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Estate of Almira Marie Will, et al v. Neshaminy Manor

March 21, 2013


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


Currently pending before the Court is a motion for summary judgment filed by Defendants Neshaminy Manor Long Term Care Facility and Neshaminy Manor, Inc. For the following reasons, the motion will GRANTED.


Plaintiffs filed their Complaint on August 31, 2011, against Neshaminy Manor Long Term Care Facility and Neshaminy Manor, Inc. This matter initially was assigned to District Court Judge Juan R. Sanchez. On October 4, 2012, the parties consented to the exercise of jurisdiction by a United States Magistrate Judge under 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, and the matter was referred to me. (Doc. No. 70).

The parties have engaged in motion practice, pleading amendments, and stipulations between the parties.*fn1 As a result, the claims remaining in this matter are those currently pending against Neshaminy Manor Long Term Care Facility and Neshaminy Manor, Inc. Those claims are: violations pursuant to 42 U.S.C. §1983 for deprivation of civil rights under the Federal Nursing Home Reform Amendments ("FNHRA") (Count I), derivative claims for wrongful death and survival under the FNHRA (Counts II and III), and a state law breach of contract claim (Count IV).

On July 30, 2012, following completion of discovery, Defendants filed the instant Motion for Summary Judgment along with a Statement of Undisputed Material Facts. (Doc. No.'s 48, 49). On August 13, 2012, Plaintiffs filed a Response and a Counter-Statement of Undisputed Material Facts. (Doc. No. 50); see also (Doc. No.'s 51-55). On August 17, 2012, Plaintiffs filed an amended brief in support of their Response. (Doc. No. 56). On August 20, 2012, Defendants filed a Reply. (Doc. No. 57). Accordingly, the matter is now ripe for disposition.


A. The Parties

The plaintiffs are the Estate of Almira Marie Will ("Ms. Will"), by and through Lauretta

M. Notwick ("Ms. Notwick"), Executrix of the Estate, and Lauretta M. Notwick, individually (collectively "Plaintiffs"). Ms. Will passed away on June 5, 2010. From August, 2008 until her death in June, 2010, Ms. Will had been a resident at Neshaminy Manor Long Term Care. Kozlowski Dep. at 23. Neshaminy Manor Long Term Care is a nursing home and one of the named defendants in the instant dispute. Ms. Notwick is the daughter of Ms. Will and also is the executrix of Ms. Will's estate.*fn3

The defendants are Neshaminy Manor, Inc. And Neshaminy Manor Long Term Care (collectively "Neshaminy" or "Defendants"). Neshaminy Manor Long Term Care is a nursing facility owned and operated by Bucks County, Pennsylvania. Neshaminy Manor, Inc. is a nonprofit Pennsylvania corporation owned and operated by Bucks County. See Am. Compl. at ¶ 7.

B. The operation and structure of Neshaminy.

Bucks County operates Neshaminy through its Board of Commissioners ("The Board"). See Kozlowski Dep. at 31. The Board entered into a "Management Agreement" with Genesis Eldercare Network Services, Inc. ("Genesis"), pursuant to which Genesis agreed to undertake various management responsibilities. See Pl. Resp., Ex. A (a copy of the "Management Agreement"). While Genesis was the manager of Neshaminy, the Board remained the ultimate decision-making authority under the express terms of the agreement. Id. at Art. 1.1, ¶ 1.1. The Management Agreement required Genesis to appoint an administrator to serve as a consultant for all of Neshaminy's operations. Id. Bucks County agreed to provide Genesis with any relevant County policies, and Genesis agreed to implement the policies and procedures that were necessary to run Neshaminy. See id. If Genesis wished to implement any of their own policies or utilize any of their own manuals, they were required to furnish them to the Board for their review and approval. Id. at Art. 1, ¶ 1.16.

