Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
10-6924
GLORIA BANKS, GUARDIAN OF INEZ DAVIS : 5776 Catherine Street Harrisburg, PA 17112, Plaintiffs VS. GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE 770 Poplar Church Road Camp Hill, PA 17011 and GGNSC HOLDINGS, LLC 1000 Fianna Way Fort Smith, AR 72919 and GGNSC CAMP HILL WEST SHORE GP, LLC 1000 Fianna Way Fort Smith, AR 72919 and GOLDEN GATE NATIONAL SENIOR CARE, LLC 1000 Fianna Way Fort Smith, AR 72919 and GGNSC EQUITY HOLDINGS, LLC 1000 Fianna Way Fort Smith, AR 72919 and BEVERLY FRY, N.H.A. 770 Poplar Church Road Camp Hill, PA 17011 Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. , 2010 Civil Term r1 l c., • ?4F M 0 --i iv w...? --yt --? C:) -n Fri NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILLING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PEOPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 afiNk S?? 1? . cJD GLORIA BANKS, GUARDIAN OF INEZ DAVIS : 5776 Catherine Street Harrisburg, PA 17112, Plaintiffs VS. GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE 770 Poplar Church Road Camp Hill, PA 17011 and GGNSC HOLDINGS, LLC 1000 Fianna Way Fort Smith, AR 72919 and GGNSC CAMP HILL WEST SHORE GP, LLC 1000 Fianna Way Fort Smith, AR 72919 and GOLDEN GATE NATIONAL SENIOR CARE, LLC 1000 Fianna Way Fort Smith, AR 72919 and GGNSC EQUITY HOLDINGS, LLC 1000 Fianna Way Fort Smith, AR 72919 and BEVERLY FRY, N.H.A. 770 Poplar Church Road Camp Hill, PA 17011 Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Case No. Civil Term Civil Action PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in the above case Writ of Summons shall be issued and forwarded to Attorney/Sheriff. Please Circle choice //?? ignature of Atto ey Date: V L10 Print Name: T. Norris Es uire Address: 400 Market Street. Suite 1250 Philadelphia, PA 19106 Telephone No.: 215-972-0811 Supreme Court ID No.: 207566 .......... WRIT OF SUMMONS TO: DEFENDANTS, GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE; GGNSC HOLDINGS, LLC; GGNSC CAMP HILL WEST SHORE GP, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC and GGNSC EQUITY HOLDINGS LLC YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMEN ED AN ACT410N AG kiI iST YOU. Prothono /Clerk ivision Late.:. 4 b Depu By: Ian T. Norris, Esquire THIS IS NOT AN ARBITRATION CASE; Identification No.: 207566 AN ASSESSMENT OF DAMAGES IS WILKES & McHUGH, P.A. REQUIRED; JURY TRIAL DEMANDED 400 Market Street, Suite 1250 Philadelphia, PA 19106 Attorney for Plaintiff, Gloria Banks, Tel No.: (215) 972-0811 Guardian of Inez Davis Email: inorrisna,wilkesmchu h com GLORIA BANKS, GUARDIAN OF INEZ DAVIS : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA 9? O VS. NO. 10-6924 ? T d GGNSC CAMP HILL WEST SHORE, LP d/b/a Civil Term GOLDEN LIVING CENTER - WEST SHORE, GGNSC HOLDINGS, LLC, GGNSC CAMP HILL WEST SHORE GP, LLC; O GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC EQUITY HOLDINGS, LLC; and BEVERLY FRY, N.H.A. (A Defendants. b PLAINTIFF'S PRE-COMPLAINT REQUEST FOR PRODUCTION (SET I) PROPOUNDED UPON DEFENDANT - GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE Plaintiff propounds the following Requests for Production of Documents (Set I) upon Defendant, GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore, to be answered under oath and in the time and manner prescribed by the Pennsylvania Rules of Civil Procedure as follows: DEFINITIONS 1. "You or Your. " The terms "You" and "Your," as well as a party's full or abbreviated name or pronoun referring to a party, mean the party and, where applicable, its officers, directors, employees, partners, corporate parent, subsidiaries, affiliates, or any other individual or entity presently or formally acting on the party's behalf. 2. "Person. " The term "person" is defined as any natural person or business, legal or governmental entity or association. 3. "Identify " (with respect to persons). When referring to a person, "to identify" means to give, to the extent known, the (1) person's full name, (2) present or last known address, (3) present or last known telephone number, and (4) when referring to a natural person, additionally, the present or last known place of employment. 4. "Identify " (with respect to documents). When referring to documents, "to identify" means to give, to the extent known, the (a) type of document; (b) general subject matter; (c) date of the document; and (d) author(s), addressee(s), and recipient(s). 5. "Document. " The term "document" is used in its broadest sense, and includes, without limitation, writings, books, papers, minutes, notes, drafts, drawings, graphs, reviews, evaluations, charts, schedules, logs, photographs, correspondence, records, letters, memoranda, reports, sheets, computer records, e-mails, and other data compilations in any form or tangible items from which information can be obtained or translated into reasonable useable form. 6. "Facility. " For purposes of these Requests for Production, "facility" is defined as GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore located at 770 Poplar Church Road, Camp Hill, PA 17011. 7. "Resident. " For purposes of these Interrogatories "resident" is defined as Inez Davis. 8. "Residency. " For purposes of these Interrogatories, "residency" is defined as the period during which time Inez Davis was a resident of GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore located at 770 Poplar Church Road, Camp Hill, PA 17011 from 12/2/05 through the present. INSTRUCTIONS If you object to fully answering an interrogatory and/or identifying and/or producing a document because of a privilege, you must nevertheless provide the following information pursuant to the Pennsylvania Rules of Civil Procedure, unless divulging the information would disclose the privileged information (i) the nature of the privilege claimed (including work product); (ii) if the privilege is being asserted in connection with a claim or defense governed by law, the privilege rule(s) being invoked; (iii) the date of the document or oral communication; (iv) if a document: its type (correspondence, memorandum, facsimile etc.), custodian, location, and such other information sufficient to identify the document for a subpoena duces tecum or a document request, including, where appropriate, the author, the addressee and, if not apparent, the relationship between the author and addressee; (v) if an oral communication, the place where it was made, the names of the persons present while it was made and, if not apparent, the relationship of the persons present to the declarant; and (vi) the general subject matter of the document. When identifying an individual, corporation or other entity, you shall set forth the name, present or last known address and telephone number and, if a corporation or other entity, its principal place of business, or if an individual, his or her title or titles and by whom employed. A , When identifying a document, you shall set forth the author or originator, addressee(s), date, title, and subject matter of the document and the present custodian of the original thereof or, if unknown, the present custodian of any copy thereof and the last known address of each such custodian. In answering and responding to the following requests for production of documents, please redact the names of any resident other than the Resident. REQUEST FOR PRODUCTION REQUEST TO PRODUCE NO 1 • Please produce a Bates-stamped black and white full and complete copy of the original chart for the resident at the facility for the entire residency. Dated: ?/ C GLORIA BANKS, GUARDIAN OF INEZ DAVIS VS. Plaintiffs GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE; GGNSC HOLDINGS, LLC; GGNSC CAMP HILL WEST SHORE GP, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC EQUITY HOLDINGS, LLC and . BEVERLY FRY, N.H.A. Defendants. AFFIDAVIT OF SERVICE TO THE PROTHONOTARY/CLERK OF SAID COURT: I hereby certify the following: ti.. M UZ) I served Defendant, GGNSC Holdings, LLC, 1000 Fianna Way, Fort Smith, AR 72919 with a Writ of Summons filed on October 29, 2010 with the Cumberland County Court of Common Pleas, in accordance with Pa.R.C.P. 404(2) via United States Postal Service, Certified Mail, Return Receipt Requested No. 7008 1140 0002 9956 7715, which was mailed on November 1, 2010 and received by Defendant, GGNSC Holdings, LLC as evidenced by a copy of the Return Receipt Card attached hereto as Exhibit "A". I served Defendant, GGNSC Camp Hill West Shore GP, LLC, 1000 Fianna Way, Fort Smith, AR 72919 with a Writ of Summons filed on October 29, 2010 with the Cumberland County Court of Common Pleas, in accordance with Pa.R.C.P. 404(2) via United States Postal Service, Certified Mail, Return Receipt Requested No. 7008 1140 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Civil Action No. 10.6924 0002 9956 7722, which was mailed on November 1, 2010 and received by Defendant, GGNSC Camp Hill West Shore, GP, LLC as evidenced by a copy of the Return Receipt Card attached hereto as Exhibit "B". I served Defendant, Golden Gate National Senior Care, LLC, 1000 Fianna Way, Fort Smith, AR 72919 with a Writ of Summons filed on October 29, 2010 with the Cumberland County Court of Common Pleas, in accordance with Pa.R.C.P. 404(2) via United States Postal Service, Certified Mail, Return Receipt Requested No. 7008 1140 0002 9956 7739, which was mailed on November 1, 2010 and received by Defendant, Golden Gate National Senior Care, LLC as evidenced by a copy of the Return Receipt Card attached hereto as Exhibit "C". I served Defendant, GGNSC Equity Holdings, LLC, 1000 Fianna Way, Fort Smith, AR 72919 with a Writ of Summons filed on October 29, 2010 with the Cumberland County Court of Common Pleas, in accordance with Pa.R.C.P. 404(2) via United States Postal Service, Certified Mail, Return Receipt Requested No. 7008 1140 0002 9956 7746, which was mailed on November 1, 2010 and received by Defendant, GGNSC Equity Holdings, LLC as evidenced by a copy of the Return Receipt Card attached hereto as Exhibit "D". Dated: j / )/I An Wilkes & McHugh, P.A. i'an T. Nom squire 400 Mark Street, Suite 1250 Philadelp 'a, PA 19106 Telephone No.: 215-972-0811 Supreme Court ID No.: 207566 Attorney for Plaintiff Ccmpl W Rom 1, 2, and 3. Also comPlete item 4 M PMUM d DslKWY is ? reverse ¦ print your name and address so that we can return the card to you. ¦ Attach is card to the bjm* of the maHplece, or on front If space permits. 1. Article... to: t ooo FiAMNA WAS I ?T SNl ccl?,,??.. 72-91 2. AWS Number I (llsrdhr aom aerwc. NbeQ PS Fern 3811, F*mWy 2004 A. SW Wa _ D Agent X _Addre 8.1,P p4' ( /yarra)?„ C. ? of D. Is delivery eddrsee dNfenentrtl Warn W If YES, enter delivery audwr rbebw: ? I?a J J'.' 4 2010 3. Tpe t? Mail D Express and pegistered D Retum Receipt for Memfiandiae D Insured Mail D C.O.D. 4. Restricted Delhreryt Pit Fee) Cl Yes 7008 1140 0002 9956 7715 Domeatio Ratum Reoeipt 1025e5-02'M-1540 EXHIBIT "A" ¦ Comp 2, and 3. Also compWe R 4 It Fl y deshW. ¦ Print your name and address on the reverse so that we can feum the card to you. ¦ Attach this card to the back of the mallpiece, or on the front 0 space permits. 1. Article Addressed to: W E4-t" 5 +ii0kE G e' LLC Jooo FIAtAq WAY I A .:M A. O aaft 4Li? ? Addressee B. IM(Tr? C. of ivory D. is delivery address dnmft /rono Ipgl ??T'?`` f Q,?q\ If YES, erder delivery adc" below: D A 2010] 3. Service lype ?.CertlflsdMail 06?r si?is?l:;_??' 0 Registered 0 Ream Receipt for MwdwWi®e 0 hmxed mail 0 C.O.D. a. Reetricted DeAveryt M*v Fee) D Yes 2. ArticleNurrrbw 7008 1140 0002 9956 7722 (nerrslar hom tservlce label) j ps Fomu 3811, February 2004 Domestic Retum Receipt ,025e5-02-W1640 EXHIBIT "B" ¦ ComplaW Rents 1, 2, and 3. Also complete item 4 R Redricted DOW" is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: GOL'bew G.ig f4 V WA"L SAN, o2 CAVt c; (ILC 1000 fIANNA WP-'e 15; CT-sMf"T 4 , A2_ q A ? Agent X r` ? Addressee 'J?-kj `VIII B177 T D. is delivery address different imtT, Yes If YES, enter delivery a"' -below: d NR 00. 3. lype OertlNed MaN ? ExP??-=.. RVistered ? Return Receipt for Merchandlae ? Insured man ? C.O.D. 4. Restricted DeNvsry! (Extra Fee) ? Yea 2. Article tthxrdW 7008 114 0 0002 9956 7739 (ilanslier horn service tabe9 i Ps Form 3811, FeNwe y 2004 Domestic Return Receipt 102 4A-1540 EXHIBIT "C" ¦ Complete items 1, 2, and & Also complete item 4 M Restricted Dellmy is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mallpieae, or on the front N space permits. 1. Article Addressed to: 15Y TTQ 1000 FlAtifiA WAY t f S m rtitA,A L 7019 I A. SI r>d --`?-I. ? Agent ? Addressee 8. nlmt?e) C. of Wfivery S . ? D. Is delivery addrm di8arant 17 If YES, order delivery addra5rs tx?low: C) No - ?iJ V 3. ype - ?:.. ?-- M"C A Tfled man C3 Express man ? Registered 0 Retum Receipt for else 0 insured Mall ? C.O.D. f 4. Re*ICtsd DeAveryR P ft Fee, ? Yea 2. ArUde Number 7008 1140 0002 9956 7746 j (/larrel6?fi'arn eatalce labeQ PS ;;,m 3!!1 a , Febnwy 2004 Domestic Ftadan Receipt 1 1540 EXHIBIT "D" z , r, r SHERIFF'S OFFICE OF CUMBERLAND COUNTI6? C5 G; rn ?? 4 0?1 Ronny R Anderson 1 C?: - Sheriff ??tittr o1 Iumb, _? - Jody S Smith cr3 C) Chief Deputy ' ' rv Richard W Stewart Solicitor Gloria Banks Case Number vs. GGNSC Camp Hill West Shore, LP (et al.) 2010-6924 SHERIFF'S RETURN OF SERVICE 11/19/2010 03:48 PM - Ryan Burgett, Deputy Sheriff, who being duly sworn according to law, states that on November 19, 2010 at 1548 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Beverly Fry, NHA, by making known unto herself personally, at 770 Poplar Church Road, Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to her personally the said true and correct copy of the same. RYAN BURGETT, DEPUTY 11/23/2010 03:48 PM - Ryan Burgett, Deputy Sheriff, who being duly sworn according to law, states that on November 19, 2010 at 1548 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center-West Shore, by making known unto Beverly Fry, Executive Administrator for GGNSC Camp Hill West Shore, LP at 770 Poplar Church Road, Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to her personally the said true and correct copy of the same. RYAN BURGET TY SHERIFF COST: $57.50 November 23, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF ? o _ ic) COUITYSuite SFerfP, Te!easoft, i?,o. GLORIA BANKS, GUARDIAN OF INEZ DAVIS Plaintiffs VS. GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE and GGNSC HOLDINGS, LLC and GGNSC CAMP HILL WEST SHORE GP, LLC and GOLDEN GATE NATIONAL SENIOR CARE, LLC and GGNSC EQUITY HOLDINGS, LLC and BEVERLY FRY, N.H.A. Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA C - Civil Action 10-6924 co ? . AFFIDAVIT OF SERVICE TO THE PROTHONOTARY/CLERK OF SAID COURT: I served Defendant, GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore with a Writ of Summons filed on October 29, 2010 with the Cumberland County Court of Common Pleas, in accordance with Pa.R.C.P. 404(2) via the Sheriff of Cumberland County, which was served on November 23, 2010 as evidenced by a copy of the Sheriff's Return of Service Return attached hereto as Exhibit "A", I served Defendant, Beverly Fry, NHA, with a Writ of Summons filed on October 29, 2010 with the Cumberland County Court of Common Pleas, in accordance with Pa.R.C.P. 404(2) via the Sheriff of Cumberland County, which was served on November 19, 2010 as evidenced by a copy of the Sheriff's Return of Service Return attached hereto as Exhibit "A". Wilkes & McHugh, P.A. Dated: Z?;V;b 0 Ian i. NorrY,tPA squire 400 Market et, Suite 1250 Philadelphi 19106 Telephone No.: 215-972-0811 Supreme Court ID No.: 207566 Attorney for Plaintiff SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff pCF at ?uabetj Jody S Smith Chief Deputy Ahb ?a? ,- Richard W Stewart " Solicitor OFFICE OF THE SKERIFF Gloria Banks VS. Case Number GGNSC Camp Hill West Shore, LP (et al.) 2010-6924 SHERIFF'S RETURN OF SERVICE 11/19/2010 03:48 PM -Ryan Burgett, Deputy Sheriff, who being duly swom according to law, states that on November 19, 2010 at 1548 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Beverly Fry, NHA, by making known unto herself personally, at 770 Poplar Church Road, Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to her personally the said true and correct copy of the same. RYAN BURGETT, DEPUTY 11/23/2010 03:48 PM - Ryan Burgett, Deputy Sheriff, who being duly sworn according to law, states that on November 19, 2010 at 1548 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center-West Shore, by making known unto Beverly Fry, Executive Administrator for GGNSC Camp Hill West Shore, LP at 770 Poplar Church Road, Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to her personally the said true and correct copy of the same. RYAN BURGETT,-DMRJTY SHERIFF COST: $57.50 SO ANSWERS, 4 z X. a? November 23, 2010 RON R ANDERSON, SHERIFF EXHIBIT "A" Ic) Co nlySuite Snenft. Teleosofl. Inc. WILKES & McHUGH, P.A. By: I,Ian T. Norris, Esquire Suprome Court ID No.: 207566 400 arket Street, Suite 1250 Philadelphia, PA 19106 Tele hone No.: 215-972-0811 Fax o.: 215-972-0580 ema'l: inorriskwilkesmchu h.com LIA BANKS, GUARDIAN OF DAVIS Plaintiffs Vs. GG SC CAMP HILL WEST SHORE, LP d/b/a : GOL EN LIVING CENTER - WEST SHORE, : GG SC HOLDINGS, LLC; GG SC CAMP HILL WEST SHORE GP, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC; : GG SC EQUITY HOLDINGS, LLC and BEVERLY FRY, N.H.A. Defendants. f t J 2011 APR 26 PSI 2: 125 CUMBERLAND CUUN J PENNSYLVANIA Attorney for Plaintiff, Gloria Banks, Guardian of Inez Davis COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 10-6924 NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAY AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPE RANCE PERSONALLY OR BY AN ATTORNEY AND FILLING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTI E FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELI F REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGH S IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAV A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORT BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 - 717-249-3166 1 M D WILKES & McHUGH, P.A. By' Ian T. Norris, Esquire Supreme Court ID No.: 207566 40 Market Street, Suite 1250 Phi adelphia, PA 19106 Telephone No.: 215-972-0811 F No.: 215-972-0580 em il: inorrisAwilkesmchu h com GLORIA BANKS, GUARDIAN OF INE DAVIS Plaintiffs VS. GG SC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE, GG SC HOLDINGS, LLC; , GG SC CAMP HILL WEST SHORE GP, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC; : GG SC EQUITY HOLDINGS, LLC and BEVERLY FRY, N.H.A. Defendants. Attorney for Plaintiff, Gloria Banks, Guardian of Inez Davis COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 10-6924 I COMPLAINT IN CIVIL ACTION (Medical Professional Liability Action) i Plaintiff, Gloria Banks, by and through her counsel, Wilkes & McHugh, P.A., file the v ithin Complaint in Civil Action as follows: I. PARTIES I 1. Inez Davis was an adult individual and resident at Golden Living Center - Westl Shore (hereinafter referred to as "the Facility"), a nursing home, located at 770 Poplar Church Road, Camp Hill, Pennsylvania 17011, from December 2, 2006 through the P?esent time. 2. Gloria Banks is the daughter of Inez Davis and an adult individual and ize of the Commonwealth of Pennsylvania, residing at 5776 Catherine Street, 2 Harrisburg, Pennsylvania 17112. 3. Gloria Banks was appointed guardian Inez Davis on April 12, 2007 by the Honorable Wesley Oler, Jr., in the Court of Common Pleas of Cumberland County. 4. Defendant, GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore, is a partnership, duly licensed, organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania, with offices and a place of business located at 770 Poplar Church Road, Camp Hill, Pennsylvania 17011. 5. Defendant, GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore, is engaged in the business of owning, operating and/or managing homes, including Golden Living Center - West Shore (hereinafter "the Facility"), ng healthcare, medical services, nursing care, assisted living/personal care to the in Camp Hill, Cumberland County, Pennsylvania, and, was at all times material duly licensed to operate same in the Commonwealth of Pennsylvania, and was the er, supervisor and/or partner of all other Defendants, noted herein, holding itself and its agents, employees, servants, contractors, subcontractors, staff and/or partners, and persons granted privileges at the Facility, out to the public as competent and skillful long-#erm healthcare providers and practitioners of medicine and which is personally and vicariously liable, among other things for the acts and omissions of themselves, their employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care of Inez Davis. 6. Defendant, GGNSC Holdings, LLC, is a foreign corporation, with offices and a lace of business located at 1000 Fianna Way, Forth Smith, Arkansas, 72919. 3 7. Defendant, GGNSC Holdings, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including the Facility, providing healthcare, medical services, nursing care, assisted living/personal care to the public in Camp Hill, Cumberland County, Pennsylvania, and, was at all times material hereto, duly 3ed to operate same in the Commonwealth of Pennsylvania, and was the employer, visor and/or partner of all other Defendants, noted herein, holding itself and its s, employees, servants, contractors, subcontractors, staff and/or partners, and those ns granted privileges at the Facility, out to the public as competent and skillful long- healthcare providers and practitioners of medicine and which is personally and ously liable, among other things for the acts and omissions of themselves, their s, employees, servants, contractors, subcontractors, staff and/or partners and all Defendants, all of whom played a role in the care of Inez Davis. 8. Defendant, GGNSC Camp Hill West Shore GP, LLC, is a foreign ration, with offices and a place of business located at 1000 Fianna Way, Forth , Arkansas, 72919. 9. Defendant, GGNSC Camp Hill West Shore GP, LLC, is engaged in the busi ess of owning, operating and/or managing nursing homes, including the Facility, prov?ding healthcare, medical services, nursing care, assisted living/personal care to the publ?c in Camp Hill, Cumberland County, Pennsylvania, and, was at all times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania, and was the empl?yer, supervisor and/or partner of all other Defendants, noted herein, holding itself and i?s agents, employees, servants, contractors, subcontractors, staff and/or partners, and those persons granted privileges at the Facility, out to the public as competent and skillful 4 long-term healthcare providers and practitioners of medicine and which is personally and vicariously liable, among other things for the acts and omissions of themselves, their employees, servants, contractors, subcontractors, staff and/or partners and all Defendants, all of whom played a role in the care of Inez Davis. 10. Defendant, Golden Gate National Senior Care, LLC, is a foreign with offices and a place of business located at 1000 Fianna Way, Forth Arkansas, 72919. 11. Defendant, Golden Gate National Senior Care, LLC, is engaged in the of owning, operating and/or managing nursing homes, including the Facility, iding healthcare, medical services, nursing care, assisted living/personal care to the in Camp Hill, Cumberland County, Pennsylvania, and, was at all times material duly licensed to operate same in the Commonwealth of Pennsylvania, and was the , supervisor and/or partner of all other Defendants, noted herein, holding itself and ?ts agents, employees, servants, contractors, subcontractors, staff and/or partners, and persons granted privileges at the Facility, out to the public as competent and skillful healthcare providers and practitioners of medicine and which is personally and y liable, among other things for the acts and omissions of themselves, their employees, servants, contractors, subcontractors, staff and/or partners and all Defendants, all of whom played a role in the care of Inez Davis. 12. Defendant, GGNSC Equity Holdings, LLC, is a foreign corporation, with offices and a place of business located at 1000 Fianna Way, Forth Smith, Arkansas, 7291 5 13. Defendant, GGNSC Equity Holdings, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including the Facility, providing , medical services, nursing care, assisted living/personal care to the public in Hill, Cumberland County, Pennsylvania, and, was at all times material hereto, duly i to operate same in the Commonwealth of Pennsylvania, and was the employer, 3or and/or partner of all other Defendants, noted herein, holding itself and its employees, servants, contractors, subcontractors, staff and/or partners, and those granted privileges at the Facility, out to the public as competent and skillful long- healthcare providers and practitioners of medicine and which is personally and icariously liable, among other things for the acts and omissions of themselves, their employees, servants, contractors, subcontractors, staff and/or partners and all Defendants, all of whom played a role in the care of Inez Davis. 14. Defendant, Beverly Fry, N.H.A., is an individual, who was at all times ial hereto, employed by the foregoing Defendants as the Nursing Home inistrator at the Facility, and upon information and belief, served as a member of the Facil?ty's Governing Body. Upon information and belief, Defendant Fry is a resident of the Commonwealth of Pennsylvania, with a residence at 174 Silver Creek Road, Port Trevorton, Pennsylvania, 17864-9631. 15. Defendant, Beverly Fry, is directly and vicariously liable for, among other , the acts and omissions of her agents, employees, servants, contractors, and staff, all of whom played a role in the care of Inez Davis. 16. Upon present information and belief, at all times material hereto, the collectively owned, operated, licensed and/or managed the Facility, and are 6 collectively engaged in the business of providing nursing care and assisted living/personal care services to the general public akin to a hospital. H. JURISDICTION AND VENUE 17. Jurisdiction and venue are proper in this Honorable Court insofar as regularly conduct business in Cumberland County, Pennsylvania, and/or the of action arose therein. See Pa.R.C.P. 1006 and 2179. III. FACTUAL BACKGROUND A. Conduct of the Defendants 18. On December 2, 2006, Inez Davis was admitted to the care of the Facility she remains as a resident. 19. During the course of her residency, Inez Davis was incapable of providing for all of her daily care and personal needs without reliable assiItance. In exchange for monies, she was admitted to Defendants' Facility to obtain care and protection 20. The Defendants, through advertising, promotional materials and ion sheets, held out themselves and the Facility, as being able to provide skilled care to sick, elderly and frail individuals, including Inez Davis. 21. At all times material hereto, the Defendants held themselves out as lile of providing skilled nursing care and total healthcare, akin to a hospital, and red responsibility for Inez Davis' total healthcare, including care planning and the i ion of medication, medical care and treatment, therapy, nutrition, hydration, e and all activities of daily living. 7 22. At the time of her admission, the Defendants, individually and/or through their agents, employees, servants, contractors, subcontractors, staff and representatives, assessed the needs of Inez Davis and promised that they would adequately care for her ne?ds. 23. The Defendants exercised complete and total control over the healthcare, aki? to a hospital, of all residents of the Facility such as Inez Davis. 24. Upon information and belief, at all times material hereto, the Defendants a vertically integrated corporation that was controlled by the same board of >rs, who were responsible for the operation, planning, management and quality l of the Facility. 25. At all times material hereto, the control exercised over the Facility by the included, inter alia: budgeting, marketing, human resource management, ining, staffing, and the creation and implementation of all policy and procedure s used by the Facility. 26. The Defendants also exercised control over reimbursement, quality care and compliance, licensure, certification, and all financial, tax and accounting issue through control of the fiscal policies of the Facility. 27. The Defendants, by and through their board of directors and corporate , utilized survey results and quality indicators to monitor the care being provided at the?r nursing homes, including the Facility. 28. The Defendants exercised ultimate authority over all budgets and had final over the allocation of resources to their nursing homes, including the Facility. 8 29. As a part of their duties and responsibilities, the Defendants have an obligation to establish policies and procedures that address the needs of the residents of the Facility, such as Inez Davis, with respect to the recognition and/or treatment of ical conditions, such as those experienced by Inez Davis, so as to ensure that timely appropriate care will be provided for such conditions whether within the Facility, or obt?ined from other medical providers. 30. The Defendants, acting through their administrators, various boards, es, and individuals, are responsible for the standard of professional practice by of their staff at the Facility, and to oversee their conduct in the matters set forth n. 31. The Defendants have an obligation to employ competent, qualified staff so as to ensure that proper treatment is rendered to individuals having medical problems, as those presented by Inez Davis as set forth herein. 32. As a part of their duties and responsibilities, the Defendants have an obligation to maintain and manage the Facility with adequate staff and sufficient to ensure the timely recognition and appropriate treatment of medical conditions suffered by residents, such as Inez Davis, whether within the Facility, or from other medical care providers. 33. At all times material hereto, the Defendants made a conscious decision to and/or manage the Facility so as to maximize profits at the expense of the care to be provided to its residents, including Inez Davis. 9 34. In their efforts to maximize profits, the Defendants negligently, intentionally and/or recklessly mismanaged and/or reduced staffing levels below the level to provide adequate care to residents, which demonstrates a failure to comply the applicable regulations and standards for nursing homes. 35. The Defendants recklessly and/or negligently disregarded the of their actions, and/or negligently caused staffing levels at the Facility to be $et at a level such that the personnel on duty at any given time could not reasonably to the needs of their assigned residents, including Inez Davis. 36. Over the past several years, and at all times material hereto, the have intentionally increased the number of sick, elderly and frail residents greater health problems requiring more complex medical care. 37. The Defendants knew that this increase in the acuity care levels of the population would substantially increase the need for staff, services, and supplies for the new resident population. 38. The Defendants knew, or should have known, that the acuity needs of the in their nursing homes increased and, therefore, the resources necessary including raising the amount of staffing required to meet the needs of the 39. The Defendants failed to provide resources necessary, including sufficient staff, tmeet the needs of the residents, including Inez Davis. 