Date: 06-17-2012
Case Style: Nadine Rogers v. Edward Redeemer Nursing Center
Case Number: CJ-2009-10257
Judge: Bryan C. Dixon
Court: District Court, Oklahoma County, Oklahoma
Plaintiff's Attorney: Gary B. Homsey, Joe Carson and Kevin E. Hill, Homsey, Cooper, Hill & Carson, Oklahoma City, Oklahoma, 405-843-9923
Defendant's Attorney: David K. McPhail and Danielle Fielding
Description: Oklahoma City Nursing Home Negligence Plaintiff Personal Injury Lawyers, Gary Homsey, Joe Carson and Kevin E. Hill represented Nadine Rogers in suing Edward Redeemer Nursing Center and Promise Redeemer, LLC claiming:
Parties. Jurisdiction and Venue
1. Nadine Rogers, Guardian of Josephine Tennyson, (“Plaintiff”) is a citizen of the State of Oklahoma and a resident of Oklahoma City, Oklahoma County, Oklahoma.
2. Josephine Tennyson, individually, is a citizen of the State of Oklahoma and a resident of Oklahoma City, Oklahoma County, Oklahoma.
3. Edwards Redeemer Nursing Center is a private nursing facility which conducts business in Oklahoma County, Oklahoma.
4. Upon information and belief, Defendant Promise Redeemer, LL C is the owner operator of Edwards Redeemer Nursing Center located at 1530 NE Grand Blvd, Oklahoma City, Oklahoma.
5. Jurisdiction and venue are both herein appropriate and proper.
Statement of facts
6. On or about June 21, 2009, Josephine Tennyson was admitted to the Emergency room at OU Medical Center located in Oklahoma City, Oklahoma by EMSA from Edwards Redeemer Nursing Center, located in Oklahoma City, Oklahoma due to injuries sustained from a fall at Defendant’s nursing facility.
First Cause of Action: Negligence
7. Plaintiffs incorporate paragraph five (5) above.
8. Defendant had a duty to provide medical and nursing care within reasonable professional medical and nursing standards to its residents, including Tennyson.
9. During Tennyson’s residence at Edwards Redeemer Nursing Center and Promise Redeemer, LLC, Defendants failed to provide reasonable professional medical ane nursing care to Tennyson.
10. During Tennyson’s residence at Edwards Redeemer Nursing Center in and Promise Redeemer, LLC, Tennyson suffered injuries as a result of Defendants negligent care.
11. These injuries to Tennyson resulted from acts, omissions or instrumentalities which were under the exclusive control and management of Defendants; these events causing Tennyson’s injuries were of a kind that do not occur in the absence of negligence on the part of care providers such as Defendant.
12. The acts, conduct and behavior of Defendants were so grossly negligent, performed knowingly, intentionally and with such willful disregard of the rights of Tennyson as to constitute fraud and oppression, by reason of which Plaintiffs are entitled to punitive damages, to the ‘n
Second Cause of Action: Breach of Contract
13. Plaintiffs incorporate paragraphs one (1) through eleven (12), above.
14. Defendants contracted with Tennyson to provide her reasonable nursing home care.
15. Defendants held themselves out as a provider of reasonable nursing home care.
16. Defendants were paid to provide Tennyson reasonable nursing home tare
17. Defendants breached its duty to Tennyson.
18. Defendants failed to provide Tennyson with a clean, safe and protective environment and further failed to provide Tennyson with appropriate care and treatment, and that as a result of their failure, Tennyson suffered neglect, abuse, severe personal injuries, reduction of her quality of life, and deterioration of her mental and physical condition, all of which collectively and/or individually directly and proximately caused and/or contributed to her health.
19. Tennyson was harmed by their breach man amount in excess of $10,000.00.
20. Tennyson is entitled to recovery of her actual damages, pie- and post-judgment interest, attorneys’ fees and costs associated with asserting this action.
Summary
21. As a result of Defendants conduct, Tennyson and her estate have been damaged in an amount in excess of $10,000.00, due to the conscious pain and suffering of Tennyson and her medical expenses.
22. The acts, conduct and behavior of Defendants were so grossly negligent, performed knowingly, intentionally and with such willful disregard of the rights of Tennyson as to constitute fraud and oppression, by reason of which Plaintiffs are entitled to punitive damages, to the extent authorized by the laws of the State of Oklahoma.
