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Date: 06-06-2013

Case Style: Virginia Tomshany v. Peak Medical Oklahoma No. 5 d/b/a Woodland View Care and Rehabilitation

Case Number: CJ-2012-1143

Judge: Dana Kuehn

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Robert L. Rode

Defendant's Attorney: Margaret Mary Clarke and Angela Leann Lloyd-Smoot

Description: Virginia Tomshany, as personal representative of the Estate of Judith Ann Gaston, deceased, sued Peak Medical Oklahoma No. 5, Inc. d/b/a Woodland View Care and Rehabilitation; Sun Healthcare Group, Inc. d/b/a Woodland View Care and Rehabilitation; James Beymer, D.O.; Karin Johnson, D.O.; Vishal Aggerwal, M.D. and Steve Johnson on medical negligence (medical malpractice) theories claiming:

1. At all times relevant hereto, DecedentJudith Ann Gaston (hereinafter “Decedent”) was a resident of the long-term nursing care facility known as Woodland View Care and Rehabilitation located in Tulsa, Oklahoma.

2. Defendant Peak Medical Oklahoma No. 5, Inc., and Defendant Sun Health Care
Group, Inc., are hcensed to, and do operate as Woodland View Care and Rehabilitation. Said
Defendants stand to profit or to lose from the financial success or failure Woodland View Care and
Rehabilitation. Defendant Peak Medical Oklahoma No. 5, Inc. and Defendant Sun Health Care
Group, Inc. are “owners” of Woodland View Care and Rehabilitation pursuant to 63 0.5. 1- 1902(16) (hereinafter collectively “Defendant Nursing Home”).

3. At all times relevant hereto, Defendant James Bevmer, DO. (hereinafter “Defendant Bevmer”) was the medical director of Defendant Nursing Home and was responsible for the administration and oversight of medical care, or lack thereof rendered by or at the direction of Defendant Nursing Home employees to Decedent.

4. At all times relevant hereto, Defendant Steve Johnson (hereinafter “Defendant Johnson”) was a nurse at Defendant Nursing Home and provided care to the Decedent while she was a resident at same.

5. Defendants Dr. Vishal Aggerwal and/or Dr. Karin Johnson (hereinafter “Defendant Doctors”) and other employees of Defendant Nursing Home created an Admission Assessment for Decedent, which concluded, among other things: self-care deficits, total urinary incontinence, potential for skin breakdown related to: poor appetite, doesn’t like to bathe, incontinence, diabetes.

6. At all thnes relevant hereto, John Doe 1-15 and Jane Doe 1-15 are defined as all employees of Defendant Nursing Home who participated in the care or maintenance of Decedent while a resident at same, including, but not limited to: MDs, DOs, administrators, corporate entities, ENs, LPNs, CNAs, techs, administrative staff maintenance, janitorial workers, and food service workers.

7. Defendant Nursing Home had a non-delegable duty to provide skilled nursing care to the Decedent, and Defendant Nursing Home had a duty to ensure that all employees exercised the degree of skill and learning ordinarily exercised by members of the employees’ professions.

8. Defendant Nursing Home had a non-delegable duty to provide management services to the Decedent and, in the management and supervision of all Defendant Nursing Home employees, to place resident safety above profit and to provide sufficient resources to permit Defendant Nursing Home and its employees to adhere to the standards of care in Oklahoma Administrative Code 310:675-9-1.1.

9. Upon accepting Decedent as a resident, Defendant Nursing Home was under a continuing duty to exercise reasonable and ordinary care to provide the Decedent with a facility that was safe and a care plan tailored to her needs, protect her, keep her as physically comfortable as possible and keep her at the highest possible level of physical and mental well-being.

