Date: 06-09-2016

Case Style: Paul H. Brogan v. Peak Medical Corporation, et al.

Case Number: CJ-2013-5006

Judge: Patricia G. Parrish

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Glenn Sharader

Defendant's Attorney: Linda Scoggins for Midwest Geriatric Management L.L.C.

Jared Haines for the State of Oklahoma

Description: PAUL H. BROGAN , INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF VERA BROGAN, DECEASED, Plaintiff sued
PEAK MEDICAL CORPORATION A FOREIGN CORPORATION : PEAK MEDICAL OKLAHOMA NO.1 INC D/B/A BUENA VISTA CARE AND REHABILITATION
CENTER A FOREIGN CORPORATION : SUN HEALTHCARE GROUP INC A FOREIGN CORPORATION : GENESIS HEALTHCARE LLC A FOREIGN
LIMITED LIABILITY COMPANY : SUNBRIDGE HEALTHCARE CORPORATION A FOREIGN CORPORATION : AND MIDWEST GERIATRIC MANAGEMENT LLC : D/B/A BUENA VISTA CARE AND REHABILITATION CNTR : SUN HEALTHCARE GROUP INC A FOREIGN CORP.: GENESIS HEALTH CARE LLC A FOREIGN LIMITED LIABILITY COMPANY : SUNBRIDGE HEALTHCARE CORPORATION A FOREIGN CORPORATION : SOLAMOR HOSPICE CORPORATION AN OKLAHOMA CORPORATION D/B/A SOLAMOR HOSPICE : NATIONAL HOSPICE HOLDINGS LLC A FOREIGN LIMITED LIABILITY COMPANY : AND
LIFE CHOICE HOSPICE OF OKLAHOMA LLC A FOREIGN LIMITED LIABILITY COMPANY D/B/A SOLAMOR HOSPICE : AND MONICA FLORES LPN :
on medical negligence theories claiming:

The acts omissions and facts which formulate the basis of this claim arose in Oklahoma County Oklahoma, and the damages suffered by Vera Brogan a resident of Oklahoma County, Oklahoma exceed $75,000.00 and two of the Defendants reside in Oklahoma County Oklahoma and may be served with process in Oklahoma County, Oklahoma.


Parties and Jurisdictional Venue

1. Defendant Genesis HealthCare LLC, is a Foreign Limited Liability Company, doing business as Buena Vista Care and Rehabilitation Center. Said Defendant may be served through its agent ofrecord: Andres Barnum, 1226 Linn Street, P.O. Box 789, Sikeston, MO 63801.

2. Defendant GHC Holdings, II, LLC, a Foreign Limited Liability Company doing business as Buena Vista Care and Rehabilitation Center may be served through its agent of record Corporation Service Company 2711 Centerville Road, Suite 400, Wilmington, DE 19808.

3. Jam Acquisition LLC, a Foreign Limited Liability Company, doing business as Buena Vista Care and Rehabilitation Center, may be service through its agent of record Corporation Service Company 2711 Centerville Road, Suite 400, Wilmington, DE 19808.

4. Defendant Sunbridge Healthcare, LLC is a foreign limited liability company, doing business as Buena Vista Care and Rehabilitation Center. Its principal place of business is
located at 101 Sun Avenue NE, Albuquerque, NM 87109. Said Defendant may be served with summons by serving its service agent, CSC OF LEA COUNTY, INC., 1819 N TURNER Street, Suite G, HOBBS, NM 88240.

5. Defendant Peak Medical, LLC, a Foreign Limited Liability Company doing business as Buena Vista Care and Rehabilitation Center, is registered to do business in Oklahoma and may be served through its agent of record: The Corporation Company 1833 S. Morgan Road, Oklahoma City, OK 73128.

6. Defendant Sun HealthCare Group, Inc. is a Foreign Corporation, doing business as Buena Vista Care and Rehabilitation Center. Said Defendant may be served through its agent of record: The Oklahoma Secretary of State, 2300 N. Lincoln Boulevard, Suite 101, Oklahoma City, OK 73105.

7. Defendant Peak Medical Oklahoma No. 1, Inc., a Foreign Corporation doing business as Buena Vista Care and Rehabilitation Center, maintains a registered service agent in the state of Oklahoma and may be served with summons by serving its service agent, Corporation Service Company 115 S.W. 89th Street, Oklahoma City, OK 73139.

8. Defendant Midwest Geriatric Management, LLC a Foreign Limited Liability Company doing business as Buena Vista Care and Rehabilitation Center and registered to conduct business in the State of Oklahoma, may be served with summons by serving its service agent Scoggins & Cross PLLC, 201 Robert S. Kerr, Suite 710, Oklahoma City, OK 73102.

