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Kenneth Massey v. Fair Acres Geriatric Center and

March 23, 2012

KENNETH MASSEY
v.
FAIR ACRES GERIATRIC CENTER AND DELAWARE COUNTY



The opinion of the court was delivered by: Ludwig, J.

MEMORANDUM

This is a survivor and wrongful death benefits action. Jurisdiction is federal question, 28 U.S.C. § 1331. The complaint alleges that on June 24, 2007, defendants, a skilled nursing facility and the County that owns and operates it,*fn1 permitted plaintiff's decedent to consume solid food, which she was physically unable to ingest. As a result, she choked, was hospitalized, and, on July 17, 2009, died. The gravamen of the claim is that defendants' conduct violated her rights under the Federal Nursing Home Reform Amendments, 42 U.S.C. § 1396r et seq. (FNHRA). These rights are enforceable under 42 U.S.C. § 1983. Grammar v. John J. Kane Regional Centers, 570 F.3d 520, 532 (3d Cir. 2009).

On July 22, 2010, defendants' motion to dismiss the complaint was denied and the parties engaged in extensive discovery. Defendants now move for summary judgment.*fn2 For the following reasons, summary judgment will be granted in defendants' favor and against plaintiff on Count I and on the § 1983 action contained in Count II of the complaint. It will be denied as to the state law survival claim.

The record*fn3 reflects the following: On January 16, 2003, decedent Bernice Massey*fn4 was admitted to Fair Acres for long-term care. Her medical history included a variety of conditions including gastro-esophageal reflux disorder. Deposition of Ruby Dickinson, p. 97, Exhibit 3 to defendant's motion. She was wheelchair-bound, but able to propel herself within the facility. Deposition of Patrice Todd, p. 29, Exhibit 4 to defendants' motion. While a resident at Fair Acres, she required assistance with her activities of daily living, including monitoring of her diet. On March 9, 2006, a physician directed that she receive "no sandwiches, no bread, lemon ice with lunch and dinner" with close supervision during oral intake. Dickinson N.T. p. 114-15, Exhibit 3 to defendants' motion. Additionally, her diet was changed to "mechanical soft, with pureed vegetables." Id., p. 101. A written care plan was prepared in the event of swallowing difficulties, which included staff assistance while eating and aspiration precautions. Swallowing Precaution Care Plan, Exhibit 8 to defendants' motion.

On April 4, 2006, her speech therapist recommended continued mechanical soft diet with pureed fruits and vegetables; 1:1 assist at meals; alternate liquids/solids; aspiration precautions; no bread, sandwiches or ground chicken. A physician agreed with these recommendations and wrote an appropriate order. On May 22, 2007, her diet was downgraded from mechanical soft to pureed. Swallowing Precautions Care Plan, Exhibit 8 to defendants' motion.

On June 24, 2007, Patrice Todd, LPN, fed her a pureed lunch, and gave her one-onone assistance. Todd N.T., p. 37, Exhibit 4 to defendants' motion. Also, she was fed at a separate table so she would not have access to other residents' meals. Id., p. 39-40. After lunch, the room was cleaned and all food and trays removed. At 2:30 that afternoon, she asked Sharona Brown, CNA for a dollar. Statement of Sharona Brown, attached to Incident Report, Exhibit 10 to defendants' motion. She appeared to be fine at that time. Id.

At 4:20 p.m., Gretchen Shelton, a nurse, was passing out medication when she was told that Bernice Massey "did not look right." Incident Report, Exhibit 10 to defendants' motion. She found her choking, called 911, and began a Heimlich Maneuver. Id. Massey lost consciousness at that time. Continued use of the Heimlich Maneuver and finger sweeps revealed that she had been choking on white bread and pink-colored lunchmeat. Id.

Emergency medical personnel resuscitated Massey and transported her to the hospital, but she never regained consciousness. Id. She was placed and remained on life support until July 17, 2007, when after her family discontinued the support she died. Riddle Memorial Hospital Discharge Summary, Exhibit 11 to defendants' motion. The Death Certificate lists "complications of asphyxia due to obstruction of airway by food bolus, with anoxic encephalopathy" as the cause of death. Death Certificate, Exhibit 12 to defendants' motion.

Count I of the complaint sets forth a claim under Pennsylvania's Wrongful Death Act, 42 Pa.C.S.A. § 8301and a corresponding § 1983 action alleging a deprivation of federal rights enumerated in FNHRA, 42 U.S.C. § 1396r. Count II alleges a state law survival action under Pennsylvania's Survival Act, 42 Pa.C.S.A. § 8302 and a corresponding § 1983 action, again for deprivation of rights accorded under FNHRA.*fn5

Wrongful Death Action and § 1983

Defendants contend, and plaintiff concedes, that the wrongful death act claim under state law is barred by the Pennsylvania Political Subdivision Tort Claims Act.

As to the § 1983 actions, plaintiff lacks standing to file such a claim to enforce rights under FNRHA flowing from his mother's wrongful death. In wrongful death actions as embodied in Count I, the rights of the survivors, not the decedent, are at issue.*fn6 Here, the survivors have no rights under FNHRA arising from Massey's death because they were not nursing home residents. Grammar, 570 F.3d at 530-31 (rights are conferred on nursing home residents). Plaintiff does not oppose this aspect of defendant's motion.*fn7

Survival Action and § 1983

According to defendants' motion, both actions are barred by the applicable ...


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