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HomeMy WebLinkAbout14-3900 * r Supreme C nnsylvania Cou leas rent ntai s til s C N a COtltlty 0 The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service ofpleadings or other papers as required by law or rules of court. Commencement of Action: EXI Complaint ® Writ of Summons ® Petition ® Transfer from Another Jurisdiction ® Declaration of Taking Lead Plaintiff's Name: Lead Defendant's Name: Carol Schaar, Individually and on behalf of the Wrongful HCR Manor Care, Inc.,et al. Dollar Amount Requested: ®within arbitration limits .. Are money damages requested? 0 Yes ® No (check one) ®x outside arbitration limits Is this a Class Action Suit? ®Yes El No an MDJAppeal? [3 Yes IM No. Name of Plaintiff/Appellant's Attorney: ® Check here if you have no attoro r Self-Represented (Pro Se] Litigant) e NatureQf theCase Flake a "to, e"Aft o tt�e�OFEh11 �a�se catgA gfl +tktat host accu�ratel descrtbs yours IMA' 145E I ou are akin mre tktan cae �of bltm clack tie onetiaat` . y g t._ ; vu,G`OnStde OSTI�lIo tart TORT(do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS ® Intentional ®Buyer Plaintiff Administrative Agencies ® Malicious Prosecution ® Debt Collection:Credit Card ® Board of Assessment aa' ® Motor Vehicle E3 Debt Collection:Other ® Board of Elections ®Nuisance ® Dept.of Transportation ® Premises Liability Statutory Appeal:Other ®Product Liability(does not include mass tort) ® Employment Dispute: ® Slander/Libel/Defamation Discrimination 3 ®Employment Dispute:Other ® Zoning Board M Other: Negligence and Wrong Death ® Other: ® Other: MASS TORT ® Asbestos ® Tobacco e ® Toxic Tort-DES ® Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS ® Toxic Waste ®Ejectment ® Common Law/Statutory Arbitration ® Other: ® Eminent Domain/Condemnation ® Declaratory Judgment . ® Ground Rent ®Mandamus ® Landlord/Tenant Dispute ® Non-Domestic Relations — ®Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITYQuo Warranto ®Mortgage Foreclosure:Commercial ® Dental ® Partition ®Replevin ® Legal ® Quiet Title, E3 Other: ® Medical ® Other: z ® Other Professional: Updated 1/1/2011 t GF Tr. v' �F10�. McHUGH FULLER LAW GROUP Attorney for Plaintiffs MICHAEL J. FULLER, ESQUIRE Z�l!� JUL _.3 Ar' 10: 16 Attorney I.D. # 230731 OOti, � 97 Elias Whiddon Rd. �LMND COUNTY Hattiesburg, MS 30402 F'ESjS YLVANIA (601) 261- 2220 mike@mchughfuller.com CAROL SCHAAR, Individually and IN THE COURT OF COMMON PLEAS on behalf of the Wrongful Death CUMBERLAND COUNTY Beneficiaries of EMILY ZAGORIC, CIVIL ACTION Plaintiff , VS. �b . 1 q, Ifv ' , DOC 3 DOCKET NO. 1 HCR MANOR CARE, INC.; HCR MANOR CARE SERVICES, INC.; HEARTLAND EMPLOYMENT SERVICES, LLC; MANOR CARE OF CAMP HILL PA LLC; JOHN DOES 1THROUGH 10; AND UNIDENTIFIED ENTITIES 1 THROUGH 10 Defendants JURY TRIAL DEMANDED NOTICE 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 [60 days if served outside the United States] after the complaint and notice are served, by entering a written appearance personally or by attorney and filing 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 judgment 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGILBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYER REFERENCE SERVICE Cumberland County Bar Association 32 South Bedford Street r Carlisle, PA 17013 1-800-990-9108 �. Pd gs Y McHUGH FULLER LAW GROUP Attorney for Plaintiffs MICHAEL J. FULLER, ESQUIRE Attorney I.D. # 230731 97 Elias Whiddon Rd. Hattiesburg, MS 30402 (601) 261- 2220 mike@mchughfuller.com CAROL SCHAAR, Individually and IN THE COURT OF COMMON PLEAS on behalf of the Wrongful Death CUMBERLAND COUNTY Beneficiaries of EMILY ZAGORIC, CIVIL ACTION Plaintiff VS. DOCKET NO. HCR MANOR CARE, INC.; HCR MANOR CARE SERVICES, INC.; HEARTLAND EMPLOYMENT SERVICES, LLC; MANOR CARE OF CAMP HILL PA LLC; JOHN DOES 1THROUGH 10; AND UNIDENTIFIED ENTITIES 1 THROUGH 10 Defendants JURY TRIAL DEMANDED CIVIL ACTION COMPLAINT Plaintiff, Carol Schaar, Individually and on behalf of the Wrongful Death Beneficiaries of Emily Zagoric, by and through Carol Schaar, and by and through her undersigned counsel, herein complain of the above captioned Defendants as follows: PARTIES 1. Emily Zagoric died on September 18, 2013 as a result of the injuries she suffered while residing at ManorCare Health Services-Camp Hill including but not limited to infections, septic shock, and dehydration. ManorCare Health Services-Camp Hill is located at 1700 Market Street, Camp Hill, Pennsylvania 17011. The Estate of Emily Zagoric brings this action by and through Carol Schaar, the Executrix of the 2 Estate. Carol Schaar is the daughter of Emily Zagoric, residing at 149 North 25th Street, Camp Hill, Pennsylvania, 17011. 2. Separate Defendant HCR Manor Care, Inc. is a corporation and/or other legal entity organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania, maintaining its place of business at 333 North Summit Street, Toledo, Ohio 43604-2617. At all times material to this action, HCR Manor Care, Inc. was authorized to do business in the Commonwealth of Pennsylvania and to operate a long term care facility. HCR Manor Care, Inc. is engaged in the for-profit custodial care of elderly individuals in need of healthcare, medical services and nursing care, treatment and supervision. HCR Manor Care, Inc. maintained, operated, and controlled a long term care facility engaged in the custodial and personal care of elderly, helpless individuals who are chronically infirm, mentally impaired, and/or in need of nursing care and treatment at ManorCare Health Services- Camp Hill. 3. Separate Defendant HCR Manor Care Services, Inc. is a corporation and/or other legal entity organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania maintaining its place of business at 333 North Summit Street, Toledo, Ohio 43604-2617. HCR Manor Care Services, Inc. is engaged in the for-profit custodial care of elderly individuals in need of healthcare, medical services and nursing care, treatment and supervision. HCR Manor Care Services, Inc. maintained, operated, and controlled a long term care facility engaged in the custodial and personal care of elderly helpless individuals who are chronically infirm, mentally impaired, and/or in need of nursing care and treatment. 3 4. Separate Defendant Heartland Employment Services, LLC is a corporation and/or other legal entity organized and existing under and by virtue of the laws of the state of Ohio maintaining its place of business at 333 North Summit Street, Toledo, Ohio 43604-2617. Heartland Employment Services, LLC is engaged in the for- profit custodial care of elderly individuals in need of healthcare, medical services and nursing care, treatment and supervision. Heartland Employment Services, LLC maintained, operated, and controlled a long term care facility engaged in the custodial and personal care of elderly helpless individuals who are chronically infirm, mentally impaired, and/or in need of nursing care and treatment. 5. Separate Defendant Manor Care of Camp Hill PA, LLC is a corporation and/or other legal entity organized and existing under and by virtue of the laws of the state of Delaware maintaining its place of business at 333 North Summit Street, Toledo, Ohio 43604-2617. Manor Care of Camp Hill PA, LLC is engaged in the for-profit custodial care of elderly individuals in need of healthcare, medical services and nursing care, treatment and supervision. Manor Care of Camp Hill PA, LLC maintained, operated, and controlled a long term care facility engaged in the custodial and personal care of elderly helpless individuals who are chronically infirm, mentally impaired, and/or in need of nursing care and treatment. 6. Separate Defendants John Does 1 through 10 are individuals whom Plaintiff is currently unable to identify despite diligent efforts. Said Defendants are named insofar as their acts and/or omissions were negligent and/or otherwise tortious with respect to the care and treatment of, or in the staffing, supervision, administration and direction of the care and treatment of Emily Zagoric during her residency at 4 ManorCare Health Services-Camp Hill. Alternatively, Defendants are liable for the negligent and/or otherwise tortious acts and/or omissions of others with respect to the care and treatment of Emily Zagoric during her residency at ManorCare Health Services- Camp Hill. 7. Separate Defendants Unidentified Entities 1 through 10 are entities whom Plaintiff is currently unable to identify despite diligent efforts. Defendants are named insofar as their acts and/or omissions were negligent and/or otherwise tortious with respect to the care and treatment of Emily Zagoric during her residency at ManorCare Health Services- Camp Hill. Alternatively, Defendants are liable for the negligent and/or otherwise tortious acts and/or omissions of others with respect to the care and treatment of Emily Zagoric during her residency at ManorCare Health Services- Camp Hill. 8. HCR Manor Care, Inc., HCR Manor Care Services, Inc., Heartland Employment Services, LLC, and Manor Care of Camp Hill PA, LLC, are collectively referred to as "Nursing Home Defendants." JURISDICTION AND VENUE 9. Jurisdiction and venue are proper in the 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. FACTUAL BACKGROUND REGARDING ALL DEFENDANTS 10. At all times mentioned herein, Nursing Home Defendants owned, operated, and or controlled the long term care facility ManorCare Health Services-Camp Hill, either directly or through the agency of each other and their agents, employees, 5 servants, contractors, subcontractors, consultants, subsidiaries, staff, principals, and/or representatives. The action of Nursing Home Defendants and each of their agents, employees, servants, contractors, subcontractors, consultants, subsidiaries, staff, principals, and/or representatives as set forth herein are imputed to each of Nursing Home Defendants, jointly and severally. 11. At all times material hereto, Nursing Home Defendants were operating personally or through their agents, employees, servants, contractors, subcontractors, consultants, subsidiaries, staff, principals, and/or representatives, 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 Nursing Home Defendants herein. 12. Nursing Home Defendants operate ManorCare Health Services- Camp Hill, pursuant to a Certificate of Need and License issued by the Commonwealth of Pennsylvania. 13. Nursing Home Defendants agreed and undertook the legal duty to operate ManorCare Health Services- Camp Hill in compliance with all state and federal laws and regulations. 14. Despite the foregoing, during Emily Zagoric's residency at their premises, said Nursing Home Defendants consistently, knowingly, recklessly and carelessly operated said ManorCare Health Services- Camp Hill and allowed continuing operation there to be conducted in violation of mandatory requirements of multiple of portions of state regulations. 6 15. Nursing Home Defendants owed to Emily Zagoric and the other residents a fiduciary duty to use their best efforts and to provide adequate resources to ManorCare Health Services-Camp Hill so that Emily Zagoric and the other residents could be adequately cared for. Emily Zagoric, like the other residents of ManorCare Health Services-Camp Hill, was frail, vulnerable, elderly and dependent upon Nursing Home Defendants to care for her health, safety and well-being. 16. At the time of Emily Zagoric's admission to ManorCare Health Services- Camp Hill, Nursing Home Defendants assessed the needs of Emily Zagoric and were aware of Emily Zagoric's medical condition and the care and treatment she required. Nursing Home Defendants represented and promised they could adequately provide care and treatment for Emily Zagoric's health, safety and well-being. 17. At all times material hereto, Nursing Home Defendants held themselves out as capable of providing proper care to maintain Emily Zagoric's health, safety and well-being, including proper and timely initial and additional assessments, proper and complete support planning, basic and specialized cognitive support services, complete medical evaluations, supplemental healthcare services, proper personal hygiene, provision of medications, and medical care and treatment. Notwithstanding this knowledge, Nursing Home Defendants failed to provide for Emily Zagoric's needs and failed to provide sufficient staff and/or competent staff, services, equipment and supplies to meet the needs of Emily Zagoric and the residents of ManorCare Health Services- Camp Hill. 18. Emily Zagoric relied upon the knowledge, treatment, care and advice of Nursing Home Defendants. 7 19. Nursing Home Defendants, through advertising, promotional materials and information sheets, held themselves out to the public as being able to provide for the health, safety and well-being of vulnerable individuals in need of such care, including Emily Zagoric. 20. In an effort to assure that Emily Zagoric and other residents at the facility were being provided proper care, Nursing Home Defendants held themselves out to the Pennsylvania Department of Health, Department of Aging and the public at large as being: A. Skilled in meeting the health, safety and well-being needs of their residents; B. Properly staffed, supervised and equipped to meet the total needs of their long term care facility residents; C. Able to specifically meet the health, safety and well-being needs of Emily Zagoric and other long term care facility residents; D. Licensed by the Pennsylvania Department of Health and complying on a continual basis with all rules, regulations and standards established for assisted living facilities. 