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Home My WebLink About2003-4966 Civil ELIZABETH R. UPDEGRAFF, : IN THE COURT OF COMMON PLEAS individually, and as Administrator : CUMBERLAND COUNTY, PENNSYLVANIA of the Estate of DEAN R. : UPDEGRAFF, : Plaintiff : : vs. : CIVIL ACTION – LAW : BEVERLY ENTERPRISES – : PENNSYLVANIA, INC. d/b/a : NO. 03-4966 CIVIL BEVERLY HEALTHCARE – : CAMP HILL f/k/a CAMP HILL : CARE CENTER; : : BEVERLY HEALTH AND : REHABILITATION SERVICES, : INC. d/b/a BEVERLY : HEALTHCARE – CAMP HILL : f/k/a CAMP HILL CARE CENTER; : : BEVERLY HEALTHCARE d/b/a : BEVERLY HEALTHCARE – : CAMP HILL f/k/a CAMP HILL : CARE CENTER, and : : BEVERLY ENTERPRISES, INC. : d/b/a BEVERLY HEALTHCARE – : CAMP HILL f/k/a CAMP HILL : CARE CENTER, : Defendants : JURY TRIAL DEMANDED DEFENDANTS’ PRELIMINARY OBJECTIONS TO PLAINTIFF’S SECOND AMENDED COMPLAINT OPINION AND ORDER This is a civil action for injuries allegedly inflicted upon Dean R. Updegraff (“Decedent”) during his stay at Beverly Healthcare - Camp Hill at 46 Erford Road, Camp Hill, Pennsylvania (“Facility”). The claim is brought on behalf of the Estate of Decedent and on behalf of the wrongful death beneficiaries and the heirs-at-law of the Decedent. The defendants are Beverly Enterprises – Pennsylvania, Inc. (“BE-PA”), Beverly Health and Rehabilitation Services, Inc. (“BHRS”), Beverly Healthcare (“BH”), and Beverly Enterprises, Inc. (“BEI”). Plaintiff asserts that Defendants BE-PA, BHRS, and BH were and remain wholly owned subsidiaries of Defendant BEI, and that all Defendants were the operators, managers, and owners of the Facility. Decedent, who was fifty-four years old during his time at the Facility, arrived at the Facility in September of 2001 for what was to be a temporary stay, to be cared for as he recovered from a Bi-Lateral Deep Brain Stimulation Surgery, a neurological procedure for Parkinson’s Disease. In addition to Parkinson’s Disease itself, Decedent suffered from irritable bowel syndrome with a history of constipation and impaction, and cognitive dysfunction as well as a history of behavioral difficulties secondary to Parkinson’s Disease and its treatment. Plaintiff asserts that while at the Facility, Decedent was subject to physical abuse, verbal abuse, and neglect from Defendants, through their employees, including frequent bruising caused by pinching Decedent and slamming him into a wheelchair, pushing and shoving Decedent, having Decedent sit in his own urine and bowel movements for hours or days, and verbal insults and personal insults directed at Decedent. It is also alleged that in the days leading up to his emergency discharge from the facility and death, Decedent exhibited cold-like symptoms, fever, shortness of breath, cough, decline in mental status, confusion, abnormal behavior, lethargy, abdominal pain, swelling in his head, neck, and legs, decreased appetite and other signs of a urinary tract infection. Defendant’s records show they took no steps to address the complaints or condition of Decedent. Decedent was removed from the facility on May 31, 2002, and died on June 12, 2002 at the Holy Spirit Hospital in Camp Hill, Pennsylvania. The Defendants have filed Preliminary Objections to the Plaintiff’s Complaint. A trial court may exercise general personal jurisdiction over a defendant based upon a defendant’s general activity within the state. 42 Pa.C.S.A. § 5301. For corporations such as 2 BEI, this includes “carrying on of a continuous and systematic part of its general business within this Commonwealth.” 42 Pa.C.S.A. § 5301(a)(2)(iii). Claimant avers in her Second Amended Complaint the following: 1. BEI wholly owned, operated and controlled its subsidiaries that are located in Pennsylvania. (Plaintiff’s Second Amended Complaint, ¶5; hereinafter Complaint.) 2. BEI was the operator, manager and owner of the Facility and the holder of a State License issued by the Commonwealth of Pennsylvania to so operate the facility. (Complaint ¶6.) 3. BEI listed the Facility as one of their nursing homes in its 2003 10-K filed with the SEC. (Complaint, ¶12.) 4. BEI was listed as having been affiliated with the Facility in the 2001 “Disclosure of Ownership and Control Interest Statement” filed with the Pennsylvania Department of Health. (Complaint, ¶12.) 