Tuohey ex rel. Wrongful Death Beneficiaries Bryant v. Chenal Healthcare, LLC

BRENDA TUOHEY, as Personal Representative of the Estate of Mildred May Bryantand on behalf of the wrongful death beneficiaries of Mildred Mae Bryant,and all others similarly situated PLAINTIFFS v. CHENAL HEALTHCARE, LLC, d/b/a Chenal Rehabilitation and Healthcare Center, et al. DEFENDANTS

No. 4:15CV00506 JLH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

May 17, 2017

OPINION AND ORDER

This is a wrongful death action brought by Brenda Tuohey on behalf of the Estate of Mildred May Bryant and Bryant's wrongful death beneficiaries against thirty-one defendants alleging that the Chenal Rehabilitation and Healthcare Center was chronically understaffed in violation of the admission agreement and that the failure to staff Chenal Healthcare adequately constituted negligence. Three motions for summary judgment are pending.

The defendants are a web of corporate entities and individual administrators affiliated in some way with the Chenal Rehabilitation and Healthcare Center, which is a seventy-bed nursing home in Little Rock. The amended complaint alleges that the corporate entities developed the business policies that resulted in the alleged understaffing of Chenal Healthcare, while the individual administrators and directors of nursing acted in conjunction with the corporate entities to reduce staffing levels or maintain staffing at an inadequate level. Tuohey's mother, Mildred Mae Bryant, was a resident of Chenal Healthcare from approximately June 25, 2007, to December 17, 2014. Tuohey claims that Bryant's stay at Chenal Healthcare accelerated the deterioration of her health, resulting in multiple urinary tract infections, poor hygiene, a broken tibia, a broken fibula, unsanitary living conditions, and ultimately her death.

I.

A court should grant summary judgment if the evidence demonstrates that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine dispute for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the moving party meets that burden, the nonmoving party must come forward with specific facts that establish a genuine dispute of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine dispute of material fact exists only if the evidence is sufficient to allow a reasonable jury to return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The Court must view the evidence in the light most favorable to the nonmoving party and must give that party the benefit of all reasonable inferences that can be drawn from the record. Pedersen v. Bio-Med. Applications of Minn., 775 F.3d 1049, 1053 (8th Cir. 2015). If the nonmoving party fails to present evidence sufficient to establish an essential element of a claim on which that party bears the burden of proof, then the moving party is entitled to judgment as a matter of law. Id.

II.

A. The Medical Malpractice Act

In the first pending motion for summary judgment, the defendants'¹ initial argument is that all of Tuohey's claims fall within the ambit of the Arkansas Medical Malpractice Act—Ark. CodeAnn. § 16-114-201, et. seq. Document #89. According to the defendants, all of Tuohey's claims arise from "medical injuries," so she may only seek relief for those injuries under the malpractice act. Because she failed to do so prior to the deadline for amending her complaint, the defendants ask the Court to dismiss her claims. In the alternative, they ask the Court to whittle her claims down to one claim for medical malpractice. The motion is characterized as one for summary judgment, but the defendants' statement of undisputed facts includes four paragraphs, three summarizing Tuohey's complaint. Document #91. The motion as it pertains to the malpractice act is in substance a motion for judgment on the pleadings pursuant to Rule 12(c).

Rule 12 (c) provides: "After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). Such a motion is evaluated in the same manner as a 12(b)(6) motion to dismiss. McIvor v. Credit Control Serv., Inc., 773 F.3d 909, 912 (8th Cir. 2012). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although detailed factual allegations are not required, the complaint must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads 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, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). The Court accepts as true all of the factual allegations contained in the complaint and draws all reasonable inferences in favor of the nonmoving party. Gorog v. Best Buy Co., Inc., 760 F.3d 787, 792 (8th Cir. 2014). The complaint must contain more than labels, conclusions, or a formulaic recitation of the elements of a cause of action, which means that the court is "not bound to accept as true a legal conclusion couched as a factual allegation."Twombly, 550 U.S. at 555, 127 S. Ct. at 1965.

