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Kalan v. Health Center Commission of Orange County

United States District Court, W.D. Virginia, Charlottesville Division

July 26, 2016

SUSAN KALAN, as Administrator of the Estate of June Mickey, deceased, Plaintiff,


          Hon. Glen E. Conrad Chief United States District Judge

         Plaintiff 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.

         Factual Background

         The 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).

         Defendant 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.

         Mickey 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.

         On 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.

         On 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.

         On 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 maximum assistance.

         On 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 pain.

         Mickey 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.

         On 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.

         Standard of Review

         Rule 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 ...

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