40. The Defendants knowingly established staffing levels that created reckl ssly high resident to staff ratios, including high resident to nurse ratios. 10 41. The Defendants knowingly disregarded patient acuity levels while making staffing decisions; and, also knowingly disregarded the minimum time required by the to perform essential day-to-day functions and treatments. 42. The acts and omissions of the Defendants were motivated by a desire to inc?ease the profitability of the nursing homes, including the Facility, by knowingly, rec? lessly, and with total disregard for the health and safety of the residents, reducing expenditures for needed staffing, training, supervision, and care to levels that would inevitably lead to severe injuries, such as those suffered by Inez Davis. 43. The actions of the Defendants were designed to increase reimbursements by governmental programs, which, upon information and belief, are the primary source of for the Facility. 44. The aforementioned acts directly caused injury to Inez Davis and were by the Defendants. 45. During the residency of Inez Davis at the Facility at all times material 1?01 the Defendants knowingly sacrificed the quality of care received by all residents, 4ng Inez Davis, by failing to manage, care, monitor, document, chart, prevent , rose and/or treat the injuries and illnesses suffered by Inez Davis, as described i?, which included numerous falls, including a fall resulting in a fractured C2 ; ra; contractures; medication errors; and severe pain. 46. At the time and place of the incidents hereinafter described, the Facility -upon the incidents occurred was individually, collectively, and/or through a joint owned, possessed, controlled, managed, operated and maintained under the exclusive control of the Defendants. 47. At all times material hereto, the Defendants were operating personally or h their agents, servants, workers, employees, contractors, subcontractors, staff, principals, who acted with actual, apparent and/or ostensible authority, and all of were acting within the course and scope of their employment and under the direct exclusive control of the Defendants herein. 48. The aforementioned incidents were caused solely and exclusively by of the negligence, carelessness and recklessness of the Defendants, their agents, contractors, subcontractors, staff and/or employees and was due in no part to any Tact or omission to act on the part of Inez Davis. 49. Inez Davis a was a resident of the Facility on or about December 6, 2006, the present time, when, during all times material hereto, a continuing course of by Defendants' actions and/or lack of actions, which included mismanagement, and lack of training, were the cause of serious events involving Inez Davis and her serious and permanent injuries and damages hereinafter alleged by Plaintiff, Gloria Banks, that occurred at the Facility. 50. The Defendants, their agents, servants, contractors, subcontractors, staff employees are/were, at all times material hereto, licensed professionals/ corporations and/or businesses and the Plaintiff, Gloria Banks, are asserting liability claims against all of the Defendants, their agents, servants, subcontractors, staff and/or employees, in addition to claims sounding in negligence. 12 B. Injuries of Inez Davis 51. At the time of her admission to the care of the Facility on December 2, 2006, Inez Davis had a past medical history of HTN, Alzheimer's Disease, CVA, gastrointestinal disease, hyperlipidemia, and psychosis. 52. Upon admission to the Facility, Inez Davis was dependent upon the staff for her mental, physical and medical needs, requiring total assistance with activities of living, and had various illnesses and conditions that required evaluation and 53. Inez Davis was at risk for future illnesses and injuries, including but not to falls and contractures. 54. Over the course of the residency of Inez Davis at the Facility at all times hereto, Defendants engaged in a pattern of care replete with harmful and injurious commissions, omissions and neglect as described herein. 55. The Defendants deprived Inez Davis of adequate care, treatment, food, and medicine and caused her to suffer numerous illnesses and injuries, which upon and belief, included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain. 56. The severity of the recurrent negligence inflicted upon Inez Davis while in the care of the Defendants during her residency at the Facility at all times material hereto, accel? rated the deterioration of her health and physical condition, and resulted in physical and emotional injuries that caused her severe pain, suffering and mental anguish, together with unnecessary hospitalizations. 13 57. These injuries, as well as the conduct specified herein, caused Inez Davis to §uffer a loss of personal dignity, together with degradation, anguish and emotional 58. On December 2, 2006, Inez Davis came to the Facility to receive long care. 59. At the time of her admission and through out her residency, Inez Davis cognitively impaired and confused to time and place. She required cueing, and constant supervision for safety. 60. A care plan dated December 15, 2006, noted that Inez Davis was at an incr?ased risk for falls related to her wandering behavior and crawling on the floor. 61. However, thought out the remainder of her residency, the Facility failed to complete fall risk assessments for Inez Davis, even though other were done on a quarterly basis, she was on numerous medications that incr?ased her risk of falls, and she did indeed fall on numerous occasions. Inez daily. 62. On January 8, 2009, nursing notes indicated that despite her wandering, ivis had pitting edema to her lower extremities and was taking 40mg of Lasix 63. On January 9, 2009, Inez Davis fell while in the bathroom at 4:25 a.m. 64. The records from the Facility indicate that the Facility failed to document the fall when it actually occurred and backdated nurses notes and a change in condition to reflect that the fall was documented in a timely manner. 14 65. The nurse note, dated January 9, 2009 at 4:25 a.m., indicated that Inez Davis was "found on floor in bathroom, [with] head injury." This note was entered after a npte dated January 9, 2009, at 8:36 p.m., which described Inez Davis as being unsteady I walking but x-rays of her skull and spine were negative. 66. Also, there was a handwritten note at the bottom of this page of nurse s by the nursing supervisor regarding Inez Davis' status. In addition, there was a en order for x-rays that was not timed, however, x-ray reports could not be found in Davis' records. 67. However, it was not noted anywhere in these notes that Inez Davis' doctor or family were notified of this fall. 68. The change in condition report, dated January 9, 2009, at 4:40 a.m., ;d that Inez Davis was found on the floor with "no apparent injuries." The report stated that Ms. Davis complained of a headache but a few minutes later said it did not hurt, and she refused Tylenol. 69. The change in condition report also did not indicate that a doctor or Inez Davis' family was notified. 70. On January 10, 2009, at 1:39 p.m., Inez Davis was noted to have a stiff neck and complained of pain. 71. On January 11, 2009, at 3:14 p.m., Inez Davis's right eye pupil was noted to be pinpoint and non-responsive. She complained of head pain. 72. A doctor was notified, and Inez Davis was sent to Holy Spirit Hospital room, approximately 58 hours after she fell in the bathroom. 15 73. At Holy Spirit Hospital, it was determined that Inez Davis had a fractured neck and was transferred to Hershey Medical Center for further intervention. 74. A CT scan at Hershey Medical Center revealed bilateral C2 pedicle fra?tures consistent with a hangman's fracture involving the axis. She was provided with a n4k brace and given pain medication. 75. Inez Davis returned to the Facility on January 12, 2009. Prior to her fall). of a pharmacy consulted completed a medication review on January 10 (after the 76. The medication review indicated that Inez Davis' blood pressure was ed to be checked twice daily prior to the administration of the medication Prinivil; er blood pressure readings were not documented in Ms. Davis' medication stration record ("MAR"). A decrease in blood pressure increases Ms. Davis' risk 77. The review noted that the medication Aricept can cause dizziness and gait, further increasing the risk of falls. It was recommended that this be given before bedtime to reduce the fall risk, however the Facility the was to administer it in the morning. 78. The review further noted that the medication Risperdal further increases of falls. Lastly the review recommended that the medication Zoloft be given bedtime rather than in the morning to reduce the risk of falls. It is not clear if this 16 79. Upon Inez Davis' readmission to the Facility there were orders for h er chair and bed alarm batteries to be replaced every month. However, it was noted in her vities of Daily Living ("ADL") flow record that no batteries were available in the Facility on January 15, 2009, and December 16, 2009. Also, batteries were not replaced on February 15, 2010. 80. At some point between February 17, 2009, and March 15, 2009, physical py noted that Inez Davis was ambulating and fell. It was suspected she sprained her ankle. An exact date is impossible to pin point as there are no nurses notes for this period. 81. On June 26, 2009, Inez Davis fell yet again, this time falling off a chair in the dining room. 82. On September 13, 2009, Inez Davis was sent to Holy Spirit Hospital for an episode. There are no documents from the Facility regarding this incident. 83. The history and physical from Holy Spirit Hospital indicated that a similar occurred in January of 2009 (when Inez Davis fell in the bathroom) resulting in a ,d neck. 84. On December 2, 2009, occupational therapy noted a decrease in range of in Inez Davis' wrist and fingers. Occupational therapy suggested further ver education to establish proper restorative training. 85. On December 3, 2009, it was noted that Inez Davis continues to set of bed in bed and requires close supervision by staff. Her gait was poor, and she required handtheld assist of one when ambulating. 17 86. On December 8, 2009, nursing notes indicate that Inez Davis was able to verbalize needs, but now required the assist of 2 for transfers. Her gait was noted as slow and unsteady at times. 87. On December 10, 2009, Inez Davis suffered another fall. 88. On February 1, 2010, occupational therapy noted that Inez Davis' left hand contracted and she was combative and resistant to gentle range of motion exercises. was noted. 89. On February 17, 2010, Inez Davis was noted to be resistant with care at imO and was noted to frequently attempt to get out of her chair. 90. On March 3, 2010, nursing notes indicated that Inez Davis had several red areas to her torso and arms. 91. On March 8, 2010, at 5:50 a.m., staff responded to Inez Davis' chair alarm and found Ms. Davis sitting on the floor. No injuries were noted however Vicodin was on an as needed basis. The pain monitoring sheet from the Facility is blank. 92. The Facility accepted Inez Davis as a resident fully aware of her medical and understood the level of nursing care required to maintain the integrity of her skin in order to preclude her from suffering any further breakdown and to provide food and water to preclude malnutrition and dehydration. 93. Throughout Inez Davis' chart there is missing and incomplete including but not limited to - nurses notes, Activities of Daily Living medication administration records, treatment administration records, and ed medication utilization record. 18 94. The Defendants deprived Inez Davis of adequate and appropriate healthcare as a result of mismanagement, improper/under-budgeting, understaffing of the ity and lack of training of the Facility employees, in that they failed to provide uate and appropriate health care; engaged in incomplete, inconsistent and fraudulent failed to develop an appropriate therapeutic care plan; failed to provide adequate supervision to prevent falls and accidents; and, failed to ensure the highest level of physical, mental and psychosocial functioning was attained. 95. The severity of the recurrent negligence inflicted upon Inez Davis while in the Defendants' care consisted of mismanagement, improper/under-budgeting, und?rstaffing of the Facility and lack of training of the Facility employees, in that they to provide adequate and appropriate health care; engaged in incomplete, and fraudulent documentation; failed to provide adequate supervision to falls and accidents; and, failed to ensure the highest level of physical, mental and ial functioning was attained. 96. As a result of the negligence, carelessness and recklessness of the herein described, Inez Davis was caused to suffer serious and permanent injures as described herein, to, in and about her body and possible aggravation and/or iv?tion of any pre-existing conditions, illnesses, ailments, or diseases she had, and/or the deterioration of her health, physical and mental condition, and more icularly, but without limitations, included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, and other body pain and damage, and anxiety reaction and injury to her nerves and nervous system, some or all lof which were permanent, together with other medical complications. 19 IV. COUNT ONE ria Banks, as Attorney-In-Fact for Inez Davis v. GGNSC Camp Hill West Shore, LP is Golden Living Center - West Shore; GGNSC Holdings, LLC; GGNSC Camp Hill West Shore GP, LLC; Golden Gate National Senior Care, LLC; GGNSC Equity Holdings, LLC; and Beverly Fry, an individual 97. Plaintiffs hereby incorporate by reference the preceding paragraphs as the same were fully set forth at length herein. 98. At all times material hereto, Defendants were acting through their agents, s and employees, who were in turn acting within the course and scope of their ment under the direct supervision and control of the Defendants. 99. At all times material hereto, Defendants had the ultimate responsibility of that the rights of the residents, including Inez Davis, were protected. 100. At all times material hereto, Defendants owed a non-delegable duty to adequate and appropriate custodial care and supervision to Inez Davis and other such as reasonable caregivers would provide under similar circumstances. 101. At all times material hereto, Defendants owed a non-delegable duty to Inez Davis and other residents to hire, train, and supervise employees, so as to deliver and services to residents in a safe and reasonable manner. 102. At all times material hereto, Defendants, by and through their agents, and/or servants owed a duty of care to Inez Davis to exercise the appropriate skill and care of licensed physicians, nurses, directors of nursing, and/or nursing home 20 103. At all times material hereto, Defendants owed a duty and responsibility to furnish Inez Davis with appropriate and competent nursing, medical and/or total 104. Plaintiffs believe, and therefore aver, that the administrator, director of and/or other staff members of the Facility, sent frequent written reports to the detailing the number and types of injuries, illnesses, and infections sustained by Inez Davis and the residents in the Facility. 105. Despite being made aware of the types and frequency of injuries, illnesses, infections, many of which were preventable, sustained by the residents of the ility, including those suffered by Inez Davis, the Defendants failed to take steps to the occurrence of said injuries, illnesses, and/or infections. 106. The Defendants knew, or should have known, of the aforementioned that were occurring with the care of Inez Davis, as they were placed on actual constructive notice of said problems, including through governmental/state 107. The Defendants, as the corporate owners, board members and/or managers of the Facility, breached their duty and were, therefore, negligent, careless and reckless in their obligations to Inez Davis. 108. The corporate conduct of the Defendants was independent of the negligent of the employees of the Facility, and was outrageous, willful, and wanton, and a reckless indifference to the health and well-being of the residents, including Inez Davis. 21 109. At all times material hereto, Defendants owed and failed to fulfill the following duties to Inez Davis: use reasonable care in the maintenance of safe and facilities and equipment; select and retain only competent staff; oversee and all persons who practiced nursing, medical and/or skilled healthcare within the q and ; and, formulate, adopt, and enforce rules, procedures and policies to ensure care and healthcare for all residents. 110. At all times material hereto, the breach of duties, negligence, carelessness recklessness of the Defendants, individually, vicariously and/or acting by and their officers, board members, physicians, physicians' assistants, nurses, certified ' aides and office staff who examined, treated and/or communicated the condition of Inez Davis, and through the administrative personnel responsible for hiring, retaining dismissing staff, staff supervision and policy-making and enforcement, as well as any agents, servants, employees, contractors, subcontractors and/or consultants of the consisted of the following acts and omissions in the care and treatment of Inez a. failure to hire appropriately trained staff who failed to prevent and engaged in incomplete, inconsistent and fraudulent documentation, failed to provide appropriate treatment and services to prevent which included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain and failed to provide adequate assessments of Inez Davis following a change in condition; b. failure to appropriately train staff members who failed to prevent and engaged in incomplete, inconsistent and fraudulent documentation, failed to provide appropriate treatment and services to prevent which included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, and failed to provide adequate assessments of Inez Davis following a change in condition; 22 C. knowingly allowing and/or encouraging unskilled and untrained individuals to care for Inez Davis who failed to prevent and engaged in incomplete, inconsistent and fraudulent documentation, failed to provide appropriate treatment and services to prevent which included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, and failed to provide adequate assessments of Inez Davis following a change in condition; d. failure to prevent and engage in incomplete, inconsistent and/or fraudulent documentation by failing to consistently complete nurses notes, Activities of Daily Living sheets, failing to document administration of medications, failing to document review of drug regime, failing to consistently document Treatment Record, and failing to properly complete Medication Administration Records; e. failure to provide Inez Davis with proper medication and supervision, and allowing her to suffer therefrom as described herein; f. failure to provide adequate pain management; g. failure to ensure that Inez Davis did not develop serious and permanent injuries to, in and about her body and possible aggravation and/or activation of any pre-existing conditions, illnesses, ailments, or diseases she had, and/or accelerated the deterioration of her health, physical and mental condition, and more particularly, but without limitations, when she experienced which included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, when Defendants knew or should have known that she was at risk for the same; h. failure to respond in a timely manner with appropriate medical care when Inez Davis was injured, including when she experienced which included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, when Defendants knew or should have known that she was at risk for the same; i. failure to provide adequate and appropriate health care by failing to respond to a change in condition in a timely manner, failing to provide an adequate assessment following a change in condition, failing to provide adequate hygiene, failing to provide appropriate treatment and services to prevent which included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; 23 medication errors; and severe pain, and failing to administer ordered medications and treatments; j. failure to ensure complete, consistent documentation and avoid fraudulent documentation by failing to update MDS with significant changes in conditions, and failing to provide complete and consistent documentation; k. failure to develop an appropriate therapeutic care plan by failing to develop a comprehensive care plan and revise it to reflect current conditions, and failing to provide social services such as physical therapy, occupational therapy and speech therapy in order to attain the highest practicable physical, mental, and social well being; failure to provide a safe environment by failing to ensure adequate supervision and assistive devices to prevent accidents; in. failure to ensure that each resident receives and that the facility provides the necessary care and services to attain or maintain the highest practicable physical, mental and psychosocial well-being, in accordance with the comprehensive assessment and plan of care; n. failure to ensure that the facility uses the results of the assessment to develop, review and revise the resident's comprehensive plan of care, developing a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment, describing the services that are to be furnished to attain or maintain the resident's highest practicable physical, mental, and psychosocial well-being; o. failure to ensure that the facility has sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by the resident assessments and individual plans of care, providing services by sufficient number of each of the required types of personnel on a twenty-four hour basis to provide nursing care to all residents in accordance with resident care plans; P. failure of the facility to provide a safe, functional, sanitary, and comfortable environment for residents, staff, and the public; q. failure of the facility to be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well- 24 being of each resident; r. failure of the facility to develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of the resident's property; S. failure of the facility to ensure that the services provided or arranged by the facility must be provided by qualified persons in accordance with each resident's written plan of care; t. failure of the facility to promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality; U. failure of the facility to ensure that the resident's right to reside and receive services with reasonable accommodations of individual needs and preferences, except when the health or safety of the individual or other residents would be endangered, providing sufficient space and equipment in dining, health services, recreation, and program areas to enable the staff to provide residents with needed services as required by the standards and as identified in each resident's plan of care; V. failure of the facility to ensure that the resident is permitted to retain and use personal clothing and possessions as space permits unless to do so would infringe upon the rights of other residents and unless medically contraindicated as documented by the resident's physician in the clinical record; W. failure of the facility to ensure that each resident receives adequate supervision and assistance devices to prevent accidents; X. failure of the facility to provide a safe, clean, comfortable and homelike environment allowing the resident to use his or her personal belongings to the extent possible; Y. failure to ensure that each resident's drug regimen must be free from unnecessary drugs; Z. failure to ensure that the resident's right to reside and receive services in the facility with reasonable accommodations of individual needs and preferences except when the health or safety of the individual or other residents would be endangered; aa. failure to use reasonable care in the maintenance of safe and adequate facilities and equipment; 25 bb. failure to select and retain only competent staff who failed to: provide adequate and appropriate health care to prevent numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, properly notify physicians in a timely manner, follow physician orders, develop and revise appropriate care plans, provide complete and consistent documentation, provide appropriate treatment, services and adequate assessments following change in condition to prevent numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain; CC. failure to oversee and supervise all persons who practiced nursing and/or skilled healthcare in the Facility who failed to: provide adequate and appropriate health care to prevent numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, properly notify physicians in a timely manner, follow physician orders, develop and revise appropriate care plans, provide complete and consistent documentation, provide appropriate treatment, services and adequate assessments following change in condition to prevent numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain; dd. failure to formulate, adopt and enforce adequate rules, procedures and policies to ensure quality healthcare for residents by failing to: provide adequate and appropriate health care to prevent numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, properly notify physicians in a timely manner, provide safe transfers, follow physician orders, develop and revise appropriate care plans, provide complete and consistent documentation, provide appropriate treatment, services and adequate assessments following change in condition to prevent numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain; ee. failure to provide competent agents, servants, workmen and/or employees who would perform the duties required by law of the Defendants; ff. acting in a grossly negligent manner, with reckless indifference to the rights and safety of Inez Davis; gg. failure to undertake and/or implement the instructions provided by physicians and notify the physicians of change of Inez Davis; 26 hh. failure to refer Inez Davis to the necessary medical specialists in a timely manner who would have properly diagnosed and/or treated Inez Davis' condition due to failure to notify treating physicians and follow up on physicians instructions; ii. failure to provide Inez Davis with the necessary care and services to allow her to attain or maintain the highest practicable physical, mental and psychological well-being; jj. failure to provide Inez Davis with appropriate medication for pain management; kk. failure to provide Inez Davis with adequate hydration and nourishment, resulting in a diagnosis of numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain; 11. failure to assist Inez Davis in her personal hygiene; mm. failure to treat Inez Davis with human decency and respect; nn. failure to ensure that the Facility was properly funded; oo. failure to implement a budget that would allow the Facility to provide adequate and appropriate healthcare to Inez Davis including adequate staff and supplies; pp. grossly understaffing the Facility, as evinced in part by Inez Davis' numerous unsupervised falls and accidents as well as the numerous missing and/or backdated notes and other documentation; qq. failure to take appropriate steps to remedy continuing problems at the Facility that Defendant knew were occurring with Inez Davis' care, which included the need to increase the number of employees, hiring skilled and/or trained employees, adequately training the current employees, monitoring the conduct of the employees, and/or changing the current policies and procedures to improve resident care; rr. failure to evaluate the quality of resident care and efficiency of services, identify strengths and weaknesses, set in place measures for improvements where necessary, and, evaluate progress and institute appropriate follow-up activities; 27 ss. failure to set in place a functional table of organization with standards of accountability and hold department heads accountable for the performance of their respective departments; tt. failure to maintain open lines of communication with the governing body, department heads, facility staff and its residents to assure resources are properly allocated and that resident care is maintained at a high level; uu. failure to maintain compliance with governmental regulations and assure that the nondiscriminatory policy and policy on resident rights of the Facility are available for inspection by the public; vv. failure to implement personnel policies and procedures that define job responsibilities, accountability and the performance appraisal process and emphasize the importance of the health care team in the delivery of quality resident care; ww. failure to assure that a formal program is in place to provide for the recruitment, hiring and development of competent department managers and other staff at the Facility; xx. failure to coordinate training programs to improve employee skills and to enhance employee performance; yy. failure to develop a budget with an objective of the delivery of quality care; zz. failure to maintain sanitary and structural integrity of the premises at the Facility, for the health and welfare of the residents, such as Inez Davis; aaa. failure to provide adequate assessment following a change in the medical condition of Inez Davis; bbb. failure to assess and document the effectiveness and/or side effects of the use of medications including antidepressant and psychotropic drug use; and, ccc. failure to implement physicians' orders and to keep physicians informed, resulting in delay of treatment and harm to residents which was contrary to the health and welfare of the residents, such as Inez Davis. 28 111. Upon information and belief, the corporate officers of the Defendants were, made aware of the governmental/state survey results and placed on notice of the statu of their nursing homes, including the Facility. 