Agape Village lawsuit

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IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA

Elin Baroni, by and through her )

Daughter and Next Friend, Susan Pugh, )

)

& ))

Elizabeth Boutwell, by and through her )

Son and Next Friend, Robert A. Boutwell, )

)

Plaintiffs, )

)

v. ) CV2013 -______________

)

Great Oaks Healthcare Management, )

LLC, d/b/a Agape Village Memory Care )

)

There may be other entities whose true names and identities are unknown to

plaintiff at this time who may be legally responsible for the claim(s) set forth

herein. The true names and identities will be added by amendment by

plaintiff when accurately ascertained by further discovery. Until that time,

plaintiff will designate these parties in accordance with ARCP 9(h). The

word entity as used herein is intended to refer to and include any and all

legal entities including individual persons, any and all forms of partnership,

any and all types of corporations and unincorporated associations.

Fictitious Defendant A, being the correct legal name of the entity identified

herein as Great Oaks Healthcare Management, LLC, d/b/a Agape Village

Memory Care;

Fictitious Defendant B,C,D being the correct legal name of the individual(s),

corporation(s), or other entity(ies) that owned or operated the residential

assisted living facility where Elin Baroni and Elizabeth Boutwell resided on

the occasion(s) described herein;

Fictitious Defendant E,F,G being the correct legal name of the individual(s),

corporation(s), or other entity(ies) that provided care to or were responsible

for the care of Elin Baroni and Elizabeth Boutwell, on the occasion(s)

described herein;

Fictitious Defendant H,I,J being the correct legal name of the individual(s),

corporation(s), or other entity(ies) that is legally responsible for the injuries

to Elin Baroni and Elizabeth Boutwell described herein;

)

ELECTRONICALLY FILED2/5/2013 10:57 AMCV-2013-900242.00

CIRCUIT COURT OFMADISON COUNTY, ALABAM

JANE C. SMITH, CLERK


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Defendants. )

)

COMPLAINT

1. Plaintiff, Elin Baroni, by and through her daughter and next friend, Susan Pugh, isa resident of Madison County, Alabama.

2. Plaintiff, Elizabeth Boutwell, by and through her son and next friend, Robert A.Boutwell, is a resident of Madison County, Alabama.

3. Agape Village Memory Care, is a residential assisted living facility located at 372Jimmy Fisk Road, Hazel Green, Alabama 35750. The facility is owned and operated by GreatOaks Healthcare Management, LLC, an Alabama corporation doing business in MadisonCounty, Alabama.

4. The true names and identities of the other named defendants are unknown toplaintiffs at this time and will be added by amendment in accordance with Rule 9 (h) of theAlabama Rules of Civil Procedure when the true names and identities are ascertained.

5. Agape Village Memory Care is a residential assisted living facility licensed by theAlabama State Board of Health and subject to the Rules of Alabama State Board of Health,Division of Licensure and Certification, Ala. Admin. Code, Chapter 420-5-10 and AlabamaCode 22-21-20. As a nursing facility receiving public funds, Agape Village Memory Care isalso subject to regulatory standards found in 42 C.F.R. part 483 (Requirements for States andLong-Term Care Facilities), and the Nursing Home Reform Act, 42 U.S.C. 1396. (also knownas the Omnibus Budget Reconciliation Act of 1987 or OBRA)

6. The State and Federal laws and regulations described above create a legal dutythat requires Agape Village Memory Care to provide appropriate nursing care and services toeach of its residents.

7. The plaintiffs in this action, Elin Baroni, by and through her daughter and nextfriend, Susan Pugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A.Boutwell, assert that Agape Village Memory Care has violated its duty to provide appropriatenursing care and services and that these violations caused injuries to Elin Baroni and ElizabethBoutwell.

8. The acts and omissions complained of occurred in Madison County, Alabama andthe amount in controversy exceeds $ 10,000.

FACTUAL ALLEGATIONS

9. In or about February, 2008, Elin Baroni was admitted to Agape Village MemoryCare. At the time of admission, Ms. Baroni suffered from anemia, chronic obstructive


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pulmonary disorder, hypertension, osteopenia, dementia, and other health problems, and waswheelchair bound.

10. While at Agape Village Memory Care, Ms. Baroni required assistance foractivities of daily living, including protection from physical and mental abuse. She had memory

deficits and impaired cognitive skills, with limited ability to communicate and express her needs.

