hamilton county, ohio the estate of holly marie … · 4. plaintiff requests a trial by jury. 5. an...

IN THE COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO

THE ESTATE OF HOLLY MARIE HOWES, by Sandra L. Howes, Estate Representative c/o Eadie Hill Trial Lawyers 3100 East 45th St., Suite 400 Cleveland, Ohio 44127 Plaintiff, vs. BLUE ASH HEALTHCARE, LLC DBA BLUE ASH CARE CENTER AKA COOPER’S TRACE NURSING AND REHABILITATION c/o Paul Bergsten 544 Enterprise Dr. Lewis Center, Ohio 43035

and HILLSTONE HEALTHCARE, INC. c/o ACFB Incorporated 200 Public Sq., Suite 2300 Cleveland, Ohio 44114

and HC CONSULTING/MANAGEMENT, LLC c/o Paul Bergsten 8302 Crescent Dr. Lewis Center, Ohio 43035

and AMERIWOUND, LLC c/o Samson Fixler 5800 Landerbrook Dr. #100 Mayfield Heights, Ohio 44124

and ROBERT BOGLI, D.O. 100 River Valley Blvd. New Richmond, Ohio 45157

and

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO. JUDGE COMPLAINT

With Jury Demand

Affidavit of Merit Attached

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1. Now comes Plaintiff, the Estate of Holly Howes, through Sandra Howes, its

duly appointed Representative, and for Plaintiff’s Complaint against Blue Ash Healthcare

LLC dba Blue Ash Care Center aka Cooper’s Trace Nursing and Rehabilitation, Hillstone

Healthcare Inc., HC Consulting/Management LLC, AmeriWound LLC, Robert Bogli,

D.O., Stephanie Siegrist, NP, Arvind Modawal, M.D, and Arvind Modawal, M.D., Inc.

(collectively “Defendants”) states and avers upon information and belief as follows:

INTRODUCTION

2. This is a negligence, recklessness, and wrongful death action involving

Holly Howes’ care at Cooper’s Trace Nursing and Rehabilitation located at 4900 Cooper

Road, Cincinnati, Ohio 45242 that led to her untimely and wrongful death on July 16,

2018.

3. Holly Howes was a 41-year-old female residing at Cooper’s Trace Nursing

and Rehabilitation. She had a history of multiple sclerosis that limited her mobility and

STEPHANIE C. SIEGRIST, NP 399 W. Galbraith Rd. #209 Cincinnati, Ohio 45215

and ARVIND MODAWAL, M.D. 7700 University Ct. #3100 West Chester Township, Ohio 45069

and ARVIND MODAWAL, M.D., INC. 8259 Paddington Ct. West Chester, Ohio 45069 Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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made her dependent on Cooper’s Trace Nursing and Rehabilitation’s staff for medical care

and treatment, including for assistance with her activities of daily living. While a resident

of Cooper’s Trace Nursing and Rehabilitation, Holly Howes developed numerous infected

Stage IV bedsores, infected bone (osteomyelitis), malnutrition, and sepsis that ultimately

caused her death.

4. Plaintiff requests a trial by jury.

5. An Affidavit of Merit is attached as Exhibit 1.

6. Sandra Howes is the duly appointed Representative of The Estate of Holly

Marie Howes.

7. Plaintiff brings this action on behalf of The Estate of Holly Marie Howes,

the next of kin of Holly Howes, including her husband (John Howes), children (Dylan,

Isaac, Cameron, Chase, and John), siblings (Sandra Dixon, Beverly Wilkins, Heidi

Wagner, Crystal Cox, James Pulskamp, and William Cox), and anyone else entitled to

compensation for the harms and losses sustained as the result of the negligence,

recklessness, and other wrongful conduct described herein or discovered during

litigation.

8. Plaintiff seeks punitive damages in an amount necessary to punish the

above-named Defendants and deter the Defendants from engaging in similar conduct in

the future.

9. Plaintiff requests attorneys’ fees and the costs of this litigation.

10. Plaintiff sent letters to Defendants prior to filing this lawsuit pursuant to

R.C. 2305.113.

