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Estate of MURIEL BOGGAN vs SILSBEE OAKS HEALTH CARE, LLP

No. 52315

RLE STAMP

& RETURN

 

CATHY MELANCON, Individually                                                §

and as Personal Representative                                                §

of the Estate of MURIEL BOGGAN, Deceased;                        §                     IN THE DISTRICT COURT

DAVID BOGGAN; JOHN BOGGAN;                                           §

BRUCE BOGGAN; SUSAN RYE and CAROL NASH                 §                       HARDIN COUNTY, TX

vs                                                                                                  §

SILSBEE OAKS HEALTH CARE, LLP                                           §                      88TH JUDICIAL DISTRICT

and joining                                                                                   §

OAK MANAGEMENT SERVICE, INC.                                         §

and BURMONT, INC., d/b/a BUR-MONT, INC.                         §

 

PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION

Plaintiffs, CATHY MELANCON, Individually and as Personal Representative of the Estate of MURIEL BOGGAN ("Mrs. Boggan"), Deceased; DAVID BOGGAN; JOHN BOGGAN; BRUCE BOGGAN; SUSAN RYE and CAROL NASH, file this Plaintiffs' Second Amended Original Petition complaining of SILSBEE OAKS HEALTH CARE, LLP (the "Nursing Home"); OAK MANAGEMENT SERVICE, INC.; and BURMONT, INC., d/b/a BUR-MONT, INC., Defendants, and show:

I. DISCOVERY LEVEL

  1. Discovery is intended to be conducted under Level 2.

II. PARTIES

  1. Plaintiff, MURIEL BOGGAN, was and had been a resident of Hardin County, Texas at all times relevant to this case. CATHY MELANCON, DAVID BOGGAN, JOHN BOGGAN, BRUCE BOGGAN, SUSAN RYE and CAROL NASH are the children of MURIEL BOGGAN.

Cathy Melancon is a resident of Chambers County, Texas. David Boggan is a resident of St. Tammany Parish, Louisiana. John Boggan and Bruce Boggan are residents of Escambia County, Florida. Susan Rye is a resident of Orange County, Texas. Carol Nash is a resident of Dallas County, Texas. Cathy Melancon acts herein as the Personal Representative of her mother's Estate.

  1. Defendant, SILSBEE OAKS HEALTH CARE, LLP, is a Texas limited liability partnership doing business in Hardin County, Texas. This Defendant has been served and has answered herein. Silsbee Oaks Health Care, LLP owned, operated, managed, and controlled the health care facility known as Silsbee Oaks Health Care, LLP in Silsbee, Hardin County, Texas, at all times relevant to this case. This Defendant is a controlling person as defined by Section 242.0021, Texas Health and Safety Code.
  2. OAK MANAGEMENT SERVICE, INC. is added as a Defendant. Oak Management Service, Inc. is a Texas corporation doing business in Hardin County, Texas. This Defendant has been served and has answered herein. Oak Management Service, Inc. wholly owns and participated in the management and operations of the health care facility known as Silsbee Oaks Health Care, LLP at all times relevant to this case. Oak Management Service, Inc. is a controlling person as defined by Section 242.0021, Texas Health and Safety Code.
  3. BURMONT, INC., d/b/a BUR-MONT, INC., is added as a Defendant. Burmont, Inc., d/b/a Bur-Mont, Inc., is a Texas corporation doing business in Hardin County, Texas. This Defendant has been served and has answered herein. Burmont, Inc., d/b/a Bur-Mont, Inc., wholly owns and participated in the management and operations of the health care facility known as Silsbee Oaks Health Care, LLP at all times relevant to this case. Burmont, Inc., d/b/a Bur-Mont, Inc., is a controlling person as defined by Section 242.0021, Texas Health and Safety Code.
  4. Defendants provided health care which departed from acceptable standards of health care or health care safety which proximately resulted in Mrs. Boggan's injury and suffering.

 

Pursuant to Texas Revised Civil Statutes, Article 74.051 (a), Plaintiffs provided notice of this health care liability claim by certified mail, return receipt requested, to Defendants.

  1. All conditions precedent to filing this lawsuit have been performed.

III. DEFINITION

  1. Wherever in this Petition Defendant, SILSBEE OAKS HEALTH CARE, LLP, is referred to as doing any act or thing or failing to do any act or thing, such reference includes the corporate entity, as well as the officers, agents, servants, representatives and/or employees of this Defendant.
  1. Wherever in this Petition Defendant, OAK MANAGEMENT SERVICE, INC., is referred to as doing any act or thing or failing to do any act or thing, such reference includes the corporate entity, as well as the officers, agents, servants, representatives and/or employees of this respective Defendant.
  2. Wherever in this Petition Defendant, BURMONT, INC., d/b/a BUR-MONT, INC., is referred to as doing any act or thing or failing to do any act or thing, such reference includes the corporate entity, as well as the officers, agents, servants, representatives and/or employees of this respective Defendant.

