Simmons v. Simpson House, Inc.

• Decision Date: 12 December 2016
• Docket Number: CIVIL ACTION No. 15–06636
• Citation: 224 F.Supp.3d 406
• Parties: John SIMMONS, Plaintiff, v. SIMPSON HOUSE, INC. et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

224 F.Supp.3d 406

John SIMMONS, Plaintiff,

v.SIMPSON HOUSE, INC. et al., Defendants.

CIVIL ACTION No. 15–06636

United States District Court, E.D. Pennsylvania.

Signed December 12, 2016

Rhonda Hill Wilson, Law Office of Rhonda Hill Wilson, P.C., Philadelphia, PA, for Plaintiff.

Jeffrey W. McDonnell, Law Office of Peter A. Callahan, Mary Ellen Reilly, Post & Schell, P.C., Gary M. Samms, Michael Joseph Ryan, Obermayer Rebbmann Maxwell & Hippell LLP, Philadelphia, PA, John M. Skrocki, Christy L. Williamson, William J. Mundy, Burns White LLC, West Conshohocken, PA, Thomas L. Mueller, Lubell & Associates, LLC, King of Prussia, PA, for Defendants.

MEMORANDUM

PAPPERT, District Judge.

Ola Simmons moved into Simpson House Nursing Home because she was suffering from senile psychosis

and episodic incontinence. During her five-month residence there, she developed pressure sores, experienced excessive weight loss and contracted multiple infections. Ola was transferred to Prime–Roxborough Hospital where her condition continued to decline. After less than a month at Prime–Roxborough, she moved to Kindred Hospital. Ola died roughly two months later while in hospice care. Ola's son, John Simmons, filed this lawsuit alleging that Simpson House, Prime–Roxborough and Kindred neglected his mother and provided her substandard and negligent care, which exacerbated Ola's health problems and ultimately caused her death.

Simmons, in his own right and as the Administrator of Ola's estate, asserts claims of negligence, wrongful death and survival, and violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL") against Simpson House and Simpson House, Inc. ("Simpson House"), Prime Healthcare Services–Roxborough, LLC ("Prime–Roxborough") and Kindred Hospital–South Philadelphia and Kindred Healthcare Inc. ("Kindred"). Before the Court are motions to dismiss by Simpson House (ECF No. 47) and Prime–Roxborough (ECF No. 48).¹ For the reasons discussed below, the Court denies the motions to dismiss with respect to Counts 1, 2, 4, 5, 8, 9, 10, 11, and grants the motion with respect to Counts 3 and 18.

I.

A.

Ola Simmons was admitted to Simpson House on November 11, 2013 and was "totally dependent upon [the] staff for her mental, physical, psycho-social and medical needs." (2d Am. Compl. ¶¶ 3, 14.) Ola did not have any skin abnormalities upon admission. (Id. ¶ 17.) Simpson House, however, made no plans to protect the integrity of Ola's skin or prevent skin breakdown and failed to perform weekly skin assessments in a manner consistent with professional standards of care. (Id. ¶¶ 18–19.) Ola subsequently developed pressure sores which Simpson House failed to properly document. (Id. ¶ 20.) Simpson House also allegedly failed to prevent Ola from falling out of her bed. (Id. ¶¶ 21–22.)

On April 9, 2014 Ola's records showed that she had experienced a 9.4 % weight loss over the course of one month. (Id. ¶ 25.) John Simmons contends Simpson House failed to assess, monitor and treat his mother's condition in violation of federal and state nursing home regulations. (Id. ) On April 13, 2014 Ola was transferred from Simpson House to Prime–Roxborough Hospital. (Id. ¶ 26.) At the time of her admission to Prime–Roxborough, Ola was diagnosed with numerous medical issues, various infections and an acute kidney injury related to dehydration. (Id. ) Simmons contends that his mother did not have any of these conditions prior to her admission at Simpson House. (Id. ) Prime–Roxborough admitted Ola to the intensive care unit where she received a tracheostomy

and a PEG tube to help with nutrition and oxygen therapy. (Id. ¶¶ 28–29.)

From April 14 to April 19, 2014, Prime–Roxborough did not treat Ola's pressure sores. (Id. ¶¶ 31–36.) By April 19, she had developed a Stage I pressure sore on her sacrum and coccyx area and superficial reddening of the skin. (Id. ¶ 37.) Two days later a nurse observed for the first time that Ola had a "skin tear with edema or swelling to her right lateral extremity." (Id. ¶ 40.) Ola's pressure sores grew larger and more severe during her stay at Prime–Roxborough. (Id. ¶¶ 41–57.)