5. BEI operates 42 nursing facilities with a total of 4,772 licensed beds in Pennsylvania according to its 2003 10-K filed with the SEC. (Complaint, ¶15.) These allegations, if taken as true, show that BEI carries on a continuous and systematic part of its general business within the Commonwealth, and therefore this Court has personal jurisdiction over Defendant BEI. A trial court in Pennsylvania may also exercise personal jurisdiction over a defendant based upon specific acts of the defendant which gave rise to the cause of action. 42 Pa.C.S.A. § 5322. In particular, BEI has alleged in its Second Amended Complaint: That . . . the decisions, policies, acts and omissions of the Defendants and specifically the management and budgetary decisions of said Defendants relating to staffing numbers in correlation to patient population and the acuity level of the patient population at the Facility, lack of properly trained nurses, certified nurses aides, and staff members, lack of proper supervision of nurses, 3 certified nurses aides, and staff members, falsification of records, and improper, sporadic record keeping, were each and all direct proximate causes of Mr. Updegraff’s death. (Complaint, ¶14.) Again, if taken as true, this averment shows that BEI’s tortious acts and omissions in the Commonwealth could have led to Decedent’s injuries in the Commonwealth, and therefore this Court has personal jurisdiction over Defendant BEI pursuant to 42 Pa.C.S.A. 1 § 5322(a)(3)-(4). Defendants’ second preliminary objection, pursuant to Pa.R.C.P 1028(a)(4), “legal insufficiency of a pleading,” is that Plaintiff cannot assert punitive damages against Defendants under Count II (the Survival Action) of the Second Amended Complaint. Preliminary objections in the nature of a demurrer require courts to resolve issues solely on the basis of the pleading with no other evidence being considered. Mellon Bank v. Fabinyl, 650 A.2d 895, 899 (Pa.Super. Ct. 1994). “Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted.” Allegheny County v. Com., 490 A.2d 402, 408 (Pa. 1985). The punitive damages statute in Pennsylvania concerning health care providers is 40 P.S. § 1303.505, which is part of the Medical Care and Reduction of Liability (MCare) Act of 2002. The pertinent section is as follows: (a) Award.-- Punitive damages may be awarded for conduct that is the result of the health care provider's willful or wanton conduct or reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the health care provider's 1 The factual basis for jurisdiction is also set out in the plaintiff’s answer to the preliminary objections. These are, of course, allegations only and nothing in our disposition of these preliminary objections will preclude us from revisiting the question of jurisdiction on a more fully developed record. 4 act, the nature and extent of the harm to the patient that the health care provider caused or intended to cause and the wealth of the health care provider. (b) Gross negligence.-- A showing of gross negligence is insufficient to support an award of punitive damages. (c) Vicarious liability.-- Punitive damages shall not be awarded against a health care provider who is only vicariously liable for the actions of its agent that caused the injury unless it can be shown by a preponderance of the evidence that the party knew of and allowed the conduct by its agent that resulted in the award of punitive damages. According to Section (a) of the statute, punitive damages can be awarded against a health care provider for the health care provider’s “reckless indifference to the rights of others.” Therefore, the Defendants, as “health care providers,” could be liable for punitive damages if they acted in reckless indifference to the rights of others, specifically Decedent. The health care provider acts recklessly when it “knows, or has reason to know, . . . of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk . . . .” Martin v. Johns-Manville Corp., 494 A.2d 1088, 1097 (Pa. 1985) (quoting Restatement (Second) of Torts §500, comment a (1965)). Plaintiff has pled sufficient facts that, if taken as true, could show that Defendants acted in “reckless indifference to the rights of others.” These include the following averments, found in Paragraph 37 of the Second Amended Complaint: c. Each and every one of the Defendants knew or should have known that Mr. Updegraff was vulnerable, defenseless, and dependent upon each and every one of the Defendants for all of his needs, yet Defendants, in an effort and attempt to maximize their profits, knowingly failed to provide an adequate number of properly supervised and trained staff to meet Mr. Updegraff’s needs and to keep him safe and