Genesis appointed Evelyn Kozlowski ("Ms. Kozlowski") as the administrator responsible for oversight of Neshaminy's operations. See Kozlowski Dep. at 30. Ms. Kozlowski testified that Neshaminy's nursing policies were developed by an "interdisciplinary team" who, in turn, furnished said policies to Ms. Kozlowski. Kozlowski Dep. at 21. Ms. Kozlowski reviewed the policies to ensure they complied with relevant laws and regulations, and then sent them back for final approval by the interdisciplinary team.*fn4 Id. The approved policies were passed along to Neshaminy's Director of Nursing, Wendy Trachtenberg, for implementation. Id. at 28-29. The responsibility for ensuring that the policies and procedures were followed rested with the employees of Neshaminy. Id. at 28.

The nursing staff at Neshaminy was responsible for a majority of the routine care provided at Neshaminy. Genesis made hiring recommendations for the nursing staff, but the staff remained employees of the County. See Seamans Dep. at 9. Ms. Kozlowski testified that Genesis did not have day-to-day interactions with the employees, nor did Genesis train or supervise the nursing staff.*fn5 Kozlowski Dep. at 26. If a resident made any type of complaint, the Neshaminy "routine" was to pass along the complaint to Ms. Kozlowski.*fn6 Id. at 23.Ms. Kozlowski testified that she did not "have any dealings in terms of handling complaints or concerns by [Ms. Will's] family." Id. at 23.

In addition to hiring Genesis as a manager, Bucks County hired Dr. Moyer, an independent contractor, as the Neshaminy Medical Director. See Def.'s St. of Undisp. Facts, Ex. 21 (a copy of the "Consulting Contract"); see also Moyer Dep. at 46. As Medical Director, Dr. Moyer was responsible for supervising the care that Neshaminy's residents received.*fn7 Moyer Dep. at 48-49. Dr. Moyer was the attending physician for Ms. Will during the majority of her stay at Neshaminy. Id. at 43, 58.

Bucks County also hired Wendy Trachtenberg ("Ms. Trachtenberg") as the Director of Nursing. see Def. St. of Undisp. Facts, Ex. 19 (copy of the "Director of Nursing Job Description Policy"). Ms. Trachtenberg was responsible for the overall care of the residents, ensuring that Neshaminy followed state and federal regulations, and ensuring that the nurses complied with the Nursing Department Policy and Procedure Manual. Trachtenberg Dep. at 8-11.

Neshaminy was separated into six "units," containing either long-term or short-term residents.*fn8 Seamans Dep. at 20-21. Each member of the nursing staff was assigned to a particular unit. Donna Seamans ("Ms. Seamans") was the head nurse of "Unit A," where Ms. Will eventually resided. Ms. Seamans had general nursing duties and was the supervisor of the other nurses in her unit.*fn9 Seamans Dep. at 24. Neshaminy also employed a social worker, Elizabeth Doerr, who provided support to residents and their families. Doerr Dep. at 7-8.

C. Ms. Will's stay at Neshaminy.

1. Ms. Will is admitted to Neshaminy.

Beginning in 2005, Ms. Will began living with her daughter, Ms. Notwick. In 2006, Ms. Will was diagnosed with end-stage oxygen-dependent chronic obstructive pulmonary disease ("COPD").*fn10 Notwick Dep. at 46. On August 5, 2008, Ms. Will fell at a supermarket, and was treated for a broken hip at Doylestown Hospital. On August 18, 2008, Ms. Will was admitted to Neshaminy Manor as a short-term resident while she recovered from her hip injury.

Prior to her admission, Ms. Will had been treated with oxygen for her COPD; she had received oxygen twenty four hours a day since her 2006 COPD diagnosis.*fn11 Notwick Dep. at 46-47. Additionally, Ms. Will had a history of the following serious health conditions and treatments at the time of her admission: atherosclerotic cardiovascular disease with hypertension and paroxysmal atrial fibrillation, osteoarthrosis, hypothyroidism, carotid artery stent, postinflammatory pulmonary fibrosis, unspecified anemia, gastrointestinal bleeding, colon carcinoma, spinal stenosis, restless leg syndrome and some memory loss. ...

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