IV. FACTS

  1. The incidents which form the basis of this lawsuit occurred in Silsbee, Hardin County, Texas. At the time of the incidents described in Section IV, Mrs. Boggan was a resident of the Nursing Home.
  2. At all relevant times, Defendant, SILSBEE OAKS HEALTH CARE, LLP, was a licensed nursing home doing business in the State of Texas. At all times material, Defendant, SILSBEE OAKS HEALTH CARE, LLP, held, and does hold, itself out to the general public, including Plaintiffs, as a nursing home facility which was competent and qualified to provide nursing home services with all the necessary care and precaution expected of a nursing home facility.

 

13.     Defendant, SILSBEE OAKS HEALTH CARE, LLP, is a company that operates a long-term care facility for monetary profits in the State of Texas. Defendant, SILSBEE OAKS HEALTH CARE, LLP, participated in the Medicaid program. By reason of its application to the State of Texas for nursing home licensure and certification, Defendant, SILSBEE OAKS HEALTH CARE, LLP, was able to enjoy substantial revenues paid for by taxpayer funded programs. Having availed itself of the privileges and financial benefits available to licensed nursing home operations, certified for participation in such programs, Defendant, SILSBEE OAKS HEALTH CARE, LLP, is and at all times material to this lawsuit was required to comply with (a) the rules and regulations promulgated by the Federal Government, 42 C.F.R., §§483.1, etseq., and (b) Texas Department of Aging and Disability Services, 40 Texas Administrative Code, Chapter \9.\,et seq. Defendant, SILSBEE OAKS HEALTH CARE, LLP, was at all times material to this lawsuit required to comply with the foregoing rules and regulations in caring for Mrs. Boggan.

  1. Defendants, OAK MANAGEMENT SERVICE, INC., and BURMONT, INC., d/b/a BUR-MONT, INC., are companies that owned and managed SILSBEE OAKS HEALTH CARE, LLP. At all times relevant, Defendants, OAK MANAGEMENT SERVICE, INC., and BURMONT, INC., d/b/a BUR-MONT, INC., held SILSBEE OAKS HEALTH CARE, LLP out to the general public, including Plaintiffs, as a nursing home facility which was competent and qualified to provide nursing home services with all the necessary care and precaution expected of a nursing home facility.
  2. Mrs. Boggan was admitted into the Nursing Home on or about July 22, 2008. Defendants represented to Mrs. Boggan and her family that Mrs. Boggan would be well cared for at the Nursing Home and that her needs would be met. Prior to entering the Nursing Home, Mrs. Boggan and her family were assured by Defendants that the Nursing Home provided quality and complete nursing care for its residents, including nutrition and dietary services appropriate for Mrs. Boggan's unique and individual needs.

 

16.     Defendants represented to Mrs. Boggan and her family that conditions at the Nursing Home were safe for Mrs. Boggan's care. Defendants assured Mrs. Boggan and her family that the Nursing Home would provide supervision and care which would protect and benefit the resident. Mrs. Boggan was admitted for nursing and custodial care related to her dementia and other conditions, including chronic obstructive pulmonary disease, hypertension, dysphagia and congestive heart failure. Mrs. Boggan had a feeding tube and was at severe nutritional risk and at risk for aspiration. Defendants were aware of Mrs. Boggan's medical condition and implicitly and explicitly represented that the Nursing Home was able to meet Mrs. Boggan's needs. However, Mrs. Boggan did not receive the care she was promised, but instead was subjected to various forms of neglect, including but not limited to the following:

  1. Defendants did not provide adequate care, treatments, medications, assistive devices, and sufficient nursing observation and examination of the responses, symptoms and progress in the physical condition of Mrs. Boggan.
  2. Defendants provided Mrs. Boggan with solid food, contrary to her diet order for pureed and liquids pudding thick.
  3. Defendants changed Mrs. Boggan from tube feeding with pureed pleasure foods to an oral diet without informing her family of the reasons for the change. In addition, the Nursing Home's speech language pathologist was not involved in the change, nor did Mrs. Boggan's family request the change.
  4. Defendants gave Mrs. Boggan numerous oral liquid supplements that were not thickened to the pudding consistency recommended by the Nursing Home's speech language pathologist.
  5. Defendants failed to act upon or notify Mrs. Boggan's physician of her abnormal lab values, including elevated BUN levels indicating a potential for dehydration.

