Brown v. MedScope Am. Corp.
| Docket Number | 4:21-CV-71 (CDL) |
| Decision Date | 29 August 2023 |
| Parties | ERIC BROWN, Individually and as Administrator of the Estate of Loretta Lewis, Plaintiff, v. MEDSCOPE AMERICA CORPORATION and AVANTGUARD MONITORING CENTERS, LLC, Defendants. |
| Court | U.S. District Court — Middle District of Georgia |
Plaintiff's mother, Loretta Lewis, subscribed to MedScope America Corporation's personal emergency response system. While at home alone, Lewis could not breathe, so she activated the system. Although an emergency response system operator responded to her call and asked the local 911 service to dispatch an ambulance, the emergency response system operator did not notify the local 911 service or Lewis's emergency contacts when she lost contact with Lewis; the operator also failed to tell the local 911 service that Lewis was home alone with the doors locked. The paramedics had to wait for a fire crew to access the house, delaying emergency treatment by at least eighteen minutes. Lewis went into cardiac arrest and died three days later.
Plaintiff brought this action against MedScope under Georgia's Fair Business Practices Act and Georgia's Unfair and Deceptive Practices Towards the Elderly Act. He also asserts negligence claims against MedScope and the company it contracted with to monitor Lewis's alert system, AvantGuard Monitoring Centers, LLC. Defendants seek summary judgment on all of Plaintiff's claims. As discussed below, genuine fact disputes exist on all of Plaintiff's claims, so the Court denies both summary judgment motions (ECF Nos. 52 & 57).
Summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment drawing all justifiable inferences in the opposing party's favor. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.
Viewed in the light most favorable to Plaintiff and drawing all reasonable inferences in his favor, the record reveals the following facts.
Loretta Lewis suffered from chronic obstructive pulmonary disease which her medical providers managed with breathing treatments like an inhaler and supplemental oxygen. Because of her medical condition, which substantially limited her major life activities, Lewis and her family were concerned that Lewis might have a medical emergency if she was left at home alone. During a 2019 medical appointment, a nurse recommended that Lewis consider obtaining a medical alert device. Lewis and her son, Eric Brown (“Eric”) researched different medical alert device systems on the internet. Eric found a website and YouTube video for MedScope's medical alert systems. MedScope provides medical alarm pendants to its subscribers, most of whom are elderly and/or disabled. Smith Dep. 97:18-98:5, ECF No. 71. MedScope asserts that it is not a “direct to consumer” agency and that it only directs its marketing to healthcare agency case managers who refer their patients to MedScope-not to potential subscribers. But it is undisputed that MedScope's website and YouTube video are available to the general public.
Eric and Lewis watched a video that MedScope posted to YouTube in 2013. The video's description tells viewers: Pl.'s Resp. to Defs.' Mot. Summ J. Ex. 1, Screenshot of YouTube Landing Page, ECF No. 79-3 at 2.[1] In the video, a white-haired lady falls and activates a medical alert pendant, which causes a device in her home to beep. Pl.'s Resp. to Defs.' Mot. Summ. J. Ex. 1, MedScope Personal Emergency Response Systems Video, ECF No. 79-3 (). An operator identifying herself as “MedScope America” immediately responds and asks the lady if she is all right. Id. The lady says that she fell and thinks she broke her arm, and the operator replies, “we'll send someone immediately, and we'll contact your physician.” Id. The video then states that a “MedScope Emergency Response System” allows people with medical or age-related concerns “to get help at once in the case of an emergency,” and it explains how a user can install and test the system. Id. It further states, Id. The video states that viewers with questions should contact MedScope via telephone. Id. Nothing on the landing page or in the video states that the video is only for case managers or that potential MedScope subscribers should not watch or rely upon it.
