MEDIA – The daughters of a Delaware County nursing home resident who contended that improper care from facility staff directly caused their mother’s death, have settled their claims with the nursing home company for $20,000.
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, 2021 versus Assist 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.
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.
Assist For Life Home Care filed an answer on Oct. 4, denying the complaint’s assertions in their entirety.
“Plaintiff fails to state a claim upon which relief may be granted against answering defendant. Plaintiff’s claims are barred, in whole or in part, by Pennsylvania’s Comparative Negligence Act codified at 42 Pa.C.S.A. Section 7102. The subject incidents, the occurrence of which is specifically denied, were caused, if at all, by persons, events, circumstances and/or conditions over whom/which answering defendant had no control nor duty to control. Answering defendant neither caused nor contributed to plaintiff’s alleged injuries or damages the occurrence of which are specifically denied,” per the health care group’s answer.
“Plaintiff’s alleged injuries and/or damages, the occurrence of which are specifically denied, occurred, if at all, as the result of events and circumstances which occurred independently of any act(s) or omission(s) of answering defendant. Plaintiff’s claims are barred by the doctrines of superseding and/or intervening causes. Answering defendant’s alleged conduct, the occurrence of which is specifically denied, was neither a substantial nor contributing cause of the subject incident(s) and/or of plaintiff’s alleged injuries and/or damages the occurrence of which is specifically denied. Answering defendant did not violate or breach any legal or common law duty, if any, owed to plaintiff. Answering defendant generally and specifically denies each and every allegation contained in plaintiff’s amended complaint as they relate to answering defendant’s alleged liability.”
On Oct. 26, the plaintiffs responded to Asset For Life Home Care’s new matter and denied it fully.
UPDATE
Plaintiff counsel filed a petition to settle the case on April 8, for $20,000.
“After thorough investigation, discovery and pre-trial preparation by the undersigned counsel, a settlement in the sum of $20,000 has been agreed upon by the parties. Petitioners’ counsel is of the professional opinion that the proposed settlement is fair and reasonable. Counsel has recommended the acceptance of this settlement to petitioners, who have agreed to the settlement subject to the approval of this Honorable Court,” the petition stated, in part.
“Counsel has incurred expenses for which reimbursement is sought in the total sum of $1,441. Pursuant to the written fee agreement, counsel fees are one-third of gross recovery. Petitioner requests allocation of the net proceeds of the settlement (after deduction of costs and attorney’s fees).”
Plaintiff counsel sought the distribution of the settlement funds as follows:
• McNichol Byrne & Matlawski – Reimbursement of Costs: $1,441.35
• McNichol Byrne & Matlawski – Counsel Fees: $5,000
• Catherine Kania and Juliane Murphy – Survival Claim: $13,558.65
Delaware County Court of Common Pleas Judge Kelly D. Eckel issued an order approving the settlement on April 20.
The plaintiffs were represented by James J. Byrne Jr. and Kaitlyn T. Searls of McNichol Byrne & Matlawski, in Media.
The defendants were 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