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Thomas George v. Northern Health Facilities

July 19, 2011

THOMAS GEORGE,
v.
NORTHERN HEALTH FACILITIES, INC. D/B/A/ DRESHER HILL HEALTH, AND REHABILITATION CENTER, NORTHERN HEALTH FACILITIES, INC. EXTENDICARE HEALTH SERVICES, INC.



The opinion of the court was delivered by: O'neill, J.

MEMORANDUM

Plaintiff Thomas George has sued Northern Health Facilities, Inc., d/b/a/ Dresher Hill Health and Rehabilitation Center, Northern Health Facilities, Inc. and Extendicare Health Services, Inc., alleging negligence, corporate negligence, negligence per se and vicarious liability. Plaintiff alleges that employees of the Dresher Hill Health and Rehabilitation Center failed to follow certain provisions of 42 C.F.R. § 483, a regulation regarding the care of nursing home patients promulgated under the Omnibus Budget Reconciliation Act of 1987 (OBRA)*fn1 , and that their failure to follow the relevant provisions led plaintiff to suffer several injuries. Pl.'s Compl. ¶¶ 43, 49. Plaintiff also alleges that defendant violated the Pennsylvania Healthcare Facilities Act (PHCFA) causing plaintiff to suffer injuries. Pl.'s Compl. ¶¶ 15-17. Presently before me are defendant's motion to dismiss plaintiff's claims for negligence per se, as are set forth in counts 3, 7 and 11 the complaint, plaintiff's response and defendant's reply. I will grant defendant's motion.

BACKGROUND

Plaintiff was admitted to Dresher Hill on October 26, 2009. Pl.'s Compl. ¶ 1. Upon entering Dresher Hill, plaintiff was diagnosed with, among other things, hypertension, ambulatory dysfunction and right lower leg deep vein thrombosis. Pl.'s Compl. ¶ 36. At the time of his admittance, plaintiff did not suffer from pressure wounds or skin care issues, was properly nourished and did not require a Foley catheter. Pl.'s Compl. ¶¶ 37-38. Plaintiff claims that due to defendant's neglect and failure to provide appropriate care he developed pressure wounds and gangrene. Pl.'s Compl. ¶ 39. He also asserts that he was unnecessarily catheterized while at Dresher Hill. Pl.'s Compl. ¶ 40. Additionally, plaintiff avers that defendant failed to address a problem with his bladder and bowel properly. Pl.'s Compl. ¶ 41. Plaintiff contends that because defendant improperly cared for him he contracted a urinary tract infection and sepsis which required treatment at a hospital. Id. Plaintiff's alleged injuries include, but are not limited to, gangrene, malnutrition, anemia, pressure wounds and sepsis. Pl.'s Compl. ¶ 43.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008), quoting Twombly, 550 U.S. at 556.

The Court of Appeals has recently made clear that after Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1955, 173 L. Ed. 2d 868 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal, 129 S. Ct. at 1949. The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal: "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 210-11, quoting Iqbal, 129 S. Ct. at 1950. The Court explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id., citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Iqbal, 129 S. Ct. at 1949.

DISCUSSION

In order for Medicare/Medicaid approved nursing homes to receive federal financial assistance, OBRA requires state legislatures to establish regulations that comply with the FNHRL. See Frantz v. HCR Manor Care Inc., 64 Pa. D. & C. 4th 457, 463 (Pa. Ct. Com. Pl. 2003). Pennsylvania complies with OBRA through its regulations under PHCFA. Id. Plaintiff argues that he may allege claims for negligence per se based on violations of OBRA and the PHCFA as separate causes of action. Defendant argues that negligence per se is not a separate cause of action because the provisions of OBRA and the PHCFA are not designed to protect plaintiff and neither provide a private right of action.*fn2

"[U]nder certain circumstances, the traditional standard of care in a negligence action . . . may be superceded, and the standard set forth in a particular statute . . . enacted by the legislature may, instead, provide the applicable standard of care." Maresca v. Mancall, No. 01-5355, 2003 WL 21652170, at *5 (E.D. Pa. June 20, 2003). Accordingly, "Pennsylvania recognizes that a violation of a statute or ordinance may serve as the basis for negligence per se." Wagner v. Anzon, Inc., 684 A.2d 570, 574 (Pa. Super. Ct. 1996), citing White by Stevens v. Se. Pa. Transp. Auth., 518 A.2d 810, 816 (Pa. Super. Ct. 1996).*fn3 "The doctrine of negligence per se provides that a violation of a statute 'establishes both duty and breach of duty where an individual violates an applicable statute designed to prevent a public harm.'" Gigli v. Palisades Collection, L.L.C., No. 3:CV-06-1428, 2008 WL 3853295, at *18. "While the violation of a statute or regulation may provide the basis for a finding of negligence per se, it is well established that not every breach of a statutory duty imposes liability." Chaflin v. Beverly Enterprises, Inc., 745 F. Supp. 1117, 1119 (E.D. Pa. 1990). "The court will not adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively . . . to impose upon the actor the performance of a service which the state or any subdivision of it undertakes to give the public." Id. at 1120 (E.D. Pa. 1990), citing Restatement (Second) of Torts, § 288(c). See also Wagner, 684 A.2d, at 574 (Pa. Super. Ct. 1996) ("[A] court will not use a statute or regulation as the basis of negligence per se where the purpose of the statute is to 'secure to individuals the enjoyment of rights or privileges to which they are entitled only as members of the public.'") quoting Centolanza v. Lehigh Valley Dairies, 658 A.2d 143, 150 (Pa. Super. Ct. 1993). In order to assert a claim of negligence per se based on the violation of a regulation or statute, a plaintiff must demonstrate that "(1) the statute or regulation clearly applies to the conduct of the defendant, (2) the defendant violated the statute or regulation, (3) the violation of the statute proximately caused the plaintiff's injuries and (4) the statute's purpose is, at least in part, to protect the interest of the plaintiff individually, as opposed to the public." Mest v. Cabot Corp. 449 F.3d 502, 518 (3d Cir. 2006).

To decide whether plaintiff can state a claim for negligence per se, I will first "determine if the purpose of OBRA is, at least in part, to protect the interest of a group of individuals, as opposed to the public generally." Goda v. White Cliff Leasing P'ship, 62 Pa. D. & C. 4th 476, 483 (Pa. Com. Pl. 2003). To discern whether a statute was designed to protect an individual rather than the public at large, the Pennsylvania Supreme Court follows section 286 of the Restatement (Second) of Torts:

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

(a) to protect a class of persons which includes the one whose ...


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