On May 5, 2014 Ola was transferred from Prime–Roxborough to Kindred for "sub acute care and rehabilitation." (Id. ¶ 59.) There was no mention of her leg wound

in her discharge papers. (Id. ) Although Kindred diagnosed Ola's sacral wounds as Stage II on May 5, they did not "treat, assess or evaluate" those wounds until May 8, 2014. (Id. ¶ 60.)

On June 10, 2014 Ola went into cardiac arrest

during a transfer from Kindred to another facility. (Id. ¶ 76.) Ola recovered and remained at Mercy Suburban Hospital until June 17, 2014, when she was discharged for ventilator management. (Id. ¶ 77.) Ola's diagnosis at discharge was extensive and included malnutrition and pneumonia in addition to pressure sores on her lower exterminates and sacral region. (Id. ¶ 78.) She was transferred to Aristacare at Meadow Springs where she died on July 12, 2014 from "respiratory failure and atrial fibrillation

." (Id. ¶ 79.)

B.

John Simmons filed his original complaint on December 15, 2015 against Simpson House, Solis Healthcare, LLC² and Prime–Roxborough, alleging negligence, wrongful death and survival. (ECF No. 1.) Defendants filed motions to dismiss the complaint for failure to state a claim. (ECF Nos. 6 & 14.) On April 21, 2016 the Court granted the motions but allowed Simmons leave to file an amended complaint. (ECF No. 26.)

Simmons filed an amended complaint against Simpson House and Prime–Roxborough on May 23, 2016. (ECF No. 29.) On June 8, 2016 Simpson House filed a motion to dismiss the amended complaint, in part because Simmons failed to join an indispensable party—Kindred. Two days later, Simmons filed a "Petition to Amend/Correct Caption and Complaint" and specifically sought to join Dr. Waheeda Ali and Kindred as new defendants. (ECF No. 31.)³

On June 30, 2016 the Court denied Simmons's Petition. It directed Simmons to seek Defendants' consent or to file a proper motion for leave to amend. (ECF No. 36). On July 8, 2016 Simmons moved for leave to file an amended complaint under Rule 15. (ECF No. 37.) The Court granted Simmons's motion on July 28, 2016, (ECF Nos. 31–4 & 31–5), and deemed the amended complaint filed as of the same date. (ECF No. 45.) This amended complaint is Simmons's second amended complaint, and it is the operative complaint before the Court.⁴

II.

To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (citation omitted). While a complaint need not include detailed facts, it must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

Twombly and Iqbal require the Court to take three steps to determine whether the second amended complaint will survive Defendants' motion to dismiss. See Connelly v. Lane Const. Corp. , 809 F.3d 780, 787 (3d Cir. 2016). First, it must "take note of the elements the plaintiff must plead to state a claim." Id. (quoting Iqbal , 556 U.S. at 675, 129 S.Ct. 1937 ). Next, it must identify the allegations that are no more than legal conclusions and thus "not entitled to the assumption of truth." Id. (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ). Finally, where the complaint includes well-pleaded factual allegations, the Court "should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ).

This "presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face." Schuchardt v. President of the United States , 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). "Conclusory assertions of fact and legal conclusions are not entitled to the same presumption." Id. This plausibility determination is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (quoting Connelly , 809 F.3d at 786–87 ).

This plausibility standard, however, "does not impose a heightened pleading requirement" and does not require a plaintiff to plead specific facts. Id. In other words, "courts cannot inject evidentiary issues into the plausibility determination." Id. The Third Circuit has also made it clear that "at least for purposes of pleading sufficiency, a complaint need not establish a prima facie case in order to survive a motion to dismiss" because a "prima facie case is an evidentiary standard, not a pleading requirement and hence is not proper measure of whether a complaint fails to state a claim." Connelly , 809 F.3d at 789 (internal quotations and citations omitted). Instead, a plaintiff should plead "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary elements." Id. (quoting Phillips v. Cty. of Allegheny , 515 F.3d 224, 234 (3d Cir. 2008) ).

III.

Simmons asserts common law negligence claims against Simpson House and Prime–Roxborough under vicarious liability, direct liability and negligence per se theories. "To prove negligence, a plaintiff may proceed against a defendant on theories of direct and vicarious liability, asserted either concomitantly or alternatively." Scampone v. Highland Park Care Ctr., LLC , 618 Pa. 363, 57 A.3d 582, 597 (2012). "Liability for negligent injury is direct when the plaintiff seeks to hold the defendant responsible for harm the defendant caused by...