Gregory L. Johnson, 1 Jody C. Moore, 01 Stephanie A. Johnson, 0 JOHNSON MOORE 0 E. Thousand Oaks Boulevard, Suite Thousand Oaks, CA 0 Telephone: (0) -1 Facsimile: (0) - Attorneys for Plaintiffs VIRGINIA SANTILLAN, SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO E-FILED //01 FRESNO COUNTY SUPERIOR COURT By: M.Sanchez, Deputy CASE NO.: 1CECG0 1, 1 1 1 1 1 VS. Plaintiffs, MANNING GARDENS CARE CENTER, INC., a California corporation; RON KINNERSLEY, an individual; and DOES 1-, inclusive, Defendants. Plaintiff alleges the following: FOR DAMAGES: 1. Elder Abuse and Neglect (Welf. & Inst. Code, 00 et seq.). Violation of Resident Rights (Health & Saf. Code, 10(b)). Negligence 0 1 Parties 1. Plaintiff: VIRGINIA SANTILLAN ("MS. SANTILLAN") was born on August, 1. At all times relevant herein, MS. SANTILLAN is and was an elder as that term is defined in Welfare & Institutions Code section... Defendant LICENSEE: Defendant MANNING GARDENS CARE CENTER, INC. and DOES 1- ("MANNING GARDENS" or "LICENSEE") is and was at all times relevant herein, a corporation licensed to do business in the State of California. (License No. C.) MANNING GARDENS is engaged in the business of providing long-term custodial and skilled care as a licensed Skilled Nursing Facility ("SNF") operating under the same name located at 1
1 1 1 1 1 1 0 1 East Manning Avenue, Fresno, California, within the County of Fresno. This location is also the LICENSEE's principal place of business as registered with the Secretary of the State of California.. Defendant OWNER/Operator/Administrator: Defendant RON KINNERSLEY ("OWNER" or "MR. KINNERSLEY") is the owner, operator, and Administrator of the LICENSEE. He is licensed to do business in the State of California, County of Fresno. On information and belief, at all times relevant herein, MR. KINNERSLEY was a resident of the County of Fresno.. LICENSEE DUTIES: A LICENSEE is responsible for compliance with licensing requirements and the organization, management, operation and control of the MANNING GARDENS. The general duties of a licensee are set forth in Title of the California Code of Regulations section 01. Certain duties are non-delegable including the responsibility for compliance with regulations and the management and control of the Skilled Nursing Facility. Delegation of authority by a licensee shall not diminish the responsibilities of the licensee. Therefore, even where a LICENSEE delegates operational control to another person or entity, that LICENSEE remains directly liable for management, operation and control of the FACILITY. (Cal. Code Regs., tit., 01(a).). MANNING GARDENS was subject to the requirements of federal and state laws and regulations that govern the operation of a Skilled Nursing Facility in California. In connection with its operation of the facility, MANNING GARDENS has a substantial and ongoing caretaking and custodial relationship involving ongoing responsibility for the basic needs of its residents, including MS. SANTILLAN.. By law, the LICENSEE of SNFs operating in California must delegate to a designated administrator, in writing, the authority to organize and carry out the day-to-day functions of the SNF. During MS. SANTILLAN's admission to the MANNING GARDENS, MANNING GARDENS' Administrator was, and is, also the owner, MR. KINNERSLEY, who was responsible for the administration and management of the SNF in accordance with Title of the California Code of Regulations section 1. During MS. SANTILLAN' admission to the
1 1 1 1 1 1 0 1 MANNING GARDENS, MANNING GARDENS had a Director of Nursing, believed to be Jaspreet Bassi, who was responsible for the administration and management of the SNF in accordance with Title of the California Code of Regulations section. MR. KINNERSLEY and Ms. Bassi, as the Administrator and the Director of Nursing, respectively, were managing agents of the LICENSEE and had care or custody of MS. SANTILLAN.. MANNING GARDENS had the duty to employ an adequate number of qualified personnel to carry out all the functions of the SNF. (Health & Safety Code 1.1(a); Cal. Code Regs., tit., 01, subd. (e).) Adequate staffing is essential to proper patient care and outcomes. There is no greater predictor of patient outcome in a skilled nursing facility than understaffing. The standard of care codified at Code of Federal Regulations parts.0 and. is to provide sufficient qualified nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident, as determined by resident assessments and plans of care. Because these requirements are codified in state and federal regulations, everyone involved in nursing home operations, including the owners, operators, managers, administrators, and directors of nursing in this case, understands the direct relationship between quality staff and patient outcomes.. In addition to MANNING GARDENS' duty to have sufficient numbers of well-qualified and trained staff, MANNING GARDENS had a duty to ensure that the facility was operated in a way that respected and did not violate well-recognized resident rights under Title of the California Code of Regulations; Health and Safety Code section 1.1; U.S.C. sections 1-; and Code of Federal Regulations part.. Advance Knowledge/Authorization/Ratification: Because of the unity of interest and common ownership and control alleged herein, the acts of the MANNING GARDENS and MR. KINNERSLEY (as OWNER and Administrator) were done pursuant to policies, practices, procedures, written or otherwise, established and implemented by and with the advance knowledge, acquiescence or subsequent ratification of MANNING GARDENS, by and through its officers, directors and managing agents, and MR. KINNERSLEY (as OWNER and Administrator). MANNING GARDENS and MR. KINNERSLEY's (as OWNER and
1 1 1 1 1 1 0 1 Administrator) process and plan for the operation of the facility is solely for the purpose of generation of revenue.. MANNING GARDENS and MR. KINNERSLEY (as OWNER and Administrator), and each of their tortious acts and omissions, as alleged herein, were done in concert and with each other and pursuant to a common design and agreement to accomplish a particular result, namely maximizing profits from the operation of the facility. MANNING GARDENS and MR. KINNERSLEY (as OWNER and Administrator), and each of them, implemented a business plan to underfund, understaff, undertrain, and undersupervise the staff at the FACILITY.. MS. SANTILLAN's injuries arise out of the organization, management, operation and control of the facility by and between MANNING GARDENS and MR. KINNERSLEY (as OWNER and Administrator) in their capacity as owner/operators/managers. As such, MANNING GARDENS and MR. KINNERSLEY (as OWNER and Administrator) share joint responsibility for MS. SANTILLAN's injuries.. DOES: The true names and capacities of defendants named herein as DOES 1-, inclusive, are unknown to Plaintiff, who therefore sue those defendants by such fictitious names. Plaintiff will amend this complaint to allege the true names and/or capacities and/or involvement of said fictitiously named defendants when ascertained. Plaintiff is informed and believes, and thereon alleges, that each of the defendants designated as a DOE is responsible in some manner for the events and happenings herein referred to and thereby legally caused the injuries and damages herein alleged. 1. On information and belief, DOES 1 through are, and at all times mentioned herein owned, operated, managed, supervised, controlled, maintained, or were otherwise responsible for the business activities of MANNING GARDENS. Such DOES would include officers, directors, controlling shareholders, partners, and governing board members, persons in de facto control of healthcare, operators, or employees of MANNING GARDENS. At all times relevant to this action, DOES 1 through helped set and enforce policies and procedures for the services rendered to clients of MANNING GARDENS.
