Negligence and wrongful death action against nursing case facility stayed, pending arbitration

By Nicholas Malfitano | Feb 6, 2019

PHILADELPHIA – Per order of a state court, a Philadelphia man’s action alleging negligent care at a local nursing home was the cause of his mother-in-law’s death last year has been stayed, pending ongoing arbitration proceedings.

Philadelphia County Court of Common Pleas Judge Arnold L. New issued a ruling declaring Joseph J. Sansone’s action as stayed, according to Section 19.4 of the nursing home admission agreement. Further, the included claims under the Pennsylvania Survival Act were transferred to private arbitration and the matter would be stayed until that same arbitration had concluded.

Joseph J. Sansone (as administrator of the Estate of Sue T. DePasquale, deceased) of Philadelphia initially filed suit in the Philadelphia County Court of Common Pleas on Aug. 3 versus Center Management Group, St. Monica Center for Rehabilitation & Healthcare of Philadelphia, 2509 South Fourth Ventures, Catholic Facilities Operating and four individuals.

The litigation stated that decedent DePasquale was initially admitted to St. Monica Center for Rehabilitation & Healthcare on May 23, 2003, in order to receive full-time and long-term care. However, the suit claims she was the victim of repeated and severe negligence on the part of facility staff.

“While she was a resident at St. Monica Center for Rehabilitation & Healthcare, Sue T. DePasquale’s injuries, which included multiple falls, resulting in injuries including a right wrist fracture, bruising and swelling, abrasions and lacerations, multiple urinary tract infections, ESBL E. coli, sepsis, pneumonia, cellulitis, shingles, gangrene and osteomyelitis of the toes, buttock moisture-associated skin damage, multiple skin impairments of unknown origin, an unstageable sacrum pressure ulcer, poor hygiene and severe pain, continued to plague her and caused unresolvable decline in her condition, contributing to and causing her death on April 9, 2017,” the lawsuit said.

Her death was ultimately the result of peripheral vascular disease and dementia, according to the suit, and allegedly occurred because the facility was recklessly managed and understaffed, leading to the proper level of patient care not being provided.

In preliminary objections filed by the defense on Aug. 6, it argued any claims made through the Pennsylvania Survival Act should be transferred to private arbitration pursuant to Section 19.4 of the Nursing Home Admission Agreement, the matter should not be adjudicated in thus Court, and it should be stayed until the conclusion of that same arbitration process.

“Because there is an agreement to arbitrate and the instant controversy falls within the scope of the arbitration provision, plaintiff’s claims for damages asserted under the Survival Act are therefore subject to arbitration and this matter should be stayed pending resolution of plaintiff’s claims under the Survival Act in arbitration,” the objection read.

The plaintiff’s counsel responded Aug. 24 that the cited arbitration agreement is “unenforceable, void, invalid and/or revocable on numerous grounds," cannot be enforced as a matter of law and is an unconscionable contract of adhesion, along with it allegedly being executed in bad faith and other objections.

For counts of negligence, recklessness, breach of fiduciary duty, survival and wrongful death, the plaintiff is seeking compensatory damages in excess of the Court’s arbitration limits or $50,000, whichever is greater, plus punitive damages, costs, any fees the Court may deem appropriate and a trial by jury.

The plaintiff is represented by William P. Murray III and Erica C. Wilson of Wilkes & McHugh, in Philadelphia.

The defendants are represented by Lawrence D. Jackson of Lewis Brisbois Bisgaard & Smith, in Wayne.

Philadelphia County Court of Common Pleas case 180405010

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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