10. A nursing home must, under Oklahoma Nursing Home Care Act, 63 0.5. 1-1901 etseq. comply with state regulations by keeping its residents free from abuse (“. . .the willful infliction of injury, unreasonable confinement, intimidation or punishment, with resulting physical harm, impairment or mental anguish.” 63 0.5. 1902(1)) or neglect (“U.. failure to provide goods and/or services necessary to avoid physical harm, mental anguish, or mental illness.” 63 0.5. 1002(1 5).)

11. A nursing home must, pursuant to the provisions of the Protective Services for Vulnerable Adults Act, OKLA. STAT. TIT. 43A 10-101, protect the individual from abuse (“. . ..causing or permitting... the infliction of physical pain, injury... or mental anguish.” 43A O.S. 10-101(8) (a)) or neglect (failure to provide protection for a vulnerable adult who is unable to protect his or her own interest, the failure to provide a vulnerable adult with adequate nutrition, health care 43A O.S. 10-101 (1 1) (a)-(b)).

12. A nursing home must, under Oklahoma Administrative Code 310:675-9-1.1., provide nursing and personal care for residents as needed. Nursing Care shall include, but not be limited to:

a. Must measure resident temperature, blood pressure, pulse and respirations as warranted by the resident’s condition, with the results recorded in the clinical record.

b. Must measure resident pain whenever vital signs are taken and more frequently if warranted by the resident’s condition, with the results recorded in the clinical record. Following proper nutritional practices for diets, enteral and parenteral feedings and assistance in eating.

d. Provide proper skin care to prevent skin breakdown

e. Provide proper body alignment.

f. Turn bed residents every two hours or as needed, to prevent pressure areas, contractures, and decubitus.

g. Perform catheter care with proper positioning of bag and tubing at all times.

h. Record accurate intake and output records for residents with tube feedings or catheters.

i. Update the assessment and individual care plan when there is a significant change in the resident’s physical, mental, or psychosocial functioning.
Recognize and record signs and symptoms of illness or injury with action taken to treat the illness or injury, and the response to treatments and medications.

13. Defendant Nursing Home, by and through its employees, failed, refused and neglected to implement an individual care plan designed to preserve Decedent’s well-being, thereby breaching its duty of care and causing the Decedent’s to suffer deteriorating health.

14. During the time of Decedent’s residence at the Defendant Nursing Home’s specialized facility for the elderly, Defendant Nursing Home, by and through its employees, failed, refused and neglected to implement and follow a plan for the care of the Decendent as required by Oklahoma law.

15. Defendant Nursing Home, by and through its employees, failed, refused and neglected to monitor and care for Decedent, which caused her to suffer deteriorating health.

16. Defendant Nursing Home, by and through its employees, failed, refused and neglected to properly feed the Decedent so that she would not aspirate on food.

17. Upon information and belief. Defendant Nursing Home, by and through its employees, force fed Decedent causing her to aspirate on food and develop pneumonia.

18. Defendant Nursing Home, by and through its employees, failed, refused and neglected to keep Decedent clean and safe, to monitor her health, to protect her from physical harm and to properly implement the Decedent’s individual care plan.

19. While in the care of Defendant Nursing Home, Decedent developed Hypoxia.

20. While in the care of Defendant Nursing Home, Decedent developed acute Septic Shock.

21. While in the care of the Defendant Nursing Home, Decedent aspirated on food.

22. While in the care of Defendant Nursing I—Tome, Health Care Acquired Pneumonia.

23. While in the care of Defendant Nursing Home, Decedent developed an acute kidney ty.

24. While in the care of Defendant Nursing Home, Decedent developed a decubitus ulcer on her sacrum,

25. While in the care of Defendant Nursing Home, Decedent developed a bedsore on her sacrum. See Exhibit “A” attached hereto.

26. While in the care of Defendant Nursing Home, Decedent developed deep tissue injur.

27. Defendant Nursing Home, by and through its employees, negligently failed to, inter aba, provide Decedent with a clean, safe, and protective environment resulting in abuse and neglect as defined in Oldahoma Nursing Home Care Act and Protective Services for Vulnerable Adults Act.

