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Kenneth Massey v. Fair Acres Geriatric Center and Delaware County

July 24, 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 civil rights action under 42 U.S.C. § 1983 for violations of the Federal Nursing Home Reform Amendments (FNHRA), 42 U.S.C. § 1396r. Jurisdiction is federal question, 28 U.S.C. § 1331, and supplemental, 28 U.S.C. § 1367(a).

On March 23, 2012, partial summary judgment was entered in favor of defendants (order, doc. no. 46; see memorandum, doc. no. 45, for factual background and case history). Plaintiff now moves for reconsideration (doc. no. 50) and defendants again move for summary judgment (doc. no. 49). Fed. R. Civ. P. 56, 59(e). Summary judgment must be entered for defendants and against plaintiff.

Plaintiff Kenneth Massey is the administrator of the estate of his mother, Bernice Massey, deceased, a former resident of Fair Acres Geriatric Center, a facility in Lima, Pennsylvania, owned and operated by defendant Delaware County.*fn1

According to the complaint filed July 16, 2009, Fair Acres' employees on June 24, 2007 permitted Mrs. Massey, to consume solid food, which she was physically unable to ingest. As a result, she choked, was hospitalized, and died on July 17, 2007. The gravamen is that defendants deprived Mrs. Massey of "the right to quality care and . . . to be free from avoidable accidents" and caused her "untimely" and "preventable" death. See Count I ¶¶ 23, 32, 43; Count II ¶ 50. Also alleged is that "violations of FNHRA's dictates were so consistent and pervasive that they amounted to a custom and policy at Fair Acres." Count II ¶ 49.

As the parties agree, the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S.A. §§ 8501-8564, bars any claim based on common law negligence. See pl. answer, doc. no. 50 at 1- 2; pl. br., doc. no. 50-1 at 1-4; pl. br., doc. no. 42-1 at 14 n.2; def. br., doc. no. 49-2 at 4-5; def. br., doc. no. 39-1 at 9-10. The Pennsylvania Tort Claims Act grants governmental immunity to local agencies such as Fair Acres, and no statutory exception is present here. 42 Pa.C.S.A. §§ 8541, 8542, 8545; see Morris v. Montgomery County Geriatrics & Rehab. Ctr., 459 A.2d 919 (Pa. Commw. 1983) (wrongful death and survival action against county-owned nursing facility barred).

While plaintiff either as administrator or for himself concedes any right to recover for negligence, the complaint sets forth claims under Pennsylvania's wrongful death and survival statutes, 42 Pa.C.S.A. §§ 8301 (Count I) and 8302 (Count II), respectively. Each Count also incorporates a claim under 42 U.S.C. §§ 1983 and 1988. Plaintiff contends that under Grammer v. John J. Kane Reg'l Ctrs.--Glen Hazel, 570 F.3d 520 (3d Cir. 2009), cert. denied, 130 S. Ct. 1524 (U.S. 2010), all claims set forth in the complaint "arise from" a viable § 1983 action, and Pennsylvania's wrongful death and survival statutes "serve only as a mechanism for recovery and do not create their own causes of action." See pl. answer, doc. no. 50 at 1-2; pl. br., doc. no. 50-1 at 2-3.

FNHRA gave Mrs. Massey federal rights that could be remediated by a § 1983 claim. Grammer, 570 F.3d at 525 & n.2, 532. However, our Court of Appeals in Grammer did not consider whether FHNRA violations that injure or cause the death of a nursing home resident may alone form the basis for wrongful death or survival remedies in Pennsylvania. Inasmuch as a § 1983 action may challenge treatment received at a nursing home that violated FNHRA, the evidentiary record here compels a ruling that no viable state or federal claim has been stated or made out.

42 U.S.C. § 1983 Action

Section 1983 is "a vehicle for imposing liability against anyone who, under color of state law, deprives a person of 'rights, privileges, or immunities secured by the Constitution and laws.'" Grammer, 570 F.3d at 525 (quoting Maine v. Thiboutot, 448 U.S. 1, 4-6 (1980)). Only persons actually deprived of their individual civil rights can redress these rights. See McCain v. Episcopal Hosp., 350 Fed. App'x 602, 604 (3d Cir. 2009); McCain v. Abraham, 337 Fed. App'x 141, 142 (3d Cir. 2009); O'Malley v. Brierley, 477 F.2d 785, 789 & n.2 (3d Cir. 1973).

The complaint depicts that Mrs. Massey had standing during her lifetime to assert violations of FNHRA. Plaintiff Kenneth Massey has no personal claim under FNHRA, but has standing to assert her civil rights in a representative capacity as the administrator of her estate. Baffa v. Black, 481 F. Supp. 1083, 1085-86 (E.D. Pa. 1979)(Pollak, J.) (citing Denman v. Wertz, 372 F.2d 135, 135-36 (3d Cir.) (plaintiff must sue as executor of decedent's estate and not in his own right), cert. denied, 389 U.S. 941 (1967)).

However, a § 1983 claim is time-barred because the complaint was filed on July 16, 2009, more than two years after the choking incident on June 24, 2007. Under Pennsylvania's governing two-year statute of limitations for personal injury actions, 42 Pa.C.S.A. § 5524(2),*fn2 the time period began to run from the day of injury, 42 Pa.C.S.A. § 5502(a).*fn3 See Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa. 2011) (generally, period begins to run "when an injury is inflicted and the corresponding right to institute a suit for damages arises"); accord Matharu v. Muir, 29 A.3d 375, 381 (Pa. Super. Ct. 2011).

Plaintiff's position is that the § 1983 claim was timely filed within two years from Mrs. Massey's death as required by the Medical Care Availability and Reduction of Error Act (MCARE), 40 P.S. §§ 1303.101-1303.910. MCARE creates a special statute of repose for wrongful death and survival actions arising from a health care provider's medical professional liability:

If the claim is brought under 42 Pa.C.S.A. § 8301 (relating to death action) or 8302 (relating to survival action), the action must be commenced within two years after the death . . . . 40 P.S. § 1303.513*fn4 ; see Matharu, 29 A.3d at 382 (a "statute of repose"). "While a statute of limitations merely bars a party's right to a remedy, a statute of repose completely abolishes and ...


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