CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 1 of 162 Trans ID: LCV2019863158 Anthony Cocca, Esq. #000821994 COCCA & CUTINELLO, LLP The Point at Morristown 36 Cattano Ave., Suite 600 Morristown, NJ 07960 (973) 828-9000; Fax (973) 828-9999 Attorneys for Defendants Elmwood Evesham Associates, LLC d/b/a Care One at Evesham, Care One Management, LLC and Joseph Mina JOSEPH L. CAPANO, Executor of the Estate of ANDREW P. CAPANO, Plaintiff, v. CARE ONE AT EVESHAM, ELMWOOD EVESHAM ASSOCIATES, LLC, JOSEPH MINA, ADMINISTRATOR, CARE ONE MANAGEMENT, LLC, JOHN/JANE DOE ADMINISTRATOR 1-100; JOHN/JANE DOE DIRECTOR OF NURSING 1-100; JOHN/JANE DOE NURSE 1-100; JOHN/JANE DOE CNA 1-100; JOHN/JANE DOE MANAGEMENT COMPANY 1-100; JOHN/JANE DOE MEDICAL DIRECTOR 1-100; JOHN/JANE DOES 1-100; JOHN/JANE DOE CORPORATION 1-100, individually, jointly, severally and/or in the alternative, Defendants. : SUPERIOR COURT OF NEW JERSEY : LAW DIVISION: CAMDEN COUNTY : DOCKET NO. CAM-L-0507-17 : : Civil Action : : NOTICE OF MOTION : : : : : : : : : : : : : : TO: Richard Talbot, Esq. Law Offices of Andrew A. Ballerini 535 Route 38, Suite 328 Cherry Hill, NJ 08002 COUNSEL: PLEASE TAKE NOTICE that on Friday, June 21, 2019, at 9:00 a.m. or as soon thereafter as counsel may be heard, that Cocca & Cutinello, LLP, counsel for defendants Elmwood Evesham Associates, LLC d/b/a Care One at Evesham, Care One Management and CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 2 of 162 Trans ID: LCV2019863158 Joseph Mina, shall move the above Court for an order dismissing with prejudice for failure to state a claim upon which relief may be granted and/or for summary judgment in defendants’ favor on the following claims set forth in plaintiff’s complaint: The second count, alleging violations of New Jersey’s Nursing Home Responsibilities and Rights of Residents Act (“NHA”), N.J.S.A. 30:13-1 to -17 and noncompliance with the federal Requirements for Long Term Care Facilities or “OBRA regulations”, 42 C.F.R. § 483; All claims alleging noncompliance with New Jersey and federal statutes and administrative regulations, including those set forth in the first count ¶3 and ¶13(G), and in the second count; The NHA “rights” claim set forth in the sixth count; All claims for punitive damages, including those set forth in the fifth count and in the wherefore clauses in each count of the complaint; and All claims against Care One Management, LLC and Joseph Mina, in his capacity as administrator of Care One at Evesham, including those set forth in the eighth count of the complaint. Defendants shall rely upon the enclosed brief, certification of counsel and statement of material facts. A proposed form of order is also provided. Oral argument is requested. Pretrial Conference: None Trial Date: August 19, 2019 Calendar Call: August 19, 2019 COCCA & CUTINELLO, LLP Attorneys for Defendants Elmwood Evesham Associates, LLC d/b/a Care One at Evesham, Care One Management, LLC and Joseph Mina Dated: May 16, 2019 By: Anthony Cocca, Esq. 2 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 3 of 162 Trans ID: LCV2019863158 CERTIFICATION OF SERVICE I hereby certify that on this date an original and one copy of the within notice of motion and supporting papers were submitted for filing and service on counsel listed below, through the New Jersey Judiciary’s Electronic Filing System. Richard Talbot, Esq. Law Offices of Andrew A. Ballerini 535 Route 38, Suite 328 Cherry Hill, NJ 08002 dchico@comcast.net Counsel for plaintiff Joseph L. Capano, Executor of the Estate of Andrew P. Capano I hereby certify the foregoing statements made by me are true. I am aware that if any of the foregoing statements are willfully false, I am subject to punishment. Dated: May 16, 2019 Jessica A. Piccola 3 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 4 of 162 Trans ID: LCV2019863158 Anthony Cocca, Esq. #000821994 COCCA & CUTINELLO, LLP The Point at Morristown 36 Cattano Ave., Suite 600 Morristown, NJ 07960 (973) 828-9000; Fax (973) 828-9999 Attorneys for Defendants Elmwood Evesham Associates, LLC d/b/a Care One at Evesham, Care One Management, LLC and Joseph Mina JOSEPH L. CAPANO, Executor of the Estate of ANDREW P. CAPANO, Plaintiff, v. CARE ONE AT EVESHAM, ELMWOOD EVESHAM ASSOCIATES, LLC, JOSEPH MINA, ADMINISTRATOR, CARE ONE MANAGEMENT, LLC, JOHN/JANE DOE ADMINISTRATOR 1-100; JOHN/JANE DOE DIRECTOR OF NURSING 1-100; JOHN/JANE DOE NURSE 1-100; JOHN/JANE DOE CNA 1-100; JOHN/JANE DOE MANAGEMENT COMPANY 1-100; JOHN/JANE DOE MEDICAL DIRECTOR 1-100; JOHN/JANE DOES 1-100; JOHN/JANE DOE CORPORATION 1-100, individually, jointly, severally and/or in the alternative, Defendants. : SUPERIOR COURT OF NEW JERSEY : LAW DIVISION: CAMDEN COUNTY : DOCKET NO. CAM-L-0507-17 : : Civil Action : : ORDER : : : : : : : : : : : : : : THIS MATTER having been opened to the Court by Cocca & Cutinello, LLP, attorneys for defendants Elmwood Evesham Associates, LLC d/b/a Care One at Evesham, Care One Management and Joseph Mina, by way of motion to dismiss specified claims with prejudice for failure to state a claim upon which relief may be granted and/or for summary judgment in defendants’ favor, and the Court having considered the papers submitted, opposing papers and oral argument, if any, and for good cause having been shown; IT IS on this day of 2019; CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 5 of 162 Trans ID: LCV2019863158 ORDERED that defendants’ motion to dismiss the specified counts of plaintiff’s complaint for failure to state a claim upon which relief can be granted is GRANTED; and it is further ORDERED that defendants’ motion for summary judgment on the specified counts of plaintiff’s complaint is GRANTED; and it is further ORDERED the second count of plaintiff’s complaint, alleging violations of New Jersey’s Nursing Home Responsibilities and Rights of Residents Act (“NHA”), N.J.S.A. 30:13-1 to -17, noncompliance with the federal Requirements for Long Term Care Facilities or “OBRA regulations”, 42 C.F.R. § 483, and other federal and New Jersey statutes and administrative regulations are DISMISSED WITH PREJUDICE; and it is further ORDERED that all claims alleging noncompliance with New Jersey and federal statutes and administrative regulations, including those set forth in ¶3 and ¶13(G) of the first count and in the second count of plaintiff’s complaint are DISMISSED WITH PREJUDICE; and it is further ORDERED that all claims for punitive damages, including those set forth in the fifth count and the wherefore clause in each count of the complaint are DISMISSED WITH PREJUDICE; and it is further ORDERED that all claims against defendant Care One Management, LLC are DISMISSED WITH PREJUDICE; and it is further ORDERED that all claims against Joseph Mina, in his capacity as administrator of Care One at Evesham, including those set forth in the eighth count of the complaint are DISMISSED WITH PREJUDICE; and it is further 2 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 6 of 162 Trans ID: LCV2019863158 ORDERED that an executed copy of this order shall be served upon all parties by way of operation of the Court’s electronic filing system. ______________________________ , J.S.C. Opposed Unopposed ______ 3 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 7 of 162 Trans ID: LCV2019863158 Anthony Cocca, Esq. #000821994 COCCA & CUTINELLO, LLP The Point at Morristown 36 Cattano Ave., Suite 600 Morristown, NJ 07960 (973) 828-9000; Fax (973) 828-9999 Attorneys for Defendants Elmwood Evesham Associates, LLC d/b/a Care One at Evesham, Care One Management, LLC and Joseph Mina JOSEPH L. CAPANO, Executor of the Estate of ANDREW P. CAPANO, Plaintiff, v. CARE ONE AT EVESHAM, ELMWOOD EVESHAM ASSOCIATES, LLC, JOSEPH MINA, ADMINISTRATOR, CARE ONE MANAGEMENT, LLC, JOHN/JANE DOE ADMINISTRATOR 1-100; JOHN/JANE DOE DIRECTOR OF NURSING 1-100; JOHN/JANE DOE NURSE 1-100; JOHN/JANE DOE CNA 1-100; JOHN/JANE DOE MANAGEMENT COMPANY 1-100; JOHN/JANE DOE MEDICAL DIRECTOR 1-100; JOHN/JANE DOES 1-100; JOHN/JANE DOE CORPORATION 1-100, individually, jointly, severally and/or in the alternative, Defendants. : SUPERIOR COURT OF NEW JERSEY : LAW DIVISION: CAMDEN COUNTY : DOCKET NO. CAM-L-0507-17 : : Civil Action : : CERTIFICATION OF COUNSEL : : : : : : : : : : : : : : Anthony Cocca, Esq., of full age, hereby certifies and says: 1. I am an attorney at law of the State of New Jersey and a partner with the law firm of Cocca & Cutinello, LLP, attorneys for defendants Elmwood Evesham Associates, LLC d/b/a Care One at Evesham, Care One Management and Joseph Mina. As such, I am familiar with the facts set forth herein. CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 8 of 162 Trans ID: LCV2019863158 2. I make this certification in support of defendants’ motion to dismiss for failure to state a claim upon which relief may be granted or for summary judgment in defendants’ favor on the specified claims set forth in plaintiff’s complaint. 3. Attached hereto as Exhibit A is a true and correct copy of plaintiffs’ complaint, filed February 2, 2017. Andrew P. Capano passed away April 1, 2017, about two months after suit was filed. This firm was substituted as defense counsel on February 18, 2019. Based on a review of the file received from prior counsel and available through the Court’s website, we are unable to determine how the caption was modified. 4. Attached hereto as Exhibit B is a true and accurate copy of the opinion in Watson v. Sunrise Senior Living Facility, Inc., 2015 U.S. Dist. LEXIS 93962 (D.N.J. July 17, 2015). Pursuant to R. 1:36-3, I am not aware of any contrary unpublished opinions. 5. Attached hereto as Exhibit C is a true and accurate copy of the opinion in Friedenberg v. Lincoln Park Care Center, LLC, Docket No. ESX-L-003475-14 (Law Div. Mar. 28, 2016). Pursuant to R. 1:36-3, I am not aware of any contrary unpublished opinions. 6. Attached hereto as Exhibit D is a true and accurate copy of the report of Lance R. Youles, served by correspondence dated October 12, 2018. 7. Attached hereto as Exhibit E is a true and accurate copy of the report of John Kirby, M.D., served by correspondence dated October 5, 2018. 8. Attached hereto as Exhibit F is a true and accurate copy of the report of Bonnie Tadrick, R.N., served by correspondence dated January 23, 2019. 2 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 9 of 162 Trans ID: LCV2019863158 I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements are willfully false, I am subject to punishment. Dated: May 16, 2019 By: Anthony Cocca, Esq. 3 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 10 of 162 Trans ID: LCV2019863158 Exhibit CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 11 Of 162 Trans ID: LCV2019863158 A Iendix XII-B1 CIVIL CASE INFORMATION TYPE, DOG Elm (CIS) No. Use for initial Law Division AMOUNT: Civil Part pleadings (not motions) under Rule 4:5?1 Pleading will be rejected for filing, under Rule OVERPAYMENT: if information above the black bar is not compieted or attorney's signature is not affixed BATCH NUMBER: SE NAME TELEPHONE COUNTY OF VENUE - ~12; fwr?"M Richard J. Talbot, Camden FIRM NAME (if applicable) NUMfgaghen; vailable) . We?; I j; I Law Of?ce of Andrew A. Ballenn: I573 TI 0 . OFFICE ADDRESS II 2 2017 DOCUMENT TYPE Cherry Tree Corporate Center IL FEB Complaint 535 Route 38, Suite 328 i W. er Hill, NJ 03002 I 0 JURY DEMAND YES [3 No ry . . COUII NAME OF PARTY John Doe, Plaintiff) . Andrew P. Capano by and through Andrew P. Capano by and through POA, Joseph L. Capano vs. his POA, Joseph .Capano, Plaintiff Care One at EveSham, et alS CASE TYPE NUMBER HURRICANE SANDY (See reverse side for listing) IS THIS A PROFESSIONAL MALPRACTICE YES No 607 YES IF YOU HAVE CHECKED SEE N.J.S.A. A 27 AND APPLICABLE CASE LAW REGARDING YOUR OBLIGATION To FILE AN AFFIDAVIT OF MERIT. RELATED CASES iF YES, LIST DOCKET NUMBERS YES No DO YOU ANTICIPATE ADDING ANY PARTIES 7 NAME OF PRIMARY INSURANCE COMPANY (if known) (arising out ofsame transaction or occurrence)? El NONE [3 YES 3 No DO PARTIES HAVE A CURRENT, PAST OR IF YES. 18 THAT RELATIONSHIP: RECURRENT Lj OTHER (explain) YES FAMILIAL BUSINESS Patient/Resident DOES THE STATUTE GOVERNING THIS CASE PROVIDE FOR PAYMENT OF FEES BY THE LOSING YES NO USE THIS SPACE TO ALERT THE COURT TO ANY SPECIAL CASE CHARACTERISTICS THAT MAY WARRANT INDIVIDUAL MANAGEMENT OR ACCELERATED DISPOSITION (EV DO YOU OR YOUR CLIENT NEED ANY DISABILITY IF YES, PLEASE IDENTIFY THE REQUESTED ACCOMMODATION YES No WILL AN SE ?Exam IILYES, FOR WHAT El YES No ?fr/?f I certify that confidential personal been redacted from documents now submitted to the court, and will be redacted from all documents submditteci'igxne future in accordance with Rule . x? I I I - ATTORNEY SIGNATURE: mix? a ?f ?if? . Effective 10/01/2016, CN 10517 page 1 of2 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 12 of 162 Trans ID: LCV2019863158 CIVIL CASE INFORMATION STATEMENT (one) Use foriinitial pleadings (not motions) under Ruie 4:5-1 I CASE TYPES (Choose one and enter number of case type in appropriate space on the reverse side.) Track I - 150 days? discovery 151 NAME CHANGE - 0 175 FORFEITURE 302 TENANCY 399 REAL PROPERTY (other than Tenancy, Contract, Condemnation. Complex Commercial or Construction) 502 BOOK ACCOUNT (debt coitection matters only) 505 OTHER CLAIM'(inciuding declaratory judgment actions) 506 PIP COVERAGE 510 UM or UIM CLAIM (coverage issues only) 511 ACTION ON NEGOTIABLE INSTRUMENT 512 LEMON LAW 801 SUMMARY ACTION 802 OPEN PUBLIC RECORDS ACT (summary action) 999 OTHER (brie?y describe nature of action) Track II - 300 days' discovery 305 CONSTRUCTION 509 EMPLOYMENT (other than?CEPA or LAD) 599 TRANSACTION 603N AUTO NEGLIGENCE PERSONAL INJURY (non~verbal threshold) 603Y AUTO NEGLIGENCE PERSONAL INJURY (verbal threshold) 605 PERSONAL INJURY 610 AUTO NEGLIGENCE PROPERTY DAMAGE 621 UM or UIM CLAIM (includes bodily Injury) 699 TORT OTHER Track - 450 days? discovery 005 CIVIL RIGHTS 301 CONDEMNATION 602 ASSAULT AND BATTERY 604 MEDICAL MALPRACTICE 606 PRODUCT 607 PROFESSIONAL MALPRACTICE 608 TOXIC TORT 609 DEFAMATION 616 WHISTLEBLOWER I CONSCIENTIOUS EMPLOYEE PROTECTION ACT (CEPA) CASES 617 INVERSE CONDEMNATION 618 LAW AGAINST DISCRIMINATION (LAD) CASES Track IV 55" Active Case Management by Individual Judge i 450 days' discovery 156 COVERAGE 303 MT. LAUREL 508 COMPLEX COMMERCIAL 513 COMPLEX CONSTRUCTION 514 INSURANCE FRAUD 620 FALSE CLAIMS ACT 701 ACTIONS IN LIEU OF PREROGATIVE WRITS Multicounty Litigation (Track IV) 271 ACCUTANEIISOTRETINOIN 292 PELVIC 274 293 DEPUY ASR HIP IMPLANT LITIGATION 281 BRISTOL-MYERS SQUIBB ENVIRONMENTAL 295 ALLODERM REGENERATIVE TISSUE MATRIX . 282 FOSAMAX 296 REJUVENATEIABG II MODULAR HIP STEM COMPONENTS 285 TRIDENT HIP IMPLANTS .1 297 MIRENACONTRACEPTIVE 286 LEVAQUIN 299 OLMESARTAN MEDOXOMIL 287 300 TALC-BASED BODY POWDERS 289 REGLAN 601 ASBESTOS 290 POMPTON LAKES ENVIRONMENTAL LITIGATION 623 PROPECIA 291 PELVIC Ifyou believe this case requires a track other than that provided above, please Indicate the reason on Side 1, in the space under "Case Characteristics. Please check off each applicable category Putative Class Action I:l Title 59 Effective 1010112016. CN 10517 page 2 of 2 RICHARD J. TALBOT, ESQUIRE CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 13 of 162 Trans ID: LCV2019863158 040771993 LAW OFFICE OF ANDREW A. BALLERINI V?r_mww Attorney At Law Cherry Tree Corporate Center 535 Route 38, Suite 328 Cherry Hill, New Jersey (856) 665~7l40 Attorney for Plaintiffs 08002 ANDREW P. CAPANO, by and through his Power of Attorney, JOSEPH L. CAPANO, Plaintiff, vs. CARE ONE AT EVESHAM, ELMWOOD EVESHAM ASSOCIATES, LLC, JOSEPH MINA, ADMINISTRATOR, CARE ONE MANAGEMENT, LLC, DOE ADMINISTRATOR 1-100; DOE DIRECTOR OF NURSING 1?100; DOE NURSE l~100; DOE CNA l~100; DOE MANAGEMENT COMPANY 1?100; DOE MEDICAL DIRECTOR lthO; DOES l?lOO; DOE CORPORATION 1?100; individually, jointly, severally, and/or in the alternative, WWI Defendants, 111 2 curt guppnorg a SUP: NEW JERSEY CAMDEN COUNTY LAW DIVISION DOCKET NO. 60 7?/7 COMPLAINT, DEMAND FOR JURY TRIAL, AND DESIGNATION OF TRIAL COUNSEL CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 14 of 162 Trans ID: LCV2019863158 Plaintiff, Andrew P. Capano, by and through her Power of Attorney, Joseph L. Capano: residing at 128 Knollwood Drive, Cherry Hill, Camden County, New Jersey, by way of Complaint against all Defendants, states as follows: 1. All statutory and regulatory claims, claims of negligence, gross negligence and punitive damages are specifically alleged against each and every Defendant named in all Counts. The Plaintiffs, by way of Complaint against g_l of the above?named defendants, Care One at Evesham, Elmwood Evesham Associates, LLC, Joseph Mina, Administrator, Care One Management, LLC, John/Jane Doe Administrator 1?100, John/Jane Doe Director of Nursing 1-100, John/Jane Doe Nurse 1?100, John/Jane Doe CNA 1~100, John/Jane Doe Management Company 1?100, John/Jane Doe Medical Director 1?100, John/Jane Does 1?100, and/or John/Jane Doe Corporation lH 100, individually, jointly, severally, and/or in the alternative, say as follows: FIRST COUNT l. The resident, Andrew P. Capano, was a resident of the defendant nursing home, Care One at Evesham, otherwise named above, as well, located at 870 East Route 70, in Marlton, Burlington County, New Jersey, 08053, on or about the dates of November 24?, 2015, through on or about CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 15 of 162 Trans ID: LCV2019863158 February 16, 2016,.during which time he developed significant pressure ulcer(s) and a significant catheter injury to his penis. 2. The resident, Andrew P. Capano, was born on December 28, 1957, and was 57 and 58 years of age at the time these cause(s) of action arose. 3. The provisions of OBRA (Omnibus Budget Reconciliation Act of 1987) were applicable with regard to the Plaintiff?s condition as it existed at all relevant times. 4. The above named defendants held themselves out as specialists in the field of adult nursing care and rehabilitation with the expertise necessary to maintain the health and safety of persons unable to care adequately for themselves. 5. The above named defendants were under a contractual duty to provide reasonable and adequate health care and rehabilitation to resident, Andrew P. Capano, consistent with existing community standards. 6. At all Andrew P. Capano, was a resident of the abovewnamed defendants at a nursing facility, known as defendant, Care One at Evesham, pursuant to the terms of the Admission Agreement and, as CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 16 of 162 Trans ID: LCV2019863158 3 such, was under the exclusive care and control of the defendants and their agents, officers, servants and/or employees. 7. The defendants, its agents, officers, servants and/or employees failed, refused and/or neglected to perform the duties to provide reasonable and adequate health care and rehabilitation to and for resident, Andrew P. Capano, who was unable to attend to his/her own health and safety. 8, The defendants, its agents, officers, servants and/or employees negligently, carelessly and/or recklessly provided care and treatment to resident, Andrew P. Capano, and all of the alleged acts, omissions and occurrences herein described or performed by the defendants, its agents, officers, servants and/or employees fell within the course and scope of their agency and employment with the defendants and in furtherance of the defendants? business. 9. While the resident, Andrew P. Capano, was a resident of the defendant nursing facility, she/he sustained ?mmserious injuries due to the negligence of the_defendants and violations of residents? rights, in addition to suffering, severe bedsores, pressure ulcers, infection, catheter injury(ies) and medical complications caused by CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 17 of 162 Trans ID: LCV2019863158 inappropriate monitoring of medical conditions and medicinal monitoring, over the course of his/her residency at the defendant nursing home. 10. Throughout the time that resident, Andrew P. Capano, was a resident of the defendant nursing facility, defendants, Care One at Evesham, Elmwood Evesham Associates, LLC, John/Jane Does lulOO, and/or John/Jane Doe Corporation 1-100, owned the physical plant of the defendant nursing facility. 11. Throughout the time that resident, Andrew P. Capano, was a resident of the defendant Nursing facility, Defendants, Care One at Evesham, Elmwood Evesham Associates, LLC, Care One Management, LLC, John/Jane Doe Management Company 1-100, John/Jane Does 1~100, and/or John/Jane Doe Corporation 1?100, were, managers, director(s), officer(s), and/or stockholder(s) of the applicable defendants. 12. Throughout the time that resident, Andrew P. Capano, was a resident of the defendant nursing facility, all of the named defendants, had significant control over the day to day operations of the defendant nursing facility. CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 18 of 162 Trans ID: LCV2019863158 13. The negligence, as well as gross negligence, and violations of rights committed by all of the defendants included, but was not limited to the following, to wit: (A)permitting abuse of the Plaintiff; (B) condoning the failure of employees to immediately report to supervisory personnel acts of abuse of the Plaintiff; permitting inadequate and false charting of the Plaintiff?s medical records; (D) failure to notify the physician and the Plaintiff and Plaintiff's family in a timely manner of action which affected the Plaintiff's safety and wellwbeing; (E) failure to hire a sufficient number of trained and competent staff, as evidenced by continuous under staffing; (F) condoning questionable recording/charting in the Plaintiff?s medical records; (G) violating New Jersey Statutes, New Jersey Administrative Regulations, as well as OBRA regulations; (H) failure to adhere to the plan of care; (I) failure to discharge employees when the facility knew or should have known of the employee?s propensity for negligent care of the Plaintiff; (J) condoning, and thus allowing, untrained/unlicensed individuals to provide care to the Plaintiff; (K) failure to properly train employees to CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 19 of 162 Trans ID: LCV2019863158 deal with geriatric residents who are unable to care for themselves as well as residents in need of rehabilitation; (L) failure to properly investigate the background of perspective employees; (M) failure to notify supervisors of the onmcall physician's failure to properly care for the resident, Andrew P. Capano, as required by regulations in effect at the time of this incident; (N) failure to train the employees to recognize medical which required the Plaintiff?s transfer to the hospital; (0) failure to properly train employees to deal with geriatric/disabled residents who are incapacitated; (P) failure to provide an appropriate and/or timely care nlanL (Q) failure to properly train employees to deal with geriatric/disabled residents who are incapacitated and likely to develon decubitus or pressure ulcers; (R) failure to prevent development and/or worsenino of decubitus or pressure ulcers; failure to Dronerlv treat, recognize and/or diagnose_decubitus or pressure ulcers; (T) failure to prevent infection; (U) failure to provide adequate nutrition; (V) failure to provide adequate hydration; (W) failure to properly manage and administer the subject nursing home; (X) failure to nronerly monitor and assess; CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 20 of 162 Trans ID: LCV2019863158 (Y) failure to transfer the resident to the appropriate facility; (Z) failure to properly administer medication(s); (AA) failure to appropriately catheterize, treat andfor monitor the cathertization. l4. This action is commenced within two years of the date(s) of the accrual(s) of this/these cause(s) of action. 15. As a direct and proximate result of the aforesaid carelessness, recklessness and negligence, as well as gross negligence, of all of the defendants the resident, Andrew P. Capano, suStained severe personal injuries of both a permanent and temporary nature, and was forced to endure great pain and suffering, as well as damages of economic and non~economic nature, disability, impairment and the loss of enjoyment of life, in to addition to being forced to incur medical expenses in the care and treatment of said injuries. WHEREFORE, Plaintiffs, demand judgment against all of the defendants, individually, jointly, severally, and in the alternative, which will reasonably compensate them/him/her for the significant injuries, pain and suffering, compensatory damages of economic and non?economic nature, and other damages sustained, together with attorneys' fees, punitive damages, interest and costs of suit. CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 21 of 162 Trans ID: LCV2019863158 1. For the sake of'brevity, the Plaintiff hereby repeat the allegations of the previous Counts and incorporate those allegations in this Count as if set forth more fully herein. 2. N.J.S.A. 30:l3~1, et. seq. requires that the defendants comply with all Federal, State and local rules, regulations, and statutes, with regard to long?term care facilities. 3. All of the defendants violated OBRA regulations, which establish the minimum standard of care to be followed by defendants, including but not limited to the following: (A) 42 C.F.R. 483.13 the facility must ensure that all alleged violations involving mistreatment, neglect or abuse, including injuries of unknown source are reported immediately to the Administrator of the facility and to other officials in accordance with State law through established procedures, including to the State Survey and Certification Agency;(B) 42 C.F.R. the facility must provide services by sufficient number of each of the following types of personnel on a twenty four (24) hour basis to provide nursing care to all residents in accordance with resident care plans (I) except when waived CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 22 of 162 Trans ID: LCV2019863158 under paragraph of this section, licensed nurses; and (ii) other nursing C.F.R. 483.25 each resident must receive and the facility must provide, the necessary care and services to attain and maintain the highest practicable physical, mental and well? being, in accordance with the comprehensive asSessment;(D) 42 C.F.R. the facility failed to conduct an assessment after a significant change in resident?s condition;(E) 42 C.F.R. Comprehensive Care Plans the facility must develop a comprehensive care plan that includes measurable objectives and timetables to meet a resident's medical, nursing, mental and needs that are identified in the comprehensive assessment. The plan of care must deal with the relationship of items or services ordered to be provided (or withheld) to the facility?s responsibility for fulfilling other requirements in these regulations; C.F.R. 483.10 Residents? Rights; (G) 42 C.F.R. the facility failed to conduct an assessment after a significant change in resident?s condition;(H) 42 C.F.R. 483.25 based on a resident's comprehensive assessment, the facility must ensure that a resident maintain acceptable parameters of 10 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 23 of 162 Trans ID: LCV2019863158 nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrate that this is not possible; and (2) receive a therapeutic diet when there is a nutritional problem;(I) 42 C.F.R. 483.25 of the OBRA Regulations based on the comprehensive assessment of a resident, the facility must ensure that (1) a resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable; and (2) a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing; (J) 42 C.F.R. 483.15 Quality of Life; (K) 42 C.F.R. 483.75 Administration; and (L) 42 C.F.R. 483.25 regarding unnecessary drugs by administering the wrong drug(s). 4. The resident, Andrew P. Capano, fell within the class of persons the statutory rules, regulations and laws were intended to protect by virtue of N.J.S.A. 30:13w1, et. seq. and the Federal Regulations at 42 C.F.R. 483, et. seq., thus entitling the plaintiff to adopt such laws as the standard of care for measuring defendants' conduct. 11 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 24 of 162 Trans ID: LCV2019863158 5. The Plaintiff pleads all of the state and federal statutes, rules and regulations ih support of both the negligence claims in proving deviations from standards of care, and the violations of rights claims, under N.J.S.A. 30:l3wl, et. seq. and the Federal OBRA Regulations at 42 C.F.R. 483, et. seq. 6. As a direct and proximate result of the aforesaid carelessness, recklessness and negligence, as well as gross negligence, of all of the defendants, Resident, Andrew?P. Capano, sustained severe personal injuries of both a permanent and temporary nature, was forced to endure great pain and suffering, damages of economic and non?economic nature, disability, impairment and the loss of enjoyment of life, and was forced to incur medical expenses in the care and treatment of said injuries. WHEREFORE, Plaintiffs, demand judgment against all of the defendants, individually, jointly, severally, and in the alternative, which will reasonably compensate them/him/her for the significant injuries, pain and suffering, compensatory damages of economic and non?economic nature, and other damages sustained, together with attorneys? fees, punitive damages, interest and costs of suit, consistent with OBRA Regulations, and N.J.S.A. 30:13?1, et. seq. 12 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 25 of 162 Trans ID: LCV2019863158 1121313 COUNT 1. For the sake of Ibrevity, the plaintiffs hereby repeats the allegations of the previous Counts and incorporate those allegations in this Count as if set forth more fully herein. 2. At all relevant times hereto, all of the defendants knew or should have known that their residents were elderly and/or disabled and in need of particular care and supervision. 3. The defendant nursing facility, and. all of' the defendants failed to exercise adequate care in the supervision of their elderly and/or disabled residents, such as the resident, Andrew P. Capano, to whom they owed such a duty. 4. As a direct and proximate result of the aforesaid carelessness, recklessness and negligence, as well as gross negligence, of all of the defendants, the resident, Andrew P. Capano, sustained severe personal injuries of both a permanent and temporary nature, was forced to endure great pain and suffering, damages of economic and non-economic nature, disability, impairment and the loss of enjoyment of life, and was forced to incur medical expenses in the care and treatment of said injuries. 13 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 26 of 162 Trans ID: LCV2019863158 Plaintiffs, demand judgment against all of the defendants, individually, jointly, severally, and in the alternative, which will reasonably compensate them/him/her for the significant injuries, pain and suffering, compensatory damages of economic and rxwreconomic nature, and other damages sustained, together with attorneys' fees, punitive damages, interest and costs of suit. FOURTH coung 1. For the sake of ldrevity, the plaintiffs hereby repeat the allegations of the previous Counts and incorporate those allegations in this Count as if set forth more fully herein. 2. All of the Defendants are responsible for hiring competent supervisors, managers, nurses and any other personnel necessary to oversee and monitor the treatment at the defendant nursing home/facility, and its residents, such as resident, Andrew P. Capano. 3. The managers, supervisors, nurses and other personnel, at the defendant nursing home, failed to exercise due care in monitoring, treating, and/or assessing the residents therein. 14 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 27 of 162 Trans ID: LCV2019863158 4. All befendants are liable for the negligence, as well as gross negligence, carelessness and recklessness of its employees, subcontractors and agents under the Doctrine of Respondeat Superior. 5. As a direct and proximate result of the aforesaid carelessness, recklessness and negligence, as well as gross negligence, of the defendants, the resident, Andrew P. Capano, sustained severe personal injuries of both a permanent and temporary nature, was forced to endure great pain and suffering, damages of economic and non?economic nature, disability, impairment and the loss of enjoyment of life, and was forced to incur medical expenses in the care and treatment of said injuries. WHEREFORE, Plaintiffs, demand judgment against all of the defendants, individually, jointly, severally, and in the alternative which will reasonably compensate them/him/her for the significant injuries, pain and suffering, compensatory damages of economic and non?economic nature, and other damages sustained, together with attorneys? fees, punitive damages, interest and costs of suit. CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 28 of 162 Trans ID: LCV2019863158 FIFTH COUNT 1. For the sake of'brevity; the plaintiff(s) hereby repeat the allegations of the previous Counts and incorporate(s) those allegations i1} this Count as if set forth more fully herein. 2. The aforementioned acts and/or omissions of all of the defendants were outrageous, willful and wanton, and with complete disregard to Plaintiff?s rights, and in reckless indifference to the rights of others, Specifically those of resident, Andrew P. Capano, and those acts shocked the conscience of the community. WHEREFORE, Plaintiffs, demand judgment against all of the defendants, individually, jointly, severally, and in the alternative which will reasonably compensate them/him/her for the significant injuries, pain and suffering, compensatory damages of emmnomic and runreconomic nature, and other damages sustained together with attorneys' fees, punitive damages, interest and costs of suit. 1. For the sake of lorevity, the plaintiffs hereby repeat the allegations of the previous Counts and incorporate those allegations in this Count as if set forth more fully herein. 16 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 29 of 162 Trans ID: LCV2019863158 2. During the entire period of the resident, Andrew P. Capano?s, residency at the defendant nursing facility, the defendants were subject to N.J.S.A. 30:13?1, et seq., including 30:13m5, regarding 'the responsibilities and rights of residents in skilled nursing facilities. Based on the aforementioned allegations, all of the defendants breached N.J.S.A. 30:13?1, et seq in their actions toward the plaintiff. The Plaintiff asserts Claims for negligence and gross negligence, as well as claims under the Nursing Home Responsibilities and Resident?s Rights Act, N.J.S.A. 30:13?1, et. seq., for violations of the plaintiff?s rights as a nursing home resident. 3. As a direct and proximate result of the aforesaid carelessness, recklessness and negligence, as well as gross negligence, and violations of residents? rights, committed by all of the defendants, the resident, Andrew P. Capano, sustained severe personal injuries of both a permanent and temporary nature, was forced to endure great pain and suffering, damages of economic and non?economic nature, disability, impairment and the loss of enjoyment of life, and was forced to incur medical expenses in the care and treatment of said injuries. CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 30 of 162 Trans ID: LCV2019863158 WHEREFORE, Plaintiffs, demand judgment against all of the defendants, individually, jointly, severally, and in the alternative, consistent with N.J.S.A. 30:13?1, et seq., in general, and particularly, but not limited to N.J.S.A. 30:l3~5 and N.J.S.A. 30213?8, for actual damages, punitive damages, interest, reasonable attorneys? fees and costs for bringing said action. SEVENTH COUNT l. Plaintiff(s) repeat the allegations of the previous Counts them this Count an; if set forth more fully herein. 2. The defendant, John/Jane Doe Medical Director 1?100, was the medical director of the defendant nursing facility, while resident, AndreW' P. Capano, was a :resident, at the defendant nursing facility. 