United States District Court, W.D. Virginia, Harrisonburg Division
MEMORANDUM OPINION AND ORDER
Elizabeth K. Dillon United States District Judge
January 2018, Theodore Strausbaugh fell, hit his head, and
died after being admitted to Winchester Medical Center, Inc.
(WMC). This is a wrongful death action brought by Susan Roth,
one of Mr. Strausbaugh’s surviving daughters and
administrator of his estate, against defendants WMC and
Valley Health System. Defendants moved to dismiss, and the
court took the motion under advisement after a hearing. (Dkt.
No. 23.) For the reasons stated below, defendants’
motion will be GRANTED IN PART and DENIED IN PART.
Strausbaugh was admitted to WMC on December 27, 2017, for
treatment of a bone infection that resulted from diabetes
complications and an ingrown toenail. Upon admission, WMC
staff deemed Mr. Strausbaugh a fall risk. As a result, the
nursing plan called for placement of a yellow fall risk sign;
anti-slip slippers; a fall-risk arm band; application of a
bed exit alarm if Mr. Strausbaugh was confused; consideration
of moving the patient closer to the nurse’s station;
and remaining with Mr. Strausbaugh during toileting and using
assistive devices and a bedside commode where appropriate.
January 5, 2018, Mr. Strausbaugh underwent a partial left toe
amputation and endarterectomy (removal of artery blockage).
Following the surgery, Mr. Strausbaugh’s care plan was
updated and a new fall-risk assessment was performed using
the Johns Hopkins Fall Risk Assessment (JHFRA), which
resulted in a score greater than 13, indicating a high fall
risk. Mr. Strausbaugh was considered a high fall risk because
he just had a partial amputation of his left big toe,
resulting in an unsteady gait; he complained on multiple
occasions of shortness of breath; he had a prior medical
history of atrial fibrillation; he had diabetic neuropathy,
which lessened the sensation in his feet; and he was
connected to three medical devices, including a cardiac
rhythm monitor, IV, oxygens, and an orthopedic surgical boot.
January 8, 2018, Mr. Strausbaugh was being attended to by
Nurse Katera Stevens. Nurse Stevens assisted Mr. Strausbaugh
off of the toilet, and then began arranging bed linens. While
arranging bed linens, Mr. Strausbaugh collapsed on the floor,
hitting his head. The injury was traumatic and severe,
resulting in cerebral hemorrhage. The injury caused an
increase in Mr. Strausbaugh’s intracranial pressure.
After the fall, Nurse Stevens noted that Mr. Strausbaugh was
unresponsive and pale, with no palpable carotid pulse,
despite rhythm strips indicating the contrary. The code team
was alerted, chest compressions were administered, and a bag
mask was applied. The attending physician ordered a CT
without contrast, which was conducted between 2:14 and 2:22
p.m. It demonstrated a large elongated skull fracture and a
large amount of traumatic subarachnoid hemorrhage. Mr.
Strausbaugh was declared dead at 2:45 p.m. The medical
examiner’s report lists “blunt force trauma to
the head” as the cause of Mr. Strausbaugh’s
brings a claim against defendants for the individual
negligence of their employee, Katera Stevens, RN, for her
failure to provide any assistance or supervision to Mr.
Strausbaugh. Roth also brings a claim of corporate negligence
against defendants for understaffing WMC at the expense of
patient safety and leaving Nurse Stevens with more tasks than
she could handle. Roth requests compensatory and punitive
their motion to dismiss, defendants argued that Roth failed
to state a claim for which relief can be granted under the
following theories: (1) apparent agency; (2) negligent
staffing; (3) negligent training; (4) negligent supervision;
(5) negligent hiring and negligent retention; and (6) failure
to implement or enforce adequate policies. Defendants also
argued that Roth failed to alleged sufficient facts to
support her claim for punitive damages. Finally, defendants
asserted that Roth’s claims are subsumed by
Virginia’s Medical Malpractice Act (VMMA) because the
alleged actions or inactions upon which Roth’s claims
are based occurred during the provision of health care to Mr.
Strausbaugh, and as a result, Roth’s claims are subject
to the statutory cap on damages.
motion’s hearing, the motion to dismiss Roth’s
claim for punitive damages was withdrawn without prejudice.
(Dkt. No. 23.) Roth’s counsel advised that she was no
longer pursuing any claims under an apparent agency theory,
rendering that issue moot. Roth also withdrew, without
prejudice, her negligent hiring and negligent retention
allegations. Finally, the court denied without prejudice the
request for a ruling that Roth’s claims are subsumed
within the VMMA, finding that such relief is not
appropriately granted on a motion to dismiss. The court took
the remaining issues under advisement, and they are addressed
Standard of Review
reviewing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which
relief may be granted, a court must determine whether the
factual allegations in the complaint “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests, ” and, when accepted as
true, “raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). Ultimately, a complaint must contain
“sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570);
see also Nemet Chevrolet, LTD v. Consumeraffairs.com,
Inc., 591 F.3d 250, 255–56 (4th Cir. 2009). When
considering a 12(b)(6) motion, a court must accept ...