21. Upon information and belief, at all times relevant hereto, Nursing Home Defendants were a vertically integrated business structure that was controlled by the same board of directors, who were responsible for the operation, planning, management and quality control of ManorCare Health Services- Camp Hill. 22. Nursing Home Defendants, by and through their board of directors and corporate officers, utilized inspection results and quality indicators to monitor the care being provided at their facilities, including ManorCare Health Services- Camp Hill. 23. Nursing Home Defendants controlled the operation, planning, management and quality control of the long term care facility ManorCare Health Services- Camp Hill in which Emily Zagoric was a resident. This included, but was not 8 limited to, control of marketing, budgeting, human resources, management, training, staffing, creation and implementation of all policies and procedures used by the long term care facility ManorCare Health Services- Camp Hill, quality care assessment and compliance, licensure and certification, legal services, and financial, tax, and accounting control through fiscal policies. Nursing Home Defendants exercised ultimate authority over all budgets and had final approval over the allocation of resources to their nursing homes, including ManorCare Health Services- Camp Hill. 24. Nursing Home 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 ManorCare Health Services- Camp Hill, and to oversee their conduct in the matters set forth herein. 25. It is believed and therefore averred that it was Nursing Home Defendants' corporate philosophy and decisions that led to the poor conditions at ManorCare Health Services- Camp Hill and the injuries suffered by Emily Zagoric. Nursing Home Defendants were not adequately providing care for the residents of its facilities. Nursing Home Defendants were aware of the complaints, concerns and/or problems at its facilities. Nursing Home Defendants ignored these complaints, concerns and/or problems and focused on maximizing profits, to the detriment of Emily Zagoric and the other residents of ManorCare Health Services- Camp Hill. The operational decisions that were made by Nursing Home Defendants, as a result of this philosophy, are the proximate cause of the circumstances and events that led to Emily Zagoric's injuries. 26. At all times material hereto, Nursing Home Defendants made a conscious decision to operate and/or manage the ManorCare Health Services- Camp Hill so as to 9 maximize profits at the expense of the care required to be provided to its residents, including Emily Zagoric. Nursing Home Defendants knowingly disregarded resident acuity levels and kept residents that required more care and treatment then ManorCare Health Services- Camp Hill was capable of providing. Nursing Home Defendants also made staffing decisions that knowingly disregarded the minimum time required by the staff to perform essential day-to-day functions and treatments. 27. Nursing Home Defendants recklessly and/or negligently disregarded the consequences of their actions and/or negligently caused staffing levels at the ManorCare Health Services- Camp Hill 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 Emily Zagoric, in a conscious reckless disregard for her life, health and well-being. 28. Nursing Home Defendants failed to discharge their obligations of care to Emily Zagoric with a conscious and reckless disregard for her rights and safety, as well as the other residents. At all times mentioned herein, Nursing Home Defendants had knowledge of, ratified and otherwise authorized all the acts and omissions that caused the injuries suffered by Emily Zagoric. Nursing Home Defendants knew or should have known ManorCare Health Services- Camp Hill, due to lack of adequate resources, the nursing staff could not provide even the minimum standard of care to the weak and vulnerable residents of the facility and as a result, Emily Zagoric 's health and well-being deteriorated unnecessarily. 10 29. The actions of Nursing Home Defendants were designed to increase profits and cut expenses irrespective of its impact on ManorCare Health Services- Camp Hill residents. 30. During the residency of Emily Zagoric at ManorCare Health Services- Camp Hill, Nursing Home Defendants knowingly and/or negligently sacrificed the quality of care received by all residents, including Emily Zagoric, by failing to manage, care, monitor, document, chart, prevent, diagnose and/or treat the injuries and illnesses suffered by Emily Zagoric as documented in the medical records and evaluative reports of physicians and other health care professionals, including as described herein, preventable worsening of pressure sores, infections, malnutrition, resident injury, physical abuse, psychological abuse, deprivation of dignity, bruising, lacerations, a worsening of her overall condition, and severe pain. 31. At all times relevant herein, Nursing Home Defendants operated and managed their facilities so as to maximize profits by reducing the resources to a level below that needed to provide appropriate care to the residents, which demonstrates a failure to comply with the applicable regulations and standards for nursing home facilities. Specifically, Nursing Home Defendants intentionally, and witha knowing and reckless disregard for the consequences of their actions, caused staffing competency and/or levels, supplies and other resources needed to care for the residents to be set at a level where the caregivers could not reasonably attend to the needs of the residents. All of these acts of malfeasance directly caused injury to Emily Zagoric and other residents of the ManorCare Health Services- Camp Hill and were known to Nursing Home Defendants. The acts and omissions of Nursing Home Defendants were 11 motivated by a desire to increase the profitability and net worth of Nursing Home f Defendants. 32. The acts and omissions on the part of Nursing Home Defendants as set forth in this Complaint were the factual cause of the physical and emotional harm suffered by Plaintiff, Emily Zagoric. 33. The conduct of Nursing Home 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, Plaintiff requests punitive damages in addition to all other damages as aforesaid. FACTUAL BACKGROUND REGARDING EMILY ZAGORIC 34. Emily Zagoric resided at ManorCare Health Services- Camp Hill from on or about August 4, 2013 until September 16, 2013. The nursing home records indicate that Emily Zagoric was admitted with a good prognosis for eventual discharge. 35. Two days after her admission, the doctor's notes indicate that Emily Zagoric's Urinary Tract Infection was "clinically resolved." 36. On August 26, 2013, Emily Zagoric was diagnosed with failure to thrive as her appetite had decreased and she had lost 20-30 pounds in the past 6-8 weeks. 37. On September 4, 2013, physical therapy reports indicate that Emily Zagoric was exhausted and did not want to participate in physical therapy. Specifically, the report indicates that Emily Zagoric lacked motivation even with encouragement. Physical therapy was discontinued on this date. 38. On September 9, 2013, Emily Zagoric's family alerted the staff at ManorCare Health Services- Camp Hill that she seemed more confused than usual. 12 39. On September 16, 2013, a nurse was called to Emily Zagoric's room at 6:10 am and found her lethargic. Her oxygen saturation was 60 and she had a temperature of 100.3. A late entry in the nursing notes indicates that Emily Zagoric was talking all night, waving her arms, and yelling "Help, help!" That late entry also indicates that Emily Zagoric had labored breathing with shallow respiration and shortness of breath. Her blood pressure was 114/64, her heart rate was 194, and she still had a temperature of 100.3 40. Emily Zagoric was transported to Holy Spirit Hospital on September 16, 2013 by EMS. EMS described Emily Zagoric as in "guarded condition." Her white blood cell count was 23.4, BUN 50, Creatinine 1.3 and Sodium 148. The EMS records also indicate that Emily Zagoric was found by ManorCare Health Services-Camp Hill staff but they were unclear as to the time of onset of her condition. 41. Emily Zagoric was admitted to Holy Spirit Hospital on September 16, 2013. She was diagnosed as critically ill with Acute Renal Failure, Acute Urinary Tract Infection, Sepsis, and Altered Mental Status. She was prescribed antibiotics for UTI Sepsis. 42. On September 17, 2013, Emily Zagoric was a Code Blue as she was found pulseless. Hospital staff administered CPR, revived Emily Zagoric and then transferred her to the ICU. The treating physician notes concerns that the ultimate cause of the cardiac arrest was Severe Septic Shock. 43. Emily Zagoric died September 18, 2013. The cause of death is indicated as cardiorespiratory failure due to septic shock due to UTI. 44. A verification of the statements contained herein is included with this filing. 13 COUNT I: NEGLIGENCE Plaintiff, Emily Zagoric, by and through her Administrator, Carol Schaar, vs. Defendants HCR Manor Care, Inc., HCR Manor Care Services, Inc., Heartland Employment Services, LLC, Manor Care of Camp Hill PA LLC 45. Plaintiff incorporates herein by reference each and every preceding paragraph of this Complaint as if the same was more fully set forth herein. 46. The injuries and damages to Emily Zagoric were caused directly by the negligence, carelessness, and/or recklessness of ManorCare Health Services- Camp Hill Defendants, individually, vicariously, and/or acting by and through their officer, board members, physician, physician assistant nurses, nurses, certified nurse's aides and staff who examined, treated and/or communicated the condition of Emily Zagoric, and through the administrative personnel responsible for hiring, retaining and or dismissing staff, staff supervision and policy making enforcement as well as any agents, servants, employees, contractors, subcontractors and/or consults of the ManorCare Health Services- Camp Hill Defendants and by, all of whose conduct deviated from applicable standards of care and regulatory requirements and consisted of the following: a. Failure of ManorCare Health Services- Camp Hill to recognize and address risk factors for falls including Emily Zagoric's limited range of motion, need for monitoring, need for verbal cuing, inability to support, pain, muscle weakness, poor safety awareness, underlying health conditions, extensive assistance requirements, dependence on transfers, inability to stabilize without assistance and fear of falling, proper assessments and develop and implementation of appropriate Care Plans. b. Failure to provide adequate and appropriate supervision and appropriate assistance devices to prevent falls and accidents; C. Failure of the ManorCare Health Services- Camp Hill to adequately assess and reassess Emily Zagoric's propensity for the development and worsening of pressure sores; 14 d. Failure to provide Emily Zagoric with adequate physical and rehabilitative therapies to increase/maintain her mobility and range of motion including her legs, arms, and shoulders; e. Failure to provide Emily Zagoric with adequate restorative therapy to increase/maintain her mobility and range of motion including her legs, arm, and shoulders; f. Failure of ManorCare Health Services- Camp Hill to provide Emily Zagoric with appropriate treatment and services to increase range of motion and/or to prevent further decreases in range of motion including active and passive range of motion; g. Failure to provide safe conditions to prevent injury to Emily Zagoric; h. Failure of ManorCare Health Services- Camp Hill to provide an environment that was free of accident hazards over which ManorCare Health Services- Camp Hill had control and provide appropriate supervision and assistive devices to Emily Zagoric; i. Negligently allowed Emily Zagoric to go without adequate safety precautions; j. Failure to appreciate Emily Zagoric was vulnerable and not in a position to provide for her own safety; k. Failure of ManorCare Health Services- Camp Hill to identify and evaluate the hazards and risks of Emily Zagoric related to accidents and implement interventions, including adequate supervision and appropriate assistive devices to reduce those hazards and risks; I. Failure of ManorCare Health Services- Camp Hill to provide a safe, functional, sanitary and a comfortable environment for residents, staff, and the public; M. Failure to maintain sanitary and structural integrity of the premises at ManorCare Health Services- Camp Hill, for the health and welfare of the residents, such as Emily Zagoric; n. Failure of ManorCare Health Services- Camp Hill to monitor the effectiveness and modification of interventions when necessary including the type of equipment and devices necessary to assist Emily Zagoric; o. Failure to use reasonable care in the maintenance of safe and adequate facilities and equipment; p. Failure to ensure that all violations involving mistreatment, neglect or abuse, including injuries of unknown source were reported immediately to the administrator of the ManorCare Health Services- 15 Camp Hill and other officials in accordance with Pennsylvania State law; q. Failure to investigate all violations involving mistreatment, neglect or abuse, including injuries of unknown source; r. Failure to timely and appropriately perform adequate pain assessments, including the history of pain, the intensity of pain, the description, pattern, location and radiation and frequency of pain, impact of pain, associated symptoms, activities that precipitate or exacerbate, strategies to reduce pain; S. 