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IN THE COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO THE ESTATE OF SUSAN K. BIRCH, by and

through Jessica Doyle, Administrator, c/o Eadie Hill Trial Lawyers

3100 East 45th Street, Suite 400 Cleveland, Ohio 44127

Plaintiff, vs.

HERITAGE (OHIO) LEASING CO., LLC dba Copley Health Center

c/o Statutory Agent ACFB Inc. 200 Public Sq., Ste 2300 Cleveland, Ohio 44114

Also Serve at:

Copley Health Center 155 Heritage Woods Dr. Copley, OH 44321 and

HEALTH CARE FACILITY MANAGEMENT LLC, DBA COMMUNICARE FAMILY OF COMPANIES

c/o Statutory Agent ACFB Inc. 200 Public Sq., Ste 2300 Cleveland, Ohio 44114

and

COMMUNICARE HEALTH SERVICES, INC.

c/o Statutory Agent ACFB Inc. 200 Public Sq., Ste 2300 Cleveland, Ohio 44114

and

COMMUNICARE, INC.

c/o Statutory Agent ACFB Inc. 200 Public Sq., Ste 2300

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. JUDGE COMPLAINT

JURY DEMAND ATTACHED AFFIDAVIT OF MERIT ATTACHED

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Plaintiff, for its Complaint against the above-captioned Defendants, states and avers upon information and belief as follows:

INTRODUCTION

1. This is a negligence and recklessness action involving the Defendants’ failure to provide adequate care to their resident/patient Susan Birch at Copley Health Center, a 130-bed rehabilitation and skilled nursing facility located at 155 Heritage Woods Drive, Copley, OH 44321 (the “Facility”) resulting in severe injuries, bedsores, infection, and death to Susan Birch.

2. Plaintiff requests a trial by jury.

3. Plaintiff seeks punitive damages in an amount necessary to punish the above-named Defendants and deter Defendants from engaging in similar conduct in the future.

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

5. Jessica Doyle is the duly appointed administrator of the Estate of Susan Birch.

6. An affidavit of merit is attached to this Complaint.

DEFENDANTS

Cleveland, Ohio 44114 and

FIRELANDS MSTR LSCO, LLC c/o Statutory Agent ACFB Inc. 200 Public Sq., Ste 2300 Cleveland, Ohio 44114

Defendants.

) ) ) ) ) ) ) ) ) ) )

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7. Defendant Heritage (Ohio) Leasing Co., 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 Copley Health Center (the “Facility” or “Copley Health”) a nursing home located at 155 Heritage Woods Drive, Copley, OH 44321 that is a part of the Communicare Family of Companies chain of nursing homes and assisted living facilities.

8. Defendant Communicare, Inc. (hereinafter “Communicare”) is an Ohio for-profit corporation carrying on its principal place of business in Cincinnati, Ohio that holds itself out to the public as a provider of medical care, including but not limited to, rehabilitation and skilled nursing care, through its agents, operative and/or employees and provides nursing services to more than 75 nursing home facilities throughout Ohio, Indiana, Pennsylvania, Virginia and Missouri, including Austintown Healthcare Center.

9. Defendant Communicare Health Services, Inc. (“Communicare

Healthcare”) is an Ohio for-profit corporation carrying on its principal place of business in Cincinnati, Ohio that holds itself out to the public as a provider of medical care, including but not limited to, rehabilitation and skilled nursing care, through its agents, operative and/or employees and provides nursing services to more than 75 nursing home facilities throughout Ohio, Indiana, Pennsylvania, Virginia and Missouri, including Austintown Healthcare Center.

10. Defendant Health Care Facility Management LLC, (“HFM”) is an Ohio for-profit limited liability company carrying on its principal place of business in Cincinnati, Ohio that holds itself out to the public as a provider of medical care, including but not limited to, rehabilitation and skilled nursing care, through its agents, operatives and / or

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employees and provides nursing services to more than 75 nursing home facilities throughout Ohio, Indiana, Pennsylvania, Virginia, and Missouri, including Austintown Healthcare Center and does business under the fictitious name “Communicare Family of Companies.”

11. Defendant FIRELANDS MSTR LSCO, LLC is an Ohio for-profit limited liability company that holds itself out to the public as a provider of medical care, including but not limited to, rehabilitation and skilled nursing care, through its agents, operatives and / or employees and provides nursing services to more than 75 nursing home facilities throughout Ohio, Indiana, Pennsylvania, Virginia, and Missouri, including Austintown Healthcare Center.

