PITTSBURGH – A Western Pennsylvania woman and her counsel maintain she was the victim of two separate incidents of sexual molestation by a fellow resident of a nursing facility she was admitted to in 2021, for treatment of advanced dementia.
Louella Benden of Bridgeville (by and through her attorney-in-fact, George A. Bokelberg, of New Orleans, La.) first filed suit in the Allegheny County Court of Common Pleas on Aug. 1 versus Asbury Health Center (doing business as Asbury Heights) of Mount Lebanon.
At the time of the events in question, the suit explained Benden was admitted to the defendant’s skilled nursing facility while suffering from advanced dementia.
“On May 28, 2021, nurse Shannon Jennings discovered a male resident in plaintiff Benden’s room with his hand in her shirt. A note in Benden’s chart dated May 28, 2021 states: ‘Cont. to monitor and prevent residents from wandering into her room. Working with nursing staff, Don, program manager and psych to develop interventions to decrease male residents’ disinhibited hyper-sexual behavior,” the suit said.
“On May 30, 2021, nurse Tracie Igoe noted in Benden’s chart that that the nurse was notified by a CAN that a male resident was in Benden’s room with the curtain pulled and his hands were down the front of her brief. Based on information, it is believed that the same resident which sexually molested Benden on both May 28 and May 30, 2021.”
The suit added that the same man which molested Benden committed similar acts against another female resident prior to the dates in question.
“Solely as a result of the negligence of the defendant, acting through its agents, ostensible agents, servants and/or employees, Benden was subjected to being sexually molested on two separate occasions. As a result of defendant’s negligence in causing injuries to Benden, she suffered non-economic losses and damages, including emotional pain and suffering, mental anguish, stress, embarrassment and humiliation,” the suit stated.
The defendant filed an answer and new matter in the case on Nov. 21, denying the plaintiff’s claims and countering that they have no merit.
“Plaintiff has failed to state a claim against Asbury Heights upon which relief can be granted. At all times relevant, the care and treatment rendered to Benden at Asbury Heights was appropriate and skillfully rendered in accordance with the applicable standards of care. The injuries and/or damages sustained by Benden, if any, did not result from any conduct, acts, or omissions of defendant or its duly authorized agents, servants, and/or employees. If defendant owed any duty of care to Benden, said duty was not breached or violated. Plaintiff’s failure to identify the persons whose conduct is allegedly attributable to defendant is contrary to Pennsylvania law,” the answer stated.
“No proximate cause exists between any of Benden’s alleged injuries and damages and any alleged act or omission on the part of defendant or its duly-authorized agents, servants and/or employees. Therefore, plaintiff is not entitled to recover from defendant. Any alleged acts or omissions of defendant and its duly authorized personnel are non-substantial causes that do not constitute negligence and did not result in the injuries and/or damages alleged in the complaint. To the extent that Benden’s injuries were caused by individuals or entities for whom defendant is not responsible, such conduct is raised as an affirmative defense. Defendant is not liable for the independent, tortious, and criminal acts of third parties. Plaintiff may have entered into a release having the effect of discharging another party from liability in this matter. If so, defendant pleads the benefits of said release. Defendant raises all affirmative defenses as set forth or available as a result of the provisions of the Medical Care Availability and Reduction of Error Act.”
The defendant continued that the complaint does not meet the legal standards for demonstrating corporate negligence or conduct which befits the awarding of punitive damages.
UPDATE
In a Dec. 30 reply to the new matter, the plaintiff flatly denied the veracity of the defendant’s new matter.
“The allegations set forth in Paragraphs 35-58 state conclusions of law to which no response is required. In the event that a response is deemed to be required, the same are specifically denied and strict proof is demanded,” the reply stated.
For counts of negligence and corporate negligence, the plaintiff is seeking damages in excess of the arbitration limits of Allegheny County, plus punitive damages, costs, interest and any other relief the Honorable Court deems appropriate under the circumstances.
The plaintiff is represented by Richard C. Levine of Ainsman Levine, in Pittsburgh.
The defendant is represented by Shannon Voll Poliziani and Hillary M. Weaver of Gordon Rees Scully Mansukhani, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-009499
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com