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Roth v. Winchester Medical Center, Inc.

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

September 20, 2019

SUSAN ROTH, Plaintiff,


          Elizabeth K. Dillon United States District Judge

         In 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.

         I. BACKGROUND

         A. Complaint Allegations[1]

         Mr. 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.

         On 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.

         On 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 death.

         B. Procedural History

         Roth 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 damages.

         In 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.

         At the 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 below.


         A. Standard of Review

         When reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)[2] 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., Inc., 591 F.3d 250, 255–56 (4th Cir. 2009). When considering a 12(b)(6) motion, a court must accept ...

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