MEDIA – A Delaware County health care entity is pursuing a judgment of non pros in wrongful death litigation accusing it of subpar care of one of its residents, before and leading up to her death.
Catherine Kania of Havertown and Juliane Murphy of West Chester (individually and as executrixes of the Estate of Janet M. Chupein) first filed suit in the Delaware County Court of Common Pleas on March 31 versus Asset For Life Home Care, LLC (individually and doing business as “Plush Mills Senior Living”), of Wallingford.
(Safe Senior Living NP, LLC of Springfield and Main Line Health Homecare & Hospice of Radnor were later added as defendants to the case.)
“Plaintiffs’ decedent, Janet Chupein, became a resident of Plush Mills in April of 2018. Plaintiffs’ decedent was a resident of Plush Mills and under the care of the defendant, when she died on Sept. 5, 2019. At the time of her death, plaintiffs’ decedent was 81 years old, having been born on April 10, 1938. At all times material and relevant hereto, plaintiffs’ decedent paid bi-weekly fees to reside at Plush Mills,” the suit stated.
“The bi-weekly fee ranged from $80 to $100. When plaintiffs’ decedent moved into Plush Mills, she was capable of tending to her daily needs, with the use of assistance for longer walks. After moving into Plush Mills, plaintiffs’ decedent’s health began to rapidly decline and she underwent three separate hospitalizations in a relatively short period of time.”
In August 2019, during her final hospital stay, it was recommended that she obtain hospice care. Subsequently, Chupein was released from the hospital and to the hospice care at Plush Mills.
On Aug. 28, 2019, Plush Mills assured the plaintiffs that plaintiffs’ decedent would be placed under 24-hour care. But rather than receiving 24-hour care, the suit said the plaintiffs’ decedent received sub-standard attention from Plush Mills, which included being left to lay in urine-soaked adult diapers.
“On Sept. 4, 2019, plaintiff, Catherine Kania, visited Plush Mills to find her mother lying bed struggling to breathe, with her dentures missing from her mouth, while her aide was sleeping on the outside balcony. Thereafter, the new aide assigned to care for plaintiffs’ decedent discovered her missing dentures implanted in the skin of her buttocks and broken,” per the suit.
“The following day, Sept. 5, 2019, plaintiffs’ decedent passed away while pleading with her family, ‘Don’t leave me alone!’ As a direct and proximate result of the aforesaid incidents and the tortious conduct of Assist for Life, plaintiffs’ decedent, Janet M. Chupein, suffered immensely both physically and emotionally while under the defendant’s negligent care. Furthermore, Aug. 28, 2019, the day the plaintiffs’ decedent was placed in hospice care, the defendant deducted an unexplained and unauthorized fee from her bank account, in the amount of $1,781.25.”
The defendant filed preliminary objections on June 4, seeking to strike claims of corporate negligence, negligent infliction of emotional distress and punitive damages from the complaint, in addition to wanting the entire complaint thrown out for the plaintiffs’ alleged failure to provide a proper verification.
“There are no facts in the amended complaint to suggest that the alleged substandard care received by plaintiffs’ decedent was the result of some sort of systemic failure on behalf of the nursing home itself. Instead, the facts allege that one specific caregiver provided insufficient care to plaintiffs’ decedent over a short period of time,” the objections stated.
“Based on the facts alleged in plaintiffs’ complaint, defendant’s negligence would arise only through the negligence of the caregiver at issue through vicarious liability. However, there are no facts to support a claim that plaintiffs’ decedent’s alleged damages resulted systemic substandard care due to an alleged failure to properly run the facility.”
The defendant further cited Superior Court of Pennsylvania precedent, which necessitates that preliminary objections to a claim of negligent infliction of emotional distress are proper if it was not shown that the decedent suffered physical injury. In this case, the defendant argues that decision applies and should nullify the claim.
As for punitive damages, the defendant said that is not a stand-alone claim in Pennsylvania, but rather, strictly a requested remedy when conduct takes place that shocks the conscience, and thus, should be struck from the complaint.
UPDATE
Main Line Health Homecare & Hospice filed a notice on Aug. 10 to seek a judgment of non pros against all professional liability claims from the plaintiffs.
“Pursuant to Pennsylvania Rule of Civil Procedure 1042.7, I, the undersigned, intend to enter a Judgment of Non Pros against you 30 days after this filing if Certificates of Merit are not filed, as required by Pennsylvania Rule of Civil Procedure 1042.3,” the notice stated.
“I am serving this notice on behalf of defendant, Main Line Health HomeCare and Hospice. The judgment for Non Pros will be entered as to all claims set forth in plaintiffs’ complaint against the above named defendant.”
For counts of survival, corporate negligence, negligent infliction of emotional distress and punitive damages, the plaintiffs are seeking damages in excess of $50,000 plus interest, delay damages, costs and a trial by jury.
The plaintiffs are represented by James J. Byrne Jr. and Kaitlyn T. Searls of McNichol Byrne & Matlawski, in Media.
The defendant is represented by Andrew J. Kramer of Kane Pugh Knoell Troy & Kramer in Norristown, plus Timothy J. Burke and Kevin F. Farrington of Eckert Seamans Cherin & Mellott, in Philadelphia.
Delaware County Court of Common Pleas case CV-2021-003128
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com