Schlaybach v. Berks Heim Nursing & Rehab.

• Decision Date: 22 January 2020
• Docket Number: No. 5:19-cv-3044,5:19-cv-3044
• Citation: 434 F.Supp.3d 342
• Parties: Robert D. SCHLAYBACH, Individually and as the Administrator of the Estate of Katherine E. Schlaybach, Deceased, Plaintiff, v. BERKS HEIM NURSING & REHABILITATION ; County of Berks; County of Berks, Berks Heim Nursing & Rehabilitation ; and Terrence J. Brennan, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

434 F.Supp.3d 342

Robert D. SCHLAYBACH, Individually and as the Administrator of the Estate of Katherine E. Schlaybach, Deceased, Plaintiff,

v.BERKS HEIM NURSING & REHABILITATION ; County of Berks; County of Berks, Berks Heim Nursing & Rehabilitation ; and Terrence J. Brennan, Defendants.

No. 5:19-cv-3044

United States District Court, E.D. Pennsylvania.

Filed January 22, 2020

Anthony S. Pinnie, Kenneth R. Schuster and Associates, Justin Bernstein, Schuster & Association PC, Media, PA, for Plaintiff.

Adam J. Fulginiti, William Lance Banton, Jr., Marshall Dennehey Warner Coleman & Goggin, Philadelphia, PA, for Defendants.

O P I N I O N

Defendants' Motion to Dismiss for Failure to State a Claim—GRANTED

Joseph F. Leeson, Jr., United States District Judge

I. INTRODUCTION

This case arises out of the death of Katherine E. Schlaybach ("the decedent"), a resident of Berks Heim Nursing and Rehabilitation, a nursing home owned and managed by Berks County, Pennsylvania. Plaintiff, Robert D. Schlaybach, Individually and as the Administrator of the Estate of Katherine E. Schlaybach, Deceased ("Plaintiff"), contends the acts and omissions of Defendants Berks Heim Nursing and Rehabilitation ("the facility"), the County of Berks ("the County"), and Terrence Brennan ("Brennan"), the facility's administrator, resulted in the decedent suffering a fall and subsequently passing away. Plaintiff asserts claims for negligence and wrongful death, as well a claim for violation of the decedent's federal constitutional and statutory rights.

Defendants move to dismiss the Second Amended Complaint ("SAC"), ECF No. 7, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a viable claim. See generally Defs.' Mem., ECF No. 9. For the reasons set forth below, Defendants' motion to dismiss the SAC is granted, and the SAC is dismissed.

II. BACKGROUND

A. Facts Alleged in the Second Amended Complaint

The following facts are drawn from the SAC and are accepted as true, with all reasonable inferences drawn in Plaintiff's favor. See Lundy v. Monroe Cty. Dist. Attorney's Office , No. 3:17-CV-2255, 2017 WL 9362911, at *1 (M.D. Pa. Dec. 11, 2017), report and recommendation adopted , 2018 WL 2219033 (M.D. Pa. May 15, 2018). Importantly, the following recitation does not include conclusory assertions or legal contentions. Although both are prevalent in the SAC, neither need be considered by the Court in determining the viability of Plaintiff's claims. See Brown v. Kaiser Found. Health Plan of Mid-Atl. States, Inc. , No. 1:19-CV-1190, 2019 WL 7281928, at *2 (M.D. Pa. Dec. 27, 2019).

The SAC avers that Defendants held themselves out as specialists in the field of adult nursing care with the expertise necessary to maintain the health and safety of persons unable to care for themselves. SAC ¶ 13. As a result, the decedent was transferred into the Defendants' care on April 27, 2017, where she remained until the fall which resulted in her death. Id. ¶¶ 12, 15. At the time the decedent was transferred to their care, Defendants knew she suffered from Alzheimer's disease

, dementia, and ambulation dysfunction, and required assistance with all of her daily functions. Id. ¶¶ 17-18. This included one person for assistance when the decedent would attempt to stand or walk. Id. ¶ 18. According to the SAC, despite knowing that the decedent required fall-prevention alarms in order to avoid foreseeable and preventable falls, Defendants failed to utilize such alarms, and generally failed to utilize basic fall-prevention measures. Id. ¶¶ 19, 21.

In June 2017, the decedent began demonstrating increased restlessness and unassisted attempts to stand from her wheelchair. SAC ¶ 20. On July 3 and 5, 2017, she attempted to stand from her wheelchair unassisted. Id. ¶ 22. On July 6, 2017, at approximately 6:41 p.m., the decedent stood up from her wheelchair and fell onto the floor, injuring herself. Id. ¶ 24. The SAC contends that basic fall-prevention measures were not in place at the time of the decedent's fall. Id. ¶¶ 23-24. Immediately after her fall, the decedent complained of pain in her right hip and leg. Id. ¶ 25. According to the SAC, instead of taking reasonable action to evaluate her condition or seek appropriate medical treatment, Defendants simply placed the decedent in her bed. Id. ¶¶ 25-26.