 

  1. On December 28,2009, Defendants provided Mrs. Boggan with a doughnut which was not to be served to her because she was on a pureed diet. She aspirated and choked while eating the doughnut. Attempts to remove the lodged food were unsuccessful. Mrs. Boggan was transported by ambulance to the hospital. She arrived in full arrest and resuscitation was unsuccessful.
  2. An autopsy was performed which revealed that Mrs. Boggan's stomach contained a lump of solid food (the doughnut). The cause of death was determined to be asphyxia due to choking on food.

 

  1. Mrs. Boggan was neglected by Defendants. As a direct result of the improper and neglectful treatment she suffered at the hands of Defendants, Mrs. Boggan suffered severe physical injuries, mental and emotional trauma, extreme humiliation, and loss of dignity and respect during her lifetime.
  2. Mrs. Boggan was not able to recover from the injuries she suffered resulting from the improper and neglectful treatment she received while at the Nursing Home. Mrs. Boggan died on December 28,2009 as a direct result of the injuries she suffered because of neglect by Defendants.

V. CAUSES OF ACTION Count I – Negligence

  1. Plaintiffs incorporate the allegations of paragraphs 1 through 18 above.
  2. Defendants were negligent in the conduct described above. As a result, Plaintiffs are entitled to damages from Defendants, j ointly and severally, by reason of their negligence, which was a direct and proximate cause of the damages suffered by Mrs. Boggan.
  3. This is a civil liability case in which it has become necessary for Plaintiffs to bring a lawsuit by reason of the profound neglect suffered by Mrs. Boggan during her residency at the Nursing Home which resulted in great physical and mental injuries and considerable consequential damages. The serious bodily injuries made the basis of this lawsuit were proximately caused by the

 

negligence of Defendants, or their agents or employees acting in the course and scope of their employment.

22.     Defendants, by and through their agents and employees, were negligent in the following particulars:

  1. Failing to assign nursing personnel duties consistent with their qualifications based on each resident's written plan of care and the nursing skills needed to provide care to residents, and failing to provide services which meet professional standards of quality, in violation of §19.802, Texas Dept. of Aging and Disability Services Regulations, and OBRA Code §483.30.
  2. Failing to maintain clinical records on each resident that are complete and accurately documented, in violation of § 19.1910 of the Texas Dept. of Aging and Disability Services Regulations.

 

  1. Failing to conduct initially and periodically a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacities promptly after a significant change in the resident's physical or mental condition, in violation of § 19.801 of the Texas Dept. of Aging and Disability Services Regulations.
  2. Failing to ensure that Mrs. Boggan maintained acceptable parameters of nutritional status, such as body weight and protein levels, in violation of §19.901(9), Texas Dept. of Aging and Disability Services Regulations, and OBRA Code §483.35 and §483.25(i).
  3. Failing to ensure that Mrs. Boggan received proper treatment and special services, in violation of §19.901 of the Texas Dept. of Aging and Disability Services Regulations, and OBRA Code §483.75(1).
  4. Failing to follow orders regarding Mrs. Boggan's nutritional needs, considering her risk for aspiration with oral feedings.
  5. Failing to timely transfer Mrs. Boggan to a facility that could properly care for her.

h.         Failing to give proper and due consideration to Mrs. Boggan's physical
symptoms, condition, findings and complaints.

i.          Failing to give professional services that meet a professional standard of
quality.

j. Failing to care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life, in violation of 42 CFR §483.15.

k. Failing to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness, in violation of 42 CFR §488.301.

23.     At all times material to this lawsuit, statutory and regulatory duties imposed by the

State of Texas were in full force and effect that were designed to protect a class of persons, to-wit,

the nursing home residents of this State, of which Mrs. Boggan was a member. As a member of such

class, Mrs. Boggan was entitled to protection of these laws, namely the Health and Safety Code and

the rules and regulations promulgated thereunder as set forth in the Texas Administrative Code. The

scope and purpose of the Health and Safety Code is specifically set forth in V.T.C.A., Health and

Safety Code §242.001:

This chapter and the rules and standards adopted under this chapter, establish minimum acceptable levels of care. A violation of a minimum acceptable level of care established under this chapter is forbidden by law. Each institution licensed under this chapter shall, at a minimum provide quality care in accordance with this chapter and the rules and standards.

Specifically, the Texas Department of Aging and Disability Services found that Defendant violated 40 T.A.C. §19.901 and 42 C.F.R. §483.25(h).

