Miscellaneous: JOSE MANULAT VS. JWEISH SENIOR LIVING GROUP ET AL

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KATHRYN A. STEBNER (SBN 121088)
GEORGE KAWAMOTO (SBN 280358)
DEENA K. ZACHARIN (SBN 141249)
STEBNER. AND ASSOCIATES

870 Market Street, Suite 1212

San Francisco, CA 94102

Tel: (415) 362-9800

Fax: (415)362-9801

CRAIG. NEEDHAM (SBN 52010)
KIRSTEN FISH (SBN 217940)
NEEDHAM.KEPNER & FISH LLP
1960 The Alameda, Suite 210

San Jose, CA 95126

Tel: (408) 244-2166
Fax: (408) 244-7815
Attorneys for Plaintiff

NO SUMMONS ISSUED

FILED

San Francisco County ‘Superior Court

JUN 2-4 2019

CLERK: 0) C0!
By: :
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

JOSE MANULAT, by and through his Guardian
ad Litem, Rodulfo Manulat,

Plaintiff,

vs.

JEWISH SENIOR LIVING GROUP; BAY.
AREA SENIOR HEALTH SERVICES, INC.;
HEBREW HOME FOR AGED DISABLED,
INC, dba JEWISH HOME & REHAB:CENTER
D/P SNF; SAN FRANCISCO CAMPUS FOR
JEWISH LIVING; and Does 1-100, inclusive,

Defendants.

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CASE NO.
CGC-19-576935
COMPLAINT FOR DAMAGES

1 Violation of Patient’s Rights
2 Elder Abuse/Neglect; and
3. Negligence

JURY TRIAL DEMANDED

TYNISIYO

Sov AS

1

COMPLAINT AND DEMAND FOR JURY. TRIALPlaintiff JOSE MANULAT, by aiid through his Guardian ad Litem Rodulfo Manulat, hereby
alleges against JEWISH SENIOR LIVING GROUP; BAY AREA SENIOR HEALTH SERVICES,
INC.; HEBREW HOME FOR THE AGED DISABLED, INC. dba JEWISH HOME & REHAB.
CENTER D/P SNF; SAN FRANCISCO CAMPUS. FOR JEWISH LIVING; and DOES 1- 100,
inclusive as-follows:

INTRODUCTION
Plaintiff alleges:
1 JOSE MANULAT (“PLAINTIFF”) is and was at all titnes herein mentioned a resident of |

the County of San Francisco, State of California.

2. PLAINTIFF was at’all-tirnes an elder and dependent adult who was substantially mioré

-vulnerable than.others. members of the public because of his-disabilities, and actually suffered

substantial physical, emotional, or economic-damage resulting from the conduct described below.

3. Rodulfo. Manulat is the duly appointed Guardian ad Litem of JOSE MANULAT.

4, Defendants JEWISH SENIOR LIVING GROUP; BAY.AREA SENIOR HEALTH
SERVICES, INC., HEBREW HOME FOR THE. AGED DISABLED, INC. dba JEWISH HOME &
REHAB CENTER D/P SNF (also known as the San Francisco Campus for Jewish Living and the Jewish
Home of San Fraricisco), SAN FRANCISCO CAMPUS FOR JEWISH LIVING, and DOES 1-100
(collectively referred to.as “DEFENDANTS” are in the business of providing long-term care as defined|
in Health & Safety Code § 1250(¢). DEFENDANTS are located and doing business in the City and
County of San Francisco, State of California. DEFENDANTS, and each of them, own and operate a
skilled nursing facility, the JEWISH HOME & REHAB CENTER D/P SNF located at 302 Silver
Avenue, San Francisco, California (hereinafter referred to as “JEWISH HOME” or“FACILITY”).
DEFENDANTS, and each.of them,.owned, leased, licensed, operated; administered, managed, directed,
and/or conttolled and are “managing agents” of the JEWISH HOME and actively participated in and
controlled the business of the FACILITY. DEFENDANTS, by and through their corporate officers and
directors, including Daniel Ruth (President.and Chief Executive Officer); Mark Friedlander (Executive
Director), Kyle Ruth-Islas (Administrator) and Peggy Cmiel (Director of Nursing), arid others preseritly
unknown,.to PLAINTIFF, acted recklessly and later ratified the conduct of their co-defendants, DOES 1-