Throughout the night, the decedent continued to express pain in her right leg. SAC ¶ 27. At 2:31 a.m. on July 7, 2017, Defendants' nursing staff evaluated the decedent and noticed that her right leg was larger than her left leg and that Tylenol

given for pain was ineffective. Id. ¶ 28. Despite this observation, according to the SAC, Defendants failed to properly document her declining condition, and failed to contact a physician or seek appropriate medical treatment for the decedent until approximately 10:00 a.m. Id. ¶¶ 29-30. At that time, emergency medical personnel arrived at the facility and transported the decedent to the emergency room at Reading Hospital. Id. ¶¶ 30-31. It was there she was diagnosed with a right hip fracture and significant gastrointestinal bleeding. Id. ¶ 31. On July 10, 2017, the decedent passed away. Id. ¶ 32. The cause of her death was GI Bleeding, Hip Fracture, and Chronic Atrial Fibrillation. Id. ¶ 33.

Plaintiff avers that Defendants and their agents, officers, servants, and employees, failed, refused, and/or neglected to perform their duties to provide reasonable and adequate health care to the decedent. SAC ¶ 16. Specifically, Defendants failed to update the decedent's plan of care when her medical condition indicated an ongoing and increasing risk of falls, failed to recognize the decline in her ability to safely ambulate and to assist her accordingly, and failed to recognize she was injured even after they knew she had fallen. Id. Their failure to fulfill their duties, according to the SAC, resulted in the decedent's death. Id. ¶¶ 34-35, 41-44.

Plaintiff additionally alleges that the decedent's fall resulted from "dangerous and defective personal property as defined by 42 Pa. C.S. § 8542, specifically, the dangerous, defective, broken and/or inoperable wheelchair being used by [the decedent]...which failed to prevent [her] from standing and falling." SAC ¶ 45. Similarly, the SAC alleges that "[t]he records of Defendants were not complete and properly maintained by their staff and employees so as to accurately and completely disclose the condition of Plaintiff's Decedent and her health, symptoms[,] and other illness indications for evaluation and intervention." Id. ¶ 47.

Based on these allegations—and many more which are not recited here owing to their conclusory nature—Plaintiff purports to assert the following causes of action:¹

negligence, against all Defendants (Count I); violation of the decedent's federal civil rights pursuant to 42 U.S.C. § 1983, against all Defendants (Counts II and III); "vicarious liability," against all Defendants (Count IV); "corporate liability," against all Defendants (Count V); wrongful death, against all Defendants (Count VI); and a "survival action," against all Defendants (Count VII). SAC ¶¶ 55-119.

B. Procedural Background

Plaintiff filed the initial Complaint in this matter in the Berks County Court of Common Pleas on or about April 24, 2019. See ECF No. 1. On June 18, 2019, Plaintiff filed an Amended Complaint, which, unlike the initial Complaint, asserted federal causes of action. See ECF No. 9, Ex. A. On July 12, 2019, the case was removed to this Court. See ECF No. 1. Shortly thereafter, on July 22, 2019, this Court approved a stipulation allowing Plaintiff to file a (second) Amended Complaint, which was subsequently filed on August 8, 2019, and modified on August 9, 2019. See ECF Nos. 5-7. The Second Amended Complaint remains the operative pleading in this case. On August 22, 2019, Defendants filed the instant motion to dismiss. See ECF No. 9. Plaintiff filed a response in opposition to the motion on September 5, 2019, see ECF No. 10, and Defendants filed a reply in further support of their motion on September 12, 2019, see ECF No. 11.

III. STANDARD OF REVIEW

In Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court clarified the appropriate civil action pleading standard and set forth a two-step approach to be utilized in deciding a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. First, district courts are to "identify [ ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679, 129 S.Ct. 1937 ; see id. at 678, 129 S.Ct. 1937 ("A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ " (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) )); Thourot v. Monroe Career & Tech. Inst. , No. CV 3:14-1779, 2016 WL 6082238, at *2 (M.D. Pa. Oct. 17, 2016) (explaining that "[a] formulaic recitation of the elements of a cause of action" alone will not survive a motion to dismiss). Though "legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. Second, if a complaint contains "well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937. This standard, commonly referred as the "plausibility standard," "is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly , 550 U.S. at 556-57, 127 S.Ct. 1955 ). It is only where the "[f]actual allegations...raise a right to relief...