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 Emily Zagoric. t. Failure of the assessments to accurately reflect Emily Zagoric's status; U. Failure to complete accurate and reproducible assessments for Emily Zagoric; V. Failure to do timely and adequate assessments to determine Emily Zagoric's degree of mobility, physical impairment, cognitive impairment, proper transfer method and safety interventions required for Emily Zagoric; W. Failure to provide adequate assessment following a change in the medical condition of Emily Zagoric; X. Failure to timely and appropriately develop, review and revise Emily Zagoric's care plan, developing a comprehensive support plan that includes measurable objectives and timetables to meet her individual medical, nursing, and mental and psychosocial needs; Y. Failure to reassess Emily Zagoric and implement timely and appropriate changes to the Care Plans designed to meet her individual needs; Z. Failure to use the objectives of the support plan to monitor Emily Zagoric's progress and revise appropriately; aa. Failure to develop a budget with an objective of the delivery of quality care and meet the needs of the individual residents; bb. Failure to ensure that the ManorCare Health Services- Camp Hill was properly funded; 16 cc. Failure to take appropriate steps to remedy continuing issues at ManorCare Health Services- Camp Hill that ManorCare Health Services- Camp Hill Defendants knew were occurring with Emily Zagoric's 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; dd. Failure to implement a budget that would allow ManorCare Health Services- Camp Hill to provide adequate and appropriate healthcare to Emily Zagoric including adequate staff and supplies; ee. Failure to provide adequate training to staff regarding fall prevention; ff. Failure to appropriately train staff on mobility devices and the potential to create hazardous conditions; gg. Failure to coordinate training programs to improve employee skills and to enhance employee performance; hh. Failure to have adequate and competent staffing to meet the needs of Emily Zagoric; ii. Acting in a grossly negligent manner, with reckless indifference to the rights and safety of Emily Zagoric; jj. Failure to treat Emily Zagoric with human decency and respect; kk. Deprivation of dignity, poor hygiene, unsanitary living conditions, and severe pain, when Defendants knew or should have known that he was at risk for the same. II. Failure of the ManorCare Health Services- Camp Hill to develop, implement and/or enforce policies and procedures for review and revision of care plans; mm. Failure of the ManorCare Health Services- Camp Hill to develop, implement and/or enforce policies and procedures for monitoring and evaluating the resident's responses to the Care Plans; nn. Failure of the ManorCare Health Services- Camp Hill to develop, implement and/or enforce policies and procedures including screening, training, prevention, identification, investigation, protection and reporting and response of abuse, neglect and mistreatment; oo. Failure of the ManorCare Health Services- Camp Hill to develop, implement and/or enforce policies and procedures identify events, such as suspicious bruising of residents, occurrences, patterns and trends that may constitute abuse; 17 pp. Failure of the ManorCare Health Services- Camp Hill to develop, implement and/or enforce policies and procedures for the staff to monitor the objectives of the Emily Zagoric's progress. 47. WHEREFORE, Plaintiff, Emily Zagoric, 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. COUNT II: WRONGFUL DEATH ACTION Plaintiff, Emily Zagoric, by and through her Administrator, Carol Schaar, vs. Defendants HCR Manor Care, Inc., HCR Manor Care Services, Inc., Heartland Employment Services, LLC, Manor Care of Camp Hill PA LLC 48. Plaintiff incorporates herein by reference each and every preceding paragraph of this Complaint as if the same were more fully set forth herein. 49. As a direct result of Defendant's conduct, Plaintiff/decedent Emily Zagoric died. 50. Plaintiff brings this action under and pursuant to the Pennsylvania Wrongful Death Act, 42 Pa. C.S.A. §8301, on her own behalf and on behalf of Emily Zagoric's statutory heirs and demands damages of Defendants for the losses suffered by Emily Zagoric's survivors, including medical expenses, other expenses reasonably associated with her death, and for all other legally compensable damages associated with the decedent's injuries and death. 51. Plaintiff/decedent left the following survivors: Carol Schaar, Debbie Graham, Ed Zagoric, Daniel Zagoric, and Linda Zagoric. WHEREFORE, Plaintiff, Emily Zagoric, respectfully requests that judgment be entered in her favor, and against all Defendants in an amount in excess of the 18 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. COUNT III: SURVIVAL ACTION Plaintiff, Emily Zagoric, by and through her Administrator, Carol Schaar, vs. Defendants HCR Manor Care, Inc., HCR Manor Care Services, Inc., Heartland Employment Services, LLC, Manor Care of Camp Hill PA LLC 52. Plaintiff incorporates herein by reference each and every preceding paragraph of this Complaint as if the same were more fully set forth herein. 53. Plaintiff brings this action on behalf of the Estate of the Decedent, Emily Zagoric, under and pursuant to the Pennsylvania Survival Act, 42 Pa.C.S.A. §8302, for damages for the pecuniary losses suffered by decedent's estate during the period of her life expectancy, as well as for the conscious pain and suffering which she endured up to and including the time of her death as a result of the negligence of the Defendants, and for all other legally compensable expenses incurred in connection with the decedent's injuries. 54. Plaintiff claims damages for the fright and mental suffering attributable to the peril leading to the death of Plaintiff's decedent, which was caused by the Defendants' breach of duties and obligations to Emily Zagoric. 55. Plaintiff/decedent left the following survivors: Carol Schaar, Debbie Graham, Ed Zagoric, Daniel Zagoric, and Linda Zagoric. WHEREFORE, Plaintiff respectfully requests that a 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) whichever is greater, together with 19 punitive damages, costs and any other relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. COUNT IV: PUNITIVE DAMAGES Plaintiff, Emily Zagoric, by and through her Administrator, Carol Schaar, vs. Defendants HCR Manor Care, Inc., HCR Manor Care Services, Inc., Heartland Employment Services, LLC, Manor Care of Camp Hill PA LLC, LLC 56. Plaintiff incorporates the allegations contained in the previous paragraphs as though set forth at length herein. 57. Plaintiff, Carol Schaar brings this claim as the Administrator of the Estate of Emily Zagoric, to recover all damages legally appropriate. 58. Plaintiff, Carol Schaar, seeks damages for the conscious pain and suffering of Emily Zagoric, including mental and physical pain, suffering and inconvenience, loss of life's pleasures and aggravation of preexisting medical conditions, and expense of otherwise unnecessary hospitalization and treatment undergone by Emily Zagoric, from the time of her admission as a resident to ManorCare Health Services- Camp Hill, up through and including the present, to the extent it was caused or contributed to by the negligence, carelessness and recklessness of the Defendants by their acts and/or omissions and breach of their duty to Emily Zagoric . 59. The Defendants were aware of Emily Zagoric's preexisting medical conditions. 60. During the period of time that she was a resident at Defendants' facility, the Defendants neglected Emily Zagoric allowing her to suffer from infections, dehydration, sepsis, and death. 20 61. Defendant's improper care and treatment of Emily Zagoric occurred over an extended period of time, which shows an ongoing and long term pattern of neglect and indifference to the health and well-being of Emily Zagoric. 62. Emily Zagoric's injuries and other related medical conditions occurred over a period of time, during which the Defendants knew or should have known of her declining medical health, and during which the Defendants had an opportunity to care and treat and correct these conditions, but failed to do so. 63. Defendants were recklessly and/or intentionally indifferent to the condition of Emily Zagoric, which was allowed to deteriorate over an extended period of time, and Defendants, with knowledge of this deterioration in her condition, refused to provide Emily Zagoric with the proper care, treatment needed to sustain him, and to prevent said conditions from developing and/or worsening. 64. Plaintiff, Carol Schaar as Administrator for Emily Zagoric, seeks damages for fright and mental suffering attributable to the peril leading to the physical manifestation of mental injuries, physical injuries and related medical complications that led to suffering occurring to Emily Zagoric from the time of her admission as a resident to Defendants' facilities, up through and her discharge, to the extent it was caused or contributed to by the negligence, carelessness and recklessness of the defendants by their acts and/or omissions and breach of their duty to Emily Zagoric . 65. In causing the aforementioned injuries, the Defendants knew, or should have known, that Emily Zagoric would suffer such harm. 21 66. The conduct of the Defendants was intentional, outrageous, willful and wanton, and exhibited a reckless indifference to the health and well-being of Emily Zagoric. 67. The conduct of the Defendants was such that an award of punitive damages is warranted. WHEREFORE, Plaintiff respectfully requests that a 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) whichever is greater, together with punitive damages, costs and any other relief that this Honorable Court deems appropriate given the gircumstances. A jury trial is demanded. This thee day of July, 2014. Respectfully submi , Michae0011r4 XI r, uire Attornei 22 VERIFICATION The undersigned, having read the attached Complaint, verifies that the within Complaint is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the Complaint is that of counsel and not the signer. Signer verifies that signer has read the within Complaint and that it is true and correct to the best of signer's knowledge, information and belief. To the extent that the contents of the Complaint are not that of signer, signer has relied upon counsel in making this Verification. This Verification is made subject to the penalties Pa.C.S. Section 4904, relating to unsworn falsification of authorities. Dated: Carol Schaar, as Executrix of the ate of Emily Zagoric, deceased McHUGH FULLER LAW GROUP Attorney for Plaintiffs MICHAEL J. FULLER, ESQUIRE Attorney I.D. # 230731 97 Elias Whiddon Rd. �' `p � � Hattiesburg, MS 30402ly _ 61dp��. (601) 261- 2220 mike@mchughfuller.com 1 CAROL SCHAAR, Individually and IN THE COURT OF COMMON PL E ' O, " on behalf of the Wrongful Death CUMBERLAND COUNTY Beneficiaries of EMILY ZAGORIC, CIVIL ACTION Plaintiff VS. DOCKET NO. MANOR CARE OF CAMP HILL PA LLC Defendants JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT MANOR CARE OF CAMP HILL PA LLC I, Michael J. Fuller, Esquire, Attorney for Plaintiff(s), certify per Pa.R.C.P. 1042.3(a) that: X (1) An appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and such conduct was a cause in bringing about the harm; AND X (2) The claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR (3) Expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Respectfully e Date: � � � � / Michae . jF1 r squirAttorney fo tiff 1 McHUGH FULLER LAW GROUP Attorney for Plaintiffs MICHAEL J. FULLER, ESQUIRE Attorney I.D. # 23073197 Elias 1 Hattiesburg,rhiddon Rd. r©�f� rg, MS 30402 Df (601) 261- 2220 Q JUL mike@mchughfuller.com Pf9ERL Np yt CSU 1 CAROL SCHAAR, Individually and IN THE COURT OF COMMON PL 1 s on behalf of the Wrongful Death CUMBERLAND COUNTY Beneficiaries of EMILY ZAGORIC, CIVIL ACTION Plaintiff //��O a VS. DOCKET NO. HEARTLAND EMPLOYMENT SERVICES, LLC Defendants JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT HEARTLAND EMPLOYMENT SERVICES LLC I, Michael J. Fuller, Esquire, Attorney for Plaintiff(s), certify per Pa.R.C.P. 1042.3(a) that: X (1) An appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and such conduct was a cause in bringing about the harm; AND X (2) The claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR (3) Expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Respectfu i ed, Date: -1/2JG� Michaovi., , Esquire Attorney r aintiff 1 McHUGH FULLER LAW GROUP Attorney for Plaintiffs MICHAEL J. FULLER, ESQUIRE Attorney I.D. # 230731 97 Elias Whiddon Rd. r ��"E P[?OiH Hatt � � Hattiesburg, MS 30402 2014OTAr"r ; (601) 261- 2220 CUP � � -3 �f�� . I mike@mchughfuller.com P�` RLAhD 7 ciy)y5� L �OIJt T Y CAROL SCHAAR, Individually and IN THE COURT OF COMMON PLEi! NA on behalf of the Wrongful Death CUMBERLAND COUNTY Beneficiaries of EMILY ZAGORIC, CIVIL ACTION Plaintiff VS. = U l DOCKET NO. HCR MANOR CARE SERVICES, INC. Defendants JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT HCR MANOR CARE SERVICES INC. I, Michael J. Fuller, Esquire, Attorney for Plaintiff(s), certify per Pa.R.C.P. 1042.3(a) that: X (1) An appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and such conduct was a cause in bringing about the harm; AND X (2) The claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR (3) Expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Respectfully sub i , Date: & MichaeIler, Esquire Attorney fXplaintiff 1 McHUGH FULLER LAW GROUP Attorney for Plaintiffs MICHAEL J. FULLER, ESQUIRE .t Attorney I.D. # 230731 , t j �E�4:� j 97 Elias Whiddon Rd. 0h Ti1, Hattiesburg, MS 304021 ,j j� (601) 261- 2220 -3 All 7 mike@mchughfuller.com CuP IND LY,C� T CAROL SCHAAR, Individually and IN THE COURT OF COMMON PLEAS gh1q� , on behalf of the Wrongful Death CUMBERLAND COUNTY Beneficiaries of EMILY ZAGORIC, CIVIL ACTION Plaintiff VS. DOCKET NO. HCR MANOR CARE, INC. Defendants JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT HCR MANOR CARE INC. I, Michael J. Fuller, Esquire, Attorney for Plaintiff(s), certify per Pa.R.C.P. 1042.3(a) that: X (1) An appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and such conduct was a cause in bringing about the harm; AND X (2) The claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR (3) Expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Respectfully su , Date: Micha er, Esquire Attorney f6f Plaintiff 1 CAROL SCHAAR, Individually and on behalf of the Wrongful Death Beneficiaries of EMILY ZAGORIC, Plaintiff vs. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION DOCKET NO. 14-3900 HCR MANOR CARE, INC.; HCR MANOR CARE SERVICES, INC.; HEARTLAND EMPLOYMENT SERVICES, LLC; MANOR CARE OF CAMP HILL PA LLC; JOHN DOES 1THROUGH 10; AND UNIDENTIFIED ENTITIES 1 THROUGH 10 Defendants JURY TRIAL DEMANDED NOTICE OF SERVICE Notice is hereby given that counsel for the Plaintiff, caused to be served on the Defendants the following documents: 1. Plaintiff's First Interrogatories to All Defendants; 2. Plaintiffs First Request for Production to Defendants; and 3. Plaintiff's Resident Contact Request for Admissions. The undersigned attorney hereby retains the originals of the above documents as custodian thereof. Respectfully submitted, this the day of July, 2014. By: CAROL SCHAAR, Individually and on behalf of the Wrongful Death Beneficiaries of EMILY ZAGORIC, James B. McHug , PA Bar No. 230995 Michael J. Fuller, Jr., PA Bar No. 230731 D. Bryant Chaffin, PA Bar No. 315031 McHUGH FULLER LAW GROUP, PLLC 97 Elias Whiddon Rd. Hattiesburg, MS 39402 T: 601-261-2220 11 F: 601-261-2481 Attorneys for Plaintiff 1 BURNS WHITE LLC By: William J. Mundy, Esquire Identification No. 57679 By: John M. Skrocki, Esquire Identification No. 49071 By: Sean P. O'Mahoney, Esquire Identification No. 314690 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (484) 567-5700 CAROL SCHAAR, Individually and on behalf of the Wrongful Death Beneficiaries of EMILY ZAGORIC, Plaintiffs, v. HCR MANOR CARE, INC.; HCR MANOR CARE SERVICES, INC.; HEARTLAND EMPLOYMENT SERVICES, LLC; JOHN DOES 1 THROUGH 10; and UNIDENTIFIED ENTITIES 1 THROUGH 10 Defendants. Attorneys for Defendants HCR Manor Care, Inc., HCR Manor Care Services, Inc., Heartland Employment Services, LLC, and Manor Care of Camp Hill, PA LLC : COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : Civil Action : No. 14-3900 Jury Trial Demanded ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance as counsel for defendants, • HCR Manor Care, Inc.; • HCR Manor Care Services, Inc.; • Heartland Employment Services, LLC; and • Manor Care of Camp Hill, PA LLC in the above -captioned matter. Dated: August 1, 2014 41rhire Skrocki Cou 1 for Defendants, HCR Manor Care, Inc., HCR Manor Care Services, Inc., Heartland Employment Services, LLC, and Manor Care of Camp Hill, PA LLC 1 CERTIFICATE OF SERVICE I, John M. Skrocki, Esquire, hereby certify that on this date, a true and correct copy of the foregoing Entry of Appearance was delivered by United States First -Class Mail, postage prepaid, as follows: Michael J. Fuller, Esquire McHugh Fuller Law Group. 97 Eilas Whiddon Road Hattiesburg, MS 30402 Counsel for Plaintiff Dated: August 1, 2014 2 7D-OFFICc OF T IN THE COURT OF COMMON PLEAS „Ail OF CUMBERLAND COUNTY, PENNSYLVAI4K' I'L CIVIL DIVISION CUt'a AND hIUNTY NSYLV N A CAROL SCHAAR, Individually and on behalf of the Wrongful Death Beneficiaries of EMILY ZAGORIC, vs. 'N 10: 30 HCR MANOR CARE, INC.; HCR MANOR CARE SERVICES, INC.; HEARTLAND EMPLOYMENT SERVICES, LLC; MANOR CARE OF CAMP HILL PA LLC; JOHN DOES 1THROUGH 10; AND UNIDENTIFIED ENTITIES 'I THROUGH 10 DATE: Plaintiff DOCKET NO. 14-3900 PRAECIPE TO REINSTATE OR REISSUE To The Clerk of Judicial Records — Civil Division: Reinstate the Complaint in the above captioned matter. Reissue the Writ of Summons in the above captioned matter. Other: Defendants D. Bryant Chaffin, PA Bar #315031 (Print/Type Name) 1 91 :6 1411 91111 s it rispcia CLifctOS6 -RA 130c1 11 T) BURNS WHITE LLC By: William J. Mundy, Esquire Identification No. 57679 By: John M. Skrocki, Esquire Identification No. 49071 By: Sean P. O'Mahoney, Esquire Identification No. 314690 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (484) 567-5700 71LED-OFF10E OF THE PROTHONOTARY AuG -ti it'el 10: 01 CUMBERLAND COUNTY PL-NtiSYLVANIA Attorneys for Defendants HCR Manor Care, Inc., HCR Manor Care Services, Inc., Heartland Employment Services, LLC, and Manor Care of Camp Hill, PA LLC CAROL SCHAAR, Individually and on behalf of the Wrongful Death Beneficiaries of EMILY ZAGORIC, Plaintiffs, v. HCR MANOR CARE, INC.; HCR MANOR CARE SERVICES, INC.; HEARTLAND EMPLOYMENT SERVICES, LLC; JOHN DOES 1 THROUGH 10; and UNIDENTIFIED ENTITIES 1 THROUGH 10 Defendants. To: Michael J. Fuller, Esquire McHugh Fuller Law Group 97 Elias Whiddon Rd. Hattiesburg, MS 30402 (Attorney for PlaintO : COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : Civil Action : No. 14-3900 Jury Trial Demanded NOTICE TO PLEAD You are hereby notified to plead to the enclosed Preliminary Objections pursuant to Pa.R.C.P. 1030 within 20 days from service hereof or a default judgment may be entered against you. Dated: August 1, 2014 BURNS WHITE LLC By: J ocki, Esquire BURNS WHITE LLC By: William J. Mundy, Esquire Identification No. 57679 By: John M. Skrocki, Esquire Identification No. 49071 By: Sean P. O'Mahoney, Esquire Identification No. 314690 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (484) 567-5700 CAROL SCHAAR, Individually and on behalf of the Wrongful Death Beneficiaries of EMILY ZAGORIC, Plaintiffs, v. HCR MANOR CARE, INC.; HCR MANOR CARE SERVICES, INC.; HEARTLAND EMPLOYMENT SERVICES, LLC; JOHN DOES 1 THROUGH 10; and UNIDENTIFIED ENTITIES 1 THROUGH 10 Defendants. Attorneys for Defendants HCR Manor Care, Inc., HCR Manor Care Services, Inc., Heartland Employment Services, LLC, and Manor Care of Camp Hill, PA LLC : COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : Civil Action : No. 14-3900 • : Jury Trial Demanded PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFF'S COMPLAINT Defendants, HCR Manor Care, Inc., HCR Manor Care Services, Inc., Heartland Employment Services, LLC, and Manor Care of Camp Hill PA, LLC, (hereinafter "Manor Care" or "Objecting Defendants"), by and through their counsel, Burns White LLC, hereby file these Preliminary Objections to the Complaint, and aver as follows: 1. This nursing home action is brought by Carol Schaar, Executrix of the Estate of her mother, Emily Zagoric. The Complaint is attached hereto as Exhibit "A". 2. Plaintiff's Complaint was filed on or about July 3, 2014. Service occurred on or after July 16, 2014. 3. Plaintiff's Complaint alleges nursing home negligence as to the care Emily Zagoric received at Manor Care of Camp Hill between August 4, 2013 and September 16, 2013. (Exhibit "A" at ¶ 34.) 4. The Complaint alleges that Ms. Zagoric experienced weight loss, an episode of lethargy, and a UTI with sepsis. (Exhibit "A" at ¶¶ 36-41.) 5. The complaint is silent as to her medical history before she arrived at Manor Care Camp Hill. These medical facts are that Mrs. Zagoric, age 85 at the time, had undergone a recent thoracic abdominal aortic aneurysm repair, and experienced a multitude of post-operative complications, including recurrent UTI' s, and was hospitalized twice. 6. On August 4, 2013, the day of Ms. Zagoric's admission to Manor Care Camp Hill, her daughter, Carol Schaar, her mother's Power of Attorney, signed a Voluntary Arbitration Agreement. (A copy of the Arbitration Agreement is attached as Exhibit "B"). 7. The Manor Care Defendants seek enforcement of the Arbitration Agreement. A. PLAINTIFF'S CLAIMS AGAINST DEFENDANTS SHOULD BE SUBMITTED TO ARBITRATION PURSUANT TO THE ARBITRATION AGREEMENT BETWEEN THEM 9. Pennsylvania Rule of Civil Procedure 1028(a)(6) permits a preliminary objection on the basis of "agreement for alternative dispute resolution." 2 10. When a party seeks to compel arbitration, the trial court's inquiry is limited to determining whether a valid arbitration agreement was entered into, and, if so, whether the dispute in question is within the scope of the arbitration provision. H.L. Libby Corp. v. Skelly and Loy Inc., 910 F. Supp. 195, 199 (1995), citing PBS Coal Inc. v. Hardhat Mining Inc., 429 Pa.Super. 371, 377, 632 A.2d 903, 905 (1993). 11. Pennsylvania law requires that a signed, written agreement subjecting any potential controversy to arbitration must be, "valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity relating to the validity, enforceability or revocation of any contract." 42 Pa. C.S.A. § 7303. 12. Pennsylvania Courts favor the resolution of disputes via arbitration. Smith v. Cumberland Group, Ltd., 687 A.2d 1167, 1171 (Pa. Super. 1997). Moreover, "when parties agree to arbitration in a clear and unmistakable manner, the court will make every reasonable effort to favor such agreements." Id. [quotation omitted]. 13. Ms. Zagoric's daughter, Carol Schaar, signed the attached Arbitration Agreement on behalf of her mother on the day of her mother's admission to the Facility. (Exhibit "B"). The Agreement provides that all claims arising out of or relating to the Agreement shall be submitted to arbitration. (Exhibit "B" at ¶ 1). 14. This Court has upheld this Manor Care Arbitration Agreement in recent cases. See e.g. Fleagle v. Manor Care of Camp Hill, et al., No. 12-0828 CI; Frysinger v. Manor Care of Carlisle, et al., No. 12-6981 CI; and Dougherty v. Manor Care — Carlisle, et al., No. 13 — 00102 CI. 3 15. On July 10, 2014, the Pennsylvania Superior Court upheld a similar Manor Care Arbitration Agreement in Macpherson v. The Magee Memorial Hospital for Convalescence d/b/a Magee Rehabilitation Hospital, et al., 2014 Pa. Super. 143. 16. Since there is a valid, enforceable written Arbitration Agreement, signed by the plaintiff, the Court should enter an order enforcing the agreement. WHEREFORE, Manor Care Defendants respectfully request that this Honorable Court uphold the Arbitration Agreement, and direct that Plaintiff submit the claims against the Defendants to arbitration. B. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE JOHN DOES 1 THROUGH 10 AND UNIDENTIFIED ENTITIES 1 THROUGH 10 FROM PLAINTIFF'S COMPLAINT 18. Preliminary Objections may be granted for "failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter." See Pa. R.C.P. 1028(a)(2). 19. Pursuant to Pa. R.C.P. 1018, "[t]he caption of a complaint shall set forth the form of the action and the names of all the parties [...]." (emphasis added). 20. In Professional liability actions, "[a] complaint shall identify each defendant against whom the plaintiff is asserting a professional liability claim." Pa. R.C.P. 1042.2(a) (emphasis added). In fact, Pa.R.C.P. 1042.2(b) explicitly states that a preliminary objection may be filed when a complaint fails to comply with part (a). 21. In this complaint, Plaintiff has named John Does 1 through 10 and Unidentified Entities 1 through 10 in the caption and within the Complaint. (See e.g. ¶¶ 6-7 of the complaint at Exhibit "A"). 22. Plaintiff's failure to identify these Defendants is in direct violation of the Pennsylvania Rules, specifically Pa. R.C.P. 1018 and 1042.2(a). 4 23. As such, these unidentified parties should be stricken from the Complaint. WHEREFORE, Manor Care Defendants respectfully request that this Court strike John Does 1 through 10 and Unidentified Entities 1 through 10 from Plaintiff's Complaint. BURNS WHITE LLC Dated: August 1, 2014 By: Wtijiam J. Mundy, Esquire John M. Skrocki, Esquire Sean P. O'Mahoney, Esquire Identification Nos. 57679/49071/314690 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (484) 567-5700 Attorneys for Defendants, HCR Manor Care, Inc., HCR Manor Care Services, Inc., Heartland Employment Services, LLC, and Manor Care of Camp Hill PA LLC 5 VERIFICATION I, John M. Skrocki, Esquire, hereby verify that I am authorized to make this verification and that the facts set forth in the foregoing Preliminary Objections to Plaintiffs Complaint are true and correct to the best of my knowledge, information and belief. This verification is made subject to 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Dated:/ /� Jo . Skrocki CERTIFICATE OF SERVICE I, John M. Skrocki, Esquire, hereby certify that a true and correct copy of the foregoing Preliminary Objections of Defendants to Plaintiff's Complaint have been served by United States Mail, First Class, postage pre -paid, on this date, as follows: Date: Michael J. Fuller, Esquire McHugh Fuller Law Group 97 Elias Whiddon Rd. Hattiesburg, MS 30402 Counsel for Plaintiff BURNS WHITE LLC Exhibit "A" McHUGH FULLER LAW GROUP MICHAEL J. FULLER, ESQUIRE Attorney I.D. # 230731 97 Elias Whiddon Rd. Hattiesburg, MS 30402 (601) 261- 2220 mike@mchughfuiler.com CAROL SCHAAR, Individually and on behalf of the Wrongful Death Beneficiaries of EMILY ZAGORIC, Plaintiff vs. Attorney for Plaintiffs th,E pR I C,:_ HONO 7;4/1 2014 JUL -3 AN IU: 17 CU BERL AND cowl v PENNS L'✓ANIA.r, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION DOCKET NO. ) (-f 1 HCR MANOR CARE. INC.; HCR MANOR CARE SERVICES, INC.; HEARTLAND EMPLOYMENT SERVICES, LLC; MANOR CARE OF CAMP HILL PA LLC; JOHN DOES 1THROUGH 10; AND UNIDENTIFIED ENTITIES 1 THROUGH 10 Defendants JURY TRIAL DEMANDED NOTICE 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 [60 days if served outside the United States] after the complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are wamed that if you fail to do so the case may proceed without you and a judgment 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGILBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYER REFERENCE SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 1 McHUGH FULLER LAW GROUP MICHAEL J. FULLER, ESQUIRE Attorney I.D. # 230731 97 Elias Whiddon Rd. Hattiesburg, MS 30402 (601) 261- 2220 mike@mchughfuller.com CAROL SCHAAR, Individually and on behalf of the Wrongful Death Beneficiaries of EMILY ZAGORIC, Plaintiff vs. Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION DOCKET NO. HCR MANOR CARE, INC.; HCR MANOR CARE SERVICES, INC.; HEARTLAND EMPLOYMENT SERVICES, LLC; MANOR CARE OF CAMP HILL PA LLC; JOHN DOES 1THROUGH 10; AND UNIDENTIFIED ENTITIES 1 THROUGH 10 Defendants JURY TRIAL DEMANDED CIVIL ACTION COMPLAINT Plaintiff, Carol Schaar, Individually and on behalf of the Wrongful Death Beneficiaries of Emily Zagoric, by and through Carol Schaar, and by and through her undersigned counsel, herein complain of the above captioned Defendants as follows: PARTIES 1 Emily Zagoric died on September 18, 2013 as a result of the injuries she suffered while residing at ManorCare Health Services -Camp Hill including but not limited to infections, septic shock, and dehydration. ManorCare Health Services -Camp Hill is located at 1700 Market Street, Camp Hill, Pennsylvania 17011. The Estate of Emily. Zagoric brings this action by and through Carol Schaar, the Executrix of the 2 Estate. Carol Schaar is the daughter of Emily Zagoric, residing at 149 North 25th Street, Camp Hill, Pennsylvania, 17011. 