2 COMPLAINT AND DEMAND FOR JURY TRIAL100 and the FACILITY, in that they were aware that there was both an insufficient number of staff and
that the staff present at the FACILITY was not adequately trained, and were aware of the relationship
between understaffing and sub-standard provision of care to patients .of the FACILITY, including

PLAINTIFF, which resulted in numerous poor outcomes, and numerous statements.of deficiencies being

| issued to the FACILITY by. the California Depattment of Public Health, and at least two other lawsuits

being filed against DEFENDANTS. This knowing flouting. of staffing regulations was part of
DEFENDANTS’ pattern and practice to cut costs, thereby endangering the FACILITY’s elderly and
dependent patients, including PLAINTIFF.

5. PLAINTIFF alleges,-upon information:and belief, that the misconduct:of DEFENDANTS|
which led to the injuries to PLAINTIFF as alleged herein, was the'direct result and product of the
financial and control policies and practices forced upon the FACILITY by the financial limitations
imposed upon the FACILITY by and through its corporate officers, directors. and managing agents.

6. PLAINTIFF was a resident at the JEWISH.HOME from approximately Febraary 13,
2017-to December 16,'2018 and approximately December 24, 2018 .to the present, during which time
DEFENDANTS, and each of them, had a substantial caretaking or custodial relationship, involving on-
going responsibility‘for one ot more of his basi¢ needs. At all times herein mentioned, DEFENDANTS
were providing for the care and custody of PLAINTIFF and were “care custodians” within.the meaning
of Welfare & Institutions Code:§ 15610.17.

7. At all. timés relevant:to this action, PLAINTIFF was an elder ag defined by Welfare &
Institutions Code § 15610.27. PLAINTIFF, who is ninety-two years-old, is and was-at all times relevant
‘substantially more vulnerable than other members of the public to the conduct of the DEFENDANTS
because of his age, restricted mobility and disability, and PLAINTIFF actually suffered substantial
physical, emotional, and/or economic damage resulting from the conduct. of DEFENDANTS, as
described below.

8. Each resident of the JEWISH HOME is an elder:and/or dependent adult as defined. by

| Welfare & Institutions Code § 15610, et'seq, DEFENDANTS knew or should have known that their

‘conduct, as described below, was directed to one or more senior citizens or dependent adults.

9. PLAINTIFF is ignorant of the true names and capacities, whether individual, corporate;

3 COMPLAINT AND DEMAND FOR JURY TRIALassociate or otherwise and the true involvements of those defendants narried and sued herein.as Does 1
through 100, and for that reason have sued said defendants by such.fictitious names. PLAINTIFF will
seek leave to amend this complaint to reflect their true names when ascertained: PLAINTIFF is

informed and believes, and accordingly alleges, that each of the defendants sued herein as Does 1

| through 100 is responsible in some:manner for the occurrences alleged in this action and that these

defendants proximately caused the harms suffered by PLAINTIFF.

10. | PLAINTIFF is further informed and. believes, and accordingly alleges, that at all relevant
times each of the DEFENDANTS was the employer, employee, agént, servant, alter ego, principal, or
subsidiary of DEFENDANTS and at all times.acted within the course and scope of such employment or
agency and with the ktiowledge and approval of said co-DEFENDANTS, and/or was involved in a joint
venture or partnership with DEFENDANTS. In particular, at all times material hereto, DEFENDANTS
individually and through their officers, directors, and/or managing agents, (i) had advance knowledge of
the unfitness of their employees and employed said employees with a conscious disregard of the rights
and-safety of others, (ii) authorized:the wrongful conduct alleged in this complaint, and/or (iii) were
personally guilty of oppression, fraud, malice and/or recklessness.