3. At all times mentioned hereinafter, the defendant, John/Jane Doe Nbdical Director l?lOO, was, and is now, a medical doctor licensed to practice medicine under the laws of the State of New Jersey. 4. At all times mentioned hereinafter the defendant, John/Jane Doe l?edical Director l~lOO, was engaged i11 the practice of his profession at the subject nursing home, in the State of New Jersey. 18 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 31 of 162 Trans ID: LCV2019863158 5. At all times mentioned hereinafter the defendant, John/Jane Doe Medical Director lal00, professed and held himself out to the public and to the resident, Andrew P. Capano, as being skilled, careful and diligent in the practice of general medicine, and geriatric medicine. Specifically, the defendant held himself out as one who is competent to assess, diagnose, supervise a plan of care, implement said plan of care and evaluate the effectiveness of said plan of care with regard to nursing facility residents, such as the resident, Andrew P. Capano. The defendant, John/Jane Doe Medical Director l?lOO, also held himself out as one who was competent to treat and initiate medical and nursing interventions, to treat and prevent skin breakdown and adequately monitor residents? conditions. 6. The defendant, John/Jane Doe Medical Director 1? 100, in his treatment, care and supervision for the resident, Andrew P. Capano, did personally, and by and through his agents, servants and/or employees, negligently fail to exercise ordinary care, and otherwise failed to exercise the degree of care exercised by other doctors in like cases, having regard to the existing state of knowledge in general medicine and geriatrics. 19 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 32 of 162 Trans ID: LCV2019863158 7. As a direct and proximate result of the defendants? negligent and/or grossly negligent treatment, evaluation and assessment, resident, Andrew P. Capano, was required to obtain additional extensive medical treatment, causing him/her to expend great sums of money for said treatment, causing Plaintiff temporary and permanent injury, and great pain and suffering, damages of economic and nonweconomic nature, disability, impairment and the loss of enjoyment of life. WHEREFORE, Plaintiffs, demand judgment against all of the defendants, individually, jointly, severally, and in the alternative which will reasonably compensate them/him/her for the significant injuries, pain and suffering, compensatory damages of economic and nonweconomic nature, and other damages sustained, together with attorneys? fees, punitive damages, interest and costs of suit. EIGHTH COUNT 1. For the sake of brevity, the plaintiffs hereby repeat the allegations of the previous Counts and incorporate those allegations in this Count as if set forth more fully herein. 20 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 33 of 162 Trans ID: LCV2019863158 2. The defendants, Joseph Mina, Administrator, John/Jane Doe Administrator lelOd, was the Administrator(s) of the defendant nursing facility, while resident, Andrew P. Capano, was a resident at the defendant nursing facility. 3. At all times mentioned hereinafter, the defendant, Joseph. Mina, Administrator, and/or John/Jane Doe Administrator l-lOO, was, and is now, an administrator licensed under the laws of the State of New Jersey. 4. At all times mentioned hereinafter, the defendant, Joseph. Mina, Administrator, and/or John/Jane Doe kaninistrator lelOO, was engaged. in the practice of his profession at the subject nursing home, in the State of New Jersey. 5. At all times mentioned hereinafter the defendant, Joseph Mina, Administrator, John/Jane Doe Administrator 1? 100, professed and held herself/himself out to the public and to the resident, Andrew P. Capano, as being skilled, careful and diligent in the practice of the administration of nursing homes. 6. The defendant, Joseph Mina, Administrator, and/or John/Jane Doe Administrator l?lOO, did personally, and by and through his/her agents, servants and/or employees, negligently fail to exercise ordinary care, and otherwise 21 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 34 of 162 Trans ID: LCV2019863158 failed to exercise the degree of care exercised by other administrators in like cases, having regard to the existing state of knowledge in general nursing home administration. 7. As a direct and proximate result of the defendants? negligent and/or grossly negligent acts and/or omissions, resident, Andrew P. Capano, was required to obtain additional extensive medical treatment, causing him/her to expend great sums of money for said treatment, causing Plaintiff temporary and permanent injury, and great pain and suffering, damages of economic and non~economic nature, disability, impairment and the loss of enjoyment of life. WHEREFORE, Plaintiffs, demand judgment against all of the defendants, individually, jointly, severally, and in the alternative which will reasonably compensate them/him/her for the significant injuries, pain and suffering, compensatory damages of economic and non~economic nature, and other damages sustained, together with attorneys' fees, punitive damages, interest and costs of suit. 15mg COUNT 1. For the sake of brevity, the plaintiffs hereby repeat the allegations of the previous Counts and incorporate those allegations in this Count as if set forth more fully herein. 22 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 35 of 162 Trans ID: LCV2019863158 2. The defendant, John/Jane Doe Director of Nursing l? 100, was the Director of Nursing of the defendant nursing facility, while resident, Andrew P. Capano, was a resident at the defendant nursing facility. 3. At all times mentioned hereinafter, the defendant, John/Jane Doe Director of Nursing lulOO, was, and is now, a registered nurse, licensed to practice nursing under the laws of the State of New Jersey. 4. At all times mentioned hereinafter the defendant, John/Jane Doe Director of Nursing l~lOO, was engaged in the practice of his/her profesSion at the subject nursing home, in the State of New Jersey. 5. At all times mentioned hereinafter the defendant, John/Jane Doe Director of Nursing l?lOO, professed and held herself/himself out to the public and to the resident, Andrew P. Capano, as being skilled, careful and diligent in the practice of nursing. Specifically, the defendant held himself/herself out as one who is competent to assess, supervise a plan of care, implement said plan of care and evaluate the effectiveness of said plan of care with regard to nursing facility residents, such as the resident, Andrew P. Capano. The defendant, John/Jane Doe Director of Nursing 1?100, also held himself/herself out as one who was 23 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 36 of 162 Trans ID: LCV2019863158 competent to treat and initiate nursing interventions, to prevent falls and injuries, to treat and prevent skin breakdown and adequately monitor residents? conditions. 6. The defendant, John/Jane Doe Director of Nursing 1?100, in his/her treatment, care and supervision for the resident, Andrew P. Capano, did personally, and by and through her/his agents, servants and/or employees, negligently fail to exercise ordinary care, and otherwise failed to exercise the degree of care exercised by other nurses in like cases, having regard to the existing state of knoWledge in general nursing. 7. As a direct and proximate result of the defendants? negligent and/or grossly negligent treatment, evaluation and assessment, resident, Andrew P. Capano, was required to obtain additional extensive medical treatment, causing him to expend great sums of money fer said treatment, causing Plaintiff temporary and permanent injury, and great pain and suffering, damages of economic and non?economic nature, disability, impairment and the loss of enjoyment of life. WHEREFORE, Plaintiffs, demand judgment against all of the defendants, individually, jointly, severally, and in the alternative which will reasonably compensate them/him/her for the significant injuries, pain and suffering, 24 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 37 of 162 Trans ID: LCV2019863158 compensatory damages of economic and non~economic nature, and other damages sustained, together with attorneys' fees, punitive damages, interest and costs of suit. TENTH 1. the sake of brevity, the plaintiffs hereby repeat the allegations of the previous Counts and incorporate those allegations in this Count as if set forth more fully herein. 2. The defendant, John/Jane Doe Nurse 1?100, were nurses at the defendant nursing facility, while resident, Andrew P. Capano, was a resident at the defendant nursing facility. 3. At all times mentioned hereinafter, the defendants, John/Jane Doe Nurse l~lOO, was, and is now, a registered nurse, licensed to practice nursing under the laws of the State of New Jersey. 4. At all times mentioned hereinafter the defendant, John/Jane Doe Nurse l?lOO, was engaged in the practice of his/her profession at the subject nursing home, in the State of New Jersey. 5. At all times mentioned hereinafter the defendant, John/Jane Doe Nurse lmlOO, professed and held herself/himself out to the public and to the resident, Andrew P. Capano, as being skilled, careful and diligent in 25 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 38 of 162 Trans ID: LCV2019863158 the practice of nursing. ?pecifically, the defendant held himself/herself out as one who is competent to assess, supervise a plan of care, implement said plan of care and evaluate the effectiveness of said plan of care with regard to nursing facility residents, such as the resident, Andrew P. Capano. The defendant, John/Jane Doe Nurse lelOO, also held himself/herself out as one who was competent to treat and initiate nursing interventions, to treat and prevent skin breakdown and adequately monitor residentS? conditions. 6. The defendant, John/Jane Doe Nurse lmlOO, in his/her treatment, care and supervision for the resident, Andrew P. Capano, did personally, and by and through her/his agents, servants and/or employees, negligently fail to exercise ordinary care, and otherwise failed to exercise the degree of care exercised by other nurses in like cases, having regard to the existing state of knowledge in general nursing. 7. As a direct and proximate result of the defendants? negligent and/or grossly negligent treatment, evaluation and assessment, resident, Andrew P. Capano, was required to obtain additional extensive medical treatment, causing him to expend great sums of money for said treatment, causing 26 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 39 of 162 Trans ID: LCV2019863158 Plaintiff temporary and permanent injury, and great pain and suffering, damages of economic and non-economic nature, disability, impairment and the loss of enjoyment of life. WHEREFORE, Plaintiffs, demand judgment against all of the defendants, individually, jointly, severally, and in the alternative which will reasonably compensate them/him/her for the significant injuries, pain and suffering, compensatory damages of economic and non?economic nature, and other damages sustained, together with attorneys' fees, punitive damages, interest and costs of suit. ELEVENTH COUNT 1. For the sake of brevity, the plaintiffs hereby repeat the allegations of the previous Counts and incorporate those allegations in this Count as if set forth more fully herein. 2. The defendant, John/Jane Doe CNA lelOO, were at the defendant nursing facility, while resident, Andrew P. Capano, was a resident at the defendant nursing facility. 3. At all times mentioned hereinafter, the defendants, John/Jane Doe was/were, and is/are now, a certified nurses aide(s), certified to practice healthcare as aides, under the laws of the State of New Jersey. 27 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 40 of 162 Trans ID: LCV2019863158 4. At all times mentioned hereinafter the defendant, John/Jane Doe CNA 1?100, was engaged in the practice of his/her profession at the subject nursing home, in the State of New Jersey. 5. At all times mentioned hereinafter the defendant, John/Jane Doe CNA 1?100, professed and held herself/himself out to the public and to the resident, Andrew P. Capano, as being skilled, careful and diligent in the practice of nursing. Specifically, the defendant held himself/herself out as one who is competent to assess, supervise a plan of care, implement said plan of care and evaluate the effectiveness of said plan of care with regard to nursing facility residents, such as the resident, Andrew P. Capano. The defendant, John/Jane Doe CNA l?lOO, also held himself/herself out as one who was competent to treat and initiate nursing interventions, to treat and prevent skin breakdown and adequately monitor residents? conditions. 6. The defendant, John/Jane Doe CNA 1?100, in his/her treatment, care and supervision for the resident, Andrew P. Capano, did personally, and by and through her/his agents, servants and/or employees, negligently fail to exercise ordinary care, and otherwise failed to exercise the 28 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 41 of 162 Trans ID: LCV2019863158 degree of care exercised by other in like cases, having regard to the existing state of knowledge in general nursing. 7. As a direct and proximate result of the defendants? negligent and/or grossly negligent treatment, evaluation and assessment, resident, Andrew P. Capano, was required to obtain additional extensive medical treatment, causing him to expend great sums of money for said treatment, causing Plaintiff temporary and permanent injury, and great pain and suffering, damages of economic and non?economic nature, disability, impairment and the loss of enjoyment of life. WHEREFORE, Plaintiffs, demand judgment against all of the defendants, individually, jointly, severally, and in the alternative which will reasonably compensate them/him/her for the significant injuries, pain and suffering, compensatory damages of economic and nonmeconomic nature, and other damages sustained, together with attorneys? fees, punitive damages, interest and costs of suit. COUNT 1. For the sake of brevity, the plaintiffs hereby repeat the allegations of the previous Counts and incorporate those allegations in this Count as if set forth more fully herein. 29 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 42 of 162 Trans ID: LCV2019863158 2. Plaintiffs hereby name John/Jane Doe Administrator lulOO, John/Jane Doe Director of nursing lwlOO, John/Jane Doe Nurse 1?100, John/Jane Doe Management Company 1?100, John/Jane Doe Medical Director l~lOO, John/Jane Doe 1?100, and John/Jane Doe Corporation 1?100, and John/Jane Doe CNA lwlOO, fictitious names, as individuals, partnerships, companies and/or corporations who have either been misidentified and/or omitted, and whose negligence, as well as gross negligence, violations of residents? rights, acts and/or omissions contributorily caused the injuries sustained herein by the resident, Andrew P. Capano. WHEREFORE, Plaintiffs demand judgment against all of the defendants, individually, jointly, severally, and in the alternative which will reasonably compensate them/him/her for the significant injuries, pain and suffering, compensatory damages of economic and nonueconomic nature, and other damages sustained, together with attorneys' fees, punitive damages, interest and costs of suitw-w "re?.1 mm: 2 2 _w ww RICHARD J. TALBOT, ESQUIRE Attorney for Plaintiff 3O CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 43 of 162 Trans ID: LCV2019863158 NOTICN PURSUANT Tb Ruins AND 4:17?4 Please take notice that the undersigned attorneys, counsel for the plaintiffs, do hereby demand, pursuant to Rules l:5ml(a) and 4:17_4 that each party herein serving pleadings and interrogatories and receiving answers thereto, serve copies of all such pleadings and answered interrogatories received from any party, including any ?documents, papers and other material referred to therein, w! upon the undersigned attorneys. Please take nn??cefthat 1,,429 this is a continuing demand. ??gjw DATED f? 7 . . - we? RICHAREMJ. Attorney I a- i; W, in?nmu CERTIFICATION I further certify, pursuant to Rule 4:5w1, that I know of no other proceedings that are pending or that are being contemplated, in any court or arbitration proceeding, concerning this subject matter, and know of no other parties that need to be joined with this action a? Ehig? -91" time. ng?" xiiJi- DATED: ?gsr Attorney for Plaintiff CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 44 of 162 Trans ID: LCV2019863158 DEMAND FOR JURY TRIAL I Demand is hereby made for jury trial as to all issues. ,w m1errDATED: za?f? f/M ELLHARD J. It?) rseg for Plaintiff DESIGNATION OF TRIAL COUNSEL Pursuant to 4 5 Richard Talbot gar? deSignated as Trial Counsel for the abuve,m ntiqw?d Plaintiff DATED: f?firmew err afruaa?w?r?TALBOT ESQUIRE Attorney for Plaintiff 32 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 45 of 162 Trans ID: LCV2019863158 Exhl?r CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 46 of 162 Trans ID: LCV2019863158 Page 1 DAVID WATSON, individually and as Executor of the ESTATE OF NANCY CLARE GIMENEZ-WATSON, Plaintiffs, v. SUNRISE SENIOR LIVING FACILITY, INC. d/b/a BRIGHTON GARDENS OF EDISON, BRIGHTON GARDENS OF EDISON, SUNRISE SENIOR LIVING, INC., JANE DOE NURSES 1-50, JANE DOE NURSES TECHNICIANS, CNA'S AND PARAMEDICAL EMPLOYEES 1-50, ABC CORPORATION, ABC PARTNERSHIP, and XYZ CORPORATION (these names being fictitious as their true names are unknown), Defendants. Civ. No. 10-cv-230 (KM)(MAH) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 2015 U.S. Dist. LEXIS 93962 July 17, 2015, Decided July 17, 2015, Filed PRIOR HISTORY: Watson v. Sunrise Senior Living Servs., 2013 U.S. Dist. LEXIS 2627 (D.N.J., Jan. 8, 2013) OPINION BY: KEVIN MCNULTY OPINION COUNSEL: [*1] For DAVID WATSON, individually, and as Executor of the ESTATE OF NANCY CLARE GIMENEZ-WATSON, Plaintiff: THOMAS SMITH HOWARD, LEAD ATTORNEY, KIRSCH, GARTENBERG & HOWARD, ESQS., TWO UNIVERSITY PLAZA, HACKENSACK, NJ. For SUNRISE SENIOR LIVING SERVICES, INC., doing business as BRIGHTON GARDENS OF EDISON, JAMES POPE, JOHN GAUL, LISA MAYR, SUNRISE SENIOR LIVING, INC., SUSAN TIMONER, Defendants: JOHN M. DEITCH, LEAD ATTORNEY, MENDES & MOUNT, LLP, NEWARK, NJ; ROBERT F. PRIESTLEY, LEAD ATTORNEY, CLYDE & CO. US LLP, Florham Park, NJ; TIMOTHY MICHAEL JABBOUR, CLYDE & CO LLP US, Florham Park, NJ. For DANIEL SCHWARTZ, Defendant: JOHN M. DEITCH, LEAD ATTORNEY, MENDES & MOUNT, LLP, NEWARK, NJ; TIMOTHY MICHAEL JABBOUR, CLYDE & CO LLP US, Florham Park, NJ; ROBERT F. PRIESTLEY, LEAD ATTORNEY, CLYDE & CO. US LLP, Florham Park, NJ. JUDGES: KEVIN MCNULTY, UNITED STATES DISTRICT JUDGE. KEVIN MCNULTY, U.S.D.J.: This is a personal injury action brought by David Watson ("Mr. Watson") individually and on behalf of the estate of his mother, Nancy Gimenez-Watson ("Mrs. Watson"). Mrs. Watson was a patient-resident at Brighton Gardens of Edison ("Brighton Gardens"), a New Jersey assisted living facility. On April [*2] 26, 2008, she died after choking on food that was served to her at Brighton Gardens. Mr. Watson alleges that his mother's death was caused by negligence and mistreatment by Brighton Gardens' operator, Sunrise Senior Living Services, Inc. ("Services"), and its parent company, Sunrise Senior Living, Inc. ("SSLI"). Now before the Court is the defendants' motion for summary judgment.1 For the reasons set forth below, the motion is granted in part and denied in part. 1 "Defendants," as used in this Opinion, refers collectively to Services and SLLI, the movants. I. BACKGROUND Brighton Gardens is an assisted living facility and nursing home in Edison, New Jersey. Brighton Gardens is licensed and operated by Services, a Delaware corporation. Services is a wholly owned subsidiary of SSLI, a CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 47 of 162 Trans ID: LCV2019863158 Page 2 2015 U.S. Dist. LEXIS 93962, * Delaware corporation with its principal place of business in McLean, Virginia. On March 25, 2006, Mrs. Watson, who suffered from Alzheimer's disease and dementia, entered Brighton Gardens as a "resident."2 (Defs. L. R. 56.1 Statement of Undisputed Material Facts ("Def. Facts"), Dkt. No. 158-1, ¶¶18-19) All residents of the assisted living facility receive certain "base services," such as "reminders and supervision" with regard [*3] to "eating, bathing, dressing, grooming, toileting, ambulating, and orientation." (Residency Agreement, Ex. E, Cert, of Tim M. Jabbour ("Jabbour Cert."), Dkt. No. 158-8, at 5) They are also given three meals per day in the facility's dining room. (Id. at 6) Mrs. Watson was placed in the facility's "Assisted Living Plus" program, which meant that she require[d] or prefer[red] more frequent and intensive assistance with activities of daily living" than were provided at the basic level of care. (Id. at 19) In May 2006, Mrs. Watson was moved to the "Reminiscence Plus" program (Def. Facts ¶21), which provides a greater level of care specifically designed for residents who have a diagnosis ...of Alzheimer's disease or related disorder such as dementia." (Residency Agreement, at 7) 2 A "resident" is "any individual receiving extended medical or nursing treatment or care at a nursing home." N.J.S.A. 30:13-2(e); see also N.J.A.C. 8:39-1.2 (defining "resident" as "a person who resides in [a long-term care] facility and is in need of 24-hour continuous nursing supervision). Brighton Gardens' Medical Assessment Policies way. The protocol instructs the staff members to "Call 911"; "Clear the resident's airway immediately if the resident is not able to talk or cough by performing the emergency procedure for choking"; "document[] the incident in the resident's Progress Notes"; and [*5] "Complete an incident report." (Choking or Blocked Airway, Ex. 25, Howard Decl., Dkt. No. 167-27, at 2) Mrs. Watson's Decline in Health The issue in this case is whether Brighton Gardens adequately responded to the apparent deterioration in Mrs. Watson's health. The parties agree that when Mrs. Watson first came to Brighton Gardens, she was able to walk and dine independently. (Def. Facts ¶22). According to Mr. Watson, however, Mrs. Watson thereafter experienced significant changes in her medical condition which the defendants, in violation of their own policies and the prevailing standard of care, failed to recognize and address. Mrs. Watson reportedly sustained falls on six occasions in early 2008. Two of those falls, both on April 1, 2008, resulted in injury. Although an Incident Report was filed, Brighton Gardens allegedly waited until April 12, 2008, to update her medical records. (Second Am. Compl., Dkt. No. 97-3, ¶36) On April 11, 2008--the day before the belated entries were allegedly made--a nurse found Mrs. Watson choking on her food. (Def. Facts ¶72) The nurse initiated the Heimlich maneuver and dislodged the obstruction. (Id. ¶73) Mrs. Watson was sent to JFK Medical Center for [*6] further observation and returned the same day. (Id. ¶¶73, 77) Although it is standard protocol to perform a formal reassessment of a resident's condition anytime she requires hospitalization, no such assessment was performed on Mrs. Watson. (See Deposition of Eileen Hesse ("Hesse Dep."), Ex. 3, Howard Decl., Dkt. No. 167-5, at 4-5) The nurse who witnessed the April 11 choking incident stated that she completed an Incident Report, but the defendants have been unable to locate or produce it. (See Hesse Dep., Ex. 2, Howard Decl., Dkt. No. 167-4, at 4-5) The policy of Brighton Gardens is to assess any changes in a resident's medical condition to determine whether the level of care given to that resident is [*4] adequate. Changes are reported to the resident's attending physician, who can order Brighton Gardens to implement an appropriate medical response. In addition, Brighton Gardens' nurses are required to create an "Incident Report" whenever a resident experiences one or more predefined "incidents," including "[c]hoking which requires emergency actions" and "[f]alls with injury." (Incident Reporting, Ex. 22, Decl. of Thomas S. Howard ("Howard Decl."), Dkt. No. 167-22, at 3) The nurse who witnessed the incident must complete the Incident Report "as soon as possible...but no later than the end of their shift." (Id. at 2) The nurse must also make an entry regarding the incident in the resident's Progress Notes--a daily record compiled for each resident. (Id.) Finally, the resident's attending physician must be notified of the incident within 12 hours. (Id. at 4) Mrs. Watson's attending physician, Dr. Arvind Doshi, was informed about the choking incident by telephone the following morning. (Id. at ¶79) Dr. Doshi testified at his deposition that he saw no need to examine Mrs. Watson because no one from Brighton Gardens recommended that he do so. (Deposition of Arvind K. Doshi ("Doshi Dep."), Ex. E., Jabbour Cert., Dkt. No. 158-9, at 81). If there were "any [] major issue" regarding Mrs. Watson's health, Dr. Doshi said, a "nurse would tell me...that you need to come and see her." (Id.) Brighton Gardens also has a specific protocol for treating a resident who suffers choking or a blocked air- A few days later, on April 14, 2008, Mrs. Watson was reportedly observed "leaning to one side and looking CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 48 of 162 Trans ID: LCV2019863158 Page 3 2015 U.S. Dist. LEXIS 93962, * tired." [*7] (Expert Report of Gail King, R.N., Ex. 27, Howard Decl., Dkt. No. 167-29, at 11) Mr. Watson asserts that there is no evidence that nursing staff subsequently reassessed Mrs. Watson's condition or notified Dr. Doshi. Mrs. Watson fell twice more, once on April 16 and and once on April 17, 2008. An Incident Report was filed after the second fall, but Dr. Doshi was not notified. On April 27, 2008, Mrs. Watson suffered a second choking episode. (Def. Facts ¶86) It occurred at dinnertime in the Brighton Gardens dining room. The parties dispute whether any of Brighton Gardens' staff members performed the Heimlich maneuver. (Pl. Response to Defs. Statement of Material Facts and PI. Supp. Statement of Disputed Material Facts Pursuant to L. Civ. R. 56.1 ("Pl. Facts ), Dkt. No. 167-32, ¶89) The defendants contend that the staff "noticed Mrs. Watson standing, realized she was choking, called 911, and administered the Heimlich maneuver." (Def. Facts ¶89) Mr. Watson, however, points to the report of the paramedics who responded to the 911 call, which states that there was "[n]o Heimlich maneuver nor CPR started prior to E-FD's arrival." (Pl. Facts, ¶89) By the time paramedics arrived, Mrs. Watson had stopped breathing. [*8] The paramedics' report describes what they found: "On exam BLS suctioned the airway but unable to clear the airway. CPR was continued while ALS crew suctioned while using laryngoscope. Copious amounts of food found." (Id.) The paramedics "extracted a large piece of chicken from Mrs. Watson's throat," placed her on a ventilator, and transferred her to JFK Medical Center. (Id. at ¶95) The parties agree that Mrs. Watson was still alive when she left Brighton Gardens. Once she arrived at the hospital, she was attached to a "breathing apparatus." (Def. Facts ¶97) Before this incident, Mrs. Watson had given a healthcare proxy to Mr. Watson. (Pl. Facts, ¶98) Pursuant to that authority, Mr. Watson decided to remove the ventilator. Mrs. Watson died on April 27, 2008. The Current Action Mr. Watson commenced this action on December 7, 2009, in the Superior Court of New Jersey, Middlesex County. The Complaint named as defendants Services, SSLI, and five of SSLI's corporate officers: Daniel Schwartz, James Pope, John Gaul, Lisa Mayr, and Susan Timoner. On January 14, 2010, the defendants3 removed the case to federal court. (Dkt. No. 1) 3 All named defendants joined in the removal notice. (See Dkt. No. [*9] 1) Mr. Watson twice amended the Complaint. (Dkts. Nos. 69, 106) The Second Amended Complaint alleges (1) violations of the New Jersey Nursing Home Bill of Rights, N.J.S.A. 30:13-1 et seq., the Federal Nursing Home Reform Amendments of 1987, 42 U.S.C. §§ 1395i, 1396r, and provisions of the N.J.A.C. governing the licensure of assisted living and long-term care facilities, N.J.A.C. §§ 8:36-1.1, et seq., 8:39-1.1, et seq.; (2) gross negligence; (3) negligence; (4) medical malpractice and professional negligence; (5) wrongful death; and (6) that the corporate veil should be pierced so that liability extends to Services' parent, SSLI.4 (Dkt. No. 97-3, at 21) 4 Mr. Watson sought to include a seventh count alleging liability under a participation theory and under N.J.A.C. 8:36-5.2(c). In an Order dated January 8, 2013, however, Magistrate Judge Hammer denied Mr. Watson's motion amend to the Complaint to the extent it sought to add this claim. (Dkt. No. 106, at 33) Defendants Services and SSLI moved for summary judgment on June 13, 2014. (Dkt. No. 158) II. JURISDICTION This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1332(a), as there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000. III. SUMMARY JUDGMENT STANDARD Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "if the movant [*10] shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment, a court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265, (1986). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof ... the burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Id. at 325. If the moving party meets its threshold burden, the opposing party must present actual evidence that creates CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 49 of 162 Trans ID: LCV2019863158 Page 4 2015 U.S. Dist. LEXIS 93962, * a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see also FED. R. CIV. P. 56(c) (setting forth types of evidence on which nonmoving party must rely to support its assertion that genuine issues of material fact exist). "[U]nsupported allegations ... and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001) ("A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a [*11] jury to find in its favor at trial."). IV. ANALYSIS A. The Negligence Counts Mr. Watson asserts three counts of negligence: gross negligence (Count 2), negligence (Count 3), and medical practice and professional negligence (Count 4). Each essentially alleges that Brighton Gardens' staff violated a duty of care owed to Mrs. Watson, and that this violation proximately caused her injury and death. Services, Mr. Watson claims, is liable for the negligent actions of Brighton Gardens' staff based on respondeat superior.5 5 The potential extension of liability to Services' parent company, SSLI, is discussed in section IV.D, infra. To prove negligence, a plaintiff must establish: (1) that the defendant owed the plaintiff a duty of care; (2) that the defendant breached that duty of care; and (3) that the defendant's breach proximately caused the plaintiff's injury. Boos v. Nichtberger, 2013 N.J. Super. Unpub. LEXIS 2455, 2013 WL 5566694, *4 (N.J. Super. Ct. App. Div. Oct. 10, 2013) (citing Endre v. Arnold, 300 N.J. Super. 136, 142, 692 A.2d 97 (App. Div. 1997)). The difference between "gross" and "ordinary" negligence is "one of degree rather than of quality." Fernicola v. Pheasant Run at Barnegat, 2010 N.J. Super. Unpub. LEXIS 1614, 2010 WL 2794074, *2 (N.J. Super. Ct. App. Div. July 2, 2010). "Gross negligence refers to behavior which constitutes indifference to consequences." Griffin v. Bayshore Medical Center, 2011 N.J. Super. Unpub. LEXIS 1165, 2011 WL 2349423, *5 (N.J. Super. Ct. App. Div. May 6, 2011) (citing Banks v. Korman Assocs., 218 N.J. Super. 370, 373, 527 A.2d 933 (App. Div. 1987)). Unlike simple negligence, gross negligence requires wanton or reckless disregard for the safety of others. Griffin v. Bayshore Medical Center, 2011 N.J. Super. Unpub. LEXIS 1165, 2011 WL 2349423, *5 (N.J. Super. Ct. App. Div. May 6, 2011) (citing In re Kerlin, 151 N.J. Super. 179, 185, 376 A.2d 939 (App. Div. 1977)). Medical malpractice [*12] is a kind of negligence. A medical malpractice action is based on the "improper performance of a professional service that deviated from the acceptable standard of care." Zuidema v. Pedicano, 373 N.J. Super. 135, 145, 860 A.2d 992 (App. Div. 2004); see generally Sanzari v. Rosenfeld, 34 N.J. 128, 134-35, 167 A.2d 625 (1961); F.G. v. MacDonell, 291 N.J. Super. 