1 1 1 1 1 1 0 1 1. On information and belief, DOES through 1 may be staff or contracted personnel of MANNING GARDENS and MR. KINNERSLEY (as OWNER and Administrator), including physicians, licensed nurses, aides, social workers, business office personnel, or other clinical, or administrative, personnel including without limitation persons directly or indirectly responsible for provision of patient care, persons having made representations or warranties to Plaintiffs, and persons acting in concert with other Defendants. 1. On information and belief, DOES through include persons directly or indirectly responsible for provision of care or services to MS. SANTILLAN, including but not limited to physicians, medical groups, managed care organizations, acute care hospitals, home health agencies, visiting nurses, therapists, or other ancillary care providers who saw, examined, evaluated, observed or treated or failed to treat MS. SANTILLAN for care or conditions relating to the allegations in the Complaint, and/or persons having made representations or warranties to or from the Department of Social Services, the Department of Public Health, the Long Term Care Ombudsman, Adult Protective Services, MANNING GARDENS and MR. KINNERSLEY (as OWNER and Administrator), and/or anyone purporting to act on behalf of or in concert with these persons or entities. The identities of such persons or entities are unknown to Plaintiff and Plaintiff will seek leave to amend when those identities are ascertained. Plaintiff is informed and believes, and thereon alleges, that each of the defendants designated as a DOE is responsible in some manner for the events and happenings herein referred to and thereby legally caused the injuries and damages herein alleged.. Joint Liability Allegations: Upon information and belief, Plaintiff further alleges that each Defendants and DOES 1- were the agent, servant, employee, joint venturer and/or partner of each Co-Defendant, and at all times acted within the course and scope of said agency, employment, venture, and/or partnership pursuant to the policies, practices, procedures, written or otherwise, and with the advance knowledge, acquiescence, or subsequent ratification of each Co-Defendant. JURISDICTION AND VENUE 1. This Court has jurisdiction over the cause of action asserted.
1. The acts alleged in this complaint occurred at MANNING GARDENS which is located in the County of Fresno. 1. The Defendants and each of them have sufficient minimum contacts in California based on their residency in California or otherwise intentionally avail themselves of the California market though their provision of services in the County of Fresno, so as to render them essentially at home in California and making the exercise of jurisdiction by the California courts consistent with traditional notions of fair play and substantial justice. 0. Venue is proper in the County of Fresno under Code of Civil Procedure section (a) based on the facts, without limitation, that this Court is a court of competent jurisdiction, that the defendants reside in the County of Fresno, and that all of the events described occurred in the County of Fresno. 1 GENERAL ALLEGATIONS 1. MS. SANTILLAN was admitted to MANNING GARDENS on May 1, 0. Her 1 admitting diagnoses included diabetes, heart failure, and an open wound on her right foot. She 1 suffered a stroke approximately 1 years ago, leaving her with weakness in all extremities and right sided hemiplegia (paralysis on one side of the body). As a result, she was, and is, non- 1 ambulatory. 1. Because MS. SANTILLAN did not ambulate, she required total staff support for bed 1 mobility, transfers from bed to wheelchair, getting around in her wheelchair, dressing, toilet use, 0 personal hygiene, bathing, provision of food and water, and medication management. Despite 1 her physical limitations, she was, and is, cognitively intact and has no memory impairment.. While a resident at MANNING GARDENS, MS. SANTILLAN was the victim of elder abuse and neglect in three areas: 1) failure to provide care and treatment to ensure adequate hydration and nutrition in light of her dysphagia from a prior stroke; ) failure to protect from health and safety hazards posed by a male resident who preyed on MS. SANTILLAN; and ) wrongfully evicting MS. SANTILLAN to an unsafe and uninhabitable home.. Care Issue No. 1: MS. SANTILLAN had known esophageal issues as a result of a stroke she suffered years prior to her residency. It was very painful to eat and drink and as a result, MS.
