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Tuohey v. Chenal Healthcare, LLC

United States District Court, E.D. Arkansas, Western Division

May 17, 2017

BRENDA TUOHEY, as Personal Representative of the Estate of Mildred May Bryant and on behalf of the wrongful death beneficiaries of Mildred Mae Bryant, and all others similarly situated PLAINTIFFS
CHENAL HEALTHCARE, LLC, d/b/a Chenal Rehabilitation and Healthcare Center, et al. DEFENDANTS



         This is a wrongful death action brought by Brenda Tuohey on behalf of the Estate of Mildred May Bryant and Bryant's wrongful death beneficiaries against thirty-one defendants alleging that the Chenal Rehabilitation and Healthcare Center was chronically understaffed in violation of the admission agreement and that the failure to staff Chenal Healthcare adequately constituted negligence. Three motions for summary judgment are pending.

         The defendants are a web of corporate entities and individual administrators affiliated in some way with the Chenal Rehabilitation and Healthcare Center, which is a seventy-bed nursing home in Little Rock. The amended complaint alleges that the corporate entities developed the business policies that resulted in the alleged understaffing of Chenal Healthcare, while the individual administrators and directors of nursing acted in conjunction with the corporate entities to reduce staffing levels or maintain staffing at an inadequate level. Tuohey's mother, Mildred Mae Bryant, was a resident of Chenal Healthcare from approximately June 25, 2007, to December 17, 2014. Tuohey claims that Bryant's stay at Chenal Healthcare accelerated the deterioration of her health, resulting in multiple urinary tract infections, poor hygiene, a broken tibia, a broken fibula, unsanitary living conditions, and ultimately her death.


         A court should grant summary judgment if the evidence demonstrates that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine dispute for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party meets that burden, the nonmoving party must come forward with specific facts that establish a genuine dispute of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine dispute of material fact exists only if the evidence is sufficient to allow a reasonable jury to return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The Court must view the evidence in the light most favorable to the nonmoving party and must give that party the benefit of all reasonable inferences that can be drawn from the record. Pedersen v. Bio-Med. Applications of Minn., 775 F.3d 1049, 1053 (8th Cir. 2015). If the nonmoving party fails to present evidence sufficient to establish an essential element of a claim on which that party bears the burden of proof, then the moving party is entitled to judgment as a matter of law. Id.


         A. The Medical Malpractice Act

         In the first pending motion for summary judgment, the defendants'[1] initial argument is that all of Tuohey's claims fall within the ambit of the Arkansas Medical Malpractice Act-Ark. Code Ann. § 16-114-201, et. seq. Document #89. According to the defendants, all of Tuohey's claims arise from “medical injuries, ” so she may only seek relief for those injuries under the malpractice act. Because she failed to do so prior to the deadline for amending her complaint, the defendants ask the Court to dismiss her claims. In the alternative, they ask the Court to whittle her claims down to one claim for medical malpractice. The motion is characterized as one for summary judgment, but the defendants' statement of undisputed facts includes four paragraphs, three summarizing Tuohey's complaint. Document #91. The motion as it pertains to the malpractice act is in substance a motion for judgment on the pleadings pursuant to Rule 12(c).

         Rule 12 (c) provides: “After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). Such a motion is evaluated in the same manner as a 12(b)(6) motion to dismiss. McIvor v. Credit Control Serv., Inc., 773 F.3d 909, 912 (8th Cir. 2012). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although detailed factual allegations are not required, the complaint must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). The Court accepts as true all of the factual allegations contained in the complaint and draws all reasonable inferences in favor of the nonmoving party. Gorog v. Best Buy Co., Inc., 760 F.3d 787, 792 (8th Cir. 2014). The complaint must contain more than labels, conclusions, or a formulaic recitation of the elements of a cause of action, which means that the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965.

         Tuohey concedes that the amended complaint includes a claim for medical injury governed by the malpractice act. Conversely, the defendants never argue that the amended complaint fails to allege facts that would constitute a claim under the malpractice act. See Document #101 at 4; Document #89. Rather, they argue that the facts alleged would state a claim under the malpractice act, and only under the malpractice act, but since Tuohey never cites that act in her complaint her claims should be dismissed. Tuohey's failure to characterize her claims as arising under the malpractice act does not require the Court to dismiss those claims. Instead, the Court can look to the true character of the tort alleged. Cont. Cas. Co. v. Moser, No. 4:05CV00979 JLH, 2006 WL 827319, at *5 (E.D. Ark. March 29, 2006) (citing Cherepski v. Walker, 323 Ark. 43, 55, 913 S.W.2d 761, 767 (1996)). The failure to cite the Medical Malpractice Act in the complaint does not preclude application of the Act. See Looney v. Bolt, 330 Ark. 530, 536, 955 S.W.2d 509, 512 (1997) (claim pled under the Wrongful Death Act). Where the alleged acts or omissions of a medical provider result in a medical injury, the Act applies regardless of how the claims have been pled. Id. It follows that a plaintiff may state a plausible claim by supporting it with sufficient factual allegations without explicitly labeling that claim.