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DEFENDANTS

11. Hillstone Healthcare, Inc. is a foreign for-profit corporation, incorporated

in Delaware with its principle place of business in Lewis Center, Ohio that holds itself out

to the public as a provider of medical and nursing care, including but not limited to,

rehabilitation and skilled nursing care, through its agents, operatives and / or employees

and provides nursing services to nursing home facilities in Ohio, including exercising

ownership and operational and managerial control over the following Ohio facilities:

Cooper’s Trace Nursing and Rehabilitation 4900 Cooper Road Cincinnati, Ohio 45242 Hillstone Blossom Healthcare 370 E. Howard Street Willard, OH 44890 Blue Creek Healthcare 11239 Waterville Street Whitehouse, OH 43571 Bowerston Hills Nursing & Rehabilitation 9076 Cumberland Road Bowerston, OH 44695 Colonial Nursing Center 201 Buckeye Street Rockford, OH, 45882 Crystal Care of Coal Grove 813 ½ Marion Pike Coal Grove, OH 45638 Crystal Care of Franklin Furnace 4734 Gallia Pike Franklin Furnace, OH, 45629

Danridge's Burgundi Manor Maranatha Drive Youngstown, OH 44505

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Garden Court Nursing & Rehabilitation 4911 Covenant House Drive Dayton, OH 45426 Harmony Center for Rehabilitation & Healing 164 Office Park Drive Xenia, OH, 45662 Heritage Manor Nursing Center 24 North Hamilton Street Minster, OH, 45865 Hospitality Center for Rehabilitation & Healing 1301 North Monroe Drive Minster, OH, 45865

Isabelle Ridgeway Care Center 1520 Hawthorne Ave Columbus, OH 43203

Hudson Elms Nursing Center 563 W. Streetsboro Road Hudson, OH 44236

Lima Rehab & Nursing Center 599 Shawnee Street Lima, OH 45804

Rocky River Healthcare of West Park 4650 Rocky River Drive Cleveland, OH 44135

Roselawn Gardens Nursing & Rehabilitation 11999 Klinger Avenue Alliance, OH, 44601

Toledo Healthcare 2051 Collingwood Boulevard Toledo, OH, 43620

White Oak Manor 1926 Ridge Ave Warren, Ohio 44484

12. Defendant HC Consulting/Management, LLC is an Ohio for-profit company

that holds itself out to the public as a provider of medical and nursing care, including but

not limited to, rehabilitation and skilled nursing care, through its agents, operatives and

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/ or employees and does business as and / manages Cooper’s Trace Nursing and

Rehabilitation.

13. Defendant Blue Ash Healthcare LLC is an Ohio for-profit company that

holds itself out to the public as a provider of medical and nursing care, including but not

limited to, rehabilitation and skilled nursing care, through its agents, operatives and / or

employees and does business as Cooper’s Trace Nursing and Rehabilitation.

14. Hillstone Healthcare, Inc, HC Consulting/Management, LLC, and Blue Ash

Healthcare, LLC employ, manage, and direct the care and service providers who were

responsible for Holly Howes’s care, treatment, and safety at Cooper’s Trace Nursing and

Rehabilitation while she was a resident there.

15. Defendant AmeriWound, LLC is a foreign for-profit corporation, with a

statutory agent who can receive process in Ohio, that holds itself out to the public as a

provider of medical professionals who assess, diagnose, treat, monitor, and heal patient

wounds at various facilities, including Cooper’s Trace Nursing and Rehabilitation.

16. Defendant Robert Bogli, D.O. was, at all relevant times, a licensed physician

authorized to practice medicine in the State of Ohio who was acting within the course and

scope and in furtherance of his / her employment with AmeriWound, LLC and / or HC

Consulting/Management, LLC and /or Blue Ash Healthcare, LLC and / or Hillstone

Healthcare, Inc. and provided medical care and treatment to Holly Howes while she was

a patient of Cooper’s Trace Nursing and Rehabilitation.

17. Defendant Stephanie Siegrist, was, at all relevant times, a licensed nurse

practitioner authorized to practice nursing in the State of Ohio who was acting within the

course and scope and in furtherance of his / her employment with AmeriWound, LLC and

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/ or HC Consulting/Management, LLC and / or Blue Ash Healthcare, LLC and / or

Hillstone Healthcare, Inc. and provided medical care and treatment to Holly Howes while

she was a patient of Cooper’s Trace Nursing and Rehabilitation.