112. Upon information and belief, the Defendants were aware that they had cited by governmental units regarding the Facility for failing to ensure that the environment remained as free of accident hazards as possible, failing to provide supervision and oversight in a manner that ensured that facility safety rules consistently implemented to ensure the safety of the residents of the facility, failing to conduct timely comprehensive assessments of residents with cognitive impairments, to develop an effective comprehensive care plan for cognitively impaired failing to provide the appropriate treatment and services for cognitively impaired residents; failing to ensure each resident received timely physician visits; and ing to report incidents of inappropriate touching of female residents on 3/12/2007; iling to provide necessary timely care and services as ordered by the physician on 4/182007; failing to administer medications in accordance with physicians orders, failing to consistently provide appropriate treatment and services, and failing to follow the ian's plan of care on 8/24/2007; failing to provide medications in a timely manner on 1X31/2008; failing to provide adequate supervision, failing to ensure the environment free of accident hazards, failing to provide an environment free of hazards, failing to ensure all corridors were equipped with handrails, failing to notify the physician of a significant change in condition, failing to maintain accurate clinical records failing to the physicians' plan of care, failing to conduct a comprehensive assessment, and to implement written policies and procedures to prohibit mistreatment, neglect and 29 abuse on 2/29/2008; failing to provide necessary care and services to attain the highest practicable physical, mental, and psychosocial well-being on 4/30/2008; failing to ensure that each resident received adequate supervision and assistive devices, failing to promote care I in a manner and in an environment that maintained or enhanced each resident's , and failing to follow the physician's care plan 7/10/2008; failing to ensure that ea*resident received adequate supervision and assistive devices to prevent accidents on 9/1242008; failing to ensure that comprehensive assessments were complete and accurate on 522/2009; failing to consult with the resident's physician about a significant change in the resident's mental status, failing to develop a plan of care, failing to maintain accurate inical records, and failing to ensure that a resident received the necessary care and as ordered by the physician on 6/18/2009; failing to maintain clinical records icu reflected that physician orders were implemented on 9/9/2009; and failing to a care plan to reflect the needs and interventions of a resident, and failing to physicians orders on 2/23/2010. been 113. Upon information and belief, the corporate officers of the Defendants had made aware in the past that the Facility had been cited for failing to ensure that the environment remained as free of accident hazards as possible, failing to provide adequate supervision and oversight in a manner that ensured that facility safety rules were (consistently implemented to ensure the safety of the residents of the facility, failing to conduct timely comprehensive assessments of residents with cognitive impairments, failing to develop an effective comprehensive care plan for cognitively impaired failing to provide the appropriate treatment and services for cognitively residents; failing to ensure each resident received timely physician visits; and 30 failing to report incidents of inappropriate touching of female residents on 3/12/2007; failing to provide necessary timely care and services as ordered by the physician on 4/18/2007; failing to administer medications in accordance with physicians orders, failing to consistently provide appropriate treatment and services, and failing to follow the is plan of care on 8/24/2007; failing to provide medications in a timely manner on 1 /I31/2008; failing to provide adequate supervision, failing to ensure the environment free of accident hazards, failing to provide an environment free of hazards, to ensure all corridors were equipped with handrails, failing to notify the physician of a significant change in condition, failing to maintain accurate clinical records failing to the physicians' plan of care, failing to conduct a comprehensive assessment, and to implement written policies and procedures to prohibit mistreatment, neglect and on 2/29/2008; failing to provide necessary care and services to attain the highest physical, mental, and psychosocial well-being on 4/30/2008; failing to ensure that each resident received adequate supervision and assistive devices, failing to promote care in a manner and in an environment that maintained or enhanced each resident's dignity, and failing to follow the physician's care plan 7/10/2008; failing to ensure that each ?esident received adequate supervision and assistive devices to prevent accidents on 9/12/008; failing to ensure that comprehensive assessments were complete and accurate on 5/2/2009; failing to consult with the resident's physician about a significant change in the r?sident's mental status, failing to develop a plan of care, failing to maintain accurate inic4l records, and failing to ensure that a resident received the necessary care and as ordered by the physician on 6/18/2009; failing to maintain clinical records reflected that physician orders were implemented on 9/9/2009; and failing to 31 develop a care plan to reflect the needs and interventions of a resident, and failing to follow physicians orders on 2/23/2010. 114. As a direct and proximate result of the Defendants' acts and/or omissions, and heir breach of duty of care, negligence, carelessness and recklessness, Inez Davis suffe?ed (a) severe permanent physical injuries resulting in pain, suffering, disfigurement, (b) mental anguish, embarrassment, humiliation, degradation, emotional distress, and loss of personal dignity, (c) loss of capacity for enjoyment of life, and (d) expense of other wise unnecessary hospitalization, medical care and residency at the Facility. 115. In causing the aforementioned injuries, the Defendants knew, or should have I known, that Inez Davis would suffer such harm. 116. The conduct of the Defendants was intentional, outrageous, willful and wanton, and exhibited a reckless indifference to the health and well-being of Inez Davis. 117. The conduct of the Defendants was such that an award of punitive is justified. WHEREFORE, Plaintiff, Gloria Banks, Guardian of Inez Davis, respectfully that judgment be entered in her favor, and against all Defendants, in an amount in excess of the compulsory arbitration limits and/or Fifty Thousand Dollars ($50,000.00) is greater, together with punitive damages, costs, and any other relief that this Court deems appropriate given the circumstances. A jury trial is demanded. 32 V. COUNT TWO NEGLIGENCE PER SE FOR VIOLATIONS OF NEGLECT OF CARE-DEPENDENT PERSON, 18 Pa.C.S.A. §2713 Gloria Banks, as Attorney-In-Fact for Inez Davis v. GGNSC Camp Hill West Shore, LP d/b a Golden Living Center - West Shore; GGNSC Holdings, LLC; GGNSC Camp Hill West Shore GP, LLC; Golden Gate National Senior Care, LLC; GGNSC Equity Holdings, LLC; and Beverly Fry, an individual 118. Plaintiff incorporates herein by reference each and every preceding of this Complaint as if the same were more fully set forth herein. Pa.C 119. At all times pertinent hereto, there was in full force and effect 18 S.A. §2713 "Neglect of Care Dependent Person," which set forth penal uences for neglect of a care-dependent person. 120. 18 Pa.C.S.A. §2713 "Neglect of Care Dependent Person" expresses the public policy of the Commonwealth of Pennsylvania that elders, like are not to be abused or neglected, particularly in health care facilities or by holding themselves out as trained professionals, and that if such abuse or neglect injury, either physical or mental, then such conduct is actionable. 121. At all times pertinent hereto, Inez Davis was a care dependent resident of the Defendants' facility, FAC, and thus fell within the class of persons 18 Pa.C.S.A. §271 ? "Neglect of Care Dependent Person" was intended to protect, thus entitling to adopt 18 Pa.C.S.A. §2713 "Neglect of Care Dependent Person" as the of care for measuring the Defendants' conduct. 122. Additionally, 18 Pa.C.S.A. §2713 "Neglect of Care Dependent Person" is directed, at least in part, to obviate the specific kind of harm which Inez Davis sustained. 33 123. The Defendants, in accepting the responsibility for caring for Inez Davis as aforesaid, were negligent "per se" and violated 18 Pa.C.S.A. §2713 "Neglect of Care Dependent Person" in that they: a. failed to provide treatment, care, goods and services necessary to preserve the health, safety or welfare of Inez Davis for whom they were responsible to provide care as specifically set forth in this Complaint; 124. As a direct result of the aforesaid negligence "per se" of the Defendants, Inez Davis was caused to sustain serious personal injuries and damages as aforesaid. 125. The conduct of the Defendants, and each of them, as specifically set forth in thi? Complaint, was outrageous, inconsistent with and intolerable given the norms of modern society and as such, Plaintiffs request punitive damages in addition to all other damages as aforesaid. WHEREFORE, Plaintiff, Gloria Banks, Guardian of Inez Davis, respectfully reque?sts that judgment be entered in her favor, and against all Defendants, in an amount in ex4ess of the compulsory arbitration limits and/or Fifty Thousand Dollars ($50,000.00) whichever is greater, together with punitive damages, costs, and any other relief that this Hono?able Court deems appropriate given the circumstances. A jury trial is demanded. 34 VI. COUNT THREE NEGLIGENCE PER SE FOR VIOLATIONS OF THE PENNSYLVANIA OLDER ADULTS PROTECTIVE SERVICES ACT, 35 P. S. §10225.101, et seq. Glo is Banks, as Attorney-In-Fact for Inez Davis v. GGNSC Camp Hill West Shore, LP d1b a Golden Living Center - West Shore; GGNSC Holdings, LLC; GGNSC Camp Hill Vest Shore GP, LLC; Golden Gate National Senior Care, LLC; GGNSC Equity Holdings, LLC; and Beverly Fry, an individual 126. Plaintiff incorporates herein by reference each and every preceding of this Complaint as if the same were more fully set forth herein. 127. At all times pertinent hereto, there was in full force and effect 35 P.S. §1025.101, et seq., "Pennsylvania Older Adults Protective Services Act," which sets forth civil penalties, administrative penalties and other consequences for abuse of a care- person. 128. 35 P.S. §10225.102, expresses the policy of the Commonwealth of lvania that: ... older adults who lack the capacity to protect themselves and are at imminent risk of abuse, neglect, exploitation or abandonment shall have access to and be provided with services necessary to protect their health, safety and welfare. It is not the purpose of this act to place restrictions upon the personal liberty of incapacitated older adults, but this act should be liberally construed to assure the availability of protective services to all older adults in need of them. Such services shall safeguard the rights of incapacitated older adults while protecting them from abuse, neglect, exploitation and abandonment. It is the intent of the General Assembly to provide for the detection and reduction, correction or elimination of abuse, neglect, exploitation and abandonment, and to establish a program of protective services for older adults in need of them. 129. At all times pertinent hereto, Inez Davis was an older person who was a of Defendants' facility, FAC, who lacked the capacity to protect herself and thus fell w?thin the class of persons 35 P. S. §10225.101, et seq. was intended to protect, thus 35 entitling Plaintiffs to adopt 35 P.S. §10225.101, et seq. as the standard of care for measuring the Defendants' conduct. 130. Additionally, the Pennsylvania Older Adults Protective Services Act is direc?ed, at least in part, to obviate the specific kind of harm which Inez Davis sustained. 131. In addition to the aforesaid negligence, which said negligence is y incorporated herein, the Defendants, in accepting the responsibility for caring for Inez Davis as aforesaid, were negligent "per se" and violated 35 P.S. §10225.101, et seq. in that they had reasonable cause to suspect that Inez Davis was the victim of abuse and neglect and failed to report said abuse and neglect to the appropriate agency and law officials. 132. As a direct result of the aforesaid negligence "per se" of the Defendants, Inez Davis was caused to sustain serious personal injuries and damages as aforesaid. 133. The conduct of Defendants, and each of them, as specifically set forth in this (complaint, was outrageous, inconsistent with and intolerable given the norms of modern society and as such, Plaintiffs request punitive damages in addition to all other damages as aforesaid. 'I 36 WHEREFORE, Plaintiff, Gloria Banks, Guardian of Inez Davis, respectfully requests that judgment be entered in her favor, and against all Defendants, in an amount in eXcess of the compulsory arbitration limits and/or Fifty Thousand Dollars ($50,000.00) whichever is greater, together with punitive damages, costs and any other relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. Respectfully Submitted, WILKES & McHUGH, P.A. Date:l y p? l / T. orris, squire Counsel for aintiff 37 VERIFICATION I, Ian T. Norris, Esquire, verify that I am the Attorney for Plaintiff, and that the averments set forth in the forgoing Complaint are true to the best of my knowledge, information and belief. I understand that this verification is made subject to the penalties of 1 i Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Dated: . Norris Attorney for Plai iff r FILED-OFFICE is oR()TH0J° o it ?l?}fP MAY -2 PH 2: ?4 CUIIBER1 r ,i;D Cfj hlr 1 FOX ROTHSCHILD LLP BY: Jacqueline M. Carolan, Esquire IDENTIFICATION NO. 52576 2000 MARKET STREET, TWENTIETH FLOOR PHILADELPHIA, PA 19103-3222 (215) 299-2000 GLORIA BANKS, GUARDIAN OF INEZ DAVIS, V. GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE, GGNSC HOLDINGS, LLC, GGNSC CAMP HILL WEST SHORE GP, LLC, GOLDEN GATE NATIONAL SENIOR CARE, LLC, GGNSC EQUITY HOLDINGS, LLC and BEVERLY FRY, N.H.A., Defendants TO THE PROTHONOTARY: Plaintiffs ATTORNEYS FOR DEFENDANTS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION NO. 10-6924 ENTRY OF APPEARANCE Kindly enter my appearance on behalf of defendants, GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore, GGNSC Holdings, LLC, GGNSC Camp Hill West Shoer GP, LLC, Golden Gate National Senior Care, LLC, GGNSC Equity Holdings, LLC and Beverly Fry, N.H.A., in the above-captioned matter. Jac refor M. Carolan, Esquire Atto Defendants Dated: April 29, 2011 CERTIFICATE OF SERVICE I , Jacqueline M. Carolan, Esquire, hereby certify that a true and correct copy of the foregoing Entry of Appearance on behalf of the defendants was served via U.S. Firs Class Mail, postage prepaid, upon the following: Ian T. Norris, Esquire Wilkes & McHugh, P.A. 400 Market Street, Suite 1250 Philadelphia, PA 19106 Attorneys for Plaintiff ' D ( q - M. Carolan Dated: Apri129, 2011 1-u-el& By: Ian T. Norris, Esquire Identification No.: 207566 WILKES & McHUGH, P.A. 400 Market Street, Suite 1250 Philadelphia, PA 19106 Tel. No.: (215) 972-0811 Email: inorrisQwilkesmchu .com THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED Attorney for Plaintiff, Gloria Banks, Guardian of Inez Davis GLORIA BANKS, GUARDIAN OF INEZ DAVIS Plaintiffs. vs. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA. GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE; CIVIL ACTION NO. 10-6W4 art; GGNSC HOLDINGS, LLC; ?3 cv - c- 1-4-i -4 GGNSC CAMP HILL WEST SHORE GP, LLC; z GOLDEN GATE NATIONAL SENIOR CARE, M LLC;GGNSC EQUITY HOLDINGS, LLC and C' ' BEVERLY FRY, N.H.A. C' v C") ?o o C s Defendants. ..c rn PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANTS' PRELIMINARY OBJECTIONS Plaintiff, Gloria Banks, Guardian of Inez Davis, by and through her counsel, Ian T. Norris and the law firm of Wilkes & McHugh, P.A. hereby files her Response in Opposition to Defendants' Preliminary Objections as follows: 1. Denied as stated. Plaintiff's Complaint is a document that speaks for itself and any characterization of the same by the Defendants is denied. 2. Denied as stated. Plaintiffs Complaint and medical records are documents that speak for themselves and any characterization of the same by the Defendants is denied. 3. Denied as stated. Plaintiffs Complaint is a document that speaks for itself and any characterization of the same by the Defendants is denied. 4-10. Denied. These paragraphs contain a legal conclusion to which no response is required. To the extent a response is deemed required, the same is denied. By way of further response, Plaintiff refers this Honorable Court to her Memorandum of Law in Opposition to Defendants' Preliminary Objections, which is incorporated herein by reference. 11-18. Denied. These paragraphs contain a legal conclusion to which no response is required. To the extent a response is deemed required, the same is denied. By way of further response, Plaintiff refers this Honorable Court to her Memorandum of Law in Opposition to Defendants' Preliminary Objections, which is incorporated herein by reference. 19-25. Denied. These paragraphs contain a legal conclusion to which no response is required. To the extent a response is deemed required, the same is denied. By way of further response, Plaintiff refers this Honorable Court to her Memorandum of Law in Opposition to Defendants' Preliminary Objections, which is incorporated herein by reference. 26. Denied as stated. Plaintiff's Complaint is a document that speaks for itself and any characterization of the same by the Defendants is denied. 27. Denied. Plaintiffs Complaint thoroughly explains how Ms. Davis' care was specifically affected by the corporate actions of the Defendants and the facts support her assertion that the business decisions that certain Defendants made affected and caused injury to Ms. Davis. Furthermore, Plaintiffs Complaint is a document that speaks for itself and any characterization by Defendants of the same is denied. By way of further response, Plaintiff refers this Honorable Court to her Memorandum of Law in Opposition to Defendants' Preliminary Objections, which is incorporated herein by reference. 28-32. Denied. These paragraphs contain a legal conclusion to which no response is required. To the extent a response is deemed required, the same is denied. By way of further 2 response, Plaintiff refers this Honorable Court to her Memorandum of Law in Opposition to Defendants' Preliminary Objections, which is incorporated herein by reference. WHEREFORE, Plaintiff respectfully requests this Honorable Court OVERRULE Defendants' Preliminary Objections and Order Defendants to answer Plaintiff's Complaint within 20 days of the date of the Order. Respectfully Submitted, Dated: WILKES & McHUGH, P.A. IAN f. NORRV, ESQUIRE Attorneyfor P aintiff 3 By: Ian T. Norris, Esquire Identification No.: 207566 WILKES & McHUGH, P.A. 400 Market Street, Suite 1250 Philadelphia, PA 19106 Tel. No.: (215) 972-0811 Email: inorris ,wilkesmchu .com GLORIA BANKS, GUARDIAN OF INEZ DAVIS Plaintiff. VS. GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE; GGNSC HOLDINGS, LLC; GGNSC CAMP HILL WEST SHORE GP, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC;GGNSC EQUITY HOLDINGS, LLC and BEVERLY FRY, N.H.A. THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED Attorney for Plaintiff, Gloria Banks, Guardian of Inez Davis COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 10-6924 Defendants. PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' PRELIMINARY OBJECTIONS TOPLAINTIFF'S COMPLAINT Plaintiff, Gloria Banks, Guardian of Inez Davis, by and through her counsel, Wilkes & McHugh, P.A, files the within Memorandum of Law in Opposition to the Preliminary Objections of Defendants, GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore, GGNSC Holdings, LLC, GGNSC Camp Hill West Shore GP, LLC, Golden Gate National Senior Care, LLC, GGNSC Equity Holdings, LLC and Beverly Fry, N.H.A. ("Defendants") to Plaintiff's Complaint. 1 1. HISTORY OF THE CASE This case arises out of the injuries sustained by Inez Davis during her residency at Defendants' nursing facility, Golden Living Center - West Shore (hereinafter referred to as "the Facility"), from December 2, 2006 through present time. Plaintiff, Gloria Banks, Guardian of Inez Davis, filed her Complaint in Civil Action' on April 26, 2011, in the Court of Common Pleas of Cumberland County, alleging that Defendants neglected and abused Ms. Davis throughout her residency at the Facility. Defendants filed their Preliminary Objections thereafter, on or about May 16, 2011. II. STATEMENT OF QUESTIONS INVOLVED A. Does Plaintiffs Complaint plead sufficient facts to justify a claim for Punitive Damages? Suggested Answer: YES B. Are all paragraphs within Plaintiffs Complaint pled with sufficient specificity in accordance with the Pennsylvania Rules of Civil Procedure? Suggested Answer: YES C. 1. Does Plaintiffs Complaint sufficiently set forth claims for negligence per se under 18 Pa. C.S.A. § 2713. Suggested Answer: YES 2. Does Plaintiff s Complaint sufficiently set forth claims for negligence per se under 35 P. S. § 1025.101 et seq.? Suggested Answer: YES i Attached hereto as Exhibit "A." 2 III. STANDARD OF REVIEW Under Pennsylvania law, Preliminary Objections should only be sustained in cases that are free and clear from doubt. Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992). A court must overrule objections to a plaintiffs complaint if the complaint pleads sufficient facts which, if believed, would entitle the plaintiff to the relief sought. Wilkinsburg Police Officers Ass'n v. Commonwealth, 535 Pa. 425, 431, 636 A.2d 134, 137 (1993). When facing Preliminary Objections in the nature of a demurrer, the court must accept as true all material facts set forth in plaintiffs complaint, as well as all inferences reasonably deducible therefrom. Youndt v. First Nat'l Bank, 868 A.2d 539, 542 (Pa. Super. 2005) (citing Vosk v. Encompass Ins. Co., 851 A.2d 162, 164 (Pa. Super. 2004). IV. LEGAL ARGUMENT A. Plaintiff Has Pled Sufficient Facts To Justify An Award For Punitive Damases. In their Preliminary Objections, Defendants argue that this Court should strike Plaintiff's claims for punitive damages, because the allegations as pled do not entitle Plaintiff to an award of punitive damages. Even a cursory review of the Complaint proves that Defendants' argument is without merit. Plaintiff initially directs this Honorable Court's attention to the Medical Care Availability and Reduction of Error Act (hereinafter referred to as "MCARE"), which provides: (a) Award. - - Punitive damages may be awarded for conduct that is the result of the health care provider's willful or wanton conduct or reckless indifference to the rights of others... 40 P.S. § 1303.505(a). MCARE specifically includes "nursing home" within the definition of "health care provider." See 40 P.S. § 1303.402 3 In SHV Coal, Inc. v. Continental Grain Co. , 526 Pa. 489, 587 A.2d 702 (1991), the Pennsylvania Supreme Court set forth the factual elements that justify an award of punitive damages: Assessment of punitive damages are proper when a person's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct, and are awarded to punish that person for such conduct. Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. SHV Coal, Inc, 587 A.2d at 704 (citations omitted). In discussing the concept of "reckless indifference," the court, citing Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985), applied comment (a) of section 908(2) of the Restatement (Second) of Torts, and held that where an actor knows, or has reason to know of facts which create a high degree of risk of physical harm to another and deliberately proceeds to act (or fails to act) in conscious disregard of, or indifference to, that risk, punitive damages may be assessed. SHV Coal, Inc, 587 A.2d at 704-05 (emphasis added); See also, Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984) (adopting Restatement (Second) of Torts, § 908(2)). The Supreme Court of Pennsylvania held that punitive damages could be awarded to a plaintiff in a negligent supervision case. In Hutchinson v. Luddy, 582 Pa. 114, 870 A.2d 766 (2005), the Supreme Court held: In Pennsylvania, a punitive damage claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk. Id., 870 A.2d at 772 (quoting Feld supra). The Court further noted that: A jury cannot be instructed that, having found negligence, an award of punitive damages is appropriate. But, neither is there anything in law or logic to prevent the plaintiff in a case sounding 4 in negligence from undertaking the additional burden of attempting to prove, as a matter of damages, that the defendant's conduct not only was negligent but that the conduct was also outrageous, and warrants a response in the form of punitive damages. Hutchinson, 870 A.2d at 772. The failure to provide adequate care to Ms. Davis when Defendants, a health care facility, promised to do so,2 and when that failure is the result of a conscious decision to maximize profits at the expense of quality care;3 said conduct can easily be described as willful, wanton and reckless. This Honorable Court should focus on the proper analysis for a punitive damages claim. In short, a punitive damages claim must be supported by facts sufficient to establish that: (i) the defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed, and (ii) he acted, or failed to act, in conscious disregard of that risk. Martin, supra, 494 A.2d at 1097-98. Knowledge or intent is not a requirement; only an appreciation by the actor that his conduct might substantially increase the risk of serious harm to another in a perceptible way. See e.g., Hall v. Jackson, 2001 Pa. Super. 334, 799 A.2d 390 (2001). The allegations of Plaintiff's Complaint are sufficient to permit claims for punitive damages past the preliminary objection stage. Plaintiff alleges that Defendants exercised complete and total control over the operation, planning, management, quality control, budgeting, marketing, human resource management, training, staffing, and all policies and procedures of the facility, including the providing of health care related services to the Facility's residents.4 Defendants, knowing that Ms. Davis required skilled nursing care, held out their nursing home as 2 Complaint, TJ 20-22. s Id. at 1133-34. a Id. at 1124-29. 5 a skilled nursing care facility, and represented to Ms. Davis and her family that they could provide her with the skilled care that she required.5 Defendants also had an appreciation of the risks to residents, like Ms. Davis, that existed in their Facility. Defendants, by and through their board of directors and corporate officers, utilized Department of Health Survey results and quality indicators to monitor the care being provided at the facility.6 Plaintiff alleges that Defendants' conduct in knowingly understaffing the facility created recklessly high nurse/resident ratios, to the point where Defendants knew that the personnel on duty would not be able to properly attend to the medical needs of the Facility's residents; and, also disregarded the minimum time required to perform essential day-to-day functions; the Defendants knew, or should have known, that the acuity needs of the residents in their nursing home increased, and, therefore, the resources necessary increased, including the need for more staff yet they refused to provide that staff; their motive in accepting an increased number of high acuity residents was their desire to increase the excess revenues of the facility and maximize profits at the expense of residents, including Ms. Davis; and that Defendants knew, or should have known that their actions would lead to severe injuries. In fact, Defendants' alleged conduct rises to the level of a crime in the Commonwealth of Pennsylvania. Specifically, Defendants' alleged conduct violates 18 Pa. C.S.A. § 2713 wherein the criminal offense is neglect of a care-dependent person. The language of the statute closely mirrors the requirements for a punitive damages claim Defendants enumerates in their Preliminary Objections: 5 Complaint, at ¶¶ 20-22. G Id. at ¶ 27. Id., at ¶¶ 33-38, 40-42, 44-45, 48, 104-08, 111-16, 123-25, 130-33. 6 (a) Offense defined. - - A caretaker is guilty of neglect of a care- dependent person if he: (1) Intentionally, knowingly or recklessly causes bodily injury by failing to provide treatment, care, goods or services necessary to preserve the health, safety or welfare or a care dependent person for whom he is responsible to provide care. 18 Pa. C.S.A. § 2713(a)(1) (emphasis added). If the victim of this crime suffers bodily injury it is a misdemeanor; if the victim suffers serious bodily injury it is a felony. 18 Pa C.S.A. § 2713(b)(1)-(2). It is quite possible that the numerous falls suffered by Ms. Davis as a result of the Defendants' neglect could qualify as "serious bodily injury." Neglect of a care-dependent person is analogous to neglect of a helpless child. It is criminal neglect and should be viewed as such. However, Plaintiffs' action is a civil one and thus the punitive damages are the appropriate penalty for Defendants' actions. The facts pled by the Plaintiff justify such a conclusion. Plaintiff has alleged, inter alia, that Defendants intentionally disregarded known risks when they grossly understaffed the Facility, hired untrained employees and permitted them to care for Ms. Davis without providing sufficient training, failed to take steps to prevent future injuries to Ms. Davis from occurring when they were placed on actual notice of her condition and the problems occurring but took no steps to fix them. The conduct of the Defendants was the factual and legal cause of Ms. Davis' injuries.8 As the Complaint amply and specifically demonstrates, the conduct of Defendants was willful, wanton and exhibited a reckless indifference to Ms. Davis' health and well-being.9 Under the mandate of SHV Coal, Inc, supra, Defendants' Preliminary Objections must be overruled because Plaintiff's Complaint alleges that Defendants acted with an improper motive, 8 Complaint, at IT 33-38, 40-42, 44-45, 48, 104-08, 111-16, 123-25, 130-33 Id. 7 in an outrageous manner, and with reckless disregard for the health and safety of Ms. Davis. Plaintiffs claims seeking punitive damages should therefore be permitted to proceed as alleged. Accordingly, Defendants' preliminary objections must be overruled B. All Paragraphs In Plaintiffs Complaint Are Sufficiently Specific In Accordance With The Pennsylvania Rules Of Civil Procedure Defendants aver that paragraphs 33 through 45, 104, 105, 110(m) through (ee), 110(nn), I IO(pp), I I0(rr) through (tt), I I0(vv) through (zz), I IO(bbb) through (ccc), 112, and 113 lack specificity, are devoid of any factual reference, repetitious, and boilerplate. Essentially, Defendants complain that the allegations contained in the aforementioned paragraphs are too vague with respect to identifying actual elements of the alleged negligence tort, they are contrary to Pa.R.C.P. 1019, and that they violate Connor v. Allegheny General Hospital, 501 Pa. 308, 461 A.2d 600 (1983). In a complaint, plaintiff is required to state the "material facts on which a cause of action is based ... in a concise and summary form." Pa.R.C.P.1019(a). This rule has been interpreted to require that the complaint give notice to defendant of an asserted claim and synopsizes the essential facts to support it. Krajsa v. Keypunch Inc., 424 Pa. Super. 230, 235, 622 A.2d 335, 357 (1993). A complaint is sufficiently specific if it provides defendant with enough facts to enable defendant to frame a proper answer and prepare a defense. Smith v. Wagner, 403 Pa. Super. 316, 319, 588 A.2d 1308, 1310 (1991); Milk Mktg. Bd. v. Sunnybrook Dairies Inc., 29 Pa. Cmwlth. 210, 370 A.2d 765 (1977). A pleading must achieve its purpose of informing the adverse party or parties and the court of the matters at issue. Den't of Transit v. Shipley Humble Oil Co., 370 A.2d 438 (Pa. Cmwlth. 1977). However, the trial court has "broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in 8 Rule 1019(a) is incapable of precise measurement." Pike Cnty. Hotels Corp. v. Kiefer, 396 A.2d 677, 681 (Pa. Super. 1978). In order to plead a prima facie case of negligence, plaintiff must allege in his or her complaint that (1) a duty of care was owed by the defendant to the plaintiff, (2) defendant breached that duty; (3) defendant's breach of that duty was a factual and legal cause of any injuries sustained by the plaintiff; and (4) actual harm was sustained by the plaintiff. See Martin v. Evans, 551 Pa. 496, 711 A.2d 458 (1988); Shaw v. Kirschbaum, 439 Pa. Super. 