1 1 1 1 1 1 0 1 SANTILLAN was supposed to have "honey thick" liquids, also known as a mechanical diet. MANNING GARDENS failed to comply with MS. SANTILLAN's eating and drinking orders. MS. SANTILLAN became so dehydrated and malnourished that MANNING GARDENS staff believed she was having a stroke one day. They sent her to the hospital where she was rehydrated and given adequate nutritional intake to the point where she was stabilized and discharged back to the facility.. Care Issue No. : A male resident of MANNING GARDENS preyed on and stalked MS SANTILLAN while she was a resident. MS. SANTILLAN complained to MANNING GARDENS staff that this resident frightened her immensely. On one occasion, she called she felt so threatened by his presence. On another occasion, he came into her room while staff was attending to her personal hygiene and dressing needs, and he watched; staff did not redirect him or ask him to leave the room. MANNING GARDENS knew this resident frightened MS. SANTILLAN yet failed to take adequate steps to prevent the resident from watching over MS. SANTILLAN while she was particularly vulnerable. MANNING GARDENS failed to protect MS. SANTILLAN's dignity and right to privacy.. Care Issue No. : On October, 0, MANNING GARDENS provided MS. SANTILLAN with a 0-day notice of discharge. The letter indicated it was hand delivered to MS. SANTILLAN and a copy was provided to her son. The reason given for discharge was the failure of MS. SANTILLAN to pay her share of cost. She was a Medi-Cal recipient but according to MANNING GARDENS, Medi-Cal had determined that MS. SANTILLAN's share of cost was $, per month. Her outstanding bill as of the date of the notice was $,.. The letter indicated MS. SANTILLAN would be discharged on November, 0 unless her bill was paid in full or she established a satisfactory payment plan. The letter indicated she would be discharged home with her son. The letter also indicated: "We will assist you in setting up inhome care if you desire. You have all your mental capacities and even with certain physical limitations you should be able to function at home with some in-home supportive services.". On November, 0, MANNING GARDENS called a transport company and transported MS. SANTILLAN from MANNING GARDENS to her house. However, her son
1' 1 1 1 1 1 0 1 refused to open the gate to let her come in. The transport driver notified MANNING GARDENS' Assistant Administrator that MS. SANTILLAN's son would not let her in the home. Shortly thereafter, MR. KINNERSLEY and the facility's Assistant Administrator drove to MS. SANTILLAN's home and found her on the curb outside her home. MR. KINNERSLEY and the Assistant Administrator told MS. SANTILLAN and her son that she could come back if her son paid her outstanding bill.. At this point, outside the home and in the midst of a heated exchange between MR. KINNERSLEY and MS. SANTILLAN's son, MS. SANTILLAN complained she did not feel well. was called and emergency personnel arrived. MR. KINNERSLEY and the Assistant Administrator left MS. SANTILLAN at the home with the emergency personnel.. MS. SANTILLAN was taken to hospital, where emergency department personnel charted her chief complaint as, "Patient was kicked out of SNF, PD [police department] states home is unfit for patient to live in... year old was left in front of her house and FPD [Fresno police department] stated her house is unfit to live in, therefore, was transported to the hospital." 0. MANNING GARDENS failed to prepare a safe and orderly discharge plan in compliance with state and federal regulations governing discharging residents from SNFs. They made the decision to discharge MS. SANTILLAN without a safe discharge plan which predictably, resulted in an unsafe discharge. They called MS. SANTILLAN's son prior to discharge, but he never answered the phone calls nor returned any messages. Thus, the son did not participate in any discharge planning. In fact, MS. SANTILLAN's son was ill himself and had been in and out of the hospital in the month prior to MS. SANTILLAN's unsafe discharge. 1. The Department of Public Health investigated the circumstances regarding MS. SANTILLAN's unsafe discharge. They issued a Type A citation for discharging MS. SANTILLAN to a home that was deemed uninhabitable and unsafe; for causing emotional and physical distress requiring intervention by local police and fire departments; and ultimately requiring MS. SANTILLAN to be hospitalized. The DPH found MANNING GARDENS violated Code of Federal Regulations parts.1 subdivisions (c)()-() and (). In issuing the Type A citation, the DPH further found these violations placed MS. SANTILLAN in
1 1 1 1 1 1 0 1 imminent danger that death or serious harm would have resulted or a substantial probability that death or serious physical harm would result. FIRST CAUSE OF ACTION (Elder Abuse and Neglect as against All Defendants). Plaintiff incorporates by reference Paragraphs 1 through 1 of this Complaint as though fully set forth herein and further allege as follows:. Elder: MS. SANTILLAN was at all times mentioned herein an "elder" as defined by Welfare & Institutions Code.. At MANNING GARDENS, MS. SANTILLAN was dependent on defendants for all of her activities of daily living.. Substantial Ongoing Caretaking and Custodial Relationship: By virtue of her residence and dependency, MANNING GARDENS and MR. KINNERSLEY had a substantial ongoing caretaking and custodial relationship with MS. SANTILLAN. MANNING GARDENS and MR. KINNERSLEY had responsibility for meeting MS. SANTILLAN's basic needs including the need for food intake, nutrition, fluids, hydration, hygiene, bed mobility, transfers, and medication management.. Duties of MANNING GARDENS and MR. KINNERSLEY: MANNING GARDENS and MR. KINNERSLEY had a duty to MS. SANTILLAN to provide care and services, including medical care, that met her needs and were in accordance with the laws and regulations governing SNFs, including but not limited to: a. Duty to be treat residents with consideration, respect, and full recognition of dignity (Cal. Code Regs., tit., (a)()); b. Duty to identify individual care needs based on assessment of patient's needs with input from patient and, if necessary, health professionals involved in the care of the patient (Cal. Code Regs., tit., (a)(1)(a)); C.F.R..(f),.0(b)(1); U.S.C. 1i-(b)()); c. Duty to provide care as implemented by individualized written patient care plan indicating the care to be given, objectives to be accomplished, and the professional