9. Defendant Binyamin Tzvi of Oklahoma, LLC, a Foreign Limited Liability Company doing business as Buena Vista Care and Rehabilitation Center is registered to conduct business in the State of Oklahoma and may served with summons by serving the Oklahoma Secretary of State, 2300 N. Lincoln Boulevard, Suite 101, Oklahoma City, OK 73105.

10. Defendant Benhow LLC, a Foreign Limited Liability Company doing business as Buena Vista Care and Rehabilitation Center, is registered to conduct business in the State of Oklahoma and may service with summons by serving the Oklahoma Secretary of State, 2300 N. Lincoln Boulevard, Suite 101, Oklahoma City, OK 73105.

11. Defendant Buena Vista Health Care, LLC is an Oklahoma Limited Liability Company doing business as Buena Vista Care and Rehabilitation Center, and may be served with summons by serving its service agent Scoggins & Cross PLLC, 201 Robert S. Kerr, Suite 710, Oklahoma City, OK 73102.

12. Defendants Genesis Healthcare, LLC, GHC Holdings, II LLC, Jam Acquisition LLC, SunBridge Healthcare, LLC, Peak Medical, LLC, Sun HealthCare Group, Inc., Peak Medical Oklahoma No. 1, Inc., Midwest Geriatric Management, LLC, Binyamin Tzvi of Oklahoma, LLC, Benhow LLC, Buena Vista Health Care, LLC own, operate, control and/or manage Defendant Buena Vista Care & Rehabilitation Center. All hereinafter jointly referred to as
"Buena Vista".

13. Defendant Genesis HealthCare LLC, is a Foreign Limited Liability Company, doing business as SolAmor Hospice. Said Defendant may be served through its agent of record: Andres Barnum, 1226 Linn Street, P.O. Box 789, Sikeston, MO 63801.

14. Defendant GHC Holdings, II, LLC, a Foreign Limited Liability Company doing business as SolAmor Hospice, may be served through its agent of record Corporation Service Company 2711 Centerville Road, Suite 400, Wilmington, DE 19808.

15. Jam Acquisition LLC, a Foreign Limited Liability Company, doing business as SolAmor Hospice, may be served through its agent of record Corporation Service Company 2711 Centerville Road, Suite 400, Wilmington, DE 19808.

16. Defendant Sun HealthCare Group, Inc. is a Foreign Corporation, doing business as SolAmor Hospice. Said Defendant may be served through its agent of record: The Oklahoma Secretary of State, 2300 N. Lincoln Boulevard, Suite 101, Oklahoma City, OK 73105.

17. Defendant National Hospice Holdings Investors, LLC is a Foreign Limited Liability Company doing business as SolAmor Hospice. Said Defendant may be served may be served with summons by serving its service agent National Corporate Research, Ltd., 615 S. Dupont Highway, Dover, DE 19901.

18. Defendant National Hospice Holdings, LLC is a Foreign Limited Liability Company doing business as SolAmor Hospice. Said Defendant may be served through its agent of record: National Corporate Research, Ltd., 615 S. Dupont Highway, Dover, DE 19901.

19. Defendant GHC JV Holdings LLC is a Foreign Limited Liability Company doing business as SolAmor Hospice. Said Defendant may be served with summons by serving its service agent: The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801.

20. FC-GEN Hospice Holdings, LLC a Foreign Limited Liability Company doing business as SolAmor Hospice may be served with summons by serving its service agent: The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801.

21. Defendant PMC Hospice Service, Inc. is an Oklahoma Corporation and may be served with summons by serving its service agent, Corporation Service Company, 115 S.W. 89th Street, Oklahoma City, OK 73139.

22. Defendant Life Choice Hospice of Oklahoma, LLC, a Foreign Limited Liability Company, maintains a registered service agent in the state of Oklahoma and may be served with summons by serving its service agent, National Corporate Research, Ltd., 1833 S. Morgan Road, Oklahoma City, OK 73128

23. Defendants Genesis Health Care LLC, GHC Holdings II, LLC, Jam Acquisition LLC, Sun HealthCare Group, Inc., National Hospice Holdings Investors, LLC, National Hospice Holdings, LLC, GHC JV Holdings, LLC, FC-GEN Hospice Holdings, LLC, PMC Hospice Service, Inc., and Life Choice Hospice of Oklahoma, LLC, own, operate, control and/ or manage
SolAmor Hospice in the state of Oklahoma. All hereinafter jointly referred to as "SolAmor".

