Wicks v. Del. Veterans Home

• Docket Number: C. A. N21C-11-177 FJJ
• Decision Date: 24 August 2023
• Parties: TRENT WICKS, Individually and as Personal Representative of the ESTATE OF OAKLY POTTS, Plaintiff, v. DELAWARE VETERANS HOME, an Agency of the State of Delaware, DELAWARE DEPARTMENT OF STATE, STATE OF DELAWARE, TERRY HOLLINGER, SANDRA GROFF, and ARCHIE POLING, Defendants.
• Court: Delaware Superior Court

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TRENT WICKS, Individually and as Personal Representative of the ESTATE OF OAKLY POTTS, Plaintiff, v. DELAWARE VETERANS HOME, an Agency of the State of Delaware, DELAWARE DEPARTMENT OF STATE, STATE OF DELAWARE, TERRY HOLLINGER, SANDRA GROFF, and ARCHIE POLING, Defendants.

C. A. No. N21C-11-177 FJJ

Superior Court of Delaware

August 24, 2023

Submitted: August 22, 2023

On Defendants' Motion for Summary Judgment on Immunity

DENIED in part; GRANTED in part

Kelley M. Huff, Esquire, Shelsby & Leoni, Wilmington, Delaware Attorney for Plaintiff.

Caneel Radison-Blasucci, Deputy Attorney General, Attorney General's Office, Wilmington, Delaware, Attorney for Defendants.

OPINION AND ORDER

Francis J. Jones, Jr., Judge Oakly Potts ("Potts") was admitted to the Delaware Veterans Hospital ("DVH") in 2007 for long term care following a stroke. He required physical assistance for eating and a mechanically soft chopped diet. Despite his dietary restrictions he would often acquire and eat foods that did not conform with his diet. On December 2, 2019 Potts purchased pretzels from the DVH gift shop. Shortly after returning to his room, Potts used his call button to alert staff of his need for assistance. Potts was found sitting up in bed choking on a pretzel. DVH employees began life saving measures and called the paramedics. Potts was transferred to a hospital, where he passed later in the evening.

Trent Wicks, the son of Potts, has sued the DVH, the Delaware Department of State, the State of Delaware, Sandra Groff in her capacity as the Chief of Operations at DVH, Archie Poling as the Director of Nursing and Interim Nursing Home Administrator and Terry Hollinger as the Nursing Home Administrator at DVA. The claims are for personal injuries and wrongful death based on allegations of medical/nursing home malpractice. Defendants have filed the instant motion for summary judgment on the basis of sovereign immunity and the State Tort Claims Act ("STCA"). For the reasons stated below Defendants motion is GRANTED as to the State Agencies and DENIED as to the individual defendants.

STANDARD OF REVIEW

Summary judgment is appropriate when the record "shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law."^[1] The moving party bears the burden of establishing the nonexistence of material issues of fact.^[2] The burden then shifts to the nonmoving party to establish the existence of material issues of fact.^[3] In considering the motion, the Court must view the evidence in a light most favorable to the nonmoving party and accept the nonmovant's version of any disputed facts.^[4]

FACTS

When the facts are viewed in a light most favorable to the plaintiff as the nonmoving party, the following is revealed:

Terry Hollinger was the DVH Administrator from April of 2019 to November 2, 2019.^[5] Hollinger was a State of Delaware employee. He resigned his position with DVH.^[6]

Archie Poling was the Interim DVH Administrator from November 3, 2019 to February 5, 2020.^[7] Poling was initially the Director of Nursing at DVH, but he took over the Administrator position after Hollinger resigned. Poling relied on Hollinger to ensure policies and procedures were in place at DVH.^[8]

Groff was the Director of Operations at DH. She was a State of Delaware employee.^[9] Groff reported directly to the Administrator.^[10] As the Director of Operations, Groff was responsible for the oversite of the Gift Shop.

From 2011 until March 2020, DVH maintained a Gift Shop on the premises. Cindy Schnapp was the Volunteer Services Coordinator that oversaw the Gift Shop and she reported directly to Sandra Groff.^[11]

The DVH Gift Shop was owned by a non-profit volunteer group, Delaware Volunteers for Veterans. It was run, however, by volunteers that Schnapp staffed and trained. Schnapp trained the volunteers to follow DVH policies, including the policy that residents could purchase anything they wanted in the Gift Shop.^[12]

The DVH Gift Shop sold various food items, including hard pretzels, candy, and nuts.^[13] Residents were permitted to visit the Gift shop freely and independently. There were no procedures in place to prevent residents from buying foods that violated their dietary plans. The DVH policy was known by the Individual Defendants, each of whom were responsible for the safe operation of the Gift Shop.^[14]