1. 1 1 1 1 1 0 1 discipline responsible for each element of care (Cal. Code Regs., tit., (a)(1)(b), (a)(); C.F.R..(c)); U.S.C. 1i-(b)()); d. Duty to review, evaluate, and update patient care plans as necessary and more often if there is a change of the patient's condition (Cal. Code Regs., tit., (a)(1)(c)); e. Duty to record nurses' notes that are clear and legible, dated and signed, among other qualifications, including narratives or how a patient responds, eats, drinks, looks, feels, and reacts (Cal. Code Regs., tit., (a)()); f. Duty to provide the patient or responsible party the opportunity to participate in an immediate and ongoing basis in the total plan of care including identification of medical, nursing, and psychosocial needs and the planning of related services (Cal. Code Regs., tit, (a)(); C.F.R..(c)); g. Duty to provide care in such a marmer and in such an environment by facility staff to be free from mental and physical abuse and neglect (Cal. Code Regs., tit., (a)(); C.F.R..); h. Duty to provide good nutrition and necessary fluids for hydration, and to assist with eating if the patient requires assistance (Cal. Code Regs., lit., 1(g), (h)); i. Duty to provide adequate number of qualified personnel to carry out all functions of the facility and to meet patients' needs as well as adequate training and competent supervision (Cal. Code of Regs., tit., and.1; Health & Saf. Code, 1.1(a); C.F.R..,.); j. Duty to notify the patient of transfer or discharge and the reasons for the move in writing and in a language and manner they understand; duty to send a copy of the notice to the representative of the Ombudsman ( C.F.R..1(c)()); k. Duty to provide a 0-day notice of transfer or discharge prior to the resident being transferred or discharge. The contents of the notice must include the reason for transfer or discharge; the effective date for transfer or discharge, the location to which the patient is being transferred or discharged, a statement of the patient's right to appeal including name and contact information of the entity to send the appeal, information on how to
1 1 1 1 1 1 0 1 obtain an appeal, and assistance in submitting the appeal, and the name and contact information of the Ombudsman ( C.F.R..1(c)()-()); 1. Duty to provide and document sufficient preparation and orientation to patients to ensure safe and orderly transfer or discharge from the facility ( C.F.R..1(c)()).. Physical Abuse: MANNING GARDENS, MR. KINNSERLEY (as Administrator/managing agent and OWNER), and DOES 1- committed physical abuse as defined in the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code,.). MS. SANTILLAN unnecessarily suffered when MANNING GARDENS and MR. KINNERSLEY continually deprived her of food and water when they failed to follow MS. SANTILLAN's dietary orders.. Neglect: MANNING GARDENS and MR. KINNSERLEY (as Administrator/managing agent and OWNER), and DOES 1- also committed dependent adult neglect as defined in the Elder Abuse and Dependent Adult Civil Protection Act (Welfare & Institutions Code section.) by failing to protect MS. SANTILLAN from health and safety hazards.. Without limiting the generality of the foregoing paragraph, MANNING GARDENS and MR. KINNSERLEY (as Administrator/managing agent and OWNER), and DOES 1- committed dependent adult neglect by: a. Failure to provide medical care for physical and mental health needs: MANNING GARDENS and MR. KINNERSLEY failed to effectively develop, implement, and modify individualized care plans to ensure adequate hydration and nutritional intake. MANNING GARDENS and MR. KINNERSLEY failed to monitor and assess MS. SANTILLAN was indeed getting enough hydration and nutritional intake. MANNING GARDENS and MR. KINNERSLEY failed to report to her responsibly party and physician that MS. SANTILLAN was declining because she was not receiving enough hydration and nutritional intake. MANNING GARDENS and MR. KINNERSLEY's failures caused unnecessary pain and suffering and MS. SANTILLAN had to be hospitalized for dehydration and malnourishment.
1 1 1 1 1 1 0 1 b. Failure to protect from health and safety hazards. MANNING GARDENS and MR. KINNERSLEY failed to protect MS. SANTILLAN from a known male resident who was preying on and stalking MS. SANTILLAN. Their failures to implement simple interventions to prevent the male resident from preying on and stalking MS. SANTILLAN caused her unnecessary pain and suffering. MANNING GARDENS and MR. KINNERSLEY further failed to protect MS. SANTILLAN from health and safety hazards when they discharged her to a home that was uninhabitable and unsafe. Their failure to properly implement discharge procedures resulted in unnecessary pain and suffering as she had to be hospitalized.. Evidence of Recklessness in conscious disregard for the rights and safety of MS. SANTILLAN: MANNING GARDENS and MR. KINNERSLEY's conduct was despicable and was carried on by defendants with a willful and conscious disregard for the rights and safety of their residents. MANNING GARDENS and MR. K1NNERSLEY had a duty to accept and retain residents whose needs could be met at their facility, and to ensure safe and orderly discharges of residents. MANNING GARDENS and MR. KINNERSLEY had a duty to hire, train, monitor, and supervise their employees to ensure they provided minimum services and oversight of residents, have policies and procedures in place to ensure that basic services and oversight are implemented to assure the health and safety of residents, employment and training of staff such that staff is experienced and competent to perform the job duties necessary to assure safety and oversight of residents, accepting, training and employing staff in a manner that avoids "a revolving door" of crucial managerial employees such that there is little or no continuity and/or an absence of crucial managerial employees at critical times. 0. Regarding Care Issue No. 1, MANNING GARDENS and MR. KINNERSLEY knew, or should have known, MS. SANTILLAN required a special diet in light of her dysphagia as a result of a stroke she suffered years prior to her residency. MANNING GARDENS and MR. KINNERSLEY knew, or should have known, they had a duty to implement an individualized care plan to meet this specific need. MANNING GARDENS and MR. KINNERSLEY knew, or should have known, their facility was not adequately staffed in both quantity and quality of