12. Defendants Copley Health, Communicare, HFM, Communicare Healthcare, Firelands own, lease, manage, operate, and control their facilities, including Austintown Healthcare Center, under a single operational control structure doing business as “Communicare” and “Communicare Family of Companies,” or are shell companies formed by one or more of the other companies to hold licenses, employ care providers, or other services under the total control of, and without any separate mind, will, or existence separate from, those other companies. These Defendants employ, manage, and direct the care and service providers who were responsible for Susan Birch’s care, treatment, and safety at Copley Health Center at all times he was a resident there and are to be referred to collectively as the “Defendants.”

VICARIOUS LIABILITY

13. The Defendants employ the care providers who were responsible for ensuring Susan Birch’s care and safety.

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14. The Defendants manage, control, and/or employ the nursing staff at Copley Health Center.

15. Susan Birch and her family looked to the Defendants for care based upon their representations.

16. 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), including medical directors, visiting physicians, and nurse practitioners contracted with any of the Defendants and / or provided to residents as default or house care providers.

JURISDICTION AND VENUE

17. 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.

18. Venue is proper in this County under Civil Rule 3(B) because, among other reasons: (a) one or more of the Defendants—Communicare, Communicare Healthcare, and HFM—reside, domicile, carry on their principal place of business, or practice medicine/nursing, in this county.

COMMON FACTS

19. Defendants hold themselves out to the public as providers of residential care, long-term nursing home, specialty hospitals, assisted living, and memory care services.

20. Defendants’ for-profit model means their primary goal is to maximize profit, measured by revenues minus expenses.

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21. 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.

22. Defendants exercise actual control over each 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.

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 each facility, and even the name of each facility;

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

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23. As the result of this control, Defendants make decisions that affect the day-to-day care of Facility residents, such as the resources available for providing nursing staff and care to residents like Susan Birch, meaning they are responsible for the foreseeable harm that results from careless decisions while voluntarily exercising that control.

24. Defendants failed to ensure, through their operational, budgetary, consultation and managerial decisions and actions, that the Facility were sufficiently staffed to meet the individual needs of its residents, including Susan Birch.

25. Defendants engaged in a systemic practice to understaff the facilities to maximize profits at the expense of its residents’ care.

26. Defendants’ systemic understaffing of the facility resulted in a “two-star” ranking for Staffing on the Medicare.gov Nursing Home Compare website (“below average”).

27. This lack of sufficient staff directly resulted in Susan Birch not receiving basic and necessary services to prevent, among other things, neglect leading to injury, and temporary and/or permanent disability, ultimately resulting in a decreased quality of life for Susan Birch and ongoing medical care and treatment that is expected to continue into the foreseeable future.

28. The Defendants also exercise operational and managerial control, and apply this profits-over-safety model, at more than 75 nursing home facilities throughout Ohio, Indiana, Pennsylvania, Virginia, and Missouri.

Reporting Data – Nursing Home

29. The Defendants are 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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30. The data Defendants 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.

31. This data is certified correct by the Defendants and / or submitted under penalty of perjury and / or civil or criminal penalties.

32. Medicare uses some of this data submitted by the Defendants 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)

33. Every nursing home receiving Medicare or Medicaid funding—the clear majority of nursing homes, including the Facility and others operated and / or controlled by the Defendants—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.

34. Nursing homes like Facility 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.

35. 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.

36. 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

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any facility at a specific time is available by totaling the residents’ Resource Utilization Group scores from their Minimum Data Set evaluations.

37. 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.”

38. 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.

Systemic Understaffing and Susan Birch’s Care

39. Defendants failed to ensure, through their operational, budgetary, consultation and managerial decisions and actions, that Facility was sufficiently staffed to meet the individual needs of Susan Birch during the periods that he was a resident at the Facility.

40. The Defendants engaged in a systemic practice to understaff the Facility to maximize profits at the expense of its residents’ care.

41. This lack of sufficient staff directly resulted in Susan Birch not receiving basic and necessary services, assessments, and interventions, among other things, being turned or repositioned frequently to offload pressure resulting in severe, permanent Stage IV bedsores to his coccyx and heels causing pain, disability, and the need for ongoing medical treatment, including multiple surgical procedures.