28. Defendant Nursing home, by and through its employees, failed and refused to produce the Decedent’s medical records regarding her last week at Defendant Nursing home, the Defendant Nursing Home is in violation of and the Oklahoma Administrative Code 310:675-9-1.1.

29. In failing to produce the Decedent’s medical records regarding her last week at Defendant Nursing home, the Defendant Nursing Home is guilty of spoliation of evidence.

30. On or about February 28, 2010, at approximately 4:00 a.m., an LPN took vital signs of Decedent, noted that her oxygen saturation was 80%, and placed a nasal cannula with oxygen to increase the saturation to 9O°/o.

31. On or about March 3,2010, EMSA was called to Defendant Nursing Home and arrived at 1:15 a.m. to find Decedent unresponsive.

32. A tech at the Defendant Nursing Home told EMSA personnel that Decedent had been like this “for a couple of days and they were starting treatment for pneumonia.”

33. A nurse at Defendant Nursing Home told EMSA personnel that patient usually is able to respond but hasnot been responding today, and that patient’s Oxygen Saturation and blood pressure had been low, and that patient had had a fever for the past two days.

34. EMSA personnel found the Decedent in full code.

35. EMSA personnel requested medical records and documents from employees of Defendant Nursing Home, but said employees refused to provide medical records.

36. EMSA personnel transported Decedent to St. John’s Medical Center in Tulsa, Oklahoma.

37. Decedent arrived at the hospital in critical condition, suffering from Hypoxia, acute Septic Shock secondary to Health Care Acquired Pneumonia, an acute kidney injury, and a decubitus ulcer on her sacrum, with some indication of deep tissue injury.

38. Decedent passed away on March 3, 2010.

Count I: NEGLIGENCE

(Against all Defendants)

39. Plaintiff re-alleges and incorporates by reference all facts and all allegations set forth in paragraphs 1 through 38 above.

40. Defendant Nursing Home, by and through its employees, failed, refused and neglected to provide proper nursing care and medial attention and failed to meet the standard of care to prevent the Decedent’s health from deteriorating.

41. As a direct and proximate result of said negligence, the Decedent developed bedsores on her sacrum, aspirated food into her lungs, developed pneumonia, suffered from Hypoxia and acute septic shock, secondary to Health Care Acquired Pneumonia (HCAP), causing a drastic deterioration in her health, significant pain and suffering and ultimately her death.

42. Defendant Nursing Home is liable Respondent Superior for the negligence of its agents, employees, and doctors on staff.

43. Defendant Nursing Home is liable to the Plaintiff under the legal doctrine of Respondent Superior for the negligence of its servants.

44. Defendant Nursing Home, by and through its employees, failed, refused and neglected to diagnose, document and treat the Decedent’s illness after February 28, 2010.
WHEREFORE, Plaintiff prays that she be granted judgment against Defendants for the total sum of Plaintiff’s and Decedent’s damages caused by or sustained as a result of Defendants’ negligence in an amount in excess of $75,000.00, together with costs, and such other relief to wbich the Plaintiff may be entitled.
cdur’rr II: NEGLIGENCE PER SE
(Against All Defendants)

45. Plaintiff re-alleges and incorporates by reference all facts and all allegations set forth in paragraphs 1 through
44 above.


46. Defendant Beymer, Defendant Johnson, Defendant Doctors, Jane Doe(s), and John Doe(s) were working as agents,
employees, and/or doctors of Defendant Nursing Home

47. Defendant Nursing Home’s negligenceperse caused injury to Decedent.

48. As a direct and proximate result of said negligence, the Decedent developed bedsores on her sacrum, aspirated food into her lungs, developed pneumonia, suffered from Hypoxia and acute septic shock, secondary to Health Care Acquired Pneumonia (HCAP), causing a drastic deterioration in her health, significant pain and suffering and ultimately her death.