18. Defendant Arvind Modawal, M.D. was, at all relevant times, a licensed

physician authorized to practice medicine in the State of Ohio who was acting within the

course and scope and in furtherance of his / her employment with Arvind Modawal, M.D.

& Associates, Inc. and provided medical care and treatment to Holly Howes while she was

a patient of Cooper’s Trace Nursing and Rehabilitation.

19. Defendant Arvind Modawal, M.D., Inc. is an Ohio for-profit corporation

that holds itself out to the public as a provider of medical professionals who assess,

diagnose, treat, monitor, and heal patients at various facilities, including Cooper’s Trace

Nursing and Rehabilitation, and employs Arvind Modawal, M.D.

20. Holly Howes and her family looked to the Defendants for care based upon

their representations.

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21. The Defendants are vicariously liable for the negligent actions of their

employees and agents (respondeat superior and agency liability) and / or independent

contractors (Clark v. Southview agency by estoppel).

JURISDICTION AND VENUE

22. This Court has Jurisdiction over the Defendants because, among other

things, all Defendants do, and all times relevant did, reside or have their domicile in the

State of Ohio, purposefully avail themselves of the laws of the state of Ohio, and / or

commit tortious acts within the state of Ohio.

23. Venue is proper in this County under Civil Rule 3 because, among other

reasons: (a) Defendants reside, domicile, carry on their principal place of business, or

Cooper’s Trace Nursing and Rehabilitation is an underperforming nursing home in Cincinnati, Ohio that is part of Hillstone Healthcare’s corporate chain of nursing homes. Cooper’s Trace Nursing and Rehabilitation is rated by Medicare as 1-Star, meaning it is

considered “much below average’ in staffing, quality measures, and inspections.

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practice medicine / nursing, in this County; and / or (b) part of the claim for relief arose

in this County, in which county Holly Howes was injured and died.

COMMON FACTS

24. Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HC

Consulting/Management, LLC hold themselves out to the public as providers of long-

term nursing home, skilled nursing, and memory care services.


Consulting/Management, LLC’s for-profit model means their primary goal is to maximize

profit, measured by revenues minus expenses.

26. For nursing homes generally, the largest individual revenue source is

residents (filling beds), and the largest individual expense is the cost of employing nursing

staff to provide care to those residents. This creates a financial incentive to take on more

residents with greater care needs than the nursing staff can properly care for, a violation

of federal nursing home regulations regarding staffing levels.


Consulting/Management, LLC manage, control, and / or employ the nursing staff at

Cooper’s Trace Nursing and Rehabilitation.


Consulting/Management, LLC exercise actual control over the facility’s management and

operations to maximize profits, including control over facility-level:

a. Policies and procedures, including regarding resident care;

b. Finances, including obtaining credit and loans, guaranteeing loans (both at the corporate and individual facility level), maintaining funds and banking, obtaining, owning, and leasing facility land and buildings, and capital expenditures.

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c. Budgeting, including controlling the amount of funds available for staffing facilities;

d. Personnel management, including hiring and firing, or having authority to hire and fire, the supervisory and management personnel in each facility;

e. Supervision of management, care providers, and staff in each facility, including compliance with federal and state regulations;

f. Employment, such as setting pay scales, shifts, and time and vacation policies;

g. Systems for training, monitoring, and supervising staff;

h. Medical record systems and management;

i. Financial control systems, including budgeting and payment processing;

j. Marketing, including setting the image and expectations residents and their family should expect at the facility, and even the name of the facility;

k. Reporting procedures, including reporting to Medicare as to individual resident care and facility-wide issues.

29. As the result of this control, Defendants Blue Ash Healthcare, LLC,

Hillstone Healthcare, Inc., HC Consulting/Management, LLC make decisions that affect

the day-to-day care of Cooper’s Trace Nursing and Rehabilitation residents, such as the

resources available for providing nursing staff and care to residents like Holly Howes,

meaning they are responsible for the foreseeable harm that results from careless decisions

while voluntarily exercising that control.