2. Separate Defendant HCR Manor Care, Inc. is a. corporation and/or other legal entity organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania, maintaining its place of business at. 333 North Summit Street, Toledo, Ohio 43604-2617. At all times material to this action, HCR Manor Care, Inc. was authorized to do business in the Commonwealth of Pennsylvania and to operate a long term care facility. HCR Manor Care, Inc. is engaged in the for-profit custodial care of elderly individuals in need of healthcare, medical services and nursing care, treatment and supervision. HCR Manor Care, Inc. maintained, operated, and controlled a long term care facility engaged in the custodial and personal care of elderly, helpless individuals who are chronically infirm, mentally impaired, and/or in need of nursing care and treatment at ManorCare Health Services- Camp Hill. 3. Separate Defendant HCR Manor Care Services, Inc. is a corporation and/or other legal entity organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania maintaining its place of business at 333 North Summit Street, Toledo, Ohio 43604-2617. HCR Manor Care Services, Inc. is engaged in the for-profit custodial care of elderly individuals in need of healthcare, medical services and nursing care, treatment and supervision. HCR Manor Care Services, Inc. maintained, operated, and controlled a long term care facility engaged in the custodial and personal care of elderly helpless individuals who are chronically infirm, mentally impaired, and/or in need of nursing care and treatment. 3 4. Separate Defendant Heartland Employment Services, LLC is a corporation and/or other legal entity organized and existing under and by virtue of the laws of the state of Ohio maintaining its place of business at 333 North Summit Street, Toledo, Ohio 43604-2617. Heartland Employment Services, LLC is engaged in the for- profit custodial care of elderly individuals in need of healthcare, medical services and nursing care, treatment and supervision. Heartland Employment Services, LLC maintained, operated, and controlled a long term care facility engaged in the custodial and personal care of elderly helpless individuals who are chronically infirm, mentally impaired, and/or in need of nursing care and treatment. 5. Separate Defendant Manor Care of Camp Hill PA, LLC is a corporation and/or other legal entity organized and existing under and by virtue of the laws of the state of Delaware maintaining its place of business at 333 North Summit Street, Toledo, Ohio 43604-2617. Manor Care of Camp Hill PA, LLC is engaged in the for-profit custodial care of elderly individuals in need of healthcare, medical services and nursing care, treatment and supervision. Manor Care of Camp Hill PA, LLC maintained, operated, and controlled a long term care facility engaged in the custodial and personal care of elderly helpless individuals who are chronically infirm, mentally impaired, and/or in need of nursing care and treatment. 6. Separate Defendants John Does 1 through 10 are individuals whom Plaintiff is currently unable to identify despite diligent efforts. Said Defendants are named insofar as their acts and/or omissions were negligent and/or otherwise tortious with respect to the care and treatment of, or in the staffing, supervision, administration and direction of the care and treatment of Emily Zagoric during her residency at 4 ManorCare Health Services -Camp Hill. Alternatively, Defendants are liable for the negligent and/or otherwise tortious acts and/or omissions of others with respect to the care and treatment of Emily Zagoric during her,. residency at ManorCare Health Services- Camp Hill. 7. Separate Defendants Unidentified Entities 1 through 10 are entities whom Plaintiff is currently unable to identify despite diligent efforts. Defendants are named insofar as their acts and/or omissions were negligent and/or otherwise tortious with respect to the care and treatment of Emily Zagoric during her residency at ManorCare Health Services- Camp Hill. Alternatively, Defendants are liable for the negligent and/or otherwise tortious acts and/or omissions of others with respect to the care and treatment of Emily Zagoric during her residency at ManorCare Health Services- Camp Hill. 8. HCR Manor Care, Inc., HCR Manor Care Services, Inc., Heartland Employment Services, LLC, and Manor Care of Camp Hill PA, LLC, are collectively referred to as "Nursing Home Defendants.° JURISDICTION AND VENUE 9. Jurisdiction and venue are proper in the 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. FACTUAL. BACKGROUND REGARDING ALL DEFENDANTS 10. At all times mentioned herein, Nursing Home Defendants owned, operated, and or controlled the long term care facility ManorCare Health Services -Camp Hill, either directly or through the agency of each other and their agents, employees, 5 servants, contractors, subcontractors, consultants, subsidiaries, staff, principals, and/or representatives. The action of Nursing Home Defendants and each of their agents, employees, servants, contractors, subcontractors, consultants, subsidiaries, -staff, principals, and/or representatives as set forth herein are imputed to each of Nursing Home Defendants, jointly and severally. 11. At alt times material hereto, Nursing Home Defendants were operating personally or through their agents, employees, servants, contractors, subcontractors, consultants, subsidiaries, staff, principals, and/or representatives, 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 Nursing Home Defendants herein. 12. Nursing Home Defendants operate ManorCare Health Services- Camp Hill, pursuant to a Certificate of Need and License issued by the Commonwealth of Pennsylvania. 13. Nursing Home Defendants agreed and undertook the legal duty to operate ManorCare Health Services- Camp Hill in compliance with all state and federal laws and regulations. 14. Despite the foregoing, during Emily Zagoric's residency at their premises, said Nursing Home Defendants consistently, knowingly, recklessly and carelessly operated said ManorCare Health Services- Camp Hill and allowed continuing operation there to be conducted in violation of mandatory requirements of multiple of portions of state regulations. 6 15. Nursing Home Defendants owed to Emily Zagoric and the other residents a fiduciary duty to use their best efforts. and to provide adequate resources to ManorCare Health Services -Camp Hill so that Emily Zagoric and the other residents could be adequately cared for. Emily Zagoric, like the other residents of ManorCare Health: Services -Camp Hill, was frail, vulnerable, elderly and dependent upon Nursing Home Defendants to care for her health, safety and well-being. 16. At the time of Emily Zagoric's admission to ManorCare Health Services - Camp Hill, Nursing Home Defendants assessed the needs of Emily Zagoric and were aware of Emily Zagoric's medical condition and the care and treatment she required. Nursing Home Defendants represented and promised they couldadequately provide care and treatment for Emily Zagoric's health, safety and well-being. 17. At all times material hereto, Nursing Home Defendants held themselves out as capable of providing proper care to maintain Emily Zagoric's health, safety and well-being, including proper and timely initial and additional assessments, proper and complete support planning, basic and specialized cognitive support services, complete medical evaluations, supplemental healthcare services, proper personal hygiene, provision of medications, and medical care and treatment. Notwithstanding this knowledge, Nursing Home Defendants failed to provide for Emily Zagoric's needs and failed to provide sufficient staff and/or competent staff, services, equipment and supplies to meet the needs of Emily Zagoric and the residents of ManorCare Health Services- Camp Hill. 18. Emily Zagoric relied upon the knowledge, treatment, care and advice of Nursing Home Defendants. 19. Nursing Home Defendants, through advertising, promotional materials and information sheets, held themselves out to the public as being able.toprovide for the health, safety and well-being of vulnerable individuals in need of such care, including Emily Zagoric. 20. In an effort to assure that Emily Zagoric and other residents at the facility were being provided proper care, Nursing Home Defendants held themselves out to the • Pennsylvania Department of Health, Department of Aging and the public at large as being: A. - Skilled in meeting the health, safety and well-being needs of their residents; B. Properly staffed, supervised and equipped to meet the total needs of their long term care facility residents; C. Able to specifically meet the health, safety and well-being needs of Emily Zagoric and other long term care facility residents; D. Licensed by the Pennsylvania Department of Health and complying on a continual basis with all rules, regulations and standards established for assisted living facilities. 21. Upon information and belief, at all times relevant hereto, Nursing Home Defendants were a vertically integrated business structure that was controlled by the same board of directors, who were responsible for the operation, planning, management and quality control of ManorCare Health Services- Camp Hill. 22. Nursing Home Defendants, by and ,through their board of directors and corporate officers, utilized inspection results and quality indicators to monitor the care being provided at their facilities, including ManorCare Health Services- Camp Hill. 23. Nursing Home Defendants controlled the operation, planning, management and quality control of the long term care facility ManorCare Health Services- Camp Hill in which Emily Zagoric was a resident. This included, but was not 8 limited to, control of marketing, budgeting, human resources, management, training, staffing, creation and implementation of all policies and procedures used by the long term care facility ManorCare Health. Services- Camp Hill, quality care assessment and compliance, licensure and certification, legal services, and financial, tax, and accounting control through fiscal policies. Nursing Home Defendants exercised ultimate authority over all budgets and had final approval over the allocation of resources to their nursing homes, including ManorCare Health Services- Camp Hill. 24. Nursing Home 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 ManorCare Health Services- Camp Hill, and to oversee their conduct in the matters set forth herein. 25. It is believed and therefore averred that it was Nursing Home Defendants' corporate philosophy and decisions that led to the poor conditions at ManorCare Health Services- Camp Hill and the injuries suffered by Emily Zagoric. Nursing Home Defendants were not adequately providing care for the residents of its facilities. Nursing Home Defendants were aware of the complaints, concems and/or problems at its facilities. Nursing Home Defendants ignored these complaints, concerns and/or problems and focused on maximizing profits, to the detriment of Emily Zagoric and the other residents of ManorCare Health Services- Camp Hill. The operational decisions that were made by Nursing Home Defendants, as a result of this philosophy, are the proximate cause of the circumstances and events that led to Emily Zagoric's injuries. 26. At all times material hereto, Nursing Home Defendants made a conscious decision to operate and/or manage the ManorCare Health Services- Camp Hill so as to 9 maximize profits at the expense of the care required to be provided to its residents, including Emily Zagoric. Nursing Home Defendants knowingly disregarded resident acuity levels and kept residents that required more care and treatment then ManorCare Health Services- Camp Hill was capable of providing. Nursing Home Defendants also made staffing decisions that knowingly disregarded the minimum time required by the staff to perform essential day-to-day functions and treatments. 27. Nursing Home Defendants recklessly and/or negligently disregarded the consequences of their actions and/or negligently caused staffing levels at the ManorCare Health Services- Camp Hill 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 Emily Zagoric, in a conscious reckless disregard for her life, health and well-being. 28. Nursing Home Defendants failed to discharge their obligations of care to Emily Zagoric with a conscious and reckless disregard for her rights and safety, as well as the other residents. At all times mentioned herein, Nursing Home Defendants had knowledge of, ratified and otherwise authorized all the acts and omissions that caused the injuries suffered by Emily Zagoric. Nursing Home Defendants knew or should have known ManorCare Health Services- Camp Hill, due to lack of adequate resources, the nursing staff could not provide even the minimum standard of care to the weak and vulnerable residents of the facility and as a result, Emily Zagoric 's health and well-being deteriorated unnecessarily. 10 29. The actions of Nursing Home Defendants were designed to increase profits. and cut expenses irrespective of its impact on ManorCare Health Services - Camp Hill residents. 30. During the residency of Emily Zagoric at ManorCare Health Services - Camp Hill, Nursing Home Defendants knowingly and/or negligently sacrificed the quality of care received by all residents, including Emily Zagoric, by failing to manage, care, monitor, document, chart, prevent, diagnose and/or treat the injuries and illnesses suffered by Emily Zagoric as documented in the medical records and evaluative reports of physicians and other health care professionals, including as described herein, preventable worsening of pressure sores, infections, malnutrition, resident injury, physical abuse, psychological abuse, deprivation of dignity, bruising, lacerations, a worsening of her overall condition, and severe pain. 31. At all times relevant herein, Nursing Home Defendants operated and managed their facilities so as to maximize profits by reducing the resources to a level below that needed to provide appropriate care to the residents, which demonstrates a failure to comply with the applicable regulations and standards for nursing home facilities. Specifically, Nursing Home Defendants intentionally, and with a knowing and reckless disregard for the consequences of their actions, caused staffing competency and/or levels, supplies and other resources needed to care for the residents to be set at a level where the caregivers could not reasonably attend to the needs of the residents. All of these acts of malfeasance directly caused injury to Emily Zagoric and other residents of the ManorCare Health Services- Camp Hill and were known to Nursing Home Defendants. The acts and omissions of Nursing Home Defendants were 11 motivated by a desire to increase the profitability and net worth of Nursing Home Defendants. 