WHEREFORE, Plaintiff prays that she be granted judgment against Defendants for the total sum of Plaintiff’s and Decedent’s damages caused by or sustained as a result of Defendants’ negligence in an amount in excess of $75,000.00, together with costs, and such other relief to which the Plaintiff may be entitled.

COUNT III: BREACH OF CONTRACT

(Against Defendant Nursing Home)

49. Plaintiff re-alleges and incorporates by reference all facts and all allegations set forth in paragraphs I through 48 above.

50. Defendant Nursing Home breached the contract made with Decedent to provide her with long term nursing home services.

51. Defendant Nursing Home breached its contract with Decedent by failing to comply with federal and state cffitical standards regarding long term nursing care facilities.

52. As a direct and proximate result of said negligence, the Decedent developed bedsores on her sacrum, aspirated food into her lungs, developed pneumonia, suffered from Hypoxia and acute septic shock, secondary to Health Care Acquired Pneumonia (HCAP), causing a drastic deterioration in her health, significant pain and suffering and ultimately her death.

WHEREFORE, the Plaintiff prays for judgment against Defendant Peak Medical Oklahoma No. 5, Inc., dba Woodland View Care and Rehabilitation, and Defendant Sun Healthcare Group, Inc., dba Woodland View Care and Rehabilitation for Plaintiffs actual damages in a sumin excess of $75,000, plus such costs, prejudgment interest, and other relief this court deems equitable and just.

COUNT IV: WRONGFUL DEATH

(Against all Defendants)

53 Plaintiff re-alleges and incorporates by reference all facts and all allegations set forth in paragraphs 1 through 52 above.

54. Defendants’ actions directly and proximately caused the untimely death of Decedent.

55. Defendants are liable to Plaintiff pursuant to the 12 0.5. § 1053 for wrongful death.

56. As a direct result of Defendants’ actions, Defendants are liable to the Special Administrator for damages for, inter a/ia, medical and burial expenses, loss of consortium and grief of surviving family, as well as the mental and physical pain and anguish suffered by the Decedent.

WHEREFORE, Plaintiff prays that she be granted judgment against Defendants for the total sum of Plaintiff’s and Decedent’s damages, caused by or sustained as a result of Defendants’ wrongful actions or omissions causing wrongful death, in an amount in excess of $75,000.00, together with costs, and such other relief to which the Plaintiff may e entitled.

COUNT V: GROSS NEGLIGENCE

(Against all Defendants)

57. Plaintiff re-alleges and incorporates by reference all facts and all allegations set forth in paragraphs I through 56 above.

58. The Defendants acted in reckless disregard of the rights of the Decedent, as well as grossly negligent, intentional and with malice towards the Decedent
59. When Decedent was intubated at the hospital, food was found in the Decedent’s lungs, which is evidence of force feeding.

60. Defendant Doctors, Defendant Thompson,John Does 1-15 andJane Does 1-15 were aware of Decedent’s deteriorating condition on February 28, 2010, yet allowed Decedent to suffer for three days before taking appropnate measures. The Oklahoma Supreme Court defines malice as “a wrongful act done intentionally without just cause or excuse.” MaIi/e v. Apex Int’IA//oys, Inc., 762 F.2d 77, 80 (10th Cit. 1985). The Defendant were aware of the condition and refused to provide EMSA medical records outlining the Decedent’s condition.

WHEREFORE, premises considered, Plaintiff demands punitive damages in judgment against Defendants, for the Defendants’ conduct that constitutes reckless intentional and malicious disregard of the rights of the P1aintiff pursuant to 23 0.S. § 9.1, and Rodebush vs. Oklahoma Nursing Homes, Ltd., 867 P.2d 1241 (0kb. 1993).

Defendant Peak Medical Oklahoma No. 5, Inc. appeared and answered as follows:

1. This Defendant denies each and every allegation contained in Plaintiffs Petition unless expressly admitted hereinafter.