11. In or about December, 2011, Elizabeth Boutwell was admitted to Agape MemoryCare. At the time of her admission, Ms. Boutwell suffered from dementia, Alzheimers, andother medical problems.

12. While at Agape Village Memory Care, Ms. Boutwell required assistance foractivities of daily living, including protection from physical and mental abuse. She had memorydeficits and impaired cognitive skills, with limited ability to communicate and express her needs.

13. Beginning sometime in 2011, and lasting until through September 2012, Elin

Baroni, Elizabeth Boutwell, and other elderly residents of Agape Village Memory Care were thevictims of physical and mental abuse carried out by an employee of the facility. This abuseincluded, but was not limited to, striking, slapping, smacking, pinching, swatting, pushing,shoving, violently moving into and out of sitting and prone positions, yelling, harsh language,and verbal insults.

14. This abuse resulted in physical injuries, including, but not limited to, bruises,contusions, cuts, and lacerations. This abuse also resulted in severe mental anguish.

15. The abuse of Ms. Baroni and Ms. Boutwell was reported to Agape VillageMemory Care administration and management in or about February, 2012, but the facility failedto report the abuse to the victims families or to the appropriate state or federal authorities, or totake other appropriate action to protect the victims from abuse.

16. In or about June and July, 2012, Elin Baroni was identified as suffering frominjuries consistent with physical and mental abuse, but no report was made to Ms. Baronisfamily or to the appropriate state or federal authorities, or to take other appropriate action toprotect Ms. Baroni from abuse.

17. The abuse of residents was again reported to Agape Village Memory Careadministration and management on or about September 19, 2012, but the facility delayedreporting the abuse to the appropriate state or federal authorities until August 31, 2012. Theabuse was still not reported to the families of Elin Baroni or Elizbeth Boutwell.

COUNT ONE

MEDICAL NEGLIGENCE

18. Plaintiff adopts and realleges paragraphs 1 through 17 as if they were set forth infull.


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19. While Ms. Baroni and Ms. Boutwell were residents of the facility in 2011 and

2012, Agape Village Memory Care had a duty or obligation to provide proper nursing care,including, but not limited to, taking appropriate actions to prevent the physical and mental abuseof residents.

20. Great Oaks Healthcare Management, LLC, d/b/a Agape Village Memory Care,violated of the standard of skill, care and diligence required of a residential assisted livingfacility and its staff in the national medical community when treating patients such as ElinBaroni and Elizabeth Boutwell and/or acted negligently by:

a) failing to screen and/or improperly screening personnel hired to providecare to residents at Agape Village Memory Care;

b) failing to properly and adequately train, supervise, monitor, evaluateand/or reprimand, terminate or otherwise discipline personnel that

provided care to residents at Agape Village Memory Care;

c) failing to adopt and enforce proper polices and procedures to ensureproper care for residents at Agape Village Memory Care;

d) failing to assign personnel to care for Elin Baroni and Elizabeth Boutwellwho were competent or otherwise fit or capable of providing adequatenursing care;

e) failing to provide a sufficient number of nursing personnel to providenecessary nursing care to Elin Baroni and Elizabeth Boutwell;

f) failing to provide adequate funding to allow Agape Village Memory Careto provide an acceptable level of care to Elin Baroni and ElizabethBoutwell;

g) failing to take proper steps to prevent physical and mental abuse ofresidents at Agape Village Memory Care;

h) failing to timely report physical and mental abuse of residents to theappropriate government agencies; and

i) failing to report the physical and mental abuse of residents to theresidents families.

21. The foregoing violations, acts, and omissions reveal and directly result from GreatOaks Healthcare Management LLCs systemic and/or institutional failure to adopt, promulgate,and enforce policies and procedures at Agape Village Memory Care that would prevent orminimize the risk of physical and mental abuse to residents.


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22. The acts, omissions, and violations of the standard of care outlined above caused,contributed to, and/or proximately resulted in injuries to Elin Baroni and Elizabeth Boutwell.

23. Plaintiffs, Elin Baroni, by and through her daughter and next friend, Susan Pugh,

and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, are entitled

to compensation from Great Oaks Healthcare Management LLC, d/b/a Agape Village MemoryCare for:

a) the cost of hospital, physician, and pharmaceutical bills;

b) the cost of future medical treatment;

c) pain and suffering on account of personal injury;

d) mental anguish on account of personal injury;

e) permanent disfigurement; and

f) permanent injury.