262, 271-72, 677 A.2d 258 (App. Div. 1996), aff'd in part, rev'd in part on different grounds, 150 N.J. 550, 696 A.2d 697 (1997); 61 Am. Jur. 2d, Physicians, Surgeons, Etc. § 287 (2002). In a typical medical malpractice action, a plaintiff must establish by expert testimony the applicable standard of care owed by a physician to a patient, a deviation from that standard of care, and that the deviation proximately caused the injuries. Verdicchio v. Ricca, 179 N.J. 1, 23, 843 A.2d 1042 (2004). The defendants contend that summary judgment must be granted on each of the three negligence claims because the record evidence conclusively establishes that Brighton Gardens and its nursing staff conformed to the duty care. (Def. Mot. for Summ. J. ("Def. Mot."), Dkt. No. 1582, at 12) The defendants state that as a matter of law, "[a]n assisted living provider is not held to the same professional standard of care as a medical doctor, and in fact, is required to obtain, defer to, and follow medical directives from each resident's treating physician before rendering medical treatment." (Def. Mot. at 12) The defendants add that Dr. Doshi's deposition testimony proves that he never ordered anyone [*13] at Brighton Gardens to modify Mrs. Watson's treatment. Absent such a doctor's order, they say, they cannot have violated any duty by failing to modify Mrs. Watson's care in a manner that would have prevented either the first or the second choking incident. As additional support, the defendants cite the deposition testimony of Mr. Watson and his medical expert, Dr. Perry Starer. The defendants present no evidence regarding the other elements of Mr. Watson's negligence claims. Accordingly, the decision to award summary judgment on these claims turns solely on whether Mr. Watson is able to raise a question of material fact concerning the defendants' professed adherence to the applicable standard of care. The defendants' assertion that an assisted living facility such as Brighton Gardens is not held to the same standard as a physician does not, in itself, rule out negligence. Both assisted living facilities and physicians qualify as "licensed persons" under New Jersey law. See N.J.S.A. 2A:53A-26(f), (j); see also N.J.S.A. 26:2H-2(a). Any action alleging malpractice or negligence against such licensed persons in their "profession or occupation" must establish that the services rendered "fell outside acceptable professional or occupational [*14] standards or treatment practices." N.J.S.A. 2A:53A-27; see also Zuidema, 373 N.J. Super. at 145. True, those standards CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 50 of 162 Trans ID: LCV2019863158 Page 5 2015 U.S. Dist. LEXIS 93962, * and practices may differ based on the particular profession at issue, but the legal standard for determining liability is the same: failure to conform to the duty of care accepted within the profession. In that regard, the defendants maintain that the duty of care applicable to an assisted living facility requires no more than "following the protocol" for communicating with a resident's treating physician and faithfully implementing whatever that physician may order. According to the defendants, the nursing staff of Brighton Gardens did just that throughout Mrs. Watson's time as a resident. In short, the defendants argue that it was the doctor's responsibility, not theirs, to evaluate the need for further measures to prevent choking. Dr. Doshi testified at his deposition that Brighton Gardens' practice was to call him or send him a memorandum if there was any issue with a patient. (Doshi Dep. 32:13-19) If he had been informed that Mrs. Watson had experienced swallowing problems or any other condition that might indicate she was at risk of choking, Dr. Doshi stated, he would have made a notation in his records and ordered [*15] some form of evaluation, such as a speech therapy or a swallowing consultation, to determine whether she required any additional treatment. (Doshi Dep. 41:22-25, 42:1) Here, according to the defendants, Dr. Doshi did not conclude that the reports he got from Brighton Gardens merited any further evaluation. (Doshi Dep. 44:22-25, 45:1-4, 47:1-6) Therefore, their argument goes, Dr. Doshi could not have been expected to order Brighton Gardens to implement any measures to prevent Mrs. Watson from choking. And because the Doctor never gave such an order, the defendants insist, they could not have violated any duty of care when they failed to prevent either of Mrs. Watson's choking episodes. The defendants point to evidence that, after the first choking episode on April 11, 2008, they adhered to Brighton Gardens' medical assessment policies. The nurse on the scene administered the Heimlich maneuver, removed the blockage, and asked a colleague to call 911. (See Progress Notes, Ex. G, Jabbour Cert., Dkt. No. 158-10, at 7-8) Dr. Doshi was notified by phone the following day that Mrs. Watson had choked. (Doshi Dep. 63:3-6) Aven after learning that Mrs. Watson had been hospitalized, Dr. Doshi believed [*16] it was unnecessary to visit and examine her. (Doshi Dep. 81:13-19) He testified that choking was a relatively common occurrence--"food will go through the wrong pathway sometimes"--and that one instance of choking did not establish any "issue with swallowing trouble." (Doshi Dep. 41:2-3, 81:13-19) Dr. Doshi testified that it would have been premature to order speech therapy or a swallowing consultation--or any other potentially preventative diagnostic--after a single episode of choking. (Doshi Dep. 81:23-25, 82: 1-6) Passing the responsibility back to the defendants, Dr. Doshi testified that such a move would be necessary only if "the caregiver feels that [a resident] has problems swallowing and if there is a recurrent episode." (Doshi Dep. 81:23-25, 82:1-6) At least at this point, the defendants say, neither a swallowing problem nor a recurrent episode was present. Since it was Dr. Doshi's medical opinion that the type of care given to Mrs. Watson was sufficient, the defendants argue that they cannot be held liable for failing to prevent Mrs. Watson's second, fatal choking episode. As additional support, the defendants point to Mr. Watson's own deposition testimony. Mr. Watson testified [*17] that, after the first choking episode, he visited Mrs. Watson and considered her to be "fine." (Deposition of David Watson ("Watson Dep."), Ex D., Jabbour Cert., Dkt. No. 158-7, 97:4, 98:13-16) Defendants also cite the testimony of Dr. Starer that a speech therapy evaluation was not medically necessary after Mrs. Watson's first choking incident. This medical testimony, they say, further vindicates the actions of Dr. Doshi and Brighton Gardens. (Deposition of Dr. Perry Starer, Ex. H, Jabbour Cert., Dkt. No. 158-11, at 98) When the second choking episode occurred on April 27, 2008, the defendants say, Brighton Gardens' staff again adhered to the medical assessment policies. A nurse administered the Heimlich maneuver (though this is disputed) and called 911. (Deposition of Merleine Fredrick, Ex. I, Jabbour Cert., Dkt. No. 158-12, 21:20-25, 22:1-25) Mrs. Watson was transported to JFK Medical Center for further treatment, and Mr. Watson was immediately notified by telephone of what had happened. (Watson Dep., 132:9-11, 134:16-25) In sum, the defendants argue that Brighton Gardens followed its internal protocols and the instructions of Dr. Doshi. That, they say, is sufficient to discharge [*18] the duty of care imposed on an assisted living facility when caring for a resident. After reviewing the record, however, I find that Mr. Watson has successfully raised a factual dispute regarding whether or not the defendants met this burden. There is a certain circular quality to the defendants' argument. To take an extreme and hypothetical example, if a care facility completely failed to report an injury to the doctor, it could not disclaim liability because the doctor had failed to prescribe any treatment. Here, the defendants exculpate themselves by pointing to advice (or lack of advice) from Dr. Doshi. But Dr. Doshi's advice relied on the defendants' accurately reporting the medically relevant facts to him. The defendants' argument that Brighton Gardens was powerless to alter Mrs. Watson's treatment between the first and second choking episodes begs that informa- CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 51 of 162 Trans ID: LCV2019863158 Page 6 2015 U.S. Dist. LEXIS 93962, * tional question. As Dr. Doshi testified, he was "relying on the nurses to provide [him] with the information [he] need[ed] in order to place physician's orders for [Mrs. Watson]." (Doshi Dep., 60:15-19) If, as Mr. Watson submits, the defendants negligently failed to provide that information after the April 11, 2008 episode, then [*19] Dr. Doshi would have been ill equipped to give appropriate orders regarding her care. Has Mr. Watson submitted evidence sufficient to create an issue of fact as to the defendants' accurate and complete reporting of the April 11, 2008 episode to Dr. Doshi? I believe he has. Brighton Gardens' policy was to evaluate a resident's medical condition any time she was admitted to the hospital and returned to the facility. Eileen Hesse, a registered nurse who worked at Brighton Gardens, testified that if a resident "went out to the emergency room for an evaluation and then they returned, there would be some sort of assessment." (Hesse Dep., 96:18-20) According to Hesse, this evaluation would consist of "a head-to-toe physical assessment" focused on the "reason that that the [] resident went out to the hospital." (Id. at 97:6-9, 97:22-23, 98:16-18) No such assessment appears to have been conducted after Mrs. Watson returned from the hospital after her first choking episode. (Deposition of Kimberly Walling, Ex. 5, Howard Decl., 167-7, at 35:4-18, 36:15-20) Indeed, Dr. Doshi testified that apart from the initial phone call he received after Mrs. Watson had been taken to the hospital, no one from [*20] Brighton Gardens ever followed up with him about her condition. (Doshi Dep., 64:12-25, 65:1-14) Mr. Watson contends that this lapse in evaluation and reporting prevented Dr. Doshi from effectively supervising his mother's care. Dr. Doshi testified that if the nursing staff had "let [him] know...there is a problem with any [] swallowing," then would have ordered a speech therapy evaluation. (Doshi Dep., 48:11-20) But because the nursing staff never evaluated Mrs. Watson after she first choked, Mr. Watson says, there was no way for Dr. Doshi to know whether the choking episode was an isolated incident or evidence of a growing inability to swallow. As Mr. Watson's expert registered nurse, Gail King, writes her in report: "There were no further progress notes written that monitored [Mrs. Watson] after [the first choking] episode nor did the nursing staff speak with the physician about utilizing the services of the in-house speech-language pathologist to assess Mrs. Watson's swallowing skills which can often deteriorate with Alzheimer's disease." (Expert Report of Gail King ("King Report"), R.N., Dkt. No. 167-29, 11) Mr. Watson documents other apparent failures in Brighton Gardens' communication [*21] with Dr. Doshi. On April 14, 2008, the Daily Log notes that Mrs. Watson was "leaning to the side a bit and looking very tired." (Daily Log April 2008, Ex. 21, Howard Decl., Dkt. No. 167-23, at 6) Although the entry states that the staff "notif[ied] team members and [the] nurse" (id.), there is no evidence that any further action was taken or that Dr. Doshi was notified. Dr. Doshi testified that this is exactly the kind of information that he would expect the nurses to report to him, because it could be indicative of a "minor stroke" or a "medication side effect." (Doshi Dep., 65:15-24, 66:2-4) Additionally, Mr. Watson points to evidence that Brighton Gardens failed to follow its own Incident Report policy. Nurse Hesse testified that she prepared an Incident Report following the first choking episode and "left it in the nurse's station." (Hesse Dep., 28:3-5). Throughout the course of this litigation, however, the defendants have been unable to locate this document. (See ¶3, Howard Decl.) The Court must construe all facts and inferences in the light most favorable to Mr. Watson. See Boyle, 139 F.3d at 393. For purposes of this analysis, then, I will assume that no Incident Report was created following Mrs. Watson's [*22] first choking episode--a clear violation of Brighton Gardens' policy. Rounding out the picture, both of Mr. Watson's experts--Nurse King and Dr. Starer--have submitted opinions that these oversights violated the duty of care and proximately caused Mrs. Watson's second, fatal choking episode. Nurse King testified that after the first choking episode, the nursing staff should at least have finely cut Mrs. Watson's food for her and watched her eat to determine whether she continued to experience swallowing issues. That would have minimized the risk of choking at least until Dr. Doshi--assuming he had been properly informed--could order a speech therapy evaluation. (Deposition of Gail King, R.N., Ex. 28, Howard Decl. 67:22-69:23) Such simple commonsense precautions did not require medical authorization. Nurse King's report identifies a number of lapses by the Brighton Gardens staff: "Lack of communication by the staff at all levels to ensure her basic needs were met"; "Lack of reassessment by the staff once physical or behavioral changes were observed"; "Lack of timely follow-up intervention to ensure her health & safety"; "Lack of timely and/or consistent documentation to ensure staff were aware [*23] of her needs or changes demanded due to these needs"; and "Lack of timely notification to physicians with changes in her condition." (King Report, Dkt. No 167-29, at 13-14) The report states that these failures and oversights "caused direct harm and injury" to Mrs. Watson and "contributed to her death." (Id. at 14) Dr. Starer, the expert physician, agreed with Nurse King's conclusions. He found that Mrs. Watson's second, CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 52 of 162 Trans ID: LCV2019863158 Page 7 2015 U.S. Dist. LEXIS 93962, * fatal choking could have been prevented had Brighton Gardens observed a reasonable degree of care: As a foreseeable result of the staff of Brighton Gardens of Edison not providing care to prevent aspiration, Ms. Watson aspirated on April 26, 2007. Ms. Watson's history of aspiration was known to the staff of Brighton Gardens of Edison. Ms. Watson required aspiration precautions. She should have been maintained in an upright position during and after meals. Food of appropriate size and consistency should have been provided...There is no evidence that Ms. Watson was properly assessed or monitored. ... As a result of the staff of Brighton Gardens of Edison not properly providing care to prevent aspiration, Ms. Watson aspirated. As a result of choking on food, her airway was obstructed. [*24] As a result of her airway being obstructed, she suffered cardiac arrest and died...Brighton Gardens of Edison failed to ensure that Ms. Watson received appropriate routine medical and nursing care[.] ... Brighton Gardens of Edison's failure to comply with the applicable standards of care caused, within a reasonable degree of medical certainty, Ms. Watson to aspirate, suffer cardiac arrest and die...These injuries to Ms. Watson could have, within a reasonable degree of medical certainty, been prevented if the standards of care had been followed. (Starer Report, Ex. 8, Howard Decl., Dkt. No. 167-10, at 6) Finally, Mr. Watson notes that Brighton Gardens failed to follow its Choking or Blocked Airway policy during Mrs. Watson's second choking incident. That policy instructs the nursing staff to "[c]lear the resident's airway immediately if the resident is not able to talk or cough by performing the emergency procedure for choking." (Choking or Blocked Airway, Ex. 25, Howard Decl., Dkt. No. 167-27, at 2) Brighton Gardens asserts that staff members "administered the Heimlich maneuver" immediately after realizing Mrs. Watson was choking. (Def. Facts ¶89) But the paramedics who responded to the 911 call [*25] recorded in their report that "No Heimlich maneuver or CPR started prior to E-FD's arrival." (Patient Care Report, Ex. 7, Howard Decl., Dkt. No. 167-9, at 2) I do not suggest, of course, that the evidence marshaled by Mr. Watson compels judgment in plaintiffs favor. But it is more than sufficient to raise a question of material fact regarding whether the defendants followed the duty of care, and therefore, to preclude summary judgment in the defendants' favor. The defendants' motion for summary judgment is thus denied as to Mr. Watson's claims for gross negligence (Count Two), negligence (Count Three), and medical practice and professional negligence (Count Four). B. Punitive Damages Mr. Watson seeks punitive damages on all three negligence counts. The defendants argue that even if the Court does not grant summary judgment on those counts in their entirety, it should nonetheless grant partial summary judgment to the extent that they seek punitive damages. The defendants claim that, as a matter of law, the conduct alleged by Mr. Watson simply does not rise to the level of culpability required to impose punitive damages. The Punitive Damages Act ("Act") governs claims involving punitive [*26] damages. N.J.S.A. § 2A:15-5.9-5.17. Under the Act, a New Jersey court may award punitive damages only if: [T]he plaintiff proves, by clear and convincing evidence, that the harm suffered was the result of the defendant's acts or omissions, and such acts or omissions were actuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions. This burden of proof may not be satisfied by proof of any degree of negligence including gross negligence. N.J.S.A. § 2A:15-5.12(a). The Act defines "actual malice" as an "intentional wrongdoing in the sense of an evil-minded act" and "wanton and willful disregard" as a "deliberate act or omission with knowledge of a high degree of probability of harm to another and reckless indifference to the consequences of such act or omission." N.J.S.A. § 2A:15-5.10. A court should therefore award punitive damages "only where the evidence shows that the defendant knows or has reason to know of facts that create a high risk of physical harm to another and deliberately pro- CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 53 of 162 Trans ID: LCV2019863158 Page 8 2015 U.S. Dist. LEXIS 93962, * ceeds to act in conscious disregard or, or indifference to, that risk." Sipler v. Trans Am Trucking, Inc., 2010 U.S. Dist. LEXIS 126047, 2010 WL 492393, at *3 (D.N.J. Nov. 30, 2010) (citing Burke v. Maassen, 904 F.2d 178, 181 (3d Cir. 1990)). It is "not enough to show that a reasonable person in the defendant's position would have realized or appreciated [*27] the high degree of risk from his actions." Id. Rather, "there must be some evidence that the defendant actually realized the risk and acted in conscious disregard or difference to it." Id. (emphasis added) I therefore deny the motion for summary judgment as to punitive damages. I [*29] do so, however, without prejudice to the renewal of these arguments at the close of plaintiff's case or at the close of all the evidence. I further note that, in diversity cases, the Court generally adheres to the state-court procedure of bifurcating the trial, presenting the punitive damages issues to the jury only if, and after, the jury has awarded compensatory damages. Mr. Watson alleges that the defendants intentionally decided to understaff Brighton Gardens, and that this decision "created an environment in which the staff were too busy to pay attention to the residents" or "to monitor their condition and their needs." (Plaintiff's Brief in Opposition to Def. Sum. J. Mot. and in Supp. of Pl. Cross-Motion for Leave to Am. the Compl. ("Pl. Br."), Dkt. No. 167, at 31) His principal evidence in support of this contention is that the defendants failed to replace Jonelle West, the Coordinator of the Reminiscence Unit--the part of the facility specially designed for residents suffering from Alzheimer's where Mrs. Watson had resided since May 2006--after she filed for disability in April 2008 and took a leave of absence. (See Pl. Facts, ¶ 1163) Mr. Watson states that instead of hiring someone to fill this supervisory position, the defendants "requir[ed] instead that others cover for her absence and effectively le[ft] no one in charge." (Pl. Br., at 31) He charges that [*28] had West been replaced, a supervisor would have been present during Mrs. Watson's second choking episode. The decision to not replace West, Mr. Watson says, is part of the defendants' deliberate decision to keep Brighton Gardens understaffed. Further, he maintains that all of the alleged derogations from the standard of care discussed in Section IV.B., supra, derived from understaffing. Count One of the Second Amended Complaint alleges that the defendants violated four statutory or regulatory schemes: I find that this issue is not suitable for resolution on summary judgment based on this record. Certainly punitive damages are not prohibited as a matter of law. Striking down an exculpatory contractual clause that precluded punitive damages, the Appellate Division has stated that "[t]he preclusion of punitive damages touches upon the societal interest of expressing the community's disapproval of outrageous conduct. In the context of nursing home abuse, punitive damages also serve an 'admonitory' function." Estate of Ruszala v. Brookdale Living, 415 N.J. Super. 272, 298, 1 A.3d 806 (App. Div. 2010). The issue is a fact-sensitive one that may depend on the evaluation of witness testimony. While defendants have ample grounds for their opposition to punitive damages, I cannot rule them out under every plausible scenario that may occur at trial. C. The Statutory Violations o The New Jersey Nursing Home Responsibilities & Rights of Residents Act, N.J.S.A. § 30:13-1 et seq. (the "NHRRRA"), o The Standards for Licensure of Assisted Living Residences, Comprehensive Personal Care Homes, and Assisted Living Programs, N.J.A.C. § 8:36-1.1 et seq. (the "SLALR") o The Standards for the Licensure of Long-Term Care Facilities, N.J.A.C. § 8:39-1.1 et seq. (the "SLLTCF"), and o The Federal Nursing Home Reform Amendments, 42 U.S.C. § 1396r et seq. (the "FNHRA"). The defendants cite a recent decision of this district court which held that the NHRRRA does not apply to assisted living facilities such as Brighton Gardens. Andreyko v. Sunrise Sr. Living, Inc., 993 F. Supp. 2d 475, 481-85 (D.N.J. 2014). Adopting Judge Debevoise's analysis, I will grant summary judgment on Count One to the extent it alleges violations of the NHRRRA. Of course, disposing of the NHRRRA allegations [*30] does not dispose of Count One. I therefore consider the other statute and regulations under which Mr. Watson seeks relief. I hold that they either do not confer a private right of action or do not apply to Mrs. Watson, and therefore I will grant summary judgment on Count One in its entirety. First, the state regulations. There is no private right of action to enforce the provisions of the SLALR and the SLLTCF. Both are promulgated under Title 8 of the New Jersey Administrative Code. The SLALR, codified at Chapter 36, "establish[es] minimum standards with which an assisted living residence, comprehensive per- CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 54 of 162 Trans ID: LCV2019863158 Page 9 2015 U.S. Dist. LEXIS 93962, * sonal care home or assisted living program must comply in order to be licensed to operate in New Jersey." N.J.A.C. 8:36-1.2. It provides that each resident is entitled to an enumerated list of rights, such as "the right to receive a level of and services that addresses the resident's changing physical and psychosocial status," and "the right to be free from physical harm and mental abuse and/or neglect." N.J.A.C. 8:36-4.1. Although this is styled as a list of "rights," the regulation does not promulgate a liability-creating scheme that affords a private right of action against infringers. To the contrary, the SLALR explicitly [*31] provides only that the New Jersey Department of Health and Senior Services ("DHSS") can enforce the provisions of this chapter. Typically, DHSS will do so by denying or revoking a facility's license, assessing monetary penalties, or by removing residents from the facility. N.J.A.C. 8:36-2.8, 2.9, 3.5. The SLLTCF is substantially similar in design. Codified at Chapter 39, it establishes "rules and standards intended to assure the high quality of care delivered in long-term care facilities, commonly known as nursing homes, throughout New Jersey." N.J.A.C. § 8:39-1.1. The rules are "intended for use in State surveys of the facilities and any ensuing enforcement actions." Id. The SLLTCF also sets forth a list of rights to which the residents of such facilities are entitled. N.J.A.C. § 8:39-4.1. The only reference to enforcement in this chapter states that "violations of this subchapter may result in act by the Department [i.e., DHSS] in accordance with N.J.A.C. 8:43E." N.J.A.C. 8:39-2.7. That provision, in turn, provides that only "the Commissioner [of DHSS] or his or her designee may impose [] enforcement remedies against a health care facility for violations of licensure regulations or other statutory requirements." N.J.A.C. 8:43E-3.1. Again, there is no provision for a private right of action, and [*32] the enforcement provision appears to rule out such a right of action. Because neither the SLALR nor the SLLTCF may be enforced through private civil litigation, Mr. Watson's claims for violations of those statutes must therefore fail as matter of law. Finally, Count One alleges a violation of a federal statute, the FNHRA. FNHRA was passed by Congress to provide for the oversight and inspection of nursing homes that participate in the Medicare and Medicaid Programs. 42 U.S.C. §§ 1395i-3(g), 1396r(g). This statute affords nursing home residents certain rights so as to establish minimum standards of care. Like the New Jersey statutes, the FHNRA does not expressly authorize a private cause of action. The Third Circuit, however, has held that a private litigant may seek redress through 42 U.S.C. § 1983 for violations of the rights conferred by FNHRA. See Grammer v. John J. Kane Regional Centers-Glen Hazel, 570 F.3d 520, 525 (3d Cir. 2009). Nevertheless, FNHRA does not apply here, for several reasons. First, the Third Circuit stated that "Medicaid recipients were the intended beneficiaries of § 1396r." Id. at 527. Mr. Watson makes no allegation or showing that his mother was a Medicaid recipient. Second, even if Mrs. Watson did receive Medicaid, violations of the FNHRA can be enforced only through § 1983. Mr. Watson asserts no such claim, [*33] nor could he, because Brighton Gardens is a private actor. See, e.g., Boykin v. 1 Prospect Park ALF, LLC, 993 F. Supp. 2d 264, 283 (E.D.N.Y. 2014) ("Plaintiffs' section 1983 claims would still require proof that the deprivation of their federal rights occurred 'under color of [State] law.' The defendants here are private parties, not state actors, and it is undisputed that at all relevant times the [facility in question] 'was private pay--not Medicaid.'") (internal citations omitted). Finally, the allegations of the complaint and the proofs I have analyzed leave it unclear whether Brighton Gardens, an "assisted living facility" under New Jersey law, see Andreyko, 993 F. Supp. 2d. at 481-85, meets the FNHRA's statutory definition of a "nursing home." For these reasons, I conclude that Mr. Watson's FNHRA claim fails as a matter of law. Summary judgment is granted on Count One in its entirety. D. Piercing the Corporate Veil Count 6 of the Second Amended Complaint alleges that SSLI should be held liable for the alleged tortious conduct of Services, its subsidiary. Services, recall, is the licensed operator of Brighton Gardens. Mr. Watson contends that SSLI dominated Services to such an extent that it is permissible for the Court to pierce the corporate veil. The defendants urge the Court to enter summary judgment [*34] on this count because, they say, the evidence shows that Services did not abuse the corporate form. I disagree. The evidence presented by Mr. Watson is sufficient to raise genuine, material factual issues regarding the relationship between Services and SSLI. Piercing the corporate veil is a "tool of equity." Carpenters Health & Welfare Fund v. Kenneth R. Ambrose, Inc., 727 F.2d 279, 284 (3d Cir. 1983). It provides a remedy "when [a subservient] corporation is acting as an alter ego of [a dominant corporation.]" Bd. of Trustees of Teamsters Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164, 171 (3d Cir. 2002) (citations omitted). A plaintiff seeking to pierce the corporate veil bears the burden of establishing that the corporate form should be disregarded. Richard A. Pulaski Constr. Co. v. Air Frame Hangars, Inc., 195 N.J. 457, 472, 950 A.2d 868 (2008). Under New Jersey law, the plaintiff must show CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 55 of 162 Trans ID: LCV2019863158 Page 10 2015 U.S. Dist. LEXIS 93962, * that (1) "the parent so dominated the subsidiary that it had no separate existence but was merely a conduit for the parent," and (2) "the parent has abused the privilege of incorporation by using the subsidiary to perpetrate a fraud or injustice, or otherwise to circumvent the law." Pharmacia Corp. v. Motor Carrier Services Corp., 309 F. App'x 666, 672 (3d Cir. 2009) (quoting State Dep't of Env. Prot. v. Ventron Corp., 94 N.J. 473, 468 A.2d 150 (1983)). Factors relevant to piercing the corporate veil include: [G]ross undercapitalization ... failure to observe corporate formalities, non-payment of dividends, the insolvency of the debtor corporation at the time, siphoning of funds of the corporation by the dominant stockholder, non-functioning [*35] of other officers or directors, absence of corporate records, and the fact that the corporation is merely a facade for the operations of the dominant stockholder or stockholders. Foodtown, Inc., 296 F.3d at 172. Whether the veil should be pierced is ordinarily a fact-intensive issue: "The issue of piercing the corporate veil is submitted to the factfinder, unless there is no evidence sufficient to justify disregard of the corporate form." N. Am. Steel Connection, Inc. v. Watson Metal Products Corp., 2010 U.S. Dist. LEXIS 95594, 2010 WL 3724518, at *10 (D.N.J. Sept. 14, 2010) (citations omitted) aff'd, 515 F. App'x 176 (3d Cir. 2013). Mr. Watson persuasively cites deposition and other testimony that suggests that Services functioned as the alter ego of SSLI. Bradley Rush, who from 2005 to 2007 simultaneously served as the Chief Financial Officer of SSLI and the sole member of Services' board of directors, testified that Services had no employees of its own and held no formal board meetings. (Deposition of Bradley Rush ("Rush Dep."), Ex. 9, Howard Decl., Dkt. No. 167-11, at 13:9-10, 16:10-12) Rush testified that Services did not keep its financial books and records separate from those of SSLI. (Id. at 35:11-13) He further stated that the money generated by the assisted living facilities operated by Services was routinely "swept into a centralized account at the bank of [SSLI's Virginia] [*36] location." (Id. at 24:21-25, 25:1-2) Although Services formally maintained its own bank accounts, it did not retain "any portion" of the revenue generated by the assisted living facilities. (Id. at 25:8-10) Instead, Rush said, when Services needed to pay its staff or make other expenditures, "funds would be swept back down from [SSLI's] centralized account to cover that." (Id. at 28:1-7). Typically, however, Services' bank accounts "were always maintained at zero." Id. at 28:4-18) Rush also testified that SSLI determined the staffing levels at the facilities operated by Services, like Brighton Gardens. (Id. at 30-31) For these reasons, Rush maintained that SSLI and Services "acted as the alter ego of each other," and that SSLI "completely dominated and controlled the activities and finances of...Services." (Id. at 33:12-19) Richard Nadeau, who succeeded Rush as the Chief Financial Officer of SSLI, gave trial testimony in a separate action against SSLI that corroborates Rush's deposition testimony.6 Nadeau testified that he was unable to estimate the worth of Services because he said, referring to SSLI, "we don't keep the books and records of the corporation that way. We keep the records at the [*37] consolidated level." (Testimony of Richard Nadeau, Ex. 11, Howard Decl., Dkt. No. 167-13, 6:19-26) Nadeau, like Rush, stated that all of the revenue generated by Services through its assisted living facilities is deposited into an account controlled by SSLI, and that SSLI then decides how those funds will be allocated. (Id. at 14-15) Nadeau could not recall if Services ever paid a dividend to SSLI. (Id. at 13) Furthermore, although he was an officer of SSLI, Nadeau also performed work on behalf of Services. (Id. at 10:12-14) 6 Nadeau was called to testify on behalf of SSLI on May 14, 2008 in the case of Adams v. Villa Valencia Health Care Center and Sunrise Senior Living, Inc., et al., in the California Superior Court of Orange County (Case No. 05CC13199). This transcript may constitute admissible hearsay in its own right. It is a statement "made by a person whom the party authorized to make a statement on the subject," and also, because it is a statement "made by the party's agent or employee on a matter within the scope of that relationship and while it existed." FED. R. EVID. 801(d)(2)(C)-(D). SSLI's Form 8-K, dated May 29, 2009, confirms that Nadeau was CFO of SSLI when he gave the testimony quoted in the text. ( [*38] See Ex. 12, Howard Decl., Dkt. No. 167-14). At the very least, this transcript may be considered, like an affidavit, as a sworn statement of a person who could presumably be called as a witness. The former executive director of Brighton Gardens, Nelson Duran, testified at his deposition that he had never heard of Services, even though it held the license for the facility he oversaw. (Deposition of Nelson Duran, Ex. 14, Howard Decl. Dkt. No. 167-16, 11:12-14) He also testified that he received "training regarding proce- CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 56 of 162 Trans ID: LCV2019863158 Page 11 2015 U.S. Dist. LEXIS 93962, * dures and protocols" to be used at Brighton Gardens at SSLI's office in Virginia. (Id. at 9:16-25, 10:1-15) According to Duran, Brighton Gardens' entire policy manual was prepared by SSLI. (Id. at 49:4-16). That point was reinforced by Thomas Kessler, SSLI's Area Manager of Operations in New Jersey. Kessler testified that SSLI set the policies to be used at the facilities operated by its subsidiaries and then took steps to ensure compliance with those policies. (Deposition of Thomas Kessler, Ex. 13, Howard Decl., Dkt. No. 167-15, 20:7-25, 22:18-23:2, 35:13-17, 45:16-47:13) The defendants protest that SSLI and Services have not "abused" the corporate form. However, they offer [*39] scant evidence to contradict the testimony marshalled by Mr. Watson. There is the declaration of Susan Timoner, the Vice President of Services, which states that although SSLI "has overarching goals for its subsidiaries (as would any parent company)," it has "no involvement in the day-to-day operations or management" of Services. (Declaration of Susan Timoner, Ex. J., Jabbour Cert., Dkt. No. 158-13, ¶¶20, 30) Timoner's declaration also states that SSLI and Services each have their own officers and boards of directors, and that Services "maintains bank accounts in its name and issues W-2s to its thousands of employees." (Id. at ¶¶11, 13) In support, the defendants submit copies of W-2s issued by Services as well as what are described as Services' financial records and bank statements. I find problems with each piece of evidence. The W-2s do list Services as the employer, but the address listed is that of SSLI. (Ex. N, Jabbour Cert., Dkt. No. 158-17) The alleged financial statements are two Independent Auditors Reports for the period between 2005 and 2008. (Ex. L, Jabbour Cert., Dkt. No. 158-15) Inexplicably, both reports consist of balance sheets that are completely devoid of financial [*40] figures. There are, for example, no dollar amounts listed for "Total assets" or "Total liabilities"; indeed, there are no dollar amounts listed in any rows or columns. (Id.) The alleged statement from Services' bank account is similarly perplexing. (Ex. M., Jabbour Cert., Dkt. No. 158-16) It is completely redacted, and contains no information of any kind. I do not suggest that defendants' evidence could not be believed or credited. But in light of the evidence presented, I find that Mr. Watson has raised material factual questions of fact regarding both prongs of the veil-piercing test. As to the first prong, a reasonable jury could find that Services was merely a conduit for SSLI: for example, Services allegedly failed to hold board meetings or pay dividends, Services allegedly does not keep independent financial records, SSLI allegedly diverted all of Services' revenue into its own bank account, and SSLI allegedly trained and supervised Services' staff. See Foodtown, Inc., 296 F.3d at 172. As to the second prong, "abuse" of the corporate form, the evidence is likewise sufficient to raise a factual issue. The United States Court of Appeals for the Third Circuit has stated "the hallmarks of ... abuse are typically [*41] the engagement of the subsidiary in no independent business of its own but exclusively the performance of a service for the parent, and even more importantly, the undercapitalization of the subsidiary rendering it judgment proof." Pharmacia Corp., 309 F. App'x at 673 (quoting OTR Assocs. V. IBC Servs., Inc., 353 N.J. Super. 