2. With respect to the allegations contained in paragraph 1 of Plaintiffs Petition, this Defendant admits only that Judith Gaston was a resident at Woodland View from approximately February 8, 2010 to March 3, 2010.

3. With respect to the allegations contained in paragraph 2 of Plaintiffs Petition, this Defendant admits only that Peak Medical Oklahoma No, 5, Inc. was the licensed operator of Woodland View Care and Rehabilitation Center during the pertinent time frame. All other allegations contained in paragraph 2 of Plaintiffs Petition are denied.

4. Paragraphs 3, 4, 5 and 6 of Plaintiffs Petition do not contain allegations against this Defendant, therefore, no response is required. To the extent paragraphs 3, 4, 5 and 6 contain allegations against this Defendant, they are denied as stated.

5. With respect to the allegations contained in paragraphs 7, 8 and 9 of Plaintiffs
Petition, this Defendant admits it owed certain duties to Ms. Gaston in accordance with
Oklahoma law. All remaining allegations contained in paragraphs 7, 8 and 9 of Plaintiffs
Petition are denied as stated.

6. Paragraphs 10, 11, and 12 of Plaintiffs Petition do not contain allegations against this Defendant, therefore, no response is required. To the extent paragraphs 10, 11 and 12 contain allegations against this Defendant, they are denied as stated.

7. This Defendant denies the allegations contained in paragraphs 13, 14, 15, 16, 17 and 18 of Plaintiffs Petition.

8. This Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in paragraphs 19, 20, 21, 22, 23, 24, 25 and 26 of Plaintiffs Petition and therefore denies same.

9. This Defendant denies the allegations contained in paragraphs 27, 28 and 29 of Plaintiff’s Petition.

10. This Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in paragraphs 30, 31, 32, 33, 34, 35, 36, 37 and 38 of Plaintiffs Petition and therefore denies same.

11. With respect to the allegations contained in paragraph 39 of Plaintiffs Petition, this Defendant adopts and incorporates it responses to paragraphs 1-38 of Plaintiffs Petition.

12. This Defendant denies the allegations contained in paragraphs 40, 41, 42, 43, and
44 of Plaintiffs Petition.

13. With respect to the allegations contained in paragraph 45 of Plaintiff’s Petition, this Defendant adopts and incorporates it responses to paragraphs 1-44 of Plaintiffs Petition.

14. This Defendant denies the allegations contained in paragraphs 46, 47, and 48 of Plaintiff’s Petition.

15. With respect to the allegations contained in paragraph 49 of Plaintiff’s Petition, this Defendant adopts and incorporates it responses to paragraphs 1-48 of Plaintiffs Petition.

16. This Defendant denies the allegations contained in paragraphs 50, 51, and 52 of Plaintiff’s Petition.

17. With respect to the allegations contained in paragraph 53 of Plaintiff’s Petition, this Defendant adopts and incorporates it responses to paragraphs 1-52 of Plaintiffs Petition.

18. This Defendant denies the allegations contained in paragraph 54, 55, and 56 of Plaintiff’s Petition.

19. With respect to the allegations contained in paragraph 57 of Plaintiff’s Petition, this Defendant adopts and incorporates it responses to paragraphs 1-56 of Plaintiffs Petition.

20. This Defendant denies the allegations contained in paragraphs 58, 59, and 60 of Plaintiff’s Petition.

AFFIRMATIVE DEFENSES

1. Plaintiff is not the proper party to bring this action.

2. Plaintiff lacks standing to pursue some or all of the causes of action in the Petition.

3. Plaintiff has not exhausted her administrative remedies and is, therefore, barred from pursuing some or all of the causes of action in the Petition.

4. This Defendant denies that any act or omission on its part caused or contributed to any injury to Ms. Gaston. This Defendant further reserves the right to submit the defense of intervening causation.