24. Defendant Great Oaks Healthcare Management, LLC, d/b/a Agape VillageMemory Care is liable for the torts of its employees under the laws of agency and/or the doctrineof respondeat superior.

Wherefore, plaintiffs Elin Baroni, by and through her daughter and next friend, SusanPugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell,demand a judgment against Great Oaks Healthcare Management, LLC d/b/a Agape VillageMemory Care in an amount to be determined by a jury, plus costs.

COUNT TWO

MEDICAL WANTONNESS

25. Plaintiffs adopt and re-allege paragraphs 1 through 24 as if they were set forth infull.

26. While Ms. Baroni and Ms. Boutwell were residents of the facility in 2011 and2012, Agape Village Memory Care had a duty or obligation to provide proper nursing care,including, but not limited to, taking appropriate actions to prevent the physical and mental abuseof residents.

27. Great Oaks Healthcare Management, LLC, d/b/a Agape Village Memory Care,violated of the standard of skill, care and diligence required of a residential assisted living

facility and its staff in the national medical community when treating patients such as ElinBaroni and Elizabeth Boutwell and/or acted wantonly by:

a) failing to screen and/or improperly screening personnel hired to providecare to residents at Agape Village Memory Care;


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b) failing to properly and adequately train, supervise, monitor, evaluateand/or reprimand, terminate or otherwise discipline personnel thatprovided care to residents at Agape Village Memory Care;

c) failing to adopt and enforce proper policies and procedures to ensure

proper care for residents at Agape Village Memory Care;

d) failing to assign personnel to care for Elin Baroni and Elizabeth Boutwellwho were competent or otherwise fit or capable of providing adequatenursing care;

e) failing to provide a sufficient number of nursing personnel to providenecessary nursing care to Elin Baroni and Elizabeth Boutwell;

f) failing to provide adequate funding to allow Agape Village Memory Careto provide an acceptable level of care to Elin Baroni and Elizabeth

Boutwell;

g) failing to take proper steps to prevent physical and mental abuse ofresidents at Agape Village Memory Care;

h) failing to timely report physical and mental abuse of residents to theappropriate government agencies; and

i) failing to report the physical and mental abuse of residents to theresidents families.

28. The foregoing violations, acts, and omissions reveal and directly result from GreatOaks Healthcare Management LLCs systemic and/or institutional failure to adopt, promulgate,and enforce policies and procedures at Agape Village Memory Care that would prevent orminimize the risk of physical and mental abuse to residents.

29. The acts, omissions, and violations of the standard of care outlined above caused,contributed to, and/or proximately resulted in injuries to Elin Baroni and Elizabeth Boutwell.



to compensation from Great Oaks Healthcare Management LLC, d/b/a Agape Village Memory

Care for:







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31. Plaintiffs Elin Baroni, by and through her daughter and next friend, Susan Pugh,and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, are entitledto punitive damages.


Wherefore, plaintiffs Elin Baroni, by and through her daughter and next friend, SusanPugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell,demand a judgment against Great Oaks Healthcare Management, LLC d/b/a Agape VillageMemory Care in an amount to be determined by a jury, plus costs.

COUNT THREE

FRAUDULENT SUPPRESSION


34. While Elin Baroni was a resident at Agape Village Memory Care, her daughter,Susan Pugh, maintained power of attorney for Ms. Baroni and was responsible for decisionsregarding Ms. Baronis care at Agape Village Memory Care.

35. While Elizabeth Boutwell was a resident at Agape Village Memory Care, her son,Robert A. Boutwell, maintained power of attorney for Ms. Boutwell and was responsible for

decisions regarding Ms. Boutwells care at Agape Village Memory Care.

36. During the time that Agape Village Memory Care provided care and treatment toElin Baroni and Elizabeth Boutwell, a confidential medical provider/patient relationship wasestablished, developed, and maintained. As such, Agape Village Memory Care had a duty tofully disclose to Elin Baroni/Susan Pugh, and Elizabeth Boutwell/Robert A. Boutwell all factsnecessary to enable them to intelligently exercise their right to control, to the extent feasible,their own health care and/or health care for their loved ones. See Johnson v. McMurray, 461 So.2d 775 (Ala. 1984).