DVH had dietary policies that governed the food and drinks served by DVH through its kitchen and at special events. These dietary policies restricted DVH from serving residents food and drinks that violated their dietary plans.^[15] For special events, DVH Activities staff had a list of dietary restrictions to ensure that residents were offered items consistent with their special diets.^[16] The Gift Shop volunteers were not given such a list, so they were unaware as to whether residents were making unsafe purchases.^[17] DVH contemplated providing dietary information to the Gift Shop volunteers but it was never done.^[18]

Potts was admitted to DVH for long-term care in 2007 following a stroke. As a result of his stroke, Potts had dysphagia (difficulty swallowing). DVH assessed Potts and devised a Care Plan to meet his needs.^[19] Potts' Care Plan indicated that he needed supervision and assistance while eating.^[20] DVH Recognized that Potts had difficulty chewing and swallowing his food and placed him on a mechanically soft/chopped diet.^[21]

On December 2, 2019, Potts wheeled himself down to the Gift Shop and purchased two bags of hard pretzels. Potts returned to his room where a CNA, Pamela Johnson, assisted him into bed, put some of the hard pretzels out on his food tray, and then left the room allowing him to eat the pretzels unsupervised. Johnson was not trained to know that hard pretzels violated Potts' mechanically soft/chopped diet or that Potts' Care Plan required her to supervise him while he ate the pretzels.^[22]

After Johnson left the room, Potts started choking on the hard pretzels. He rang his call bell for help. A nurse responded and started the Heimlich until paramedics arrived.^[23] Potts was transported to Bayhealth where he died later that night of cardiopulmonary arrest secondary to choking/food aspiration.^[24] He was 84 years old.

Plaintiff has identified two experts: Lance Youles, LNHA and John Kirby, M.D.^[25] Lance Youles is a nursing homes administration expert. . Youles opines, in part, that:

• Potts was completely dependent on DVH management and staff to provide a safe living environment and protect him from choking.

• DVH had a duty to control the food and fluids. Potts' had access to, especially after receiving prior notice of his choking risk.

• Defendants were responsible for managing DVH and ensuring that it was operated in compliance with all Federal, State, and local laws, regulations, and codes, and with accepted professional standards and principles that apply to staff in a long-term care facility.

• Defendants were aware that residents were freely permitted to purchase items at the Gift Shop that were unsafe and violated their special diets. Despite this knowledge, Defendants did nothing. Vulnerable residents like Potts were at risk.

• The standard of care required that the DVH Gift Shop operate within the same policies and/or procedures as the dietary department (kitchen). Those standards ensure that each resident is only served food that complies with their diet orders, as determined by their attending physician. These DVH policies must be applied equally in the kitchen and the Gift Shop, and not create a double standard that places residents at risk. Defendants were responsible for ensuring that these written DVH dietary policies were developed and implemented in the Gift Shop in order to keep residents safe by preventing them from acquiring food items that were inconsistent with their diet orders.

• Defendants failed to ensure that DVH provided sufficient nursing staff with the appropriate competencies to assure resident safety.

• Defendants' failures in their management of the DVH was an extreme departure from the nursing home standard of care and arises to willful, wanton, and reckless behavior.

Dr. Kirby is a geriatrician with experience working as an Attending and medical director in nursing homes. He opines, in part, that:

• Pretzels are not a mechanically soft food. Pretzels should not have been provided to him/allowed. Potts was demented and unable to make appropriate food choices.

• Failure to have a system in place to prevent Potts from purchasing and ingesting food that was not part of his mechanically soft/chopped solids diet deviated from generally accepted standards of medical care and violated federal OBRA regulations.

ANALYSIS

A fundamental premise of our system of law and government is that the State, its agencies and its employees, acting in their official capacities, are immune from civil liability. The doctrine of sovereign immunity provides that the State may not be sued without its consent.^[26] Such immunity may only be limited or waived by "act of the General Assembly.^[27] In order to overcome the State's sovereign immunity:

(1) the State must waive immunity; and (2) the State Torts Claims Act^[28] must not otherwise bar the action.^[29]

There are two means by which the State, through the General Assembly, may waive immunity: (1) by procuring insurance coverage under 18 Del.C. § 6511 for claims cited in the complaint;^[30] or (2) by statute which expressly waives immunity.^[31] Defendant has produced an affidavit of Debra Lawhead, who is the Insurance Coverage Administrator for the State of Delaware. Lawhead's affidavit adequately demonstrates that the State has not procured insurance coverage for the...