5. The injuries for which Plaintiff complains, which are not admitted but are expressly denied, were caused or contributed by Ms. Gaston’s comparative negligence, and such comparative negligence exceeds any on the part of this Defendant.

6. The injuries for which Plaintiff complains, which are not admitted but are expressly denied, are the results of acts or omissions of third parties or employees acting outside the course and scope of their employment for whom this Defendant may not be held responsible.

7. Should this Defendant be found guilty of professional negligence, it states that the professional negligence was not the proximate cause of Ms. Gaston’s alleged injuries and damages, if any.

8. The physical condition complained of by Ms. Gaston and any resulting injuries or damages suffered were an unavoidable casualty over which this Defendant had no control.

9. This Defendant affinnatively states that at all times herein, the care, treatment and services for Ms. Gaston were commensurate with the standard of care of other nursing homes in the community practicing under similar conditions.

10. For further defense, this Defendant alleges and states that any injuries and damages complained of in Plaintiff’s Petition are the natural, probable and proximate result of the physical condition, anatomy and physiology of Ms. Gaston, and the injuries or damages which Ms. Gaston may have sustained were not the result of acts or omissions on the part of this Defendant, and that any injuries suffered by Ms. Gaston were the result of natural and normal occurrences within her body over which this Defendant had no control and for which this Defendant is not responsible.

11. Some or all causes of action may be barred due to the applicable statute of limitations.

12. Some or all causes of action alleged by Plaintiff in her Petition fail to state a claim upon which relief can be granted.

13. Any damages allegedly suffered by Ms. Gaston were caused by a pre-existing or post-developing unrelated medical condition, disease, illness, infection or injury for which this Defendant is not responsible.

14. For further answer and defense, this Defendant states that Plaintiff has failed to state a good and valid cause of action against it for punitive damages, and further denies it committed any act or omission which would entitle Plaintiff to recover punitive damages.

15. In the alternative, Plaintiff’s claim for punitive damages is unconstitutional and in violation of the Due Process Clause contained in the Fifth and Fourteenth Amendments to the United States Constitution and in Section 7, Article 2 of the Oklahoma Constitution in that,
among other reasons, the standards for an award of punitive damages are unconstitutionally vague and the issue is so prejudicial as to render an award the product of bias and passion in a way lacking the basic elements of fundamental fairness, and in the absence of existing statutory limitations on a maximum possible award, this could unfairly lead to a result bearing no relation to the nature and extent of Plaintiff’s injuries.

16. Plaintiff’s claim for punitive damages is unconstitutional under Article 2, Section
9 of the Oklahoma Constitution in that, among other reasons, it constitutes an excessive fine designed to punish a wrongdoer for the benefit of society.

17. If there are any material allegations which this Defendant has not denied and which adversely affect its rights, this Defendant here and now denies the same.

18. This Defendant reserves the right to amend this Answer to allege any further defense, affirmative or otherwise, or cross claim, counterclaim or third-party claim which such investigation and discovery may reveal.

WHEREFORE, Peak Medical Oklahoma No. 5, Inc. d/b/a Woodland View Care and
Rehabilitation Center prays that Plaintiff’s action be dismissed with prejudice and that this
Defendant be awarded its costs expended herein, and such other and further relief which the
Court may deem equitable.

Outcome: COMES NOW the Plaintiff, Virginia Tomshany, as Personal Representative of the Estate of Judith Ann Gaston, deceased, and dismisses with prejudice Defendants Peak Medical Oklahoma No. 5, Inc. d/b/a Woodland View Care and Rehabilitation Center (erroneously named Woodland View Care and Rehabilitation), Sun Healthcare Group Inc.. James Beymer, D.O., Karen Johnson, D,O., Vishal Aggerwal, M.D., Steve Johnson and John Doe 1-15, and Jane Doe 1-15 from this matter.

Plaintiff's Experts:

Defendant's Experts:

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