48, 801 A.2d 407 (App. Div. 2002)). Testimony cited by Mr. Watson suggests that Services was merely a shell that licensed and operated assisted living facilities for the benefit of SSLI. There is also evidence that Services remits all of its revenue to SSLI, has no substantial assets, and therefore is judgment-proof. That evidence is sufficient to permit a reasonable jury to conclude that SSLI abused the privilege of incorporation by using Services "to perpetrate a fraud or injustice, or otherwise to circumvent the law." Pharmacia Corp., 309 F. App'x at 672. Accordingly, the defendants' motion for summary judgment on Count 6 is denied. The issue of piercing the corporate veil is one for the finder of fact. V. CONCLUSION For the reasons set forth above, the defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART. An appropriate order will issue. /s/ Kevin McNulty KEVIN MCNULTY, U.S.D.J. Date: July 17, 2015 ORDER KEVIN MCNULTY. U.S.D.J.: This matter comes before the Court on the motion for summary judgment [*42] filed by defendants Sunrise Senior Services, Inc. and Sunrise Senior Living, Inc. (the "defendants") (Dkt. No. 158); and the plaintiff having opposed the motion (Dkt. No. 167); and defendants having filed a reply (Dkt. No. 171); and the Court having considered the submissions of the parties pursuant to Fed. R. Civ. P. 78; and for good cause shown; IT IS this 17th day of July 2015, ORDERED, in accordance with the accompanying Opinion and pursuant to Fed. R. Civ. P. 56, that the de- CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 57 of 162 Trans ID: LCV2019863158 Page 12 2015 U.S. Dist. LEXIS 93962, * fendants' motion for summary judgment is GRANTED as to Count One of the Complaint, and it is further ORDERED the motion is DENIED as to Counts Two, Three, Four, Five and Six of the Complaint. /s/ Kevin Mcnulty KEVIN MCNULTY United States District Judge CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 58 of 162 Trans ID: LCV2019863158 L'Xhibitr CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 59 of 162 Trans ID: LCV2019863158 llLlE Mild 28 2015 SUPERIOR COURT OF NEW JEREY ESSEX COUNTY: LAW DIVISION . PREPARED BY THE COURT Qn Frank COVERS, MICHAEL FRIEDENBERG, ET AL. Docket No. Plaintiff(s), CIVIL ACTION v. AMENDED ORDER LINCOLN PARK CARE CENTER, LLC, ET AL. Defendant(sTHIS MATTER having been presented to the Court by application of Steven 1. Greene, Esq., attorney for the plaintiffs, and good cause having been shown; IT IS on this 28?? day of March, 2016, ORDERED that the plaintiffs? application for leave to ?le an amended complaint to add Dr. Arthur Sheppell, in his capacity as Medical Director of Lincoln Park Care Center, LLC, is hereby denied for reasons set forth in the attached statement. IT IS FURTHER ORDERED that a copy of this Order be served on all parties within seven (7) days of the date hereof. Wig Hon. Frank Covello, J.S.C. OPPOSED UNOPPOSED CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 60 of 162 Trans ID: LCV2019863158 Friedenberg v. Lincoln Park Care Center Statement of Reasons This matter comes before the Court on the Plaintiffs? motion seeking leave to ?le a sixth amended complaint to add Dr. Arthur Sheppell, in his capacity as Medical Director of Lincoln Park Care Center as a defendant. On January 8, 2016, this Court granted an Order allowing the plaintiff to ?le a Amended Complaint to add Dr. Jason Prager and Jeanne Mahalik as defendants. However, the parties were directed to brief the issue of futility of the pr0posed amended complaint in addition to the other arguments of the parties. This case arises from the death of Alyce Friedenberg which occurred on December 14, 2012, after she had been under the care of defendant Lincoln Park Care Center from November 16, 2012 through December 10, 2012. During the relevant period of time, Dr. Arthur Sheppell was the Medical Director of Lincoln Park Care Center. The original Complaint was filed on May 14, 2014, and amended complaints were filed on May 23, 2014, June 4, 2014, July 25, 2014, October 28, 2014, August 21, 2015 and February 1, 2016. The Fourth Amended Complaint, October 28, 2014, added ?John Doe, Medical Director? as a defendant. At the time, the statute of limitations had not expired, and Dr. Arthur Sheppell had already been a named defendant in his capacity as a treating physician. The Plaintiffs? original motion was to file a Sixth Amended Complaint to add Dr. Jason Prager, Jeanne Mahalik and Dr. Sheppell as defendants. The motion was granted as to Dr. Prager and Ms. Mahalik, and a Sixth Amended Complaint was filed. If granted, this motion will allow for the ?ling of a Seventh Amended Complaint. It should be noted that Dr. Sheppell?s answers to Form interrogatories, served on or about September 9, 2014, did not identify himself as the Medical Director for Lincoln Park Care Center (LPCC). However, Defendant Sheppell asserts in his opposition papers that various documents produced during discovery contained his signatures which identi?ed him as the CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 61 of 162 Trans ID: LCV2019863158 Medical Director of Lincoln Park Care Center. The signatures did not include a printed name with them, but wouid have required a signature comparison to determine if the signature was that of Dr. Sheppell. Also noteworthy is that on February 12, 2015, the Defendant sent the Plaintiff a letter acknowledging Dr. Sheppell as the Medical Director at LPCC. Furthermore, on February 24, 2015, the defendant provided to the plaintiff, a copy of a contract where Dr. Sheppell was identified as the medical director of LPCC. Thus, it was in February, 2015 that Dr. Sheppell was first officially identified to the Plaintiffs as the Medical Director of LPCC. Interestingly, the Plaintiffs ?led an Amended Complaint on August 21 2015 which did not identify the medical director as Dr. Sheppell, and on December 8, 2015, the Plaintiff settled with all of the LPCC and Pine Brook defendants leaving only Dr. Sheppell, in his capacity as a treating physician, and Nurse Gallagher as defendants. Eight days later on December 16, 2015, the Plaintiff filed a motion to serve a 6th Amended Complaint to name Dr. Sheppell in his capacity as Medical Director. LEGAL ANALYSIS I. Plaintiff?s Motion for Leave to Amend Motions for leave to amend is required by the rule to be liberally granted without consideration of the ultimate merits of the amendment. Notte v. Merchants Mut. Ins. Co., 185 NJ. 490 (2006). However, ?the decision to deny a motion to amend is not mistakenly exercised when it is clear that such an amendment is so meritless that a motion to dismiss under 1&462 would have to be granted, the so-called futility prong of the analysis. Amendment should be liberally exercised at any stage of the proceedings, unless undue prejudiCe would result. mug Med. v. Newark Pub. Sch., 362 NJ. Super. 494 (App. Div. 2003). 2 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 62 of 162 Trans ID: LCV2019863158 W- 2A214-2 provides that every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within two years next after the cause of any such action shall have accrued. Patterson v. Monmouth Regional High School Bd. of Education, 218 NJ. Super. 284 (App. Div. 1987). Medical malpractice also falls into the purview of 2Azl4-2, and thus has a two year statute of limitations. The statute of limitations for the Plaintiff?s claims in this case expired in December, 2014. The Plaintiff is seeking to utilize the discovery rule, a rule of equity which permits the statute of limitations to be extended pursuant to Farrell v. Votator Div. of Chemetron Corp, 62 NJ. 111 (1973). ?Justice impels strongly towards affording the plaintiffs their day in court on the merits of their claim; and the absence of prejudice, reliance or unjustifiable delay, strengthens the conclusion that this may fairly be done without any undue impairment of the two-year limitation or the considerations of repose which underlie it.? 1d,. at 122-123. The Farrell Court held in this case that even though the statute of limitations had expired, an action ?may be held timely on a proper balance of considerations of individual justice.? 1g. at 122. The Court went on to say, ?[the action] may be held timely on a similar balance where, as here, the plaintiffs in good faith brought their action expeditiously against the manufacturer under a ?ctitious name, identi?ed it by amendment as soon as they discovered its true name, and served the amended complaint diligently thereafter.? E. An important consideration for the Court was that ?There is no suggestion that the lapse of time has resulted in loss of evidence or impairment of ability to defend; nor is there any suggestion that the plaintiffs have been advantaged by it.? E- In this case, the Plaintiffs filed an Amended Complaint to include allegations against the medical director of LPCC before the statute of limitations expired. Thus, the motion to amend pursuant to the ?ctitious name practice is prOper. The issue for the Court to determine is 3 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 63 of 162 Trans ID: LCV2019863158 whether, due to the Plaintiffs? conduct, the amendment would otherwise be barred by the statute of limitations. This Court ?nds that although the Plaintiffs could have learned of the identity of the medical director before the statute of limitations expired, the actual formal notice of same did not come until February, 2015, after the statute of limitations expired. The fact that the Plaintiffs failed to move more quickly to amend the complaint will not bar the amendment in this case, primarily because Dr. Sheppell was a defendant in the case and knew of the claims against the medical director, but did not alert the Plaintiffs to this fact. This clearly demonstrates a lack of prejudice to the Defendant if the amendment is permitted at this time. Therefore, the amendment is not barred by the statute of limitations. II. Futility The New Jersey Supreme Court has construed 429-1 to "require that motions for leave to amend be granted liberally," even if the ultimate merits of the amendment are uncertain. Kernan v. One Wash. Park Urban Renewal Assoc, 154 NJ. 437, 456 (quoting W, Inc. v. Borough of E. RutherfOrd, 280 NJ. Super. 507, 516 (App.Div.1995)). One exception to that rule arises when the amendment would be "futile," because "the amended claim will nonetheless fail and, hence, allowing the amendment would be a useless endeavor.? Notte v. Merchants Mut. 185 NJ. 490, 501 (2006). are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law. . . . [T]here is no point to permitting the ?ling of an amended pleading when a subsequent motion to dismiss must be granted."? Ibid. (quoting Interchange State Bank v. Rinaldi, 303 NJ. Super. 239, 256-57 (App.Div.1997)). To determine whether an amendment to a pleading will be futile, the court must undertake the same analysis as for a dismissal for failure to state a claim for relief. As such, if the complaint states no basis for relief and it is clear that discovery would not provide one, dismissal of the complaint under R, 4 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 64 of 162 Trans ID: LCV2019863158 4:62 is appropriate. Energy Rec. v. Dept. of Env. Prot., 320 NJ. Super. 59, 64 (App. Div. 1999), aff?d 0b., 167 205 (2001). On a Motion to Dismiss pursuant to B, the Court accepts all of a plaintiff? factual allegations as true. NCP Litig. Trust v. KPMG LLP, 187 NJ. 353, 365 (1995). With the maxim in mind, the Court is charged with examining a plaintiff?s complaint challenged by a motion to dismiss to ?determine if a cause of action can be found in its four corners?. Van Natta Mechanical Corp. v. Di Staulo, 277 NJ. Super. 175, 180 (App. Div., 1994). On a motion to dismiss, the Court does not concern itself with whether a plaintiff can prove any of the allegations in its complaint. Printing Marthorristown v. Sharp Electronics m, 116 739, 746 (1989). Rather, the inquiiy is ?limited to examining the legal suf?ciency of the facts alleged on the face of the complaint?. M. (citing Rieder v. Dep?t of Mg, 221 NJ. Super. 547, 552 (App. Div. 1987)). The examination of the complaint is to be conducted liberally, ?with a generous and hospitable approach?. M. The motion to dismiss is therefore to be denied if ?the fundanient of a cause of action may be gleaned even from an obscure statement of claim?. 1593, 187 at 365. However, dismissal of plaintiffs pleading is mandated when even a generous reading of the allegations fails to reveal a legal basis for recovery. Edwards v. Prudential Prop. Cas. Co., 357 NJ. Super 196, 202 (App. Div.), certif. m, 176 NJ. 278 (2003). It is therefore necessary to evaluate the Plaintiffs? proposed claims against the Dr. Sheppell in his capacity as medical director of LPCC to determine whether the claims would properly be dismissed for failure to state a claim, which would warrant the denial of the Plaintiffs? motion to amend. CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 65 of 162 Trans ID: LCV2019863158 A. Negligence Claims The defendant alleges that a negligence claim against Dr. Sheppell in his capacity as the Medical Director of LPCC is futile because under New Jersey Law, there can be no ?Captain of the Ship? liability attributed to the medical director. To establish a prima facie case of negligence in a medical-malpractice action, a plaintiff must present expert testimony establishing: the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury. Gardner v. Pawliw, 150 NJ 359, 375 (1997). A physician must act with that degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in the ?eld. Velazquez v. Portadin, 163 NJ. 677, 686 (2000). However, the doctrine of "the captain of the ship," a concept that makes a physician vicariously liable for the negligence of others who were involved in caring for the same patient, but were not under the doctor's control or supervision, has been expressly rejected in New Jersey by CW. v. Cooper Health 388 NJ. Super. 42, 65 (App. Div. 2006); Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 NJ. 335, 346 (1994); Diakamopoulos v. Monmouth Med. Ctr., 312 NJ. Super. 20, 34-35 (AppDiv. 1998); Johnson v. Mountainside Hosp., 239 NJ. Super. 312, 322 (App. Div.), certif. denied, 122 NJ 188 (1990),, It is clear that any claim of negligence against Dr. Sheppell in his capacity as the medical director of LPCC is a vicarious ?captain of the ship? theory of liability. This theory of liability cannot survive a motion to dismiss and likewise warrants the denial of a motion to amend the complaint to assert such a claim. CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 66 of 162 Trans ID: LCV2019863158 B. New Jersey Nursing Home Responsibilities and Rights of Residents Act (NHA) The Nursing Home Responsibilities and Rights of Residents Act was enacted in 1976 to declare "a bill of rights" for nursing home residents and de?ne the ?reSponsibilities" of nursing homes. 30:13?1. The ?rights? of nursing home residents are set forth in M. to and include a resident's right to: manage his or her own ?nancial affairs, unless a guardian authorizes the nursing home to do so; privacy; retain the services of his or her own physician; unrestricted communication and personal visits at a reasonable hour; food that meets I religious dietary requirements; and ?a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident.? Lbid. The NHA was amended in 1991, adding two statutory sections, which are codi?ed in N.J.S.A. 30: 1 3-4.1 and N.J.S.A. 30:13-42. which provide that a person ?shall have a cause of action against the nursing home for any violation of this act." Under N.J.S.A. 30:13-42, the Department Of Health is authorized to bring an action to enforce the provisions of "this act and any rules and regulations promulgated pursuant to this act. Ibid. In v. Atlantic Health 440 NJ. Super. 24, 35-36 (App. Div. 2015), the Appellate Division held that a resident ofa nursing home does not have a private cause of action to enforce the ?responsibilities provision,? 30:13?3, but a resident does have a private cause of action for the breach of a ?right? under the statute, M. 30113-5. E- 30:13-5 provides the following rights: Every resident of a nursing home shall: a. Have the right to manage his own ?nancial affairs unless he or his guardian authorizes the administrator of the nursing home to manage such resident?s ?nancial affairs. Such authorization shall be in writing and shall be attested by a witness that is unconnected with the nursing home, its operations, its staff personnel and the administrator thereof, in any manner whatsoever. 7 65/16/2019 10:34:13 AM Pg 67 of 162 Trans In: b. Have the right to wear his own clothing. If clothing is provided to the resident by the nursing home, it shall be of a proper c. Have the right to retain and use his personal property in his immediate living quarters, unless the nursing home can demonstrate that it is unsafe or impractical to do so. d. Have the right to receive and send unopened correspondence and, upon request, to obtain assistance in the reading and writing of such correspondence. e. Have the right to unaccompanied access to a telephone at a reasonable hour, including the right to a private phone at the resident?s expense. Have the right to privacy. g. Have the right to retain the services of his own personal physician at his own expense or under a health care plan. Every resident shall have the right to obtain from his own physician or the physician attached to the nursing home complete and current information concerning his medical diagnosis, treatment and prognosis in terms and language the resident can reasonably be expected to understand, except when the physician deems it medically inadvisable to give such information to the resident and records the reason for such decision in the resident?s medical record. In such a case, the physician shall inform the resident?s next-of-kin or guardian. The resident shall be afforded the opportunity to participate in the planning of his total care and medical treatment to the extent that his condition permits. A resident shall have the right to refuse treatment. A resident shall have the right to refuse to participate in experimental research, but if he chooses to participate, his informed written consent must be obtained. Every resident shall have the right to con?dentiality and privacy concerning his medical condition and treatment, except that records concerning said medical condition and treatment may be disclosed to another .nursing home or health care facility on transfer, or as required by law or third-party payment contracts. h. Have the right to unrestricted communication, including personal visitation with any persons of his choice, at any reasonable hour. i. Have the right to present grievances on behalf of himself or others to the nursing home administrator, State governmental agencies or other persons without threat of discharge or reprisal in any form or manner whatsoever. The administrator shall provide all residents or their guardians with the name, address, and telephone number of the appropriate State governmental of?ce where complaints may be lodged. Such telephone number shall be posted in a conspicuous place near every public telephone in the nursing home. j. Have the right to a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident, including the right to expect and receive appropriate assessment, management and 8 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 68 of 162 Trans LCV2019863158 treatment of pain as an integral component of that person?s care consistent with sound nursing and medical practices. k. Have the right to refuse to perform services for the nursing home that are not included for therapeutic purposes in his plan of care as recorded in his medical record by his physician. 1. Have the right to reasonable opportunity for interaction with members of the opposite sex. If married, the resident shall enjoy reasonable privacy in visits by his spouse and, if both are residents of the nursing home, they shall be afforded the opportunity, where feasible, to share a room, unless medically inadvisable. m. Not be deprived of any constitutional, civil or legal rights by reason of admission to a nursing home. n. Have the right to receive, upon request, food that meets the resident?s religious dietary requirements, provided that the request is made prior to or upon admission to the nursing home, and if the resident is not a Medicaid recipient, that the resident agrees to assume any additional cost incurred by the nursing home in order to meet those dietary requirements. If the resident is a Medicaid recipient upon admission, or becomes eligible for Medicaid after admission, the nursing - home shall include the cost of the religious dietary requirements in its Medicaid cost report for consideration under applicable reimbursement processes. As used in this section, ?Medicaid? means the Medicaid program established pursuant to c.4l3 et seq). Under a resident of a nursing home does not have a private right of action under this statute against a nursing home (or its director) unless a violation of one of these ?rights? has been violated. in Count Eight of the Plaintiffs? proposed 6th Amended Complaint, the plaintiffs allege ?infringements of Alyce Friedenberg?s rights as set forth in N.J.S.A. 30:13-5, including the right to a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of Alyce. . However, there is no specific allegation of how the defendants infringed upon Ms. Friedenberg?s right to a safe and decent living environment. A search of the pleading would lead this Court to conclude that the factual allegations to support the claim would be the lack of proper nutrition and hydration which is the I CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 69 of 162 Trans ID: LCV2019863158 underlying factual basis for the malpractice claims. Thus, the Plaintiffs? claim must fail, because it is a veiled attempt to bring a medical malpractice claim through the ?rights? violation. C. Breach of Contract Claim The Plaintiffs also postulate a theory that they can bring a breach of contract claim against Dr. Sheppell in his capacity as the Medical Director of LPCC as the 3rd party bene?ciaries of the employment contract between Dr. Sheppell and LPCC. (The employment contract is attached to Plaintiffs? opposition papers as Exhibit F). 2A: 1 52 allows an injured person to sue on any contract for whose bene?t the contract was made. This statute merely restates established New Jersey law that third?party bene?ciaries may sue upon a contract made for their bene?t without privity of contract. v. N. Brunswick, 227 NJ. Super. 214, 220-221 (App. Div. 1988) (quoting Houdaille Constr. Materials, Inc. v. American Tel. Tel. Co., 166 NJ. Super. 172, 184-185 (Law Div. 1979). The standard applied by courts in determining third?party bene?ciary status is ?whether the contracting parties intended that a third party should receive a bene?t which might be enforced in the courts. . . Brooklawn v. Brooklawn Housing Corn, 124 N.J.L. 73, 77 (E. A. 1940). Unless such a conclusion can be derived, a third party has no cause of action despite the fact that it may derive an incidental bene?t from the contract?s performance. Gold Mills Inc. v. Orbit Processing Corn, 121 NJ. Super. 370, 373 (Law Div. 1972). In this case, there is no named 3rd party bene?ciary to this contract. In these situations, courts ascertain the parties? intention from a consideration of all the surrounding circumstances. Atlantic Northern Airlines, Inc. v. Schwimmer, 12 NJ. 293 (1953). A review of the contract at issue demonstrates that the medical director is obligated to: insure there are primary and alternate physicians to care for each resident, ensure all physician orders are properly 10 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 70 of 162 Trans ID: LCV2019863158 executed, review patient care plans and schedules, review all incident reports, and respond to medical emergencies when not being handled by another attending physician. It appears that the patients are the 3rd party bene?ciaries of the contact as the language explicitly requires the medical director to provide for their care. However, even a most liberal search of the pleading reveals that this is another attempt to vicariously assert a claim against the medical director, for the conduct of the employees of Lincoln Park. This theory of liability again is a veiled attempt to assert a medical malpractice claim (through a contract claim) which essentially is a ?captain of the ship? theory of liability which is not recognized in the state of New Jersey. Thus, the contract theory of liability must fail. Conclusion For the reasons set forth above, while the Plaintiffs are not barred by the statute of limitations from amending their complaint against Dr. Sheppell in his capacity as medical director, the causes of action against him as medical director would not survive a motion to dismiss for failure to state a claim, and therefore the amended complaint would result in futility. There are no viable claims, under the theories expressed in the proposed Amended Complaint, against Dr. Sheppell in his capacity as medical director. For these reasons, the Plaintiffs? motion to ?le the 7th Amended Complaint to name Dr. Sheppell in his capacity as medical director, is denied. 11 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 71 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM pg 72 of 162 Trans ID: LOV2019863158 LAW OFFICE OF ANDREW A. BALLERINI Cherry Tree Corporate Center 535 Route 38, suite 328 - ANDREW A. BALLERINI, ESQUIRE Cherry Hill, New Jersey 08002 RICHARD J. TALBOT, ESQUIRE CERTIFIED CIVIL TRIAL ATTORNEV Tel. 856-665?7140 CERTIFIED CIVIL TRIAL ATTORNEV MILLION DOLLAR ADVOCATEs FORUM MEMBER Fax 856-665?8885 MILLION DOLLAR ADVOCATEs FORUM MEMBER MEMBER AND PA BAR MEMBER NJ. AND PA BAR (Forwarded by facsimile transmission 973?912-9212 and regular mail) October 12, 2018 Robert E. Blanton, J12, Esquire HARDIN, KUNDLA, POLETTO 673 Morris Avenue Spring?eld, NJ 07081 RE: Capano V. CareOne at Evesham, et al Docket No. 7 Your File No. 1481.44924 Dear Mr. Blanton: Enclosed please ?nd the October 12 2018 1ep01t and Curriculum Vitae of Lance R. Youles BS LNHA Plaintiffs expert in the ?eld of Nu1s1ng Home Adm1n1st1at10n Bates Stamped 00903? 003937?. Same shall be conside1ed an Amendment to the Plaintiffs lnteirogatory Answers. No submissions by the Plaintiff shall be considered adoptive admissions Mr. Youles is hereby named as the Plaintiffs expert in the ?eld of nursing home administration. Mr. Youles is expected to testify as to various nursing home laws, nursing home standards of care, administrator standards ofcare and the application of those laws and standards to the Defendants, including the nursing homes? staff. Mr. Youles is also expected to testify as to the fact that the facility is a nursing home and falls under nursing home laws and standards. Mr. Youles is also expected to testify regarding staf?ng. Mr. Youles? opinions should not be considered to be constrained by the ?four corners? of his report or this letter. You are free to take the deposition of Mr. Youles during the discovery period upon appropriate scheduling and notice with my of?ce. (Pm "05/16/2019 P9173 elf-162 Trans ID: The supplying of this report and this correspondence shall be considered an Amendment to Answers to lnterrogatories but no submission by the Plaintiff shall be considered an adoptive admission. Thank you for your courtesy and cooperation in this matter. Sl?CCl?Cly, . . . W: RICHARD J. TALBOT, ESQUIRE RJT/dmc 05/16/2019 10:34:13 AM Pg 74 of 162 Trans ID: LCV2019863158 ?mm 10. CAPANO 003903 Report of L. R. Youles Estate of Andrew P. Capano v. Cale One at Evesham, et ai. Lance R. Youles, BS, LNHA certifies and describes as follows: I am competent to testify to the statements contained within. was retained by the Law Office of Andrew A. Ballerini which represents the Plaintiff. For purposes of this report, all references made to shall mean Care One at Evesham, Elmwood Evesham Associates, LLC, Care One Management, LLC, and Joseph Mina in his capacity as Administrator of COE. For purposes of this report and my opinions, all references made to Governing Body shall mean Care One Management, LLC. RECORDS RECEIVED. ACQUIREIL REVIEWED, AND RELIED UPON have reviewed records and information from the following facilities, agencies, individuals, and sources concerning Andrew Capano and COE: . Please see attachment to this report. BACKGROUND AND FINDINGS COE is a 144 bed for-profit Skilled Nursing Facility, (SNF) in Marlton, New Jersey with 64 long term care beds, and an 80 bed ?Subacute Care" unit with Peritoneal Dialysis. The nursing facility operates on a campus that inaludes assisted living. COE is licensed and regulated by the New Jersey Department of Health and Senior Services, Long Term Care Complaint and Surveillance, Long Term Care Assessment Survey (DHSS). Elmwood Evesham Associates, LLC is the legal business name of the facility. COE is operated by Core One, a regional eldercare chain that provides nursing home and assisted living services in New Jersey, Connecticut, Maryland, Virginia, and Massachusetts. The following parties have a 5% or greater direct ownership interest in COE: 0 Care One LLC (since 9/29/06) . Daniel Straus (since 7/ /2000) Moshael Straus (since 3/29/03) Source: Medicare.gov CAMI-L-000507-17 05/16/2019 10:34:13 AM Pg 75 of 162 Trans ID: LCV2019863158 12. 13. 14. 16. CAPANO 003904 The following entities have a 5% or greater indirect ownership interest in COE: - DES Holding Co, Inc., (since 9/29/06) . DES-C 2?9 (5er (since 10/26/09) Source: Medicaregov The following entities have operational/managerial control over COE: . Care One Management, LLC (since 4/1/07) . Management, LLC (since 7/25/08) Source: Medicaregov Joseph Mina was the Administrator during Mr. Capano?s stay at COE. Chereece Steele, RN was the Interim DON during Mr. Capano's stay at COE. The following excerpt was taken from . ?CareOne at Evesham?s comprehensive sub?acute rehabilitation (offered seven days a week) and long term care services offer expert care in a nurturing homelike environment." COE received the following federal (CMS) survey violations in 2015 and 2016: Care One at Evesham (COE) FEDERAL (CMS) SURVEY VIOLATIONS mm 714.2 :g'lffViOiCiifQ?g Sources: CMS and DHSS records Note: Comparisons do not reflect all violations received in 2015 and 2016 Comparisons do not reflect Life Safety violations 2 I CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 76 of 162 Trans ID: LCV2019863158 CAPANO 003905 17. The following conclusions resulted from my analysis of COE federal survey violations in paragraph 16: COE received several repeal violations COE received several complaint violations COE received twice as many violations as the average NJ facility COE received 2 Actual Harm violations during the 2/25/15 survey COE received 4 immediate Jeopardy violations during the 4/29/16 survey COE Immediate Jeopardy problems occurred during Mr. Capano's stay COE immediate Jeopardy violations resulted in facility sanctions and fines COE violations during the 2/25/ 15 survey reflect severe understaffing levels COE violations during the 2/25/15 survey reflect resident rights violations COE violations during the 2/25/15 survey reflect resident dignity violations COE violations represent a pattern of regulatory noncompliance COE violations related to negligent conduct in this case include: - F-279 (Care Plans) - (Professional Standards) - F-282 (Assessments) - F-309 (Quality of Care) - (Pressure Ulcers) F-441 (Infections) COE Operates below the NJ and US mainstream industry COE violations are especially troubling for a subacute facility COE violations are especially troubling fora dialysis facility COE violations reflect a significant disregard of resident rights COE violations reflect ?systemic" operational problems COE violations reflect ineffective facility administration COE violations reflect an irresponsible governing body 18. The followingexcerpts were taken from DHSS survey report at COE: ?Based on observation, interview and record review, it was determined that the facility failed to respond in a timely fashion to multiple residents who used the call bell system for staff assistance." "Resident #15 told the surveyor that staff will come in immediately to turn it off and willteil the resident will be back". it would then take up to 2 to 3 hours for staff to return. The resident at one time called the reception desk in the evening asking when someone is going to come help and was told, ?i don't have anything to do with that, and the receptionist hung up." ?Resident #12 stated that at approximately 9:30 pm. a CNA "slammed the door wide open" and came in and asked the resident ?what are you doing" and ?what do you want now?" . "According to the resident, while in the bathroom, he/she called for help but no one came. Resident #22 then called a family member to tell her he/she was stuck in the bathroom. When someone arrived to help, it was 30 minutes later. The family member complained to the facility staff and a corporate staff member. However, the family member never received a response." 3 CAM-AL-000507-17 05/16/2019 10:34:13 AM Pg 77 of 162 Trans ID: LCV2019863158 CAPANO 003906 19. COE received the foliowing CMS Five Star Quality Ratings in February 2016: CMS Five Star Quality Ratings Care One at Evesham (COE) '?ab?ruaryQOTs Rating Key: 1 Star Much below average 2 Stars Betow average 3 Stars Average 4 Stars Above average 5 stars Much above average 20. The tottowtng comparison measures COE resident ?acuity" levels Medicare) against New Jersey and US averages in 2016: Resident Acuity Comparison Care One at Evesham (COE) Medicare Occupancy vs. New Jersey and US Averaaes COE: New Jersey: GGE'Vartunc Note: Medicare occupancy is the nursing home industry standard of measurement for resident acuity Source: CMS Casper data via American Health Care Association 21. The following comparison measures COE CN?A??tovesidenl ratios during the relevant time period against New Jersey averages: Staffing Comparison Care One at Evesham (COE) Comparison Period: 2016 quarter) Comparison Group: Certified Nurse's Aides (CNA) Standard: Direct care statf-to-restdent ratios Comparison: COE CNA-to-restdent ratios vs. New Jersey averages Sources: DHSS Nursing Home Reports Note: Lower ratios are better CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 78 of 162 Trans ID: LCV2019863158 CAPANO 003907 22. The following comparison measures COE direct care HPPD during Mr. Capano's slay against New Jersey and US averages: Comparison Period: Comparison Group: Staffing Comparison Care One at Evesham (COE) 1t/24/15 2/i6/16 (Mr. Capano's stay) Direct care slatt Floor RN's, and Standard: Hours-PehPattenLDay (HPPD) Comparison: COE HPPD average versus New JerSey and US HPPD annual averages Sources: COE Labor Reports January 2016 CMS Casper data via American Health Care Association Aides Tull: 2016 NJ Average: .73 HPPD .77 HPPD 2.28 HPPD 3.78 HPPD 20i6 US Average: .54 HPPD .85 HPPD 2.48 HPPD 3.86 HPPD szew Jersey 23. The following chart compares COE reported staffing levels against CMS expected staffing hours based on CMS RESIDENT time studies: ll Staffing Comparison 3 Care One at Evesham (COE) Reported HPPD vs. CMS Expected HPPD Based on CMS Resident Acuity Time Studies Period: November 2015 - February 2016 Standard: Hours-Per-Patient-Day (HPPD) Aides: tPN's: RN's: Total: COE Reported: 1.74 HPPD 1.16 HPPD 1.28 HPPD 4.19 HPPD mills: Ce. Note: Expected Hours are calculated by summing the nursing limes (from CMS Time Study) connected to each RUG category across all residents in the category and across all categories. The hours are then divided by the number of residents Inctuded in the calculations. The result Is the expected number of hours for the nursing home. Expected hours are based on actual resident aculy. These "reported" COE hours were derived tram a standard annual survey during 2015-16. Comparison Group: The source tor the statfing measures ls CMS torm CMS-671. The iletds that are used in the RN. LPN, and Nurse?s Aide hours are: Sources: Medicare.gov (CMS Five Star Quality Ratings archives). and CMS Five Star Quality Rating System Technical User?s Guide CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 79 of 162 Trans ID: LCV2019863158 CAPANO 003908 24. The following excerpt was taken from a 1131116 "Employee Education Attendance Record at COE: . "Don't say we are short staffed" 25. The following excerpts were taken from ?Resident Comment Forms" of COE with redacted resident names: 5131(15: . ?Daughter came up to me and said her mother was complaining whenever she is wet and needs to be changed it takes a very long time to get someone in there to change her. I went to talk to the resident and asked her if it was any particular shift. She said it doesn't matter. It happens all the time. Sometimes it takes up to 2 hours." ?Complaining that she was left soaking wet throughout the 11?7 shift on 10/14. She asked the aide to speak to Nursing Supervisor and aide claimed she could not find supervisor." 1119(15: . "Mr. Fisher spoke to me about 3~l aides at night. He said aides are coming into his room at night and sleeping in the bed/chair next to him. This happened before and spoke to Denise, things were better before and it's happening again. Also was waiting 6_hours for pain meds for his head. The most recent was last night, but told me it's never his aide that sleeps there it?s a. different one. He doesnot. know-the name and won't describe the person to me. Aide Willie watching football and eating dinner. He is not the only one. Wanted me to promise Willie won't be told he gave his name." M1006: ?Patient calls her "disappearing Daphne" because she is never around and does not answer for at least an hour. Resident says around 2:30 pm. there is never help. She also stated that when she needs help she is told they can't right now because they have to go on break or that it is time for them to go. Resident no longer wants Daphne as a 112M162 . "Resident not receiving assistance at night with bi-pap." . "Resident not receiving assistance at night when elevating legs when getting in bed." CAM4L-000507-17 05/16/2019 10:34:13 AM Pg 80 of 162 Trans ID: LCV2019863158 CAPANO 003909 1129116: ?They are not happy with services and call bell response, family member states she spoke with nursing in regards to her mother almost getting the wrong information, the bell response time, and that she thought it was a safety situation.? 