Reporting Data

30. Cooper’s Trace Nursing and Rehabilitation is required to report significant

amounts of data to the federal agency that oversees operations of nursing homes receiving

federal or state funding, the Centers for Medicare and Medicaid Services, or “Medicare.”

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31. The data Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc.,

HC Consulting/Management, LLC submit to Medicare regarding its facility includes data

on its residents (numbers, care needs, and bed days), its finances, and its nurse and

nursing aide staffing levels as compared to resident care needs.

32. This data is certified correct by the Defendants a Blue Ash Healthcare, LLC,

Hillstone Healthcare, Inc., and HC Consulting/Management, LLC and / or submitted

under penalty of perjury and / or civil or criminal penalties.

33. Medicare uses some of this data submitted by Defendants Blue Ash

Healthcare, LLC, Hillstone Healthcare, Inc., HC Consulting/Management, LLC to

produce its nursing home 5-star rating system, also known as “Nursing Home Compare.”

Nursing Home Resident Care Needs and Staffing Levels (MDS and RUG Scores)

34. Every nursing home receiving Medicare or Medicaid funding—the clear

majority of nursing homes, including Cooper’s Trace Nursing and Rehabilitation and

others operated and / or controlled by Defendants Blue Ash Healthcare, LLC, Hillstone

Healthcare, Inc., HC Consulting/Management, LLC—is required to provide detailed

information regarding the health status, care and treatment, and services provided to

each resident in the facility using a questionnaire called the Minimum Data Set, or

MDS. This evaluation is done for all nursing home residents regardless of whether their

care is being paid for by Medicare.

35. Nursing homes like Cooper’s Trace Nursing and Rehabilitation are required

to evaluate every resident using the Minimum Data Set questionnaire shortly after the

time of admission, every 90 days thereafter, when a resident has a significant

improvement or decline in health (physical, mental, or psychosocial), and upon discharge.

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36. Based on this Minimum Data Set, each resident’s individual care needs

(called “acuity level”) are assigned into a group signifying how much nursing or staff care

the resident requires, called a Resource Utilization Group score, or RUG score.

37. Each resident’s Resource Utilization Group score is contained in section Z

of their Minimum Data Set evaluations, meaning the total care needs of the residents in

any facility at a specific time is available by totaling the residents’ Resource Utilization

Group scores from their Minimum Data Set evaluations.

38. Medicare has commissioned and made available to every nursing home

studies and data showing the number of minutes of nursing and nursing aide care a

person at a specific RUG level should be expected to require, which Medicare calls

“expected staffing.”

39. When these Resource Utilization Group scores are combined for all

residents in a nursing home facility, the nursing home knows exactly how many minutes

of nursing and nursing aide care should be provided, on average, to meet the expected

care needs of their residents.

Misleading Advertising

40. In an effort to persuade the families of patients with memory care disorders

to become customers, Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc.,

and HC Consulting/Management, LLC make promises to the families of such potential

residents that they will provide a level of care that they know they are incapable of

providing, including touting their expertise in patient safety issues concerning residents

requiring skilled nursing care.

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41. The intent and outcome of this misleading practice is to cause residents,

their families, and external care providers to believe the nursing facility is much better

staffed than it is.


Consulting/Management, LLC do not inform families of potential residents of the

following:

a. Staffing Ratings

i. Cooper’s Trace Nursing and Rehabilitation is a 1-star facility

according to Medicare’s staffing ratings, meaning that it has

the worst rating for nursing care staffing possible.

b. Registered Nurse Staffing

i. The national and state average for registered nursing time

available in a particular day for each resident is 40 and 38

minutes, respectively. This means that for the average

nursing home facility in Ohio or across the country, if you take

the total amount of hours registered nurses are paid to work

during a given day and divide that time by the number of

residents in the facility, there would be approximately 50

minutes of time registered nurses could spend with each

resident per day.

ii. But at Cooper’s Trace Nursing and Rehabilitation there is only

on average 18 minutes of registered nursing time available per

day for each resident.

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iii. The amount of registered nursing time available at Cooper’s

Trace is actually less than 18 minutes per resident each day

because these figures take into account all time nurses are

being paid—including breaks, vacations, holidays, and

personal time off—and is not limited to the time they are

actually at Cooper’s Trace providing nursing care.

c. Nursing Assistant and Aide Staffing

i. Cooper’s Trace Nursing and Rehabilitation also falls far short

in the amount of nursing assistant or aide time available for

its residents. The national and state average for nursing

assistant or nursing aide time per resident is 2 hours and 19

minutes (national) and 2 hours and 6 minutes (Ohio) per day.