Relief Requested
Plaintiffs request this Court enter judgment in favor of Plaintiffs and against Defendants and assess damages, together with pre- and post-judgment interest, costs, attorney fees, punitive damages and such other relief as this Court may deem equitable and appropriate or allowed by law, ATTORNEY LIEN CLAIMED.
Defendants answered claiming;
I.
Each and every allegation in Plaintiffs’ First Amended Petition is denied, unless specifically admitted in this Answer.
II.
Defendant is without sufficient information or knowledge to admit or deny the allegations in paragraphs 1, 2, and 5 of Plaintiffs’ First Amended Petition.
III.
Defendant admits the allegations contained in paragraphs 3 and 4 of Plaintiffs’ First Amended Petition in so far as Defendant Promise Redeemer, L.L.C. is the entity licensed by the Oklahoma State Department of Health to conduct and maintain the nursing facility known as Edwards Redeemer Nursing Center located at 1530 N.E. Grand Boulevard, Oklahoma City, OK 73117. The remaining allegations contained in paragraphs 3 and 4 of Plaintiffs’ First Amended
Petition are denied.
IV.
Defendant admits the allegations contained in paragraph 6 of Plaintiffs’ First Amended Petition to the extent that Josephine Tennyson was transferred from Edwards Redeemer Nursing Center to O.U. Medical Center on or about June 21, 2009. The remaining allegations contained in paragraph 6 of Plaintiffs’ First Amended Petition are denied.
V.
Defendant denies the allegations contained in paragraphs 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22 of Plaintiffs’ First Amended Petition, including the prayer for relief which follows.
VI.
The allegations contained in paragraph 8 of Plaintiffs’ First Amended Petition constitute a legal conclusion which requires no response.
2. Plaintiffs’ claims against Defendant are barred in whole or in part by applicable statutes of limitation and/or the doctrine of laches and/or the doctrine of estoppel.
3. Plaintiffs’ claims are subject to the provisions of the Oklahoma Comprehensive Lawsuit Reform Act of 2009, Laws 2009, RB 1603, c. 228, § 2, effective November 1, 2009.
4. Defendant denies any negligence in the care and treatment of Josephine Tennyson during her residence as a patient at the subject nursing facility.
5. Defendant denies that any act or failure to act on the part of any agent, servant or employee of Defendant caused and/or contributed to any injury to the subject resident.
6. Defendant asserts that the subject resident’s injuries and/or medical conditions, if any, preexisted her admission to the facility or were proximately caused by the negligence of Plaintiffs, or of third parties over whom Defendant exercised no control.
7. Defendant asserts that Plaintiffs fail to state a claim upon which relief can be granted to the extent Plaintiffs seek relief premised upon a violation of Title XVIII or Title XIX of the Social Security Act [42 U.S.C.A. § 1395 & 1396 et seq. and their implementing regulations 42 C.F.R. § 483.1 et seq.], as they have no private right of action under the Act, nor do they have standing to assert a violation under the Act as sole responsibility for enforcement of the Act lies with federal (Department of Human Services) or state (Oklahoma State Health Department) officials.
8. Defendant denies the existence of any contract with the Plaintiffs the purpose of which was to provide to resident anything other than “ordinary care” of a type routinely provided in a nursing home setting.
9. To the extent an Admissions Agreement governing payment terms and conditions was created between the Plaintiffs, Defendant denies its breach in any fashion, and more specifically,
VII.
Since discovery has not begun, this defendant reserves the right to amend its answer in any particular.
ADDITIONAL DEFENSES
1. Plaintiffs have failed to state a claim upon which relief can be granted, either in whole or in part.
denies its breach as alleged by Plaintiffs in that the care and treatment the subject resident received was proper and consistent with the prevailing standard of care for such medical treatment.
2. Plaintiffs’ claims against Defendant are barred in whole or in part by applicable statutes of limitation and/or the doctrine of laches and/or the doctrine of estoppel.
3. Plaintiffs’ claims are subject to the provisions of the Oklahoma Comprehensive Lawsuit Reform Act of 2009, Laws 2009, RB 1603, c. 228, § 2, effective November 1, 2009.