Lewis and Eric also reviewed a “Frequently Asked Questions” document on MedScope's website. The FAQ states: “Calls are answered by our 9-1-1 certified response operators who dispatch help as needed.” Pl.'s Resp. to Defs.' Mot. Summ. J. Ex. 2, Information About MedScope's PERS Devices and Services 2, ECF No. 80-4 [hereinafter MedScope FAQs].[2] It also states that the “response operators are located at monitoring centers in North Carolina and Utah,” that emergency personnel “are dispatched from local first responder organizations,” and that “If our operator cannot establish communication, we will dispatch help and notify emergency contacts.” Id.
Based on their review of the YouTube video and MedScope's website, Lewis and Eric decided that Lewis should obtain a medical alert pendant from MedScope. Lewis worked with a case manager from a local healthcare provider to obtain a MedScope pendant using her Medicaid benefits. On August 19, 2019, Lewis signed a subscriber agreement with MedScope for a mobile pendant personal emergency response system. The agreement stated that MedScope would provide continuous, two-way voice monitoring of signals from Lewis's pendant. Pl.'s Resp. to Defs.' Mot. Summ. J. Ex. 10, MedScope Agreement 1-2, ECF No. 79-12 at 3-4. It further stated, “Upon receiving a signal from the PERS, MedScope shall use reasonable efforts to orally notify the appropriate emergency agency or other persons designated on the Client's Subscriber forms, by telephone, advising of the existence and nature of such signal.” Id. at 2, ECF No. 79-12 at 4. The agreement lists Lewis's emergency contacts as her son Eric and her granddaughter Tiffany Brown, and it contains their phone numbers. Id. at 1, ECF No. 79-12 at 3. Defendants note that a subscriber can provide information about how to access the subscriber's premises, although they acknowledge that neither the referral sent by Lewis's case manager nor the subscriber agreement contained such information.
Under the subscriber agreement, MedScope reserved “the right to appoint an agent to perform its monitoring service obligations.” Id. at 2, ECF No. 79-12 at 4.. MedScope entered a “Dealer Agreement” with AvantGuard, under which AvantGuard agreed to provide monitoring services for MedScope's subscribers. Bailey Decl. Ex. A, Dealer Agreement § 1, ECF No. 52-3 at 7. The agreement provides that AvantGuard shall “monitor Signals received from [the MedScope subscriber's] System 24/7.” Id. § 6(b). When it receives a “Signal from a Subscriber's System,” AvantGuard “shall make commercially reasonable efforts to transmit notification of the Signal promptly to the First Responders and the persons whose names, telephone numbers, e-mail, SMS and other electronic addresses are set forth on the notification instruction received by AvantGuard as to each Subscriber.” Id.
When a MedScope subscriber presses the button on her medical alert pendant, MedScope connects the device to AvantGuard's call center and provides AvantGuard with any information that the subscriber has provided to MedScope (e.g., name, address, and emergency contact information). AvantGuard operators are instructed to state that they are with MedScope and ask the subscriber what kind of assistance they need. AvantGuard then contacts the subscriber's local 911 center, and the local 911 center dispatches first responders. The AvantGuard operator typically waits on the line with the subscriber until help has arrived, then the operator notifies the subscriber's emergency contacts.
On December 11, 2019, Lewis was home alone with the doors locked. She pushed the button on her medical alarm device at 11:42:08 A.M. At 11:43:16 A.M., Lewis was connected with an AvantGuard operator, Naomi Greenig, over the two-way communication system. The present record does not contain any details about the call; although AvantGuard has a practice of recording all calls and retaining all recordings, it lost the recording of Lewis's call. Greenig had been instructed to state that she was with MedScope. She answered Medscope alarm calls by stating that she was with Medscope and asking if the subscriber needed help. Greenig was able to access Lewis's account, which contained Lewis's address and the names of her emergency contacts.[3]
Greenig who was not a certified 911 operator, entered the following information on her log: “Help is Needed - Medical Emergency,” “can't breathe,” and Lewis's address. Pl.'s...
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