24, 653 A.2d 12 (1994); Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 866 A.2d 270 (2005). Defendants argue here, however, that Plaintiff's aforementioned allegations are general and vague and contrary to Pa.R.C.P. 1019 and the standards prescribed by the Supreme Court in Connor. Defendants' argument is contradicted by the aforementioned paragraphs themselves, as they allege Defendants' specific breaches of the duties owed to Ms. Davis, as is required in any action sounding in negligence. See Martin, supra. Moreover, pursuant to Smith, supra, and Milk Mktg Bd., supra, Plaintiff is not required to plead said breaches with any greater specificity, contrary to Defendants' assertions. Defendants' averment that Plaintiff's Complaint somehow violates the Connor rule is equally without merit. Connor, supra, arguably holds at best that a plaintiff cannot plead a general, vague allegation of negligence and conform with Pa.R.C.P. 1028(a)(3). In Connor, the plaintiff alleged that the defendant was negligent in "otherwise failing to use due care and caution under the circumstances," i.e., a "catchall" allegation of negligence. Connor, 461 A.2d at 601. In failing to file preliminary objections to the vagueness of that allegation, the Court, in a footnote, simply stated that the defendants had waived that argument that the plaintiff's complaint could not be amended on the eve of trial to add additional theories of negligence. 9 Connor, at 601 n. 3. Defendants in this matter have taken the Connor rule out of context, especially considering that, unlike in Connor, there is no "catchall" allegation of negligence anywhere in Plaintiff's Complaint, much less in the paragraphs cited above. The paragraphs cited by the Defendants contain clear, unambiguous language relating to the reckless, negligent, and even criminally negligent care that was provided (or not provided) to Ms. Davis. Moreover, pursuant to Pa.R.C.P. 1019(a), Plaintiff provided the material facts in a concise and summary form. In paragraph 97, Plaintiff incorporated by reference the preceding paragraphs of the Complaint. Thus, those facts as pled, which this Court should accept as true and every inference fairly deducible therefrom, result in the conclusion that the allegations are sufficient to state a cause of action. The Pennsylvania Superior Court further clarified Connor in its opinion of Reynolds v. Thomas Jefferson University Hos., 450 Pa.Super. 327, 676 A.2d 1205 (1996). The Superior Court discussed Connor and held that the key inquiry is whether or not the allegation will allow plaintiff to pursue an entirely different theory by amending their complaint, i.e. a new cause of action. See also Junk v. East End Fire Dept., 262 Pa.Super. 473 at 490-91, 396 A.2d 1269 at 1277 (1978) (A new cause of action arises if the amendment proposes a different theory or a different kind of negligence than the one previously raised or if the operative facts supporting the claim are changed) Accordingly, Defendants' preliminary objections must be overruled. C. All of Plaintiff s negligence per se claims are valid. The legal doctrine of negligence per se "establishes both duty and the required breach of duty where an individual violates an applicable statute, ordinance or regulation designed to prevent a public harm." Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1288, 2005 Pa. 10 Super. 400 (u? nt Cabiroy v. Scipione, 767 A.2d 1078, 1079 (Pa. Super. 2001)). To establish a claim based on negligence per se, the plaintiff must show: (1) that the purpose of the statute is at least in part, to protect the interest of a group of individuals, as opposed to the public generally; (2) that the statute clearly applies to the conduct of the defendant; (3) that the defendant violated the statute; and (4) that the violation was the proximate cause of the plaintiff's injuries. Wagner v. Anzon. Inc., 684 A.2d 570, 574 (Pa. Super. 1996). The purpose of the statute must be: (1) to protect a class of persons which includes plaintiff; (2) to protect the particular interest which is invaded; (3) to protect that interest against the kind of harm which has resulted; and, (4) to protect that interest against the particular hazard from which the harm results. Con ig ni by Con-gini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515, 517-18 (1983); see also Restatement (Second) of Torts § 286 (1965). 1. There is a valid claim for negligence per se under the Neglect of Care-Dependent Person Statute. a. Under Pennsylvania law, Plaintiff is entitled to bring a negligence per se claim for violation of a criminal statute. Defendants argue that Plaintiff cannot support a claim for negligence per se under 18 Pa. C.S. § 2713 (hereinafter "§ 2713") because it is a criminal statute enforceable only by the Attorney General and does not give rise to a private cause of action. This assertion is false because a claim based upon negligence per se is not the same as a private cause of action. Contrary to Defendants' assertions, Plaintiff is not asserting a private statutory cause of action under the criminal statute § 2713. Rather, Plaintiff pled that Defendants breached the standard of care as proscribed in § 2713, which conveys an actionable tort duty, and therefore Defendants should be held liable for negligence per se. The doctrine of per se liability does not create an independent basis of tort liability, but 11 rather establishes, by reference to a statutory scheme, the standard of care appropriate to the underlying tort. Cabirov v. Scipione, 767 A.2d 1078, 1082 (Pa. Super. 2001). Here, § 2713 establishes the requisite standard of care for the treatment of care-dependent individuals. Contrary to Defendants' assertions, the absence of a statutory right to a private cause of action does not preclude a claim of negligence per se for violation of the statute. In a similar nursing home abuse and neglect case against parties similarly situated to these Defendants, the court held that a statute which does not provide a private right of action can still be utilized to establish negligence per se. McCain v. Beverly Health and Rehab Servs, No. CIV.A. 02-657, 2002 WL 1565526 (E.D. Pa. July 15, 2002). The court noted that: Courts in Pennsylvania have recognized that the "absence of a private cause of action in a statutory scheme is an indicator that the statute did not contemplate enforcement of an individual harm." However, it is just an indicator or a factor to consider and "does not necessarily preclude [the statute's] use as the basis of a claim of negligence per se." McCain, at *1 (citing Fallowfield Dev. Corp. v. Strunk, CIV.A. No. 89-8644, 1990 WL 52745, at *19 (E.D. Pa. Apr. 23, 1990) (emphasis added)). Thus, if a plaintiff pleads that defendant's negligence was the proximate cause of the injury in question, then the violation of the applicable statute is negligence per se, and liability may be grounded on such negligence. Cabirov, at 1079. A similar situation exists in the present matter. Although § 2713 does not provide a private cause of action, Defendants' conduct (as pled in the Complaint), breached the standard of care required by the statute, which makes Defendants liable for negligence per se. Since Plaintiff is not bringing a private cause of action under § 2713, it is inconsequential that the enforcement of the criminal aspect of this statute lies with either the District Attorney of the county or the Attorney General of this Commonwealth. Defendants note the requirements under § 2713 to secure a conviction in their preliminary objections, but Plaintiff does not have to 12 secure a conviction against Defendants for them to be held liable for negligence per se. Plaintiff does not seek to bring a criminal action against Defendants under this statute. Plaintiff is therefore not required to plead facts which show that the Pennsylvania Attorney General's Office or the Cumberland County District Attorney's Office filed charges against, or obtained a conviction of the Defendants, in order to hold Defendants liable for negligence per se. Defendants' argument regarding the same is an attempt to mischaracterize Plaintiffs claims and to confuse the Court as to the real issues in this case. b. Pa. C.S.A. § 2713 is designed to protect the interests of care-dependent nursing home residents. As mentioned above, despite the absence of a private cause of action, violation of criminal statute can constitute negligence per se if the plaintiff is within the class of persons the statute was intended to protect. See Minnich v. Yost, 817 A.2d 538 (Pa. Super. 2003); Braxton v. Commonwealth Dep't of Trans, 634 A.2d 1150 (Pa. Cmwlth. 1993); Commonwealth, Dep't of Welfare v. Hickey, 582 A.2d 734 (Pa. Cmwlth. 1990). Plaintiff must establish that the purpose of the statute is, at least in part, to protect the interest of a particular group of people, as opposed to the public generally. Wagner v. Anzon, 453 Pa. Super. 619, 627, 684 A.2d 570, 574 (P.A. Super. 1996). See also Cabiroy v. Scipione, 767 A.2d 1078 (Pa. Super. 2001) (holding that "although no private cause of action [was] set forth in the [Food, Drug and Cosmetic Act], it was certainly designed to protect a particular class of individuals") Id. at 1081. In the present matter, Pennsylvania's elder care criminal statute was established to protect a certain group of people - those who are care-dependent individuals residing in nursing homes, such as Ms. Davis. The statute mandates that a caretaker is guilty of neglect of a care-dependent person if he: 13 Intentionally, knowingly or recklessly causes bodily injury or serious bodily injury by failing to provide treatment, care, goods or services necessary to preserve the health, safety or welfare of a care-dependent person for whom he is responsible to provide care. 18 Pa. C.S.A. §2713 (a)(1).10 This statute was not designed to merely protect the entire public at large or even the entire elderly population, as many elderly people are completely self-sufficient. Rather, the statute specifically identifies the particularly vulnerable group of individuals who are unable to independently care for themselves and therefore need the protection of the statute. This case is akin to a negligence action for injuries arising out of the implantation of a pedicle screw device in the plaintiff's spine, the court concluded that . despite the absence of a private right of action, the [Federal Food, Drug and Cosmetic Act] and [Medical Device Amendments] were enacted to protect the interest of a group of individuals. Indeed, they were enacted `to provide for the safety and effectiveness of medical devices intended for human use. Thus, their purpose was, at least in part, to protect the interests of those individuals who require use or implantation of medical devices.' Sharp v. Artifex Ltd., 110 F.Supp.2d 388, 393 (W.D. Pa. 1999) (internal citations omitted). Similarly, the purpose of § 2713 is to protect the interests of those individuals who require care at nursing home facilities and the assistance of the staff at those facilities for their day-to-day living. Ms. Davis is an individual, who was unable to independently care for herself, and therefore required care at Defendants' facility. She relied to her own detriment on Defendants' assurance that they could properly provide the services she required. Ms. Davis is a member of the group of people the statute was designed to protect, and therefore Plaintiff has satisfied the first requirement for a claim for negligence per se. 10 Under § 2713, a caretaker is defined as "an owner, operator, manager or employee of a nursing home," and a care-dependent person is defined as "any adult who, due to physical or cognitive disability or impairment, requires assistance to meet his needs for food, shelter, clothing, personal care or health care." Defendants and Ms. Davis fall under the respective definitions of caretaker and care-dependent person. 14 C. Plaintiffs claim for negligence per se furthers the police of § 2713. Pennsylvania courts have held that "[a] statute may still be used as the basis for a negligence per se claim when it is clear that, despite the absence of a private right of action, the policy of the statute will be furthered by such a claim because its purpose is to protect a particular group of individuals." McCain, at * 1 (citing Fallowfield Dev. Corp., at * 19 (emphasis added)). In the present matter, the policy of § 2713 is to protect care-dependent individuals in a nursing home context. Ms. Davis was not afforded the full protection under § 2713 that she deserved. As pled in the Complaint, Defendants violated their duty under § 2713, by failing to provide adequate care to Ms. Davis, which caused her to suffer severe pain and injury. Holding Defendants liable for their neglectful care of Ms. Davis would properly further the policy of § 2713, so that future residents of Defendants' facility can be spared the same indignities and injuries suffered by Ms. Davis. d. Defendants' conduct was negligent under 18 Pa. C.S.A. § 2713. When analyzing a claim based on negligence per se "the statute must clearly apply to the conduct of the defendant." Frantz v. HCR Manor Care. Inc., 64 Pa. D.&C. 4th 457, 462 (citing Braxton v. PennDot, 160 Pa. Cmwlth. 32, 45, 634 A.2d 1150, 1157 (1993)). As noted supra, § 2713 holds that a caretaker is negligent for "intentionally, knowingly or recklessly" causing bodily injury to the care-dependent person for whom he is responsible to provide care. 18 Pa. C.S.A. § 2713 (a)(1). The paragraphs cited in Section A, Punitives, demonstrates Defendants' negligence in knowingly understaffing the facility, which created recklessly high nurse/resident ratios. Defendants knew that the personnel on duty would not be able to properly attend to the medical needs of the Facility's residents. Defendants' intentional refusal to act on their 15 knowledge of the deplorable staffing conditions at the Facility constitutes an egregious violation of the standard of care. e. Defendants' conduct was the proximate cause of Ms. Davis' injuries. In the present matter, Defendants' neglect and breach of the standard of care under § 2713 were the proximate cause of Ms. Davis' injuries." In deciding whether a plaintiff can bring a claim for negligence per se under a specific statute, the court must find "...a direct connection between the harm sought to be prevented by the statute and the injury." Wagner v. Anzon Inc., 453 Pa. Super. 619, 627, 684 A.2d 570, 574 (1996). Here, Plaintiffs have pled sufficient facts to support their claim for negligence per se pursuant to § 2713. Accordingly, Defendants' preliminary objections must be overruled. 2. There is a valid claim for negligence per se under the Pennsylvania Older Adults Protective Services Act. a. Under Pennsylvania law, Plaintiff is entitled to bring a negligence per se claim for violations of OAPSA. Defendants further argue that Plaintiff does not have a claim for negligence per se under 35 P.S. § 10225.101, et seq, "Pennsylvania Older Adults Protective Services Act (hereinafter "OAPSA" or "the Act") because it is an administrative statute and it does not provide a private cause of action. As with § 2713, Plaintiff is not attempting to bring a private cause of action under OAPSA, and the Complaint demonstrates that Plaintiff has pled sufficient facts to bring a negligence per se claim. As outlined below, there are numerous reasons why Defendants' preliminary objections must be overruled and Plaintiff should be allowed to bring a claim of negligence per se under OAPSA. " Complaint, at 1124. 16 Contrary to Defendants' contention, Plaintiff is in fact entitled to bring a claim of negligence per se for violation of OAPSA. In McCain, discussed supra, the District Court for the Eastern District of Pennsylvania specifically addressed this issue, and denied the defendant nursing home's motion to dismiss plaintiff's negligence per se claims under OAPSA. The court held that the plaintiff in that case had a valid claim for negligence per se under the statute and noted that the absence of a private cause of action in the statute is merely a single indicator of whether the statute contemplates enforcement of an individual harm and does not preclude the statute's use as the basis for a negligence per se claim. McCain, at * 1. See also Cabiroy, 767 A.2d at 1081 (holding that "[u]nder Pennsylvania law, the violation of a governmental safety regulation constitutes negligence per se if the regulation was, in part, intended to protect the interest of another as an individual [and] the interest of the plaintiff which was invaded, was one which the act intended to protect") (internal citations omitted). In the case sub judice, Plaintiff has sufficiently pled facts to establish the required elements of negligence per se, and is therefore entitled to pursue OAPSA as a basis for a claim of negligence per se. b. OAPSA is designed to protect the interests of care-dependent nursing home residents. In order to bring a claim for negligence per se under OAPSA, Plaintiff must plead that the purpose of the statute is, at least in part, to protect the interest of a particular group of people, as opposed to the public generally. 12 Wagner v. Anzon, 453 Pa.Super. 619, 627, 684 A.2d 570, 574 (1996). OAPSA sets forth civil and administrative penalties, as well as other consequences, for the abuse of a care-dependent person. The legislative intent of the Commonwealth of Pennsylvania regarding OAPSA is expressed as the following: Older adults who lack the capacity to protect themselves and are at imminent risk of abuse, neglect, exploitation or abandonment shall 12 Complaint, at $$ 128-31. 17 have access to and be provided with services necessary to protect their health, safety and welfare. It is not the purpose of this act to place restrictions upon the personal liberty of incapacitated older adults, but this act should be liberally construed to assure the availability of protective services to all older adults in need of them. Such services shall safeguard the rights of incapacitated older adults while protecting them from abuse, neglect, exploitation and abandonment. It is the intent of the General Assembly to provide for the detection and reduction, correction or elimination of abuse, neglect, exploitation and abandonment, and to establish a program of protective services for older adults in need of them. 35 P.S. § 10225.102 (emphasis added). Similar to § 2713 of the Crimes Code discussed supra, it is clear that OAPSA is also a statute that is intended to protect the interests of a select group of people - older adults who lack the capacity to protect themselves, and not simply the public at large. Additionally, OAPSA is directed, at least in part, to obviate the specific kind of harm which Ms. Davis sustained. C. Plaintiffs claim for negligence per se furthers the policy of OAPSA. In McCain, the court concluded that a nursing home resident qualifies for protection under the OAPSA provisions including, inter alia, 35 P.S. §§10225.302, 10225.303, and 10225.309, and noted that these types of "statutes and regulations are directed, at least in part, to obviate the specific kind of harm which was alleged to have been sustained." McCain, at * 1. For these reasons, the court concluded that "[t]he furtherance of those protective policies is a basis for delineating a nursing home's tortious duty in these circumstances." Id. Accordingly, the court dismissed objections lodged by the nursing home and allowed the plaintiffs decedent to pursue a negligence action where plaintiff alleged her mother had died from pressure sores she developed while a resident at the defendant nursing home facility. Id. It is respectfully submitted that a similar outcome is warranted here. There is little doubt that OAPSA was drafted to protect older Pennsylvanians such as Inez Davis. Plaintiff has pled that Defendants breached 18 their duty under OAPSA to properly care for Ms. Davis, and she suffered greatly as a result. 13 Therefore, the legislature's policy to protect older adults such as Ms. Davis from the abuse and neglect she suffered due to Defendants' conduct would be furthered by allowing Plaintiffs' claim for negligence per se to proceed. d. Defendants' negligent conduct breached the standard established by OAPSA. The mandatory reporting provision of OAPSA, 35 P.S. § 10225.701, requires an employee to report to an agency when there is reasonable cause to suspect a patient is a victim of abuse and neglect. The statute defines the terms "abuse" and "neglect" in similar fashion: "Abuse." (2) The willful deprivation by a caretaker of goods or services which are necessary to maintain physical or mental health. "Neglect." The failure to provide for oneself or the failure of a caretaker to provide goods or services essential to avoid a clear and serious threat to physical or mental health. 35 P.S. § 10225.103. Further, under the Pennsylvania Health and Safety Code for Long-Term Care Nursing Facilities, neglect is defined as a form of abuse. 28 Pa. Code § 201.3 (vi) (emphasis added). Defendants failed to provide the goods and services necessary to avoid a physical threat to Ms. Davis, evidenced by the numerous falls and other bodily injuries she suffered while a resident at Defendants' facility. 14 This conduct constitutes both neglect and abuse on behalf of Defendants. Further, Defendants had reasonable cause to suspect that Ms. Davis was the victim of such abuse and neglect given her multiple falls, including a fall resulting in a fractured C2 13 Complaint, at IT 128-32. 14 Id., at IT 51-96. 19 vertebra, contractures, medication errors, and severe pain. 15 Undoubtedly, Defendants were aware of the neglect suffered by Ms. Davis. 16 Under OAPSA, they had a duty to report the suspected abuse and neglect to the appropriate agency and law enforcement officials, but did not Therefore, they breached their duty in direct violation of the statute, which was designed to prevent the abuse and neglect of the elderly. e. Defendants' conduct was the proximate cause of Ms. Davis' injuries Plaintiff has pled that Defendants' neglect and breach of the standard of care established under OAPSA were the proximate cause of Ms. Davis' injuries. Plaintiffs Complaint demonstrates the severe breach in the standard of care suffered by Ms. Davis during her residency at Defendants' facility. Defendants' intentional and reckless conduct in severely under-staffing the facility led to inadequate supervision of Ms. Davis, thereby causing her to suffer from numerous falls, including a fall resulting in a fractured C2 vertebra, contractures, medication errors, and severe pain. Defendants' neglect had a severely negative impact on the care afforded to Ms. Davis. Further, Defendants' neglect in failing to report the suspected abuse and neglect suffered by Ms. Davis also contributed to her injuries. If Defendants' employees reported the abuse Ms. Davis suffered due to inadequate care, lack of supervision, and neglect, then her future injuries could have been prevented. The reporting provision, discussed supra, exists for exactly such a reason, and Defendants' failure to report the abuse prevented any outside agency from taking action to protect Ms. Davis. As demonstrated above, there is ample authority in Pennsylvania to support a claim of negligence per se based on the standard of care created by OAPSA. The statute created a duty 1' Complaint, at IT 45, 55, 60, 61, 81, 87, 96. 16 Id., at IT 51-96. 20 for the treatment of older adults in nursing homes, Defendants breached that duty, and their breach of that duty was the proximate cause of Ms. Davis' injuries. 17 Plaintiffs have therefore properly pled sufficient facts to establish a claim for negligence per se. Accordingly, Defendants' preliminary objections must be denied. V. CONCLUSION WHEREFORE, Plaintiff, Gloria Banks, Guardian of Inez Davis, by and through the undersigned counsel, respectfully requests that this Court overrule Defendants' Preliminary Objections and further order Defendants to file an Answer to Plaintiffs Complaint within twenty (20) days of the date of the order. Dated: -t1`/-/ / I' Complaint, at ¶ 132. Respectfully submitted, WILKES & McHUGH, P.A. Tan T. Norris, squire Attorney for laintiff 21 CERTIFICATE OF SERVICE I, Ian T. Norris, Esquire, attorney for Plaintiff, attest and certify that a copy of the Plaintiff's Response to Defendants' Preliminary Objections, was served via regular mail, upon all counsel of record on the date listed below. Jacqueline M. Carolan, Esquire Amit Shah, Esquire Fox Rothschild, LLP 2000 Market Street, 20th Floor Philadelphia, PA 19103-3222 (Attorneys for Defendants) Date: 121611 4 VERIFICATION I, Ian T. Norris, Esquire, verify that the statements made in the foregoing Plaintiff's Response to Defendants' Preliminary Objections are true and correct based upon present information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: ?151-1 / an T. Norris, Attorney for 1 5 EXHIBIT "A" F i„. G " WILKES & McHUGH, P.A. By: Ian T. Norris, Esquire Supreme Court ID No.: 207566 400 Market Street, Suite 1250 Philadelphia, PA 19106 Telephone No.: 215-972-0811 Fax No.: 215-972-0580 email: inorris(gv& kesmchu 7hh..com GLORIA BANKS, GUARDIAN OF INEZ DAVIS Plaintiffs 201I APRI 26 P 2. 245 } MS , F IAtT"/ I?EId"Sl_Vi.l?ll?t Attorney for Plaintiff, Gloria Banks, Guardian of Inez Davis COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA. t vs. GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE, GGNSC HOLDINGS, LLC; GGNSC CAMP HILL WEST SHORE GP, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC; : GGNSC EQUITY HOLDINGS, LLC and BEVERLY FRY, N.H.A. Defendants. CIVIL ACTION NO. 10-6924 NOTICE, TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILLING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP, CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 - 717-249-3166 WILKES & McHUGH, P.A. By: Ian T. Norris, Esquire Supreme Court ID No.: 207566 400 Market Street, Suite 1250 Philadelphia, PA 19106 Telephone No.: 215-972-0811 Fax No.: 215-972-0580 email: in_ orris@wilkesmchu h com GLORIA BANKS, GUARDIAN OF INEZ DAVIS Plaintiffs VS. GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE; ; GGNSC HOLDINGS, LLC; GGNSC CAMP HILL WEST SHORE GP, LLC; : GOLDEN GATE NATIONAL SENIOR CARE, LLC; : GGNSC EQUITY HOLDINGS, LLC and BEVERLY FRY, N.H.A. Defendants. CIVIL ACTION NO. 10-6924 COMPLAINT IN CIVIL ACTION (Medical Professional Liability Action) Plaintiff, Gloria Banks, by and through her counsel, Wilkes & McHugh, P.A., file the within Complaint in Civil Action as follows: 1. PARTIES 1. Inez Davis was an adult individual and resident at Golden Living Center - West Shore (hereinafter referred to as "the Facility"), a nursing home, located at 770 Poplar Church Road, Camp Hill, Pennsylvania 17011, from December 2, 2006 through the present time. 2. Gloria Banks is the daughter of Inez Davis and an adult individual and citizen of the Commonwealth of Pennsylvania, residing at 5776 Catherine Street, Attorney for Plaintiff, Gloria Banks, Guardian of Inez Davis COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA. 2 Harrisburg, Pennsylvania 17112. 3. Gloria Banks was appointed guardian Inez Davis on April 12, 2007 by the Honorable Wesley Oler, Jr., in the Court of Common Pleas of Cumberland County. 4. Defendant, GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore, is a partnership, duly licensed, organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania, with offices and a place of business located at 770 Poplar Church Road, Camp Hill, Pennsylvania 17011. 5. Defendant, GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore, is engaged in the business of owning, operating and/or managing nursing homes, including Golden Living Center - West Shore (hereinafter "the Facility"), providing healthcare, medical services, nursing care, assisted living/personal care to the public in Camp Hill, Cumberland County, Pennsylvania, and, was at all times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania, and was the employer, supervisor and/or partner of all other Defendants, noted herein, holding itself and its agents, employees, servants, contractors, subcontractors, staff and/or partners, and those persons granted privileges at the Facility, out to the public as competent and skillful long-term healthcare providers and practitioners of medicine and which is personally and vicariously liable, among other things for the acts and omissions of themselves, their agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care of Inez Davis. 6. Defendant, GGNSC Holdings, LLC, is a foreign corporation, with offices and a place of business located at 1000 Fianna Way, Forth Smith, Arkansas, 72919. 3 7. Defendant, GGNSC Holdings, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including the Facility, providing healthcare, medical services, nursing care, assisted living/personal care to the public in Camp Hill, Cumberland County, Pennsylvania, and, was at all times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania, and was the employer, supervisor and/or partner of all other Defendants, noted herein, holding itself and its agents, employees, servants, contractors, subcontractors, staff and/or partners, and those persons granted privileges at the Facility, out to the public as competent and skillful long- term healthcare providers and practitioners of medicine and which is personally and vicariously liable, among other things for the acts and omissions of themselves, their agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care of Inez Davis. 8. Defendant, GGNSC Camp Hill West Shore GP, LLC, is a foreign corporation, with offices and a place of business located at 1000 Fianna Way, Forth Smith, Arkansas, 72919. 9. Defendant, GGNSC Camp Hill West Shore GP, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including the Facility, providing healthcare, medical services, nursing care, assisted living/personal care to the public in Camp Hill, Cumberland County, Pennsylvania, and, was at all times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania, and was the employer, supervisor and/or partner of all other Defendants, noted herein, holding itself and its agents, employees, servants, contractors, subcontractors, staff and/or partners, and those persons granted privileges at the Facility, out to the public as competent and skillful 4 long-term healthcare providers and practitioners of medicine and which is personally and vicariously liable, among other things for the acts and omissions of themselves, their agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care of Inez Davis. 10. Defendant, Golden Gate National Senior Care, LLC, is a foreign corporation, with offices and a place of business located at 1000 Fianna Way, Forth Smith, Arkansas, 72919. 11. Defendant, Golden Gate National Senior Care, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including the Facility, providing healthcare, medical services, nursing care, assisted living/personal care to the public in Camp Hill, Cumberland County, Pennsylvania, and, was at all times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania, and was the employer, supervisor and/or partner of all other Defendants, noted herein, holding itself and its agents, employees, servants, contractors, subcontractors, staff and/or partners, and those persons granted privileges at the Facility, out to the public as competent and skillful long-term healthcare providers and practitioners of medicine and which is personally and vicariously liable, among other things for the acts and omissions of themselves, their agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care of Inez Davis. 