2Z1?16i ?Daughter upset all weekend had to help aides change Mom. Did not know who the nurse was or aide was for mom for weekend -just feels like no one cares." ?Patient admitted Friday 1/29/16 4:00 pm. Requested air mattress prior to admission. No air mattress on bed when they arrived.? "On 1/29/16 waited 45 minutes to be put on bed pan.? ?Patient had blood coming from legs. Nurse said to put a towel under her and left room." 1 ?Nurse rolled her eyes multiple times of patient and told her she needed to wait for assistance." Patient has wounds on back. Sheets stuck to wounds. Sheets were pulled away from wounds without notifying patient of what was going to happen.? 10[3[16: ?Weekend staff are ?not worth" working here. Not enough help, takes longer to answer call bell.? ?At 3 am. this morning turned my call bell no one answer until 5 am. The aide told me she will call the nurse but the nurse did not show up until 6 am." told her my skin is burning because it was leaking since 3 am, but she said she will come back. My colostomy bag was-not changed until close to 7 am." 26. The following conclusions resulted from my analysis of COE staffing issues identified in paragraphs 18 25: COE was rated at 2 stars by CMS for ?Health Inspections? (1119) COE CMS staffing ratings do not reflect actual staffing conditions COE understatfing problems caused a pattern of noncompliance (1116) COE understatfing problems caused severe regulatory violations (1116) COE understatfing problems were identified in the DHSS 2/15/15 survey (1118) COE understatfing problems were identified in nursing in~service records (1124) COE understatfing problems were identified in Resident Comment Forms (1125) COE resident acuity was 2.67 times higher than the average facility (120) COE resident acuity was 3.45 times higher than the average US facility (120) COE nurse's aides (CNA) were 24% below the average NJ facility (122) COE floor RN's were 25% lower than the average NJ facility (122) COE CNA's were 33% below CMS expected staffing levels (1123) COE staffing levels were dangerousiy low based on acuity (1120) 7 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 81 of 162 Trans ID: LCV2019863158 CAPANO 003910 COE were 9% below CMS expected staffing levels (1123) COE RN staff levels were extremely low for a subacute facility COE RN staffing levels were extremely low fora dialysis facility COE CNA and RN staffing patterns reflect rigid operating budgets COE CNA and RN staffing patterns reflect corporate rationing practices COE staffing patterns represent a marginal and custodial level of care that is not sufficient to protect high risk residents like Mr. Capano from harm COE understaffing contributed to false charting practices in this case COE understaffing contributed to negligent assessment/care plans in this case Some COE corrective actions to complaints of short staffing include ?placing residents on 2 hour which is very troubling because visually checking all residents even; 2 hours or less is the minimum standard of care No internal facility policy has a greater impact on resident care than staffing. Unfortunately, the COE staffing policy provides no measurable formula and/or guidance for determining sufficient staff, including acuity-based factors and individualized nursing care/supervision for high risk residents like Mr. Capano. COE of?cials references (Sufficient Staff) in the policy but fail to specify how they intend to comply with this standard it is important to recognize that payroll accounts for 55-70% of operationai expenses at most nursing facilities, and direct care staffing levels have the greatest impact on payroll expenses. Therefore, no operational factor has a greater impact on profitability than direct care nursing staff It would be inapprOpriate and misleading to measure COE based solely on compliance with New Jersey ?minimum" staffing numbers, because federal regulations measure staffing based on sufficiency regardless of numbers, which is a ?resident specific" and not an overarching facility standard COE officials failed to assign direct care nursing staff based on resident acuity Medicare Part-A census). In particular, they operated at the following Medicare levels during Mr. Capano?s stay: November 2015 50% A - December 20l5 48% - January 20l6 46% February 2016 48% The term ?short staffed? was a common response by staff to residents/families Staffing levels at COE are characteristic of assignments where nurses and CNA's are expected to squeeze high risk residents like Mr. Capano into unrealistic workloads This level of understaffing at COE represents a conscious disregard of CMS, NJ, and industry numbers/standards Please see the deposition testimony of Joseph Capano (1139) Please see the deposition testimony of Chereece Steele, RN, DON (1136) This level of understaffing violated Mr. Capano's resident rights This level of understaffing set the stage for Mr. Capano?s negative outcomes This level of understaffing left Mr. Capano?s safety and welfare to chance This level of understaffing represents egregious owner/corporate conduct This level of understaffing resulted from ineffective facility administration This level of understaffing resulted from an irresponsible Governing Body 8 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 82 of 162 Trans ID: LCV2019863158 27. 28. 29. 30. 32. 33. 34. CAPANO 003911 Andrew P. Capano was 58 years old when he was admitted to COE on 11/24/15 for quality nursing home care, treatment, supervision, and protection. Mr. Capano represented himself at COE with assistance from his brothers Joseph and Michael. Lisa Dructor, DO was Mr. Capano?s attending physician at COE. Mr. Capano relied on the Medicaid Program to pay for his stay. Mr. Capano was extremely dependent on COE for quality nursing home care due to limitations imposed by his diagnoses. Mr. Capano was considered a PRESSURE ULCER RISK at COE. Mr. Capano is described as follows according to a 2/16/16 ?Minimum Data Set" (MDS) at COE: Entry Date: 11/24/15 No behavioral No rejection of care Extensive assistance with bed mobility, transfers, locomotion off unit, dressing, toilet use and bathing Limited assistance with hygiene Independent with eating Stage 1V sacral pressure ulcer Life expectance is greater than 6 months No problem conditions No falls since admission Mr. Capano's stay at COE was characterized?by'the following negative outcomes: Stay: 11/24/15 - 2/16/16 Negative Outcomes Andrew P. Cagano at Care One at Evesham (COE) (Discharged home) Sources: Mr. Capone's medical records CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 83 of 162 Trans ID: LCV2019863158 CAPANO 003912 35. The following excerpts were taken from the 5(2i[18 deposition transcript of Joseph Mina (Administrator): - Q: ?And the acuities would be the various conditions and needs of the residents, correct?" . A: ?Generally speaking yes." 0 Q: ?And the higher the acuity, the higher the need for staffing." A: "Yes." [51] 36. The following excerpts were taken from the 7[i7[i8 deposition transcript of Chereece Steele, RN (Interim Director of Nursing): 0 Q: ?Were you aware of there being a problem with the staff responding to the call bells in February of 2m . A: ?Yes." [69] 0 Q: ?All nine residents at the group interview said the staff will immediately come into the room and turn off the bell and tell them, i will be back. However, they don?t come back at all or much later. The staff tells the resident, we are short?staffed. Were you aware of those allegations?? A: ?Yes,lwas.? - Q: "Did you in the time that you were at Care One in any capacity, Care One at Evesham, did you find that the facility was ever short-staffed?" . A: ?Yes." [71] - Q: ?i mean RN's, LPN's, CNA's, in the broadest sense any nursing staff, did you ever feel as though the facility was understaffed with regard to nursing staff?? times. Q: "And which aspect? Which of those?? A: ?Both nurses and CNA?Yes." Q: ?Did you ever ask for more nursing staff?? A: ?Yes, i also interviewed, I also worked." Q: ?Who would you ask for more nursing staff?" A: ?Joe Mina.? [72] Q: ?And you actually observed it happening?" A: ?Yes." 0 Q: ?So if it had happened before plus the time you saw it, it happened at least twice?" A: "Yes." Q: ?But you definitely saw three CNA's sleeping - A: didn?t see three but I saw staff sleeping." [88] - Q: ?So instead of caring for the residents, that person was sleeping on the job?" A: ?Yes." [88] 10 7 10:34:13 AM Pg 84 of 162 Trans ID: LCV2019863158 CAPANO 003913 Q: ?But were you aware that a resident was alleging that an aide would come into his room to sleep?" A: ?Yes." [90] Q: ?And as far as the turning and repositioning program, how are we to determine what turning and repositioning program he was on?" A: don't know." [127] Q: ?So you think the 12/1/15 MDS is incorrect?? A: ?Yes, I do." [127] Q: ?Do you know when, if at all, a turning and repositioning program was instituted for him?" A: "In January." Q: ?After he developed the pressure ulcer?? A: ?Yes." [128] Q: "But there's no question that even though it doesn?t say on this form, on the third page of Steele-12, there?s no question that the sacral pressure ulcer developed in Care One at Evesham?" A: ?Yes." [140] A: ?Right, but the nurse could have got mixed up with her area when she was doing her assessment." Q: ?How can you say that if the sacral wound was already - if a sacral wound was being redressed on 12/29/15, how could it have started on 12/29/15 it it was already dressed? in tact 12/28/15 - - A: ?l believe that Cathleen Brown made a, mistake.? [155] Q: "How about on 12/18/15 on pagennihe of the nurses hates, or progress notes, do you believe that Nurse Mary Young gotit wrong when she says she gave treatment to the sacral area as ordered.? A: ?On the 181??" Q: ?Yes." A: "Yes." Q: ?So you think she was wrong too?" A: ?Yes, i do." Q: ?And do you think Nurse Brown was wrong again on 12/17/15 when she indicates she redressed the sacral wound as ordered?? A: ?Yes, I do." Q: ?So do you think that those three times that nurses noted that they redressed the sacral wound prior to 12/29, that they were wrong?? A: think they made a mistake, yes, I do." Q: ?How can you redress a wound it it?s not already dressed?? A: ?i don't know." [156] 11 05/16/2019 10:34:13 AM Pg 85 of 162 Trans ID: LCV2019863158 37. 38. 39. CAPANO 003914 The following excerpts were taken from the 5122118 deposition transcript of Cathleen Brown, RN (COE Floor Nurse): Q: ?Do you recall Mr. Capano developing an injury to his penis?eim A: ?Yes." [47] Q: "Would there be any reason why there'd be two different nurses making entries on the same day in the pressure uicer record?" A: Q: ?So that would tell us that there were two different pressure ulcers that Mr. Capano had, correct?? A: ?Yes." Q: ?And the sacral pressure ulcer also developed in Care One at Evesham, correct?? A: ?Yes." [62] A: ?You?re right, I didn't specifically put it here but it doesn't mean it wasn't done." [69] The following excerpts were taken from the 7117118 deposition transcript of Kiyetta Shields, LPN (COE Floor Nurse): Q: ?So the fact that there?s no turning and repositioning program noted would indicate he was not on a turning and repositioning program, is that true?" A: ?Yes." [43] The following excerpts were taken from the 28177] deposition transcript of' Joseph Capano: - A: ?The first complaint was not taking care of the Foley that was inserted." [40] Q: ?Did he say whether or not that was a one-time occurrence that it wasn?t checked or if it was something that had happened more than once?? A: ?Only it had been left in for too long and that was the results of not having the nurses monitor him and correct it to change it or replace it.? [47] Q: ?What's the next complaint?H A: ?i received at least a dozen or so phone calls from my brother informing me that the staff at Care One had left him in soiled diapers for anywhere between an hour to two hours time after he had pushed the button for them to come and change him. [48] Q: ?We were talking about compiaints your brother had in regards to bowel care and being changed while he was at Care One before we took the break; correct sir?? A: "Yes." [50] 12 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 86 of 162 Trans ID: LCV2019863158 CAPANO 003915 CONCLUSIONS 40. The following conclusions were reached during the course of my records review, research, and analysis: A. Mr. Capano was extremely dependent on COE management and staff for quality nursing home care and treatment. Mr. Capano was entitled to the resident rights identified in paragraph (54). COE violated Mr. Capano's rights under NJSA 30:13?50) as evidenced by the following failures: . Failure to provide continuity of care Failure to prevent his negative outcomes . Failure to provide a subacute level of care . Failure to provide accurate and timely assessment/care planning . Failure to provide incontinence care in a timely/responsible manner . Failure to provide repositioning in a timely/responsibie manner . Failure to provide accurate/timely medical records a Failure to protect his quality of life and dignity 0 Failure to address his complaints in a responsible manner 0 Failure to devote sufficient bedside care from RN's . Failure to devote sufficient bedside care from CNA's . Failure to provide staff of good morai character . Failure to provide qualified nursing staff As a Nursing Home Administrator, I would not be able to convince a DHSS surveyor that Mr. Capano?s negative outcomes at COE were unavoidable based on the continuity of care failures and staff credibility issues identified during my review. In particular, his medical records failed to demonstrate that he received the necessary care and services to attain or maintain his highest practicable physical, mental, and Well?being in accordance with his comprehensive assessments and plans of care. Mr. Capano?s medical records at COE include evidence of ?false charting" as follows: . Treating wounds before they were identified (136) a Two nurses documenting the same treatments (1137) 0 Creating or revising care plans in April after his discharge in February. In particular, Chereece Steele, RN, DON allegedly authored the April entries even though she was discharged from COE in February (1136) . inaccurate MDS information (1136). it is important torecognize that the MDS is not only designed to capture data for care planning purposes, but it also serves as a billing mechanism (invoice) for nursing home residents. Aside from causing and/or contributing to negative resident outcomes, inaccurate MDS information can be a serious infraction and may constitute billing fraud. 13 CAM-L4000507-17 05/16/2019 10:34:13 AM Pg 87 of 162 Trans ID: LCV2019863158 CAPANO 003916 F. One of the overarching Issues in this case is whether Mr. Capano received timely turning/repositioning at COE despite his pressure ulcer development. Only (6) progress notes verify this practice, so the only nursing records that support this defense are CNA flow sheets (Care One: 3727, 3732, and 3738). Based on the lack of progress notes, false charting practices, understaffing, and CNA integrity issues previously identified in paragraphs (l8) and (25), these CNA flow sheets are not reliable. This includes several shifts when turning/repositioning was not recorded or the timing of documentation is not credible. (3. Please see survey analysis in paragraph H. Please see staffing analysis in paragraph (26). l. Direct care staffing levels li.e., Floor Nurses and CNA's) have a significant impact on pressure ulcer prevention and development as follows: Staffing determines the frequency of turning/repositioning Staffing determines the freguency of incontinence care Staffing determines the of personal hygiene Staffing determines the timeliness of wound treatments Staffing determines the effectiveness of treatina wound pain Staffing determines the discovery of new wound development Staffing determines the freguency of wound documentation Staffing determines the accuracy of wound documentation Staffing determines communication of wound changes and issues Staffing determines whether wounds are grogerly assessed[staged Staffing determines whether treatment orders are followed Staffing determines whether wound care glans are followed Staffing determines whether staff nurses are certified In wound care Staffing determines whether ciinical gractice standards are followed Staffing determines whether olicies and . Staffing determines whether wound care regulations are followed Staffing determines whether floor nurses are properly supervised Staffing determines whether wound development is avoidable Staffing determines whether wounds resulted from neqlect Staffing exposes the intent of owners and corgorate staff The underlying causes of Mr. Capano?s skin breakdown and penis injury at COE can be traced to many of these staffing factors, because there was simply not enough direct care staff to address his high level of acuity. Consequently, he was denied: Turning/repositioning every 2 haurs or less Timely and responsive nursing assessment Timely and appropriate catheter care The right to a safe living environment The right to a dignified living environment 14 CAM-L-000507-17 05/18/2019 10:34:13 AM Pg 88 of 182 Trans ID: LCV2019863158 CAPANO 003917 J. Nursing home ?direct care" staffing levels are measured by two standards: numbers and sufficiency regardless of numbers. Unlike numbers which are derived from hours?per-patient-per-day (HPPD) and staff-to-resident ratios. the sufficiency staffing standard is based on individual resident outcomes. In other words, the sufficiency standard determines if a resident received necessary face-to-face bedside supervision based on assessed risk factors. In this case, it is my opinion that COE did not provide suf?cient to prevent the neaative outcomes Mr. Capano received. K. COE staff failed to comply with internal policies and procedures based on the negative outcomes Mr. Capano experienced. L. COE failed to provide nursing staff of good moral character based on the evidence identified in paragraphs (18) and It is important to recognize that this harmful culture of caregiver complacency/disrespect frequently occurs when there is no daily presence of upper management on the floor. especially the Administrator and DON. M. The COE 6/16/15 Employee Education Attendance Record (in-service) regarding wounds is a reliable index of the problems COE nursing officials were facing during that period. This was problem~solving meeting and not a general in-service based on the subject matter. N. COE officials misrepresented the quality of their services to Mr. Capano and his family based on the failures identified in this report. 0. It would be inappropriate and deflective to blame Mr. Capano for his negative outcomes at COE. P. Many of the failures identified in this report are common to nursing facilities with ineffective management companies. Q. Many of the failures identified in this report are common to nursing facilities with ineffective Administrators. R. Many of the failures identified in this report are attributed to the failure of the Governing Body to establish and implement policies and procedures, which impacted Mr. Capano's rights. 5. Care One Management, LLC did not earn its management fees at this facility based on the failures identified during my review. T. Protecting Mr. Capano's resident rights under NJSA by providing a sufficient number of floor RN's and would have prevented and reduced the risk of failures identified in this report. .U. Properly documenting Mr. Capano's wound care would have prevented and reduced the risk of failures identified in this report. 15 I CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 89 of 162 Trans ID: LCV2019863158 41. CAPANO 003918 V. Providing accurate timely assessment and credible care plans would have prevented and reduced the risk of failures identified in this report. W. Repositioning Mr. Capano every (2) hours on a consistent basis would have prevented and reduced the risk of failures identified in this report. X. Providing timely ADL's including incontinence care would have prevented and reduced the risk of failures identified in this report. Y. Providing a subacute level of nursing care would have prevented and reduced the risk of failures identified in this report, including Mr. Capano's pressure ulcers and penis injury. Z. Complying with CMS and New Jersey standards would have prevented and reduced the risk of failures identified in this report. AA. Providing an effective Administrator and responsible Governing Body would have prevented and reduced the risk of failures identified in this report. BB. As a nursing home administrator who is responsible for administering a facility in a manner that enabies it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and well-being of each resident under standards, i found evidence that COE staff violated Mr. Capano's resident riahts. OPINION Based on my education, training, management expertise, regulatory knowledge, and knowledge of skilled nursing facilities, it is my belief to a reasonable degree of professional certainty that COE and its Management Company officials and staff, Administrator, DON, and facility staff of COE failed to provide the necessary care and services for Andrew Capano to attain or maintain his highest practicabie physical, mental, and wellbeing, which violated his resident rights. The repeated failure of COE to protect his rights and to prevent the corporate and management failures identified in this report caused, significantly contributed to and increased the risk of his negative outcomes, which included the pressure ulcers and penis injury. Accordingly, COE fell below the standards for a skilled nursing facility operating in New Jersey during 2015 and 2016 based on standards identified in paragraphs (51) - (58) in general and the following failures in particular: A. FAILURE TO PROTECT RESIDENT Applicable Standards: . Breach of Standards: Federal Regulation: 42 C.F.R. 483.10, F-150 New Jersey Statute: . NJSA 30:13-50) Industry (NJ 8. US): Appiy, and there is a breach 16 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 90 of 162 Trans ID: LCV2019863158 CAPANO 003919 B. FAILURE TO PROVIDE SUFFICIENT NURSING AND: Standards: Breach of Standards: Federal Regulation: 42 C.F.R. 483.30 F-353 New Jersey Regulation: N.J.A.C. Industry (NJ it. US): Apply, and there Is a breach C. FAILURE TO PROVIDE EFFECTIVE FACILITY ADMINISTRATION AND A RESPONSIBLE GOVERNING BODY. Agglicable Standards: Breach of Standards: Federal Regulations: 42 C.F.R. ?483.75, F-490 42 C.F.R. 5483.75 F-493 New Jersey Regulations: N.J.A.C. N.J.A.C. 8:39-92 N.J.A.C. a. Industry (NJ 8. US): Apply, and there is a breach MY NURSING HOME EXPERTISE 42. Based upon my education, training, experience, and research, 1 am familiar with the standard of care for skilled nursing facilities nursing homes) operating in New Jersey during 2015, 2016, and currently. 43. Based upon my education, training, experience. and research, I am familiar with the standards for administrators of skilled nursing facilities operating in New Jersey during 2015, 2016. and currently. 44. Based upon?my experience as a consUltant,' corporate executive, and owner of nursing facilities, 1 am qualified to opine on the duties of nursing homes, nursing home owners, administrators, management companies, and the Governing Body. This includes hiring a competent administrator, establishing, monitoring, and enforcing internal operating standards, maintaining compliance with state and federal regulations, providing sufficient facility resources and operating capital, promoting ethical management practices, and to pursue facility profitability without compromising the quality and continuity of resident care. 45. During my professional career I have experience with nursing home residents who were at high risk of negative outcomes due to their diagnoses and complete dependency on facility governing boards, administration, management, and staff to ensure that they attain or maintain their highest practicable physical, mental, and well-being in accordance With state and federal (CMS) standards. 46. possess highly specialized knowledge and expertise in the field of nursing home administration, multi-facility management, ownership, eldercare laws, regulations, industry standards, and resident rights. 17 10:34:13 AM Pg 91 of 162 Trans ID: LCV2019863158 47. 48. 49. 50. CAPANO 003920 SCOPE OF MY REVIEW As is customary for professionals in my field, i have relied on my review and analysis of Mr. Capano's medical records, COE records, DHSS records, research, depositions, and other information to formulate opinions concerning the standard of care at COE during his stay from I 11241l5to 2[16[16. The opinions expressed in this report are limited to the operation of skilled nursing facilities in New Jersey. The scope of my review includes regulatory compliance, internal standards, facility ownership/governance, corporate control and oversight, facility administration, day-to?day operations, caregiver staffing levels, operating policies and procedures, caregiver competency, unsafe acts, unsafe conditions, resident rights, and the hiring, training, direction, supervision, and management of individuals who practiced or worked at COE during Mr. Capano's stay. My findings and opinions may reference practitioners, clinicians, and unlicensed staff as employees, agents, or contractors of COE, but only to the extent of their conformance with nursing home laws, regulations, internal operating standards, and industry practices. ADMINISTRATOR AUTHORITY AND DUTIES The authority and duties of Nursing Home Administrators in New Jersey are defined as follows: 42 483.75: facility must be administrated in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and welibeing of each resident." N.J.A.C. 8:34-13 lb): "The licensed nursing home administrator performs functions including, but not limited to, ensuring quality resident care management, personnel management, financial management, environmental management, regulatory management, organizational management, marketing, and community and public relations.? N.J.A.C. 8:344 .4 (al: ?The licensed administrator shall be responsible for the administrative functions at the nursing home to assure that the nursing home is Operated at all times in compliance with N.J.A.C. 8:39, Licensing Standards for Long Term Care Facilities, and other applicable State and Federal rules, regulations, and laws." 18 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 92 of 162 Trans HID: LCV2019863158 51. 52. 53. 54. CAPANO 003921 APPLICABLE NURSING HOME STANDARDS My opinions are based on the following nursing home laws, regulations, standards, and practices: Volume 42, Code of Federal Regulations, Part 483, Subpart B: Volume 42, Code of Federal Regulations, Part 488: New Jersey Statutes, Title 26: New Jersey Statutes, Title 30; New Jersey Administrative Code, Title 8, Chapter 39: New Jersey Administrative Code, Title 8, Chapter 34; Nursing home industry standards; and, COE internal standards policies, procedures, protocols, etc.). The following federal regulatory doctrine constitutes the essence of Volume 42, Code of Federal Regulations, Part 483, Subpart B: Essence of 42 C.F.R. 483, Subpart ?Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicabie physical, mental, and well-being, in accordance with the comprehensive assessment and plan of care." The responsibility of New Jersey nursing facilities is defined as follows: Nursing Home Responsibility N. J. S. A. Every nursing home shall have the responsibility for: ensuring compliance with all applicable state and federal statutes, rules, and regulations." Note: Failure to comply with these laws is a breach of the standard of care New Jersey nursing home residents are entitled to the following rights: Resident Rights N.J.S.A. 30:13-5-i: ?Have the right to a safe and decent iiving environment and considerate and respectfui care that recognizes the dignity and individuality of the resident, inciudlng the right to expect and receive appropriate assessment, management and treatment of pain as an integral component of that person's care consistent with sound nursing and medlcai practices." 19 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 93 of 162 Trans ID: LCV2019863158 55. 56. 57. 58. CAPANO 003922 Federal (CMS) nursing facliity staffing standards are as follows: Federal (CMS) Staffing Standards 42 C.F.R. 4 3.30 a F-353: "The facility must provide services by sufficient numbers of each of the following types of personnel on a 24-hour basis to provide nursing care to all residents in accordance resident care plans: Licensed nurses. Other nursing personnel New Jersey nursing facility ?minimum" staffing standards are as follows: New Jersey Staffing Standards N.J.A.C. l. Combined caregiver hours (Nurse/CNA) may not be less than 2.5 hours ggr-Qatent-ger-dag (HPPD). Ag gculty factor is added to 2.5 HPPD to compensate for wound care, NG tubes, 02 therapy, trach's, lV?s, respirators, head trauma, and neuromuscular - orthOpedtc care. Facilities over 150 beds must have an Assistant Director of Nursing (ADON). RN's must be on duty at all times for facilities with more than 150 beds. 20% of all hours must be provided by ilcensed nurses. An RN must be on duty during all day shifts." ewe? An AVOIDABLE PRESSURE ULCER is defined by CMS as follows: Avoidable Presswe Ulcer 42 C.F.R. 483.25 F-31-4 ??Guidanceto Survey ors: ?Avoidable means that the resident developed a pressure ulcer and that the facility did not do one or more of the following: evaluate the resident's clinical condition and pressure ulcer risk factors; define and implement Interventions that are consistent with resident needs, resident goals, and recognized standards of practice; monitor and evaluate the Impact of the Interventions: or revise the interventions as appropriate.? The GOVERNING BODY of a nursing facility is defined by CMS as follows: Governing Body 42 C.F.R. 8 483.75 F-493 ?The facility must have a governing body, or designated persons functioning as a a governing body, that is legally responsible for establishing and Implementing policies regarding the management and operation of the facility: and (2). The governing body appoints the administrator who Is (I). Licensed by the State where licensing ls required: and Responsible for the management of the facility." 20 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 94 of 162 Trans ID: LCV2019863158 CAPANO 003923 59. The following excerpts were taken from CMS publications regarding the impact of direct care staffing levels to nursing home quality and care: Direct Care Staffing vs. Quality/Care ?There is considerable evidence of a relationship between nursing home staffing levels, staffing stability, and resident outcomes." ?The CMS Staffing Study found a clear association between nurse staffing ratios and nursing home quality care, identifying specific ratios of staff to residents below which residents are at substantially high risk of quality problems." Source: CMS Five Star Quality Rating System Technical User's Guide "in addition, if a facility meets the State?s staffing regulations that is not, by itself, sufficient to demonstrate that the facility has suf?cient staff to care for its residents." ?Concerns such as falls, weight loss, dehydration, pressure ulcers, as well as the incidence of el0pement and resident altercations can also offer insight into the sufficiency of the numbers of staff." Source: CMS State Operations Manual, Phase 2; 42 C.F.R. 483.35(a) (1) 8. (2), Guidance to Surveyors ?Staffing within long-term care (LTC) facilities significantly effects the type of care delivered to residents" Source: CMS 4/21/2017 Memorandum to State Survey Agency Directors ?Adequate quantity and quality of staffing in a nursing home are key determinations of the level of care residents receive." Source: CMS Survey and Certification Group 20l6/2017 Nursing Home Action Plan ?Staffing is a vital component of quality care for nursing home resident. Associations have been found between higher staffing levels in nursing homes and fewer hospitalizations feWer infections fe'wer pressure ulcers less skin trauma, less- weight loss, decreased resistance to care, and improved functional status" Source: CMS ?improving the Nursing Home Compare Web Site: Material for Nursing Homes Open Door Forum .. 6/24/08 60. The following excerpts were taken from a nursina home industrv white paper regarding Medicare Part-A Skilled Care: Medicare Part?A Skilled Care "in analysis concentrating on five ADL's (bathing, bed mobility, transfer, toilet use and eating). 95.2% of Medicare admissions need same degree of assistance, on four or five ADL's. . A larger percentage of Medicare admissions, 72. require extensive assistance or are totally dependent With bed mobility as compared to Non~Medicare and long stay residents. This pattern also holds true for transfer, toilet and bathing. Source. Prullt Jr., Neil. Chairman 8. CEO. UHS Pruitt. Corporation, Commissioner, Commission on Long? ?Term Care: ?Quality of Care In Skilled Nursing Care Centers": American Health Care Association: August 20t3 21 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 9501 162 Trans ID: LCV2019863158 61. 62. 63. 64. 65. 66. 67. 68. 69. CAPANO 003924 Patient/resident ACUITY is defined as follows: Patient/ Resident Acuity ?Acuteness; the level of severity of an Illness. This is one of the parameters considered in patient classi?cation systems that are designed to serve as guidelines for allocation of nursing staff, to justify staf?ng decisions, and to aid in long-range projection of staffing and budget." Source: Medical Dictionary ?The definition of acuity is the Intensity ievel of services necessary to provide care to a resident on a daily basis including both physicai and emotionai needs." Source: Atlantic Quality Innovation Network ?Acuity can be defined as the measurement of the intensity of nursing care required by a patient. An acuity-based staffing system regulates the number of nurses on a shift according to the patient's needs, and not according to raw patient numbers." Source: ?Acuity index is a measure of the care needed by a nursing home's residents. it is calculated based on the number of residents needing various levels of activities of daily living (ADL) assistance, the number of residents receiving special treatmen Source: APPLICABLE PUBLICATIONS Youles, Lance R., ?Preventing Neglect?; Advance for Long-Term Care Management; posted on 2/16/1 i. Youles, Lance R., ?Why a Chain Facility Fails": McKniaht?s Lona Term Care News: - posted on 2/i/i 6. . Youles, Lance R., ?When Understaffing becomes Rationing" McKnight's Lona Term Care News; posted on 4/22/16. CLOSING COMMENTS My current curriculum vitae is attached hereto. have testified in New Jersey courts as a nursing home expert. All conclusions and opinions expressed in this report are offered to a reasonable degree of professional certainty. My conclusions and opinions are based on a thorough analysis of this case which may not be contained or attached to this report. Therefore, i reserve the right to disclose these additional details during my deposition and/or trial testimony. I offer my opinions with confidence. However, I reserve the right to amend my report if significant additional information becomes available through discovery. 22 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 96 of 162 Trans ID: LCV2019863158 70. 