defendants in the case, that dismissal was "without prejudice" - meaning they still could be sued about the Olten murder, at some point in the future.