4. Defendant denies any negligence in the care and treatment of Josephine Tennyson during her residence as a patient at the subject nursing facility.
5. Defendant denies that any act or failure to act on the part of any agent, servant or employee of Defendant caused and/or contributed to any injury to the subject resident.
6. Defendant asserts that the subject resident’s injuries and/or medical conditions, if any, preexisted her admission to the facility or were proximately caused by the negligence of Plaintiffs, or of third parties over whom Defendant exercised no control.
7. Defendant asserts that Plaintiffs fail to state a claim upon which relief can be granted to the extent Plaintiffs seek relief premised upon a violation of Title XVIII or Title XIX of the Social Security Act [42 U.S.C.A. § 1395 & 1396 et seq. and their implementing regulations 42 C.F.R. § 483.1 et seq.], as they have no private right of action under the Act, nor do they have standing to assert a violation under the Act as sole responsibility for enforcement of the Act lies with federal (Department of Human Services) or state (Oklahoma State Health Department) officials.
8. Defendant denies the existence of any contract with the Plaintiffs the purpose of which was to provide to resident anything other than “ordinary care” of a type routinely provided in a nursing home setting.
9. To the extent an Admissions Agreement governing payment terms and conditions was created between the Plaintiffs, Defendant denies its breach in any fashion, and more specifically,
10. Defendant asserts Plaintiffs have failed to assert a failure to perform (breach) by Defendant under the Admissions Agreement, but rather only an inadequate performance in that nursing home care and treatment was provided to the subject resident but at a level below her liking which is, in law, a claim of negligence based in tort, not contract.
11. Alternatively, Defendant asserts that the Plaintiffs failed to mitigate their damages as is their duty pursuant to the claim for breach of contract.
12. Defendant denies that it is liable for any punitive and/or exemplary damages. Defendant denies any act or failure to act on the part of any agent, servant or employee of Defendant in relation to the Plaintiffs sufficient to warrant the imposition of punitive damages.
13. Defendant asserts that any claim for punitive damages is preempted by the federal statutory and regulatory scheme related to nursing homes.
14. Defendant asserts Plaintiffs’ claim for punitive damages violates provisions of the
Oklahoma and U.S. Constitutions. For example, the imposition of punitive damages under
Oklahoma law would violate the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the
U.S. Constitution in each of the following ways:
(a) Oklahoma law permits the imposition of unlimited punitive damages that are vastly disproportionate to any acts or compensatory injury thereby violating the Fourteenth Amendment of the U.S. Constitution.
(b) Disproportionate punitive damages constitute an arbitrary and capricious taking of property which is unjustified by any rational governmental interests, thereby violating the Fifth and Fourteenth Amendments of the U.S. Constitution.
(c) The award of punitive damages without specific standards to guide the jury’s discretion in determining the amount of damages is contrary to due process under the Fourteenth Amendment of the U.S. Constitution.
(d) Oklahoma does not provide a reasonable limit on the amount of any punitive damages award, thus violating the Fourteenth Amendment of the U.S. Constitution.
(e) The substance of standards of liability under which punitive damages are sought in this case are ambiguous, subjective, and not reasonably ascertainable, fail to give Defendant prior notice of the conduct for which punitive damages may be imposed, and the severity of the penalty that may be imposed, and are “void for vagueness” under the Fourteenth Amendment of the U.S. Constitution.
(f) Oklahoma law fails to provide a clear, objective and consistent appellate standard for post-verdict review of punitive damages thus violating the Fifth and Fourteenth Amendments of the U.S. Constitution.
(g) Oklahoma law permits civil punishment upon a standard of proof less than required for the imposition of criminal sanctions.
(h) Oklahoma law permits multiple awards of punitive damages for the same alleged act or omission.
(i) Oklahoma law and procedures governing Plaintiff’s punitive damage claim violates the Fifth Amendment guarantee against self-incrimination under the U.S. Constitution because said claim is penal in nature, while defendant is required to disclose documents and/or other evidence against its interests under the rules of discovery and evidence.
(j) The procedural standards for imposing punitive damages are unduly vague and do not furnish the jury sufficient guidance in determining whether and how much to award punitive damages for the alleged tortious acts of the defendants and thereby permits arbitrary and capricious taking of property in violation of the due process clause of the Fifth and Fourteenth Amendments to the U.S. Constitution.