71. CAPANO 003925 All opinions in this case are framed within the following three (3) domains: 1. Regulatory standards: Applicable nursing home and vulnerable adult laws and regulations); 2. Administrative standards: Facility governance, and the practice of nursing home administration); and. 3. lnstitutionallFacility standards: Nursing home industry, and facility/company policies, procedures, and practices). All conclusions and opinions contained within this report are based on the records provided to me, my research, education, professional training, and experience. Respectfully submitted: octo?er 12, 2018 Lan%?o?88, LNHA 23 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 97 of 162 Trans ID: LCV2019863158 CAPANO 003926 Attachment A have reviewed records and information from the following facilities, agencies, individuals, and sources concerning Andrew Capano and COE: Death certificate: Power of Attorney: Wound ghotographs; COE: Admission and medical records: COE: ln-service education records: COE: Policies, grocedures, and index; COE: Staffing, census, and labor regorts; COE: Employee schedules: COE: 2012 2013 Medicaid Cost Regorts; COE: Redacted management agreement; COE: Resident Council meeting minutes: COE: Resident Comment Forms: COE: 2013 Medicare Cost Reports: COE: Promotional website via COE: Facility floor plan: Delaware Valley Urology: Medical records: William C. Cody, MD: Medical records: Matthew J. Finnegan, MD: Medical records; Bayada Home Health Care: Medical records: Lourdes Medical Associates: Medical records: Wound Healing solutions, LLC: Medical records; Premier Physician Network, LLC: Medical records: Cooper University Health Care: Medical records; Associates' In Internal Medicine: Medical records; I - St. Mary's Center for Rehabilitation Healthcare: Medical records; Degosltion Transcrigts and Exhibits: Joseph Capano, Cathleen Brown, Chereece Steele, Joseph Mina, Tina Nelson, Kiyetta Shields, Monica Walker, and Denise Finch; . New Jersey Degartment of Health and Senior Services, Long Term Care Comglaint and Surveillance, Long Term Care Assessment Surve DHSS COE licensin records, Casper Report, surveys, plans of correction, staffina records, and correspondence: Office of the Ombudsman for the Institutionalized Elderly: Corresgondence: Background research reaardina COE: CMS Five Star Ratings Archives: Background research reaardina COE: American Health Care Association CMS Casper data l2015 - 2016i; Defendant?s Answers to form C, and Supplemental lnterroqatories: Executed Stipulation extending Time to Answer: Defendant's Answers to Form interrogatories: Plaintiff 5 Answers to Sugglemental Interrogatories: Plaintiff Answers to Form A lnferroqatories with multiple material included: Defendant's discovery responses; 24 CAM-L-000507-17 05/16/201910:34:13 AM Pg 98 of 162 Trans ID: ch201986315'8' CAPANO 003927 . 10/4/18 expert report of John Kirbv, MD: - Affidavit of Merit of Bonnie Todrick and, a Legal correspondence between The parties. 25 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 99 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 100 of 162 Trans ID: ch2019663156 LAW OFFICE OF ANDREW A. BALLERINI Cherry Tree Corporate Center 535 Route 38, Suite 328 ANDREW A. BALLERINI, ESQUIRE Cherry Hill, New Jersey 08002 RICHARD J. TALBOT, ESQUIRE CERTIFIED CIVIL TRIAL ATTORNEY Tel. CERTIFIED CIVIL TRIAL ATTORNEY MILLION DOLLAR ADVOCATE FORUM MEMBER Fax 856-665-8885 MILLION DOLLAR ADVOCATE FORUM MEMBER MEMBER N..I. AND PA BAR MEMBER NJ. AND PA BAR October 5, 2018 Robert E. Blanton, J12, Esquire HARDIN, KUNDLA, POLETTO 673 Morris Avenue Spring?eld, NJ 07081 RE: Capano V. CareOne at Evesham, et a1 Docket NO. 7 Your File NO. 1481.44924 Dear Mr. Blanton: Enclosed please find the October 4; 2018, report and September 18, 2018 Curriculum Vitae Of John Kirby, M.D., Plaintiff?s expert in Medicine and Internal Medicine, Bates Stamped 003858~003 902?. Same shall be considered an Amendment tO the Plaintiffs Interrogatory Answers. No submissions by the Plaintiff shall be considered adoptive admissions. Dr. Kirby is expected to testify as to: standards ofcare and deviations from same; State and Federal Statutes, rules and regulations governing nursing homes and Violations of same, diagnosis; prognosis; causation; permanency; the nature and extent of the injuries caused by the accident; the nature and extent of restrictions on activities ofdaily life; (if applicable) of any pre?existing conditions; as well as costs of same; disability and/or limitations regarding employment; economic loss; radiological studies; and/or black and white and color exhibits Of radiological studies and/or surgeries. The Plaintiffs experts will not be limited to the ?four corners? of their reports and you are free to schedule the discovery deposition of the Plaintiffs experts to take place during the discovery period. Thank you for your courtesy and cooperation. Sincerely, .wwds?mwm 1x 2 RJT/dmc Enclosure *9 1 .3 3 . . 05/16/201910:34:13 AM Pg 101 of162 CAPANO 003858 1210 Brace Road, Suite 102 Cherry Hill, NJ 08034 October 4, 2018 Richard J. Talbot, Esquire Law Of?ce of Andrew A. Ballerini Cherry Tree Corporate Center 535 Route 38, Suite 328 Cherry Hill, NJ 08002 Re: Andrew Capano v. Care One at al Dear Mr. Talbot: In preparation of my report, I reviewed the following materials: Avista Healthcare 11/21/15 Bayada Home Health records and bills Care One at Evesham Care One Documentation Survey Reports William Cody, Virtua Surgical Group Cooper University healthcare records and bills 11/12/15 11/22/15, 11/23/15 11/24/15, 12/2/15, 1/6/16, 7/29/16, 8/19/16, 9/20/16, 1/10/17, 1/11/17, 3/16/17 St Mary?s Center for Rehab and Healthcare 2/27/17 3/19/17 Cooper Neurosurgery Delaware Valley Urology records and bills . LMA Surgical Associates (Dr. Matthew Finnegan) records and bills 3/28/16 LMA Cherry Hill Family Care (Dr. Petruncio) . Premier physician network bill (Julia Bornmann, NP) Virtua Marlton Samaritan Hospice Wound Healing Solutions records and bills Death Certi?cate 4/1/17 Depositions Deposition of Cathleen Brown Deposition of Joseph Capano Deposition of Joseph Mina Deposition of TIna Nelson Deposition of Kiyetta Shields Deposition Wendy Smollock Deposition of Chereece Steele Care One Floor Plan CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 102 of 162 Trans ID: LCV2019863158 CAPANO 003859 Care One 2012 and 2013 cost reports and 2013 cost report worksheet Care One at Evesham and Care One Management, LLC's Answers to Form C, C3, and Supplemental Interrogatories Care One's Certi?cate of Liability Insurance Care One's Licensure and Associated Documents Care One's Nursing Staff Requirements 11/6/13 Department of Health and Human Services Centers for Medicare Medicaid Services State Surveys 2/2/12, 3/21/12, 5/29/12, 2/28/13, 11/6/13, 4/24/14, 11/3/14, 2/25/15, 4/14/15, 4/16/15, 6/10/15, 8/27/15 with Plan of Correction, 11/16/15, 2/11/16, 4/1/16, 4/29/16, 6/24/16 Care One Resident Comment Forms Table of Contents for Care One?s Policy and Procedures manual Care One Table of Contents Nursing Policies and Procedures, Second Version of Care Plan, Point of Care Documents including Activities of Daily Living and Turning and Repositioning Sheets [Bates stamp Care One 3665-- 3740] Care One's Policies and Procedures Including but not limited to Grievance/Complaint Log, Medication Administration Documentation Shift to Shift Review during Handoff, Abuse De?nitions, Grievance/Complaint Log Staff Responsibility, Investigating Grievances/Complaints, Staf?ng, Employee Education Attendance Records: Wounds; Don't Say "We Are Short Staffed Abuse in Service; Turning and Positioning; Reporting Changes in Residence by Using Alerts in Point of Care Kiosk/What Happens When Changes Are Reported Using Point of Care/No Exception. Expectation of Point of Care Documentation: Touch the Patient, Touch the Kiosk; Nursing Assistant General Duties; Care Plans - Comprehensive; Goals and Objectives, Care Plans; Change in the Resident's Condition or Status, Skin Integrity Program: Identi?cation and Prevention; Skin Integrity Program: Evaluation and Documentation of Wounds, Clinical Practice Guidelines for the Prevention and Management of Pressure Ulcers and Other Wounds; and De?nitions: Pressure Ulcer. Additional Care One Policies [Bates Stamp Care One 3741- -3827] Af?davit of Merit Medicaid Lien Information New Jersey State Department of Health Records. Photos taken by Joseph Capano Bates Stamp 2374-2380: 7 photographs taken by Joseph Capao on or about spring 2016 (two sacral pressure ulcer, four penis injury, one sacral pres-sure sore) Bates Stamp 8704875: 12/5/16 (two sacral pressure ulcer, two catheter, two penis injury) Plaintiff?s discovery including the following documents: CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 103 of 162 Trans ID: LCV2019863158 CAPANO 003860 ?1 03-0748 Capano - Amendment to Rogs - LMA Cherry Hill Family BS 3731-3853 03-22-17 Capano - Amendment to R095 to include State of NJ response re Care One 352963-3390 ?it? 03-28-17 - Capano - First Demand for Production and Deposition notices 3~e~17 - Capano - Letter Amending Rogs re #24 a: 3-8-17 - Capano - Piain'tiff?s Answers to R095 with of Tadrick ?3 3-13-17 Capano - Letter to Poietto regarding Medicaid letter re January and Feb charges a 3-31-17 Capano Letter to defense amending rogs with Sussman and Bayada ?1 4-13-17 - Capano - Letter to defense amending rogs re Andrew's death a: 05-01?17 Capano - Amendment to Rogs with 2 new witnesses and Dr. Sussman billing a: 5-12?17 C-apano - Letter to Defendant Amending Rogs with Medicaid estate and tort liens a? 547-17 4. Capano - Letter to polet?to amend rogs with Death Cert and Cooper Biil 8534653470 31? 0643147 - Capano - Amendment to Rogs St. Mary?s and Medicaid Lien 6-26?17 - Capano - Letter to defense amending rogs with Medicare correspondence gl- 6-3047 - Capano - Letter from defense with Supp R095 to be answered by Plaintiff d2? 0749-17 Capano - Plaintiff's Answers to Suppiementat interrogatories sent to defense 7-7-17 Capano Plaintiff's Answers to Supp Rogs (proposed) E3: 7?14-17 - Capano~ Plaintiff's Answers to Supplemental interrogatories - signed by client ?1 08-14-17 - Capano - Letter to defense that Plaintiff?s Answers to Supp Rogs are good a: 8-3-17 Capano - Letter from defense re deficient supp rogs a? 3?17?17 - Capano - Letter to defense amending rogs with Medicaid letter showing credit for real prop 0940-17 Capano - Letter Defense providing Short Certificate BS CAPANO 003730 Defendants?s Discovery Submissions including: 3. 6-11-18 - Capano Defendants Submission of Management Agreement per Order of Court-OCR CAM-L-000507-17 Pg 104 of 162 Trans CAPANO 003861 01-26~18 Capano - Additional Discovery Care One's Staffing policy 3 Ol~29-18 - Capano - Letterto def. still need few items in Discovery 35. 1?11-18 - Capano - Letter from defense with CD containing Discovery BS 386?3290 *1 14648 Capano - Letter from defense with Discovery 35 32913294 e. 14643 Capano - Letter from defense with Discovery BS 35 3-3-17 Capano - Notice to Produce and Supp R095 to be Answered by Def 3: 3-22-18 - Capano - Defendants' response to Req~Retenton of Med Records 35 3-23?18 Capano - Letter from defense identifying witnesses and coordinating dep-s 3: 3-26?18 - Capano Letter to defense re outstanding Discovery and deps and Notice of Dep of Mina 35 05-02?18 Capano Letter from defense regarding deps and request we withdraw motion 3.5 05-29?18 Capano Letter to defense foliowing-up on depositions 35 05-30?17 - Capano - Letter to defense overdue discovery 8t providing Con. Order to Amend Caption 35: 5-14-18 - Capano Letter from defense with additionai policies 35 54443 - Capano Letter from defense with additional policies 853296-3300 35 06-1448 - Capano Ecourts of fetter to Judge Pugliese for extensions 35 06?1448 Capano - Fax to defense for unredacted Mgmt. Agreement 8t Bonus Plans 3: 06-14?18 Capano - Letter to Judge Pugliese for extension of deadlines 3 6-1?17 - Capano email of Supp Rogs to defense attorney 3- 6-848 - Capano - Letterfrom defense amending rogs with various records 35 6-?l1-18 Capano - Defendants Submission of Management Agreement per Order of Court (confidential) 3 6-21?13 Capano - Letter to defense regarding dep of Wallace and design of Org Des 3. 6-26-17 - Capano - Letter to defense requesting Discovery or Motion 35 07-18-18 Capano - Letter to defense re depositions and providing DVD's 3: 7?3-13 - Capano Letter to Judge Pugliese regarding difficulties with Court-Ordered Discovery 84 dep 35 75-13 - Capano ??eilfed Letter to Judge Pugliese re court-orde?redDiscovery 8t deps 35 8-347 - Capano - Letter from defense with medical records CareOne 1?818 5 35 8?4-1? - Capano Defendants' Response to Notice to Produce CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 105 of 162 Trans ID: LCV2019863158 CAPANO 003862 1% 8-4-17 Capano- Defendants' Response to Notice to Produce 9?28-17-Capano Letter from defense with Amendment to Rogs? 819--895 31 9-29-17 - Capano - Letter to Blanton requesting TOC for nursing manual 10-2647 Capano - Letterto Blanton regarding outstanding discovery 10 days or Mtn. Strike 11 -06 17 Capano Letter from Defense with proposed Confidientiality Order it}, 2013.01.11 Capano. -Supplemental Production?OCR ?r 2018.01.11 Capano.Resident Counsel Minutes (13532098290) a 2018.01.11 Capano.Resident Counsel Minute: '51 2018.01.11 CapamSupplemental Production a 2018.02.12 Capano.Cooper HOSpital (Neurosurgery) Records FROM DEFENSE (bs 1-92) 2018. O4 10 Capano. Records Recieved from Home Health (bs 1-646) E1 2018.05.22. Capano. Records recieved from Dr. Cody FROM DEFENSE (Bates CODY 18) a. Capano - (many more-but, a lot of blanks) Medical Records from Defense Capano - (many more-but, a lot of blanks) Medical Records from Defense Numbers in brackets refer to ?pdf ?le, Bates stamp, or deposition page numbers. Reggrd Review In March 2015, a stress test did not reveal ischemia Prior to admission to Cooper Hospital in 11/15, Mr. Capano was wheelchair bound 21]. He was unable to use his legs He was performing self catheterization He had to be helped in in out of his wheelchair 23]. Mr. Capano quit smoking in 2016 24]. Care One was cited by state surveyors on 2/25/15 for failure to respond in a timely fashion to multiple residents using the call bell system. Four of nine residents told to surveyors that they had experienced a delay in reSponse to call bells, the response time varying from 30 to greater than 60 minutes. All nine residents told surveyors that staff lmmedlateiy came into the room in response to the call bell, turned off the call bell, and told residents that they would be back. However, staff return to the room occurred much later or not at all and staff told residents that the Care One facility was short staffed Nurse Steele described nursing and certi?ed nursing assistant understaf?ng Resident #15 told surveyors that staff responded immediately to turn off his call bell, indicated that they would be back, and then returned 2-3 hours later CAM-L-000507-17 "05/16/2019 10:34:13 AM Pg 106 of 162 Trans ID: LCV2019863158 CAPANO 003863 Care One was cited by state surveyors on 2/25/15 under tag 314 for failure to prevent development of stage II pressure injury Care One Care One was cited by state surveyors on 8/27/15 for failure consistently to document that urinary catheter care was performed. Coo er Hos ital Joseph Capano, date of birth 12/28/1957, had a past medical and surgical history of non-small cell lung cancer [151], elevated blood lipids, peripheral vascular disease status post seven stents lumbar stenosis, cervical spine stenosis, high blood pressure, coronary artery disease status post heart attack and placement of six coronary artery stents, neurogenlc bladder, and benign prostatic hyperplasia. Mr. Capano had smoked one half pack of cigarettes daily for 40 years. He had one beer daily A cardiac ECHO performed 11/16/15 demonstrated an ejection fraction of 40% with inferoseptal, anteroseptal, basal inferolateral segment, basal inferior segment, and global hypokinesis. There was no signi?cant valvular heart disease [337]. On 11/16/ 15, Mr. Capano required a left retromastoid craniectomy for removal of a cerebellar tumor On 11/17/15, a brain MRI showed probable complete resection of a left cerebellar metastasis. There were no additional metastases. A ventriculostomy shunt catheter was in place. There were changes of chronic small vessel ischemia [152]. Chemotherapy for lung masses discovered in October 2015 commenced in November 2015 On 11/20/ 15, blood glucose was 95. Blood urea nitrogen and creatinine were 24 and 0.6 Hemoglobin was normal at 14.6 on 11/22/15 11/22/15 blood urea nitrogen and creatinine were 21 and 0.56. Glucose was 211 [352]. Mr. Capano was discharged on a regimen of Decadron 4 mg twice daily for two days, then 4 mg daily for two days, than 2 mg daily for three days, then discontinue. Accordingly, Decadron discontinuation was planned on or about 11/28/15 [151]. Mr. Capano was to follow up with radiation oncology, oncology, and neurosurgery [153- 154]. At discharge, Mr. Capano was incontinent of bowel. He straight catheterized himself every 4- 6 hours [156]. Avista 11121115 Mr. Capano was in the facility for one hour only. 6 66/16/2019 10:34:13 AM Pg 107 of 162 Trans ID: LCV2019863158 CAPANO 003864 00 er Hos ital Mr. Capano was readmitted to Cooper Hospital with chest pain He ruled out for heart attack by EKG and troponin criteria and was transferred to Care One 11/23/15 cholesterol was 108, triglycerides 6611/23/15 Decadron 4 mg was administered at 8:48 AM 2 mg were administered on 11/24/15 at 11:22 AM At the time of transfer to Care One, blood pressure was 119/58, heart rate 64, respirations 44, temperature 97.7?, height and weight 153 pounds Care One at Evesham 11(24115 2116/16 Mr. Capano, date of birth 12/28/57, had a history of metastatic lung cancer, coronary artery disease, brain metastasis status post craniotomy in October 2015, hyperlipidemia, depression, anxiety, seizures, coronary artery disease status post heart attack, peripheral vascular disease, and gastroesophageal re?ux disease [797]. Mr. Capano' code status was full code. He was awake, alert, and oriented to person, place, and time. The admission nursing assessment 11/24/ 15 documented skin that was free of pressure injury. The ResidentEva/uatfon form 11/24/15 documented the need for assistance of one person with bed mobility, bathing, dressing, transfers, and toileting. A multivitamin with vitamin was provided daily. Mighty shakes nutritional supplementation was administered during medication pass- [761]. Decadron 4 mg twice daily was administered 11/24/15 and 11/25/ 15 then decreased to 4 mg daily for two days, then 2 mg daily for three days and discontinued after the dose on 12/1/15. Nursing staff failed to administer Decadron on 12/30/15 [782]. 11/25/15 hemoglobin was 13.7. A white blood cell count of 18.95 was attributed to Decadron [801]. Albumin was 2.9 [802]. The 12/1/15 Minimum Data Set (MDS) section 800 did not document refusal of care. Mr. Capano required extensive assistance of one person for bed mobility, transfers, toileting and of one person for personal hygiene and dressing. Section 1400 documented a life expectancy exceeding six months. Mr. Capano was at risk for but did not have pressure injuries. Pressure reducing devices. for bed and chair were in? place. A turning and repositioning program was in place. The documentation of turning and repositioning program was disputed by director of nursing Steele who indicated that such a program was not in place until after development of pressure injury. 7 CAM-L-000507-17 05/16/2019 10:34:13 AM "Pg 108 of 162 Trans ID: LCV2019863158 CAPANO 003865 The Inferdr'scrjo/inan/ Care Conference notes 12/3/15 indicated that Mr. Capano required assistance with hygiene, bathing, dressing, transfers, and toileting. Decadron 2 mg twice daily was administered from 12/4/15 12/8/15 and then once daily through 12/13/15 and then stopped [781]. Albumin was 2.8 on 12/11/15. Hemoglobin was 11.7. White blood cell count had normalized to 8.7 [803]. Mr. Capano developed a "facility acquired" right gluteus pressure ulcer, initially noted on 12/16/ 15. At that time, the stage II pressure sore measured 2 1 cm. A resident comment form indicated that on 12/14/ 15 Mr. Capano needed to be changed and was left for a long period of time without being changed. Mr. Capano's brother indicated that this was the second time this had happened. Nursing staff informed Mr. Capano's brother that Mr. Capano would be placed on every two-hour checks and an every two-hour toiletlng scheduie [2923-4]. A pressure ulcer recordwas prepared 12/ 16/15 documenting a facility acquired right gluteus pressure sore. At the time of discovery this stage II pressure sore measured 2 1 cm and evidenced pink, pale tissue. There was scant serous exudate. There was no pain associated with this pressure injury. On 12/17/15 at 5:09 PM, Cathleen Brown's note indicated that she had redressed the sacral wound . On 12/17/15, unit manager Michelle McGlone (her-note generated after the 5:09 PM note from nurse Cathleen Brown referenced a 2 1 cm left inner buttock small open area. Her note indicated that the plan was to add an air mattress and to add a turn and positioning tool and start Mr. Capano on an every two-hour toiletlng schedule. Director of nursing Steele testi?ed that this note indicated that these interventions were to be implemented on 12/17/15 and had not been in place previously [151, 153, 159]. On 12/22/ 15, the right gluteus pressure sore measured 0.5 0.5 cm, stage II. The Pressure Ulcer Recordindicated use of a specialty bed and a wheelchair cushion but did not indicate a turning and repositioning program. Wound care nurse Wendy Smolock (Wound Healing Solutions) note indicated that Mr. Capano had ambulation dif?culty but he was able to self reposition. She de?ned self-repositioning as the ability to actually turn left to right to back without assistance or could mean that he was able to reposition a little bit but still required staff assistanceto turn him left to right to back. She indicated "generally I?m not there long enough at the bedside to make that determination." She, therefore, deferred to nursing home records generated by the 8 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 109 of 162 Trans ID: LCV2019863158 CAPANO 003866 nursing home staff to provide a clear picture of Mr. Capano's ability to turn and reposition himself [32?33]. Mr. Capano was on an alternating air support surface. On 12/29/ 15, a stage II right gluteal pressure injUIy measured 0.4 0.4 cm. The Pressure U/cerRecord indicated use of a specialty bed and a wheelchair cushion but did not indicate a turning and repositioning program. Wound Healing Solutions documented a full thickness stage bedsore of the sacrum measuring 7.8 3.8 1.7 cm. There was a pale granular base. There was a partial thickness ulceration of the right gluteal region measuring 0.4 0.4 cm. A 12/29/15 Unavoidab/e Form indicated that consistent turning and repositioning was in place. However, Director of Nursing Steele testi?ed that a turning and repositioning program had not yet been instituted a turning and repositioning program was not instituted according to nurse Steele until January 2016 On 12/30/15 a Pressure Ulcer Recard?rst indicated development of a stage sacral pressure injury measured 7.8 3.8 1.7 cm. There was scant serous drainage. There was no pain associated with this pressure injury. A Foley bladder catheter was inserted [759]. 8 mg of Decadron were administered twice daily on 12/23/15, 12/24/ 15 [768], and 12/25/15. The December 2015 Care One Documentation Survey Report turning and repositioning is reproduced below: meo- O?t? ?up X, 03h! Tow (Emmi-mm: This form indicates that a turning and repositioning program was not instituted until 12/24/15, a full month after Mr. Capano had arrived in the facility and eight days after development of gluteal pressure injury. Furthermore, several of the night shift entries for turning and repositioning were documented at 1:14 AM and 1:35 AM, over ?ve hours prior to end-of-shift. Documentation on these shifts, therefore, indicates a promise to turn and reposition, rather than actual documentation of every two~hour turning and repositioning After initiation, turning and repositioning was not accomplished on day shift 12/24/15,12/25/15, 12/28/15, and 12/29/15 (4 of 23 shifts - Sacral pressure sore was discovered 12/30/15. The 12/29/15 Unavaidab/e Pressure Ulcer Physician Documentation form signed by Dr. Dructor indicated that consistent turning and repositioning and every two-hour toileting were in place and that albumin was less than 3.4 and hemoglobin less than 12. Director 9 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 110 of 162 Trans ID: LCV2019863158 CAPANO 003867 of Nursing Steele testi?ed, however, that a turning and repositioning program was not yet in place at the time pressure ulceration developed 153]. The unavoidable pressure ulcer form indicated that bowel incontinence, decreasediower body sensation, ongoing cancer diagnosis, steroid therapy, chemotherapy, and end-stage cancer were risk factors for development of pressure injuries. The form indicated that clean dry bed linens, pressure reducing surface, good skin care, and adequate nutrition and hydration were preventive measures that were in place. The handwriting of the person ?lling out the form appears to be different than that of Dr. Dructor. Wound Healing Solutions 1/4/16 note documented fecal and urinary incontinence. Pressure injuries were painless. The stage sacral pressure injury measured 4.8 1.6 1.1 cm. It was 95% slough covered. The partial thickness right gluteai pressure injury measured 0.3 0.3 cm. Albumin had increased to 3.0 (3.2-5.0) [806]. Hemoglobin was 9.5 [807]. On 1/5/16, blood urea nitrogen and creatinine were 9 and 0.5, glucose 93, and albumin 2.9 [439]. On 1/6/16, nurse Brown testi?ed that Mr. Capano was on a special air mattress Right gluteai pressure injury was described as stage I measuring 0.4 0.3 cm. The Pressure Ulcer Recardindicated use of a specialty bed but did not indicate a turning and repositioning program. The sacral pressure injury was stage measuring 4.8 1.6 1.7 cm. Wound Healing Soiutions' 1/1 1/ 16 note described full epithelialization/closure of the right gluteai pressure injury. The full thickness stage sacral pressure injury measured 4. 8 1.8 1.1 cm. A low air loss air support surface and a gel cushion for the wheelchair were in place. . Advanced practice nurse internal medicine notes 1/12/16 documented stage sacral pressure injury [155]. On 1/ 12/16, the sacral pressure injury was stage measuring 4.8 1.6 1.6 cm. Hemoglobin was 9.1 [438]. 8 mg of Decadron twice-daily were administered on January 13, 14, and 15 [767]. Advanced practice nurse internal medicine notes 1/15/ 16 documented stage sacral pressure injury [155]. Advanced practice nurse internal medicine notes 1/18/ 16 documented stage sacral pressure injury [159]. Hemoglobin was 9. 5 [812]. Preaibumin was 13. Blood urea nitrogen and creatinine were 13 and 0.5 [436]. Hemoglobin was 9. 5 and white blood cell count 8. 7 [437]. 10 CAM-L-000507-17 05/16/201910:34:13 AM Pg 111 of162 CAPANO 003868 The Foley catheter indwelling at Care One eroded the penile meatus for approximately 1 inch 41] as pictured below:. Wound Healing Solutions 1/19/16 note documented a 100% pale granular wound base. The sacral pressure injury was full thickness measuring 3.7 1.8 1.7 cm. There was 1.4 cm of undermining from the 2:00 5:00 position. There was mechanical erosion of the penile meatus. 1/25/16 hemoglobin was 8.8 [814]. On 1/26/16, Wound Healing Solutions notes described an unstageable sacral bedsore that measured 5.3 4.6 1.7 cm. It was fully covered by slough. 1.4 cm of undermining was found from the 1:00 3:00 position. Nurse Smoliock indicated that Mr. Capano was "showing signs of terminal skin changes Advanced practice nurse internal medicine notes 1/26/16 documented penis pain which improved with pain medication. Advanced practice nurse Bornmann described a meatus tear [161]. Advanced practice nurse Bornmann described worsening of sacral pressure ulceration on 1/27/16. The wound had become unstageable [163]. Dr. Dructor's 1/28/16 note described an unstageable sacral pressure injury "due to skin failure." Dr. Dructor's note does not provide vital signs. Nor does it described failure of other organ systems. The penile meatus was split [165]. 11 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 112 61 162 Transit): LCV2019863158 CAPANO 003869 Mr. Capano was evaluated at the Virtua surgical group on 1/29/16, reporting a two?year history of inability to walk [427]. The sacral pressure sore measured 5 4 3 cm. The coccyx was palpable at the wound base [427]. There was signi?cant necrotic tissue within the wound. Dr. Cody was concerned about osteomyelitls involving coccyx. He debrided necrotic tissue with the scalpel, removing a 5 4 cm area of necrotic tissue [428]. January 2016 Care One Documentation Survey Reports documented turning and repositioning as follows: 01"" "ll-H Xi 1? 23@111 1111; $95 m: 656 is? 5:32 in: 6760 ?Em mi ?2 3m 63%: mag aggi?gi in? 111 602116 6%6? $61 $66111 0502 61611 1166 618668111?! (HM- ml 1r rig 611-5211; eh 1:11 1111 1211 1231 12311 13-] d1) 61:, 1211 dig 111 12.11 dig 121112311211 123-1 1211 1211 4.9 111-19 mi 2330 111111131 2i)! ?0135 215:) :61! 2211 mm 21-21211: 2154 29m 22-57 2212222121201 2151 .1611 19212111 2259 2212 2155 :650 21512251 1:571:13 21m -: mm 1646 'rad 1x1" :1 _yg 1b 6p up 161511: ?(0:153 111-; 11611111111111? 1191155 i693 1111163113221301112911351361 1351 111311561316 11561159 ma .- Turning and repositioning were not documented on 7 of 93 shifts in January 2016. On almost every night shift, documentation of turning and repositioning occurred well before end of shift, indicating the promise to turn and reposition every two hours rather than actual documentation of repositioning every two hours. Shifts in which documentation of turning and repositioning occurred signi?cantly prior to shift end are highlighted in yellow. Dr. Dructor's 2/1/16 note indicates a blood pressure 132/70, pulse 67, respirations 14, temperature 97.2, and pulse oximetry of 97%. Dr. Dructor described a stage sacral pressure injury and describes skin failure due to cancer, malnutrition, and chemotherapy. However, cardiac pulmonary, abdominai, and extremity examinations were unremarkable [167] On 2/2/16, odor emanated from the sacral pressure injury Wound Healing Solutions notes described in undermined unstageable sacral pressure injury measuring 4.8 3.7 2.4 cm and mechanical erosion of the penile shaft. Mr. Capano was evaiuated by radiation oncology and neurosurgery. A 1/31/ 16 brain MRI did not show evidence of new metastatic disease [495]. On 2/3/16, hemoglobin was 8.8 and white blood cell 9.8 [419]. Blood urea nitrogen and creatinine were seven and 0.6. Albumin was 2.9 [420]. 8 mg of Decadron twice daily was administered on February 3, 4, and [316, Bates 762]. . On 2/6/16, stool was positive for C/ostric?um di??ici/e prompting the addition of Flagyl 500 mg three times daily [418]. 12 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 113 of 162 Trans D:l LCV2019863158 CAPANO 003870 On 2/9/16, Wound Heaiing Solutions notes described a stage IV sacral pressure ulceration measuring 3.8 3.2 2.4 cm. Bone was palpable at the base of the decubitus ulcer. Nurse Smollock debrided the pressure injury using surgical scissors. The pressure injury was painless. Local care with Dakins solution continued. An alternating pressure mattress was in place. Dr. Dructor?s 2/9/ 16 note described sacral ulcer secondary to skin failure. Vital signs were not charted. Head, ears, eyes, nose, throat, cardiac, pulmonary, abdomen, and extremity examinations, however, were unremarkable [171]. On 2/12/16, Dr. Cody debrided the sacral ulcer to bone [417]. On 2/15/16, hemoglobin was 8.7. White blood cell count was 4.4 [820]. The 2/16/16 Minimum Data Set (MDS) section 800 did not document refusal of care Mr. Capano required extensive assistance for bed mobility, transfers, toileting, and dressing and limited assistance with personal hygiene. Section 1400 documented a life expectancy exceeding six months. There had been no recent weight gain or weight loss [105]. The Minimum Data Set (MDS) indicated that Mr. Capano was at risk for but incorrectly averred that he did not have pressure injuries. Pressure reducing devices for bed and chair were in place. A turning and repositioning program was in place. Glucose was 93. Blood urea nitrogen and creatinine were 9 and 0.5 [822]. On 2/16/16, Wound Healing Solutions notes documented stage IV sacral pressure ulceration measuring 3.8 2.8 2.4 cm. The wound base was 90% granuiar. Granulation tissue was no longer described as pale. Nurse Smollock described decreasing surface inflammation. The ?site [was] responding very well The Care One Care Plan cailed for encouragement-and assistance as needed to turn and reposition using assistive devices as needed, pressure reducing 'cushion for the wheelchair and a specialty mattress on the bed [590]. Turning and repositioning on an every twomhour or more frequent basis was not documented in the nursing notes [572-585]. February 2016 Care One Documentation Survey Reports documented turning and repositioning as follows: Turr?ng 8- Reposiiloning Qsim ??77 03:52 Qshiil 3palip (1600- i234 1234 1234 I 234 (Jim i234 Bras )3 eh 2300) 21.01 2l:ll 21:18 21:24 2269 2220i 22:37 20:45 20:43 2112 Qsh? 7339 37 (137001500) I303 14.07 14.52 14:47 i4:69 $4.69 1433-5; pate gh'coiiragpfaaiipt fig.