This means that if you take the total amount of time all

nursing assistants or aides worked per day and divided it by

the total number of nursing home residents in the facility, the

state and national average is close to two-and-a-quarter hours

of nursing assistant / aide time available for each resident per

day.

ii. But at Cooper’s Trace Nursing and Rehabilitation there is only

1 hour and 37 minutes of available nursing assistant / aide

time available per resident per day—approximately half the

national average.

d. In addition to having severely deficient staffing levels, Defendants

Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HC

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Consulting/Management, LLC also fail to mention that the amount

they pay those staff members is nearly 30-40% less than the industry

average meaning not only is Cooper’s Trace severely understaffed,

the available staff is underpaid and overburdened.

43. The intent and outcome of this misleading practice is to drastically limit the

budget and overhead needed to run a safe facility in order to maximize profits and syphon

resources at the expense of patient safety.

Systemic Understaffing and Holly Howes’s Care


Consulting/Management, LLC failed to ensure, through their operational, budgetary,

consultation and managerial decisions and actions, that Cooper’s Trace Nursing and

Rehabilitation was sufficiently staffed to meet the individual needs of Holly Howes.


Consulting/Management, LLC engaged in a systemic practice to understaff its nursing

home facility to maximize its profits at the expense of its residents’ care.

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46. This lack of sufficient staff directly resulted in Holly Howes not receiving

basic and necessary services to prevent, among other things, neglect leading to bed sores,

sepsis, and her death.

Centers for Medicare and Medicaid Services, the Federal Agency that regulates nursing homes, has determined that Cooper’s Trace Nursing and Rehabilitation is 1-

Star or Much Below Average overall as a nursing home and for staffing

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Defendants’ Negligence and Recklessness with Holly Howes


Consulting/Management, LLC received Holly Howes as a nursing home resident in July

2017.


Consulting/Management, LLC agreed to accept Holly Howes into their facility and

provide care to her in exchange for monetary payment.

49. Holly Howes had a disorder called multiple sclerosis

50. Holly Howes was 41 years old when these events happened.

51. Defendants knew that Holly Howes had multiple sclerosis.

According to Centers for Medicare and Medicaid Services, Cooper’s Trace Nursing and Rehabilitation is much below Ohio and National averages for staffing in all

categories that are measured, including nurse, nurse aide, and therapy time.

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52. People with multiple sclerosis are known to be at an increased risk of skin

breakdowns and pressure sores because of limitations in movement.

53. Because of these numerous risk factors and prior falling incidents, Holly

Howes required additional supervision and precautions to prevent additional falls and

fall-related injuries.

54. Holly Howes was suffered numerous, large infected bedsores while under

the care of Cooper’s Trace, including Stage 4 ischial ulcer, sacral ulcer, and ulcers to her

hips, buttocks, and heels.

A bedsore found on Holly’s buttocks on May 10, 2018 at Cooper’s Trace Nursing and Rehabilitation.

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55. While a resident of Cooper’s Trace Nursing and Rehabilitation, Holly Howes

suffered osteomyelitis—an infection of the bone—in her sacrum and trochanter because

of the infected bedsores.


was permitted to suffer sepsis, a potentially deadly inflammatory response to an infection.


was permitted to become protein-calorie malnourished, which both causes bedsores and

prevents healing.

A photo of the pressure ulcer on Holly’s buttocks on May 18, 2018 at Cooper’s Trace Nursing and Rehabilitation.

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58. Holly Howes was prescribed methadone for her severe pain. Defendants

withheld and failed to deliver her medication causing her to be in severe, unnecessary

pain.

59. Holly Howes was permitted to fall several times, including on April 20,

2018, when she was allowed to fall and remain on the floor for approximately 5 hours

before Cooper’s Trace Nursing and Rehabilitation staff tended to her.