12. Defendant, GGNSC Equity Holdings, LLC, is a foreign corporation, with offices and a place of business located at 1000 Fianna Way, Forth Smith, Arkansas, 72919. 5 13. Defendant, GGNSC Equity Holdings, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including the Facility, providing healthcare, medical services, nursing care, assisted living/personal care to the public in Camp Hill, Cumberland County, Pennsylvania, and, was at all times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania, and was the employer, supervisor and/or partner of all other Defendants, noted herein, holding itself and its agents, employees, servants, contractors, subcontractors, staff and/or partners, and those persons granted privileges at the Facility, out to the public as competent and skillful long- term healthcare providers and practitioners of medicine and which is personally and vicariously liable, among other things for the acts and omissions of themselves, their agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care of Inez Davis. 14. Defendant, Beverly Fry, N.H.A., is an individual, who was at all times material hereto, employed by the foregoing Defendants as the Nursing Home Administrator at the Facility, and upon information and belief, served as a member of the Facility's Governing Body. Upon information and belief, Defendant Fry is a resident of the Commonwealth of Pennsylvania, with a residence at 174 Silver Creek Road, Port Trevorton, Pennsylvania, 17864-9631. 15. Defendant, Beverly Fry, is directly and vicariously liable for, among other things, the acts and omissions of her agents, employees, servants, contractors, subcontractors and staff, all of whom played a role in the care of Inez Davis. 16. Upon present information and belief, at all times material hereto, the Defendants collectively owned, operated, licensed and/or managed the Facility, and are 6 collectively engaged in the business of providing nursing care and assisted living/personal care services to the general public akin to a hospital. II. JURISDICTION AND VENUE IT Jurisdiction and venue are proper in this Honorable Court insofar as Defendants regularly conduct business in Cumberland County, Pennsylvania, and/or the cause of action arose therein. See Pa.R.C.P. 1006 and 2179. III. FACTUAL BACKGROUND A. Conduct of the Defendants 18. On December 2, 2006, Inez Davis was admitted to the care of the Facility where she remains as a resident. 19. During the course of her residency, Inez Davis was incapable of independently providing for all of her daily care and personal needs without reliable assistance. In exchange for monies, she was admitted to Defendants' Facility to obtain .such care and protection 20. The Defendants, through advertising, promotional materials and information sheets, held out themselves and the Facility, as being able to provide skilled nursing care to sick, elderly and frail individuals, including Inez Davis. 21. At all times material hereto, the Defendants held themselves out as capable of providing skilled nursing care and total healthcare, akin to a hospital, and assumed responsibility for Inez Davis' total healthcare, including care planning and the provision of medication, medical care and treatment, therapy, nutrition, hydration, hygiene and all activities of daily living. 7 22. At the time of her admission, the Defendants, individually and/or through their agents, employees, servants, contractors, subcontractors, staff and representatives, assessed the needs of Inez Davis and promised that they would adequately care for her needs. 23. The Defendants exercised complete and total control over the healthcare, akin to a hospital, of all residents of the Facility such as Inez Davis. 24• Upon information and belief, at all times material hereto, the Defendants were a vertically integrated corporation that was controlled by the same board of directors, who were responsible for the operation, planning, management and quality control of the Facility. 25 Defendants included, inter alia: budgeting, marketing, human resource management, training, staffing, and the creation and implementation of all policy and procedure manuals used by the Facility. 26. The Defendants also exercised control over reimbursement, quality care assessment and compliance, licensure, certification, and all financial, tax and accounting issues through control of the fiscal policies of the Facility. 27. The Defendants, by and through their board of directors and corporate officers, utilized survey results and quality indicators to monitor the care being provided at their nursing homes, including the Facility. 28. The Defendants exercised ultimate authority over all budgets and had final approval over the allocation of resources to their nursing homes, including the Facility. At all times material hereto, the control exercised over the Facility by the 8 29. As a part of their duties and responsibilities, the Defendants have an obligation to establish policies and procedures that address the needs of the residents of the Facility, such as Inez Davis, with respect to the recognition and/or treatment of medical conditions, such as those experienced by Inez Davis, so as to ensure that timely and appropriate care will be provided for such conditions whether within the Facility, or obtained from other medical providers. 30. The Defendants, acting through their administrators, various boards, committees, and individuals, are responsible for the standard of professional practice by members of their staff at the Facility, and to oversee their conduct in the matters set forth herein. 31. The Defendants have an obligation to employ competent, qualified staff so as to ensure that proper treatment is rendered to individuals having medical problems, such as those presented by Inez Davis as set forth herein. 32. As a part of their duties and responsibilities, the Defendants have an obligation to maintain and manage the Facility with adequate staff and sufficient resources to ensure the timely recognition and appropriate treatment of medical conditions suffered by residents, such as Inez Davis, whether within the Facility, or obtained from other medical care providers. 33. At all times material hereto, the Defendants made a conscious decision to operate and/or manage the Facility so as to maximize profits at the expense of the care required to be provided to its residents, including Inez Davis. 9 34. In their efforts to maximize profits, the Defendants negligently, intentionally and/or recklessly mismanaged and/or reduced staffing levels below the level necessary to provide adequate care to residents, which demonstrates a failure to comply with the applicable regulations and standards for nursing homes. 35. The Defendants recklessly and/or negligently disregarded the consequences of their actions, and/or negligently caused staffing levels at the Facility to be set at a level such that the personnel on duty at any given time could not reasonably tend to the needs of their assigned residents, including Inez Davis. 36. Over the past several years, and at all times material hereto, the Defendants have intentionally increased the number of sick, elderly and frail residents with greater health problems requiring more complex medical care. 37. The Defendants knew that this increase in the acuity care levels of the resident population would substantially increase the need for staff, services, and supplies necessary for the new resident population. 38. The Defendants knew, or should have known, that the acuity needs of the residents in their nursing homes increased and, therefore, the resources necessary increased, including raising the amount of staffing required to meet the needs of the residents. A The Defendants failed to provide resources necessary, including sufficient staff, to meet the needs of the residents, including Inez Davis. 40. The Defendants knowingly established staffing levels that created recklessly high resident to staff ratios, including high resident to nurse ratios. 10 41. The Defendants knowingly disregarded patient acuity levels while making staffing decisions; and, also knowingly disregarded the minimum time required by the staff to perform essential day-to-day functions and treatments. 42. The acts and omissions of the Defendants were motivated by a desire to increase the profitability of the nursing homes, including the Facility, by knowingly, recklessly, and with total disregard for the health and safety of the residents, reducing expenditures for needed staffing, training, supervision, and care to levels that would inevitably lead to severe injuries, such as those suffered by Inez Davis. 43. The actions of the Defendants were designed to increase reimbursements by governmental programs, which, upon information and belief, are the primary source of income for the Facility. 44. The aforementioned acts directly caused injury to Inez Davis and were known by the Defendants. 45. During the residency of Inez Davis at the Facility at all times material hereto, the Defendants knowingly sacrificed the quality of care received by all residents, including Inez Davis, by failing to manage, care, monitor, document, chart, prevent, diagnose and/or treat the injuries and illnesses suffered by Inez Davis, as described herein, which included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain. 46. At the time and place of the incidents hereinafter described, the Facility whereupon the incidents occurred was individually, collectively, and/or through a joint venture, owned, possessed, controlled, managed, operated and maintained under the exclusive control of the Defendants. 47. At all times material hereto, the Defendants were operating personally or through their agents, servants, workers, employees, contractors, subcontractors, staff, and/or principals, who acted with actual, apparent and/or ostensible authority, and all of whom were acting within the course and scope of their employment and under the direct and exclusive control of the Defendants herein. 48. The aforementioned incidents were caused solely and exclusively by reason of the negligence, carelessness and recklessness of the Defendants, their agents, servants, contractors, subcontractors, staff and/or employees and was due in no part to any act or omission to act on the part of Inez Davis. 49. Inez Davis a was a resident of the Facility on or about December 6, 2006, through the present time, when, during all times material hereto, a continuing course of conduct by Defendants' actions and/or lack of actions, which included mismanagement, understaffing and lack of training, were the cause of serious events involving Inez Davis and her serious and permanent injuries and damages hereinafter alleged by Plaintiff, Gloria Banks, that occurred at the Facility. 50. The Defendants, their agents, servants, contractors, subcontractors, staff and/or employees are/were, at all times material hereto, licensed professionals/ professional corporations and/or businesses and the Plaintiff, Gloria Banks, are asserting professional liability claims against all of the Defendants, their agents, servants, contractors, subcontractors, staff and/or employees, in addition to claims sounding in ordinary negligence. 12 B. Injuries of Inez Davis 51. At the time of her admission to the care of the Facility on December 2, 2006, Inez Davis had a past medical history of HTN, Alzheimer's Disease, CVA, gastrointestinal disease, hyperlipidemia, and psychosis. 52. Upon admission to the Facility, Inez Davis was dependent upon the staff for her mental, physical and medical needs, requiring total assistance with activities of daily living, and had various illnesses and conditions that required evaluation and treatment. 53. limited to falls and contractures. 54. Over the course of the residency of Inez Davis at the Facility at all times material hereto, Defendants engaged in a pattern of care replete with harmful and injurious commissions, omissions and neglect as described herein. 55. The Defendants deprived Inez Davis of adequate care, treatment, food, water and medicine and caused her to suffer numerous illnesses and injuries, which upon information and belief, included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain. 56. The severity of the recurrent negligence inflicted upon Inez Davis while in the care of the Defendants during her residency at the Facility at all times material hereto, accelerated the deterioration of her health and physical condition, and resulted in physical and emotional injuries that caused her severe pain, suffering and mental anguish, together with unnecessary hospitalizations. Inez Davis was at risk for future illnesses and injuries, including but not 13 57. These injuries, as well as the conduct specified herein, caused Inez Davis to suffer a loss of personal dignity, together with degradation, anguish and emotional trauma. 58. On December 2, 2006, Inez Davis came to the Facility to receive long term care. 59. At the time of her admission and through out her residency, Inez Davis was cognitively impaired and confused to time and place. She required cueing, reminders and constant supervision for safety. 60. A care plan dated December 15, 2006, noted that Inez Davis was at an increased risk for falls related to her wandering behavior and crawling on the floor. 61. However, thought out the remainder of her residency, the Facility consistently failed to complete fall risk assessments for Inez Davis, even though other assessments were done on a quarterly basis, she was on numerous medications that increased her risk of falls, and she did indeed fall on numerous occasions. 62. On January 8, 2009, nursing notes indicated that despite her wandering, Inez Davis had pitting edema to her lower extremities and was taking 40mg of I asix daily. 63. On January 9, 2009, Inez Davis fell while in the bathroom at approximately 4:25 a.m. 64. The records from the Facility indicate that the Facility failed to document the fall when it actually occurred and backdated nurses notes and a change in condition report to reflect that the fall was documented in a timely manner. 14 65. The nurse note, dated January 9, 2009 at 4:25 a.m., indicated that Inez Davis was "found on floor in bathroom, [with] head injury." This note was entered after a note dated January 9, 2009, at 8:36 p.m., which described Inez Davis as being unsteady while walking but x-rays of her skull and spine were negative. 66. Also, there was a handwritten note at the bottom of this page of nurse notes by the nursing supervisor regarding Inez Davis' status. In addition, there was a written order for x-rays that was not timed, however, x-ray reports could not be found in Inez Davis' records. 67. However, it was not noted anywhere in these notes that Inez Davis' doctor or family were notified of this fall. 68. The change in condition report, dated January 9, 2009, at 4:40 a.m., indicated that Inez Davis was found on the floor with "no apparent injuries." The report further stated that Ms. Davis complained of a headache but a few minutes later said it did not hurt, and she refused Tylenol. 69. The change in condition report also did not indicate that a doctor or Inez Davis' family was notified. 70. On January 10, 2009, at 1:39 p.m., Inez Davis was noted to have a stiff neck and complained of pain. 71. On January 11, 2009, at 3:14 p.m., Inez Davis's right eye pupil was noted to be pinpoint and non-responsive. She complained of head pain. 72. A doctor was notified, and Inez Davis was sent to Holy Spirit Hospital emergency room, approximately 58 hours after she fell in the bathroom. 15 73. At Holy Spirit Hospital, it was determined that Inez Davis had a fractured neck and was transferred to Hershey Medical Center for further intervention. 74. A CT scan at Hershey Medical Center revealed bilateral C2 pedicle fractures consistent with a hangman's fracture involving the axis. She was provided with a neck brace and given pain medication. 75. Inez Davis returned to the Facility on January 12, 2009. Prior to her return, a pharmacy consulted completed a medication review on January 10 (after the fall). 76. The medication review indicated that Inez Davis' blood pressure was supposed to be checked twice daily prior to the administration of the medication Prinivil; however blood pressure readings were not documented in Ms. Davis' medication administration record ("MAR"). A decrease in blood pressure increases Ms. Davis' risk of falling. 77. The review noted that the medication Aricept can cause dizziness and abnormal gait, further increasing the risk of falls. It was recommended that this medication be given before bedtime to reduce the fall risk, however the Facility continued to administer it in the morning. 78. The review further noted that the medication Risperdal further increases the risk of falls. Lastly the review recommended that the medication Zoloft be given before bedtime rather than in the morning to reduce the risk of falls. It is not clear if this was done. 16 79. Upon Inez Davis' readmission to the Facility, there were orders for her chair and bed alarm batteries to be replaced every month. However, it was noted in her Activities of Daily Living ("ADL") flow record that no batteries were available in the Facility on January 15, 2009, and December 16, 2009. Also, batteries were not replaced on February 15, 2010. 80. At some point between February 17, 2009, and March 15, 2009, physical therapy noted that Inez Davis was ambulating and fell. It was suspected she sprained her right ankle. An exact date is impossible to pin point as there are no nurses notes for this time period. 81. On June 26, 2009, Inez Davis fell yet again, this time falling off a chair in the dining room. 82. On September 13, 2009, Inez Davis was sent to Holy Spirit Hospital for an unresponsive episode. There are no documents from the Facility regarding this incident. 83. The history and physical from Holy Spirit Hospital indicated that a similar episode occurred in January of 2009 (when Inez Davis fell in the bathroom) resulting in a fractured neck. 84. On December 2, 2009, occupational therapy noted a decrease in range of motion in Inez Davis' wrist and fingers. Occupational therapy suggested further caregiver education to establish proper restorative training. 85. On December 3, 2009, it was noted that Inez Davis continues to set of bed alarm in bed and requires close supervision by staff. Her gait was poor, and she required hand-held assist of one when ambulating. 17 86. On December 8, 2009, nursing notes indicate that Inez Davis was able to verbalize needs, but now required the assist of 2 for transfers. Her gait was noted as slow and unsteady at times. 87. On December 10, 2009, Inez Davis suffered another fall. 88. On February 1, 2010, occupational therapy noted that Inez Davis' left hand was contracted and she was combative and resistant to gentle range of motion exercises. Pain was noted. 89. On February 17, 2010, Inez Davis was noted to be resistant with care at times and was noted to frequently attempt to get out of her chair. 90. On March 3, 2010, nursing notes indicated that Inez Davis had several raised red areas to her torso and arms. 91. On March 8, 2010, at 5:50 a.m., staff responded to Inez Davis' chair alarm and found Ms. Davis sitting on the floor. No injuries were noted however Vicodin was given on an as needed basis. The pain monitoring sheet from the Facility is blank. 92. The Facility accepted Inez Davis as a resident fully aware of her medical history and understood the level of nursing care required to maintain the integrity of her skin in order to preclude her from suffering any further breakdown and to provide sufficient food and water to preclude malnutrition and dehydration. 93. Throughout Inez Davis' chart there is missing and incomplete documentation, including but not limited to - nurses notes, Activities of Daily Living sheets, medication administration records, treatment administration records, and controlled medication utilization record. 18 94. The Defendants deprived Inez Davis of adequate and appropriate healthcare as a result of mismanagement, improper/under-budgeting, understaffing of the Facility and lack of training of the Facility employees, in that they failed to provide adequate and appropriate health care; engaged in incomplete, inconsistent and fraudulent documentation; failed to develop an appropriate therapeutic care plan; failed to provide adequate supervision to prevent falls and accidents; and, failed to ensure the highest level of physical, mental and psychosocial functioning was attained. 95. The severity of the recurrent negligence inflicted upon Inez Davis while in the Defendants' care consisted of mismanagement, improper/under-budgeting, understaffing of the Facility and lack of training of the Facility employees, in that they failed to provide adequate and appropriate health care; engaged in incomplete, inconsistent and fraudulent documentation; failed to provide adequate supervision to prevent falls and accidents; and, failed to ensure the highest level of physical, mental and psychosocial functioning was attained. 96. As a result of the negligence, carelessness and recklessness of the Defendants herein described, Inez Davis was caused to suffer serious and permanent injuries as described herein, to, in and about her body and possible aggravation and/or activation of any pre-existing conditions, illnesses, ailments, or diseases she had, and/or accelerated the deterioration of her health, physical and mental condition, and more particularly, but without limitations, included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, and other body pain and damage, and anxiety reaction and injury to her nerves and nervous system, some or all of which were permanent, together with other medical complications. 19 IV. COUNT ONE Gloria Banks, as Attorney-In-Fact for Inez Davis v. GGNSC Camp Hill West Shore, LP d1b/a Golden Living Center - West Shore; GGNSC Holdings, LLC; GGNSC Camp Hill West Shore GP, LLC; Golden Gate National Senior Care, LLC; GGNSC Equity Holdings, LLC; and Beverly Fry, an individual 97. Plaintiffs hereby incorporate by reference the preceding paragraphs as though the same were fully set forth at length herein. 98. At all times material hereto, Defendants were acting through their agents, servants and employees, who were in turn acting within the course and scope of their employment under the direct supervision and control of the Defendants. 99. At all times material hereto, Defendants had the ultimate responsibility of ensuring that the rights of the residents, including Inez Davis, were protected. 100. At all times material hereto, Defendants owed a non-delegable duty to provide adequate and appropriate custodial care and supervision to Inez Davis and other residents, such as reasonable caregivers would provide under similar circumstances. 101. At all times material hereto, Defendants owed a non-delegable duty to Inez Davis and other residents to hire, train, and supervise employees, so as to deliver healthcare and services to residents in a safe and reasonable manner. 102. At all times material hereto, Defendants, by and through their agents, employees, and/or servants owed a duty of care to Inez Davis to exercise the appropriate skill and care of licensed physicians, nurses, directors of nursing, and/or nursing home administrators. 20 103. At all times material hereto, Defendants owed a duty and responsibility to furnish Inez Davis with appropriate and competent nursing, medical and/or total healthcare. 104. Plaintiffs believe, and therefore aver, that the administrator, director of nursing, and/or other staff members of the Facility, sent frequent written reports to the Defendants detailing the number and types of injuries, illnesses, and infections sustained by Inez Davis and the residents in the Facility. 105. Despite being made aware of the types and frequency of injuries, illnesses, and/or infections, many of which were preventable, sustained by the residents of the Facility, including those suffered by Inez Davis, the Defendants failed to take steps to prevent the occurrence of said injuries, illnesses, and/or infections. 106. The Defendants knew, or should have known, of the aforementioned problems that were occurring with the care of Inez Davis, as they were placed on actual and/or constructive notice of said problems, including through governmental/state surveys. 107. The Defendants, as the corporate owners, board members and/or managers of the Facility, breached their duty and were, therefore, negligent, careless and reckless in their obligations to Inez Davis. 108. The corporate conduct of the Defendants was independent of the negligent conduct of the employees of the Facility, and was outrageous, willful, and wanton, and exhibited a reckless indifference to the health and well-being of the residents, including Inez Davis. 21 109. At all times material hereto, Defendants owed and failed to fulfill the following duties to Inez Davis: use reasonable care in the maintenance of safe and adequate facilities and equipment; select and retain only competent staff, oversee and supervise all persons who practiced nursing, medical and/or skilled healthcare within the Facility; and, formulate, adopt, and enforce rules, procedures and policies to ensure quality care and healthcare for all residents. 110. At all times material hereto, the breach of duties, negligence, carelessness and recklessness of the Defendants, individually, vicariously and/or acting by and through their officers, board members, physicians, physicians' assistants, nurses, certified nurses' aides and office staff who examined, treated and/or communicated the condition of Inez Davis, and through the administrative personnel responsible for hiring, retaining and/or dismissing staff, staff supervision and policy-making and enforcement, as well as any agents, servants, employees, contractors, subcontractors and/or consultants of the Defendants consisted of the following acts and omissions in the care and treatment of Inez Davis: ' a. failure to hire appropriately trained staff who failed to prevent and engaged in incomplete, inconsistent and fraudulent documentation, failed to provide appropriate treatment and services to prevent which included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain and failed to provide adequate assessments of Inez Davis following a change in condition; b. failure to appropriately train staff members who failed to prevent and engaged in incomplete, inconsistent and fraudulent documentation, failed to provide appropriate treatment and services to prevent which included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, and failed to provide adequate assessments of Inez Davis following a change in condition; 22 C. knowingly allowing and/or encouraging unskilled and untrained individuals to care for Inez Davis who failed to prevent and engaged in incomplete, inconsistent and fraudulent documentation, failed to provide appropriate treatment and services to prevent which included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, and failed to provide adequate assessments of Inez Davis following a change in condition; d• failure to prevent and engage in incomplete, inconsistent and/or fraudulent documentation by failing to consistently complete nurses notes, Activities of Daily Living sheets, failing to document administration of medications, failing to document review of drug regime, failing to consistently document Treatment Record, and failing to properly complete Medication Administration Records; e• failure to provide Inez Davis with proper medication and supervision, and allowing her to suffer therefrom as described herein; f. failure to provide adequate pain management; g• failure to ensure that Inez Davis did not develop serious and permanent injuries to, in and about her body and possible aggravation and/or activation of any pre-existing conditions, illnesses, ailments, or diseases she had, and/or accelerated the deterioration of her health, physical and mental condition, and more particularly, but without limitations, when she experienced which included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, when Defendants knew or should have known that she was at risk for the same; h• failure to respond in a timely manner with appropriate medical care when Inez Davis was injured, including when she experienced which included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, when Defendants knew or should have known that she was at risk for the same; i• failure to provide adequate and appropriate health care by failing to respond to a change in condition in a timely manner, failing to provide an adequate assessment following a change in condition, failing to provide adequate hygiene, failing to provide appropriate treatment and services to prevent which included numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; 23 medication errors; and severe pain, and failing to administer ordered medications and treatments; failure to ensure complete, consistent documentation and avoid fraudulent documentation by failing to update MDS with significant changes in conditions, and failing to provide complete and consistent documentation; k. failure to develop an appropriate therapeutic care plan by failing to develop a comprehensive care plan and revise it to reflect current conditions, and failing to provide social services such as physical therapy, occupational therapy and speech therapy in order to attain the highest practicable physical, mental, and social well being; I. failure to provide a safe environment by failing to ensure adequate supervision and assistive devices to prevent accidents; in. failure to ensure that each resident receives and that the facility provides the necessary care and services to attain or maintain the highest practicable physical, mental and psychosocial well-being, in accordance with the comprehensive assessment and plan of care; n. failure to ensure that the facility uses the results of the assessment to develop, review and revise the resident's comprehensive plan of care, developing a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment, describing the services that are to be furnished to attain or maintain the resident's highest practicable physical, mental, and psychosocial well-being; o. failure to ensure that the facility has sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by the resident assessments and individual plans of care, providing services by sufficient number of each of the required types of personnel on a twenty-four hour basis to provide nursing care to all residents in accordance with resident care plans; P. failure of the facility to provide a safe, functional, sanitary, and comfortable environment for residents, staff, and the public; q. failure of the facility to be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well- 24 being of each resident; r. failure of the facility to develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of the resident's property; S. failure of the facility to ensure that the services provided or arranged by the facility must be provided by qualified persons in accordance with each resident's written plan of care; t. failure of the facility to promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality; U. failure