32. The acts and omissions on the part of Nursing Home Defendants as set forth in this Complaint were the factual cause of the physical and emotional harm suffered by Plaintiff, Emily Zagoric. 33. The conduct of Nursing Home Defendants, and each of them, as specifically set forth in this Complaint, was outrageous, inconsistent with and intolerable given the norms of modem society and, as such, Plaintiff requests punitive damages in addition to all other damages as aforesaid. FACTUAL BACKGROUND REGARDING EMILY ZAGORIC 34. Emily Zagoric resided at ManorCare Health Services- Camp Hill from on or about August 4, 2013 until September 16, 2013. The nursing home records indicate that Emily Zagoric was admitted with a good prognosis for eventual discharge. 35. Two days after her admission, the doctor's notes indicate that Emily Zagoric's Urinary Tract Infection was "clinically resolved." 36. On August 26, 2013, Emily Zagoric was diagnosed with failure to thrive as her appetite had decreased and she had lost 20-30 pounds in the past 6-8 weeks. 37. On September 4, 2013, physical therapy reports indicate that Emily Zagoric was exhausted and did not want to participate in physical therapy. Specifically, the report indicates that Emily Zagoric lacked motivation even with encouragement. Physical therapy was discontinued on this date. 38. On September 9, 2013, Emily Zagoric's family alerted the staff at ManorCare Health Services- Camp Hill that she seemed more confused than usual. 12 39. On September 16, 2013, a nurse was called to Emily Zagoric's room at 6:10 am and found her lethargic. Her oxygen saturation was 60 and she had a temperature of 100.3. A late -entry in the nursing notes indicates that Emily Zagoric was talking ail night, waving her arms, and yelling "Help, helpl" That late entry also indicates that Emily Zagoric:. had labored breathing with shallow respiration and shortness of breath. Her blood pressure was 114/64, her heart rate was 194, and she still had a temperature of 100.3 40. Emily Zagoric was transported to Holy Spirit Hospital on September 16, 2013 by EMS. EMS described Emily Zagoric as in "guarded condition." Her white blood cell count was 23.4, BUN 50, Creatinine 1.3 and Sodium 148. The EMS records also indicate that Emily Zagoric was found by ManorCare Health Services -Camp Hill staff but they were unclear as to the time of onset of her condition. 41. Emily Zagoric was admitted to Holy Spirit Hospital on September 16, 2013. She was diagnosed as critically ill with Acute Renal Failure, Acute Urinary Tract Infection, Sepsis, and Altered Mental Status. She was prescribed antibiotics for UTI Sepsis. 42. On September 17, 2013, Emily Zagoric was a Code Blue as she was found pulseless. Hospital staff administered CPR, revived Emily Zagoric and then transferred her to the ICU. The treating physician notes concerns that the ultimate cause of the cardiac arrest was Severe Septic Shock. 43. Emily Zagoric died September 18, 2013. The cause of death is indicated as cardiorespiratory failure due to septic shock due to UTI. 44. A verification of the statements contained herein is included with this filing. 13 COUNT I: NEGLIGENCE Plaintiff, Emily Zagoric, by and through her Administrator, Carol Schaal', vs. Defendants HCR Manor Care, Inc., HCR Manor Care Services, inc., Heartland Employment Services, LLC, Manor Care of Camp Hill PA LLC 45. Plaintiff incorporates herein by reference each and every preceding paragraph of this Complaint as if the same was more fully set forth herein. 46. The injuries and damages to Emily Zagoric were caused directly by the negligence, carelessness, and/or recklessness of ManorCare Health Services- Camp Hill Defendants, individually, vicariously, and/or acting by and through their officer, board members, physician, physician assistant nurses, nurses, certified nurse's aides and staff who examined, treated and/or communicated the condition of Emily Zagoric, and through the administrative personnel responsible for hiring, retaining and or dismissing staff, staff supervision and policy making enforcement as well as any agents, servants, employees, contractors, subcontractors and/or consults of the ManorCare Health Services- Camp Hill Defendants and by, all of whose conduct deviated from applicable standards of care and regulatory requirements and consisted of the following: a. Failure of ManorCare Health Services- Camp Hill to recognize and address risk factors for falls including Emily Zagoric's limited range of motion, need for monitoring, need for verbal cuing, inability to support, pain, muscle weakness, poor safety awareness, underlying health conditions, extensive assistance requirements, dependence on transfers, inability to stabilize without assistance and fear of falling, proper assessments and develop and implementation of appropriate Care Plans. b. Failure to provide adequate and appropriate supervision and appropriate assistance devices to prevent falls and accidents; c. Failure of the ManorCare Health Services- Camp Hill to adequately assess and reassess Emily Zagoric's propensity for the development and worsening of pressure sores; 14 d. Failure to provide Emily Zagoric • with adequate physical and rehabilitative therapies to increase/maintain her mobility and range of motion including her legs, arms, and shoulders; e. Failure to provide Emily Zagoric with adequate restorative.therapy to increase/maintain her mobility and range of motion including her legs, arm, and shoulders; f. Failure of ManorCare Health. Services- Camp Hill to provide Emily Zagoric with appropriate treatment and services to increase range of motion and/or to prevent further decreases in range of motion including active and passive range of motion; g. Failure to provide safe conditions to prevent injury to Emily Zagoric; h. Failure of ManorCare Health Services- Camp Hill to provide an environment that was free of accident hazards over which ManorCare Health Services- Camp Hill had control and provide appropriate supervision and assistive devices to Emily Zagoric; i. Negligently allowed Emily Zagoric to go without adequate safety precautions; j. Failure to appreciate Emily Zagoric was vulnerable and not in a position to provide for her own safety; k. Failure of ManorCare Health Services- Camp Hill to identify and evaluate the hazards and risks of Emily Zagoric related to accidents and implement interventions, including adequate supervision and appropriate assistive devices to reduce those hazards and risks; Failure of ManorCare Health Services- Camp Hill to provide a safe, functional, sanitary and a comfortable environment for residents, staff, and the public; m. Failure to maintain sanitary and structural integrity of the premises at ManorCare Health Services- Camp Hill, for the health and welfare of the residents, such as Emily Zagoric; n. Failure of ManorCare Health Services- Camp Hill to monitor the effectiveness and modification of interventions when necessary including the type of equipment and devices necessary to assist Emily Zagoric; o.- Failure to use reasonable care in the maintenance of safe and adequate facilities and equipment; Failure to ensure that all violations involving mistreatment, neglect or abuse, including injuries of unknown source were reported immediately to the administrator of the ManorCare Health Services - P• 15 Camp Hill and other officials in accordance with Pennsylvania State law; q. Failure to investigate all violations involving mistreatment-, neglect or abuse, including injuries of, unknown source; r. Failure to timely and appropriately perform adequate pain assessments, including the history of pain, the intensity of pain, the description, pattern, location , and radiation and frequency of pain, impact of pain, associated symptoms, activities that precipitate or exacerbate, strategies to reduce pain; s. 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 Emily Zagoric. t. Failure of the assessments to accurately reflect Emily Zagoric's status; u. Failure to complete accurate and reproducible assessments for Emily Zagoric; v. Failure to do timely and adequate assessments to determine Emily Zagoric's degree of mobility, physical impairment, cognitive impairment, proper transfer method and safety interventions required for Emily Zagoric; w. Failure to provide adequate assessment following a change in the medical condition of Emily Zagoric; Failure to timely and appropriately develop, review and revise Emily Zagoric's care plan, developing a comprehensive support plan that includes measurable objectives and timetables to meet her individual medical, nursing, and mental and psychosocial needs; Y. Failure to reassess -Emily Zagoric and implement timely and appropriate changes to the Care Plans designed to meet her individual needs; z. Failure to use the objectives of the support plan to monitor Emily Zagoric's progress and revise appropriately; aa. Failure to develop a budget with an objective of the delivery of quality care and meet the needs of the individual residents; bb. Failure to ensure that the ManorCare Health Services- Camp Hill was properly funded; 16 cc. Failure to take appropriate • steps to remedy continuing issues at ManorCare Health Services- Camp Hill that ManorCare Health Services- Camp Hill Defendants knew were_ occurring with Emily Zagoric's 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; dd. Failure to implement a budget that would allow ManorCare Health Services- Camp Hill to provide adequate and appropriate healthcare to Emily Zagoric including adequate staff and supplies; ee. Failure to provide adequate training to staff regarding fall prevention; ff. Failure to appropriately train staff on mobility devices and the potential to create hazardous conditions; Failure to coordinate training programs to improve employee skills and to enhance employee performance; hh. Failure to have adequate and competent staffing to meet the needs of Emily Zagoric; ii Acting in a grossly negligent manner, with reckless indifference to the rights and safety of Emily Zagoric; jj. Failure to treat Emily Zagoric with human decency and respect; kk. Deprivation of dignity, poor hygiene, unsanitary living conditions, and severe pain, when Defendants knew or should have known that he was at risk for the same. gg. II. Failure of the ManorCare Health Services- Camp Hill to develop, implement and/or enforce policies and procedures for review and revision of care plans; Mm. Failure of the ManorCare Health Services- Camp Hill to develop, implement and/or enforce policies and procedures for monitoring and evaluating the resident's responses to the Care Plans; nn. Failure of the ManorCare Health Services- Camp Hill to develop, implement and/or enforce policies and procedures including screening, training, prevention, identification, investigation, protection and reporting and response of abuse, neglect and mistreatment; oo. Failure of the ManorCare Health Services- Camp Hill to develop, implement and/or enforce policies and procedures identify events, such as suspicious bruising of residents, occurrences, patterns and trends that may constitute abuse; 17 PP- . Failure of the ManorCare Health Services- Camp Hill to develop, implement and/or enforce policies and procedures for the staff to monitor the objectives of the Emily Zagoric's progress. 47. WHEREFORE, Plaintiff, Emily Zagoric, 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. COUNT H: WRONGFUL DEATH ACTION Plaintiff, Emily Zagoric, by and through her Administrator, Carol Schaar, vs. Defendants HCR Manor Care, Inc., HCR Manor Care Services, Inc., Heartland Employment Services, LLC, Manor Care of Camp Hill PA LLC 48. Plaintiff incorporates herein by reference each and every preceding paragraph of this Complaint as if the same were more fully set forth herein. 49. As a direct result of Defendant's conduct, Plaintiff/decedent Emily Zagoric died. 50. Plaintiff brings this action under and pursuant to the Pennsylvania Wrongful Death Act, 42 Pa. C.S.A. §8301, on her own behalf and on behalf of Emily Zagoric's statutory heirs and demands damages of Defendants for the losses suffered by Emily Zagoric's survivors, including medical expenses, other expenses reasonably associated with her death, and for all other legally compensable damages associated with the decedent's injuries and death. 51. Plaintiff/decedent left the following survivors: Carol Schaar, Debbie Graham, Ed Zagoric, Daniel Zagoric, and Linda Zagoric. WHEREFORE, Plaintiff, Emily Zagoric, respectfully requests that judgment be entered- in her favor, and against all Defendants in an amount in excess of the 18 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. �. COUNT III: SURVIVAL. ACTION Plaintiff, Emily Zagoric, by and through her Administrator, Carol Schaar, vs. Defendants HCR Manor Care, Inc., HCR Manor Care Services, Inc., Heartland Employment Services, LLC, Manor Care of Camp Hill PA LLC 52. Plaintiff incorporates herein by reference each and every preceding paragraph of this Complaint as if the same were more fully set forth herein. 53. Plaintiff brings this action on behalf of the Estate of the Decedent, Emily Zagoric, under and pursuant to the Pennsylvania Survival Act, 42 Pa.C.S.A. §8302, for damages for the pecuniary losses suffered by decedent's estate during the period of her life expectancy, as well as for the conscious pain and suffering which she endured up to and including the time of her death as a result of the negligence of the Defendants, and for all other legally compensable expenses incurred in connection with the decedent's injuries. 54. Plaintiff claims damages for the fright and mental suffering attributable to the peril leading to the death of Plaintiffs decedent, which was caused by the Defendants' breach of duties and obligations to Emily Zagoric. 55. Plaintiff/decedent left the following survivors: Carol Schaar, Debbie Graham, Ed Zagoric, Daniel Zagoric, and Unda Zagoric. WHEREFORE, Plaintiff respectfully requests that a 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) whichever is greater, together with 19 punitive damages, costs and any other relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. COUNT IV: PUNITIVE DAMAGES Plaintiff, Emily Zagoric, by and through her Administrator, Carol Schaar, vs. Defendants HCR Manor Care, Inc., HCR Manor Care Services, Inc., Heartland Employment Services; LLC, Manor Care of Camp Hill PA LLC, LLC 56. Plaintiff incorporates the allegations contained in the previous paragraphs as though set forth at length herein. 