PITTSBURGH – After removing the subject case to federal court, an Allegheny County-ran nursing facility has refuted allegations of negligence and corporate negligence in the care-related death of his father more than two years ago.
Timothy A. Davis (Executor of the Estate of Gene E. Davis, deceased) of Tarentum first filed suit in the Allegheny County Court of Common Pleas on May 9 versus Allegheny County (doing business as “John J. Kane Regional Center – Glen Hazel”), of Pittsburgh.
“Decedent was admitted to Glen Hazel on or about Jan. 28, 2021 with longstanding diagnoses of dementia, type II diabetes, GERD, musculoskeletal pain, hypothyroidism, and major depression. It was further noted in the Glen Hazel admission history and physical that decedent had a history of behavioral disturbances that required him to be hospitalized at Allegheny Valley Hospital’s Geriatric Psychiatric Unit for a month immediately prior to his admission to Glen Hazel. Decedent was also noted to be a fall risk,” the suit said.
“Decedent’s behavioral disturbances, including his propensity for violence towards staff and other residents, and his history of wandering, was well documented and known to Glen Hazel at the time of decedent’s admission. In March 2021, Glen Hazel noted that decedent’s behavioral symptoms put others at risk of physical injury, that current interventions were ineffective as decedent was unable to be redirected without confrontation and that decedent would walk into other residents’ rooms, fight with them and a physical confrontation would ensue.”
The suit added that on April 21, 2021, a Morse Fall Scale assessment noted that the decedent had a history of falling and his gait was weak, but despite this notation, appropriate interventions were not put into place following the April 2021 Morse Fall Scale assessment – and that on May 3, 2021, the decedent fell in his room and the records reflect that he injured his nose, left elbow, left hand and right knee, but the records are void of whether any interventions were put into place following this fall.
“On May 26, 2021, decedent was found to have a large bruise on his hips that were approximately at the same level as the handrails in the Glen Hazel hallways. It was assumed by Glen Hazel nursing and medical staff that due to his noted unsteady gait and history of falls, decedent was hitting his body up against the wall while walking and thus getting bruised. Following the May 26th evaluation, the records noted that decedent was to wear ‘hipsters’ or pads around his hip area anytime he was out of bed. There is no documentation that this intervention was ever put into place,” the suit stated.
“On June 1, 2021, decedent wandered into another resident's room, began going through the closet and got into a confrontation with the resident that turned physical. During the confrontation, the other resident pushed decedent causing him to fall to the ground. This altercation was unwitnessed; however, the other resident subsequently confirmed the facts surrounding the altercation. Decedent, who is always ambulating on the unit, was seen sitting in a wheelchair in a common area. When a staff member finally checked on him, a supervisor was called as his behavior was noted to be unusual. Upon the wheelchair being moved, decedent began to scream in pain. An evaluation of decedent showed his left hip was swollen, his lower leg around his ankle was discolored, and he had pain with movement.”
Despite a subsequent x-ray was ordered that showed a left hip fracture, he was not given appropriate pain management, nor was he transferred to the hospital on the day his fracture was discovered – but Glen Hazel did not transfer the decedent to the hospital until the day after his fall, June 2, 2021.
“Upon admission to Shadyside Hospital, the hip fracture was confirmed, decedent was given appropriate pain medication to manage his pain, and he underwent surgical intervention to repair the fracture. He remained admitted through June 5, 2021, when he was then transferred back to Glen Hazel. At the time of his readmission to Glen Hazel, decedent required substantial assistance with mobility, bed to chair transfers, and toileting transfers. Attempts at walking were avoided clue to safety concerns. Decedent was clearly noted as a fall risk upon readmission. On June 12, 2021, decedent sustained another fall with suspected head trauma. Diagnostic testing confirmed no further injury to his hip, but he was placed under neurologic evaluation for three days following the fall,” the suit said.
“On June 27, 2021, it was noted in a morning nursing note that decedent was restless and attempting to get out of bed. Glen Hazel was required to adequately monitor decedent who had a known and documented history of attempting to get out of bed. Glen Hazel was required to place a bed alarm or other device to ensue they’d be notified if decedent attempted to get out of bed without assistance. Later in the afternoon of that same day, June 27, 2021, decedent’s son found him on the floor, beside his bed, and on his knees. Decedent’s son notified Glen Hazel staff of finding his father as they were completely unaware. Glen Hazel had clearly not been performing routine checks on decedent as he was able to climb out of bed and get onto the floor – while still recovering from a hip fracture. Glen Hazel had clearly not placed bed alarms or other warning devices as they were completely unaware that decedent had climbed out of bed and was on the floor of his room for a period of time.”
The suit further explained that the decedent began experiencing respiratory symptoms was placed on Cipro for congestion on June 28, 2021, and was transferred to Shadyside Hospital for shortness of breath on July 1, 2021.
Ultimately, the suit said the decedent passed away on July 6, 2021 with noted causes of death being pneumonia and blunt force trauma of the hip. Additionally, he was noted in the autopsy to be cachectic in appearance, having a red and black sacral ulcer and malnutrition, resulting in the decedent having lost over 20 pounds since his admission to Glen Hazel.
UPDATE
The defendant removed the case to federal court on Oct. 17, citing the civil rights-based theories at issue, which it said would fall under federal jurisdiction – and then followed up the removal with an answer the following day, on Oct. 18.
“To establish liability under 42 U.S.C. Section 1983 against Allegheny County/Kane, plaintiff would need to establish Monell liability. The specific contours of Monell liability in this case will be determined by the Court. It generally requires proof that a policy or custom of a municipal defendant was the moving force in causing an employee to violate one’s federally-protected rights. If decedent’s federally-protected rights were violated, it was not caused by an Allegheny County/Kane policy or custom. Monell liability does not exist even if the incident occurred as alleged, which is denied,” the answer and its affirmative defenses stated.
“The defendant acted at all times in accordance with the requirements of the Federal Nursing Home Reform Act and its implementing regulations. The defendant pleads, as an affirmative defense, any and all statutory provisions set forth in the Omnibus Budget Reconciliation Act and/or the FNHRA and its implementing regulations that bar or otherwise limit the claims set forth in this case. The allegations in the amended complaint are barred, in whole or in part, by the applicable statute of limitations. Any and all applicable affirmative defenses as set forth in Federal Rule of Civil Procedure 8(c) are raised as additional defenses to the causes of action asserted. The defendant reserves the right to plead any additional affirmative defenses as may become evident through discovery in this matter.”
For counts of survival and wrongful death through both negligence and corporate negligence, the plaintiff is seeking damages in excess of the jurisdictional limits of arbitration, plus costs.
The plaintiff is represented by George M. Kontos, Brittani R. Hassen and Taylor Marie Martucci of Kontos Mengine Killion & Hassen, in Pittsburgh.
The defendant is represented by Maria N. Pipak and Michael R. Lettrich of Jones Passodelis, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-01788
Allegheny County Court of Common Pleas case GD-23-006028
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com