- 13 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 114 of 162 Trans ID: ch2o198'6'315e' CAPANO 003871 Turning and repositioning were not documented on 12 of 46 shifts in February 2016. On almost every night shift, documentation of turning and repositioning occurred well before end of shift, indicating a promise to turn and reposition every two hours rather than actual documentation of repositioning every two hours. Shifts in which documentation of turning and repositioning occurred signi?cantly prior to shift end are highlighted in yellow. At the time of discharge, a hospital bed, air mattress, wheelchair, and a 3:1 commode were arranged for home use [369]. Care One Resident Comment Forms Resident Comment Forms repetitively documented tardy responses to patients' call bells, failure to change soiled diapers [2927, 2949,], and an occasion in which a patient?s family observed three night shift certi?ed nursing assistants sleeping in the television area under blankets at 1 AM [2909]. Deposition of Joseph Capano Joseph Capano is Andrew Capano's brother. Joseph Capano visited his brother daily, remaining at the Care One facility for between one and two hours Mr. Capano complained to Joseph Capano on at least 12 occasions that he was left and soiled diapers at Care One Mr. Capano told his brother that on occasion he had been left in a soiled diaper for between 60 and 90 minutes Mr. Capano was insensate from the waist down Mr Capano had never had any issues with skin breakdown in the area of his buttocks/anus prior to admission to Care Mr. Capano had a wheelchair air cushion prior to admission to Care One Joseph Capano took pictures of his brother's wounds on or about 12/5/16, after discharge from Care One [66-67]. Home wound care was provided through Bayada visiting nurse service after discharge from Care One [73] up until February 2017 While at home, Joseph Capano turned his brother at least twice a day Deposition of gaghleen Brown, RN Nurse Brown testi?ed documentation helps one to determine what is working and what is not working She testified that pressure is always one of the causative factors in development of pressure ulcers She testi?ed that turning and repositioning is 14 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 115 Of 162 Trans ID: LCV2019863158 CAPANO 003872 important in preventing pressure ulcers Nurse Brown testi?ed that documentation of turning and repositioning once per shift would take a second or two Nurse Brown described sacral pressure ulceration Nurse Brown testi?ed that prior to the development of pressure ulceration, the Care Plan called for repositioning every two hours Nurse Brown testi?ed that a split penis can be caused by tension on the Foley catheter Nurse Brown testi?ed that sacral and gluteal pressure sores would be two different wounds [57] and that both of these developed while a Mr. Capano was a resident at Care One at Evesham Nurse Brown testi?ed that nurses at Care One were supposed to document turning and repositioning in the nursing notes. Deposition of Joseph Mina Mr. Mina is the regional director of marketing for Care One and a licensed nursing home administrator Mr. Mina expected for staff to follow Care One's policies and procedures [131]. Deposition of Kipetta Shields, LPN Nurse Shields' background included work as a certi?ed nursing assistant Nurse Shields testi?ed that nurses documented on. the Computer or in their notes when a patient was turned every two hours and whether a?p'atient had an air mattress. Documentation of turning and repositioning can be found on the medication administration record, the treatment administration record, or in nursing (nursing progress) notes She testi?ed that nurses documented when they turned patients and if they did not turn a patient they did not document turning and repositioning. She agrees with the axiom, "if it's not documented, it?s considered not to have been done Nurse Shields testi?ed that residents who need turning and repositioning should be limited to 1-2 hours in a chair Nurse Shields described a basic turning interval of patients unable to turn themselves of every two hours Pressure is always a signi?cant causative factor in development of pressure injury 15 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 116 of 162 Trans ID: ch2019663166 CAPANO 003873 Nurse Shields testi?ed that in the Pressure Ulcer Recordif a turning and repositioning program is not indicated, a turning and repositioning program was not in place She testi?ed that even if a patient were not on a special turning and repositioning program it was her habit and practice to turn and reposition her patients documented what I performed Deposition Wendy Smollock, RNI NP, Certi?ed Wound Specialist, Nurse Smollock characterized the sacral wound as a pressure injury Nurse Smollock testi?ed that pressure is a sine qua non for development of pressure injuries Nurse Smollock's wound care notes indicated that Mr. Capano was capable of self- repositioning. She de?ned self-repositioning as the ability to actually turn left to right to back without assistance or it could mean that he was able to reposition a little bit but still required staff assistance to turn him left to right to back. She indicated "generally I?m not there long enough at the bedside to make that determination.? She, therefore, deferred to nursing home records generated by the nursing home staff to provide a clear picture of Mr. Capano's ability to turn and reposition himself [32-33]. Granulation tissue is considered healing tissue Nurse Smollock testi?ed that when skin failure occurs, ?circulation shift away from the skin to the central organs tends to deplete the sacral region most aggressively Nurse Smollock testi?ed that Mr. Capano did not have anorexia: "he was eating okay . - - - - Nurse Smollock characterized an albumin of 2.8 as depressed Nurse Smollock described mechanical erosion of the penile meatus: generally it is secondary to a Foley catheter Nurse Smollock described use of a "tube stabilizer?, an adhesive device typically placed along the thigh to secure the catheter to the thigh to reduce movement on the penis [71-72]. Nurse Smollock testi?ed that no one made a determination that Mr. Capano was de?nitely showing signs of terminal skin changes or skin failure Nurse Smollock testi?ed that if a patient articulates to her that he is not being regularly turned or repositioned or having his diaper changed or catheter care provided that she would record this information in her note. She did not have any recollection of Mr. Capano complaining to her about lack of attentiveness by the Care One staff [102]. 16 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 117 of 162 Trans ID: LCV2019863158 CAPANO 003874 Degosition of Chereece Steele, RN Nurse Steele was the director of nursing at Care One prior to 11/24/15 [25] until late January 2016 Nurse Steele testi?ed that a Foley catheter should be secured to a resident's body so that traction is not applied to the penis Nurse Steele testi?ed that the initiation date on the Care Plan re?ects the date when an intervention was put into place Nurse Steele could not explain why the Care Plans for actual skin breakdown of the sacrum and for nutritional status were initiated 4/8/16 when Mr. Capano had been discharged from the facility in February 2016 [59, 60, 62; Bates 123, 124, 126] nor could she explain why the Care Plan was attributed to her when she had left employment at Care One at Evesham in February 2016 A Care Plan for Foley catheter management was, in contrast, initiated 1/5/ 16 [62; Bates 129]. Nurse Steele described a standard interval for turning and repositioning the immobile patient in bed as at every two hours Nurse Steele was not aware of any rejection of care issues with Mr. Capano She also described him as sometimes noncompliant with straight catheterization and refusal to allow incontinence care Nurse Steele believes in and has practiced under the axiom, "if it's not documented, it's considered not to have been done She has provided in-service training regarding this type of documentation Nurse Steele testi?ed that pressure is a sine qua non for development of pressure injuries [47,111]. . Nurse Steele agreed that neglect is a type of abuse [101]. Nurse Steele interpreted the Care One policy Expectation of Point of Care Documentation: Touch the Patient, Touch the Kiosk [1634] to mean that any time a patient was touched, documentation should be created [105]. Director of Nursing Steele testi?ed that nursing staff should document refusal of care [108]. Director of Nursing Steele expected documentation in the nurses' notes when Mr. Capano was turned and repositioned [118]. Nurse Steele agreed that turning and repositioning was documented far, far less than every two hours during Mr. Capano residence at Care One [119]. There were only six references to turning and repositioning in the nurses? notes. (Turning and repositioning charting, as well as the lack thereof, was noted earlier in the report.) 17 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 118 of 162 Trans ID: LCV2019863158 CAPANO 003875 Nurse Steele testi?ed that there should be a form in the Care One chart chronicling two-hour toileting schedules when in place [121]. Director of nursing Steele testi?ed that the 12/1/15 Minimum Data Set (MDS) which indicated that a turning and repositioning schedule was in place is incorrect [127]. Mr. Capano was not placed on a turning and repositioning schedule at the time of admission. A turning and repositioning program was not instituted until January 2016 at a time after which Mr. Capano had already developed gluteal and sacral pressure injuries [128]. did not see anything indicated on the treatment record that turning and positioning was in place, nor did I see anything else indicated that. The only place I saw it indicated was on the Care Plan [146]. Nurse Steele testi?ed that she expected her nurses to turn and reposition patients even if there was no turning and repositioning program in place [147]. Nurse Steele con?rmed that Mr. Capano entered Care One without pressure injury and left with stage IV sacral pressure injury [131]. Nurse Steele that Mr. Capano neither gained nor lost a signi?cant amount of weight while at Care One [131]. Defendant's Answers to Form C3 Interrogatories Answers to Form C3 Interrogatories indicated that Mr. Capano refused treatment to his sacral wound and straight catheter at times which may have contributed to or caused the alleged injuries. Care Qne's Policies and Procedures The duties of nursing assistants included, ?change all bedbound patients/residents at least every two hours" and "turn all bedbound patients/residents at least every two hours [2212]." The policy entitled Skin Integrity Program: Identi?cation and Prevention de?nes pressure ulcer as "localized injury to the skin and/or underlying tissue usually over a bony prominence, as a result of pressure or pressure in combination with shear." This policy and procedure indicates that it is in part derived from 2007 National Pressure Ulcer Advisory Panel documents. Clinical Practice Guidelines for the Prevention and Management of Pressure Ulcers and Other Wounds: This guideline incorporates evidence-based research and standards of practice in wound management published by authorities in the ?eld such as the Centers for Medicare and Medicaid Services (CMS), the National Pressure Ulcer Advisory Panel; Wound, Ostomy Continence Nurses Society and the American Medical Directors Association [845]. 18 05/16/2019 10:34:13 AM Pg 119 of 162 Trans ID: LCV2019863158 CAPANO 003876 Patient refusals are to be documented in the clinical record [823]. At Home 2116/16 - Bayada home health care visiting nurse notes 2/17/16 documented a stage 4 3.5 3.5 cm sacral pressure sore At the start of care, nurse Nelson noted a pre? existing sacral pressure injury and injury to the penile meatus On 2/26/16, albumin was 3.1 [2352]. On 2/29/16, Mr. Capano was evaluated by his neurologist for "severe meatai erosion due to chronic Foley [2236]." Suprapubic tube placement was contemplated. On 3/14/16, the 4 3.5 3.5 cm stage sacral pressure ulceration exhibited 25% healthy granulation tissue fl? N37, Nelson?4]. Mr. Capano's stage IV sacral pressure sore was evaluated by surgeon Dr. Matthew Finnegan on 3/28/16. A suprapubic tube was placed on 4/5/16 for treatment of neurogenic bladder [2357]. The suprapubic catheters depicted below: On 4/8/16, a suprapubic catheter was in place {Nelson?2] 19 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 120 of 162 Trans ID: LCV2019863158 CAPANO 003877 On 5/stage IV sacral pressure ulceration persisted. Granulation tissue covered 75-100% of the pressure injury There was a small amount of bloody exudate [Nelson-6] On 7/6/16, the 3.8 4 2.8 cm stage IV sacral pressure injury continued to granulate There was purulent exudate [Nelson On 8/3/16, the 3.1 2.9 4.3 cm sacral pressure sore had a moderate amount of purulent exudate [Nelson On 8/24/16, the 2.4 3.6 4.9 cm stage IV sacral pressure injury had a moderate amount of purulent exudate [Nelson-10]. On 9/9/16, the 2.4 3.6 cm sacral pressure sore had a depth of 5.2 cm Nelson 11]. On 10/3/16, the 2.4 2 cm sacral pressure injury was 4.8 cm deep N50, Nelson 12stage IV sacral pressure injury had a small amount of purulent exudate [Nelson 13]. On 12/21stage IV sacral pressure sore had a small amount of purulent exudate [Nelson-14]. On 2/3/17 and 2/8/17, nurse Nelson documented purulent exudate emanating from the stage IV sacral pressure injury 56]. On 2/3/ 16, stage IV sacral pressure injury measured 0.8 0.7 2.8 cm [Nelson-15]. On 2/8/ 17, the stage IV sacral pressure injury measured-0.6 0.8 2.6 cm [Nelson 16]. The last visiting nurse progress note was 2/22/ 17 The stage IV sacral pressure injury measured 0.6 0.8 2.8 cm. There was a small amount of purulent exudate. The wound was not granulating and was not epithelialized. Deposition of Tina Nelson, RN Nurse Nelson was taught the axiom, "if it's not documented, it's considered not have been done Nurse Nelson was Mr. Capano's case manager from home care services. Nurse Nelson testi?ed that one factor requisite for deyelopment of pressure ulceration is pressure 20 05/16/201910:34:13 AM Pg 121 of 162 Trans ID: LCV2019863158 CAPANO 003878 Cooper Hospital 2/ 17 Neck sumem On 2/23/17, Mr. Capano undenivent a cervical laminectomy C3-C7 and instrumented fusion of C-3-T2 for cervical spine stenosis with myelopathy [3782]. St. Man's Center for Rehab and 2] 27] 17 3119/17 On 2/28/17, nurses described a 0.9 0.8 3.2 cm intra-rectal lesion ?possible previous pilonidal [3617]." This location is distinct from a sacral lesion. On 3/10/17, nurses described o'clock position inside the rectum [3613]. The 3/15/17 [3539] and 3/19/17 Minimum Data Sets (MDS) documented skin that was free of pressure injuries [3506]. A 3/17/17 wound assessment sheet documented presence of a 0.8 0.5 2.5 cm sacral pilonidal sinus. This was not characterized as a pressure injury [3609]. Mr. Capano was recuperating from spine surgery when he developed chest pain. An EKG revealed ST segment elevation anteriorly. Virtua Marlton 31 19/ 17 Mr. Capano was admitted with an anterior wall heart attack. In the emergency room, he had a ventricular ?brillation arrest requiring de?brillation and several rounds of epinephrine for resuscitation. He was taken on an emergency basis to the cardiac catheterization lab where he was found to have an occluded left anterior descending coronary artery. Two stents were placed into the left anterior descending artery. A large diagonal branch required balloon angioplasty. Cardiac ejection fraction had fallen to 20%. An intra-aortic balloon pump was removed because of iliac artery occlusive disease and fear of precipitating acute limb ischemia [43822]. At this juncture, lung cancer had been treated with chemotherapy, resection of a solitary brain metastasis, and Gamma knife therapy twice [3829]. Mr. Capano requested Do Not Resuscitate code status [3828]. Mr. Capano had discontinued cigarette use [3823]. 3/19/17 chest x?ray showed a focal rounded density at the right lung base [3838]. Mr. Capano developed fevers cough, and diarrhea. He was placed on the intravenous antibiotic Rocephin [3836]. On 3/25/17, CT of the chest, abdomen, and pelvis showed right middle lobe lung cancer, right upper lobe pneumonia, left upper lobe pneumonia, trace right pleural effusion, and nodular opacities associated with interstitial thickening of both lungs felt most likely to be chronic reticuiar nodular interstitial lung disease. The radiologist was, however, unable to exclude tiny lung metastases [3840]. 21 AM Pg 122 of 162 Trans ID: LCV2019863158 CAPANO 003879 On 3/21/17, a repeat cardiac ECHO showed an ejection fraction of 10?15%. There were signi?cant, diffuse wall motion abnormalities [3842]. Samaritan Hospice Death Certificate 4/1/17 The death certi?cate lists metastatic lung cancer of unknown duration as the cause of death. Professional Background I received my medical training at the University of Medical School from 1983-1987, graduating with a medical doctor degree. I participated in a three-year residency program in internal medicine from 1987~1990 at which time I was endorsed by the American Board of Internai Medicine as a board-certi?ed internist. My internal medicine board certi?cation has been maintained continuously from 1990 through the present time based on successful completion of a written examinations for the 1990- 2000, 2000-2010, and 2010-2020 time periods. "Physicians certi?ed by the American Board of internal medicine demonstrates that they have the knowledge, skills and attitudes essential for excellent patient carel." ?Internal medicine physicians are specialists who apply scienti?c knowledge and clinical expertise to the diagnosis, treatment, and compassionate care of adults across the spectrum from health to complex illnessz.? General internists are trained in the pathophysiology and pathology of adult medicine. The scope of a general internist is quite broad. General internists see patients with a broad array of problems related to the brain, spine, autonomic nervous system and peripheral motor and sensory nervous systems; hematological disorders; bones, joints, tendons, ligaments, and metabolic bone disease; genetic and inherited disorders; pharmacology; illness; oral and dental problems; kidneys and genitourinary system; swallowing disorders; esophagus, stomach, small and large intestine, rectum, and anus; head, eyes, ears, nose, and throat; arteries and veins; endocrine diseases including but not limited to diabetes, thyroid disease, pituitary disease, and adrenal disease; high blood pressure; rheumatological and autoimmune diseases; infectious disease; cardiac valvular, conduction system, arterial, and heart muscle; the lungs, pulmonary vasculature, pleura, and chest wall; and diseases of the skin including rashes, eczema, contact dermatitis, blistering skin diseases, burns, and pressure injuries. Internists provide pre-operative, perioperative, and postoperative care. (American Board of Internal Medicine) 2 (American College of physician) 22 05/16/2019 10:34:13 AM Pg 123 of 162 Trans ID: LCV2019863158 CAPANO 003880 The internist receives training in interpretation of laboratory reports including microbiology, pathology reports, and interpretation of radiographic studies. The internist, serving as a family physician for adults often provides first-line evaluation of problems associated with this wide variety of organ systems; the internist then decides whether to handle these problems primarily or to seek consultation with surgeons and/or non-surgical specialists to provide care in collaboration with these consultants. Since completion of my internal medicine residency program in 1990, I have worked as a hospital-based physician from 1990-1995 providing care to thousands of hospitalized patients on the general medical and surgical ?oors, in the intensive care units, and as a consultant providing infectious disease expertise. From 1995 through the present time, I have provided hospital-based care, have seen patients in an outpatient general internal medicine of?ce setting, and have provided care to thousands of patients in acute, subacute, and extended care nursing facilities.? I have provided physician oversight to patients residing in assisted care facilities. I have served as a medical director of two extended care facilities. In my capacity as medical director, I served as the liaison between physician staff and nursing/nursing assistant staff; between the physician staff and ancillary medical personnel (dietitian, respiratory therapist, restorative nursing aides, physical therapist, occupational therapist, activities coordinator, Minimum Data Set (MDS) coordinator); and between physician staff and nursing home administration. In my capacity as a nursing home attending physician, I participate in fall risk evaluation and implementation of fall risk prevention and injury mitigation strategies/interventions. In my capacity as a nursing home physician, I participate in the pressure sore risk evaluation, risk mitigation strategies/interventions, pressure injury evaluation and treatment. In my roles as hospitalist, of?ce-based physician, and a physician working in acute, subacute, and extended care facilities, I am routinely called upon by patients and families to render opinions regarding quantity and quality of life issues, to discuss the morbidities and mortality associated with operative and non-operative interventions, to advise on the advisability of operative and non-operative interventions based on a patient's life goals and medical conditions, to discuss end?of?life care, and to provide life expectancy prognoses. As an of?ce-based physician, I interact with/provide orders and oversight to visiting nurse personnel on a daily basis. Given my extensive experience as a hospitalist; an office-based physician; a physician working in acute, subacute, and extended care facilities; and my experience as a medical director in long-term care facilities, I am intimately familiar with the standard of care required of physicians, ancillary medical personnel, and nurses in all three settings. 23 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 124 of 162 Trans ID: LCV2019863158 CAPANO 003881 Minimum Data Set Attestation: I understand the information is used as a basis for ensuring that residents receive appropriate quality care and is a basis for payment for federal funds. I further . understand that payment of such federal funds and continued participation in the government-funded health care programs is conditioned on the accuracy and truthfulness of the information and that person(s) certifying as to the truthfulness and accuracy and completeness of the Minimum Data Set may be subject to or their organization may be subject to substantial criminal civil and/or administrative penalties for submitting false information. The Importance of Documentation Chart documentation is the cornerstone of communication amongst caregivers. Documentation allows subsequent caregivers to know what has happened on previous shifts. The accuracy of documentation is vitally important so that caregivers down the line are making decisions based on complete and accurate information. Maintenance of an accurate and complete health record is requisite for patient safety and continuity of care. The nursing process includes assessment, creation of a Care Plan (with planned interventions), application of interventions, documentation of interventions, reassessment, documentation of reassessment, and modi?cation of the Care Plan if necessary. Documentation is an integral and critical part of the nursing process. Discussion The Standard of Care for the prevention and treatment of pressure soresderives from Federal OBRA regulations, New Jersey State statutes,- New Jersey Regulations, AHCPR guidelines, the American Medical Directors Association, the National Pressure Ulcer Advisory Panel (NPUAP) and European Pressure Ulcer Advisory Panel (EPUAP), the Pan Paci?c Pressure Injury Alliance, and Federal OBRA regulations expanded upon by guidance to surveyors under OBRA F-tag 314. These establish acceptable community norms for pressure sore prevention and treatment. Federal and State Regulations Federal Regulations In 1987, President Ronald Reagan signed into law the ?rst major revision of the federal standards for nursing home care since the 1965 creation of both Medicare and Medicaid. This landmark legislation changed society's legal expectations of nursing homes care. Long term care facilities desiring Medicare or Medicaid funding must provide services enabling residents to ?attain and maintain their highest practicable physical, mental, and well-being." 24 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 125 of 162 Trans ID: LCV2019863158 CAPANO 003882 The Federal Nursing Home Reform Act or OBRA ?87 created a minimum set of national standards of care and rights for people living in certi?ed nursing facilities. Federal OBRA regulations ?483.20(k) Resident assessment speci?es that "The facility must develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident's medical, nursing, and mental and needs that are identi?ed in the comprehensive assessment." Federal OBRA regulations ?483.25 (1) requires that "a resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were ?483.25 (2) speci?es that? a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.? Federal OBRA regulations Section 483.20 (1) (in) requires a facility to make periodic comprehensive patient assessments [including skin condition]. Federal OBRA regulations ?483.10 and C) requires that a facility immediately consult with the resident?s physician when there is a signi?cant change in the resident's physical status and/or a need to alter treatment signi?cantly. Federal OBRA regulations ?483.75 (1) requires that nursing facilities maintain records on each resident in accordance with accepted professional standards and practice. tag 514 provides guidance to surveyors in interpreting Federal OBRA regulations ?483.75 (1), speci?cally requiring that clinical records are complete, accurately documented, easily accessible, and systematically organized. The CMS Interpretive Guidelines for tag 514 direct state surveyors to ask the following question during the survey: "Is there enough record documentation for staff toconduct care programs and revise the program, as necessary, to respond to changing status of the resident as a result of interventions?" Federal OBRA regulations ?483.13 speci?es that "the facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents," New Jersey State Statutes New Jersey State Statutes N.J.S.A. 30:13?3 requires nursing homes to comply with "all applicable State and Federal statutes and rules and regulations." New Jersey SA 30:13-5 Nursing Home Residents Bill Of Rights . N.J.S.A. 30:13-5 speci?es a patient?s "right to a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident, including the right to expect and receive appropriate assessment, 25 CAM-L-000507-17 05/16/201910:34:13 AM Pg 126 of 162 Trans ID: ch20196631"68"" CAPANO 003883 management and treatment of pain as an integral component of that person's care consistent with sound nursing and medical practices." Violation of the Federal Nursing Home Reform Act is, therefore, de facto violation of New Jersey statutes. Violation of a nursing home law that causes harm is a violation of that resident's rights under N.J.S.A. 30:13-5 which involves the rights to a digni?ed existence and a safe and decent living environment and individualized care that recognizes the individuality of the resident. Any inappropriate care that causes harm is a violation of the rights to a safe and decent living environment, a dignified existence, and care that recognizes the individuality of the resident as such harm logically infringes upon these rights. Any violation of any applicable State or Federal Statute, Rule or Regulation is a violation of the New Jersey Nursing Home Act (New Jersey Nursing Home Responsibilities and Residents Rights Act) and a deviation from the standard(s) of care. N.J.A.C. provides that "the facility shall provide and ensure that each resident receives all care and services needed to enable the resident to attain and maintain the highest practicable level of physical (including pain management), emotional and social well-being, in accordance with individual assessments and care plans.?I N.J.A.C. requires that "the facility shall take preventive measures against the development of pressure sores, including assessing the resident?s skin daily and minimizing friction and pressure against clothing and bed linens. When present, pressure sore shall be identi?ed, documented, and treated." N.J.A.C. requires that non-ambulatory residents shall be repositioned _at least once every two hours. N.J.A.C. 5 speci?es that each resident shall be entitled to the following To be free from physical and mental abuse and/or neglect. Pressure Sores The 12/19/89 Omnibus Budget Reconciliation Act (Public Law 101?239) established the Agency for Health Care Policy and Research (AHCPR). The AHCPR Publication number 92-0047, Pressure Ulcers in Adults: Prediction and Prevention, Clinical Practice Guideline Number 3, May 1992 provides what is still a pertinent review of pressure sores/decubitus ulcerations. Stage I ulcers are defined as non-blanchable redness of intact skin. Stage II ulcers are partial thickness skin ioss involving the epidermis and/or the dermis which present as an abrasion, blister, or shallow crater. 26 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 127 of 162 Trans ID: LCV2019863158 CAPANO 003884 Stage ulcers are full thickness skin loss "involving damage or necrosis of subcutaneous tissue that may extend down to, but not through, underlying fascia and present as a deep crater with or without undermining of adjacent tissues Stage IV ulcers involve extensive destruction, tissue necrosis or damage to muscle, bone or supporting structures [such as tendon or joint capsuleJ." Deep Tissue Pressure Injury is a pressure-reiated injury to subcutaneous tissues under intact skin, initially presenting with the appearance of a deep bruise. Unstageable/ Unclassi?ed: Fuil thickness skin or tissue loss-depth unknown Full thickness tissue loss in which actual depth of the ulcer is completely obscured by slough (yellow, tan, gray, green or brown) and/or eschar (tan, brown or black) in the wound bed. Until enough slough and/or eschar are removed to expose the base of the wound, the true depth cannot be determined; but it will be either a Category/Stage or IV. Stable (dry, adherent, intact without erythema or ?uctuance) eschar on the heels serves as ?the body's natural (biological) cover" and should not be removed. On 4/13/16, the National Pressure Ulcer Advisory Panel (NPUAP) announced the change in terminology from pressure ulcer to pressure injury and updated the stages of pressure injury. The changes in terminology obviated confusion about stage I pressure ulcerations because stage I pressure ulceration actually describes intact but injured skin. The new pressure injury staging system in effect from 4/13/16 onward is as follows: Pressure Injury: A pressure injury is localized damage to the skin andlor underlying soft tissue usually over a bony prominence or related to a medical or other device. The injury can present as intact skin or an open ulcer and may be painful. The injury occurs as a resuit of intense andlor protonged pressure or pressure in combination with shear. The tolerance of soft tissue for pressure and shear may also be affected by microclimate, nutrition, perfUSion, co-morbidities and condition of the soft tissue. Stage 1 Pressure Injury: Non-blanchable erythema of intact skin Intact skin with a localized area of non-blanchable erythema, which may appear differently in darkly pigmented skin. Presence of blanchable erythema or changes in sensation. temperature, or ?rmness may precede visual changes. Color changes do not include purple or maroon discoloration; these may indicate deep tissue pressure injury. Stage 2 Pressure Injury: Partial?thickness skin loss with exposed dermis Partial-thickness ioss of skin with exposed dermis. The wound bed is viabie, pink or red, moist, and may also present as an intact or ruptured serum-?lled blister. Adipose (fat) is not visible and deeper tissues are not visibie. Granulation tissue, slough and eschar are not present. These injuries commonly result from adverse microclimate and shear in the skin over the pelvis and shear in the heel. This stage should not be used to describe moisture associated skin damage (MASD)'including incontinence associated dermatitis intertriginous dermatitis medical adhesive reiated skin injury (MARSI), or traumatic wounds (skin tears, burns, abrasions). 27 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 128 of 162 Trans ID: LCV2019863158 CAPANO 003885 Stage 3 Pressure Injury: Full-thickness skin loss Full-thickness loss of skin in which adipose (fat) IS visible In the ulcer and granulation tissue and epibole (rolled wound edges) are often present Slough and/or eschar may be visible. The depth of tissue damage varies by anatomical location; areas of signi?cant adiposity can develop deep wounds. Undermining and tunneling may occur. Fascia, muscle, tendon. ligament. cartilage and/or bone are not exposed. lf slough or eschar obscures the extent of tissue loss this is an Unstageable Pressure Injury. Stage 4 Pressure Injury: Full-thickness skin and tissue loss Full-thickness skin and tissue loss with exposed or directly palpable fascia, muscle, tendon, ligament, cartilage or bone in the ulcer. Slough and/or eschar may be visible. Epibole (rolled edges), undermining and/or tunneling often occur. Depth varies by anatomical location. If slough or eschar obscures the extent of tissue Ioss this is an Unstageable PreSsure injury. Unstageable Pressure injury: Obscured full-thickness skin and tissue loss Full~thickness skin and tissue loss in which the extent of tissue damage within the ulcer cannot be con?rmed because it is obscured by slough or eschar. lf slough or eschar is removed, a Stage 3 or Stage 4 pressure injury wili be revealed. Stable eschar dry. adherent, intact without erythema or ?uctuance) on an ischemic limb or the heel(s) should not be removed. Deep Tissue Pressure Injury: Persistent non-blanchable deep red, maroon or purple discoloration Intact or non-intact skin with localized area of persistent non-blanchable deep red. maroon, purple discoloration or epidermal separation revealing a dark wound bed or blood ?lled blister. Pain and temperature change often precede skin color changes. Discoloration may appear differently in darkly pigmented skin. This injury results from intense and/or prolonged pressure and shear forces at the bone-muscle interface. The wound may evoive rapidly to reveal the actual extent of tissue injury, or may resolve without tissue loss. if necrotic tissue. subcutaneous tissue, granulation tissue. fascia, muscle or other underlying structures are visible, this indicates a full thickness pressure injury (Unstageable, Stage 3 or Stage 4). Do not use DTPI to describe vascular, traumatic, neuropathic, or dermatologic conditions. Additional pressure injury de?nitions. Medical Device Related Pressure Injury: This describes an etiology. Use the staging system to stage This describes the etiology of the injury. Medical device related pressure injuries result from the use of devices designed and applied for diagnostic or therapeutic purposes. The resultant pressure injury generally conforms to the pattern or shape of the device. The injury should be staged using the staging system. Mucosal Membrane Pressure Injury: Mucosal membrane pressure injury is found on mucous membranes with a history of a medical device in use at the iocation of the injury. Due to the anatomy of the tissue these injuries cannot be staged. Agengy for Health Care Polig and Research The Agency for Health Care Policy and Research (AHCPR) was established in December 1989 under Public Law 101-239 (Omnibus Budget ReConciliation Act of 1989) to 3 The AHCPR was later renamed the Agency for Healthcare Research and Quality (AHRQ). 28 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 129 of 162 Trans 9666156 CAPANO 003886 enhance the quality, appropriateness, and effectiveness of health care services and access to these services. AHCPR guidelines recommend assessing bed? and chair-bound individuals for risk factors including immobility, incontinence, impaired nutrition, and altered level of consciousness. They recommend use of a validated risk assessment tool such as the Braden scale. The guideline recommends reassessment at periodic intervals. Skin inspection is recommended once daily. The authors advocate minimizing exposure to moisture due to incontinence. Furthermore, they emphasize that "skin injury due to friction and shear forces should be minimized through proper positioning, transferring and turning injuries may be reduced by the use of lubricants (such as corn starch, and creams), protective ?lms (such as transparent film dressings, and skin sealants), protective dressings (such as hydrocolloids, and protective padding." They stress that interventions should be monitored and documented. The AHCPR recommends repositioning every 2 hours, that a written schedule for systematically turning and repositioning be used, and that positioning devices such a pillows or wedges be used "to keep bony prominences from direct contact with one another, again according to a written plan." The AHCPR states, ?uninterrupted sitting by at-risk individuals in chairs or wheelchairs should be avoided. If consistent with overall patient management goals, the individual should be repositioned, shifting the points under pressure, at least every hour or be put back to bed. Individuals who are able to move should be taught to shift weight every 15 minutes." The AHCPR document urges that "anyone assessed to be at risk for developing pressure ulcers should be placed on a pressure reducing device when lying in bed - such as foam, static air, alternating air, gel, or water mattresSes." The AHCPR recommends that "educational programs for the prevention of pressure ulcers should be structured, organized, and comprehensive and directed at all levels of health care providers, patients, and family or caregivers." More speci?cally, this educational program should include information on the etiology and risk factors for pressure ulcers, risk assessment tools, skin assessment, selection and/or use of support surfaces, development and implementation of an individualized program of skin care, demonstration of positioning to decrease risk of tissue breakdown, and instruction on accurate documentation of pertinent data." The AHCPR Guideline#15 Treatment of Pressure Ulcers, December 1994 discusses assessment and management of a patient with pressure ulcers. The authors stress "identi?cation and management of illnesses that might impede healing such as peripheral vascular disease, diabetes mellitus, immune deficiencies, collagen vascular 29 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 130 of 162 Trans ID: ch2o19666156 CAPANO 003887 diseases, malignancies?, and depression." Because of the association between malnutrition and the development of new pressure ulcers a nutritional assessment is mandatory. AHCPR recommends a ?low-air?loss or air??uidized bed if a patient has large stage or IV ulcers on multiple turning surfaces." The authors recommend debridement of necrotic tissue, wound using a dressing that keeps the ulcer bed continuously moist but the surrounding intact skin dry." The authors stress that "adequate cleansing and debridement prevent [bacterial] colonization from progressing to clinical infection." AHCPR recommends that pressure ulcers be reassessed at least weekly and that if the wound condition deteriorates the treatment plan be reevaluated as soon as any evidence of deterioration is noted." They recommend increased dietary intake or supplementation to place the patient in positive nitrogen balance. Vitamin and Zinc supplementation are recommended to aid in wound healing. Patients should not be positioned on a pressure ulcer. American Medical Directors Association The American Medical Directors Association. Pressure Ulcers in the Long-Term Care Setting Clinical Practice Guideline. Columbia, MD: AMDA 2008 states that ?nursing staff should document when turning and positioning occurs The monograph further states, ?For ulcers that are not healing as anticipated, consider the following: addition or modification of a support surface, progressing to a low air loss mattress or an air- ?uidized bed as appropriate AMDA recommends an interdisciplinary wound care team. The wound care nurse's duties should include training new staff, evaluating the effectiveness of the current ulcer treatment regimen and helping to select appropriate support surfaces for patients with ulcers. - AMDA recommends inspection of the patient's skin at least weekly. AMDA's guideline suggests that wound location, size, depth, maceration, color of ulcer and surrounding tissues, and description of drainage, eschar, necrosis, odor, tunneling, and undermining should be performed. ?The cornerstone of pressure ulcer management is prevention.? Unavoidable ulcers occur in the setting of multiple organ failure, sarcopenla, severe vascular compromise, and terminal illness [page 4 Since publication of AHCPR guidelines in 1994, signi?cant advances in cancer therapeutics have allowed signi?cantly longer survival times (and survival with good quality of life) in many types of advanced/metastatic cancers and accordingiy, the impact of metastatic cancer on pressure sore development, progression, and healing must be assessed on a case~by-case basis. 