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Leona Carter, Individually and As Executrix of the Estate of Ivan Carter, Deceased v. John J. Kane Regional Centers -- Mckeesport

June 20, 2011

LEONA CARTER, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF IVAN CARTER, DECEASED, PLAINTIFF,
v.
JOHN J. KANE REGIONAL CENTERS -- MCKEESPORT, DEFENDANT.



The opinion of the court was delivered by: Ambrose, Senior District Judge

OPINION and ORDER OF COURT

Synopsis

Defendant filed a Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 17). After careful consideration of submissions and as more fully set forth below, Defendant‟s Motion for Summary Judgment (ECF No. 17) is granted.

I. Background

Plaintiff, Leona Carter, Individually and as Administratrix of the Estate of Ivan Carter, deceased, has filed a Complaint against Defendant, John J. Kane Regional Centers - McKeesport. (ECF No. 1). The Complaint alleges causes of action pursuant to 42 U.S.C. §1983 for alleged violations of the Omnibus Budget Reconciliation Act of 1987 (OBRA"), the Federal Nursing Home Reform Act ("FNHRA"), and the 14th Amendment for "injury to human dignity." (ECF No. 1, p. 11). Defendant filed a Motion for Summary Judgment. (ECF No. 17). Plaintiff was given until May 16, 2011 to respond. Plaintiff failed to respond. *fn1 Since Plaintiff is now pro se, I, sua sponte, issued an order extending Plaintiff‟s response date to June 8, 2011. See, ECF text entry dated May 31, 2011 and mailed to Plaintiff on May 31, 2011.Plaintiff again failed to respond thereto. As a result, I am forced to rule upon the Motion for Summary Judgment without the aid of Plaintiff‟s response.

To that end, I note that Defendant has filed a Concise Statement of Undisputed Material Facts. (ECF No. 18). Pursuant to Local Rule 56E, failure to deny or otherwise controvert said Statement will result in the statements contained therein being deemed admitted. See, Rule 56E of the Local Rules of Court for the Western District of Pennsylvania. Since Plaintiff never responded to Defendant‟s Concise Statement of Undisputed Material Facts, the facts contained therein are deemed admitted. Thus, the facts of this case are as follows:

"Plaintiff‟s decedent, Ivan Carter, became a resident of the John J. Kane Regional Center-McKeesport on December 5, 2007. He had been in HealthSouth Hospital of Pittsburgh from October 19, 2007, until December 5, 2007, for left heel ulcer wound care after having spent a week in Forbes Regional Hospital for a gastrointestinal bleed." (ECF No. 18, ¶1). "At the time of admission, Mr. Carter was 75 years of age and was in poor physical condition. His admitting diagnoses included, inter alia, ESRD-dialysis (end stage renal disease requiring dialysis), COPD (chronic obstructive pulmonary disease), a left heel pressure ulcer that was infected with Vancomycin-resistant enterococci ("VRE"), which is a drug resistant form of bacterium, prostate cancer, degenerative joint disease, and a history of CVA (cerebrovascular accident, i.e. "stroke") with left sided weakness, and a history of MI (myocardial infarction). He was non-ambulatory." Id. at ¶2.

"During Mr. Carter‟s residency, he was treated and followed by physicians including Roger D. Zioncheck, M.D. and Harry Lanauze, M.D." Id, at ¶.3. "On December 5, 2007, the Kane staff examined Mr. Carter and assessed his potential for skin breakdown. He was scaled to be an "18‟ on the Braden Scale, which is not a high risk for skin break down." Id, at ¶4.

"Nonetheless, because of the pre-existing pressure ulcer, the Kane Center ordered a special mattress to prevent further skin breakdown." Id, at ¶5.

"Orders were put in place to "float‟ Mr. Carter‟s heel to assist it in healing." Id, at ¶6. "Further, when Mr. Carter could not reposition himself, the Kane Center turned and repositioned Mr. Carter every two hours." Id. at ¶7. "Mr. Carter‟s risk for skin breakdown was monitored on multiple other occasions as well, including, inter alia, December 12, 2007, December 19, 2007, and December 20, 2007." Id. at ¶8.

"On January 9, 2008, the Kane Center noted a Grade II pressure sore on Mr. Carter‟s coccyx." Id. at ¶9. "In order to treat this new finding, the Kane Center ordered and employed a medical device known as a "mobile air chair‟ which provides alternating pressures to prevent skin breakdown. Silvadene cream was ordered, as well as an occupational therapy consult for bed positioning." Id. at ¶ 10.

"During Mr. Carter‟s residency, the Kane Center had him followed by a dietician who developed a diet plan for him. Harry Lamaze, M.D. was also involved in reviewing, approving and modifying Mr. Carter‟s diet when necessary." Id. at ¶11. "During Mr. Carter‟s residency, the Kane Center provided the diet recommended by the dietician, and provided nutritional supplementation. Mr. Carter‟s food intake was monitored and charted." Id. at ¶12. "When Mr. Carter‟s food consumption fell short of what was recommended by the dietician, the Kane Center staff put Mr. Carter on interventions to help him eat more to increase his caloric consumption." Id. at ¶13.

"Mr. Carter‟s pressure sore was also monitored by Dr. Lamaze and Dr. Zioncheck." Id. at ¶14. "Mr. Carter‟s pressure sore had resolved by May 2008 due to the care provided by the Kane Center." Id. at ¶15.

"on or about July 20, 2008, pressure sores were identified on his scrotum and buttocks." Id. at ¶16. "On July 21, 2008, Dr. Lamanze ordered Bourdeaux‟s paste to be applied to Mr. Carter‟s buttocks and scrotum. He further ordered discontinuance of mobile air chair and the use of silvadene cream for the buttocks and scrotum." Id. at ¶17. "On July 29, 2008, Mr. Carter was receiving renal dialysis off site when he started to get chills, weakness and elevated temperature. He was transferred from the dialysis clinic to Jefferson Regional Medical Center." Id. at ¶18. "The Jefferson Hospital records indicate that on July 30, 2008, Mr. Carter‟s family elected to withdraw measures designed to prolong Mr. Carter‟s life and placed him on comfort measures only. This included a decision to end Mr. Carter‟s dialysis treatments, without which he would soon perish." Id. at ¶19. The Jefferson Hospital records further indicate that on July 30, 2008, Mr. Carter‟s family wanted him to be placed on comfort measures only and to be transferred back to the Kane Center to die." Id. at ¶20. "On July 30, ...


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