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Defendants Fail to Provide Adequate Care to Susan Birch Causing Permanent Injuries

42. Susan Birch was a 69-year-old woman admitted to Copley Health Center on July 23, 2019 for short-term rehabilitative care.

43. On July 17, 2019—5 days before going to Copley Health Center—Susan was hospitalized for a UTI.

44. She was immobile for the duration of her hospital stay and was Susan in the Akron City Hospital ICU on November 4, admitted to Copley to 2019. increase her physical strength and mobility.

45. Susan was expected to return home after physical therapy.

46. When Copley Health Center accepted Susan into their care, they knew she was at risk of developing skin breakdowns. Despite this knowledge, Copley’s staff allowed Susan to develop a pressure ulcer on her coccyx within a little over a week of her admission to the facility.

47. Susan’s sacral pressure ulcer was infected by the beginning of September 2019, less than two months after her admission.

48. Because of the severity of Susan’s pressure ulcer, she was only able to undergo physical therapy for a few weeks. She became bedbound and, as a result, her health steadily declined as the wound deteriorated.

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49. On November 3, 2019, Susan, only at the insistence of her daughter due to Copley’s minimization of Susan’s condition, was transported and admitted to Akron City Hospital’s ICU and

diagnosed with a Stage IV sacral decubitus ulcer and septic shock.

50. On November 11, 2019, Susan died from septic shock resulting from a “non-healing” decubitus ulcer, persistent diarrhea, and clostridium difficile colitis (“C. Diff.”).

51. Defendants should have prevented Susan’s bedsores by frequently repositioning and turning her in bed and providing basic hygiene care to ensure that she was clean, dry, and turned.

52. The Defendants’ systemic understaffing, inadequate training, and poor management of the Facility led to poor care of its resident Susan Birch, causing her to suffer from, among other things:

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a. Skin wounds (pressure ulcers or bedsores) from lack of positioning and turning, failure to provide timely and adequate assessments, failure to provide timely and adequate perineal care, failure to maintain clean and dry skin, failure to treat, and failure to timely obtain wound care;

b. Infections of those wounds from inadequate cleanliness and wound care;

c. Urinary tract infections from inadequate cleanliness and infection controls;

d. Systemic inflammation and organ damage from sepsis, a life-threatening condition that arises when the body’s response to infection causes injury to its own tissues and organs, caused by those infections;

e. Failing to respond to call lights for Susan Birch and other residents in a timely way; and

f. Failing to keep accurate, complete, and organized clinical records for Susan Birch;

53. As a result of her injuries, Susan Birch has suffered frequent physical and / or emotional pain, temporary and / or permanent disabilities, and death.

54. The injuries and disabilities suffered by Susan Birch were avoidable and preventable with the exercise of ordinary care by Defendants.

FIRST CAUSE OF ACTION (NEGLIGENCE / RECKLESSNESS)

41. Plaintiff incorporates all other paragraphs of this Complaint as if fully rewritten herein.

42. Susan Birch depended on the Defendants, and their respective nursing and medical staff, for medical and nursing care, treatment, evaluation, and assistance.

43. The Defendants had a duty to provide proper care and treatment to Susan Birch and to avoid causing injury to Susan Birch.

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44. The Defendants, including their medical and nursing staff, failed to provide proper care and treatment to Susan Birch, which they knew or should have known she required, and their negligence was the direct and proximate cause of the injuries that Susan Birch suffered.

45. The Defendants’ failure to provide proper care and treatment included, but is not limited to:

a. Choosing to put inadequate prevention and response interventions in place to prevent injuries;

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

c. Choosing to provide improper training to staff members regarding resident monitoring, assessment, response, and treatment;

d. Choosing to provide too few, and / or underqualified nursing staff members for resident needs at each facility to protect and provide adequate care to residents like Susan Birch;

e. Choosing to not provide accurate, adequate, or timely information to Susan Birch’s family;

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

g. Failing to ensure the rights and safety of its residents, including Susan Birch, as required by Ohio and federal regulations;

h. Choosing not to provide appropriate care to Susan Birch while she was a resident of Copley Health Center; and

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

46. These actions constituted a conscious disregard for Susan Birch’s rights and safety with a great probability of causing substantial harm from this misconduct, by which—through heedless indifference to the consequences—the Defendants or their staff

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disregarded a substantial and unjustifiable risk that the health care provider's conduct was likely to cause, at the time those services or that treatment or care were rendered, constituting an unreasonable risk of injury, death, or loss to person or property, or intentional misconduct or willful or wanton misconduct. The Defendants were aware of the great probability of the harm that could result from their willful, wanton, and / or reckless misconduct.

