United States District Court, W.D. Virginia, Charlottesville Division
SUSAN KALAN, as Administrator of the Estate of June Mickey, deceased, Plaintiff,
HEALTH CENTER COMMISSION OF ORANGE COUNTY, VIRGINIA, a/k/a ORANGE COUNTY NURSING HOME COMMISSION t/a DOGWOOD VILLAGE OF ORANGE COUNTY HEALTH AND REHABILITATION, et al., Defendants.
Glen E. Conrad Chief United States District Judge
Susan Kalan, as administrator of the estate of June Mickey,
filed this action against defendants Health Center Commission
of Orange County, Virginia a/k/a Orange County Nursing Home
Commission t/a Dogwood Village of Orange County Health and
Rehabilitation ("Dogwood Village") and Orange
County, Virginia (the "County"), as well as
Randolph V. Merrick, M.D. and Randolph V. Merrick, M.D., P.C.
(collectively, "Dr. Merrick"). Kalan brings claims
under 42 U.S.C. § 1983 and state law. The case is
presently before the court on Dogwood Village's motion to
dismiss the complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. For the following reasons,
the court will grant the motion.
following facts, taken from plaintiffs complaint, are
accepted as true for purposes of the motion to dismiss. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Dogwood Village is a county-run health center facility in
Orange County, Virginia. June Mickey was admitted to Dogwood
Village on January 26, 2012. She required nursing home care
due to several medical conditions, including "senile
dementia, hypertension, atrial fibrillation, GERD, chronic
pain due to osteoarthritis, failure to thrive, and a previous
fall." Compl. ¶ 28. At the time of her admission,
Dogwood Village's assessment form indicated that Mickey
needed assistance with walking, used a wheelchair, and had a
fall risk of "10." Id. ¶ 30.
Defendant Dr. Merrick also signed an order that required
Mickey to be transferred with the help of a Dogwood Village
staff member, a gait belt, and a walker. The complaint
alleges that, from January of 2012 until September of 2012,
Mickey's movements were mostly independent- i.e., without
assistance from staff or use of any equipment.
suffered no less than six separate falls while she resided at
Dogwood Village. On October 11, 2012, Mickey fell out of her
wheelchair in the presence of Dogwood Village staff. Her care
plan was not revised to include additional precautions, and
she continued to move without assistance. On November 19,
2012, Mickey fell in her room while trying to walk to the
bathroom on her own. Dr. Merrick then ordered Dogwood Village
staff to instruct Mickey as to "grippy" socks and
being more cognizant of her surroundings. Id. ¶
40. Mickey's fall assessment was not revised or updated.
February 13, 2013, Dr. Merrick changed Mickey's transfer
status from "assisted with one person, gait belt and a
walker" to "independent." Id. ¶
44. However, Mickey continued to receive assistance with her
movements from February of 2013 to June of 2013. Her fall
risk was subsequently increased to "16."
Id. ¶45. By June of 2013, Mickey's care
plan indicated that she required significant assistance with
daily activities and had "generalized debility, impaired
mobility, and occasional urinary and bowel
incontinence." Id. ¶ 46.
August 30, 2013, Mickey fell from her bed. In response, Dr.
Merrick ordered Dogwood Village staff to provide Mickey with
a defined perimeter mattress. Mickey's fall risk was also
elevated to "18." Id. ¶ 48. On
September 23, 2013, Mickey fell in her room, while she was
returning from the bathroom. She attempted to lift herself up
by holding onto her nightstand, but fell again. After this
fall, Susan Kalan was advised by Dogwood Village staff that
Mickey had received a defined perimeter mattress and
anti-rollbacks on her wheelchair.
November 30, 2013, Mickey fell while attempting to sit in her
wheelchair without assistance. According to the complaint,
the brakes on her wheelchair were not locked at the time. Dr.
Merrick ordered Dogwood Village staff to place anti-rollbacks
on Mickey's wheelchair, although Kalan was previously
advised that this had already been done. Mickey's fall
risk was upgraded to "19." Id. ¶ 52.
Dr. Merrick's notes from January of 2014 and February of
2014 indicated that Mickey was independent with transfers.
Furthermore, Mickey's use of a defined perimeter mattress
was discontinued on February 15, 2014. However, the complaint
claims that Dogwood Village's records dated March 5, 2014
indicated that Mickey did not walk on her own and required
March 19, 2014, a nursing aide at Dogwood Village found
Mickey lying on the floor of her room. Mickey's left arm
was hyper-extended under her and blood pooled around her
head. At the time of her fall, Mickey's bed and
wheelchair were not equipped with fall alarms that would have
alerted Dogwood Village staff that she was moving. Mickey
suffered a deep laceration above her left eyebrow, a small
laceration on her left elbow, and swelling on her left
mandible. She also complained of neck, shoulder, and hip
was transported to Culpeper Regional Hospital and put under
sedation. Hospital staff closed the laceration on
Mickey's forehead with sutures. A CT scan revealed that
Mickey had "scattered subarachnoid blood in the frontal
lobes and a fracture of the left posterior maxillary sinus,
which perhaps extended to the lateral orbital wall."
Id.¶62. X-rays also revealed that Mickey had an
"impacted distal radial facture of her left wrist[,
]" a "comminuted left femoral neck fracture of her
left hip, " and "left pleural effusion."
Id. Medical staff determined that Mickey required
wrist and hip surgery. However, Mickey's condition
deteriorated, and she was admitted to the intensive care
unit. A second CT scan showed that Mickey had a collapsed
left lung and "moderate right pleural effusion, possibly
due to blood." Id. ¶ 64. On March 22,
2014, Mickey received a chest tube. She died four days later
at the age of 88.
March 15, 2016, Kalan filed this action against Dogwood
Village, Dr. Merrick, and the County, alleging violations of
42 U.S.C. § 1983 and state law. Specifically, Kalan
claims that Dogwood Village and the County deprived Mickey of
her civil rights, as secured by federal and state laws and
regulations, when they failed to prevent her injuries and
subsequent death (Count I). Kalan also asserts a common law
claim of negligence against all defendants (Count II). She
seeks compensatory damages in the amount of $4, 000, 000.00,
pre- and post-judgment interest, attorney's fees and
costs, and any other appropriate relief. On April 29, 2016,
Dogwood Village filed a motion to dismiss the complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Upon a stipulation of dismissal by the parties,
the court entered an order on May 13, 2016, dismissing both
counts against the County and Count II against Dogwood
Village. The court held a hearing on the motion to dismiss on
July 1, 2016. The motion has been fully briefed and is now
ripe for disposition.
12(b)(6) of the Federal Rules of Civil Procedure permits a
party to move for dismissal of a complaint for failure to
state a claim upon which relief can be granted. To survive
dismissal for failure to state a claim, a plaintiff must
establish "facial plausibility" by pleading
"factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal. 556
U.S. 662, 678 (2009). In ruling on a 12(b)(6) motion, all
well-pleaded allegations in the complaint are taken as true
and all reasonable factual inferences are drawn in the
plaintiffs favor. Edwards v. City of Goldsboro, 178
F.3d 231, 244 (4th Cir. 1999). However, "[a]t bottom, a
plaintiff must 'nudge [her] claims across the line from
conceivable to plausible' to resist dismissal."
Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 364-65
(4th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). The complaint must contain
sufficient facts "to raise a right to relief above the
speculative level" and "state a claim to relief
that is plausible on its face." Twombly, 550
U.S. at 555, 570. Although a complaint need not contain
detailed factual allegations, it must contain more than
"labels and conclusions" and "a ...