         The amended complaint states three claims: (1) a medical negligence claim; (2) an ordinary negligence claim; and (3) a claim for breach of the admission agreement against Chenal Rehabilitation and Healthcare. The defendants argue that the amendments to the malpractice act adopted in 2013 by the Arkansas General Assembly as Act 1196 preclude Tuohey from recovering for injuries other than for medical injuries. Although the statute was amended to insure that a person who suffers a medical injury cannot be compensated for that injury more than once, the statutory definition of “medical injury” was not substantially changed. See 2013 Arkansas Act 1196. A medical injury continues to be an adverse consequence that arises out of or is sustained in the course of professional services being rendered by a medical care provider. Id.; see also Ark. Code Ann. § 16-114-201 (2016 Repl.). The Arkansas Supreme Court has drawn the line separating claims for medical injury from other claims in numerous cases that predate Act 1196 of 2013. See, e.g., Paulino v. QHG of Springdale, Inc., 2012 Ark. 55, 9-10, 386 S.W.3d 462 (2012); Young v. Gastro-Intestinal Ctr., Inc., 361 Ark. 209, 221, 205 S.W.3d 741, 750 (2005); McQuay v. Guntharp, 336 Ark. 534, 986 S.W.2d 850, 853 (1999); Howard v. Ozark Guidance Ctr., 326 Ark. 224, 228, 930 S.W.3d 341, 343 (1996); Spring Creek Living Ctr. v. Sarrett, 319 Ark. 259, 263, 890 S.W.2d 598, 600 (1995); Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 552-555, 868 S.W.2d 505, 508-10 (1994); Ruffins v. ER Ark., P.A., 313 Ark. 175, 177, 853 S.W.2d 877, 879 (1993); Bailey v. Rose Care Ctr., 307 Ark. 14, 18, 817 S.W.2d 412, 414 (1991); Sexton v. St. Paul Fire & Marine Co., 275 Ark. 361, 363, 631 S.W.2d 270, 272 (1982). Because Act 1196 of 2013 did not substantially change the definition of “medical injury” in the malpractice act, these cases remain authoritative. The distinction between claims for medical injury and other types of claims remains a real distinction. Depending on what evidence is presented at trial, the Court will instruct the jury accordingly at the proper time.[2]

         B. Punitive Damages

         Next, the defendants argue that Tuohey cannot present evidence to show the existence of a genuine dispute as to whether she is entitled to punitive damages. Document #90 at 7. Punitive damages are not recoverable for the breach of the admission agreement claim. L.L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 8-9, 665 S.W.2d 278, 281-82 (1984). Punitive damages can be awarded for torts in nursing home litigation and medical malpractice actions. See 1 Howard W. Brill & Christian H. Brill, Ark. Law of Damages § 9:2 (6th ed. 2015) (footnotes omitted). In Rose Care, Inc. v. Ross, the Arkansas Court of Appeals provided that to support an award of punitive damages, there must be “evidence that a party likely knew, or ought to have known, in light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct in reckless disregard of the consequences from which malice could be inferred.” 91 Ark.App. 187, 210, 209 S.W.3d 393, 407 (2005) (citing Union Pac. R.R. Co. v. Barber, 356 Ark. 268, 149 S.W.3d 325 (2004)).

         In response to the defendants' motion for summary judgment, Tuohey submitted the unsworn expert report of Dr. Loren G. Lipson as evidence that an inference of malice may be drawn from the defendants' reckless disregard of numerous and recurrent deficiencies cited by state and federal regulators. Document #101-1. The Eighth Circuit has explained:

Rule 56(c)(4) requires “[a]n affidavit or declaration used to support or oppose a motion [to] be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Although Rule 56, as amended in 2010, no longer requires a formal affidavit, an unsworn declaration or statement substituted for a sworn affidavit must still meet important statutory requirements. See Fed. R. Civ. P. 56(c) advisory committee's note to 2010 amendment. Under 28 U.S.C. § 1746, an unsworn declaration or statement must be written, signed, dated, and certified as true and correct “under penalty of perjury.”

