Smith v. Ausable Valley Community Mental Health

• Decision Date: 16 May 2006
• Docket Number: No. 05-71194.,05-71194.
• Parties: Mary L. SMITH, Personal Representative of the Estate of Rose Mary Washam, Deceased, Plaintiff, v. AuSABLE VALLEY COMMUNITY MENTAL HEALTH SERVICES, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

431 F.Supp.2d 743

Mary L. SMITH, Personal Representative of the Estate of Rose Mary Washam, Deceased, Plaintiff, v. AuSABLE VALLEY COMMUNITY MENTAL HEALTH SERVICES, Defendant.

No. 05-71194.

United States District Court, E.D. Michigan, Southern Division.

May 16, 2006.

COPYRIGHT MATERIAL OMITTED

Joseph F. Lucas, Skupin & Lucas, Detroit, MI, for Plaintiff.

Patrick A. Aseltyne, Johnson, Rosati, Lansing, MI, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFEDANT'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [33]

EDMUNDS, District Judge.

At a hearing held on May 10, 2006, this matter came before the Court on Defendant Au Sable Valley Community Mental Health Services ("AVCMHS")'s motion for dismissal and/or summary judgment, brought pursuant to Rules 12(b)(1), 12(b)(6), and 56(c) of the Federal Rules of Civil Procedure. Plaintiff Mary L. Smith, personal representative of the estate of Rose Mary Washam, deceased, filed this action against Defendants Au Sable Valley Community Mental Health Services, Judith Ann Muller (formerly Schomaker, hereinafter "Judy Muller"), and Emerson Electric. Co. on March 28, 2005. On April 15, 2005, this Court declined to exercise supplemental jurisdiction over Plaintiff's state-law claims. Thus, the sole remaining claim before this Court is Plaintiff's claim brought under 42 U.S.C. § 1983, alleging a substantive due process violation. For the reasons discussed below, Defendant's motion is GRANTED IN PART AND DENIED IN PART.

I. Facts

Au Sable Valley Community Health Services ("AVCMHS") is a governmental entity that operates a residential community mental health program which provides services to emotionally disturbed and developmentally disabled individuals. AVCMHS operates several adult foster care homes which are funded, in principal part, by the Medicaid program. (Pl.'s Compl. ¶ 9.)

AVCMHS operates the River Bend Adult Foster Care (AFC), a six bed adult foster care home, located at 4501 East 41, Oscoda, Michigan. (Id. at ¶ 11.)

Plaintiffs decedent, Rose Mary Washam, was a 58-year old client of AVCMHS from 1987 until her death on January 7, 2003. (Pl.'s Compl. ¶ 12.) She came to AVCMHS from an institutional setting and resided in another AVCMHS group home before arriving at River Bend in the early 1990's. (Id.)

Due to her profound retardation, seizure disorder, and major depression, AVCMHS had determined that Washam required "physical assistance in all areas of self care." (Id. at ¶ 13.) AVCMHS' Person-Centered Plan regarding Washam, dated October 3, 2002, provides that "she was never married, has no family history, and comes from an institutional setting." (Pl.'s Ex. 3 at ¶ 6.) It states that she "requires physical assistance in all areas of self-care ...", is "often unwilling to participate .... [and] also has significant health and safety concerns that require direct supervision and assistance." (Id. at ¶ 5.) It describes Ms. Washam as "nonverbal but ... able to communicate with those individuals that are familiar with her through her gestures and also, at times, with self abusive responses. Rose will also use guttural sounds that usually indicate a negative response to a situation." (Id. at ¶ 9.) also expressly states that "Rose Mary requires direct supervision with bathing." (Pl.'s Ex. 3 at ¶ 18.)

On January 7, 2003, Judy Muller, an AVCMHS employee at River Bend, gave Washam a shower. Muller was the shift leader that day. (Pl.'s Ex. 5, Bricker Dep. at 32.) Muller testified at her deposition that prior to showering Washam she had warned another employee "to be careful with the water ... [because] it feels warmer than usual." (Pl.'s Ex. 4, Muller Dep. at 90.) She was warning the other employee "[s]o she wouldn't get burned or burn someone else ..." (Id., Muller Dep. at 92.) She realized that the water was hot enough to burn someone. (Muller Dep. at 93.)

The other employee, Nancy Bricker, testified that while preparing breakfast at about 8:45 a.m. on January 7, 2003, she discovered that the water in the house was exceptionally hot, advised Muller, who was in the kitchen with her using a washcloth to wipe off a client's face that the water was "exceptionally hot", and Muller replied that she "thought it was hot also." (Bricker Dep. at 33-34.) Bricker further testified that the water was getting increasingly hotter. (Bricker Dep. at 35.) At approximately 9:15 a.m., after this conversation took place, Muller left the room to give Rose Washam a shower. (Id.)