of the facility to ensure that the resident's right to reside and receive services with reasonable accommodations of individual needs and preferences, except when the health or safety of the individual or other residents would be endangered, providing sufficient space and equipment in dining, health services, recreation, and program areas to enable the staff to provide residents with needed services as required by the standards and as identified in each resident's plan of care; V. failure of the facility to ensure that the resident is permitted to retain and use personal clothing and possessions as space permits unless to do so would infringe upon the rights of other residents and unless medically contraindicated as documented by the resident's physician in the clinical record; W. failure of the facility to ensure that each resident receives adequate supervision and assistance devices to prevent accidents; X. failure of the facility to provide a safe, clean, comfortable and homelike environment allowing the resident to use his or her personal belongings to the extent possible; Y. failure to ensure that each resident's drug regimen must be free from unnecessary drugs; Z. failure to ensure that the resident's right to reside and receive services in the facility with reasonable accommodations of individual needs and preferences except when the health or safety of the individual or other residents would be endangered; aa. failure to use reasonable care in the maintenance of safe and adequate facilities and equipment; 25 bb. failure to select and retain only competent staff who failed to: provide adequate and appropriate health care to prevent numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, properly notify physicians in a timely manner, follow physician orders, develop and revise appropriate care plans, provide complete and consistent documentation, provide appropriate treatment, services and adequate assessments following change in condition to prevent numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain; CC. failure to oversee and supervise all persons who practiced nursing and/or skilled healthcare in the Facility who failed to: provide adequate and appropriate health care to prevent numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, properly notify physicians in a timely manner, follow physician orders, develop and revise appropriate care plans, provide complete and consistent documentation, provide appropriate treatment, services and adequate assessments following change in condition to prevent numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain; dd. failure to formulate, adopt and enforce adequate rules, procedures and policies to ensure quality healthcare for residents by failing to: provide adequate and appropriate health care to prevent numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain, properly notify physicians in a timely manner, provide safe transfers, follow physician orders, develop and revise appropriate care plans, provide complete and consistent documentation, provide appropriate treatment, services and adequate assessments following change in condition to prevent numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain; ee. failure to provide competent agents, servants, workmen and/or employees who would perform the duties required by law of the Defendants; ff acting in a grossly negligent manner, with reckless indifference to the rights and safety of Inez Davis; gg. failure to undertake and/or implement the instructions provided by physicians and notify the physicians of change of Inez Davis; 26 hh. failure to refer Inez Davis to the necessary medical specialists in a timely manner who would have properly diagnosed and/or treated Inez Davis' condition due to failure to notify treating physicians and follow up on physicians instructions; ii. failure to provide Inez Davis with the necessary care and services to allow her to attain or maintain the highest practicable physical, mental and psychological well-being; jj. failure to provide Inez Davis with appropriate medication for pain management; kk. failure to provide Inez Davis with adequate hydration and nourishment, resulting in a diagnosis of numerous falls, including a fall resulting in a fractured C2 vertebra; contractures; medication errors; and severe pain; 11. failure to assist Inez Davis in her personal hygiene; mm. failure to treat Inez Davis with human decency and respect; nn. failure to ensure that the Facility was properly funded; oo. failure to implement a budget that would allow the Facility to provide adequate and appropriate healthcare to Inez Davis including adequate staff and supplies; pp. grossly understaffing the Facility, as evinced in part by Inez Davis' numerous unsupervised falls and accidents as well as the numerous missing and/or backdated notes and other documentation; qq. failure to take appropriate steps to remedy continuing problems at the Facility that Defendant knew were occurring with Inez Davis' care, which included the need to increase the number of employees, hiring skilled and/or trained employees, adequately training the current employees, monitoring the conduct of the employees, and/or changing the current policies and procedures to improve resident care; rr. failure to evaluate the quality of resident care and efficiency of services, identify strengths and weaknesses, set in place measures for improvements where necessary, and, evaluate progress and institute appropriate follow-up activities; 27 ss. failure to set in place a functional table of organization with standards of accountability and hold department heads accountable for the performance of their respective departments; tt. failure to maintain open lines of communication with the governing body, department heads, facility staff and its residents to assure resources are properly allocated and that resident care is maintained at a high level; uu. failure to maintain compliance with governmental regulations and assure that the nondiscriminatory policy and policy on resident rights of the Facility are available for inspection by the public; VV. failure to implement personnel policies and procedures that define job responsibilities, accountability and the performance appraisal process and emphasize the importance of the health care team in the delivery of quality resident care; ww. failure to assure that a formal program is in place to provide for the recruitment, hiring and development of competent department managers and other staff at the Facility; xx. failure to coordinate training programs to improve employee skills and to enhance employee performance; yy. failure to develop a budget with an objective of the delivery of quality care; zz. failure to maintain sanitary and structural integrity of the premises at the Facility, for the health and welfare of the residents, such as Inez Davis; aaa. failure to provide adequate assessment following a change in the medical condition of Inez Davis; bbb. failure to assess and document the effectiveness and/or side effects of the use of medications including antidepressant and psychotropic drug use; and, ccc. failure to implement physicians' orders and to keep physicians informed, resulting in delay of treatment and harm to residents which was contrary to the health and welfare of the residents, such as Inez Davis. 28 Ill. Upon information and belief, the corporate officers of the Defendants were made aware of the governmental/state survey results and placed on notice of the status of their nursing homes, including the Facility. 112. Upon information and belief, the Defendants were aware that they had been cited by governmental units regarding the Facility for failing to ensure that the resident environment remained as free of accident hazards as possible, failing to provide adequate supervision and oversight in a manner that ensured that facility safety rules were consistently implemented to ensure the safety of the residents of the facility, failing to conduct timely comprehensive assessments of residents with cognitive impairments, failing to develop an effective comprehensive care plan for cognitively impaired residents; failing to provide the appropriate treatment and services for cognitively impaired residents; failing to ensure each resident received timely physician visits; and failing to report incidents of inappropriate touching of female residents on 3/12/2007; failing to provide necessary timely care and services as ordered by the physician on 4/18/2007; failing to administer medications in accordance with physicians orders, failing to consistently provide appropriate treatment and services, and failing to follow the physician's plan of care on 8/24/2007; failing to provide medications in a timely manner on 1/31/2008; failing to provide adequate supervision, failing to ensure the environment remained free of accident hazards, failing to provide an environment free of hazards, failing to ensure all corridors were equipped with handrails, failing to notify the physician of a significant change in condition, failing to maintain accurate clinical records failing to follow the physicians' plan of care, failing to conduct a comprehensive assessment, and failing to implement written policies and procedures to prohibit mistreatment, neglect and 29 abuse on 2/29/2008; failing to provide necessary care and services to attain the highest practicable physical, mental, and psychosocial well-being on 4/30/2008; failing to ensure that each resident received adequate supervision and assistive devices, failing to promote care in a manner and in an environment that maintained or enhanced each resident's dignity, and failing to follow the physician's care plan 7/10/2008; failing to ensure that each resident received adequate supervision and assistive devices to prevent accidents on 9/12/2008; failing to ensure that comprehensive assessments were complete and accurate on 5/22/2009; failing to consult with the resident's physician about a significant change in the resident's mental status, failing to develop a plan of care, failing to maintain accurate clinical records, and failing to ensure that a resident received the necessary care and services as ordered by the physician on 6/18/2009; failing to maintain clinical records which reflected that physician orders were implemented on 9/9/2009; and failing to develop a care plan to reflect the needs and interventions of a resident, and failing to follow physicians orders on 2/23/2010. 113. Upon information and belief, the corporate officers of the Defendants had been made aware in the past that the Facility had been cited for failing to ensure that the resident environment remained as free of accident hazards as possible, failing to provide adequate supervision and oversight in a manner that ensured that facility safety rules were consistently implemented to ensure the safety of the residents of the facility, failing to conduct timely comprehensive assessments of residents with cognitive impairments, failing to develop an effective comprehensive care plan for cognitively impaired residents; failing to provide the appropriate treatment and services for cognitively impaired residents; failing to ensure each resident received timely physician visits; and 30 failing to report incidents of inappropriate touching of female residents on 3/12/2007; failing to provide necessary timely care and services as ordered by the physician on 4/18/2007; failing to administer medications in accordance with physicians orders, failing to consistently provide appropriate treatment and services, and failing to follow the physician's plan of care on 8/24/2007; failing to provide medications in a timely manner on 1/31/2008; failing to provide adequate supervision, failing to ensure the environment remained free of accident hazards, failing to provide an environment free of hazards, failing to ensure all corridors were equipped with handrails, failing to notify the physician of a significant change in condition, failing to maintain accurate clinical records failing to follow the physicians' plan of care, failing to conduct a comprehensive assessment, and failing to implement written policies and procedures to prohibit mistreatment, neglect and abuse on 2/29/2008; failing to provide necessary care and services to attain the highest practicable physical, mental, and psychosocial well-being on 4/30/2008; failing to ensure that each resident received adequate supervision and assistive devices, failing to promote care in a manner and in an environment that maintained or enhanced each resident's dignity, and failing to follow the physician's care plan 7/10/2008; failing to ensure that each resident received adequate supervision and assistive devices to prevent accidents on 9/12/2008; failing to ensure that comprehensive assessments were complete and accurate on 5/22/2009; failing to consult with the resident's physician about a significant change in the resident's mental status, failing to develop a plan of care, failing to maintain accurate clinical records, and failing to ensure that a resident received the necessary care and services as ordered by the physician on 6/18/2009; failing to maintain clinical records which reflected that physician orders were implemented on 9/9/2009; and failing to 31 develop a care plan to reflect the needs and interventions of a resident, and failing to follow physicians orders on 2/23/2010. 114. As a direct and proximate result of the Defendants' acts and/or omissions, and their breach of duty of care, negligence, carelessness and recklessness, Inez Davis suffered (a) severe permanent physical injuries resulting in pain, suffering, disfigurement, (b) mental anguish, embarrassment, humiliation, degradation, emotional distress, and loss of personal dignity, (c) loss of capacity for enjoyment of life, and (d) expense of otherwise unnecessary hospitalization, medical care and residency at the Facility. 115. In causing the aforementioned injuries, the Defendants knew, or should have known, that Inez Davis would suffer such harm. 116. The conduct of the Defendants was intentional, outrageous, willful and wanton, and exhibited a reckless indifference to the health and well-being of Inez Davis. 117. The conduct of the Defendants was such that an award of punitive damages is justified. WHEREFORE, Plaintiff, Gloria Banks, Guardian of Inez Davis, respectfully requests that judgment be entered in her favor, and against all Defendants, in an amount in excess of the compulsory arbitration limits and/or Fifty Thousand Dollars ($50,000.00) whichever is greater, together with punitive damages, costs, and any other relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. 32 V. COUNT TWO NEGLIGENCE PER SE FOR VIOLATIONS OF NEGLECT OF CARE-DEPENDENT PERSON, 18 Pa.C.S.A. §2713 Gloria Banks, as Attorney-In-Fact for Inez Davis v. GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore; GGNSC Holdings, LLC; GGNSC Camp Hill West Shore GP, LLC; Golden Gate National Senior Care, LLC; GGNSC Equity Holdings, LLC; and Beverly Fry, an individual 118. Plaintiff incorporates herein by reference each and every preceding paragraph of this Complaint as if the same were more fully set forth herein. 119. At all times pertinent hereto, there was in full force and effect 18 Pa.C.S.A. §2713 "Neglect of Care Dependent Person," which set forth penal consequences for neglect of a care-dependent person. 120. 18 Pa.C.S.A. §2713 "Neglect of Care Dependent Person" expresses the fundamental public policy of the Commonwealth of Pennsylvania that elders, like children, are not to be abused or neglected, particularly in health care facilities or by persons holding themselves out as trained professionals, and that if such abuse or neglect causes injury, either physical or mental, then such conduct is actionable. 121. At all times pertinent hereto, Inez Davis was a care dependent resident of the Defendants' facility, FAC, and thus fell within the class of persons 18 Pa.C.S.A. §2713 "Neglect of Care Dependent Person" was intended to protect, thus entitling Plaintiff to adopt 18 Pa.C.S.A. §2713 "Neglect of Care Dependent Person" as the standard of care for measuring the Defendants' conduct. 122. Additionally, 18 Pa.C.S.A. §2713 "Neglect of Care Dependent Person" is directed, at least in part, to obviate the specific kind of harm which Inez Davis sustained. 33 I , 123. The Defendants, in accepting the responsibility for caring for Inez Davis as aforesaid, were negligent "per se" and violated 18 Pa.C.S.A. §2713 "Neglect of Care Dependent Person" in that they: a. failed to provide treatment, care, goods and services necessary to preserve the health, safety or welfare of Inez Davis for whom they were responsible to provide care as specifically set forth in this Complaint; 124. As a direct result of the aforesaid negligence "per se" of the Defendants, Inez Davis was caused to sustain serious personal injuries and damages as aforesaid. 125. The conduct of the Defendants, and each of them, as specifically set forth in this Complaint, was outrageous, inconsistent with and intolerable given the norms of modern society and as such, Plaintiffs request punitive damages in addition to all other damages as aforesaid. WHEREFORE, Plaintiff, Gloria Banks, Guardian of Inez Davis, respectfully requests that judgment be entered in her favor, and against all Defendants, in an amount in excess of the compulsory arbitration limits and/or Fifty Thousand Dollars ($50,000.00) whichever is greater, together with punitive damages, costs, and any other relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. 34 VI. COUNT THREE NEGLIGENCE PER SE FOR VIOLATIONS OF THE PENNSYLVANIA OLDER ADULTS PROTECTIVE SERVICES ACT, 35 P.S. § 10225.101, et seq. Gloria Banks, as Attorney-In-Fact for Inez Davis v. GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore; GGNSC Holdings, LLC; GGNSC Camp Hill West Shore GP, LLC; Golden Gate National Senior Care, LLC; GGNSC Equity Holdings, LLC; and Beverly Fry, an individual 126. Plaintiff incorporates herein by reference each and every preceding paragraph of this Complaint as if the same were more fully set forth herein. 127. At all times pertinent hereto, there was in full force and effect 35 P.S. §10225.101, et seq., "Pennsylvania Older Adults Protective Services Act," which sets forth civil penalties, administrative penalties and other consequences for abuse of a care- dependent person 128. 35 P.S. §10225.102, expresses the policy of the Commonwealth of Pennsylvania that: ...older adults who lack the capacity to protect themselves and are at imminent risk of abuse, neglect, exploitation or abandonment shall have access to and be provided with services necessary to protect their health, safety and welfare. It is not the purpose of this act to place restrictions upon the personal liberty of incapacitated older adults, but this act should be liberally construed to assure the availability of protective services to all older adults in need of them. Such services shall safeguard the rights of incapacitated older adults while protecting them from abuse, neglect, exploitation and abandonment. It is the intent of the General Assembly to provide for the detection and reduction, correction or elimination of abuse, neglect, exploitation and abandonment, and to establish a program of protective services for older adults in need of them. 129. At all times pertinent hereto, Inez Davis was an older person who was a resident of Defendants' facility, FAC, who lacked the capacity to protect herself and thus fell within the class of persons 35 P. S. §10225.101, et seq. was intended to protect, thus 35 entitling Plaintiffs to adopt 35 P.S. §10225.101, et seq. as the standard of care for measuring the Defendants' conduct. 130. Additionally, the Pennsylvania Older Adults Protective Services Act is directed, at least in part, to obviate the specific kind of harm which Inez Davis sustained. 131. In addition to the aforesaid negligence, which said negligence is specifically incorporated herein, the Defendants, in accepting the responsibility for caring for Inez Davis as aforesaid, were negligent "per se" and violated 35 P.S. §10225.101, et seq. in that they had reasonable cause to suspect that Inez Davis was the victim of abuse and neglect and failed to report said abuse and neglect to the appropriate agency and law enforcement officials. 132. As a direct result of the aforesaid negligence "per se" of the Defendants, Inez Davis was caused to sustain serious personal injuries and damages as aforesaid. 133. The conduct of Defendants, and each of them, as specifically set forth in this Complaint, was outrageous, inconsistent with and intolerable given the norms of modern society and as such, Plaintiffs request punitive damages in addition to all other damages as aforesaid. 36 f WHEREFORE, Plaintiff, Gloria Banks, Guardian of Inez Davis, respectfully requests that judgment be entered in her favor, and against all Defendants, in an amount in excess of the compulsory arbitration limits and/or Fifty Thousand Dollars ($50,000.00) whichever is greater, together with punitive damages, costs, and any other relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. Respectfully Submitted, Date: Y/9 l / WILKES & MCHUGH, P.A. T. orris, squire Counsel for aintiff 37 *0 ! 0 VERIFICATION I, Ian T. Norris, Esquire, verify that I am the Attorney for Plaintiff, and that the averments set forth in the forgoing Complaint are true to the best of my knowledge, information and belief. I understand that this verification is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Dated: q)xl)l Norris Attorney for Plai iff A By: Ian T. Norris, Esquire Identification No.: 207566 WILKES & McHUGH, P.A. 400 Market Street, Suite 1250 Philadelphia, PA 19106 Tel. No.: (215) 972-0811 Email: inorris@wilkesmchugh.com THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED Attorney for Plaintiff, Gloria Banks, Guardian of Inez Davis GLORIA BANKS, GUARDIAN OF COURT OF COMMON PLEAS INEZ DAVIS CUMBERLAND COUNTY, PA. Plaintiffs. vs. GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE; CIVIL ACTION NO. 10-6924 GGNSC HOLDINGS, LLC; ? e .Y c GGNSC CAMP HILL WEST SHORE GP, LLC; -01:3. == -°+ GOLDEN GATE NATIONAL SENIOR CARE "i c: ++ - , LLC;GGNSC EQUITY HOLDINGS, LLC and can r- BEVERLY FRY, N.H.A. r-X - °? ° ' CJ < ci ? Defendants. ° ;cam = c? Z%-; C? M PRAECIPE TO ADD SUPPLEMENTAL EXHIBIT AS PART OF THE RECORD TO THE PROTHONOTARY: Please supplement the attached exhibit as "Exhibit B" to Plaintiffs Memorandum of Law in Opposition to Defendants' Preliminary Objections. It is an Order and Memorandum from Lackawanna County addressing the exact same issues as are raised by Defendants in the matter to be argued before this Court on July 15, 2011. By: Respectfully Submitted, WILKES & McHUGH, P.A. IaI Norris, Es Counsel for Plai ti Dated: CERTIFICATE OF SERVICE I, Ian T. Norris, Esquire, attorney for Plaintiff, attest and certify that a copy of a Praecipe to Add Supplemental Exhibit as Part of the Record, was served via regular mail, upon all counsel of record on the date listed below. Jacqueline M. Carolan, Esquire Amit Shah, Esquire Fox Rothschild, LLP 2000 Market Street, 20th Floor Philadelphia, PA 19103-3222 (Attorneys for Defendants) Dated: 1 Attorney for Pl VERIFICATION I, Ian T. Norris, Esquire, verify that the statements made in the foregoing Praecipe to Add Supplemental Exhibit as Part of the Record are true and correct based upon present information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: t? ? Ian T. Norris, Attorney for P i is ROSELIN C. SOUTH, Executrix :IN THE COURT OF'COMMON PLEAS of the Estate of OF LACKAWANNA COUIR TY-) 1.;.: j i JAMES C. SOUTH, SR., Deceased, Plaintiffs VS. CIVIL ACTION - LAW OSPREY RIDGE HEALTHCARE CENTER, INC. d/b/a OSPREY RIDGE HEALTHCARE AND REHABILITATION CENTER; PHOENIX HEALTHCARE GROUP, INC. REFLECTION LIFE : CARE GROUP, INC., GREGORY SALKO, M.D. and JAMES MILLER, Defendants JURY TRIAL DEMANDED 10 CV 5688 lLE-MORAND IM AND ORDER MINORS T. I. Introduction Currently before the Court are the Preliminary Objections of the Defendants Osprey Ridge Healthcare Center, Inc. d/b/a Osprey Ridge Healthcare and Rehabilitation Center, Gregory Salko, M.D. and James Miller (hereinafter "the Objecting Defendants") to Plaintiff's Complaint. By way of background, this case arises out of the injuries sustained by James C. South, Sr. during his residency at Defendants' nursing facility, Osprey Ridge Healthcare and Rehabilitation Center (hereinafter "the Facility") from July 21, 2009 through September 11, 2009. Mr. South subsequently died on October 9, 2009. Plaintiff Roselin C. South, Executrix of the Estate of James C. South, Sr., deceased, filed her Complaint in Civil Action on August 16, 2010, alleging that Defendants neglected and abused Mr. South throughout his residency at the Facility. The Complaint sounded in a medical professional liability action grounded in negligence, corporate negligence, negligence, per se, and included allegations which requested punitive damages. On October 12, 2010, Objecting Defendants filed Preliminary Objections to Plaintiff's Complaint seeking to strike multiple paragraphs as irrelevant and/or unspecific, and to dismiss Plaintiff's courts of negligence Lerm and claims for punitive damages. The matter has been thoroughly briefed and argued before the undersigned on Februaiy 9, 2011 and is ripe for disposition.' We will address each of the Preliminary Objections in more detail as set forth below. 11. ISSUES A. Should certain paragraphs of Plaintiff's Complaint be stricken for Lack of Specificity? B. Should Plaintiff's recitation of allegedly irrelevant Department of Health Surveys be stricken? C. Should Defendants' DemsirrerNotion to Strike Count III of Plaintiff's Complaint be granted on the basis that a claim under the Crimes Code 18 Pa. C.S.A. § 2713 (Neglect of Care-Dependent Person) does not give rise to a private cause of action? ' We note that Plaintiff filed on Amended Complaint on March 15, 2011. On April 7, 2011, Plaintiff filed a Praecipe to Withdraw Plaintiffs Amended Complaint perhaps realizing that an Amended Complaint filed in Response to Preliminary Objections must be so filed within twenty (20) days of service of the subject Preliminary Objections to render the Preliminary Objections moot. See Pa. R.C.P. 1028(c)(1); Lerner v. Lerner, 954 A.2d 1229 (Pa. Super. 2009). 2 D. Should Defendant's Demurrer/Motion to Strike Count N of Plaint'iff's Complaint be granted on the basis that the Pennsylvania Older Adults Protective Services Act, 35 P.S. § 10225.101, et. seg. does not provide for a private cause of action? E. Should Defendants' Demurrer/Motion to Strike all claims of negligence te se for alleged violations of state and federal regulations be granted? F. Should Defendants' Demurrer/Motion to Strike all allegations and claims for punitive damages be granted? III. DISCUSSION A. Motion to Strike certain allegations of Plaintiff's Complaint for lack of specificity Pa. RC.P. 1019 states in pertinent part that: "(a) the material facts on which a cause of action or defense is based shall be stated in concise and summary form." In pleading its case, the complaint need not cite evidence but only those facts necessary for the defendant to prepare a defense. Un&d "orZsman gfPenn,tvlvania v. Pe>t=lvan'a Game Commission (P C), 950 A.2d 1120 (Pa. Cmwlth. 2008). A complaint must not only give the defendant notice of what the Plaintiff's claim is and the grounds upon which it rests, but it must also formulate the issues by summarizing those facts essential to support the claim. Ld. The rule governing pleading of material facts requires a plaintiff to plead all the facts he must prove in order to achieve recovery on the alleged cause of action, and the pleading must be sufficiently specific so that the defending party will know how to prepare his defense. Conrmonweallh ex rel. Upert v. TAP Pharmacezrlical Pmduc s. Inc., 868 A.2d 624 (Pa. Cmwlth. 2005). In determining whether a particular paragraph in a complaint is stated with necessary specificity, such paragraph must be read in context with all the allegations in the complaint. J Unifred SrSortsman of Pmxsylvania_ti perrgrljz,anicr Game Conarrmissioa ?PGQ supra. Most importantly, a trial court has broad discretion in determining the amount of detail that must be averred since this is incapable of precise measurement. Pike Cozrnty Hotels Cori v Kier, 396 A.2d 677 (Pa. Super. 1978); Grrldis P, Roarrrr look Tournshi, 16 Pa. D.&C.5" 468, 475 (CCP Lack. Cty. 2010 per judge Minora). We realize that an overly broad allegation such as "in other ise failing to use due care and caution under the circumstances" in the type of averment disallowed by Connor:. Allegheny Hoo-jkl, 461 A.2d 600 (Pa. 1983) since this would allow a plaintiff to pursue an entirely different theory by amending their complaint to bring an entirely new cause of action. Reynolds t,. TbomasJe ers'on UniverrityHorl, 676 A.2d 1205 (Pa. Super. 1996). We have read the following paragraphs of Plaintiff's Complaint as a whole contained in paragraphs 96 and 111 and the subject sub-paragraphs (b), (0, (g), (i), (o), (P), (r), (t), (x), (y), (z), (cc), (kk), (oo), (pp), (qq), (rr), (ss), (tt), (uu), (xx), and (bbb) and conclude that taken as a whole they do not violate Connor v. Allegh yHo ital, supra. In fact, this preliminary objection is at best disingenuous. The allegations contained in those paragraphs address Defendant's alleged failure to adequately operate the facility and relate directly to the injuries sustained by Mr. South. These extremely detailed allegations certainly provide sufficient notice of Plaintiff's intent to prove that the lack of care afforded to Mr. South resulted from Defendants' corporate negligence, neglect and recklessness as it related to the care (or lack thereof provided to Mr. South. They are detailed and not overly broad when read as a whole and do not allow the Plaintiff to pursue entirely different theories of recovery. Therefore, Defendants' Preliminary Objections in the nature of a Motion to Strike the above paragraphs as per Pa. R.C.P. 1028(a)(3) shall be overruled and dismissed. 4 B. Should Plaintiffs recitation of allegedly irrelevant Department of Health surveys be stricken? For allegations to be "scandalous and impertinent" and thus subject to being stricken as per Pa. R.C.P. 1028(a)(2), the allegations must be immaterial and inappropriate to the proof of the cause of action. C2= an Cau.re/Pengylvania v. Conn, 710 A.2d 108 (Pa. Cmwlth. 1998) affirmed 757 A.2d 367 (Pa. 2000). These type of preliminary objections should be granted sparingly and only when the objecting party can affirmatively show prejudice. Commonwealth v, Harlfad jccidertt and In emnaty Co., 396 A.2d 885 (Pa. Cmwlth. 1979). Such is not the case here. In fact, the doctrine of corporate negligence is extended to nursing homes and notice of prior inadequate care or understaffing and failure to correct the problem is sufficient to establish both corporate negligence and liability for punitive damages. See Scan ane v. Grave Healthem Co., 11 A.3d 967 (Pa. Super. 