24. Defendant Monica Flores, LPN, is a resident of Oklahoma and may be served with process in Oklahoma County, Oklahoma.


FACTS

25. The Plaintiff s Decedent Vera Brogan (hereinafter referred to as "Vera Brogan") was

admitted as a resident in Buena Vista on October 15, 2011 after suffering a stroke. She was administered nutrients through a feeding tube, had a level of consciousness of lethargic and was on Morphine. Vera Brogan was placed in a skilled level of care although she was incapable of benefiting or performing at said level of care. The Defendant Buena Vista furnished this improper care in an effort to boost its profit margin at the cost and harm to Vera Brogan.

26. While she was a resident of Buena Vista, hospice care was furnished to Vera Brogan by the Defendant SolAmor and its nurses, certified nursing assistants, and home healthcare aides, and other employees.

27. On April 11, 2012 at approximately 11:30 a.m. an individual SolAmor CNA (whose name is unknown to the plaintiff) negligently moved Vera Brogan transferring her back into bed from the shower when said CNA heard a loud "pop" noise from Vera Brogan's right shoulder. This negligent transfer was in breach of the standard of care for nursing as Vera Brogan was totally dependent and required two persons for safe transfer. The CNA contacted Betty Pratt-


Arnold, a SolAmor RN, and received instructions to advise the duty nurse for the Defendant Buena Vista, Monica Flores, LPN as to what had occurred in the improper transfer. After an
inexplicable, intolerable delay of six hours and five minutes, Buena Vista's employee, LPN
Krystle Ruzicka, contacted EMSA to have an ambulance transfer Vera Brogan to Midwest City Regional Hospital for examination by a physician. Three persons made the transfer of Vera Brogan from her bed unto the EMSA stretcher. Upon examination, testing, and x-ray at Midwest City Regional Hospital Emergency Room, it was determined that Vera Brogan had sustained a fractured right shoulder. Vera Brogan's fractured right shoulder occurred as a direct and proximate result of her improper handling and transfer while in the sole custody control of the Defendants Buena Vista and SolAmor. Upon her return to Buena Vista and thereafter in spite of receiving narcotics for her pain via her peg tube, the records reflect Vera Brogan moaning, grimacing, whining and wincing from her pain which continued up until her discharge from Buena Vista. As a result of her broken shoulder Vera Brogan became and remained bruised with edema and ecchymosis on her right shoulder, her upper right chest. Her upper right arm became yellow around the edges and purplish colored on the interior. The hideous physical pain and suffering and the emotional pain Vera Brogan sustained as a result of the Defendant's negligence is intolerable and is a disgrace to human dignity. Mrs. Brogan was in such pain that she became afraid of being touched and would facially flinch when touched. This fear of being touched did not resolve until she was finally permitted to go home where she was treated round­ the-clock with dignity by loving, and caring caregivers including her Son Paul Brogan

28. After Vera Brogan's injury the records regarding the proper treatment for transferring patients such as Vera Brogan were falsified and altered in utter disregard of the truth and in an
effort to conceal the breach of the Standard of Care which injured the Plaintiff s decedent Vera Brogan which was spoliation of evidence.

29. On August 10, 2012 Paul Brogan (the Plaintiff and Vera Brogan's son) was served by the Administrator of Buena Vista with an eviction notice regarding his Mother Vera Brogan. Mr. Brogan made immediate arrangements and hired round-the-clock qualified caregivers in order to move his mother back into her home; however, the Defendant Buena Vista made every effort it could to prevent Mr. Brogan from removing his Mother from the facility, including but not limited to utilizing the Oklahoma Department of Health to frustrate his efforts to remove her to a safe, loving environment. She was held captive until finally on September 20, 2012, she was permitted to return to her home and where she peacefully passed away in her sleep on October, 4, 2012.


CAUSE OF ACTION AGAINST DEFENDANT SOLAMOR-NEGLIGENCE

30. ' The Plaintiff incorporates the allegations set out in Paragraphs 1-29 of the Petition as if fully set forth herein.