57. Plaintiff, Carol Schaar brings this claim as the Administrator of the Estate of Emily Zagoric, to recover all damages legally appropriate. 58. Plaintiff, Carol Schaar, seeks damages for the conscious pain and suffering of - Emily Zagoric, including mental and physical pain, suffering and inconvenience, Toss of life's pleasures and aggravation of- preexisting medical conditions, and expense of otherwise unnecessary hospitalization and treatment undergone by Emily Zagoric, from the time of her admission as a resident to ManorCare Health Services- Camp Hill, up through and including the present, to the extent it was caused or contributed to by the negligence, carelessness and recklessness of the Defendants by their acts and/or omissions and breach of their duty to Emily Zagoric . 59. The Defendants were aware of Emily Zagoric's preexisting medical conditions. 60. During the period of time that she was a resident at Defendants' facility, the Defendants neglected Emily Zagoric allowing her to suffer from infections, dehydration, sepsis, and death. 20 61. Defendant's improper care and treatment of Emily Zagoric occurred over an extended period of time, which shows an ongoing and long term pattern of neglect and indifference to the health and well-being of Emily2agoric. 62. Emily Zagoric's injuries and other related medical conditions occurred over a period of time, during which the Defendants knew or should have known of her declining medical health, and during which the Defendants had an opportunity to care and treat and correct these conditions, but failed to do so. 63. Defendants were recklessly and/or intentionally indifferent to the condition of Emily Zagoric, which was allowed to deteriorate over an extended period of time, and Defendants, with knowledge of this deterioration in her condition, refused to provide Emily Zagoric with the proper care, treatment needed to sustain him, and to prevent said conditions from developing and/or worsening. 64. Plaintiff, Carol Schaar as Administrator for Emily Zagoric, seeks damages for fright and mental suffering attributable to the peril leading to the physical manifestation of mental injuries, physical injuries and related medical complications that led to suffering occurring to Emily Zagoric from the time of her admission as a resident to Defendants' facilities, up through and her discharge, to the extent it was caused or contributed to by the negligence, carelessness and recklessness of the defendants by their acts and/or omissions and breach of their duty to Emily Zagoric . 65. In causing the aforementioned injuries, the Defendants knew, or should have known, that Emily Zagoric would suffer such harm. 21 66. The conduct of the Defendants was intentional, outrageous, willful and wanton, and exhibited a reckless indifference to the health and well-being of Emily Zagoric. - 67. The conduct of the Defendants was such that an award of punitive damages is warranted. WHEREFORE, Plaintiff respectfully requests that a 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) 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. This thepg day of July, 2014. Respectfully sub 141 J Michael i� ul r. =+'• Attorne 22 VERIFICATION The undersigned, having read the attached Complaint, verifies that the within Complaint is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the Complaint is that of counsel and not the signer. Signer verifies that signer has read the within Complaint and that it is true and correct to the best of signer's knowledge, information and belief. To the extent that the contents of the Complaint are not that of signer, signer has relied upon counsel in making this Verification. This Verification is made subject to the penalties Pa.C.S. Section 4904, relating to unsworn falsification of authorities. Dated: Carol Schaar, as Executrix of the ate of Emily Zagoric, deceased McHUGH FULLER LAW GROUP MICHAEL J. FULLER, ESQUIRE Attorney I.D. # 230731 97 Elias Whiddon Rd. Hattiesburg, MS 30402 (601) 261- 2220 mike@mchughfuller.com CAROL SCHAAR, Individually and on behalf of the Wrongful Death Beneficiaries of EMILY ZAGORIC, Plaintiff vs. MANOR CARE OF CAMP HILL PA LLC Defendants Attorney for Plaintiffs V1 ?Qi4 jo4 U18 FkNl. �►u ! C IN THE COURT OF COMMON PLE 4"" Y' CUMBERLAND COUNTY CIVIL ACTION r DOCKET NO. )C1— ry) JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT MANOR CARE OF CAMP HILL PA LLC I, Michael J. Fuller, Esquire, Attorney for Plaintiff(s), certify per Pa.R.C.P. 1042.3(a) that: X (1) An appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and such conduct was a cause in bringing about the harm; AND X (2) The claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR (3) Expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: 12(1 Respectfully Michae/'F •1l :' r squire Attorney fo /-1 tiff McHUGH FULLER LAW GROUP MICHAEL J. FULLER, ESQUIRE Attorney 1.D. # 230731 97 Elias Whiddon Rd. Hattiesburg, MS 30402 (601) 261- 2220 mike@mchughfuller.com CAROL SCHAAR, Individually and on behalf of the Wrongful Death Beneficiaries of EMILY ZAGORIC, Attorney for Plaintiffs <D/yjUC 3 N4T�r� Al C(/a/p; /7 ENHL"NC co u,,„„ YL vq � u,,„„ IN THE COURT OF COMMON l,L AS CUMBERLAND COUNTY CIVIL ACTION Plaintiff vs. DOCKET NO. HEARTLAND EMPLOYMENT SERVICES, LLC )y -390o ail Defendants JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT HEARTLAND EMPLOYMENT SERVICES. LLC I, Michael J. Fuller, Esquire, Attorney for Plaintiff(s), certify per Pa.R.C.P. 1042.3(a) that: X (1) An appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and such conduct was a cause in bringing about the harm; AND X (2) The claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR (3) Expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: Respectfu Mich.=!'�J/ , , Esquire Attorney • r `' aintiff 1 McHUGH FULLER LAW GROUP MICHAEL J. FULLER, ESQUIRE Attorney I.D. # 230731 97 Elias Whiddon Rd. Hattiesburg, MS 30402 (601) 261- 2220 mike@mchughfuller.com CAROL SCHAAR, Individually and on behalf of the Wrongful Death Beneficiaries of EMILY ZAGORIC, Plaintiff VS. HCR MANOR CARE SERVICES, INC. Defendants Attorney for Plaintiffs D HE. p�o 11°1116. 10i y ��� -3 TA,; • C(I PERNsAND Cpl IN THE COURT OF COMMON PLEANlA'j TY CUMBERLAND COUNTY CIVIL ACTION DOCKET NO. (9oei 01[J; JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT HCR MANOR CARE SERVICES. INC. I, Michael J. Fuller, Esquire, Attorney for Plaintiff(s), certify per Pa.R.C.P. 1042.3(a) that: X (1) An appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and such conduct was a cause in bringing about the harm; AND X (2) The claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR (3) Expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: 126 Respectfully sub Michael Iter, Esquire Attorney f, r Plaintiff 1 McHUGH FULLER LAW GROUP MICHAEL J. FULLER, ESQUIRE Attorney I.D. # 230731 97 Elias Whiddon Rd. Hattiesburg, MS 30402 (601) 261- 2220 mike@mchughfuller.com CAROL SCHAAR, Individually and on behalf of the Wrongful Death Beneficiaries of EMILY ZAGORIC, Plaintiff VS. HCR MANOR CARE, INC. Attorney for Plaintiffs „r THE PROTNOh„ ,aTfii 2814 JUL _ CUMBERLAND PENNSYLVANIA -TY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION DOCKET NO. +3oo Gu; I Defendants JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT HCR MANOR CARE. INC. I, Michael J. Fuller, Esquire, Attorney for Plaintiff(s), certify per Pa.R.C.P. 1042.3(a) that: X (1) An appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and such conduct was a cause in bringing about the harm; AND X (2) The claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR (3) Expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: I 11 114 Respectfully su .,• Miciia r ••'er, Esquire Attorney f .Plaintiff 1 r 1 Exhibit "B" 02/28/2014 08:29 7177309084 ADMINISTRATOR PAGE 27/35 VOLUNTARY ARBITRATION AGREEMENT ("AGREEMENT" Z THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL BEFORE A JUDGE OR JURY OF ANY DISPUTE.BETWEEN THEM. PLEASE READ CAREFULLY BEFORE SIGNING. THE PATIENT WILL RECEIVE SERVICES IN THIS CENTER WHETHER OR NOT THIS AGREEMENT IS SIGNED. ARBITRATION IS DESCRIBED IN THE VOLUNTARY ARBITRATION PROGRAM BROCHURE COPY, ATTACHED AND MADE PART OF THIS AGREEMENT. Made on 8/443 (date) by and between the Patient Emily z.aQ©ri� or Patient's Legal. Representative Cara/ctaf. . _ .. (collectively referred as �'/J"Patient") and the Center e.0/197 Hill •.. 1. Agreement to Arbitrate "Disputes": All claims arising put of or relating to this Agreement, the Admission Agreement or any and all past or future admissions of the Patient at this Center, or any sister Center operated by any subsidiary of HCR ManorCare, Inc.("Sister Center"), including claims for malpractice, shall be submitted to arbitration. Nothing in this Agreement prevents the Patient from filing a complaint with the Center or appropriate governmental agency or from seeking review under any applicable law of any decision to involuntarily discharge or transfer the Patient. 2. Denis red for Arbitration: shall be written, sent to the other Party by certified mail, return receipt requested. 3. FAA: The Parties agree and intend that this Agreement, the Admission Agreement and the Patient's stays at the Center substantially involve interstate commerce, and stipulate that the Federal Arbitration Act ("FAA") and applicable federal case law apply to this Agreement, preempt any inconsistent State law and shall not be reverse preempted by the McCann -Ferguson Act; United States Code Title 15, Chapter 20, or other law. Any amendment to such version of the FAA is hereby expressly waived. 4. Arbitration Panel: Three (3) arbitrators (the "Panel") shall conduct the arbitration. Each Party will select one Arbitrator, the two selected Arbitrators will select a third. Each Arbitrator must be a retired State or Federal Judge or a Member of the State Bar where the Center is located with at least 10 years of experience as an attorney. The Panel will elect a Chief Arbitrator who will be responsible for establishing and resolving issues pertaining to procedure, discovery, admissibility of evidence, or any other issue. 5. Sole De eislon Makers Except as otherwise provided in 6 below, the Panel is ennpowered to, .and shall, resolve all disputes, including without limitation, any disputes about the making, validity, enforceability, scope, interpretation, voidability, unconscionability, preemption, severability and/or waiver of this Agreement or the Admission Agreement, as well as resolve the Parties' underlying disputes, as it is the Parties' intent to avoid involving the court system. The Panel shall not have jurisdiction to certify any person as a representative of a class of persons and, by doing so, adjudicate claims of persons not directly taking part in Arbitration. 6. Procedural Rules and Substantive Law: The Panel shall apply the State Rules of Evidence and State Rules of Civil Procedure except where otherwise stated in this Agreement. Also, the Panel shall apply, and the arbitration award shall be consistent with, the State substantive law, including statutory damage caps, for the State in which the Center is located, except as otherwise stated in this Agreement or where preempted by the FAA. The Panel's award must be unanimons and shall be served no later than 7 working days after the arbitration hearing. The award•must state the Panels' findings of fact and conclusions of law, shall be marked "confidential", and must be signed by all three Arbitrators. If any damages are awarded, the award must delineate specific amounts for each type of damages awarded, : i.e. economic, non -economic, etc. The failure of the Panel to issue a unanimous award creates an appealable issue, appealable to the appropriate court, in addition to those set forth in paragraph 7, below. In the event the appellate court fmds a non -unanimous award invalid as against law or this Agreement, the award shall be vacated and the arbitration dismissed without prejudice. A subsequent arbitration, if any, of the same claim or claims shall remain subject to the terms of this Agreement. 7. Flit with Limited Right, to Review (Appeal): The Panel's award binds the Parties. The Parties have a limited right of appeal for only the express reasons allowed by the FAA or as provided in 6, above. 02/28/2014 08:29 7177309084 ADMINISTRATOR PAGE 28/35 8. Right to Change Your Mind: This Agreement may be cancelled by written notice sent by certified mail to the Center's` Administrator within 30 calendar days of the Patient's date of admission.. If alleged acts underlying the dispute occur before the cancellation date, this Agreement shall be binding with respect to those alleged acts. If not cancelled, this Agreement shall be binding on the Patient for this and all of the Patient's subsequent admissions to the Center or any Sister Center without any need for further renewal. 9. Binding on Parties & Others: The Parties intend that this Agreement shall benefit and bind the Center, its parent, affiliates, and subsidiary companies, and shall benefit and bind the Patient (as defined herein), his/her successors, spouses, children, next of kin, guardians, administrators, and legal representatives. 10. Fees and Costs: The Panels' fees and costs will be paid by the Center except in disputes over non-payment of Center charges wherein such fees and costs will be divided equally between the Parties. The Parties shall bear their own attorney fees and costs in relation to all preparation for and attendance at the arbitration hearing 11. Confidentiality: The arbitration proceedings shall remain confidential in all respects, including all filings, deposition transcripts, discovery documents, or other materials exchanged between the Parties and the Panels' award. In addition, following receipt of the Panels' award, each Party agrees to return to the producing Party within 30 days the original and all copies of documents exchanged in discovery and at the arbitration Hearing. 