Brogdon ex rel. Cline v. National Healthcare Corp.

• Decision Date: 17 May 2000
• Docket Number: No. CIV.A. 4:99CV0313HLM.,CIV.A. 4:99CV0313HLM.
• Parties: James BROGDON, individually, and by next friend Suzie Cline, et al., Plaintiffs, v. NATIONAL HEALTHCARE CORPORATION, d/b/a NHC Healthcare of Ft. Oglethorpe, NHC/OP, L.P., d/b/a NHC Healthcare of Ft. Oglethorpe, Defendant.
• Court: U.S. District Court — Northern District of Georgia

Page 1322

103 F.Supp.2d 1322

James BROGDON, individually, and by next friend Suzie Cline, et al., Plaintiffs, v. NATIONAL HEALTHCARE CORPORATION, d/b/a NHC Healthcare of Ft. Oglethorpe, NHC/OP, L.P., d/b/a NHC Healthcare of Ft. Oglethorpe, Defendant.

No. CIV.A. 4:99CV0313HLM.

United States District Court, N.D. Georgia, Rome Division.

May 17, 2000.

Order Modifying Opinion on Denial of Reconsideration June 26, 2000.

COPYRIGHT MATERIAL OMITTED

William Dufour deGolian, Johnson & Ward, Atlanta, GA, Phyllis J. Holmen, Lisa Jane Krisher, Georgia Legal Services Program, Atlanta, GA, David LeBron McGuffey, Coppedge Leman & Ward, Dalton, GA, James W. Clements, III, phv, Kennedy Fulton Koontz & Farinash, Chattanooga, TN, Torin Dana Togut, Office of Torin D. Togut, Roswell, GA, Lance Douglas Lourie, Stephen Roberts Chance, Watkins Lourie & Roll, Atlanta, GA, for Plaintiffs.

William Wray Eckl, Barbara Anne Harding, Drew Eckl & Farnham, Atlanta, GA, Michael W. McElroy, H. Andrew Owen, Jr., William R. Cowden, phv, David J. George, phv, Harman Owen Saunders & Sweeney, Atlanta, GA, Malcolm J. Harkins, III, phv, Margaret J. Babb, phv, Washington, DC, for Defendants.

ORDER

MURPHY, District Judge.

This case involves federal and state law claims by present and deceased residents of a long-term health care facility alleging that Defendants have failed to provide basic and minimally required levels of care. The case is before the Court on Defendant's Motion to Dismiss [12].

I. Background

When considering a motion to dismiss, all well-pleaded facts set forth in the plaintiff's complaint "are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto." GSW, Inc. v. Long County, 999 F.2d 1508, 1510 (11th Cir.1993); accord Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n. 1 (11th Cir.1999).

Plaintiffs are residents of the State of Georgia. (Compl. ¶ 7.) Defendant National Healthcare Corporation is a Delaware corporation with its principal place of business located in the State of Tennessee. (Id. ¶ 1.) Defendant NHC/OP, L.P., is a Delaware limited partnership with its principal place of business located in the State of Tennessee.

Defendants own and operate a long term health care facility, NHC of Ft. Oglethorpe, in Fort Oglethorpe, Georgia. (Id. ¶ 5.) The facility has the capacity to house approximately 133 residents. (Id. ¶ 41.)

Plaintiffs are present and former residents of the facility. (Id. ¶ 11.) Plaintiffs Mixon Smith, Louvena Leroy, William E. Chasteen, Sr., Glen Rucks, Obbon L. Baldwin, Lou Ellen Slayback, and James L. Erickson, Sr., resided at the facility before their deaths. Plaintiffs allege that they suffer or suffered from inhumane conditions at the long term health care facility owned and operated by Defendants.

Defendants employ nurses and certified nursing assistants ("CNAs") to provide care and treatment to the residents. (Id. ¶ 42.) There is a high rate of turnover among the nursing staff at the facility. (Id. ¶ 44.) The CNAs are paid minimum hourly wages or wages that are slightly higher than the minimum permitted by law. (Id. ¶ 43.) The CNAs at the facility are also poorly trained and poorly supervised. (Id. ¶ 45.) Because of the high turnover, the low wages, and poor training and supervision, Plaintiffs are abused and neglected at the facility. (Id. ¶ 47.) The nursing staff also fail to respond to Plaintiffs' complaints in a timely fashion, and do not sufficiently meet the social and emotional needs of Plaintiffs. (Id. ¶¶ 50-51.)

Furthermore, the food served to Plaintiffs lacks nutritional value. (Id. ¶ 48.) Additionally, Defendants fail to provide substitute diets for Plaintiffs who have particular dietary needs. (Id. ¶ 49.)

Plaintiffs therefore allege that the staff at the nursing home fails to provide for Plaintiffs' safety, health, and well-being. (Id. ¶ 51.) Additionally, Defendants fail to take appropriate remedial measures to enforce federal and state laws and regulations or satisfy contractual obligations to Plaintiffs. (Id. ¶ 53.) Furthermore, Defendants bill for services which have not been sufficiently provided. (Id. ¶ 54.) For these reasons, Plaintiffs allege that their health and safety are in serious jeopardy. (Id. ¶ 55.)