31. Defendant SolAmor provided Hospice service and nursing care to Vera Brogan, and were subject to the Oklahoma Hospice Licensing Act 63 §§ 1-860 et. seq., and the OSDH Hospice
Regulations Title 310 Chapter 661, and the rules and regulations promulgated thereunder and was likewise subject to a duty to provide safe and proper patient care and dignity, and the utter
breach of these duties was a cause or contributing cause to Vera Brogan's injuries, damages,

physical and emotional pain and suffering. As such SolAmor had a duty to adequately train, retain and utilize only qualified knowledgeable personnel in the treatment of its' patients in
general and in specific Vera Broga. SolAmor itself and by and through it's employees, nurses,

CNAs and management was negligent in failing to render appropriate and timely nursing care, in failing to properly assess, implement and care for Vera Brogan's injuries, in failing to properly
train and supervise its nursing support staff, in failing to properly administrate Vera Brogan's

documentation and record requirements. The damages sustained by Vera Brogan as a result of her injuries, physical and emotional pain and suffering are in excess of $75,000.00.
32. Defendants SolAmor stand to profit or lose as a result of the financial or failure of the operations of SolAmor.
33. As a direct and proximate result of the negligent breach of the standard of care by its' CNA employee, Vera Brogan sustained a fractured shoulder, severe physical and emotional pain and suffering and lived with intense fear of having further pain inflicted upon her. The damages, injuries, physical pain and suffering sustained by Vera were caused and/or contributed to by the negligence of SolAmor or by its employees in the course and scope of their employment. The damages sustained by Vera Brogan as a result of SolAmor's negligence are in excess of $75,000.00
CAUSE OF ACTION AGAINST DEFENDANT BUENA VISTA-NEGLIGENCE

34. The Plaintiff incorporates the allegations set out in Paragraphs 1-33 of the Petition as if fully set forth herein.
35. Defendants Buena Vista stand to profit or lose as a result of the financial or failure of the operations of Buena Vista and fall under the definition of "owner" as set out in the OKLAHOMA NURSING HOME CARE ACT.
36. Defendant Buena Vista was negligent in failing to render appropriate and timely medical and nursing care, in failing to properly assess, implement and care for Vera Brogan's injuries, in failing to train properly and supervise the nursing support staff, in failing to properly and timely act upon Vera Brogan's changes in condition and subsequent medical condition developments, in

failing to properly administrate the nursing unit concerning documentation and reporting requirements, in failing to monitor Vera Brogan's change in condition and keep her at the highest practical state of physical and mental well-being, all as required pursuant to the Requirements for State and Long-term Care Facilities, 42 C.F.R. § 483 et seq; Nursing Home Reform Act, 42
U.S.C.A. § 1396; Oklahoma Nursing Home Care Act, 63 O.S. § 1-1901 et seq; Oklahoma Nursing Practice Act, 59 O.S. § 567.1 et seq.; and OSDH Regulations for Licensure of Nursing and Specialized Facilities, Chapter 675, 310:675-1-1 et seq., and the Nursing Home Reform Amendments to the Omnibus Budget Reconciliation Act of 1987 (OBRA 87).
37. Defendant Buena Vista is liable, directly based on its own conduct and/or via the doctrine of respondent superior, for any negligent acts or omissions of its agents or employees which caused or contributed the injuries and ultimate death that Vera Brogan suffered. Further Defendant Buena Vista is negligent per se, pursuant to the requirements for State Long-term
Care Facilities, Oklahoma Nursing Home Care Act, 63 O.S. § 1-1901 et seq; 63 O.S. § 1-1939.


CAUSE OF ACTION OF PAUL BROGAN AGAINST DEFENDANT BUENA VISTA FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

38. The Plaintiff incorporates the allegations set out in Paragraphs 1-37 of the Petition as if fully set forth herein.
39. Paul Brogan is the Son of Vera Brogan and also the Executor of her Estate. When he learned of the indignity and physical and emotional harm which had been inflicted upon his Mother Vera Brogan, Paul Brogan intervened with the Defendant Buena Vista. In retaliation, Buena Vista served him with a formal eviction and discharge notice regarding his mother, Vera Brogan. Upon receiving the eviction notice, Paul Brogan retained round-the-clock qualified loving caregivers so she could return home. However, the Defendant Buena Vista made every

effort it could to prevent Paul Brogan from removing his Mother Vera Brogan from the facility, including but not limited to utilizing the Oklahoma Department of Health to threaten him and to keep him from moving his Mother to a safe, loving environment. The Buena Vista staff threatened to have him arrested. This entire process was an attempt to frighten, intimidate, and humiliate the Plaintiff Paul Brogan and to collect money from him or his invalid Mother and increase the profits of Defendant Buena Vista. As a direct result of the actions of Defendant Buena Vista the Plaintiff Paul Brogan became physically ill, had and continues to have difficulty sleeping, nightmares, and was emotionally traumatized. Paul Brogan suffered damages in excess of $75,000.00
PROTECT THE RIGHTS OF THIRD PERSONS AND ACCOMPLISH JUSTICE



40. The Plaintiff incorporated the allegations set out in Paragraphs 1-39 of the Petition as if fully set forth herein.
41. On information and belief, Plaintiff has determined that the individual owners of Defendants Buena Vista and SolAmor Hospice utilized their form of legal entity in an effort to defeat public policy of protecting a resident of a specialized nursing facility from neglect and abuse by the entity's staff and employees.
42. On information and belief, Plaintiff has determined that the individual owners of Defendants Buena Vista and SolAmor Hospice failed to secure and maintain liability insurance for the specialized nursing facility and failed to protect the residents of the nursing facility.
43. That public policy protecting the health of residents, such as Vera Brogan, is a compelling or overriding reason to disregard the corporate entity and pierce the corporate veil and permit proceedings against the individual owners/members of Defendants Buena Vista and SolAmor Hospice.