Plaintiff alleges that due to a mechanical failure, the hot water at River Bend reached 176 degrees that day. (Pl.'s Compl. ¶ 21.) Plaintiff further alleges that, because of her mental and physical limitations, Rose Mary Washam was at high risk for scalding from the exceptionally hot water due to her complete dependency on the staff for her care, her inability to speak, and her lack of safety awareness. (Id. at ¶ 14.)

During her shower, Rose Mary Washam suffered extensive second and third degree burns over more than 70% of her body from exposure to hot water. (Pl.'s Ex. 6, Autopsy Report at 3.) Ms. Washam died at Hurley Medical Center on February 3, 2003, as a result of complications from her burns. (Id.)

Muller's manner of showering Washam is in dispute. (Def.'s Resp. 2; Pl.'s Mot. at 6). Defendant argues (without evidentiary support) that Muller checked the water temperature prior to rinsing Washam, but the boiler's mechanical failure caused the hot water to rapidly increase in temperature. (Def.'s Resp. at 2.) Based on his review of the medical records, depositions, and other documentary evidence related to this case, Plaintiffs long-term care expert, Lance Youles, disputes this version of events. He opines that Muller was not adequately supervising or showering Washam at all times during the shower, and attributes Washam's death to AVCMHS's negligent failure to provide Washam with a safe environment. (Pl.'s Ex. 8, Youles Aff. ¶ 23.g., ¶ 25.)

In his affidavit, Mr. Youles recounts that, during Ms. Washam's shower, Ms. Bricker and another resident heard Ms. Washam making loud noises. Ms. Washam was heard crying after the shower. (Id. at ¶ 17.) In her January 7, 2003 statement, Ms. Bricker indicated that the shower took place at 9:15 a.m. and she was surprised when the water was turned off at 9:20 a.m., and she noted that Rose hollered a lot, which was her way of voicing discomfort/displeasure. Ms. Bricker then recalled Judy Muller coming out to the kitchen, getting the phone, and going back into the bathroom where Ms. Washam was located. Shortly after that, Judy Muller came back out to the kitchen and mentioned that she burned Rose Washam, that she didn't know what to do, and that she had called the nurse. (Id.)

Ms. Muller's January 8, 2003 statement indicates that, after the shower, she helped Rose Washam out of the shower, that Ms. Washam was crying and her skin was pink. Ms. Muller did not see that her skin was peeling until she started to dry her off. She realized then that Rose Washam had been burnt by the water and called the nurse right away. (Id.)

The AVCMHS nurse arrived at River Bend within about 3 minutes after being called. In her deposition, she testified that Rose Washam was crying and slapping the side of her face, that she had several layers of skin peeled back on her face toward her ears, that her shoulders were pure white, and her legs were red and had skin peeled off. Judy Muller told the nurse that she had treated Ms. Washam's face with "Neosporin" after the shower. The nurse told the River Bend staff to get an ambulance. The ambulance arrived within 5 to 7 minutes. (Id.)

Rose Washam was transported to St. Joseph Hospital in Tawas for treatment. Shortly after her admission, she was transferred to Hurley Medical Center in Flint, Michigan. She died at Hurley Medical Center on February 3, 2003. (Id. at ¶¶ 18-19.)

II. Standard of Review

A. Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. In a light most favorable to the plaintiff, the court must assume that the plaintiffs factual allegations are true and determine whether the complaint states a valid claim for relief. See Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Bower v. Federal Express Corp., 96 F.3d 200, 203 (6th Cir.1996); Forest v. United States Postal Serv., 97 F.3d 137, 139 (6th Cir.1996).

This standard of review "`requires more than the bare assertion of legal conclusions.'" In re Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir.1997) (quoting Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.1995)). The complaint must include direct or indirect allegations "respecting all the material elements to sustain a recovery under some viable legal theory." See In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir. 1993) (citations omitted). A court should not grant a 12(b)(6) motion unless the movant shows "beyond doubt that the plaintiff can prove no set of facts in support of his claim." Conley v. Gibson, 355 U.S. 41, 45-46 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Court's function "is not to weigh `the evidence or assess the credibility of witnesses but rather to examine the complaint and determine whether the plaintiff has pleaded a cognizable claim." Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 452 (6th Cir.2003) (internal citations omitted).

B. Motion for Summary Judgment

Summary judgment is appropriate only when there is "no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The central inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56(c) mandates summary judgment against a party who fails to establish the existence of...