secure in his person, in conscious disregard of Mr. Updegraff’s rights and safety; 5 d. Defendants, because of their size and national presence in the field of long term care facilities, including hundreds of skilled nursing facilities, such as the Facility, are fully aware of the required staffing levels, training and supervision needed for acceptable care, yet said Defendants knowingly and recklessly and with conscious disregard of the consequences of their actions, continued a corporate pattern of understaffing throughout Beverly-owned facilities, including the Facility in Cumberland County, Pennsylvania; e. Defendants have received multiple citations by the Pennsylvania Department of Health for violations of 42 C.F.R. § 483 et. seq. and for violations of 28 Pa. Code 201 et. seq., which said citations and violations gave Defendants actual notice of the dangerous, harmful, and detrimental conditions at the Facility; Each Citation was accompanied by a Corrective Action Plan, by which defendants acknowledged each violation and represented that such violation would be affirmatively corrected; Defendants disregarded the corrective action plans approved by the Pennsylvania Department of Health and were cited for multiple repeat violations on subsequent inspections; therefore, Defendants demonstrated a knowing and conscious disregard of their duty of care to the residents of the Facility, including Mr. Updegraff. Also, Plaintiff averred in Paragraph 14 of the Second Amended Complaint: 14. That, upon Plaintiff’s information and belief, the decisions, policies, acts and omissions of the Defendants and specifically the management and budgetary decisions of said Defendants relating to staffing numbers in correlation to patient population and the acuity level of the patient population at the Facility, lack of properly trained nurses, certified nurses aides, and staff members, lack of proper supervision of nurses, certified nurses aides, and staff members, falsification of records, and improper, sporadic record keeping, were each and all direct and proximate causes of Mr. Updegraff’s death. Because it could be found from these averments, if proven, that Defendants acted in “reckless indifference to the rights of others,” the pleadings suggest a question for a jury. The question, particularly with respect to any vicariously liable defendants, will be whether they “knew of and allowed” the offending conduct. Defendants’ third preliminary objection, made pursuant to Pa.R.C.P 1028(a)(2), is that Paragraph 37(f) of Plaintiff’s Second Amended Complaint should be stricken from the record for “inclusion of scandalous or impertinent matter.” The paragraph in question relates to the alleged failure of the Defendants to “properly assess, monitor, treat and care for Mr. Updegraff” in a 6 “willful, deliberate, reckless, grossly negligent, malicious, and/or grossly and callously indifferent way,” particularly by: c. Creating and fostering a corporate/business environment where profit is more important than patient care. For example, according to Item 3(e) “Legal Proceedings” on page 23 of the SEC Form 10-K filed by Defendant BEI for the fiscal year ending December 31, 2003, Defendant BEI has realized, over the past few years, an increasing trend in the number and severity of claims resulting from injury or death to patients as evidenced by a partial copy of Defendant BEI’s SEC 10-K disclosure attached hereto in Exhibit 6; that correspondingly, Defendant BEI saw strong performance during the first quarter of 2004, almost doubling earnings form the corresponding quarter in 2003; that Defendant BEI reported net income of $23.4 million, a 91 percent jump from the $12.2 million reported in the first quarter of 2003; and that “March was the strongest month ever in terms of revenue,” Defendant BEI’s President and Chief Executive Officer Bill Floyd said during a conference call with analysts. Defendants claim that this paragraph serves only to impugn the character and reputation of Beverly Enterprises, Inc. through negative implication and in no way supports Plaintiff’s cause of action, as at no time does Plaintiff assert any facts for how the earnings addressed in the SEC Form 10-K support the particular factual allegations at issue in this case. Scandalous averments consist of “any unnecessary allegation which bears cruelly upon the moral character of an individual, or states anything which is contrary to good manners, or anything which is unbecoming to the dignity of the court to hear, or which charges some person with a crime, not necessary to be shown.” Ellis v. National Capitol Life Ins. Co., 35 Pa. D. & C.2d 490, 493-94 (Montg. 