12. Non.waiver of this Agreement: A waiver of the right to arbitrate a specific Dispute or sories of Disputes, as described above, does not relieve any Party from the obligation to arbitrate other Disputes, whether asserted as independent claims or as permissive or mandatory counterclaims, unless each such claim is. also individually waived. i With multiple Patient admissions, the presentation of an arbitration agreement at a later admission to the Center ora Sister Center shall not constitute a waiver by.the Center of a prior signed arbitration agreement. 1.3. Severability:. Except as _provided is 6, .any..provision . contained in this. Agreement is ,severable,. and ..if . a provision is found to be unenforceable under State or Federal raw, the remaining provisions of this Agreementshall rennin in force and effect This Agreement represents the Parties' entire agreement regarding Disputes, supersedes any other agreement relating to disputes, and may only be changed in writing signed by all Parties. This Agreement shall remain in full force and effect notwithstanding the termination, cancellation or natural expiration of the Admission Agreement 14. Health Care Decision: The Parties hereby stipulate that the decision to have the Patient move into this Center and the decision to agree to this Agareetnent are each a health care decision. The Parties stipulate that there are other health care facilities in this community currently available to meet the Patient's needs. THE PARTIES CONFIRM THAT EACH 01? THEM UNDERSTANDS THAT EACH HAS WAIVED THE RIGHT TO TRIAL BEFORE A JUDGE OR JURY AND THAT EACH CONSENTS TO ALL OF THE TERMS, OF THIS VOLUNTARY AGREEMENT. PATIENT ACKNOWLEDGES . THE RIGHT TO REVIEW THIS AGREEMENT WITH AN ATTORNEY OR FAMILY BEFORE SIGNING. PATIENT: Signature of Patient CENTER REPRESENTATIVE .Ld' Signature of Center Representativ PATIENT'S LEGAL REPRESENTATIVE: . Signature of Patient's Le Representative capacity Signature of Patient's Le Individual capacity hi Patient's Legal Representative should sign on both lines above containing the phrase "Patient's Legal Representtative." 2 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) MANOR CARE DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT CAPTION OF CASE (entire caption must be stated in full) CAROL SCHAAR, Individually and on behalf of the Wrongful Death Beneficiaries of EMILY ZAGORIC, v. HCR MANOR CARE, INC.; HCR MANOR CARE SERVICES, INC.; HEARTLAND EMPLOYMENT SERVICES, LLC; JOHN DOES 1 THROUGH 10; and UNIDENTIFIED ENTITIES 1 THROUGH 10 • • E PRO T l ONO`TA 'l,. 2014 AUG -I Ail IU: p f CUMBERLAND COUNTY 'ENNSY► VAN/A COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. Civil Action No. 14-3900 Jury trial demanded 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT 2. Identify counsel who will argue case: (a) for plaintiff: address: Michael J. Fuller, Esquire McHugh Fuller Law Group 97 Eilas Whiddon Road Hattiesburg, MS 30402 (b) for defendant: John M. Skrocki, Esquire, address: Burns White LLC 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 3. I will notify all parties in writing within two days that this case has been listed for argument. (continued on page 2) 1 oof,.0 sAci 4,4 e.L.kk Lk6 I -309 : COURT OF COMMON PLEAS CAROL SCHAAR, Individually and on : OF CUMBERLAND COUNTY behalf of the Wrongful Death Beneficiaries of EMILY ZAGORIC, : Civil Action Plaintiffs, : No. 14-3900 v. HCR MANOR CARE, INC.; HCR MANOR CARE SERVICES, INC.; HEARTLAND EMPLOYMENT SERVICES, LLC; : Jury Trial Demanded JOHN DOES 1 THROUGH 10; and UNIDENTIFIED ENTITIES 1 THROUGH 10 Defendants. CERTIFICATE OF SERVICE I, John M. Skrocki, Esquire, hereby certify that I am this day serving a copy of the foregoing Praecipe for Argument of ManorCare Defendants' Preliminary Objections to Plaintiffs' Complaint setting argument for September 26, 2014 has been served upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, First -Class, postage prepaid, addressed as follows: Date: Michael J. Fuller, Esquire McHugh Fuller Law Group 97 Eilas Whiddon Road Hattiesburg, MS 30402 Counsel for Plaintiff BURNS WHITE LLC 3 AFFIDAVIT OF SERVICE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CAROL SCHAAR, INDIVIDUALLY AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF EMILY ZAGORIC, vs. Defendants HCR MANOR CARE, INC.; et al. 20 �v:44-39d0 N,v Case No.`: Compliance Date: 7/21/2014 BEN PURSER , being duly sworn, depose and say, I have been duly authorized to make service of the document(s) listed herein in the above styled case. I am over the age of 18, and am not a party to or otherwise interested in this matter. DatelTime Received: 7/14/2014 9:00 AM Document(s): Notice to Defend (Summons), Complaint, P's First Interrogatories to All D's; P's First Request for Production to D's; and P's Resident Contact Request for Admissions to D's. Serve To: HCR MANOR CARE SERVICES, INC. Through Its Reg. Agent, CT Corporation System Address: 1300 E. 9th St., Cleveland, OH 44114 Date Served: 7-18-14 Time Served: 3:40 PM Method of Service: [ ] Individual [ ] Substitute [X] Corporate [ ] Govt. Agency [ ] Posted [ ] Other [ ] Non -Served ) Person Served: JIM WRIGHT Capacity: Process Specialist for *CT Corporation System Address: 1300 East 9th Street, Cleveland, OH 44114 Military Status: [X] N/A [ ] Not in Military [ ]Active Duty Military After exercising reasonable diligence, I was unable to deliver copies to said person within county, MS. I served the documents listed above on the day of , at the usual place of adobe of said person by leaving a true copy of the documents fisted above with , who is the (insert family relationship), a member of the family who is above the age of sixteen years old who was willing to receive service. Arid thereafter on the day of , , 1 mailed (by first class postage prepaid) copies to the person served at his/her place of adobe where copies were left. * CT Coporation System is the Registered Agent for,. HCR._ MANOR CARE SERVICES_INC_W I declare under penalties of perjury that the information contained herein is correct to the best of my knowledge. Keith Investigations, LLC d/b/a Qua 418 Pittman Road Ellisville, MS 39437 (601) 319-2675 ID: 40365 Client Reference: Emily Zagoric (PA) Executed on 70,-4 t L( State of Ohio County of Summit Subscribed an Notary P My Co worn to before me, a notary public, on Jennie Bergemann Resident Summit County Wary Public, State of Ohio My Commission Expires: 03/22/2019 7 -N(t‘c AFFIDAVIT OF SERVICE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PEN,NSY' AtA N,_ . r V!E FRC Plaintiff CAROL SCHAAR, INDIVIDUALLY AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF EMILY ZAGORIC, vs. Defendants HCR MANOR CARE, INC.; et al. 20l4 AUG _�' 'AR CUt � Pr*� 3: 07 �UERL A ND COUT FEN 'S YL VA &Ae No.: 14-3900 Compliance Date: 7/21/2014 1 Ante( \eu.Y rb , being duly sworn, depose and say, I have been duly authorized to make service of the document(s) listed herein in the above styled case. I am over the age of 18, and am not a party to or otherwise interested in this matter. Date/Time Received: 7/14/2014 9:00 AM Document(s): Notice to Defend (Summons), Complaint, P's First Interrogatories to All D's; P's First Request for Production to D's; and P's Resident Contact Request for Admissions to D's. Serve To: HCR MANORCARE, INC. Through Its Reg. Agent, Corporation Trust Company Address: 1209 Orange St., Wilmington, DE 19801 Date Served: 11U.D AA Time Served:31C° PP" AM/PM Method of Service: [ ] Individual [ ] Substitute [ k6orporate [ ] Govt. Agency [ ] Posted [ ] Other [ ] Non -Served ) Person Served:AN-1.9 Me- pr. Capacity'Nliana.S Lr' Address: tZert Ord-!'> (j "trY V)91-6/1 lGj 1 Military Status: [ ] N/A [ ] Not in Military [ ] Active Duty Military After exercising reasonable diligence, I was unable to deliver copies to said person within county, MS. I served the documents listed above on the day of , at the usual place of adobe of said person by leaving a true copy of the documents listed above with , who is the (insert family relationship), a member of the family who is above the age of sixteen years old who was willing to receive service. And thereafter on the day of , I mailed (by first class postage prepaid) copies to the person served at his/her place of adobe where copies were left. 1 declare under penalties of perjury that the information contained herein is correct to the best of my knowledge. Keith Investigations, LLC d/b/a Qua 418 Pittman Road. Ellisville, MS 39437 (601) 319-2675 ID: 40364 Client Reference: Emily Zagoric (PA) Executed on 47114 - State of ► ' ICt tA-':0-'`2- 11 County of NP -Lb ctuoite Subscribed and swore to before me, a notary public, on t7, 0 i f :G• M_ S •. A S i kii '� EXPIRES 2 ; M.W i7, 2016 48//61/iF•iiipiliElkir;NN N ary Public My Commission Expires: 1 McHUGH FULLER LAW GROUP MICHAEL J. FULLER, ESQUIRE Attorney I.D. # 230731 97 Elias Whiddon Rd. Hattiesburg, MS 30402 (601) 261- 2220 mike@mchughfuller.com CAROL SCHAAR, Individually and on behalf of the Wrongful Death Beneficiaries of EMILY ZAGORIC, Plaintiff vs. Attorney ICE for Plaintiffs ' ,-OFTHON 2014 AUG I 8 At; 6:S6 CUMBERLAND UIyBEBL . P h'NSYCVANIA1ir�� IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION CIVIL ACTION NO.: 14-3900 HCR MANOR CARE, INC.; HCR MANOR CARE SERVICES, INC.; HEARTLAND EMPLOYMENT SERVICES, LLC; MANOR CARE OF CAMP HILL PA LLC; JOHN DOES 1THROUGH 10; AND UNIDENTIFIED ENTITIES 1 THROUGH 10 Defendants PLAINTIFF'S ANSWER IN OPPOSITION TO DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Plaintiff, Carol Schaar, Individually and on behalf of the Wrongful Death Beneficiaries of Emily Zagoric, by and through counsel, files the within Answer in Opposition to Defendants' Preliminary Objections to Plaintiff's Complaint, and avers as follows: 1. Admitted. 2. Admitted. 3. Admitted, with the qualification that Plaintiff's Complaint, attached to Defendants' Preliminary Objections as Exhibit A, is a document that speaks for itself. 4. Admitted, with the qualification that Plaintiff's Complaint, attached to Defendants' Preliminary Objections as Exhibit A, is a document that speaks for itself. 1 5. Admitted as to the absence of reference to Emily Zagoric's pre-existing medical conditions. Denied as to Defendants' classification of said medical conditions. 6. Denied as to Carol Schaar signing the arbitration agreement pursuant to a power of attorney. Admitted as to other aspects. 7. Admitted. I. RESPONSES TO DEFENDANTS' FIRST PRELIMINARY OBJECTION 8-9. Denied. These paragraphs contain conclusions of law, to which no response is required. To the extent that a response is required, Plaintiff refers this Honorable Court to the attached Memorandum of Law in Opposition to Defendants' Preliminary Objections. 10. Denied. This paragraph contains a conclusion of law to which no response is required. To the extent that a response is required, the same is denied. By way of further response, Plaintiff refers this Honorable Court to the attached Memorandum of Law in Opposition to Defendants' Preliminary Objections. 11. Denied. This paragraph contains a conclusion of law to which no response is required. To the extent that a response is required, the same is denied. By way of further response, Plaintiff refers this Honorable Court to the attached Memorandum of Law in Opposition to Defendants' Preliminary Objections. 12. Admitted, with the qualification that the Arbitration Agreement, attached to Defendants' Preliminary Objections as Exhibit B, is a document that speaks for itself. 13. Denied. This paragraphs contains a conclusion of law to which no response is required. To the extent that a response is required, the same is denied, By way of 2 further response, Plaintiff refers this Honorable Court to the attached Memorandum of Law in Opposition to Defendants' Preliminary Objections. 14. Denied. This paragraph contains a conclusion of law to which no response is required. To the extent that a response is required, the same is denied. By way of further response, Plaintiff refers this Honorable Court to the attached Memorandum of Law in Opposition to Defendants' Preliminary Objections. 15. Denied. This paragraph contains a conclusion of law to which no response is required. To the extent that a response is required, the same is denied. By way of further response, Plaintiff refers this Honorable Court to the attached Memorandum of Law in Opposition to Defendants' Preliminary Objections. II. RESPONSE TO DEFENDANTS' SECOND PRELIMINARY OBJECTION 16-18. No response is required to the averments under the Pennsylvania Rules of Civil Procedure. Rules 1028(a)(2), 1018, and 1042.2(a) -(b) speak for themselves. 19. Admitted, with the qualification that Plaintiff's Complaint, attached to Defendants' Preliminary Objections as Exhibit A, is a document that speaks for itself. 20. Denied. This paragraph contains a conclusion of law to which no response is required. To the extent that a response is required, the same is denied. By way of further response, Plaintiff refers this Honorable Court to the attached Memorandum of Law in Opposition to Defendants' Preliminary Objections. 21. Denied. This paragraph contains a conclusion of law to which no response is required. To the extent that a response is required, the same is denied. By way of further response, Plaintiff refers this Honorable Court to the attached Memorandum of Law in Opposition to Defendants' Preliminary Objections. 3 WHEREFORE, Plaintiff Carol Schaar, Individually and on behalf of the Wrongful Death Beneficiaries of Emily Zagoric, by and through undersigned counsel, respectfully requests that this Court overrule Defendants' Preliminary Objections and order Defendant to file an Answer to Plaintiff's Complaint within twenty (20) days of the date of the order. Respectfully submitted, Date: F/15*h Michael J. ul er, squire D. Bryant Chaffin, Esquire Attorney for Plaintiff CERTIFICATE OF SERVICE We do hereby certify that on the ISf day of August, 2014, the foregoing was served upon all counsel of record by facsimile and by depositing true and correct copies in the U.S. Mail, postage prepaid, and addressed to: William J. Mundy, Esq. John M. Skrocki, Esq. Sean P. O'Mahoney, Esq. BURNS WHITE LLC 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 a", Michael I.. Fuller, Esquire Attorney I.D. # 230731 D. Bryant Chaffin, Esquire Attorney I.D. # 315031 4