60. Co-Defendants Robert Bogli, D.O., Stephanie Siegrest, NP, and Arvind

Modawal, M.D. were medical and nursing providers responsible for providing medical

and nursing care within the standard of care while Holly Howes was a resident and who

did, for the reasons stated previously and as discovered in this lawsuit, failed to deliver

care to Holly Howes that was consistent with the standard of care.

61. Holly Howes suffered mental and physical pain suffering as a direct and

proximate result of Defendants’ failure to provide adequate care.

62. Holly Howes died on July 16, 2018 as a direct and proximate result of

Defendants’ failure to provide adequate care.

FIRST CAUSE OF ACTION (SURVIVORSHIP / NEGLIGENCE / RECKLESSNESS)

63. Plaintiff incorporates all other paragraphs of this Complaint as if fully

rewritten herein.

64. Holly Howes depended on the Defendants, and their respective nursing and

medical staff, for medical and nursing care, treatment, evaluation, and assistance.

65. The Defendants, including their medical and nursing staff, failed to provide

proper care and treatment to Holly Howes, which they knew or should have known she

required, resulting in her injury and death.

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66. The Defendants’ failure to provide proper care and treatment included, but

is not limited to:

l. Choosing to put inadequate prevention and response interventions in place to prevent falling and injuries, including deaths;

m. Choosing to provide inadequate resident observation, supervision, and monitoring;

n. Choosing to provide improper training to staff members regarding fall prevention and response;

o. Choosing to provide too few, and / or underqualified nursing staff members for the resident needs at the facility to protect and provide adequate care to residents like Holly Howes;

p. Choosing to not provide accurate, adequate, or timely information to Holly Howes’s family;

q. Choosing to violate state and federal regulations governing care and staffing levels in nursing home facilities by which residents like Holly Howes are a member of the class of persons intended to be protected from injuries like she suffered;

r. Choosing not to timely report to a physician significant changes in Plaintiff’s Decedent’s condition;

s. Choosing not to carry out the instructions of Plaintiff’s Decedent’s physician;

t. Choosing not to adequately, timely and consistently prevent, assess, and treat Plaintiff’s Decedent’s risk for falls;

u. Choosing not to adequately, timely and consistently prevent, assess, and treat Plaintiff’s Decedent’s risk for wounds;

v. Choosing not to adequately, timely and consistently prevent, assess, and treat Plaintiff’s Decedent’s risk for infections;

w. Choosing not to timely transfer Plaintiff’s Decedent to a facility that could provide adequate care;

x. Choosing not to have and/or implement appropriate policies and procedures regarding the prevention, assessment and treatment of residents at risk for falls;

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y. Choosing not to have and/or implement appropriate policies and procedures regarding the prevention, assessment and treatment of residents at risk for wounds;

z. Choosing not to have and/or implement appropriate policies and procedures regarding the prevention, assessment and treatment of residents at risk for infections;

aa. Choosing not to timely carry out and follow standing orders, instructions and protocol regarding the prevention of falls;

bb. Choosing not to timely carry out and follow standing orders, instructions and protocol regarding the prevention of wounds;

cc. Choosing not to timely carry out and follow standing orders, instructions and protocol regarding the prevention of infections;

dd. Choosing not to have and/or implement appropriate policies and procedures regarding the prevention, assessment and treatment of residents at risk for falls;

ee. Choosing to withhold and / or otherwise not provide medications that were ordered for pain; and

ff. Such other acts or omissions described in this Complaint or discovered during litigation.

67. The Defendants and their medical and nursing staff provided care to Holly

Howes that fell below the standard of care expected of medical care and nursing home

organizations, under the same or similar circumstances.

68. The departures from the standard of care included violating sections of

Federal Regulations, 42 C.F.R. § 483 et seq., and Ohio Administrative Code sections, OAC

3701-17 et seq.

69. As a direct and proximate result of the negligence described above, Holly

Howes sustained permanent injury and loss including, but not limited to, conscious pain

and suffering, disability, and her untimely and wrongful death.

70. WHEREFORE, Plaintiff demands judgment against the Defendants, jointly,

in an amount more than Twenty-Five Thousand Dollars ($25,000.00), for conscious pain

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and suffering, loss of enjoyment of life, together with costs of suit, attorney’s fees and

expenses, punitive and exemplary damages, and any other relief to which the decedent

may be entitled to and / or that the court finds is appropriate and / or equitable.