1 1 1 1 1 1 0 1 personnel to meet MS. SANTILLAN's care needs with regard to her special diet because MR. KINNERSLEY is the Administrator and every day, shift after shift, he was responsible for ensuring MS. SANTILLAN's needs were being met. MANNING GARDENS and MR. KINNERSLEY knew, or should have known, they were not adequately training, monitoring, and supervising their employees to ensure MS. SANTILLAN's needs were being met. MANNING GARDENS and MR. KINNERSLEY knew, or should have known, failing to prepare and implement care plans, failing to hire competent staff to implement those care plans, and failing to monitor and supervise their employees created a high probability that substantial injury was certain to befall MS. SANTILLAN, yet they did it anyway in conscious disregard of MS. SANTILLAN's rights and safety. 1. Regarding Care Issue No., MANNING GARDENS and MR. KINNERSLEY knew, or should have known, their facility was not adequately staffed in both quantity and quality personnel to protect MS. SANTILLAN from the male resident that was preying on and stalking her. MANNING GARDENS and MR. KINNERSLEY knew, or should have known, the male resident frightened MS. SANTILLAN yet did nothing to protect her from him. MANNING GARDENS and MR. KINNERSLEY failed to implement a care plan to address the male resident's behavior such as redirecting him, reorienting him to time and place, and introducing interventions to keep him distanced from MS. SANTILLAN. MANNING GARDENS and MR. KINNERSLEY failed to implement a care plan to address MS. SANTILLAN's fears such as ensuring her the male resident would be distanced from her, a plan to ensure the male resident would never be permitted to watch her during a dressing, and a plan to calm MS. SANTILLAN if the resident appeared. MANNING GARDENS and MR. KINNERSLEY failed to protect MS. SANTILLAN from these issues with the Male resident in conscious disregard for her rights and safety.. Regarding Care Issue No., MANNING GARDENS and MR. KINNERSLEY knew, or should have known, that state and federal regulations exist to protect residents from improper and/or unsafe discharges. MANNING GARDENS and MR. KINNERSLEY knew, or should have known, they were required to prepare and orient MS. SANTILLAN to the discharge plan to 1
1 1 1 1 1 1 0 1 ensure a "safe and orderly" discharge. MANNING GARDENS and MR. KINNERSLEY knew, or should have known, their plan to discharge MS. SANTILLAN home was unsafe. MANNING GARDENS and MR. KINNERSLEY knew, or should have known, MS. SANTILLAN was sent to the Emergency Room from her home prior to her admission to the facility precisely because MS. SANTILLAN was self-neglecting at her home. MANNING GARDENS and MR. KINNERSLEY knew, or should have known, MS. SANTILLAN was found in her home soiled with feces from head to toe, with small cockroaches on her, and multiple wounds including a wound on her right foot found to be infested with maggots. MANNING GARDENS and MR. KINNERSLEY knew, or should have known, MS. SANTILLAN would self-neglect again if discharged home yet did it anyway in conscious disregard for MS. SANTILLAN's rights and safety.. Evidence of Malice and Oppression in conscious disregard for the rights and safety of MS. SANTILLAN: MANNING GARDENS and MR. KINNERSLEY's despicable conduct subjected MS. SANTILLAN to cruel and unjust hardship in conscious disregard of her rights. MANNING GARDENS and MR. KINNERSLEY were on notice that they were unsafely discharging MS. SANTILLAN to an uninhabitable home. They admitted they knew there was an open investigation involving Adult Protective Services regarding the habitability of the home. Furthermore, they knew by sending her home she would be in the same circumstance where she could be subject to self-neglect. MANNING GARDENS and MR. KINNERSLEY's conduct set the scene for a heated discussion with MS. SANTILLAN's son that further subjected MS. SANTILLAN to cruel and unjust hardship of being left on a curb with her belongings. She witnessed the deeply upsetting discussions her son had to have with MR. KINNERSLEY. MS. SANTILLAN's son desperately pled with MR. KINNERSLEY to not discharge her to the home because he knew he was unable to care for her considering his own health issues. MS. SANTILLAN was painfully aware she was being discharged to an unsafe environment, and suffered fear, anxiety, and the humiliation of being left on the curb. The unnecessary pain and suffering this caused her resulted in her hospitalization. 1
1 1 1 1 1 1 0 1. Evidence of Fraud in the commission of Elder Neglect: MANNING GARDENS and MR. KINNERSLEY knew or should have known that MANNING GARDENS' operation was designed and operated by MANNING GARDENS in a manner to circumvent its legal duty to comply with applicable statutes and regulations so as to maximize profitability. That knowledge was exclusively in the possession of the Defendants. MS. SANTILLAN had no such knowledge, nor the opportunity to obtain such knowledge and information. MS. SANTILLAN and her family believed that MANNING GARDENS and MR. KINNERSLEY's business operations were, as represented by the Defendants, properly run in compliance with the law and that the care afforded to its patients was within all State guidelines. In particular, they understood that the management and staff, including MR. KINNERSLEY and Director of Nursing of MANNING GARDENS were "experts" and were readily familiar, capable, able and committed to the care and oversight of patients such as MS. SANTILLAN. Such representations were fraudulent. Further, MANNING GARDENS and MR. KINNERSLEY's conduct was reckless and in conscious disregard of MS. SANTILLAN's rights and safety.. Direct Evidence of Neglect by MR. KINNERSLEY who consciously chose to put profits over his patient, MS. SANTILLAN: One of the reasons MANNING GARDENS and MR. KINNERSLEY wanted to discharge MS. SANTILLAN, regardless of the conditions of the discharge, was to protect their bottom dollar. MR. KINNERSLEY was upset that MS. SANTILLAN had not paid her share of costs and that she was not creating the type of revenue MR. KINNERSLEY desired due to her Medi-Cal status. MR. KINNERSLEY knew if he kicked her out, he could replace her with a more lucrative patient. So, MR. KINNERSLEY made the conscious decision to discharge MS. SANTILLAN to the same conditions she came from where she self-neglected, and was likely to self-neglect again, in order to free up a bed for a more lucrative patient. MR. KINNERSLEY knowingly put profits over his patient, MS. SANTILLAN, in conscious disregard for her rights and safety.. MR. KINNERSLEY engaged in direct neglect of MS. SANTILLAN when he failed to give proper notice of MS. SANTILLAN's discharge, failed to prepare and orient MS. SANTILLAN to ensure she was safely and orderly discharged, and discharged MS. SATILLAN 1
to an uninhabitable and unsafe home. MR. KINNERSLEY admits to the DPH that he failed to give proper notice to MS. SANTILLAN because the notice did not have information on MS. SANTILLAN's right to appeal the discharge. He also failed to take steps to ensure MS. SANTILLAN was oriented to the discharge as he did nothing to ensure she had the proper equipment, like a blender, to blend her food; he did nothing to ensure she had adequate wound care orders for home health to treat the wounds on her feet. MR. KINNERSLEY admits to the DPH he thought there was nothing unsafe about the discharge even though he knew MS. SANTILLAN was likely to self-neglect having done it before at her home, and there was an open investigation involving Adult Protective Services regarding the habitability of the home. Defiantly, MR. KINNERSLEY claims there is no requirement by state and federal regulations that when discharging a resident, it must be done safely despite knowing that Code of Federal Regulations part.1(c)() states the facility must prepare and orient residents "to ensure safe 1 and orderly discharge from the facility". MR. KINNERSLEY directly neglected MS. 1 SANTILLAN as both the Administrator/managing agent of MANNING GARDENS and as the 1 OWNER of MANNING GARDENS.. MR. KINNERSLEY engaged in direct neglect by making the conscious choice to 1 understaff the nursing home, in both quantity and quality of nursing personnel. The decision to 1 understaff was made at the corporate level by MR. KINNERSLEY in order to increase the 1 profitability of the SNF, in conscious disregard of patient care needs. MR. KINNERSLEY, 0 MANNING GARDENS and their other directors, officers and managing agents, conceived of 1 and implemented a plan to increase business profits at the expense of residents like MS. SANTILLAN, and other facility residents. Integral to this plan was the practice and pattern of MANNING GARDENS and MR. KINNERSLEY staffing its facilities with an insufficient number of care personnel, many of whom were not properly trained nor qualified to care for the elders whose lives were entrusted to them. The understaffing and lack of training was designed to reduce labor costs and to increase profits, and resulted in high staff turnover and the neglect of many patients of the facilities and most specifically, MS. SANTILLAN. This corporate policy to not maintain sufficient staffing as required by law was developed and implemented with the
1 1 1 1 1 1 0 1 conscious disregard for the likelihood of physical harm and injury to those who it is in the business to protect, including MS. SANTILLAN, who did in fact suffer as a direct consequence of MANNING GARDENS' proprietary interests, which it placed above that of her and other residents.. MANNING GARDENS and MR. KINNERSLEY knew that by understaffing their facility, in quantity and quality, they were putting rights and safety of its residents, including MS. SANTILLAN, at risk. This is because everyone involved in nursing home operations including the owners, operators, administrators, and directors of nursing understand the direct relationship between staffing and patient outcomes. The higher the staffing ratio, the better the patient outcome. Understaffing in quality and quantity of personnel, and then failing to adequately train, supervise, and monitor personnel caused or contributed to the lack of care MS. SANTILLAN received resulting in Care Issue Nos. 1 and.. Corporate directives and reporting: This continual pattern of withholding care and understaffing at MANNING GARDENS was well known to MR. KINNERSLEY (as OWNER and Administrator) and their other officers, directors and managing agents. Upon information and belief, MANNING GARDENS' staff routinely reported up the chain of command in MANNING GARDENS, who in turn reported to MANNING GARDENS corporate officers, directors and managing agents about what was happening on the floor at the SNF, including problems with understaffing and lack of qualified and trained staff, and more specifically the events leading up to the injuries of MS. SANTILLAN. In addition, as Administrator of the SNF, MR. KINNERSLEY was actually on the floor of the SNF himself and aware of the understaffing and lack of qualified and trained staff that he himself hired. 0. MR. KINNERSLEY himself, and MANNING GARDENS' other officers, directors and managing agents, directed and controlled the staffing budget by allocating resources, setting staffing minimums and maximums, and directing staff to patient ratios. By law, defendants were responsible for setting policies and procedures to be implemented in MANNING GARDENS and provided supervision and oversight of administration and nursing services by and through managers and directors. 1
1 1 1 1 1 1 0 1 1. MR. KINNERSLEY and the other officers, directors and managing agents of MANNING GARDENS have specific knowledge of substandard care at MANNING GARDENS, including a repeated pattern of failures to assess, monitor and respond to changes in resident condition and inadequate safety measures at the facility, including inadequate safety measures for discharge planning and discharges. The officers, directors and managing agents of MANNING GARDENS and MR. KINNERSLEY knew or should have known of the lack of care to its patients, as well as its understaffing, poor training, and the failure to implement care plans, including discharge planning, would probably result in harm to residents, including MS. SANTILLAN. Despite MANNING GARDENS and MR. KINNERSLEY's conscious knowledge of poor care, understaffing, unqualified staff, lack of care planning including discharge planning, MR. KINNERSLEY and the managing agents of MANNING GARDENS did not take appropriate and adequate steps to prevent and correct them, and they did not inform MS. SANTILLAN or her family of what they knew about these dangerous conditions.. Authorization/Ratification and Knowing Employment of an Unfit Employee: MANNING GARDENS and MR. KINNERSLEY acted by and through its managers, directors, officers, and other agents directly oversaw, managed, and/or controlled all aspects of the operation and management of VALLE VERDE. As such, MANNING GARDENS and MR. KINNERSLEY are directly responsible for the neglect of MS. SANTILLAN. MANNING GARDENS and MR. KINNERSLEY were responsible for overall operations, including but not limited to that facility's budgeting, staffing, staff training, and policies and procedures regarding assessments and care plans, change of condition, and patient transfer and discharge rights... KINNERSLEY (as OWNER) and MANNING GARDENS' other officers, directors and managing agents knew MANNING GARDENS' operation was designed in a manner so as to maximize profitability by circumventing the legal duty to assure the health, safety and oversight of residents such as MS. SANTILLAN and, in particular, the duty to hire competent employees, to train those employees, and to terminate or discipline employees for misconduct towards the residents, including MS. SANTILLAN. As a result, MR. KINNERSLEY (as OWNER), and MANNING GARDENS' other officers, directors and managing agents had 1
1 1 1 1 1 1 0 1 knowledge of, ratified and/or otherwise authorized all the acts or omissions, which caused the injuries to MS. SANTILLAN.. MANNING GARDENS and MR. KINNERSLEY authorized and ratified the misconduct of its employees. They failed to train, supervise, and monitor their employees to ensure they were aware of the policies and procedures regarding care planning, the adequate provision of food and fluids, the right to dignity and privacy, and discharges. They also failed to retrain, discipline, or terminate the employees who neglected and unsafely discharged MS. SANTILLAN. The DPH found the Social Services Designee of the facility knew it was an unsafe discharge yet did it anyway. The Assistant Administrator participated in the unsafe discharge by accompanying MR. KINNERSLEY to MS. SANTILLAN's home. A nurse at the facility stated to the DPH she did not think it was a safe discharge. On information and belief, these employees still work at the facility and have not received any retraining on safe discharges, nor have they been disciplined for their misconduct. MR. KINNERSLEY knowingly employed employees who were unfit as any employee who knows a discharge is unsafe but does it anyway is unfit.. Further evidence of ratification can be found by examining public records in the licensing file for MANNING GARDENS at the DPH. Three months after the wrongful and unsafe discharge of MS. SANTILLAN, the DPH cited MANNING GARDENS for an unsafe discharge of a -year-old male resident. In that investigation, the DPH found the resident required skilled care for cognitive impairments and MANNING GARDENS attempted to discharge him to a Residential Care Facility for the Elderly (a non-medical facility that provides long-term custodial care for the basic needs of elderly residents) where his care needs could not be met. The resident was given no notice of discharge and the facility had no real idea of the level of care RCFEs provide its residents. MR. KINNERSLEY is quoted as saying "We didn't do everything right. We didn't do our homework." The fact that MR. KINNERSLEY would repeat such egregious conduct is further evidence that he authorizes wrongful evictions and ratified MS. SANTILLIAN's wrongful eviction by engaging in same or similar conduct after the fact. 1
1 1 1 1 1 1 0 1. Damages: As a proximate result of the abuse and neglect of MS. SANTILLAN by MANNING GARDENS and MR. KINNERSLEY, and each of them, MS. SANTILLAN was caused to incur medical expenses and other related expenses, the full nature, extent and amount of which are not yet known to Plaintiff, and leave is requested to amend this Complaint when the same are ascertained to conform to proof at the time of the trial.. As a proximate result of the abuse and neglect of MS. SANTILLAN by MANNING GARDENS and MR. KINNERSLEY, and each of them, MS. SANTILLAN suffered fear, anxiety, humiliation, physical pain and discomfort, and emotional distress, all to her general damage in a sum to be established.. By the conduct, acts and omissions of MANNING GARDENS and MR. KINNERSLEY, and each of them, as alleged above, they are guilty of recklessness, fraud, oppression, and/or malice. The specific facts set forth above show a disregard of the high probability that MS. SANTILLAN would be injured. The specific facts set forth above show a disregard for the rights and safety of MS. SANTILLAN. In addition to special damages, Plaintiff is therefore entitled to an award of the reasonable attorney's fees and costs incurred in prosecuting this case as well as MS. SANTILLAN's pain and suffering and punitive damages pursuant to Welfare & Institutions Code section and Civil Code section.. By the conduct, acts and omissions of MANNING GARDENS and MR. KINNERSLEY, and each of them, as alleged above, they have engaged in unfair business practices directed at the elderly. MS. SANTILLAN is therefore entitled to treble damages pursuant to Civil Code section. SECOND CAUSE OF ACTION (Violation of Residents Rights against MANNING GARDENS CARE CENTER, INC. and DOES 1-) 0. Plaintiff incorporates herein by reference paragraphs 1 through of this Complaint as though fully set forth. 1. The acts and omissions of MANNING GARDENS alleged above constitute violations of patients' rights within the meaning of Health and Safety Code section 10(b). This statute 0
1 1 1 1 1 1 0 1 allows a current or former resident to pursue damages and an injunction for violations of patients' rights set forth in Title of the California Code of Regulations section and other state and federal laws and regulations.. Pursuant to Jarman v. HCR ManorCare, Inc. (01) Cal.App.th 0, a plaintiff may recover up to $00 per cause of action prosecuted under Health & Safety Code section 10(b). (Jarman, supra, at p..) Each of the care issues in this matter could be brought as separate causes of action because they each stand alone and apart from one another. Plaintiff thus alleges multiple causes of action based on multiple patient rights violations, each constituting a primary right: a. Care Issue No. 1: Failure to care plan to ensure adequate provision of food and fluids: Right to have individual care needs identified based on assessment of patient's needs with input from patient and, if necessary, health professionals involved in the care of the patient (Cal. Code Regs., tit., (a)(1)(a)); C.F.R..(f),.0(b)(1); U.S.C. 1i-(b)()); Right to receive care as implemented by individualized written patient care plans indicating the care to be given, objectives to be accomplished, and the professional discipline responsible for each element of care (Cal. Code Regs., tit., (a)(1)(b), (a)(); C.F.R..(c)); U.S.C. 1i-(b)()); Right to have care plans reviewed, evaluated, and updated as necessary and more often if there is a change of the patient's condition (Cal. Code Regs., tit., (a)(1)(c)); Right to have nurses' notes that are clear and legible, dated and signed, among other qualifications, including narratives or how a patient responds, eats, drinks, looks, feels, and reacts (Cal. Code Regs., tit., (a)()); Right to have the opportunity to participate in an immediate and ongoing basis in the total plan of care including identification of medical, nursing, and psychosocial needs and the planning of related services (Cal. Code Regs., tit., (a)(); C.F.R..(c)); Right to receive good nutrition and necessary fluids for hydration, and assistance with eating if the patient requires assistance (Cal. Code Regs., tit., 1(g), (h)); Right to receive care in such a manner and in such an environment by facility staff to be free from mental 1
1 1 1 1 1 1 0 1 and physical abuse and neglect (Cal. Code Regs., tit., (a)(); C.F.R..); Right to have adequate number of qualified personnel to carry out all functions of the facility and to meet patients' needs as well as adequate training and competent supervision (Cal. Code of Regs., tit., and.1; Health & Saf. Code, 1.1(a); C.F.R..,.); b. Care Issue No. : Failure to protect the right to dignity and privacy: Right to be treat residents with consideration, respect, and full recognition of dignity (Cal. Code Regs., tit., (a)()); Right to receive care in such a manner and in such an environment by facility staff to be free from mental and physical abuse and neglect (Cal. Code Regs., tit., (a)(); C.F.R..); Right to have adequate number of qualified personnel to carry out all functions of the facility and to meet patients' needs as well as adequate training and competent supervision (Cal. Code of Regs., tit., and.1; Health & Saf. Code, 1.1(a); C.F.R..,.); c. Care Issue No. : Failure to implement appropriate discharge planning measures to ensure safe and orderly discharge: Right to be notified of discharge and the reasons for the move in writing and in a language and manner they understand; right to have a copy of the notice sent to the representative of the Ombudsman ( C.F.R..1(c)()); Right to receive a 0-day notice of discharge prior to the discharge. The contents of the notice must include the reason for discharge, the effective date for discharge, the location to which the patient is being discharged, a statement of the patient's right to appeal including name and contact information of the entity to send the appeal, information on how to obtain an appeal, and assistance in submitting the appeal, and the name and contact information of the Ombudsman ( C.F.R..1(c)()-()); Right to receive sufficient preparation and orientation to discharge location to ensure safe and orderly discharge from the facility, and to have preparation and orientation services documented ( C.F.R..1(c)()).. MANNING GARDENS violated the above-referenced patient rights when MANNING GARDENS failed to adequately care plan to ensure MS. SANTILLAN received enough food
1 1 1 1 1 1 0 1 and fluids, failed to protect her right to dignity and privacy by failing to protect her from the male resident, and failed to implement appropriate discharge planning measures to ensure a safe and orderly discharge. MANNING GARDENS failed to prevent serious injury and insult to plaintiff.. MS. SANTILLAN is entitled to an award of statutory damages as set forth in Health and Safety Code section 10(b) for up to $00 for each primary right violated. Plaintiff reserves the right to amend the pleadings to add additional causes of action based on additional primary rights as the case progresses.. Plaintiff is entitled to attorney's fees and costs and an injunction to prevent further violations, in addition to other remedies set forth in Health and Safety Code section 10(b). The [Proposed] Stipulation for an Injunction is attached hereto as Exhibit A. THIRD CAUSE OF ACTION (Negligence as Against All Defendants). Plaintiff incorporates by reference Paragraph 1 through of this Complaint as though fully set forth herein.. MANNING GARDENS and MR. KINNERSLEY owed a duty of care to MS. SANTILLAN to act reasonably in the discharge of their duties including but not limited to hire, retain, and train sufficient staff to provide her with necessary care and services based on assessment and recognition of her individualized care needs; a duty to protect her from health and safety hazards; a duty to observe and report changes of condition to family and physicians; duty to provide appropriate discharge planning services and arrange for a safe and orderly discharge; and a duty to ensure she does not suffer needlessly.. MANNING GARDENS and MR. KINNERSLEY breached their duties as described herein.. As a direct and proximate result of the wrongful conduct as alleged by plaintiff, and the breaches of duty owed to plaintiff, MS. SANTILLAN suffered harm and injury, including but not limited to physical pain and mental suffering, isolation, fear, anxiety, humiliation, physical pain and discomfort, and emotional distress, all to her general damage in a sum to be established.