37. Agape Village Memory Care breached this duty of disclosure and/or concealed orsuppressed material facts by failing to inform Elin Baroni/Susan Pugh and ElizabethBoutwell/Robert A. Boutwell that Elin Baroni and Elizabeth Boutwell were the victims of pastand on-going physical and mental abuse.

38. As a direct and proximate result of Agape Village Memory Cares failure to fullydisclose to Susan Pugh and Robert A. Boutwell all facts necessary to enable them to intelligentlyexercise their right to control, to the extent feasible, their own health care and/or the health care


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of their loves ones, Elin Baroni and Elizabeth Boutwell suffered personal injury, including, butnot limited to, physical and mental abuse.



to compensation from Great Oaks Healthcare Management LLC, d/b/a Agape Village MemoryCare for:









Wherefore, plaintiffs Elin Baroni, by and through her daughter and next friend, SusanPugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell,demand a judgment against Great Oaks Healthcare Management, LLC d/b/a Agape Village

Memory Care in an amount to be determined by a jury, plus costs.

COUNT FOUR

OUTRAGE


43. Defendant Agape Village Memory Care was informed that Elin Baroni, ElizabethBoutwell, and other residents were the victims of physical and mental abuse at the hands of afacility employee. Despite this, Agape Village Memory Care failed to inform the appropriate

government enforcement agencies and/or the victims families of this abuse, and failed to takeappropriate action to protect residents from this abuse.

44. Defendant Agape Village Memory Cares failures resulted in the physical andmental abuse of Elin Baroni, Elizabeth Boutwell, and other residents, thus resulting in emotionaldistress.


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45. Defendant Agape Village Memory Care knew or should have known that thesefailures would cause Elin Baroni, Elizabeth Boutwell, and other residents to suffer fromemotional distress.

46. Defendant Agape Village Memory Cares behavior was extreme and outrageous,

and no reasonable person could be expected to endure the emotional distress that Elin Baroni,Elizabeth Boutwell, and other residents suffered.



to compensation from Great Oaks Healthcare Management LLC, d/b/a Agape Village Memory

Care for:



c) pain and suffering on account of personal injury;d) mental anguish on account of personal injury;




49. Defendant Great Oaks Healthcare Management, LLC, d/b/a Agape VillageMemory Care is liable for the torts of its employees under the laws of agency and/or the doctrine

of respondeat superior.

Wherefore, plaintiffs Elin Baroni, by and through her daughter and next friend, SusanPugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell,demand a judgment against Great Oaks Healthcare Management, LLC, d/b/a Agape VillageMemory Care in an amount to be determined by a jury, plus costs.

COUNT FIVE

FICTITIOUS DEFENDANTS

50. Plaintiffs adopt and re-allege paragraphs 1 through 49 as if they were set forth in

full.

51. Plaintiff alleges and avers that the violations of the standard of care or negligentacts and/or omissions of Fictitious Defendants A-J proximately caused and/or combined andconcurred with the violations of the standard of care or negligent and/or wanton acts and/oromissions of Great Oaks Healthcare Management, LLC, d/b/a Agape Village Memory Care, toproximately cause injuries to Elin Baroni and Elizabeth Boutwell as set forth in Counts Onethrough Four above.


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52. The true names and identities of Fictitious Defendants A-J are unknown to

plaintiff at this time and will be added by amendment in accordance with Rule 9 (h) of theAlabama Rules of Civil Procedure when the true names and identities are ascertained.

Wherefore, plaintiffs Elin Baroni, by and through her daughter and next friend, SusanPugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell,demand a judgment against Great Oaks Healthcare Management, LLC, d/b/a Agape VillageMemory Care in an amount to be determined by a jury, plus costs.

Dated this the 5th day of February, 2013.

PLAINTIFF REQUESTS A TRIAL BY STRUCK JURY.

/s/ Michael Timberlake

Michael K. Timberlake(TIM 003)

/s/ Chris WootenChristopher M. Wooten(WOO 118)

Siniard, Timberlake & League, P.C.P.O. Box 2767125 Holmes AvenueHuntsville, Alabama 35804256-536-0770 (p)256-539-0540 (f)[email protected]@law-injury.com

Served Defendant by Certified Mail:

Great Oaks Healthcare Management, LLC

d/b/a Agape Village Memory Care

5303 Vaughn Road

Montgomery, Alabama 36116

Agape Village lawsuit

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