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CAUSE OF ACTION AGAINST BUENA VISTA FOR PUNITIVE DAMAGES

44. The Plaintiff incorporates the allegations set out in Paragraphs 1-43 of the Petition as if fully set forth herein.
45. The acts and omissions of the Defendants SunBridge Healthcare Corporation, Peak Medical, LLC, Sun HealthCare Group, Inc., Peak Medical Oklahoma No. 1, Inc. d/b/a Buena Vista Care and Rehabilitation Center; Defendants Genesis Health Care LLC, GHC Holdings II, LLC, Jam Acquisition LLC, Sun HealthCare Group, Inc., National Hospice Holdings Investors, LLC, National Hospice Holdings, LLC, GHC JV Holdings, LLC, PC-GEN Hospice Holdings, LLC, PMC Hospice Service, Inc., and Life Choice Hospice of Oklahoma, LLC, d/b/a SolAmor Hospice, and Monica Flores, LPN, all of them including but not limited to falsifying Vera
Brogan's medical chart, were so willful, wanton and egregious as to justify the jury to award Punitive Damages under 23 OS Section 9.1 all in an amount in excess of $75,000.00.

PRAYER



WHEREFORE, premises considered, the Plaintiff demands judgment against each of the Defendants Genesis Healthcare, LLC, GHC Holdings, II LLC, Jam Acquisition LLC, SunBridge Healthcare, LLC, Peak Medical, LLC, Sun HealthCare Group, Inc., Peak Medical Oklahoma No. 1, Inc., Midwest Geriatric Management, LLC, Binyamin Tzvi of Oklahoma, LLC, Benhow LLC, Buena Vista Health Care, LLC. d/b/a Buena Vista Care and Rehabilitation Center; Defendants Genesis Health Care LLC, GHC Holdings II, LLC, Jam Acquisition LLC, Sun



HealthCare Group, Inc., National Hospice Holdings Investors, LLC, National Hospice Holdings, LLC, GHC JV Holdings, LLC, PC-GEN Hospice Holdings, LLC, PMC Hospice Service, Inc., and Life Choice Hospice of Oklahoma, LLC d/b/a SolAmor Hospice, and Monica Flores, LPN, , for actual damages in a sum in excess of the amount of $75,000.00 for the Survival Claims (12
O.S. § 1051) and for all damages available under Oklahoma Law plus such costs, prejudgment

interest, and other relief this Court deems equitable and just.

WHEREFORE, premises considered, the Plaintiff demands judgment against each of the following Defendants, Defendants Genesis Healthcare, LLC, GHC Holdings, II LLC, Jam Acquisition LLC, SunBridge Healthcare, LLC, Peak Medical, LLC, Sun HealthCare Group, Inc., Peak Medical Oklahoma No. 1, Inc., Midwest Geriatric Management, LLC, Binyamin Tzvi of Oklahoma, LLC, Benhow LLC, Buena Vista Health Care, LLC d/b/a Buena Vista Care and Rehabilitation Center; Defendants Genesis Health Care LLC, GHC Holdings II, LLC, Jam Acquisition LLC, Sun HealthCare Group, Inc., National Hospice Holdings Investors, LLC, National Hospice Holdings, LLC, GHC JV Holdings, LLC, PC-GEN Hospice Holdings, LLC, PMC Hospice Service, Inc., and Life Choice Hospice of Oklahoma, LLC, d/b/a SolAmor Hospice, and Monica Flores, LPN, for punitive damages in a sum in excess of $75,000.00 in
accordance with 23 OKLA. STAT. ANN. §9.1, plus such costs, prejudgment interest, and other


relief this Court deems equitable and just.

Outcome: JUDGE PARRISH: DFT PEAK MEDICAL MOTION FOR PARTIAL SUMMARY JUDGMENT/DFT MW GERIATRIC MGMT. MOTION FOR SUMMARY JUDGMENT - STRN MOOT, CASE SETTLED AS OF 05/16/16

Plaintiff's Experts:

Defendant's Experts:

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