15. Moreover, any award of punitive damages in this case would be violative of Defendant’s procedural and substantive due process rights because circumstances in this case are insufficient to support the reasonableness of an award of punitive damages and there are inadequate legal and procedural constraints imposed on the fact finder’s discretion to impose such awards. The standard for punitive damages lacks sufficiently objective criteria and procedural safeguards to give a jury adequate criteria on an appropriate range of proportionality regarding punitive damages. Furthermore, post-trial procedures and standards for trial court scrutiny of punitive damages awards and standards for appellate review of punitive damages awards are insufficient, and, therefore, violate Defendant’s right to due process of law.
16. Plaintiffs’ claims for punitive damages against Defendant cannot be sustained, because an award of punitive damages under Oklahoma law which allows Plaintiffs to prejudicially emphasize the corporate status of Defendant violates Defendant’s due process and equal protection rights guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution, the Oklahoma Constitution, and would be improper under the common law and public policy of Oklahoma.
17. Plaintiffs’ claims for punitive damages against Defendant cannot be sustained because any award for punitive damages made under a process which fails to bifurcate the issue of punitive damages from the remaining issues would violate Defendant’s due process rights guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution ,the Oklahoma Constitution, and would be improper under the common law and public policy of Oklahoma.
18. As applied, 23 O.S. §9.1 is unconstitutionally vague and violates this Defendant’s right of procedural and substantive due process under the U.S. Constitution because Section 9.1 permits punishment for conduct that reasonable people could conclude was lawful.
19. Plaintiffs are not entitled to a trial by jury on the issue of punitive damages under the U.S. Supreme Court decision in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001).
20. To the extent Plaintiffs make any claim pursuant to The Nursing Home Care Act, 63
0. S. § 1-1901 et seq., for an award of attorneys fees, Defendant asserts that such a claim is not supported by applicable state law 63 O.S. § 1-1918(F) as amended and effective July 1,2003, and violates the equal protection provisions of the Oklahoma and U.S. Constitutions.
21. Plaintiffs’ claims are subject to the provisions of the Oklahoma Affordable Access to Health Care Act, effective July 1, 2003.
22. Plaintiffs have failed to comply with the expert opinion requirements of the Oklahoma Affordable Access to Health Care Act, 63 O.S. §1-1708.1E and 12 0.S. § 19(A).
23. Defendant raises the defense of lack of jurisdiction over the subject matter.
24. Defendant raises the defense of lack of jurisdiction over the person.
25. Defendant raises the defense of insufficiency of process.
26. Defendant raises the defense of insufficiency of service of process.
27. Defendant raises the defense of lack of capacity of a party to sue.
28. Plaintiffs are not proper parties to this suit.
29. This defendant is not a proper party to this suit.
30. The Plaintiffs’ injuries, if any, were caused by a pre-existing or post-developing unrelated medical condition, disease, illness or infection of the Plaintiffs for which this Defendant is not responsible.
31. Any damages allegedly suffered by Plaintiffs were caused by risks known and assumed by Plaintiffs and/or resident.
32. Plaintiffs lack standing to bring this action.
33. The Plaintiff’s injuries, if any, were the result of an unforeseeable or unavoidable complications due to an underlying condition of the Plaintiffs, which were not caused by the acts of Defendant.
34. The Plaintiffs’ injuries, if any, were caused by other, unrelated physical or mental or personal conditions of the Plaintiffs for which this defendant is not responsible.
35. The injuries alleged to have been sustained by Plaintiffs were the result of an intervening or supervening cause.
36. Plaintiff has failed to sufficiently establish the foundational facts necessary for application of the evidentiary doctrine of res ipsa loquitur.
37. Whereas discovery has not yet begun, Defendant reserves the right to plead additional defenses as information is made known to it.
WHEREFORE, having answered, Defendant Promise Redeemer, L.L .C. prays that Plaintiffs take nothing by way of their First Amended Petition, and for all other relief that this Court may deem just and appropriate.
Outcome: Settled and dismissed with prejudice.
Plaintiff's Experts:
Defendant's Experts:
Comments:
