hamilton county, ohio the estate of holly marie … · 4. plaintiff requests a trial by jury. 5. an...
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IN THE COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO
THE ESTATE OF HOLLY MARIE HOWES, by Sandra L. Howes, Estate Representative c/o Eadie Hill Trial Lawyers 3100 East 45th St., Suite 400 Cleveland, Ohio 44127 Plaintiff, vs. BLUE ASH HEALTHCARE, LLC DBA BLUE ASH CARE CENTER AKA COOPER’S TRACE NURSING AND REHABILITATION c/o Paul Bergsten 544 Enterprise Dr. Lewis Center, Ohio 43035
and HILLSTONE HEALTHCARE, INC. c/o ACFB Incorporated 200 Public Sq., Suite 2300 Cleveland, Ohio 44114
and HC CONSULTING/MANAGEMENT, LLC c/o Paul Bergsten 8302 Crescent Dr. Lewis Center, Ohio 43035
and AMERIWOUND, LLC c/o Samson Fixler 5800 Landerbrook Dr. #100 Mayfield Heights, Ohio 44124
and ROBERT BOGLI, D.O. 100 River Valley Blvd. New Richmond, Ohio 45157
and
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
CASE NO. JUDGE COMPLAINT
With Jury Demand
Affidavit of Merit Attached
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1. Now comes Plaintiff, the Estate of Holly Howes, through Sandra Howes, its
duly appointed Representative, and for Plaintiff’s Complaint against Blue Ash Healthcare
LLC dba Blue Ash Care Center aka Cooper’s Trace Nursing and Rehabilitation, Hillstone
Healthcare Inc., HC Consulting/Management LLC, AmeriWound LLC, Robert Bogli,
D.O., Stephanie Siegrist, NP, Arvind Modawal, M.D, and Arvind Modawal, M.D., Inc.
(collectively “Defendants”) states and avers upon information and belief as follows:
INTRODUCTION
2. This is a negligence, recklessness, and wrongful death action involving
Holly Howes’ care at Cooper’s Trace Nursing and Rehabilitation located at 4900 Cooper
Road, Cincinnati, Ohio 45242 that led to her untimely and wrongful death on July 16,
2018.
3. Holly Howes was a 41-year-old female residing at Cooper’s Trace Nursing
and Rehabilitation. She had a history of multiple sclerosis that limited her mobility and
STEPHANIE C. SIEGRIST, NP 399 W. Galbraith Rd. #209 Cincinnati, Ohio 45215
and ARVIND MODAWAL, M.D. 7700 University Ct. #3100 West Chester Township, Ohio 45069
and ARVIND MODAWAL, M.D., INC. 8259 Paddington Ct. West Chester, Ohio 45069 Defendants.
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
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made her dependent on Cooper’s Trace Nursing and Rehabilitation’s staff for medical care
and treatment, including for assistance with her activities of daily living. While a resident
of Cooper’s Trace Nursing and Rehabilitation, Holly Howes developed numerous infected
Stage IV bedsores, infected bone (osteomyelitis), malnutrition, and sepsis that ultimately
caused her death.
4. Plaintiff requests a trial by jury.
5. An Affidavit of Merit is attached as Exhibit 1.
6. Sandra Howes is the duly appointed Representative of The Estate of Holly
Marie Howes.
7. Plaintiff brings this action on behalf of The Estate of Holly Marie Howes,
the next of kin of Holly Howes, including her husband (John Howes), children (Dylan,
Isaac, Cameron, Chase, and John), siblings (Sandra Dixon, Beverly Wilkins, Heidi
Wagner, Crystal Cox, James Pulskamp, and William Cox), and anyone else entitled to
compensation for the harms and losses sustained as the result of the negligence,
recklessness, and other wrongful conduct described herein or discovered during
litigation.
8. Plaintiff seeks punitive damages in an amount necessary to punish the
above-named Defendants and deter the Defendants from engaging in similar conduct in
the future.
9. Plaintiff requests attorneys’ fees and the costs of this litigation.
10. Plaintiff sent letters to Defendants prior to filing this lawsuit pursuant to
R.C. 2305.113.
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DEFENDANTS
11. Hillstone Healthcare, Inc. is a foreign for-profit corporation, incorporated
in Delaware with its principle place of business in Lewis Center, Ohio that holds itself out
to the public as a provider of medical and nursing care, including but not limited to,
rehabilitation and skilled nursing care, through its agents, operatives and / or employees
and provides nursing services to nursing home facilities in Ohio, including exercising
ownership and operational and managerial control over the following Ohio facilities:
Cooper’s Trace Nursing and Rehabilitation 4900 Cooper Road Cincinnati, Ohio 45242 Hillstone Blossom Healthcare 370 E. Howard Street Willard, OH 44890 Blue Creek Healthcare 11239 Waterville Street Whitehouse, OH 43571 Bowerston Hills Nursing & Rehabilitation 9076 Cumberland Road Bowerston, OH 44695 Colonial Nursing Center 201 Buckeye Street Rockford, OH, 45882 Crystal Care of Coal Grove 813 ½ Marion Pike Coal Grove, OH 45638 Crystal Care of Franklin Furnace 4734 Gallia Pike Franklin Furnace, OH, 45629
Danridge's Burgundi Manor Maranatha Drive Youngstown, OH 44505
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Garden Court Nursing & Rehabilitation 4911 Covenant House Drive Dayton, OH 45426 Harmony Center for Rehabilitation & Healing 164 Office Park Drive Xenia, OH, 45662 Heritage Manor Nursing Center 24 North Hamilton Street Minster, OH, 45865 Hospitality Center for Rehabilitation & Healing 1301 North Monroe Drive Minster, OH, 45865
Isabelle Ridgeway Care Center 1520 Hawthorne Ave Columbus, OH 43203
Hudson Elms Nursing Center 563 W. Streetsboro Road Hudson, OH 44236
Lima Rehab & Nursing Center 599 Shawnee Street Lima, OH 45804
Rocky River Healthcare of West Park 4650 Rocky River Drive Cleveland, OH 44135
Roselawn Gardens Nursing & Rehabilitation 11999 Klinger Avenue Alliance, OH, 44601
Toledo Healthcare 2051 Collingwood Boulevard Toledo, OH, 43620
White Oak Manor 1926 Ridge Ave Warren, Ohio 44484
12. Defendant HC Consulting/Management, LLC is an Ohio for-profit company
that holds itself out to the public as a provider of medical and nursing care, including but
not limited to, rehabilitation and skilled nursing care, through its agents, operatives and
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/ or employees and does business as and / manages Cooper’s Trace Nursing and
Rehabilitation.
13. Defendant Blue Ash Healthcare LLC is an Ohio for-profit company that
holds itself out to the public as a provider of medical and nursing care, including but not
limited to, rehabilitation and skilled nursing care, through its agents, operatives and / or
employees and does business as Cooper’s Trace Nursing and Rehabilitation.
14. Hillstone Healthcare, Inc, HC Consulting/Management, LLC, and Blue Ash
Healthcare, LLC employ, manage, and direct the care and service providers who were
responsible for Holly Howes’s care, treatment, and safety at Cooper’s Trace Nursing and
Rehabilitation while she was a resident there.
15. Defendant AmeriWound, LLC is a foreign for-profit corporation, with a
statutory agent who can receive process in Ohio, that holds itself out to the public as a
provider of medical professionals who assess, diagnose, treat, monitor, and heal patient
wounds at various facilities, including Cooper’s Trace Nursing and Rehabilitation.
16. Defendant Robert Bogli, D.O. was, at all relevant times, a licensed physician
authorized to practice medicine in the State of Ohio who was acting within the course and
scope and in furtherance of his / her employment with AmeriWound, LLC and / or HC
Consulting/Management, LLC and /or Blue Ash Healthcare, LLC and / or Hillstone
Healthcare, Inc. and provided medical care and treatment to Holly Howes while she was
a patient of Cooper’s Trace Nursing and Rehabilitation.
17. Defendant Stephanie Siegrist, was, at all relevant times, a licensed nurse
practitioner authorized to practice nursing in the State of Ohio who was acting within the
course and scope and in furtherance of his / her employment with AmeriWound, LLC and
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/ or HC Consulting/Management, LLC and / or Blue Ash Healthcare, LLC and / or
Hillstone Healthcare, Inc. and provided medical care and treatment to Holly Howes while
she was a patient of Cooper’s Trace Nursing and Rehabilitation.
18. Defendant Arvind Modawal, M.D. was, at all relevant times, a licensed
physician authorized to practice medicine in the State of Ohio who was acting within the
course and scope and in furtherance of his / her employment with Arvind Modawal, M.D.
& Associates, Inc. and provided medical care and treatment to Holly Howes while she was
a patient of Cooper’s Trace Nursing and Rehabilitation.
19. Defendant Arvind Modawal, M.D., Inc. is an Ohio for-profit corporation
that holds itself out to the public as a provider of medical professionals who assess,
diagnose, treat, monitor, and heal patients at various facilities, including Cooper’s Trace
Nursing and Rehabilitation, and employs Arvind Modawal, M.D.
20. Holly Howes and her family looked to the Defendants for care based upon
their representations.
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21. The Defendants are vicariously liable for the negligent actions of their
employees and agents (respondeat superior and agency liability) and / or independent
contractors (Clark v. Southview agency by estoppel).
JURISDICTION AND VENUE
22. This Court has Jurisdiction over the Defendants because, among other
things, all Defendants do, and all times relevant did, reside or have their domicile in the
State of Ohio, purposefully avail themselves of the laws of the state of Ohio, and / or
commit tortious acts within the state of Ohio.
23. Venue is proper in this County under Civil Rule 3 because, among other
reasons: (a) Defendants reside, domicile, carry on their principal place of business, or
Cooper’s Trace Nursing and Rehabilitation is an underperforming nursing home in Cincinnati, Ohio that is part of Hillstone Healthcare’s corporate chain of nursing homes. Cooper’s Trace Nursing and Rehabilitation is rated by Medicare as 1-Star, meaning it is
considered “much below average’ in staffing, quality measures, and inspections.
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practice medicine / nursing, in this County; and / or (b) part of the claim for relief arose
in this County, in which county Holly Howes was injured and died.
COMMON FACTS
24. Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HC
Consulting/Management, LLC hold themselves out to the public as providers of long-
term nursing home, skilled nursing, and memory care services.
25. Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HC
Consulting/Management, LLC’s for-profit model means their primary goal is to maximize
profit, measured by revenues minus expenses.
26. For nursing homes generally, the largest individual revenue source is
residents (filling beds), and the largest individual expense is the cost of employing nursing
staff to provide care to those residents. This creates a financial incentive to take on more
residents with greater care needs than the nursing staff can properly care for, a violation
of federal nursing home regulations regarding staffing levels.
27. Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HC
Consulting/Management, LLC manage, control, and / or employ the nursing staff at
Cooper’s Trace Nursing and Rehabilitation.
28. Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HC
Consulting/Management, LLC exercise actual control over the facility’s management and
operations to maximize profits, including control over facility-level:
a. Policies and procedures, including regarding resident care;
b. Finances, including obtaining credit and loans, guaranteeing loans (both at the corporate and individual facility level), maintaining funds and banking, obtaining, owning, and leasing facility land and buildings, and capital expenditures.
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c. Budgeting, including controlling the amount of funds available for staffing facilities;
d. Personnel management, including hiring and firing, or having authority to hire and fire, the supervisory and management personnel in each facility;
e. Supervision of management, care providers, and staff in each facility, including compliance with federal and state regulations;
f. Employment, such as setting pay scales, shifts, and time and vacation policies;
g. Systems for training, monitoring, and supervising staff;
h. Medical record systems and management;
i. Financial control systems, including budgeting and payment processing;
j. Marketing, including setting the image and expectations residents and their family should expect at the facility, and even the name of the facility;
k. Reporting procedures, including reporting to Medicare as to individual resident care and facility-wide issues.
29. As the result of this control, Defendants Blue Ash Healthcare, LLC,
Hillstone Healthcare, Inc., HC Consulting/Management, LLC make decisions that affect
the day-to-day care of Cooper’s Trace Nursing and Rehabilitation residents, such as the
resources available for providing nursing staff and care to residents like Holly Howes,
meaning they are responsible for the foreseeable harm that results from careless decisions
while voluntarily exercising that control.
Reporting Data
30. Cooper’s Trace Nursing and Rehabilitation is required to report significant
amounts of data to the federal agency that oversees operations of nursing homes receiving
federal or state funding, the Centers for Medicare and Medicaid Services, or “Medicare.”
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31. The data Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc.,
HC Consulting/Management, LLC submit to Medicare regarding its facility includes data
on its residents (numbers, care needs, and bed days), its finances, and its nurse and
nursing aide staffing levels as compared to resident care needs.
32. This data is certified correct by the Defendants a Blue Ash Healthcare, LLC,
Hillstone Healthcare, Inc., and HC Consulting/Management, LLC and / or submitted
under penalty of perjury and / or civil or criminal penalties.
33. Medicare uses some of this data submitted by Defendants Blue Ash
Healthcare, LLC, Hillstone Healthcare, Inc., HC Consulting/Management, LLC to
produce its nursing home 5-star rating system, also known as “Nursing Home Compare.”
Nursing Home Resident Care Needs and Staffing Levels (MDS and RUG Scores)
34. Every nursing home receiving Medicare or Medicaid funding—the clear
majority of nursing homes, including Cooper’s Trace Nursing and Rehabilitation and
others operated and / or controlled by Defendants Blue Ash Healthcare, LLC, Hillstone
Healthcare, Inc., HC Consulting/Management, LLC—is required to provide detailed
information regarding the health status, care and treatment, and services provided to
each resident in the facility using a questionnaire called the Minimum Data Set, or
MDS. This evaluation is done for all nursing home residents regardless of whether their
care is being paid for by Medicare.
35. Nursing homes like Cooper’s Trace Nursing and Rehabilitation are required
to evaluate every resident using the Minimum Data Set questionnaire shortly after the
time of admission, every 90 days thereafter, when a resident has a significant
improvement or decline in health (physical, mental, or psychosocial), and upon discharge.
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36. Based on this Minimum Data Set, each resident’s individual care needs
(called “acuity level”) are assigned into a group signifying how much nursing or staff care
the resident requires, called a Resource Utilization Group score, or RUG score.
37. Each resident’s Resource Utilization Group score is contained in section Z
of their Minimum Data Set evaluations, meaning the total care needs of the residents in
any facility at a specific time is available by totaling the residents’ Resource Utilization
Group scores from their Minimum Data Set evaluations.
38. Medicare has commissioned and made available to every nursing home
studies and data showing the number of minutes of nursing and nursing aide care a
person at a specific RUG level should be expected to require, which Medicare calls
“expected staffing.”
39. When these Resource Utilization Group scores are combined for all
residents in a nursing home facility, the nursing home knows exactly how many minutes
of nursing and nursing aide care should be provided, on average, to meet the expected
care needs of their residents.
Misleading Advertising
40. In an effort to persuade the families of patients with memory care disorders
to become customers, Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc.,
and HC Consulting/Management, LLC make promises to the families of such potential
residents that they will provide a level of care that they know they are incapable of
providing, including touting their expertise in patient safety issues concerning residents
requiring skilled nursing care.
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41. The intent and outcome of this misleading practice is to cause residents,
their families, and external care providers to believe the nursing facility is much better
staffed than it is.
42. Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HC
Consulting/Management, LLC do not inform families of potential residents of the
following:
a. Staffing Ratings
i. Cooper’s Trace Nursing and Rehabilitation is a 1-star facility
according to Medicare’s staffing ratings, meaning that it has
the worst rating for nursing care staffing possible.
b. Registered Nurse Staffing
i. The national and state average for registered nursing time
available in a particular day for each resident is 40 and 38
minutes, respectively. This means that for the average
nursing home facility in Ohio or across the country, if you take
the total amount of hours registered nurses are paid to work
during a given day and divide that time by the number of
residents in the facility, there would be approximately 50
minutes of time registered nurses could spend with each
resident per day.
ii. But at Cooper’s Trace Nursing and Rehabilitation there is only
on average 18 minutes of registered nursing time available per
day for each resident.
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iii. The amount of registered nursing time available at Cooper’s
Trace is actually less than 18 minutes per resident each day
because these figures take into account all time nurses are
being paid—including breaks, vacations, holidays, and
personal time off—and is not limited to the time they are
actually at Cooper’s Trace providing nursing care.
c. Nursing Assistant and Aide Staffing
i. Cooper’s Trace Nursing and Rehabilitation also falls far short
in the amount of nursing assistant or aide time available for
its residents. The national and state average for nursing
assistant or nursing aide time per resident is 2 hours and 19
minutes (national) and 2 hours and 6 minutes (Ohio) per day.
This means that if you take the total amount of time all
nursing assistants or aides worked per day and divided it by
the total number of nursing home residents in the facility, the
state and national average is close to two-and-a-quarter hours
of nursing assistant / aide time available for each resident per
day.
ii. But at Cooper’s Trace Nursing and Rehabilitation there is only
1 hour and 37 minutes of available nursing assistant / aide
time available per resident per day—approximately half the
national average.
d. In addition to having severely deficient staffing levels, Defendants
Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HC
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Consulting/Management, LLC also fail to mention that the amount
they pay those staff members is nearly 30-40% less than the industry
average meaning not only is Cooper’s Trace severely understaffed,
the available staff is underpaid and overburdened.
43. The intent and outcome of this misleading practice is to drastically limit the
budget and overhead needed to run a safe facility in order to maximize profits and syphon
resources at the expense of patient safety.
Systemic Understaffing and Holly Howes’s Care
44. Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HC
Consulting/Management, LLC failed to ensure, through their operational, budgetary,
consultation and managerial decisions and actions, that Cooper’s Trace Nursing and
Rehabilitation was sufficiently staffed to meet the individual needs of Holly Howes.
45. Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HC
Consulting/Management, LLC engaged in a systemic practice to understaff its nursing
home facility to maximize its profits at the expense of its residents’ care.
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46. This lack of sufficient staff directly resulted in Holly Howes not receiving
basic and necessary services to prevent, among other things, neglect leading to bed sores,
sepsis, and her death.
Centers for Medicare and Medicaid Services, the Federal Agency that regulates nursing homes, has determined that Cooper’s Trace Nursing and Rehabilitation is 1-
Star or Much Below Average overall as a nursing home and for staffing
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Defendants’ Negligence and Recklessness with Holly Howes
47. Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HC
Consulting/Management, LLC received Holly Howes as a nursing home resident in July
2017.
48. Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HC
Consulting/Management, LLC agreed to accept Holly Howes into their facility and
provide care to her in exchange for monetary payment.
49. Holly Howes had a disorder called multiple sclerosis
50. Holly Howes was 41 years old when these events happened.
51. Defendants knew that Holly Howes had multiple sclerosis.
According to Centers for Medicare and Medicaid Services, Cooper’s Trace Nursing and Rehabilitation is much below Ohio and National averages for staffing in all
categories that are measured, including nurse, nurse aide, and therapy time.
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52. People with multiple sclerosis are known to be at an increased risk of skin
breakdowns and pressure sores because of limitations in movement.
53. Because of these numerous risk factors and prior falling incidents, Holly
Howes required additional supervision and precautions to prevent additional falls and
fall-related injuries.
54. Holly Howes was suffered numerous, large infected bedsores while under
the care of Cooper’s Trace, including Stage 4 ischial ulcer, sacral ulcer, and ulcers to her
hips, buttocks, and heels.
A bedsore found on Holly’s buttocks on May 10, 2018 at Cooper’s Trace Nursing and Rehabilitation.
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55. While a resident of Cooper’s Trace Nursing and Rehabilitation, Holly Howes
suffered osteomyelitis—an infection of the bone—in her sacrum and trochanter because
of the infected bedsores.
56. While a resident of Cooper’s Trace Nursing and Rehabilitation, Holly Howes
was permitted to suffer sepsis, a potentially deadly inflammatory response to an infection.
57. While a resident of Cooper’s Trace Nursing and Rehabilitation, Holly Howes
was permitted to become protein-calorie malnourished, which both causes bedsores and
prevents healing.
A photo of the pressure ulcer on Holly’s buttocks on May 18, 2018 at Cooper’s Trace Nursing and Rehabilitation.
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58. Holly Howes was prescribed methadone for her severe pain. Defendants
withheld and failed to deliver her medication causing her to be in severe, unnecessary
pain.
59. Holly Howes was permitted to fall several times, including on April 20,
2018, when she was allowed to fall and remain on the floor for approximately 5 hours
before Cooper’s Trace Nursing and Rehabilitation staff tended to her.
60. Co-Defendants Robert Bogli, D.O., Stephanie Siegrest, NP, and Arvind
Modawal, M.D. were medical and nursing providers responsible for providing medical
and nursing care within the standard of care while Holly Howes was a resident and who
did, for the reasons stated previously and as discovered in this lawsuit, failed to deliver
care to Holly Howes that was consistent with the standard of care.
61. Holly Howes suffered mental and physical pain suffering as a direct and
proximate result of Defendants’ failure to provide adequate care.
62. Holly Howes died on July 16, 2018 as a direct and proximate result of
Defendants’ failure to provide adequate care.
FIRST CAUSE OF ACTION (SURVIVORSHIP / NEGLIGENCE / RECKLESSNESS)
63. Plaintiff incorporates all other paragraphs of this Complaint as if fully
rewritten herein.
64. Holly Howes depended on the Defendants, and their respective nursing and
medical staff, for medical and nursing care, treatment, evaluation, and assistance.
65. The Defendants, including their medical and nursing staff, failed to provide
proper care and treatment to Holly Howes, which they knew or should have known she
required, resulting in her injury and death.
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66. The Defendants’ failure to provide proper care and treatment included, but
is not limited to:
l. Choosing to put inadequate prevention and response interventions in place to prevent falling and injuries, including deaths;
m. Choosing to provide inadequate resident observation, supervision, and monitoring;
n. Choosing to provide improper training to staff members regarding fall prevention and response;
o. Choosing to provide too few, and / or underqualified nursing staff members for the resident needs at the facility to protect and provide adequate care to residents like Holly Howes;
p. Choosing to not provide accurate, adequate, or timely information to Holly Howes’s family;
q. Choosing to violate state and federal regulations governing care and staffing levels in nursing home facilities by which residents like Holly Howes are a member of the class of persons intended to be protected from injuries like she suffered;
r. Choosing not to timely report to a physician significant changes in Plaintiff’s Decedent’s condition;
s. Choosing not to carry out the instructions of Plaintiff’s Decedent’s physician;
t. Choosing not to adequately, timely and consistently prevent, assess, and treat Plaintiff’s Decedent’s risk for falls;
u. Choosing not to adequately, timely and consistently prevent, assess, and treat Plaintiff’s Decedent’s risk for wounds;
v. Choosing not to adequately, timely and consistently prevent, assess, and treat Plaintiff’s Decedent’s risk for infections;
w. Choosing not to timely transfer Plaintiff’s Decedent to a facility that could provide adequate care;
x. Choosing not to have and/or implement appropriate policies and procedures regarding the prevention, assessment and treatment of residents at risk for falls;
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y. Choosing not to have and/or implement appropriate policies and procedures regarding the prevention, assessment and treatment of residents at risk for wounds;
z. Choosing not to have and/or implement appropriate policies and procedures regarding the prevention, assessment and treatment of residents at risk for infections;
aa. Choosing not to timely carry out and follow standing orders, instructions and protocol regarding the prevention of falls;
bb. Choosing not to timely carry out and follow standing orders, instructions and protocol regarding the prevention of wounds;
cc. Choosing not to timely carry out and follow standing orders, instructions and protocol regarding the prevention of infections;
dd. Choosing not to have and/or implement appropriate policies and procedures regarding the prevention, assessment and treatment of residents at risk for falls;
ee. Choosing to withhold and / or otherwise not provide medications that were ordered for pain; and
ff. Such other acts or omissions described in this Complaint or discovered during litigation.
67. The Defendants and their medical and nursing staff provided care to Holly
Howes that fell below the standard of care expected of medical care and nursing home
organizations, under the same or similar circumstances.
68. The departures from the standard of care included violating sections of
Federal Regulations, 42 C.F.R. § 483 et seq., and Ohio Administrative Code sections, OAC
3701-17 et seq.
69. As a direct and proximate result of the negligence described above, Holly
Howes sustained permanent injury and loss including, but not limited to, conscious pain
and suffering, disability, and her untimely and wrongful death.
70. WHEREFORE, Plaintiff demands judgment against the Defendants, jointly,
in an amount more than Twenty-Five Thousand Dollars ($25,000.00), for conscious pain
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and suffering, loss of enjoyment of life, together with costs of suit, attorney’s fees and
expenses, punitive and exemplary damages, and any other relief to which the decedent
may be entitled to and / or that the court finds is appropriate and / or equitable.
SECOND CAUSE OF ACTION (WRONGFUL DEATH)
71. Plaintiff incorporates all other paragraphs of this Complaint as if fully
rewritten herein.
72. Plaintiff brings this Cause of Action pursuant to Ohio’s Wrongful Death
Statute, Ohio Revised Code section 2125 et seq., for the benefit of Holly Howes’s heirs and
next of kin who have suffered loss and damage due to Holly Howes’s wrongful and
untimely death.
73. As a direct and proximate result of the negligence / recklessness described
above, Holly Howes sustained physical injuries that caused her untimely and wrongful
death.
74. Plaintiff and Holly Howes’s additional next-of-kin suffered damages as set
forth in the Ohio Wrongful Death statute, including mental anguish and grief, medical
and funeral expenses, and loss of decedent’s support, services, society and
companionship.
75. WHEREFORE, Plaintiff demands judgment against the Defendants, jointly,
in an amount more than $25,000.00 to compensate the decedent’s next of kin and heirs
at law, together with costs of suit, attorney’s fees and expenses, exemplary damages, and
any other relief the court finds is appropriate and / or equitable.
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THIRD CAUSE OF ACTION (NURSING HOME RESIDENT RIGHTS VIOLATION R.C. 3721.13)
76. Plaintiff incorporates all other paragraphs of this Complaint as if fully
rewritten herein.
77. Defendants, directly or through their employees or agents, violated Holly
Howes’s rights as a resident of the Defendants’ facilities, as enumerated in Ohio Revised
Code section 3721.13, including, but not limited to, the right to adequate and appropriate
medical treatment and nursing care.
78. These violations constitute negligence per se and give rise to a statutory
cause of action.
79. As a direct and proximate result of Defendants’ violations of R.C. 3721.13,
Holly Howes endured conscious pain and suffering and disability, incurred medical
expenses, suffered her untimely death, and was otherwise harmed.
80. WHEREFORE, Plaintiff demands judgment against the Defendants, jointly,
in an amount in excess of $25,000.00, together with costs of suit, attorney’s fees and
expenses, punitive and exemplary damages, and any other relief to which the court finds
is appropriate and / or equitable.
FOURTH CAUSE OF ACTION (VIOLATION OF R.C. 3701.74(C))
81. Plaintiff brings this Cause of Action against Blue Ash Healthcare, LLC,
Hillstone Healthcare, Inc., and HC Consulting/Management, LLC only.
82. Plaintiff incorporates all other paragraphs of this Complaint as if fully
rewritten herein.
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83. Sandra Howes is the duly appointed Administrator of the Estate of Holly
Howes.
84. As the estate representative, she is entitled by law to receive the medical
records of Holly Howes upon request from the facility, in the format of her choice.
85. Sandra Howes first requested medical records from Cooper’s Trace Nursing
and Rehabilitation in February 2019 and requested those records in accordance with the
Health Information Technology for Economic and Clinical Health (HITECH) Act. 45 CFR
164.524(c)(2)(ii).
86. The Estate of Holly Howes’ legal representatives contacted Cooper’s Trace
for medical records following that initial request on:
a. March 27, 2019
b. March 28, 2019
c. March 30, 2019
d. April 1, 2019
e. April 3, 2019
f. April 4, 2019
g. April 8, 2019
h. April 18, 2019
i. April 23, 2019
j. April 24, 2019
k. May 8, 2019
l. May 13, 2019
m. May 15, 2019
n. May 16, 2019
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o. May 17, 2019
p. May 18, 2019
q. June 17, 2019
87. On those various occasions, The Estate of Holly Howes’ representatives
spoke to various individuals at Cooper’s Trace Nursing and Rehabilitation concerning
these medical records requests, including Cierra Arrington and Heather Cheeseman.
88. Defendants have refused to comply with Plaintiff’s requests for medical
records in violation of R.C. 3701.74 and HITECH.
89. Defendants’ delay in providing these medical records has been
unreasonable, unnecessary, and unjustified.
90. WHEREFORE, Plaintiff demands judgment against Defendants Blue Ash
Healthcare, LLC, Hillstone Healthcare, Inc., and HC Consulting / Management, LLC.,
jointly, in an amount more than $25,000.00 to compensate the decedent’s next of kin and
heirs at law, together with costs of suit, attorney’s fees and expenses, exemplary damages,
previously requested medical records, and any other relief the court finds is appropriate
and / or equitable.
FIFTH CAUSE OF ACTION (FRAUD)
91. Plaintiff brings this Cause of Action against Blue Ash Healthcare, LLC,
Hillstone Healthcare, Inc., and HC Consulting/Management, LLC only.
92. Plaintiff incorporates all other paragraphs of this Complaint as if fully
rewritten herein.
93. Defendants concealed facts concerning their staffing levels, pay, and the
amount of care they were actually capable of providing at the facility.
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94. Not only did Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare,
Inc., and HC Consulting/Management, LLC conceal this information, they publicly and
privately represented that they provide exceptional care to induce the family of Holly
Howes and other potential customers to place their loved ones in their care and custody.
95. These inducements were made falsely, with knowledge of their falsity, or
with such utter disregard and recklessness as to whether they were true or false that
knowledge may be inferred with the intent of misleading Holly Howes’ family and other
potential customers into placing their loved ones in the care and custody of Cooper’s Trace
Nursing and Rehabilitation.
96. Holly Howes, her family, and family members of other potential customers
reasonably relied on Defendants’ representations and concealments regarding the degree
of care they provide.
97. The result of these inducements and concealments was that Holly Howes’
family, and the family of numerous other residents, allowed their loved one to be placed
in Defendants’ Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., and HC
Consulting/Management, LLC’s facility.
98. As a direct and proximate result of Defendants Blue Ash Healthcare, LLC,
Hillstone Healthcare, Inc., and HC Consulting/Management, LLC’s actions,
representations, and concealments, Holly Howes suffered conscious pain and suffering
and death.
99. As a direct and proximate result of Defendants Blue Ash Healthcare, LLC,
Hillstone Healthcare, Inc., and HC Consulting/Management, LLC’s action,
representations, and concealments, Holly Howes’ next-of-kin have experienced harms
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and losses as a result of her death, including those damages set forth in Ohio’s wrongful
death statute— R.C. 2125.02.
100. WHEREFORE, Plaintiff demands judgment against the Defendants Blue
Ash Healthcare, LLC, Hillstone Healthcare, Inc., and HC Consulting / Management, LLC.,
jointly, in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00), together
with costs of suit, attorney’s fees and expenses, punitive and exemplary damages, and any
other relief to which the court finds is appropriate and/or equitable.
A TRIAL BY JURY IS HEREBY DEMANDED
/s/ Michael A. Hill
WILLIAM B. EADIE (0085627) MICHAEL A. HILL (0088130) EADIE HILL TRIAL LAWYERS 3100 East 45th St., Suite 400 Cleveland, Ohio 44127 (216) 777-8856 (o) | (216) 716-2502 (f) [email protected] [email protected] www.eadiehill.com Counsel for Plaintiff
ST ATE OF OHIO
CUYAHOGA COUNTY
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AFFIDAVIT OF MERlT
Affiant MARK SHOAG, M.D., having been first duly sworn, states:
1. I am an adult, with no known disability preventing my truthful testimony, and have personal knowledge of the matters contained within this affidavit.
2. I am a full-time practicing physician in the fields of Geriatric and Internal Medicine, licensed in the state of Ohio, board certified in Internal Medicine, and a medical director of a long-term acute care hospital, spending more than 50% of my professional time providing direct patient care.
3. Through my specialized knowledge, skill, training, experience, and education, I am familiar with the standard of care applicable to the medical and nursing care and treatment that was provided to Holly Howes in 2017and 2018 when fell multiple times and developed bed sores leading to osteomyelitis, sepsis and death- while a skilled nursing and rehabilitation resident atBlue Ash Care Center of Blue Ash, Ohio.
4. I have reviewed all medical records reasonably available to the Estate of Holly Howesconcerning the allegations of negligence causing her death.
5. To a reasonable degree of medical probability, it is my opinion that the medical and nursing care and treatment provided to Holly Howesby medical and nursing staff at Blue Ash Care Center, including by Robert Bogli, D.O., Stephanie Siegrist, N.P., and Arvind Modawal, M.D. deviated from the established standard of care and the breach caused injury to Holly Howes, including herfalls, bed sores, sepsis,and death.
FURTHER AFFIANT SA YETH NAUGHT.
MARK SHOAG, M.D.,
SWORN TO BEFORE ME and subscribed in my presence this 3 day of July 2019.
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