Banks v. Deere, 829 F.3d 661, 668 (8th Cir. 2016). Thus, “an unsworn expert report, standing alone, does not constitute admissible evidence that can be considered at the summary judgment stage of the proceedings, and will not defeat a motion for summary judgment . . . .” Maytag Corp. v. Electrolux Home Prods., Inc., 448 F.Supp.2d 1034, 1065 (N.D. Iowa 2006). See also Peak v. Cent. Tank Coatings, 606 Fed.Appx. 891, 895 (10th Cir. 2015); Sigler v. Am. Honda Motor Co., 532 F.3d 469, 480-81 (6th Cir. 2008); Provident Life & Acc. Ins. Co. v. Goel, 274 F.3d 984, 1000 (5th Cir. 2001); Fed.R.Civ.P. 56(e). It may be possible to “cure” unsworn materials by a subsequent affidavit. DG&G, Inc. v. Flexsol Pkg. Corp., 576 F.3d 820, 826 (8th Cir. 2009); Maytag Corp., 448 F.Supp.2d at 1064. Here, the defendants noted in their brief filed on April 17, 2017, that Lipson's unsworn expert report was inadmissible. Document #103 at 6-7. Tuohey has not attempted to “cure” Lipson's unsworn statement, so it will not be considered.

         Tuohey also points to paragraph 53 of her complaint, which lists examples of regulatory citations. Document #101 at 15. As the non-moving party bearing the burden of proof on the issue of punitive damages, Tuohey “may not rest on allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.” Lower Brule Sioux Tribe v. State of S.D., 104 F.3d 1017, 1021 (8th Cir. 1997). Tuohey has failed to present admissible evidence to show that a genuine dispute of material facts exists. The defendants are entitled to summary judgment on the issue of punitive damages.


         In its motion for summary judgment, Diamond Senior Living, LLC, which owned the building leased to Chenal Healthcare, argues that it owed no legal duty to Bryant and that even if it owed a duty, it did not proximately cause her injuries. Document #92. Diamond Senior Living's motion relies on the affidavit of its Vice President, Karen Austin, who testifies to the lease between Diamond Senior Living and Chenal Healthcare. Austin explains that the two entities have no other connection and that Diamond Senior Living had no involvement in Bryant's care.

         In the third pending motion for summary judgment, the “non-facility defendants”[3] also argue that they were not involved in Bryant's care, owed no duty to her, and did not proximately cause her injuries. Document #95. The non-facility defendants present no evidence. Instead, they argue that Tuohey cannot present evidence on these essential elements of her claim against them, so they are entitled to summary judgment on that basis.

         A. Rule 56(d)

         Tuohey has provided little evidence in response to the defendants' motions for summary judgment. Counsel for Tuohey submitted Rule 56(d) affidavits requesting the Court either deny or defer ruling on the motions for judgment, so that Tuohey can depose Karen Austin in connection with Diamond Senior Living's motion for summary judgment and depose various officers and employees of the non-facility defendants in connection with their motion for summary judgment. Document #104-1 at 2, ¶7; Document #109-1 at 2-3, ¶¶4-6. Rule 56(d) provides: “If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations to take discovery; or (3) issue any other appropriate order.” Fed.R.Civ.P. 56(d). “The purpose of this rule is to prevent a party from being unfairly thrown out of court by a premature motion for summary judgment.” Jackson v. Riebold, 815 F.3d 1114, 11121 (8th Cir. 2016) (internal quotation omitted). The Court has “wide discretion” to deny a Rule 56(d) request. See Anzaldua v. Ne. Ambulance and Fire Prot. Dist., 793 F.3d 822, 837 (8th Cir. 2015).

         Tuohey maintains that, to her knowledge, Diamond Senior Living did not disclose Austin as an individual with personal knowledge of its lack of involvement or control in the operation of Chenal Healthcare. Document #104 at 2, ¶4. Nevertheless, Tuohey has failed to show with specificity what she hopes to learn from further discovery. Tuohey does not say what she expects to learn from questioning her about that affidavit other than to say that she wishes to explore the extent of Austin's personal knowledge-which is insufficient to meet the requirements of Rule 56(d). Anzaldua, 793 F.3d at 837. Tuohey must state specific facts she hopes to learn from additional discovery, that the facts sought exist, and that the those facts are essential to rebut the summary judgment motion. Jackson, 815 F.3d at 1121. She has not done so.

         Tuohey has had fourteen months to conduct discovery on the issues addressed in Austin's affidavit. Even if she was unaware of Austin, the issues regarding which Austin testifies in her affidavit cannot come as a surprise: it had to be apparent from the get-go that Tuohey would need to present proof on the issue of Diamond ...

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