  1. As a result of Defendants' negligence, Mrs. Boggan was injured. Plaintiffs request damages in an amount within the jurisdiction of this Court.

Count II – Wrongful Death Claim

  1. Cathy Melancon, Individually; David Boggan; John Boggan; Bruce Boggan; Susan Rye and Carol Nash incorporate the allegations of paragraphs 1 through 24 of this Petition.
  2. Cathy Melancon, Individually; David Boggan; John Boggan; Bruce Boggan; Susan Rye and Carol Nash bring this wrongful death action against Defendants for the death of Mrs. Boggan for their own damages and for the damages to the other statutory beneficiaries arising from the injuries which caused Mrs. Boggan's death. Defendants are liable as the injuries were

 

caused by their wrongful act, neglect, carelessness, and by the wrongful act, neglect, and carelessness of their agents and employees as set forth above.

27.        Cathy Melancon, Individually; David Boggan; John Boggan; Bruce Boggan; Susan Rye and Carol Nash request damages for the loss of consortium of the statutory beneficiaries resulting from the death of Mrs. Boggan; loss of advice, counsel, companionship, society and affection; grief and mental anguish; bereavement and mental trauma, and emotional damages he suffered as a result of the death of Mrs. Boggan.

VI. VICARIOUS LIABILITY OF DEFENDANTS, OAK MANAGEMENT SERVICE, INC. AND BURMONT. INC.. d/b/a BUR-MONT. INC.

28.       Defendants, OAKMANAGEMENT SERVICE, INC. ("OMS") andBURMONT,
INC., d/b/a BUR-MONT, INC. ("BMI"), are vicariously liable for the acts of SILSBEE OAKS
HEALTH CARE, LLP, the Nursing Home, its employees, agents, servants and representatives,
under one or more of the following legal theories:

  1. Actual authority in that OMS and BMI conferred on the Nursing Home actual authority to operate the Nursing Home and the negligence the subject of this suit occurred within the scope of that agency;
  2. Respondeat superior in that the Nursing Home and its employees are agents or employees of OMS and BMI and the negligence the subject of this suit occurred within one employee's/agent's authority, the furtherance of OMS and BMI's business and for the accomplishment of the object for which the employee was hired. Plaintiffs were injured as a result of the negligence.
  3. Piercing the corporate veil because the corporate form should be disregarded for one or more of the following acts:

 

  1. The corporate form is used as a sham to perpetrate a fraud; or
  2. The corporation was organized and operated as a mere tool or business conduit of another.

 

VII. DAMAGES

  1. This action is maintained by Plaintiffs for all damages to which Plaintiffs may be justly entitled because of the wrongful conduct made the basis of this suit, including damages for the pain, suffering, torment, destruction of dignity, disfigurement, mental anguish, and reasonable medical expenses caused to Mrs. Boggan by reason of Defendants' wrongful conduct detailed hereinabove.
  2. Plaintiffs further seek to recover pre-judgment interest and post-judgment interest for all such damages and reserve the right to amend and state further the amount of actual damages.

VIII. PUNITIVE DAMAGES

31.       Defendants' actions in feeding Mrs. Boggan a diet contrary to her physician's orders
involved an extreme degree of risk, considering the probability and magnitude of potential harm to
Mrs. Boggan. Defendants were aware of the risk and nevertheless proceeded with conscious
indifference to the rights, safety and welfare of Mrs. Boggan. Mrs. Boggan was injured and harmed
by this conduct. Plaintiffs are entitled to damages, both past and future, and exemplary and punitive
damages from Defendants, jointly and severally. Defendants' conduct alleged hereinabove justifies
an award of exemplary damages in an amount sufficient to deter Defendants from engaging in this
conduct in the future.

32.       Plaintiffs request that damages, punitive damages, pre-judgment interest and costs
of Court be awarded to Plaintiffs against Defendants, jointly and severally.

IX. JURY TRIAL REQUEST

33.       Plaintiffs request and demand a jury trial.

Plaintiffs, CATHY MELANCON, Individually and as Personal Representative of the Estate of MURIEL BOGGAN, Deceased; DAVID BOGGAN; JOHN BOGGAN; BRUCE BOGGAN; SUSAN RYE and CAROL NASH, pray that Defendants, jointly and severally, be cited for damages in an amount within the jurisdiction of this Court, together with costs of Court, and for such other and further relief to which Plaintiffs may be justly entitled.

RESPECTFULLY SUBMITTED,

MARIAN S. ROSEN & ASSOCIATES