2010). Therefore, Defendants' Preliminary Objections as per Pa. R.C.P. 1028(a)(2) based on "scandalous or impertinent" matter is frivolous, without merit and will be overruled and dismissed. C. Should Defendants' Demurrer/Motion to Strike Count III of Plaintiff's Complaint be granted on the basis that a claim under the Crimes Code 18 Pa. C.S.A. S 2713 (Neglect of Care-Dependent Person) does not give rise to a private cause of action? Preliminary objections in the nature of a deviwnzrtest the legal sufficiency of a complaint. When considering preliminary objections of this type, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deduced therefrom. Preliminary objections which seek dismissal of a cause of action should be 5 sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish a right to relief under any theory, If any doubt exists as to whether a den in-er should be sustained, it should be resolved in favor of overruling the preliminary objection. F'eLngold P. Hendr-ak, 15 A.3d 937 (Pa. Super. 2011); see also 5 Standard Pennsylvania Practice 2d § 25:75 Qune 2011). It is not clear as a matter of law that Plaintiff's negligence PLr Le claims arising from violations of 18 Pa. C.S.A. § 2713 must fail because the statute does not create a private cause of action. Quite to the contrary, Pennsylvania courts have established that a plaintiff asserting negligence p-er se properly relies upon a statute that lacks a private cause of action where (1) the statute is designed to protect a particular class of individuals from the type of harm suffered by the plaintiff and (2) the claim will further the purposes of the statute. abirov v ScitdorL, 767 A.2d 1078 (Pa. Super. 2001); MIa,,-rs v Brpdhead Motel, 205 A.2d 873 (Pa. Manor C re. Inc., 64 Pa. D.&C.4``' 457 (2003). 1965); rant _j), F Discussing statutes that do not provide for a private cause of action the courts have stated that: "The concept negligence per se establishes both duty and required breach of duty where an individual violates an applicable statute, ordinance or regulation designed to prevent a public harm .. . In analyzing a claim based on negligence per .re, the purpose of the statute must be to protect the interest of a group of individuals, as opposed to the general public, and the statute must clearly apply to the conduct of the defendant." See "rat- 64 Pa. D.&C.4" at 461-462; Braxton v PennDOT, 634 A.2d 1150, 1157 (Pa, Cmwlth. 1992). The Frantry court further held that: "In analyzing a claim based on negligence iher se, the purposes of the statute must be to protect the interest of a group of individuals, as opposed to the general public, and the statute must clearly apply 6 where an individual within the class contemplated by the statute suffers the type of harm that the statute seeks to prevent." Id. at 462; see also Wagner m Anznn. Inc., 684 A.2d 570, 574 (Pa. Super. 1996). Under the Pennsylvania Crimes Code, a caretaker is guilty of neglect of a care- dependent person if he: "(1) Intentionally, knowingly or recklessly causes bodily injury or serious bodily injury by failing to provide treatment, care, goods or services necessary to preserve the health, safety or welfare of a care- dependent person for whom he is responsible to provide care." 18 Pa. C.S.A. § 2713(a)(1). Further, the statute clearly defines "caretaker" as "an owner, operator, manager or employee of a nursing home," 18 Pa. C.S.A. § 2713(F)(1). Thus, it is beyond argument that the statute's plain language clearly establishes that the statute's purpose is to prevent a public harm: elder abuse and neglect by owners and operators of nursing homes. We agree with Plaintiff that Defendants were clearly Mr. South's "caretakers" as defined by 18 Pa. C.S. 2713. Plaintiff's averments, if proven, certainly could establish that Defendants' alleged reckless failure to provide basic care caused Mr. South avoidable injuries and suffering. Thus, Plaintiff s allegations clearly support a claim that Defendants' conduct falls with the type of harm that the statute seeks to prevent and furthers the statute's purpose. Thus, Defendants' demurrer as to Plaintiffs negligence se claim under 18 Pa. C.S.A. §2713 will be overruled and dismissed. 7 D. Should Defendant's DemurrerlMotion to Strike Count IV of Plaintiff's Complaint be granted on the basis that the Pennsylvania Older Adults Protective Service Act, 35 P.S. S 10225.101, et. seq. does not provide for a private cause of action? We have already set forth the standard for a demxrrerunder Pa. R.C.P. 1028(a)(4) and we will not belabor that point. We have also explained the rationale for the theory of negligence eris using a statute that does not expressly provide a private cause of action. (See Section III (c), supra.). The Older Adult Protective Services Act (OAPSA), 35 P.S. § 10225.101 et seq. sets forth civil and administrative penalties for abuse of a care-dependent person. The legislative intent of the OAPSA is as follows: "It is the intent of the General Assembly to provide for the detection and reduction, corrections or elimination of abuse, neglect, exploitation and abandonment, as to establish a program for older adults in need of them." 35 P.S. §10225.102. Accordingly, there is Pennsylvania case law which holds that OAPSA provides a proper basis to establish a nursing home resident's claim for negligence re. In McCain v Beverly Health and Rehabilitation Senicet, 2002 WL 1565526 (E.D. Pa. 2002) the Court reasoned that: "Courts in Pennsylvania have recognized that the absence of a private cause of action in a statutory scheme is an indicator that the statute did not contemplate enforcement of an individual harm, However, it is just an indicator or a factor to consider and does not necessarily preclude [the statute's) use as the basis for a claim of per se. A statute may still be used as the basis for a negligence per se claim when it is clear that, despite the absence of a private cause of action, the policy of the statute will be furthered by such a claim because its purpose is to protect a particular group of individuals." McCain 2002 WL 1565526 at p.1. Applying that rationale, the court found that a nursing home resident who allegedly developed pressure sores as a result of the defendant nursing home conduct fell within the class of person and type of harm that OAPSA sought to address, Id, Ultimately, the court deemed the statute's lack of a private cause of action insufficient to preclude the use of the relevant policies expressed in the statutes as a basis for negligencepra. Id. Such is the case in the matter before us where Plaintiff's claims for negligence ?rLe stem from Defendant's violations of this statute. As Plaintiff alleges that Defendants' failures to provide basis care caused Mr. South needless pain and suffering, the law supports Plaintiff's claim for negligence erIg arising from Defendants' alleged OAPSA violations. Therefore, Defendants' Den7srrrer as to Count IV of Plaintiff's Complaint alleging negligence per se under the OAPSA will be overruled and dismissed. E. Should Defendants' Demurrer/Motion to Strike all claims of negligence Mr se for alleged violations of State and Federal Regulations be granted? Plaintiff has already pled valid causes of action under the theory of negligence per Le utilizing 18 Pa. C.S.A. 52713 of the Pa. Crimes Code and the OAPSA (35 P.S. 510225.101 et. seq.). We will not further belabor that point. Plaintiff is not attempting to use the Nursing Home Reform Law (N.H.R.L.), the Omnibus Reconciliation Act (OBRA) or any other federal or state regulation purely under a theory that they establish a private cause of action but rather that they provide evidence of negligence. Pennsylvania courts have indeed held that failure to adhere to regulations establishing the care by which nursing home operators must operate their facilities may be 9 used as evidence that a nursing home was negligent in its treatment of a resident. See .Fr-an,7 v. HCR Manor Care. Inc., 64 Pa. D.&C.4`'' 457, 470 (C.P. Schuylkill 2003) r A failure to comply with the aforementioned regulations even though not negligence per se MAY CONSTITUTE SOME EVIDENCE OF NEGLIGENCE]. (Emphasis added). See also McCain P. Begrly Health and Rehabilitation Services. Inc., 2002 WL 1565526 (E.D. Pa. 2002) [where the Court ruled that a lack of a private cause of action is not enough to preclude the use of the relevant policies expressed in statutes and regulations. The furtherance of those protective policies is a basis for delineating a nursing home's tortuous duty in these circumstances]. Therefore, Plaintiffs use of applicable statue and federal regulations can be used as I evidence of negligence. We have already ruled in a prior section of this Memorandum [Section III(D) sxpra.] on the circumstances when a statute or regulation can establish negligence per se. Ultimately, Defendants' Demxrrrr/Motion to Strike all references to alleged violations I of State and Federal regulations will be overruled and dismissed. F. Should Defendants' Demurrer/Motion to Strike all allegations and claims for punitive damages be granted? Under the Medical Care and Reduction of Error Act (MCARE) a "healthcare provider" includes a nursing home. 40 P.S. § 1303.503. As such MCARE specifically provides for punitive damages as follows: "(a) AWARD. - Punitive damages may be awarded for conduct that is the result of the health care provider's willful or wanton conduct or reckless indifference to the rights of others ..." 40 P.S. § 1303.505(x). 10 In Plaintiff's Complaint, there are allegations that Defendants grossly and chronically understaffed and underfunded the Facility in question and were aware of prior citations by the Department of Health for doing so. (See Plaintiff's Complaint paragraphs 29, 30, 34-36, 96 (w), 111(z)). Plaintiff alleges that despite that knowledge, Defendants knowingly understaffed the Facility, creating recklessly high nurse/resident ratios, to the part where Defendants knew the personnel on duty would not be able to properly attend to the medical needs of the Facility's residents and the Defendants knew or should have known that their actions would lead to severe injuries. (See Plaintiff's Complaint paragraphs 28-37). As we indicated above, out appellate courts have recently ruled that the doctrine of corporate negligence is extended to nursing homes and notice of prior inadequate care and chronic understaffing and failure to correct those problems is sufficient to establish both corporate negligence AND LIABILITY FOR PUNITIVE DAMAGES. . cgoone v. Grain Healthc • Co., 11 A.3d 967 (Pa. Super. 2010). (Emphasis added]. Therefore, Defendants' Denutn-or/Motion to Strike Plaintiff's claims for punitive damages will be overruled and dismissed. A comprehensive Order consistent with this Memorandum follows. 11 EIOSELIN C. SOUTH, Executrix of the Estate of TAMES C. SOUTH, SR., Deceased, VS. Plaintiffs :IN THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY CIVIL ACTION - LAW OSPREY RIDGE HEALTHCARE CENTER, INC. d/b/a OSPREY RIDGE HEALTHCARE AND REHABILITATION CENTER; PHOENIX HEALTHCARE GROUP, INC. REFLECTION LIFE CARE GROUP, INC., GREGORY SALKO, M.D. and TAMES MILLER, Defendants JURY TRIAL DEMANDED 10 CV 5688 ORDER AND NOW TO WIT, this day of June 2011, upon due consideration of the Collective Preliminary Objections of the Defendants Osprey Ridge Healthcare Center, Inc. d/b/a Osprey Ridge Healthcare and Rehabilitation Center, Gregory Salko, M.D, and James Miller, the able arguments of counsel, and in accordance with the foregoing Memorandum, said collective Preliminary Objections are OVERRULED and DISMISSED. Defendants are ordered to file an answer to Plaintiff's Complaint with twenty (20) days of this Order. BY THE COURT: ?J. Carmen D. Minora, J. 12 cc: lY/ritten notice of the entry of the foregoing Memorandum and Order has been provided to each parhy pursuant to Pa. RCiv.P. 236 (a) (2) by mailing time stamped copies to Ruben J. Kristal, Esquire .Wilkes & McHugh 400 Market Street, Suite 1250 Philadelphia, PA 19106 John M. Skrocki, Esquire Burns White 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 Gerald J. Butler, Esquire 142 North Washington Avenue suite 800 Scranton, PA 18503 13 GLORIA BANKS, GUARDIAN OF IN THE COURT OF COMMON PLEAS OF INEZ DAVIS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER WEST SHORE; GGNSC HOLDINGS, LLC; GGNSC CAMP HILL WEST SHORE GP, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC EQUITY HOLDINGS, LLC; and BEVERLY FRY, N.H.A., Defendants NO. 2010 - 6924 CIVIL TERM CIVIL ACTION - LAW IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE GUIDO, OLER. JJ. ORDER OF COURT AND NOW, this 10TH day of JANUARY, 2012, after review of the briefs filed by the parties in support of their respective positions, and having heard argument thereon it is hereby ordered and directed as follows: 1.) Defendants' Preliminary Objections in the Nature of a Demurrer to Counts II and III are OVERRULED. Although not controlling the well reasoned opinion of Judge Minora on the identical issue in South v. Osprey Ride Healthcare Center, Inc., et al Court of Common Pleas Lackawanna County, 10 CV 5688 is persuasive and we adopt his reasoning. 2.) Defendants' Preliminary Objection to the request for punitive damages is OVERRULED. There are sufficient allegations of outrageous conduct to sustain the claim at this stage of the proceedings. 3.) Defendants' Preliminary Objections for more specific pleading are OVERRULED. Defendants shall file an answer to the complaint within twenty (20) days. By the Court, 4;;;; Edward E. uido, J. IAN T. NORRIS, ESQUIRE 400 Market Street, Suite 1250 Phila., Pa. 19106 ,-. c v/ JACQUELINE M. CAROLAN, ESQUIRE rq CO 2000 Market Street, 20th Floor aM ter` Phila., Pa. 19103-3222 ?AMITSHAH ESQUIRE r- a --r, , 2000 Market Street, 20th Floor Co Phila., Pa. 19103-3222 :sld 00p; e3 Ma Jej D 6 TO: PLAINTIFF YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. A for Defendants FOX ROTHSCHILD LLP BY: Jacqueline M. Carolan IDENTIFICATION NO. 52576 2000 MARKET STREET, TWENTIETH FLOOR PHILADELPHIA, PA 19103-3222 (215) 299-2000 GLORIA BANKS, GUARDIAN OF INEZ DAVIS, Plaintiffs V. GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE, GGNSC HOLDINGS, LLC, GGNSC CAMP HILL WEST SHORE GP, LLC, GOLDEN GATE NATIONAL SENIOR CARE, LLC, and GGNSC EQUITY HOLDINGS, LLC, and BEVERLY FRY, NHA Defendants ATTORNEYSFOR DEFENDANTS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION NO. 10-6924 C-) c7 m .rm _;u rn rn -<D C) , Are :ac =F =© bra DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER And now come Defendants, GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore (GLC - West Shore), GGNSC Holdings, LLC, GGNSC Camp Hill West Shore GP, LLC, Golden Gate National Senior Care, LLC, and GGNSC Equity Holdings, LLC, by and through their counsel, Fox Rothschild, LLP, and file the within Answer and New Matter, in support thereof aver as follows: I. PARTIES 1. Admitted. 2. Denied. Defendants, after reasonable investigation, are without sufficient information to form a belief as to the truth or falsity of the averments set forth in Paragraph 2 of Plaintiff's Complaint. Accordingly, all said averments are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. 3. Denied. Defendants, after reasonable investigation, are without sufficient information to form a belief as to the truth or falsity of the averments set forth in Paragraph 3 of Plaintiff s Complaint. Accordingly, all said averments are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. 4. Admitted. 5. Admitted in part, denied in part. It is admitted that GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore is a long-term care facility located in Camp Hill, Pennsylvania. At all times material hereto it was licensed in the Commonwealth of Pennsylvania and operated the facility. All remaining averments set forth in Paragraph 5 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. To the extent that this paragraph contains allegations with respect to "apparent agents, ostensible agents, agent servants, workmen, and/or employees," such persons are unnamed and unknown and these allegations are specifically denied 6. Admitted. 7. Denied. The averments set forth in Paragraph 7 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 7 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further 2 1 answer, at all times material hereto, Defendant GGNSC Holdings, LLC did not own, operate or control GLC -- West Shore. To the extent that this paragraph contains allegations with respect to "apparent agents, ostensible agents, agent servants, workmen, and/or employees," such persons are unnamed and unknown and these allegations are specifically denied. 8. Admitted. 9. Denied. To the contrary, GGNSC Camp Hill West Shore GP, LLC is a general partner of a Limited Partnership that is the licensed operator of the facility. All remaining averments set forth in Paragraph 9 of Plaintiff's Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 9 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. To the extent that this paragraph contains allegations with respect to "apparent agents, ostensible agents, agent servants, workmen, and/or employees," such persons are unnamed and unknown and these allegations are specifically denied. 10. Admitted. 11. Denied. The averments set forth in Paragraph 11 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleadings is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph I1 are specifically DENIED and strict proof of same is demanded at time of trial. To the extent that this paragraph contains allegations with respect to "apparent agents, ostensible agents, agent servants, workmen, and/or employees," such persons are unnamed and unknown and these allegations are specifically denied. By way of further answer, at all times material hereto, defendant Golden Gate National Senior Care did not own, operate or control GLC - West Shore. 3 12. Admitted in part, denied in part. It is admitted that GGNSC Equity Holdings, LLC is a corporation, duly licensed, organized and existing under and by virtue of the laws of the State of Delaware. All other allegations are denied. 13. Denied. To the contrary, GGNSC Equity Holdings, LLC is a limited partner of a Limited Partnership that is the licensed operator of the facility. All remaining averments set forth in Paragraph 13 of Plaintiff's Complaint constitute conclusions of law, to which no responsive pleadings is required. To the extent that a response may be deemed necessary, GGNSC Equity Holdings, LLC has no involvement in the business of owning, operating and/or managing nursing homes including the Facility. All other averments set forth in Paragraph 13 are specifically DENIED and strict proof of same is demanded at time of trial. To the extent that this paragraph contains allegations with respect to "apparent agents, ostensible agents, agent servants, workmen, and/or employees," such persons are unnamed and unknown and these allegations are specifically denied. 14. By agreement of counsel, Beverly Fry, NHA is no longer a party to this action and, accordingly, no response is required. 15. By agreement of counsel, Beverly Fry, NHA is no longer a party to this action and, accordingly, no response is required. 16. Denied. The averments set forth in paragraph 16 are specifically denied in their entirety and strict proof of same is demanded at time of trial. II. JURISDICTION AND VENUE 17. Admitted in part, denied in part. The averments set forth in Paragraph 17 of Plaintiff's Complaint constitutes conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in 4 t Paragraph 17 are admitted in part and denied in part. It is admitted that, at all times relevant and material hereto, all defendants with the exception of GGNSC Holdings, LLC and Golden Gate National Senior Care, LLC conducted business in Cumberland County, Pennsylvania. All remaining averments set forth in Paragraph 17 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. M. FACTUAL BACKGROUND A. Conduct of the Defendants 18. Admitted in part, denied in part. It is admitted that Plaintiff was admitted to the GLC - West Shore facility on or about December 2, 2006. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 19. Admitted in part, denied in part. The averments set forth in Paragraph 19 are admitted only insofar as they are consistent with Plaintiff's medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff's medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 20. Admitted in part, denied in part. The averments set forth in Paragraph 20 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National 5 Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 21. Denied. The averments set forth in Paragraph 21 of Plaintiff's Complaint are admitted in part and denied in part. It is admitted that at all times relevant and material hereto, Defendant Golden Living Center - West Shore held itself out as capable of providing skilled nursing care in a nursing home. All remaining averments set forth in Paragraph 21 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 22. Admitted in part, denied in part. The averments set forth in Paragraph 22 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 23. Denied. The averments set forth in Paragraph 23 are specifically denied in their entirety and strict proof of same is demanded at time of trial. 24. Admitted in part. Denied in part. The averments set forth in Paragraph 24 of Plaintiffs Complaint are admitted in part and denied in part. It is admitted that at all times relevant and material hereto, Defendant GLC - West Shore was responsible for the operation, planning, management and quality control of the Facility. All remaining averments set forth in 6 Paragraph 24 are specifically DENIED in their entirety. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 25. Denied. The averments set forth in Paragraph 25 of Plaintiffs Complaint are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 26. Denied. The averments set forth in Paragraph 26 of Plaintiffs Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 27. Admitted in part, denied in part. It is admitted that GLC - West Shore utilized survey results and quality indicators to monitor the care provided at the facility. All other averments set forth in Paragraph 27 of Plaintiffs Complaint are DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 28. Denied. The averments set forth in Paragraph 28 of Plaintiffs Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and 7 GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 29. Admitted in part; denied in part. It is admitted that GLC - West Shore had an obligation to address the needs of the facility residents to ensure timely and appropriate care. All other averments set forth in Plaintiffs Complaint are specifically denied in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 30. Denied. The averments set forth in Paragraph 30 of Plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 30 are DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 31. Denied. The averments set forth in Paragraph 31 of Plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 31 are DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 32. Denied. The averments set forth in Paragraph 32 of Plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 32 are DENIED in their entirety 8 i and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 33. Denied. The averments set forth in Paragraph 33 of Plaintiffs Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 34. Denied. The averments set forth in Paragraph 34 of Plaintiffs Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 35. Denied. The averments set forth in Paragraph 35 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 35 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 36. Denied. The averments set forth in Paragraph 36 of Plaintiffs Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and 9 GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 37. Denied. The averments set forth in Paragraph 37 of Plaintiff's Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 38. Denied. The averments set forth in Paragraph 38 of Plaintiffs Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 39. Denied. The averments set forth in Paragraph 39 of Plaintiff's Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 40. Denied. The averments set forth in Paragraph 40 of Plaintiffs Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 10 41. Denied. The averments set forth in Paragraph 41 of Plaintiffs Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 42. Denied. The averments set forth in Paragraph 42 of Plaintiffs Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 43. Denied. The averments set forth in Paragraph 43 of Plaintiffs Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services 44. Denied. The averments set forth in Paragraph 44 of Plaintiffs Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 45. Denied. The averments set forth in Paragraph 45 of Plaintiffs Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and 11 GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 46. Denied. The averments set forth in Paragraph 46 of Plaintiff's Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. To the extent that this paragraph contains allegations with respect to "apparent agents, ostensible agents, agent servants, and/or employees," such persons are unnamed and unknown and these allegations are specifically denied. 47. Denied. The averments set forth in Paragraph 47 of Plaintiff's Complaint are specifically DENIED in their entirety and strict proof demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. To the extent that this paragraph contains allegations with respect to "apparent agents, ostensible agents, agent servants, and/or employees," such persons are unnamed and unknown and these allegations are specifically denied. 48. Denied. The averments set forth in Paragraph 48 of Plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 48 are DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. To the extent that this paragraph contains allegations with respect to "apparent agents, ostensible agents, agent servants, 12 and/or employees," such persons are unnamed and unknown and these allegations are specifically denied. 49. Denied. The averments set forth in Paragraph 49 of Plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 49 are DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 50. Denied. The averments set forth in Paragraph 50 of Plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 50 are DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, L,LC were not involved in the provision of long term nursing and/or healthcare services. To the extent that this paragraph contains allegations with respect to "apparent agents, ostensible agents, agent servants, and/or employees," such persons are unnamed and unknown and these allegations are specifically denied. 51. Admitted in part, denied in part. The averments set forth in Paragraph 51 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National 13 Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 52. Admitted in part, denied in part. The averments set forth in Paragraph 52 are admitted only insofar as they are consistent with Plaintiff's medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff's medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 53. Admitted in part, denied in part. The averments set forth in Paragraph 53 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff's medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services.. 54. Denied. The averments set forth in Paragraph 54 of Plaintiff's Complaint constitute conclusions of law to which no response is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 54 are DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 14 55. Denied. The averments set forth in Paragraph 55 of Plaintiff's Complaint constitute conclusions of law to which no response is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 55 are DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 56. Denied. The averments set forth in Paragraph 56 of Plaintiff's Complaint constitute conclusions of law to which no response is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 56 are DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 57. Denied. The averments set forth in Paragraph 57 of Plaintiff's Complaint constitute conclusions of law to which no response is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 57 are DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long terns nursing and/or healthcare services. 58. Admitted. 