Specifically, Defendants have failed to provide adequate nursing care to Plaintiffs who are incapable of performing basic daily living skills. (Id. ¶¶ 59-60, 71, 76, 86, 91, 96, 101, 110, 115; First Am. Compl. ¶ 117C; Second Am. Compl. ¶ 117P.) Nursing staff at the facility also neglected to properly care for Plaintiff Smith by failing to timely recognize that Plaintiff Smith had suffered a hip fracture. (Compl. ¶ 65.)

Pursuant to a contract with the Georgia Department of Community Health, Division of Medical Assistance, Defendants must provide skilled nursing services, long-term care, treatment, and other Medicaid services to Plaintiffs. (Id. ¶ 147.) NHC of Ft. Oglethorpe has allegedly breached this contract by failing to comply with the minimum standards of care required under state and federal laws and regulations. (Id. ¶ 150.)

One or more Plaintiffs, including Plaintiff LeRoy, entered into a written contract with Defendants upon admission to Defendants' facility. (Id. ¶¶ 152-53.) The contract is entitled "Admission and Financial Contract TG 200." (Id. ¶ 152.) Under this contract, Defendants agreed to provide food services, professional nursing services, social services, activities, restoration services, physical therapy, occupational therapy, speech therapy, beauty shop services, barber services, daily housekeeping, and laundry services. (Id. ¶ 154.) Defendants also agreed to provide nursing services in accordance with the nursing standard of care. (Id. ¶ 155.) Defendants have allegedly failed to provide these services to Plaintiffs. (Id. ¶¶ 156-57.)

On November 15, 1999, Plaintiffs filed their initial Complaint. Plaintiffs' initial Complaint includes twelve counts, asserting the following claims for relief:

1. Violation of Federal standards required for participating nursing homes under 42 U.S.C.A. § 1395i-3 (Medicare);

2. Violation of Federal standards required for participating nursing homes under 42 U.S.C.A. § 1396r (Medicaid);

3. Violation of state standards required for nursing homes under the Georgia Bill of Rights for Nursing Home Residents, O.C.G.A. § 31-8-100 et seq.;

4. Negligent Hiring and Retention;

5. Nursing Aide and Nursing Malpractice and Neglect;

6. Wrongful Death;

7. Third Party Beneficiary Breach of Contract;

8. Breach of Contract;

9. Unfair or Deceptive Practices Toward Elderly;

10. Punitive Damages;

11. Preliminary and Permanent Injunctive Relief;

12. Declaratory Judgment.

(Compl. ¶¶ 118-174.) Plaintiffs requested a preliminary injunction, including the appointment of a special master, pursuant to the federal standards enumerated under the Medicare and Medicaid Acts. Plaintiffs also requested a preliminary injunction under Georgia law, and have included a general prayer for preliminary and permanent injunctive relief in count eleven of the initial Complaint. On December 30, 1999, Plaintiffs filed their first Amended Complaint, in which Plaintiffs added a claim for attorneys' fees pursuant to O.C.G.A. § 13-6-11.

On February 4, 2000, Defendants filed the instant Motion to Dismiss. Defendants have not yet filed an Answer to Plaintiffs' Complaint.

On February 25, 2000, Plaintiffs filed a Motion for Preliminary Injunction. On April 3, 2000, Defendants filed their Response to Plaintiffs' Motion for Preliminary Injunction. On April 26, 2000, Plaintiffs filed their Reply Brief. On April 28, 2000, the Court scheduled a hearing with respect to Plaintiffs' Motion for Preliminary Injunction to begin on May 9, 2000. On May 9, 10, and 11, 2000, the Court heard testimony related to Plaintiffs' Motion for Preliminary Injunction. The hearing is scheduled to resume on May 24, 2000, at 9:30 a.m.

II. Discussion

The standard for a court to dismiss a claim is whether "it appears beyond doubt that the plaintiff can prove no set of facts to support his claim." GSW, Inc. v. Long County, 999 F.2d 1508, 1510 (11th Cir. 1993) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). When considering a motion to dismiss, the Court considers all well-pleaded facts set forth in the plaintiff's complaint as true. Hall v. Coram Healthcare Corp., 157 F.3d 1286, 1287 (11th Cir.1998).

A. Counts One and Two: The Medicare and Medicaid Acts

Plaintiffs assert claims pursuant to the Medicare and Medicaid Acts. As the Court ruled at the hearing on May 11, 2000, the Medicare and Medicaid Acts do not provide a private cause of action for residents of nursing homes to sue the owners or operators of nursing homes. In accordance with the following discussion the Court therefore grants Defendants' Motion to Dismiss with respect to counts one and two of Plaintiffs' initial Complaint.

1. Purpose and Design

The Medicare Act, established pursuant to Title XVIII of the Social Security Act, 42 U.S.C.A. § 1395 et seq., is a federal program designed to provide health insurance for aged and disabled persons. § 1395c, 1395d. The Health Care Financing Administration ("HCFA"), an agency within the Department of Health and Human Services, oversees the implementation of this program. See United States v. Blue Cross & Blue Shield of Ala., Inc., 156 F.3d 1098, 1100 n. 3 (11th Cir.1998).

The Medicaid Act, established pursuant to Title XIX of the Social Security Act, 42 U.S.C.A. § 1396 et seq., is a joint program funded by both the federal and state governments designed to provide medical assistance to certain persons in need. Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). The Medicaid Act is administered by the individual states that choose to participate in the program. If a state participates in the program, the state must comply with the requirements of...