30 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 131 of 162 Trans ID: LCV2019863158 CAPANO 003888 AMDA guidelines state that ?repositioning schedules should be individualized according to a patient?s needs.? ?Nursing staff should keep the attending physician aware of the progress of all ulcers. Routine charting of turning and repositioning is important in patients with decubitus ulceration because if a patient is being repositioned every two hours and has worsening of skin condition, other interventions such as decreasing the turning interval to every hour or obtaining a better pressure off?loading bed surface need to be put into place. Without documentation of turning one cannot fully appreciate the reasons for wound treatment failure and, in turn, appropriate and timely therapeutic clinical decisions cannot be made. Although designed to be treatment guidelines for care and prevention of pressure sores in the long-term care setting, the principles of prevention and treatment for pressure sores discussed in the AMDA monograph apply equally well to the hospital setting. In my experience a shift nurse's note entry such as 2, 4, 6, 8" would take less than two seconds to document? Complete and accurate charting by nursing staff is imperative so that attending physician staff can provide the best possible care and recommendation for a resident. National Pressure ulcer Advisory Panel (NPUAP) And European Pressure Ulcer Advisou Panel (EPUAP) Pressure Ulcer Prevention And Treatment Clinical Practice Guidelinel Second Printing, February 2010 This guideline recOmmends: "record repositioning regimes, specifying frequency and position adopted, and include an evaluation of the outcOme of the positioning regime. Documentation provides a written record of care delivery and, as such, serves as evidence that repositioning has occurred. It is therefore important to record each repositioning episode and include a record of the individual?s skin condition as an indicator of tolerance of that particular positioning plan Although not specifying a speci?c turning and repositioning frequency, the guideline suggests that "frequent assessment of the individual's skin condition will help to identify the early signs of pressure damage and, as such, her/his tolerance of the planned repositioning schedule. If changes In skin condition should occur, the repositioning care plan needs to be reevaluated The guideline speci?es that nursing staff should "continue to turn and reposition, where possible, all individuals at risk of developing pressure ulcers. Repositioning is still required for pressure relief and comfort when a support surface is in use. The use of a 31 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 132 of 162 Trans ID: LCV2019863158 CAPANO 003889 support surface is, therefore, not a justi?cation for discontinuing the use of repositioning "If pressure ulcers are not healing: re-evaluate the individual and his/her pressure ulcers, intensify prevention strategies as indicated, [and] consider changing the support surface to improve pressure redistribution, shear reduction, and microclimate control matched to the individual's needs The guideline emphasizes that nursing staff should "limit the time an individual spends seated in a chair without pressure relief National Pressure Ulcer Advisom Panel Eurogean Pressure Ulcer Advisom Panel (EPUAP) and Pan Paci?c Pressure Injum Alliance Prevention and Treatment of Pressure Ulcers: Quick Reference Guide, Emil! Haesler (Edd. Cambridge Media: PerthI Australia; 2014 The monograph recommends that caregivers consider the impact of mobility limitations on pressure ulcer risk For individuals at risk of pressure ulceration, a head-to-toe assessment with particular focus on skin overlying bony prominences is required. "Each time the patient is repositioned is an opportunity to conduct a brief skin assessment Every individual should be assessed for pressure ulcer risk within eight hours of admission An individualized pressure ulcer prevention plan should be documented and implemented The skin under and around medical devices should be? inSpected at least'twice daily "Repositioning of an individual is undertaken to reduce the duration and magnitude of pressure over vulnerable areas of the body and to contribute to comfort, hygiene, dignity, and functional ability." In circumstances in which "regular positioning is not Because of their medical condition, and alternative prevention strategy such as providing a high speci?cation mattress or bed may need to be considered Repositioning frequency must take into account the pressure redistribution support surface in use, tissue tolerance, general medical condition, overall treatment objectives, skin condition, comfort, and level of activity and mobility. "If changes in skin condition should occur, the repositioning care plan needs to be reevaluated When repositioning individuals in bed, the 30? side lying position is appropriate. The 90? side lying position and the semi recumbent position should be avoided. Limit head- of~bed elevation to 30? 32 65/16/201910:34:13 AM Pg 133 of162 Tranle:LCV2019863158 CAPANO 003890 "Limit the time an individual spends seated in a chair without pressure relief "Do not position an individual directly on a pressure ulcer Avoid seating an individual within ischial ulcer in a fully erect posture in chair or bed The ischia bear Intense pressure when an individual is seated Do not position the individual directly on a medical device unless it can not be avoided "Continue to turn and reposition the individual regardless of the support surface in No support surface provides complete pressure relief "If sitting in a chair is necessary for individuals with pressure ulcers on the sacrum/coccyx or ischia limit sitting to three times a day in periods of 60 minutes or less Those who are unable to reposition independently must be repositioned Microshifts ("small shifts") "do not replace selection of a more appropriate pressure redistribution support surface when needed or turning (major shifts in body position) An individual's cognitive status must be considered when developing a pressure ulcer prevention and treatment plan ?Record repositioning regimes, specifying frequency and position adopted, and include an evaluation of the outcome of the positioning regimen. Documentation provides a written record of care delivery and, as such, serves as evidence that repositioning has occurred A repositioning schedule should be initiated as soon as possible after admission . In order to prevent heel pressure ulcers, "ensure that the heels are free of the surface of the Heel suspension devices are preferable for long-term use, or for individuals who are not likely to keep their legs on the Remove the heel suspension device periodically to assess skin integrity For those individuals with existing pressure sores, "consider replacing the mattress with a support surface that provides more effective pressure redistribution, shear reduction, and microclimate control if he or she cannot be positioned off the existing pressure ulcer, has pressure ulcers on two or more turning that limit turning options, [or] fails to heal or demonstrates ulcer deterioration A pressure redistributing seat cushion is recommended to prevent pressure ulceration. Pressure sores descriptions are to include location, stage, size, tissue type, color, the condition of the skin around the pressure sore, the wound edges, sinus tracts, undermining, tunneling, exudate, and odor. 33 05/16/2019 10:34:13 AM Pg 134 of 162 Trans ID: LCV2019863158 CAPANO 003891 Pressure sore infection can be diagnosed if there is redness extending from the edge of the ulcer, induration, new or increase in pain or warmth, purulent drainage, an increase in size, fever, malaise, confusion or delirium, anorexia, crepitus, ?uctuance, and/or discoloration of the surrounding skin "Conduct regular evaluation of organizational performance in pressure ulcer prevention and treatment and provide this information as feedback to these stakeholders There should be a tailored program of staff education and cues to perform pressure ulcer prevention A facility should develop an education policy for pressure ulcer prevention and treatment at an organizational level 42 CFR 483.25 Interpretive F~tag5 language for the above regulation explicates 42 CFR 483.25 and clari?es the de?nition of avoidable and unavoidable pressure ulcers. Avoidable means "that the resident developed a pressure ulcer and that the facility did not do one or more of the following: evaluate the resident's clinical condition and pressure ulcer risk factors; de?ne and implement interventions that are consistent with resident needs, resident goals, and recognized standards of practice; monitor and evaluate the impact of the interventions; or revise the interventions as appropriate.? Conversely, unavoidable means "that the resident developed a pressure ulcer even though the facility had evaluated the resident's clinical condition and pressure ulcer risk factors; de?ned and implemented interventions that are consistent with resident needs, goals, and recognized standards of practice; monitored and evaluated the impact of the interventions; and revised the approaches as appropriate." The explanatory language for the F?tag under this regulation indicates that AHCPR, NPUAP, and AMDA are "recognized clinical resources regarding the prevention and management of pressure ulcers." The explanatory language for the F-tag under, this regulation identi?es the following risk factors that increase a patient's susceptibility to develop or have persistence of pressure ulceration: "impaired or decreased mobility and decreased functional ability; comorbid conditions such as-end-stage renai disease, thyroid disease, or diabetes; drugs such as steroids that may affect wound healing; impaired diffuse or localized blood ?ow, for example, generalized atherosclerosis or lower extremity arterial insuf?ciency; resident refusal of some aspects of care and treatment; cognitive impairment; exposure of skin to urinary and fecal incontinence; undernutrition, malnutrition, and hydration de?cits; and a healed ulcer. The history of the healed pressure ulcer and its stage [if known] is important, since areas of healed stage or IV pressure ulcers are more likely to have recurrent breakdown." . 5 314 34 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 135 of 162 Trans ID: LCV2019863158 CAPANO 003892 The explanatory language for the F-tag under this regulation emphasizes that "an overall [pressure ulcer] risk score indicating the resident is not at high risk of developing pressure ulcers does not mean that existing risk factors or causes should be considered less important or addressed less vigorously than those factors or causes in the resident whose overall score indicates he or she is at high risk of developing a pressure ulcer." The explanatory language for the F-tag under this regulation speci?es that "nutritional goals for a resident with nutritional compromise who has a pressure ulcer or is at risk of developing pressure ulcers should include protein intake of approximately 1.2-1.5 gm per kilogram body weight daily (higher end of the range for those with larger, more extensive, or multiple wounds)." The explanatory language for the F-tag under this regulation speci?es that, "the care plan for resident is dependent on staff for repositioning should address position changes to maintain the resident's skin integrity. This may include repositioning at least every two hours or more frequently depending upon the resident?s condition and tolerance of the tissue load (pressure). Depending on the individualized assessment, more frequent repositioning may be warranted for individuals who are at higher risk for pressure ulcer development or who show evidence Stage I pressure ulcers) that repositioning at two hour intervals is inadequate." Furthermore, the explanatory language for the F-tag under this regulation speci?es that "many clinicians recommend a position change "of?oading" hourly for dependent residents who are sitting reclining chair with the head of the bed or back of the chair raised 30 degrees or more. Based upon an assessment including evidence of tissue tolerance while theresident may not tolerate sitting in a chair in the same position for one hour'at a time and'may require a more frequent position A teachable resident should be taught to shift his/her weight approximately every 15 minutes while sitting in a chair." "There isn't evidence that momentary pressure relief followed by return to the same position (that is a "microshift" of ?ve or 10 degrees or a 10?15 second lift from a seated position) is bene?cial. This approach does not allow suf?cient capillary re?ll and tissue perfusion for a resident at risk of developing pressure ulcers." The facility will be in violation of OBRA 42 CFR 483.25 if the facility fails periodically to review and revise as necessary a Care Plan to prevent the development of pressure ulcers and to promote the healing of existing pressure ulcers. Although designed to clarify OBRA guidelines for care and prevention of pressure sores in the long?term care setting, the principles of prevention and treatment for pressure sores discussed under F-tag 314 apply equally well to the hospital setting. 35 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 136 of 162 Trans ID: ch2019663156 CAPANO 003893 Right to Care the Recognizes Individuality New Jersey Nursing Home Act requires that nursing facilities recognize the dignity of residents. The development of pressure sores re?ects an unsafe/indecent living environment which degrades resident dignity. Failure of Care One staff to of?oad Mr. Capano's sacral and gluteai areas to prevent pressure ulceration was a failure to provide a safe and decent living environment and a failure to provide care that recognized Mr. Capano's dignity. The failure of Care One staff to meet Mr. Capano's individual needs violated his right to care that recognized his individuality. The concept of a ?Never Event" was promulgated by Dr. Ken Kizer, the former chief executive of?cer of the National Quality Forum (NQF) in 2001. A ?Never Event? refers to an adverse medical event that is unambiguous amputating the wrong limb), serious resulting in death or serious disability), and usually preventable. The NQF disseminated its ?Never Event? list in 2002. Development of stage or IV pressure sores in a health care facility is one such ?Never Event." Using explanatory language for the F~tag under42 CFR 483.25 Mr. Capano?s pressure ulceration was avoidable. Errors and omissions by Care One staff were responsible for development and progression of pressure ulceration. In this context, development of Mr. Capano' sacral pressure ulceration was a Never Event unambiguous, serious, and preventable. Mr. Capano' 5 Care: Penile Meatus Injunr: Pathophysiology and Neglig? once Mr. Capano entered Care One with an intact penile meatus. He was initially self catheterizing to empty his bladder. With the advent of sacral pressure ulceration, self catheterizatlon was abandoned in favor of an indwelling Foley catheter It was the obligation of Care One to secure the tubing emanating from the bladder catheter to Mr. Capano's leg to avoid the application of downward tension on the urethral meatus by the Foley catheter. Mr. Capano's legs did not move so application of a device to keep the bladder catheter tubing from pulling on that penile meatus should have been a very simple task; one would not have expected movement of the paralyzed legs to alter tension on the tubing. Nursing staff failed to secure the Foley catheter tubing, allowing downward pressure on the urethral meatus and causing gradual, painful erosion of the Foley bladder catheter through approximately 1 inch of the distal penis. If nursing staff had adequately secured the Foley catheter tubing to Mr. Capano's leg, downward pressure on the penile meatus would not have occurred and penile erosion would not 36 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 137 of 162 Trans ID: LCV2019863158 CAPANO 003894 have taken place. Failure to secure the Foley catheter tubing deviated from generally accepted standards of medical/nursing care. Mr. a an '5 Care: Penile Meatus In'u Causation Nursing staff failed to secure the Foley catheter tubing, allowing downward pressure on the urethral meatus and causing gradual, painful erosion of the Foley bladder catheter through approximately 1 inch of the distal penis. Mr. Capano's Care: Penile Meatus Injuu: Injuries Erosion of the terminal 1 inch of the distal penis was painful, permanently dis?guring, and created a hypospadias. Erosion of the distal penis was a factor in the need for surgical placement of a suprapubic catheter. Suprapubic catheters require changes. Mr. Capano's Care: Pressure Inju?: Pathoghgsiology and Negligence Mr. Capano was admitted to Care One with skin that was free of pressure ulceration. Gluteal and sacral pressure ulceration developed at Care One. When Mr. Capano entered Care One on 11/24/15, he was at risk the development of pressure injury because of immobility, lack of sensation in the sacral and gluteal area, lung cancer, urinary incontinence, and bowel incontinence. Metastatic malignancy has often been viewed as a factor causing unavoidable pressure ulcerations. However, the biological behavior of Mr. Capano's non-small cell lung cancer did not place him in danger of imminent death and, therefore, Mr. Capano?s pressure injury should not be considered unavoidable simply because he had metastatic malignancy. He had a solitary brain metastasis that was fully resected. He received gamma knife radiation therapy and chemotherapy and was faring quite nicely despite these treatments. Section 1400 of the Minimum Data Sets (MDS) consistently document a life expectancy exceeding six months. Surgical treatment for remOval of brain metastasis is not performed in patients who are expected to die in the near future from metastatic lung cancer. Furthermore, cervical spine surgery would not have been contemplated if surgeons and the non-surgical internal medicine physicians and internal medicine subspecialists felt that his life expectancy would be severely curtailed by metastatic lung cancer. After resection of the solitary brain metastasis in November 2015, a follow-up MRI in January 2016 did not show evidence of new metastatic intracranial disease. Despite the diagnosis of metastatic cancer, section 1400 of the Minimum Data Sets (MDS) at Care One documented a life expectancy exceeding six months. Blood urea nitrogen and creatinine at the time of development of pressure injuries consistently failed to show renal insufficiency. For example, 11/20/15 blood urea nitrogen and creatinine were 24 and 0.6 Accordingly, there is no evidence that renal 37 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 138 of 162 Trans ID: LCV2019863158 CAPANO 003895 dysfunction played any causative role in development or progression of pressure injuries. The right gluteus pressure sore was fully epithelialized/closed by 1/1/16, indicating that blood flow, oxygen delivery, and nutritional status was suf?cient in the gluteal area to allow wound healing. This healing is antithetical to the notion of skin failure or skin changes at the end of life. 11/22/15 hemoglobin was normal at 14.6. 11/25/15 hemoglobin was 13.7. 12/11/15 hemoglobin was 11.7. 1/4/16 hemoglobin was 9.5. During the time when gluteal and sacral pressure injuries were forming in mid-to-late December, hemoglobin was not depressed to the point where oxygen-carrying capacity of the blood would have been low enough to be a salient causative factor in development and progression of pressure injuries. Large, late stage sacral pressure injury, however, contributed to the anemia of chronic disease, worsening anemia and weakening Mr. Capano. By 1/25/16, hemoglobin had fallen to 8.8. Mr. Capano was not hypotensive at Care One during the time when pressure injuries were forming and progressing; blood pressure was adequate to perfuse his sacral and gluteal skin. Mr. Capano did not have low blood oxygen concentrations while a resident at Care One; low blood oxygenation was not a causative factor in development of progression of pressure injuries. On admission and throughout his stay at Care One, Mr. Capano required assistance of others for bed mobility, bathing, dressing, transfers, andtoileting. Mr. Capano received Decadron, a steroid, for short bursts around the time of chemotherapy infusions. On most days while a resident at Care One, Mr. Capano received no steroid. Accordingly, although Decadron increased risk for the development and progression of pressure injury, the effect of Decadron on devel0pment and progression of pressure injury was minor. Upon entry to Care One, albumin was low at 2.9. Mild malnutrition was a risk factor for the development and progression of pressure injury. Nutritional supplementation, multivitamins, and vitamin were administered to Mr. Capano during his residence at Care One. During his tenure at Care One, Mr. Capano did not experience a weight-loss that would be expected in a patient with terminal lung cancer. With development of the large, late stage, draining sacral pressure sore, metabolic demands on Mr. Capano's body increased, contributing to a shift towards catabolism as re?ected in part by depressed preaibumin level noted on 1/18/ 16. 38 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 139 of 162 Trans ID: LCV2019863158 CAPANO 003896 Contemporaneously generated notes and section the 800 of the Minimum Data Sets do not indicate that Mr. Capano refused turning and repositioning. Care One was cited in February 2015 for failure to respond to call bells in a timely fashion. Care One Resident Comment Forms described nursing staff inattentiveness in answering the call bells and in attending to patient needs. These comment forms indicated failures to change soiled diapers. A 12/14/15 Care One Resident Comment Form ?led on behalf of of Mr. Capano indicated that he was left in a soiled diaper for prolonged period of time. This was a second instance in which this had occurred. This incident occurred two days prior to discovery of a facility acquired stage II right gluteus pressure sore. Andrew Capano's brother Joseph testi?ed that Mr. Capano was left in soiled diapers on at least a dozen occasions for between 60 and 90 minutes. Failure of Care One to change Mr. Capano's soiled diaper in a timely fashion contributed to development of pressure ulceration and deviated from generally accepted standards of medical/nursing care; AHCPR, AMDA, NPUAP, EPUAP, and Pan Pacific Pressure Injury Alliance guidelines; and violated New Jersey state statutes; New Jersey Regulations; and federal OBRA regulations. Pressure is the sine qua non for the development of pressure injury. It was therefore, incumbent upon Care One staff consistently to turn and reposition Mr. Capano at a minimum interval of every two hours on all shifts while in bed and every hour while in a chair as he was unable to reposition himself. The repositioning schedule prior to development of pressure injury should have been an iterative process: 30? right, supine, 30? left, 30? right, supine, 30? left etc. After development of posterior body surface pressure injuries of the right gluteal area and sacrum, the turning and repositioning schedule should have been changed to 30? right, 30? left, 30? right, 30? left etc. The Minimum Data Set (MDS) section 12/1/15 described Mr. Capano's need for extensive assistance of one person for. bed mobility; he was not able to self reposition. Director of nursing Steele testi?ed that despite the Minimum Data Set (MDS) 12/1/15 denoting that a turning and repositioning program was in place, a turning and repositioning program was not in place until after pressure ulcerations had devel0ped. Failure of Care One to reposition Mr. Capano at a minimum interval of every two hours and to document repositioning efforts deviated from generally accepted standards of medical/nursing care; Care One?s own care plan,; AHCPR, AMDA, NPUAP, EPUAP, and Pan Paci?c Pressure Injury Alliance guidelines; and violated New Jersey state statutes New Jersey Regulations, and federal OBRA regulations. The repetitive nature of negligent pressure off-loading over a period of months speaks to a corporate culture that failed to provide adequate education to nursing personnel about pressure off-loading and failed to provide adequate oversight and support to ensure that appropriate pressure off loading techniques were being applied at Care One. At the time of discovery of the sacral pressure sore it was full thickness, stage measuring 7.8 3.8 1.7 cm. 39 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 140 of 162 Trans ID: LCV2019863158 CAPANO 003897 Failure to observe gressure ulceration at an early stage Mr. Capano was totally dependent on the staff for bathing, tolleting and hygiene, which required the staff to visually observe his body. Had the staff been providing daily meticulous bathing and frequent incontinence care, a competent caregiver would have noticed the early signs of skin breakdown, notably discoloration of the sacral skin and/or mild irritation or discomfort. Discovery of Mr. Capano's sacral pressure sore when it was late stage, large, and deep indicates that Care One were not paying meticulous attention to Mr. Capano's skin, a deviation from generally accepted standards of medical/nursing care. Dr. Dructor's 1/28/16 and 2/1/16 notes indicated that sacral pressure injury was due to skin failure. However, at that time, cardiac pulmonary, abdominal, and extremity examinations were unremarkable. Blood pressure was 132/70, pulse 67, resplrations 14, temperature 97.2, and pulse oximetry 97%. At the time of Dr. Dructor's notes there is no evidence of multiorgan system failure that would have precipitated skin failure. Similarly, wound care nurse Smollock felt that pressure ulceration of the sacrum 1/26/ 16 represented terminal skin changesG. Nurse Smollock asserts this despite normal kidney function, normal blood pressure, no signs of active congestive heart failure, no signs of lung failure, no signs of liver failure, and no signs of decreased blood oxygenation. There were no signs that Mr. Capano was experiencing multiorgan system failure. Accordingly, her assertion that the sacral pressure sore was a function of terminal illness is untenable. Section 1400 of the Minimum Data Sets (MDS) at Care One consistently documented a life expectancy exceeding six months. In fact, Mr. Capano lived well over a year beyond the data which Nurse Smollock asserted that he had terminal skin changes. Nurse Smollock testi?ed that when skin failure occurs, "circulation shift away from the skin to the central organs tends to deplete the sacral region most aggressively." This is incorrect. As blood pressure fails the extremities become cool and mottled preserving central circulation. It is not until ?ngers toes and distal extremities have impaired circulation that one would see impaired circulation in the more central sacral area. On 2/16/16 after both Dr. Drucker?s 1/28/16 and 2/1/16 notes describing skin failure and Nurse Smollock's 1/26/16 notes suggesting terminal skin changes Mr. Capano's sacral pressure sore had healthy red granulation tissue comprising 90% of the wound base. The presence of granulation tissue is antithetical to the notion of skin failure/terminal skin changes; simply put, in the process of skin death or skin changes at the end of life, granulation tissue does not develop. Defendant's Answers to Form C3 Interrogatories . Answers to Form C3 Interrogatories indicated that Mr. Capano refused treatment to his sacral wound and straight catheterizatlon at times which may have contributed to or ?5 Nurse'Smoliock testi?ed that ?terminal skin changes" were not de?nitively diagnosed. 40 cAM-L-oob?orif Pg 141 of 162 Transit): LCV2019863158 CAPANO 003898 caused the alleged injuries. This contention regarding failure to allow sacral wound care is not borne out by the contemporaneously generated medical record or by testimony of Care One employees. There is no chart evidence to support refusal of straight catheterization leading to or contributing to pressure injuries. Mr. Canano's Care: Pressure Injug: Causation Failure to turn and reposition Mr. Capano on an every two-hour or more frequent basis caused unremitting pressure to the skin overlying the sacral/gluteal area. This unrelenting pressure compounded by failure of Care One to maintain Mr. Capano in a non-soiled diaper caused development and progression of gluteal and sacral pressure injuries. Mr. Capano's Care: Pressure Inju?: Injuries Failure to turn and reposition Mr. Capano on an every two-hour or more frequent basis caused unremitting pressure on the skin overiying the sacral/gluteal area. This unrelenting pressure compounded by failure of Care One to maintain Mr. Capano in a non-soiled diaper caused development and progression of gluteal and sacral pressure injuries. The sacral/coccyx pressure sore required debridement on 1/29/16 by Dr. Cody. Nurse Smollock debrided the pressure injury on 2/9/16 using surgical scissors. On 2/12/16, Dr. Cody debrided the sacral pressure sore to bone. The sacral pressure sore was maiodorous. Mr. Capano was awake, alert, fully oriented, and sentient and would certainly have been able to appreciate and be offended by the odor emanating from his body. . Mr. Capano's Care: Costs Assgciated with Pressure Injum and Penis Injum Costs for debridements 1/29/ 16, 2/9/16, and 2/16/16 were predicated solely upon development of pressure injuries at Care One. The cost for all Wound Healing Solutions consultations except for the first visit in which only the scalp wound was addressed were predicated solely upon development and progression of pressure injuries at Care One. The cost for wound care supplies at Care One and while at home were predicated solely upon development and progression of pressure injuries at Care One. The cost for Bayada visiting nurses was predicated solely upOn development and progression of pressure ulceration at Care One. My opinions are stated within a reasonable degree of medical certainty/probability. 41 CAM-L-000507-17 05/16/2019 Pg 142 of 162 Trans ID: LCV2019863158 CAPANO 003899 I reserve the right to amend my opinions as further information becomes available. Yours truly, John Kirby, MD. 42 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 143 of 162 Trans ID: LCV2019863158 L0 1 I I I HF 0'5/16/2'019103413 AM Pg144 of162 Ital/024 LAW OFFICE OF ANDREW A. BALLERINI Cherry Tree Corporate Center 5351Rn?e38,SuHe328 ANDREW A. IMLLIERINI, ESQUIRE Cherry Hill, New Jersey 08002 RICHARD J. TALBOT. ESQUIRE 856-665~7140 (nnrrununc1VH.Tnh\LATTORNuv MILLION DOLLAR FORUM Fax 856-665-8885 MILLION nonmn MEMBER MEMBER NJ. AND um: MEMBER N.J. AND BAR January 23, 2019 SENT VIA FAX 973-912-9212 AND REGULAR MAIL :Robert; . Blantoh, Jr., Esquire HARDIN KUNDLA MCKEON POLETTO 673 Merrie Avenue Springfield, NJ 07081 RE: Capano vs. CareOne at Evesham, et als Your File 1481~44924 Docket Dear Mr. Blanton: Enclosed please find the January 12, 2019, report and Curriculum Vitae of Bonnie Tadrick, CWCA, Plaintiffs expert in nursing care, nursing, gerontological nursing and wound care, which has been Bates Stamped CAPANO 004l28?004149. Same_shall be considered an amendment to the Plaintiff's interrogatory answers. No submissions.by the Plaintiff shall be considered adoptive admissions. I a Nurse Tadrick is expected to testify as to the deviations to the standards of care committed by the Defendants, nursing home standards, nursing standards, nursing in general, gerontological nursing, causation, diagnosis, wound care, wound prevention, pressure ulcers, pressure ulcer development and prevention, pressure ulcer treatment, staging of pressure ulcers, violations of Federal and State Nursing Home Law, violations of nursing home residents' rights, causation, diagnosis, damages suffered assOCiated with the pressure ulcer and the like. The Plaintiffs experts will not be limited to the "Ecur corners? of their reports and you are free tK) take the depositions of the Edaintiffs experts during the cUscovery period, upon appropriate notice to and? Scheduling with Plaintiffs counsel. 01f23f2018 08:58 N8 8848] I001 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 145 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 146 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 147 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 148 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 149 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 150 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 151 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 152 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 153 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 154 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 155 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 156 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 157 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 158 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 159 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 160 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 161 of 162 Trans ID: LCV2019863158 CAM-L-000507-17 05/16/2019 10:34:13 AM Pg 162 of 162 Trans ID: LCV2019863158