SECOND CAUSE OF ACTION (WRONGFUL DEATH)


rewritten herein.

72. Plaintiff brings this Cause of Action pursuant to Ohio’s Wrongful Death

Statute, Ohio Revised Code section 2125 et seq., for the benefit of Holly Howes’s heirs and

next of kin who have suffered loss and damage due to Holly Howes’s wrongful and

untimely death.

73. As a direct and proximate result of the negligence / recklessness described

above, Holly Howes sustained physical injuries that caused her untimely and wrongful

death.

74. Plaintiff and Holly Howes’s additional next-of-kin suffered damages as set

forth in the Ohio Wrongful Death statute, including mental anguish and grief, medical

and funeral expenses, and loss of decedent’s support, services, society and

companionship.


in an amount more than $25,000.00 to compensate the decedent’s next of kin and heirs

at law, together with costs of suit, attorney’s fees and expenses, exemplary damages, and

any other relief the court finds is appropriate and / or equitable.

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THIRD CAUSE OF ACTION (NURSING HOME RESIDENT RIGHTS VIOLATION R.C. 3721.13)


rewritten herein.

77. Defendants, directly or through their employees or agents, violated Holly

Howes’s rights as a resident of the Defendants’ facilities, as enumerated in Ohio Revised

Code section 3721.13, including, but not limited to, the right to adequate and appropriate

medical treatment and nursing care.

78. These violations constitute negligence per se and give rise to a statutory

cause of action.

79. As a direct and proximate result of Defendants’ violations of R.C. 3721.13,

Holly Howes endured conscious pain and suffering and disability, incurred medical

expenses, suffered her untimely death, and was otherwise harmed.


in an amount in excess of $25,000.00, together with costs of suit, attorney’s fees and

expenses, punitive and exemplary damages, and any other relief to which the court finds

is appropriate and / or equitable.

FOURTH CAUSE OF ACTION (VIOLATION OF R.C. 3701.74(C))

81. Plaintiff brings this Cause of Action against Blue Ash Healthcare, LLC,

Hillstone Healthcare, Inc., and HC Consulting/Management, LLC only.


rewritten herein.

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83. Sandra Howes is the duly appointed Administrator of the Estate of Holly

Howes.

84. As the estate representative, she is entitled by law to receive the medical

records of Holly Howes upon request from the facility, in the format of her choice.

85. Sandra Howes first requested medical records from Cooper’s Trace Nursing

and Rehabilitation in February 2019 and requested those records in accordance with the

Health Information Technology for Economic and Clinical Health (HITECH) Act. 45 CFR

164.524(c)(2)(ii).

86. The Estate of Holly Howes’ legal representatives contacted Cooper’s Trace

for medical records following that initial request on:

a. March 27, 2019

b. March 28, 2019

c. March 30, 2019

d. April 1, 2019

e. April 3, 2019

f. April 4, 2019

g. April 8, 2019

h. April 18, 2019

i. April 23, 2019

j. April 24, 2019

k. May 8, 2019

l. May 13, 2019

m. May 15, 2019

n. May 16, 2019

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o. May 17, 2019

p. May 18, 2019

q. June 17, 2019

87. On those various occasions, The Estate of Holly Howes’ representatives

spoke to various individuals at Cooper’s Trace Nursing and Rehabilitation concerning

these medical records requests, including Cierra Arrington and Heather Cheeseman.

88. Defendants have refused to comply with Plaintiff’s requests for medical

records in violation of R.C. 3701.74 and HITECH.

89. Defendants’ delay in providing these medical records has been

unreasonable, unnecessary, and unjustified.

90. WHEREFORE, Plaintiff demands judgment against Defendants Blue Ash

Healthcare, LLC, Hillstone Healthcare, Inc., and HC Consulting / Management, LLC.,

jointly, in an amount more than $25,000.00 to compensate the decedent’s next of kin and

heirs at law, together with costs of suit, attorney’s fees and expenses, exemplary damages,

previously requested medical records, and any other relief the court finds is appropriate

and / or equitable.