59. Admitted in part, denied in part. The averments set forth in Paragraph 59 are admitted only insofar as they are consistent with Plaintiff's medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff's medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at 15 time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 60. Admitted in part, denied in part. The averments set forth in Paragraph 60 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff s medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 61. Admitted in part, denied in part. The averments set forth in Paragraph 61 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff s medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 62. Admitted in part, denied in part. The averments set forth in Paragraph 62 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff s medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National 16 Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 63. Admitted in part, denied in part. The averments set forth in Paragraph 63 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff's medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 64. Admitted in part, denied in part. The averments set forth in Paragraph 64 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff s medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 65. Admitted in part, denied in part. The averments set forth in Paragraph 65 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 17 66. Admitted in part, denied in part. The averments set forth in Paragraph 66 are admitted only insofar as they are consistent with Plaintiff's medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff's medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 67. Admitted in part, denied in part. The averments set forth in Paragraph 67 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff s medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 68. Admitted in part, denied in part. The averments set forth in Paragraph 68 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 69. Admitted in part, denied in part. The averments set forth in Paragraph 69 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records 18 which as writings speak for themselves. Any deviations from Plaintiff s medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 70. Admitted in part, denied in part. The averments set forth in Paragraph 70 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 71. Admitted in part, denied in part. The averments set forth in Paragraph 71 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 72. Admitted in part, denied in part. The averments set forth in Paragraph 72 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at 19 time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 73. Admitted in part, denied in part. The averments set forth in Paragraph 73 are admitted only insofar as they are consistent with Plaintiff's medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff's medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 74. Admitted in part, denied in part. The averments set forth in Paragraph 74 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff's medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 75. Admitted in part, denied in part. The averments set forth in Paragraph 75 are admitted only insofar as they are consistent with Plaintiff's medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National 20 Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 76. Admitted in part, denied in part. The averments set forth in Paragraph 76 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 77. Admitted in part, denied in part. The averments set forth in Paragraph 77 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 78. Admitted in part, denied in part. The averments set forth in Paragraph 78 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff s medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 21 79. Admitted in part, denied in part. The averments set forth in Paragraph 79 are admitted only insofar as they are consistent with Plaintiff's medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff's medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 80. Admitted in part, denied in part. The averments set forth in Paragraph 80 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff s medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 81. Admitted in part, denied in part. The averments set forth in Paragraph 81 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 82. Admitted in part, denied in part. The averments set forth in Paragraph 82 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records 22 which as writings speak for themselves. Any deviations from Plaintiff's medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 83. Admitted in part, denied in part. The averments set forth in Paragraph 83 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 84. Admitted in part, denied in part. The averments set forth in Paragraph 84 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 85. Admitted in part, denied in part. The averments set forth in Paragraph 85 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at 23 time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 86. Admitted in part, denied in part. The averments set forth in Paragraph 86 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 87. Admitted in part, denied in part. The averments set forth in Paragraph 87 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff s medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 88. Admitted in part, denied in part. The averments set forth in Paragraph 88 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff s medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National 24 Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 89. Admitted in part, denied in part. The averments set forth in Paragraph 89 are admitted only insofar as they are consistent with Plaintiff's medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff's medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 90. Admitted in part, denied in part. The averments set forth in Paragraph 90 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 91. Admitted in part, denied in part. The averments set forth in Paragraph 91 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 25 92. Admitted in part, denied in part. The averments set forth in Paragraph 92 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiff s medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 93. Admitted in part, denied in part. The averments set forth in Paragraph 93 are admitted only insofar as they are consistent with Plaintiffs medical and/or nursing care records which as writings speak for themselves. Any deviations from Plaintiffs medical and/or nursing care records are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 94. Denied. The averments set forth in Paragraph 94 of Plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 94 are DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 95. Denied. The averments set forth in Paragraph 95 of Plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 95 are DENIED in their entirety 26 and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 96. Denied. The averments set forth in Paragraph 96 of Plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 96 are DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. COUNTI 97. Answering Defendants incorporate herein by reference their responses to Paragraphs 1 through 96 as if set forth at length herein. 98. Denied. The averments set forth in Paragraph 98 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 98 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. To the extent that this paragraph contains allegations with respect to "apparent agents, ostensible agents, agent servants, workmen, and/or employees," such persons are unnamed and unknown and these allegations are specifically denied. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 99. Denied. The averments set forth in Paragraph 99 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 99 are specifically 27 DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 100. Denied. The averments set forth in Paragraph 100 of Plaintiff's Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 100 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 101. Denied. The averments set forth in Paragraph 101 of Plaintiff's Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 101 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 102. Denied. The averments set forth in Paragraph 102 of Plaintiff's Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 102 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. To the extent that this paragraph contains allegations with respect to "apparent agents, ostensible agents, agent 28 servants, workmen, and/or employees," such persons are unnamed and unknown and these allegations are specifically denied. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 103. Denied. The averments set forth in Paragraph 103 of Plaintiff's Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 103 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 104. Denied. The averments set forth in Paragraph 104 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 104 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 105. Denied. The averments set forth in Paragraph 105 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 105 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC 29 Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 106. Denied. The averments set forth in Paragraph 106 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 106 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 107. Denied. The averments set forth in Paragraph 1.07 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 107 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 108. Denied. The averments set forth in Paragraph 108 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 108 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 30 109. Denied. The averments set forth in Paragraph 109 of Plaintiff's Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 109 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 110. Denied. The averments set forth in Paragraph 110 and subparagraphs 110 (a) through 110 (ccc) of Plaintiff's Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 110 (a) through 110 (ccc) are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 111. Denied. The averments set forth in paragraph 111 are specifically denied in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 112, Denied. The averments set forth in paragraph 112 are specifically denied in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 31 I 13. Denied. The averments set forth in paragraph 113 are specifically denied in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services 114. Denied. The averments set forth in Paragraph 114 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 114 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 115. Denied. The averments set forth in Paragraph 115 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 115 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 116. Denied. The averments set forth in Paragraph 116 of Plaintiff s Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 116 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC 32 Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. 117. Denied. The averments set forth in Paragraph 117 of Plaintiff's Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 117 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. By way of further answer, GGNSC Equity Holdings, LLC, Golden Gate National Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long term nursing and/or healthcare services. WHEREFORE, Defendants respectfully request that judgment be entered in their favor and against Plaintiff. COUNT TWO 118. Answering Defendants incorporate herein by reference their responses to Paragraphs 1 through 117 as if set forth at length herein. 119. Denied. The averments set forth in Paragraph 119 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 119 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. 120. Denied. The averments set forth in Paragraph 120 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 120 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. 33 121. Denied. The averments set forth in Paragraph 121 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 121 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. 122. Denied. The averments set forth in Paragraph 122 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 122 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. 123. Denied. The averments set forth in Paragraph 123 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 123 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. 124. Denied. The averments set forth in Paragraph 124 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 124 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial.. 125. Denied. The averments set forth in Paragraph 125 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 125 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial.. WHEREFORE, Defendants respectfully request that judgment be entered in their favor and against Plaintiff. 34 COUNT THREE 126. Answering Defendants incorporate herein by reference their responses to Paragraphs 1 through 125 as if set forth at length herein. 127. Denied. The averments set forth in Paragraph 127 of Plaintiff's Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 127 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. 128. Denied. The averments set forth in Paragraph 128 of Plaintiff's Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 128 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. 129. Denied. The averments set forth in Paragraph 129 of Plaintiff's Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 129 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. 130. Denied. The averments set forth in Paragraph 130 of Plaintiff's Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 130 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. 131. Denied. The averments set forth in Paragraph 131 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 131 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. 35 r 132. Denied. The averments set forth in Paragraph 132 of Plaintiff's Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 132 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial. 133. Denied. The averments set forth in Paragraph 133 of Plaintiffs Complaint constitute conclusions of law, to which no responsive pleading is required. To the extent that a response may be deemed necessary, the averments set forth in Paragraph 133 are specifically DENIED in their entirety and strict proof of same is demanded at time of trial WHEREFORE, Defendants respectfully request that judgment be entered in their favor and against Plaintiff. NEW MATTER PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1030 134. Defendants hereby incorporate by reference Paragraphs 1 through 133 of Plaintiff s Complaint, as if same were set forth fully at length herein. 135. Defendants hereby plead that any and all applicable statutes of limitations serve as a complete and/or partial bar to the entirety of Plaintiff s claims. 136. Defendants hereby plead Plaintiffs failure to state a cause of action upon which relief may be granted as a complete and/or partial bar to the entirety of Plaintiff s claims. 137. To the extent established through discovery, Defendants hereby plead the Doctrine of Comparative Negligence as a complete and/or partial bar to the entirety of Plaintiffs claims. 138. To the extent established through discovery, Defendants hereby plead the actions of third-parties over whom these Defendants exercise no dominion and/or control as a complete and/or partial bar to the entirety of Plaintiff s claims. 36 139. To the extent established through discovery, Defendants hereby plead the pre- existing condition of which Plaintiff suffered as a complete and/or partial bar to the entirety of Plaintiff's claims. 140. Defendants hereby plead the superseding and intervening acts and/or omissions of third-parties over whom these Defendants exercise no dominion and/or control as a complete and/or partial bar to the entirety of Plaintiff's claims. 141. Defendants hereby plead the informed consent of Plaintiff and/or Plaintiff's responsible party as a complete and/or partial bar to the entirety of Plaintiff's claims. 142. To the extent established through discovery, Defendants hereby plead that Plaintiff's assumption of a known risk serves as a complete bar to the entirety of Plaintiff's claims. 143. Defendants hereby plead want of an agency relationship between these Defendants as a complete and/or partial bar to the entirety of Plaintiff's claims. 144. Defendants hereby plead that, to the extent that any averments in Plaintiff's Complaint purport to set forth a basis for recovery pursuant to a corporate theory of liability, no such duty exists as a matter of law to individuals or long-term care facilities. 145. Defendants hereby plead and incorporate the provisions of the Health Care Services Malpractice Act / MCARE Act to the extent that they are applicable to the facts and circumstances of this case. 146. Defendants hereby plead that Plaintiff or Plaintiff's responsible party were fully informed of the known risks and complications attendant to treatment. 147. Defendants herby plead that if, during the course of discovery or trial, it is demonstrated that Plaintiff failed to exercise reasonable care for her own well-being through her 37 failure to properly follow treatment recommended by health care professionals, or should it be demonstrated that Plaintiff unreasonably refused treatment which would more likely than not have resulted in an improvement to her condition, then Plaintiff is barred from recovery to the extent of such unreasonable failure to mitigate. 148. Defendants hereby plead that, at all times material and relevant hereto, they acted in a non-negligent and prudent fashion in accordance with all applicable standards governing skilled nursing and/or long-term care facilities. 149. Defendants hereby plead that the care and treatment provided to Plaintiff during her periods of residency at GLC - West Shore was in accordance with, and under the direction of, one or more physicians who were responsible for the management of Plaintiff's care. 150. Any alleged negligent acts and/or omissions by Defendants, their agents, servants and/or employees were not substantial contributing factors to the alleged injuries and/or damages forming the basis of the Plaintiff's Complaint. 151. Defendants, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC were not involved in the provision of long-term nursing and/or healthcare services. Accordingly, these Defendants hereby plead a want of duty on their part, as a complete and/or partial bar to the entirety of Plaintiff's claims. 152. The care at issue relates to Inez Davis only. 153. Defendants deny all allegations related to Plaintiff's requested damages. 154. Defendants deny that Plaintiff is entitled to any damages. 155. Defendants deny that their conduct was grossly negligent, willful, wonton, reckless, malicious or conducted with conscious indifference to the rights of Inez Davis. 38 156. Defendants hereby assert the right to plead further, including reservation of all affirmative defenses allowed under Pennsylvania law which are required to be pled in the initial pleading and all third party claims which may be appropriate. 157. Defendants hereby plead that Plaintiffs Complaint fails to state facts sufficient to justify an award of punitive damages. 158. Defendants hereby plead and assert that any claim for punitive damages is pre- empted by the federal statutory and regulatory scheme related to nursing homes. 159. Defendants hereby plead that Plaintiffs claim for punitive damages against all or any of these Defendants is barred, in whole or in part, because an award of punitive damages under Pennsylvania law would violate the defendants' due process rights and equal protection rights guaranteed by United States Constitution and Pennsylvania Constitution. 160. Defendants, GGNSC Equity Holding, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC, , hereby assert that Plaintiffs claim for alleged violations of the Pennsylvania Code should be dismissed against them because they are not the licensees of the facility in question. 161. Defendants, GGNSC Equity Holding, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC, hereby assert that Plaintiffs claim for medical negligence should be dismissed as against them because they are not medical care providers. WHEREFORE, Defendants, GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore, GGNSC Equity Holdings, LLC, Golden Gate National Senior Care, LLC, GGNSC Camp Hill West Shore GP, LLC, and GGNSC Holdings, LLC, deny that they are liable to Plaintiff and respectfully request this Honorable Court dismiss Plaintiff s Complaint. Respectfully submitted, 39 FOX ROTHSCHILD LLP A M. CAROLAN, ESQUIRE 2000 Market Street, 20th Floor Philadelphia, PA 19103 215-299-2863 Attorneys for Defendants, GGNSC Camp Hill West Shore, LP, d/b/a Golden Living Center - West Shore, GGNSC Equity Holdings, LLC, GGNSC Camp Hill West Shore GP, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC, Date: February 7, 2012 40 VERIFICATION I, Holly Rasmussen-Jones, Secretary of Golden Gate National Senior Care LLC, state that I have read the foregoing ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER which has been drafted with the assistance of counsel. The factual statements contained therein are true and correct to the best of my information, knowledge, and belief with respect to Golden Gate National Senior Care LLC, although the language is that of counsel and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. This statement is made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. Holl asm sen-Jones, Secretary r of Golden G e National Senior Care LLC Date: ?V ??? VERIFICATION I, Holly Rasmussen-Jones, Assistant Secretary of GGNSC Holdings LLC, state that I have read the foregoing ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER which has been drafted with the assistance of counsel. The factual statements contained therein are true and correct to the best of my information, knowledge, and belief with respect to GGNSC Holdings LLC, although the language is that of counsel and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. This statement is made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. i a i Hol' y s, Secretary ?gssen-jo Date: c) Holdings LLC VERIFICATION I, Holly Rasmussen-Jones, Secretary of GGNSC Equity Holdings LLC, state that I have read the foregoing ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER which has been drafted with the assistance of counsel. The factual statements contained therein are true and correct to the best of my information, knowledge, and belief with respect to GGNSC Equity Holdings LLC, although the language is that of counsel and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. This statement is made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unswom falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. 1` Holly asm414ity en-Jone ,Secretary of GGNSC Holdings LLC Date: A o? 112 VERIFICATION I, Holly Rasmussen-Jones, Secretary of GGNSC Camp Hill West Shore GP LLC, as general partner on behalf of GGNSC Camp Hill West Shore LP state that I have read the foregoing ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER which has been drafted with the assistance of counsel. The factual statements contained therein are true and correct to the best of my information, knowledge, and belief with respect to GGNSC Camp Hill West Shore GP LLC, as general partner on behalf of GGNSC Camp Hill West Shore LP although the language is that of counsel and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. This statement is made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unswom falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. ~~ 40 d C, N Holly as ssen-Jo es, Secretary of GGNSC Camp Hill West Shore GP LLC, as general partner on behalf of GGNSC Camp Hill West Shore LP Date: ')Ip3111 VERIFICATION I, Beverly Fry, Executive Director at Golden Living Center- West Shore state that f have read the foregoing ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER which has been drafted with the assistance of counsel. The factual statements contained therein are true and correct to the best of my information, knowledge, and belief with respect to Golden Living Center- West Shore, although the language is that of counsel and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. This statement is made subject to the penalties of 18 Pa.C.S.A. § 4904; relating to answorn falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. 4 '1 1 I . Date (?,M" " ?-L rly Fry Executive Direc r- Golden Living Center West Shore A CERTIFICATE OF SERVICE On this 71h day of February, 2012, I, Jacqueline M. Carolan, hereby certify that I have, this day, served a true and correct copy of the foregoing Defendants GGNSC Camp Hill West Shore, LLP d/b/a Golden Living Center - West Shore, GGNSC Equity Holdings, LLC, GGNSC Camp Hill West Shore GP, LLC, Golden Gate National Senior Care, LLC, and GGNSC Holdings, LLC's Answer to Plaintiff's Complaint with New Matter via U.S. Mail upon the following: Ian T. Norris, Esquire Wilkes & McHugh, PA Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Counsel for Plaintiff _ 'J YC • ? 'cqueline M. Carolan, Esquire FILED-0r F101: OF THE PROTI1Oi4d-Tjwy By: Ian T. Norris, Esquire Identification No.: 20756612 FEB 21 AM 9: 5 WILKES & McHUGH, P.A. 1601 Cherry Street, SuiQUNKRLAND COUN1 '` Philadelphia, PA 19102 PENNSYLVANIA Tel. No.: (215) 972-0811 Email: inorris(&,wilkesmchugh.com GLORIA BANKS, GUARDIAN OF INEZ DAVIS Plaintiff. vs. GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE; GGNSC HOLDINGS, LLC; GGNSC CAMP HILL WEST SHORE GP, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC;GGNSC EQUITY HOLDINGS, LLC and BEVERLY FRY, N.H.A. Defendants. THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED Attorney for Plaintiff, Gloria Banks, Guardian of Inez Davis COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 10-6924 PLAINTIFF'S ANSWER TO DEFENDANTS' NEW MATTER Plaintiff; Gloria Banks, Guardian of Inez Davis, by and through her counsel, Wilkes & McHugh, P.A, files the within Answer to New Matter of Defendants, GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore, GGNSC Holdings, LLC, GGNSC Camp Hill West Shore GP, LLC, Golden Gate National Senior Care, LLC, and GGNSC Equity Holdings, LLC ("Defendants"). 134. This is a paragraph of incorporation to which no response is required. 135. Denied. This paragraph contains a conclusion of law to which no response is required. To the extent a response is required, the same is denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 136. Denied. This paragraph contains a conclusion of law to which no response is required. To the extent a response is required, the same is denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). By way of further response, the allegations set forth in Plaintiffs Complaint are sufficient to state a cause of action for all counts, claims and damages sought within Plaintiff's Complaint. 137. Denied. This paragraph contains a conclusion of law to which no response is required. To the extent a response is required, the same is denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 138. Denied. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the same is denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). By way of further response, the allegations set forth in Plaintiff s Complaint are sufficient to establish all Defendants' liability in this matter. 139. Denied. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the same is denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 140. Denied. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the same is denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). Further, Defendants' New Matter fails to set forth the identity of any " third parties" whose acts or omissions Defendants allege caused Ms. Davis the injuries and damages set forth in Plaintiffs Complaint. 141-143. Denied. These paragraphs contain conclusions of law to which no response is required. To the extent a response is required, the same is denied. These paragraphs are also denied and at issue pursuant to Pa.R.C.P. 1029(e). 144. Denied. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the same is denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). By way of further response, there is ample case law to support the imposition of corporate liability upon Defendants. 145450. Denied. These paragraphs contain conclusions of law to which no response is required. To the extent a response is required, the same is denied. These paragraphs are also denied and at issue pursuant to Pa.R.C.P. 1029(e). 151. Denied. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the same is denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). By way of further response, in the recent landmark decision, Scampone v. Grane Healthcare Co., 2010 Pa. Super. 124, 11 A.3d 967 (2010), reh'g, denied, --- .A.2d ---- (Sept. 24, 2010), appeal granted, 15 A.3d 427 (Pa. March 8, 2011), the Superior Court held that nursing homes and their related corporate entities can be held directly liable for a resident's injuries under a theory of corporate negligence. 152. Denied. The care (or rather, lack of care) provided to the residents in Defendants' Facility is relevant. In addition to the neglect and abuse suffered by Inez Davis, Plaintiff avers that Defendants engaged in similar conduct with regards to other residents, and therefore, Defendants were on notice of this conduct and the consequences it could have (and did have) for Inez Davis. 153-155. Denied. These paragraphs contain conclusions of law to which no response is required. To the extent a response is required, the same is denied. These paragraphs are also denied and at issue pursuant to Pa.R.C.P. 1029(e). By way of further response, the allegations set forth in Plaintiff's Complaint are sufficient to state a cause of action for all counts, claims and damages sought within Plaintiff's Complaint. 156. Denied. This paragraph contains a conclusion of law to which no response is required. To the extent a response is required, the same is denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). 157. Denied. This paragraph contains a conclusion of law to which no response is required. To the extent a response is required, the same is denied. This paragraph is also denied and at issue pursuant to Pa.R.C.P. 1029(e). By way of further response, the allegations set forth in Plaintiff's Complaint are sufficient to state a cause of action for all counts, claims and damages sought within Plaintiff's Complaint. 158-161. Denied. These paragraphs contain conclusions of law to which no response is required. To the extent a response is required, the same is denied. These paragraphs are also denied and at issue pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Plaintiff, Gloria Banks, Guardian of Inez Davis, respectfully requests that judgment be entered in her favor, and against Defendants, in an amount in excess of the compulsory arbitration limits and/or fifty thousand dollars ($50,000.00) whichever is greater, together with punitive damages, costs, and any other relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. DATED:, / 7// O' BY: WILKES & McHUGH, P.A. Attorney for Plaintiff VERIFICATION I, Ian T. Norris, Esquire, verify that I am the Attorney for Plaintiff, and that the averments set forth in the forgoing document are true to the best of my knowledge. information and belief. I understand that this verification is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Dated: _ I n . N is, quire Attorney for laintiff CERTIFICATE OF SERVICE I, Ian T. Norris, Esquire, hereby certify that a true and correct copy of Plaintiffs Answer to Defendants' New Matter was served in accordance with the Rules of Civil Procedure via U.S. Mail on the date listed below upon the following: Jacqueline M. Carolan, Esquire FOX ROTHSCHILD, LLP 2000 Market Street, 10th Fl Philadelphia, PA 19103-3291 (Attorney for Defendants) WILKES & MCHUGH, P.A. Dated: By: WTForris?Ascqluire, --i;? . Attorney f Plaintiff 3 GLORIA BANKS, GUARDIAN OF 1NEZ DAMS IN THE COURT OF COMMON PLEAS Plaintiffs :CUMBERLAND COUNTY, PA vs. GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER -WEST SHORE; GGNSC HOLDINGS, LLC; GGNSC CAMP HILL WEST SHORE GP, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC; : GGNSC EQUITY HOLDINGS, LLC; and BEVERLY FRY, N.H.A. Defendants. Civil Action No. 10-6924 '` ORDER AND NOW, this °~ bd', day of ~ , 2012, upon consideration of the Petition for Leave to Settle or Compromise Civil Action Involving an Incapacitated Person, it is hereby ORDERED and DECREED that Petitioner is authorized to enter into a settlement with Defendants in the gross sum of $450,000.00. IT IS FURTHER ORDERED and DECREED that the settlement proceeds be distributed as follows: 1. To: Wilkes & McHugh, P.A. Counsel Fees $ 180,000.00 2. To: Wilkes & McHugh, P.A. $ 16,623.57 Reimbursement for Costs Advanced 3. To: Gloria Banks, the permanent plenary guardian of the estate and person of Inez Davis, an incapacitated person, appointed by the Orphans' Court of Cumberland County, the sum of $ 253,376.43 (less the following estimated liens): To: Wilkes & McHugh, P.A. Maximum estimated lien to Medicaid (to be held in escrow): ($ 1,105.10) To: Wilkes & McHugh, P.A. Maximum estimated lien to Medicare (to be held in escrow): ($ 9,728.07) Monies payable to the incapacitated person shall be placed into an interest bearing bank account by the Petitioner to be used thereafter for the benefit of the incapacitated person. The Petitioner is authorized to make disbursements, including attorneys' fees and costs, pursuant to the Petition and to execute all necessary releases, endorse all checks and to make appropriate distribution. THE T: J. Distribution: ~hn B. Zonarich, Esq., SkarlatosZonarich LLC, 17 South Second Street, 6`h Floor, Harrisburg, PA 17101. Ian T. Norris. Esq., Wilkes & McHugh, P.A., Three Parkway, 1601 Cherry Street, Suite 1300, Philadelphia, PA 1$lj)2. ,.,, ` ,Jacqueline M. Carolan, Esq., Fox Rothschild, LLP, 2000 Market Street, 20th Floor, Philadelphia, PA 19103-322~2~ r ~ ~~ ~ tT* ~ :mri _ ._ • ; 3 r N ~:; Y r ~.~~,. a'° t=' ~~7 "~ C. ,~ -r ~-. _ T ,. .` ~:: _~ . 1 ~ ~ '~ g 1 " ~~ .- -2-