Tuohey concedes that the amended complaint includes a claim for medical injury governed by the malpractice act. Conversely, the defendants never argue that the amended complaint fails to allege facts that would constitute a claim under the malpractice act. See Document #101 at 4; Document #89. Rather, they argue that the facts alleged would state a claim under the malpractice act, and only under the malpractice act, but since Tuohey never cites that act in her complaint her claims should be dismissed. Tuohey's failure to characterize her claims as arising under the malpractice act does not require the Court to dismiss those claims. Instead, the Court can look to the true character of the tort alleged. Cont. Cas. Co. v. Moser, No. 4:05CV00979 JLH, 2006 WL 827319, at *5 (E.D. Ark. March 29, 2006) (citing Cherepski v. Walker, 323 Ark. 43, 55, 913 S.W.2d 761, 767 (1996)). The failure to cite the Medical Malpractice Act in the complaint does not preclude application of the Act. See Looney v. Bolt, 330 Ark. 530, 536, 955 S.W.2d 509, 512 (1997) (claim pled under the Wrongful Death Act). Where the alleged acts or omissions of a medical provider result in a medical injury, the Act applies regardless of how the claims have been pled. Id. It follows that a plaintiff may state a plausible claim by supporting it with sufficient factual allegations without explicitly labeling that claim.

The amended complaint states three claims: (1) a medical negligence claim; (2) an ordinary negligence claim; and (3) a claim for breach of the admission agreement against Chenal Rehabilitation and Healthcare. The defendants argue that the amendments to the malpractice act adopted in 2013 by the Arkansas General Assembly as Act 1196 preclude Tuohey from recovering for injuries other than for medical injuries. Although the statute was amended to insure that a person who suffers a medical injury cannot be compensated for that injury more than once, the statutory definition of "medical injury" was not substantially changed. See 2013 Arkansas Act 1196. Amedical injury continues to be an adverse consequence that arises out of or is sustained in the course of professional services being rendered by a medical care provider. Id.; see also Ark. Code Ann. § 16-114-201 (2016 Repl.). The Arkansas Supreme Court has drawn the line separating claims for medical injury from other claims in numerous cases that predate Act 1196 of 2013. See, e.g., Paulino v. QHG of Springdale, Inc., 2012 Ark. 55, 9-10, 386 S.W.3d 462 (2012); Young v. Gastro-Intestinal Ctr., Inc., 361 Ark. 209, 221, 205 S.W.3d 741, 750 (2005); McQuay v. Guntharp, 336 Ark. 534, 986 S.W.2d 850, 853 (1999); Howard v. Ozark Guidance Ctr., 326 Ark. 224, 228, 930 S.W.3d 341, 343 (1996); Spring Creek Living Ctr. v. Sarrett, 319 Ark. 259, 263, 890 S.W.2d 598, 600 (1995); Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 552-555, 868 S.W.2d 505, 508-10 (1994); Ruffins v. ER Ark., P.A., 313 Ark. 175, 177, 853 S.W.2d 877, 879 (1993); Bailey v. Rose Care Ctr., 307 Ark. 14, 18, 817 S.W.2d 412, 414 (1991); Sexton v. St. Paul Fire & Marine Co., 275 Ark. 361, 363, 631 S.W.2d 270, 272 (1982). Because Act 1196 of 2013 did not substantially change the definition of "medical injury" in the malpractice act, these cases remain authoritative. The distinction between claims for medical injury and other types of claims remains a real distinction. Depending on what evidence is presented at trial, the Court will instruct the jury accordingly at the proper time.²

B. Punitive Damages

Next, the defendants argue that Tuohey cannot present evidence to show the existence of a genuine dispute as to whether she is entitled to punitive damages. Document #90 at 7. Punitivedamages are not recoverable for the breach of the admission agreement claim. L.L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 8-9, 665 S.W.2d 278, 281-82 (1984). Punitive damages can be awarded for torts in nursing home litigation and medical malpractice actions. See 1 Howard W. Brill & Christian H. Brill, Ark. Law of Damages § 9:2 (6th ed. 2015) (footnotes omitted). In Rose Care, Inc. v. Ross, the Arkansas Court of Appeals provided that to support an award of punitive damages, there must...