PITTSBURGH – A state court judge has overruled preliminary objections in litigation brought by an Allison Park woman, which claimed her mother was the recipient of sub-standard care at her nursing facility, leading her to suffer a fall that caused a cut on her head, a broken neck and a broken hip, which caused severe pain and led to her death.
Jeanne Popp (as Administratrix of the Estate of Madeline Miller and on behalf of the wrongful death beneficiaries of Madeline Miller) first filed suit in the Allegheny County Court of Common Pleas on March 31 versus MOS Grace MGT, LLC, Encore Health Services, Inc. and Executive Director Cathy Himes. All parties are of Allison Park.
“Madeline Miller became a resident of Grace Manor at North Park on or about Feb. 8, 2021, and remained a resident of the facility. Miller suffered injuries and damages during residency at defendants’ facility, including but not limited to, a fall that resulted in a laceration to her head, a fractured neck and a fractured hip which caused and/or contributed to her death,” the suit said.
“On her admission to Grace Manor at North Park on Feb. 8, 2021, Miller was a known fall risk and was noted to have difficulty in walking. Despite this, no adequate service plan was put in place at Grace Manor at North Park for falls or to prevent Miller from falling.”
The suit added that Miller developed a pressure wound to her inner left ankle in early March 2021, before being noted to be more confused and falling asleep on March 9, 2021 and was then sent to the emergency room.
“At the emergency room, she was found to have impaired cognition with safety awareness and judgment worsening. She was also diagnosed with a Stage III pressure ulcer to the right heel. On July 20, 2021, Miller suffered a fall at approximately 1 a.m. She was found with a laceration on the back of her head and was sent to the emergency room,” the suit stated.
“At the emergency room at UPMC Passavant Hospital, she was diagnosed with a C1-C2 neck fracture and a hip fracture. She was sent to UPMC Mercy Trauma Center. It was noted that she was crying in pain. Miller was not found to be a candidate for surgery. Due to her fractures, she required pain management around the clock. Miller died on Nov. 13, 2021. Her injuries at defendants’ facility caused and/or contributed to her death.”
Counsel for defendants MOS Grace MGT, LLC and Himes filed a motion to dismiss pursuant to affidavit of non-involvement on May 26, with respect to their co-defendant, Encore Health Services, Inc.
Encore Health Services, Inc. formerly owned Grace Manor at North Park, until selling it to MOS Grace MGT, LLC on Feb. 3, 2020.
“After Feb. 3, 2020, Encore Health Care Services, Inc. had no ownership or administrative or management role in Grace Manor at North Park after Feb. 3, 2020, and thus was not involved with decedent’s residence there beginning on Feb. 8, 2021. This Court should dismiss defendant, Encore Health Care Services, Inc. from this action because it was not involved in decedent’s care or the administration, operation or management of Grace Manor at North Park at any time during her residency beginning on Feb. 8, 2021,” the motion stated, in part.
“Pennsylvania Rule of Civil Procedure 1036 provides that any party seeking dismissal of an action based upon an affidavit of non-involvement shall file a motion to dismiss which shall have attached thereto the affidavit of non-involvement. 40 Pa. C.S. Section 1303.506 provides that ‘any health care provider named as a defendant in a medical professional liability action may cause the action against that provider to be dismissed upon the filing of an affidavit of non-involvement with the Court.”
After consideration, Allegheny County Court of Common Pleas Judge Daniel D. Regan granted the defense’s motion to dismiss on June 2.
“Upon consideration of the motion to dismiss pursuant to affidavit of non-involvement filed on behalf of defendant Encore Health Services, Inc., it is hereby adjudged, ordered and decreed that all claims against defendant Encore Health Services, Inc. are hereby dismissed and defendant Encore Health Services, Inc., is removed from the caption of this action,” Regan said.
MOS Grace MGT, LLC filed preliminary objections in the case on June 15.
“Plaintiff alleges defendant violated ‘mandatory requirements of multiple portions of state regulations.’ Plaintiff should know which state regulations she alleges were violated and defendants have a right to know exactly what claims it is to answer for in this matter. Defendants must be allowed to know exactly which state regulations plaintiff alleges were violated to allow them to prepare their defense. Thus, the inclusion of the language ‘multiple proportions’ is improper and merely an attempt by plaintiff to leave a backdoor through which she can attempt to expand her claim at a later date,” the objections stated, in part.
“In the complaint, plaintiff asserts defendants were aware of ‘Madeline Miller’s medical condition.’ This allegation is factually insufficient as plaintiff should know the medical condition she is alleging the defendants were aware of. Defendants must be allowed to know exactly which ‘medical conditions’ plaintiff alleges they were aware of for them to prepare their defense. The inclusion of the vague phrase ‘medical condition’ is improper.”
MOS Grace MGT, LLC added that the plaintiff’s allegations of negligence “fail to assert any breach of duty or causation in any form, other than asserting general concepts then refer to the entire factual pattern, thus requiring the respondent attempt to formulate the allegations of negligence”, and furthermore, do not qualify for a punitive damages award.
On July 1, the plaintiff answered MOS Grace MGT, LLC’s preliminary objections, denying them in nearly every respect.
“These paragraphs contain conclusions of law to which no responses are required. To the extent that responses are required, the same are denied. By way of further response, plaintiff directs the Court to her memorandum of law in opposition to defendants’ preliminary objections,” the plaintiff’s answer stated, in part.
UPDATE
On Aug. 8, Allegheny County Court of Common Pleas Judge Alan D. Hertzberg overruled the defendants’ preliminary objections.
“Upon consideration of the preliminary objections of defendants and any response thereto, it is hereby ordered that the preliminary objections are overruled. Defendants are hereby ordered to file an answer to plaintiffs’ complaint within 20 days from the date of this order,” Hertzberg said.
For counts of negligence, wrongful death and survival, the plaintiff is seeking damages in excess of $50,000, plus punitive damages, costs and any other relief that the Court deems appropriate given the circumstances, along with a trial by jury.
The plaintiff is represented by Michael J. Fuller and D. Bryant Chaffin of McHugh Fuller Law Group, in Hattiesburg, Miss.
The defendants are represented by Jennings L. Hart III and Cassidy DeCosmo of Davies McFarland & Carroll, in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-003505
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com