1964). Impertinent averments have been defined as “immaterial and 7 inappropriate to the proof of the cause of action.” Department of Environmental Res. V. Peggs Run Coal Co., 423 A.2d 765, 769 (Pa. Commw. Ct. 1980). The power to sustain a preliminary objection on the ground that materials alleged to be scandalous or impertinent should be sparingly exercised and only when a party affirmatively can show prejudice. Commonwealth v. Hartford Acci. & Indem. Co., 396 A.2d 885, 888 (Pa. Commw. Ct. 1979). Paragraph 37(f), when viewed in the context of the averments preceding that paragraph, is a factual averment that was included with the purpose of establishing that Defendants knowingly or recklessly created and fostered a corporate/business environment where profit was more important than patient care which led to the alleged neglect and mistreatment of Decedent. Whether this was actually the case is for the trier of fact to decide, and inclusion of the averment in the record will not prejudice the Defendants. Defendants’ final preliminary objection, made pursuant to Pa.R.C.P 1028(a)(3), is that there is “insufficient specificity” in a paragraph of Plaintiff’s Second Amended Complaint. A complaint is sufficiently specific if it provides the defendant with enough facts to enable the defendant to frame a proper answer and prepare a defense. Commonwealth ex rel. Milk Marketing Board v. Sunnybrook Dairies Inc., 370 A.2d 765, 768 (Pa. Commw. Ct. 1977). In determining whether a complaint is sufficiently specific, all averments of the complaint must be considered together and appraised in light of the nature of the case. Hock v. L.B. Smith, Inc. 69 D.&C. 2d 420, 423 (Columbia 1955). In Paragraph 42 of Plaintiff’s Second Amended Complaint and its subparts, Plaintiff lists the damages it is seeking. The Pennsylvania wrongful death statute, which is referenced in both Paragraph 1 and Paragraph 42 of the Second Amended Complaint lists the “special damages” that are permissible under the statute. The pertinent provision is as follows: 8 (c) SPECIAL DAMAGES – In an action brought under subsection (a), the plaintiff shall be entitled to recover, in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death. 42 Pa.C.S. § 8301(c). Plaintiff specifically lists these damages in Paragraph 42 of the Second Amended Complaint. Plaintiff also specifically includes other losses allegedly suffered as a result of the acts and omissions of Defendants, such as “loss of wages and financial support,” which are permissible in a wrongful death action. See Baumgart v. Keene Bldg. Products Corp., 633 A.2d 1189 (Pa. Super. Ct. 1993). Defendant is also seeking, as listed in Paragraph 42(i), “[s]uch other damages as are permissible under the wrongful death action.” Given the specificity of the remaining subparts of paragraph 42, we are not troubled by this general reference to the Wrongful Death Act. ORDER AND NOW, this 27th day of May, 2008, the preliminary objections of the defendants are DENIED. BY THE COURT _______________________________ Kevin A. Hess, J. 9 John R. Zonarich, Esquire Ruben J. Krisztal, Esquire For the Plaintiff John G. Wall, Esquire Steven R. Chadwick, Esquire For the Defendants :rlm 10 ELIZABETH R. UPDEGRAFF, : IN THE COURT OF COMMON PLEAS individually, and as Administrator : CUMBERLAND COUNTY, PENNSYLVANIA of the Estate of DEAN R. : UPDEGRAFF, : Plaintiff : : vs. : CIVIL ACTION – LAW : BEVERLY ENTERPRISES – : PENNSYLVANIA, INC. d/b/a : NO. 03-4966 CIVIL BEVERLY HEALTHCARE – : CAMP HILL f/k/a CAMP HILL : CARE CENTER; : : BEVERLY HEALTH AND : REHABILITATION SERVICES, : INC. d/b/a BEVERLY : HEALTHCARE – CAMP HILL : f/k/a CAMP HILL CARE CENTER; : : BEVERLY HEALTHCARE d/b/a : BEVERLY HEALTHCARE – : CAMP HILL f/k/a CAMP HILL : CARE CENTER, and : : BEVERLY ENTERPRISES, INC. : d/b/a BEVERLY HEALTHCARE – : CAMP HILL f/k/a CAMP HILL : CARE CENTER, : Defendants : JURY TRIAL DEMANDED DEFENDANTS’ PRELIMINARY OBJECTIONS TO PLAINTIFF’S SECOND AMENDED COMPLAINT BEFORE HESS, OLER AND GUIDO, J.J. ORDER AND NOW, this 27th day of May, 2008, the preliminary objections of the defendants are DENIED. BY THE COURT _______________________________ Kevin A. Hess, J. John R. Zonarich, Esquire Ruben J. Krisztal, Esquire For the Plaintiff John G. Wall, Esquire Steven R. Chadwick, Esquire For the Defendants :rlm