FIFTH CAUSE OF ACTION (FRAUD)

91. Plaintiff brings this Cause of Action against Blue Ash Healthcare, LLC,

Hillstone Healthcare, Inc., and HC Consulting/Management, LLC only.


rewritten herein.

93. Defendants concealed facts concerning their staffing levels, pay, and the

amount of care they were actually capable of providing at the facility.

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94. Not only did Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare,

Inc., and HC Consulting/Management, LLC conceal this information, they publicly and

privately represented that they provide exceptional care to induce the family of Holly

Howes and other potential customers to place their loved ones in their care and custody.

95. These inducements were made falsely, with knowledge of their falsity, or

with such utter disregard and recklessness as to whether they were true or false that

knowledge may be inferred with the intent of misleading Holly Howes’ family and other

potential customers into placing their loved ones in the care and custody of Cooper’s Trace

Nursing and Rehabilitation.

96. Holly Howes, her family, and family members of other potential customers

reasonably relied on Defendants’ representations and concealments regarding the degree

of care they provide.

97. The result of these inducements and concealments was that Holly Howes’

family, and the family of numerous other residents, allowed their loved one to be placed

in Defendants’ Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., and HC

Consulting/Management, LLC’s facility.

98. As a direct and proximate result of Defendants Blue Ash Healthcare, LLC,

Hillstone Healthcare, Inc., and HC Consulting/Management, LLC’s actions,

representations, and concealments, Holly Howes suffered conscious pain and suffering

and death.

99. As a direct and proximate result of Defendants Blue Ash Healthcare, LLC,

Hillstone Healthcare, Inc., and HC Consulting/Management, LLC’s action,

representations, and concealments, Holly Howes’ next-of-kin have experienced harms

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and losses as a result of her death, including those damages set forth in Ohio’s wrongful

death statute— R.C. 2125.02.

100. WHEREFORE, Plaintiff demands judgment against the Defendants Blue

Ash Healthcare, LLC, Hillstone Healthcare, Inc., and HC Consulting / Management, LLC.,

jointly, in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00), together

with costs of suit, attorney’s fees and expenses, punitive and exemplary damages, and any

other relief to which the court finds is appropriate and/or equitable.

A TRIAL BY JURY IS HEREBY DEMANDED

/s/ Michael A. Hill

WILLIAM B. EADIE (0085627) MICHAEL A. HILL (0088130) EADIE HILL TRIAL LAWYERS 3100 East 45th St., Suite 400 Cleveland, Ohio 44127 (216) 777-8856 (o) | (216) 716-2502 (f) [email protected] [email protected] www.eadiehill.com Counsel for Plaintiff

ST ATE OF OHIO

CUYAHOGA COUNTY

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AFFIDAVIT OF MERlT

Affiant MARK SHOAG, M.D., having been first duly sworn, states:

1. I am an adult, with no known disability preventing my truthful testimony, and have personal knowledge of the matters contained within this affidavit.

2. I am a full-time practicing physician in the fields of Geriatric and Internal Medicine, licensed in the state of Ohio, board certified in Internal Medicine, and a medical director of a long-term acute care hospital, spending more than 50% of my professional time providing direct patient care.

3. Through my specialized knowledge, skill, training, experience, and education, I am familiar with the standard of care applicable to the medical and nursing care and treatment that was provided to Holly Howes in 2017and 2018 when fell multiple times and developed bed sores leading to osteomyelitis, sepsis and death- while a skilled nursing and rehabilitation resident atBlue Ash Care Center of Blue Ash, Ohio.

4. I have reviewed all medical records reasonably available to the Estate of Holly Howesconcerning the allegations of negligence causing her death.

5. To a reasonable degree of medical probability, it is my opinion that the medical and nursing care and treatment provided to Holly Howesby medical and nursing staff at Blue Ash Care Center, including by Robert Bogli, D.O., Stephanie Siegrist, N.P., and Arvind Modawal, M.D. deviated from the established standard of care and the breach caused injury to Holly Howes, including herfalls, bed sores, sepsis,and death.

FURTHER AFFIANT SA YETH NAUGHT.

MARK SHOAG, M.D.,

SWORN TO BEFORE ME and subscribed in my presence this 3 day of July 2019.

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hamilton county, ohio the estate of holly marie … · 4. plaintiff requests a trial by jury. 5. an...

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