47. The Defendants’ disregard for the rights and safety of residents like Susan Birch created circumstances under which it became substantially certain that serious injuries would result, entitling Plaintiff to awards for compensatory and punitive damages.

48. The Defendants are directly liable for their own willful, wanton, and / or reckless misconduct.

49. The Defendants are also vicariously liable for their employees’ and agents’ willful, wanton, and / or reckless misconduct.

50. The Defendants and their medical and nursing staff provided care to Susan Birch that fell below the standard of care expected of medical care and from physicians and nursing home organizations, under the same or similar circumstances.

51. The departures from the standard of care is evidenced by violations of sections of Federal Regulations, 42 C.F.R. § 483 et seq., and Ohio Administrative Code sections, OAC 3701-17 et seq., and the Ohio Resident’s Rights Law, R.C. section 3721.13.

52. As a direct and proximate result of the negligent and/or willful, wanton and/or reckless actions of the Defendants described above, Susan Birch sustained permanent injury and loss including, but not limited to, conscious pain and suffering,

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disability, and significant medical expenses and expects to continue to sustain such losses into the foreseeable future.

53. WHEREFORE, Plaintiff demands judgment against the Defendants, jointly, in an amount more than Twenty-Five Thousand Dollars ($25,000.00), for conscious pain and suffering, medical expenses, loss of enjoyment, together with costs of suit, attorney’s fees and expenses, punitive and exemplary damages, and any other relief to which the Plaintiff may be entitled to and/or that the court finds is appropriate and/or equitable.

SECOND CAUSE OF ACTION

(NURSING HOME RESIDENT RIGHTS VIOLATION R.C. 3721.13)

54. Plaintiff incorporates all other paragraphs of this Complaint as if fully rewritten herein.

55. The Defendants, directly or through their employees or agents, violated Susan Birch’s rights as a resident of the Copley Health Center facility, as enumerated in R.C. 3721.13, including, but not limited to, the right to adequate and appropriate medical treatment and nursing care.

56. These violations constitute negligence and give rise to a statutory cause of action.

57. As a direct and proximate result of Defendants’ violations of R.C. 3721.13, Susan Birch endured conscious pain and suffering and disability, incurred medical expenses, and was otherwise harmed.

58. WHEREFORE, Plaintiff demands judgment against the Defendants, jointly, in an amount more than 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.

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THIRD CAUSE OF ACTION (WRONGFUL DEATH)

59. Plaintiff incorporates all other paragraphs of this Complaint as if fully rewritten herein.

60. Plaintiff brings this Cause of Action pursuant to Ohio’s Wrongful Death Statute, Ohio Revised Code section 2125 et seq., for the benefit of Susan Birch’s heirs and next of kin who have suffered loss and damage due to Susan Birch’s wrongful and untimely death.

61. As a direct and proximate result of the unreasonable conduct described above, Susan Birch sustained physical injuries that caused his untimely and wrongful death.

62. Susan Birch’s 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 Susan Birch’s support, services, society, and companionship.

63. WHEREFORE, Plaintiff demands judgment against the Defendants,

jointly, in an amount more than Twenty-Five Thousand Dollars ($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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A TRIAL BY JURY IS HEREBY DEMANDED.

/s/ Michael A. Hill

MICHAEL A. HILL (0088130) WILLIAM B. EADIE (0085627)

EADIE HILL TRIAL LAWYERS

3100 E 45 St., Suite 218 Cleveland, Ohio 44127

(216) 777-8856 (o) | (216) 216-716-2502 (f) michael.hill@eadiehill.com

william.eadie@eadiehill.com

www.eadiehill.com

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AFTAB PUREVAL

HAMILTON COUNTY CLERK OF COURTS

COMMON PLEAS DIVISION

ELECTRONICALLY FILED

September 14, 2020 09:38 PM

AFTAB PUREVAL

Clerk of Courts

Hamilton County, Ohio

CONFIRMATION 985176

A 2003214

THE ESTATE OF SUSAN K

BIRCH

vs.

HERITAGE OHIO LEASING

CO LLC DBA COPLEY

HEALTH CEN

FILING TYPE: INITIAL FILING (IN COUNTY) WITH JURY

DEMAND

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