11. PLAINTIFF is further informed and believes, arid accordingly alleges that at all relevant
times DEFENDANTS, and each of them, were participating in a:joint venture, acting under an express.
ot implied:agreement for a common purposé with a community of pecuniary purpose wherein each
defendant hasan equal right to a voice in the-direction of the joint venture.

FACTUAL BACKGROUND

12, PLAINTIFF was a resident of the FACILITY from approximately February 13, 2017 to
December 16, 2018 and approximately December 24 to the present. Based on their own documentation,
DEFENDANTS knew-upon PLAINTIFF’s admissions to the: FACILITY that he was:at high risk.for
falls, that he-used a wheelchair, and that he had medical diagnoses including dementia, generalized
muscle weakness, osteoarthritis, and hypertensive heart disease, and due to his illnesses, he was taking
medication which according to DEFENDANTS’ own documentation; “together, can be coritributory to.
his fall.”

13. Despite DEFENDANTS’ knowledge of PLAINTIFF’s care needs, his history of multiple

4 COMPLAINT AND DEMAND FOR JURY TRIALunsupervised falls at the JEWISH HOME, his weakness, his-high risk of-falls, his dementia and-his risk
for injury, DEFENDANTS did not take adequate steps to prevent PLAINTIFF from falling at the
FACILITY, did not adequately put fall risk interventions into place at the FACILITY, did riot properly
assess or adequately care for PLAINTIFF at the FACILITY, and did not keep-him safe and free from
injury at the FACILITY.

14. As described in detail below, DEFENDANTS’ neglect of PLAINTIFF at the FACILITY
caused hini to suffer multiple unsupervised falls.at ‘the FACILITY including one on December 16, 2018.
As a result of his unsupervised fall at the FACILITY on December 16, 2018, PLAINTIFF suffered head
and neck fractures and'a-dramatic decline in his.condition, including decreased cognition,

deconditioning and an increase in his need for assistance with activities of daily living, Prior to his fall

| on December 16,2018 at the FACILITY, PLAINTIFF had a known history of unsupervised falls at the

FACILITY, required a. wheelchair and one person assist for anibulation and transfers, and he -couild'feed
himself. Since his fall at the FACILITY, PLAINTIFF is bedbound and can-no longer sit in a. wheelchair, |
needs assistarice with all of his activities of daily living, including feeding, is in-constarit pain, the injury
to-his right eye may lead to permanent blindness, and he may.need to wear a-neck brace for the rest-of
his life.

15. On December 16, 2018 at approximately 7:40 a.m., PLAINTIFF was left alone in his
wheelchair in the dining room.of the FACILITY. According to DEFENDANTS’ documentation, the fall
was unwitnessed, and.the only information PLAINTIFF gave about the fall was “I am not well situated.”
Although no staff person witnessed what happened, the “AD” attempted to shift blame on PLAINTIFF,
stating that “the resident was attempting to reposition himself in the manner in which he was seated in
his WFC, then slid off the cushion and fell onto the floor.” Despite the incident on December 16, 2018
and DEFENDANTS’ knowledge of PLAINTIFF’s history of falls, there is no documentation evidencing
that any fall prevention interventions were in place at the time PLAINTIFF was left sitting in the dining
area with no staff supervision (e.g. a chair alarm or other device which would have alerted staff that
PLAINTIFF was out of his.chair-and required assistance). After the fall, PLAINTIFF was immediately

noted to have a 4 cm.x2:cm x | cm:gash on his right upper eyebrow; and head pain of 8/10. According

to the DEFENDANTS? documentation, the on-call physician ordered PLAINTIFF to be transferred to

5 COMPLAINT AND DEMAND FOR JURY TRIALthe hospital for further evaluation.

16. At the hospital, PLAINTIFF was diagnosed with “globe rupture, type 2 dens-fx and.
bilateral C1 fx secondary to fall out-of wheelchair and hitting head at Jewish Home.” He underwent an
operation for globe rupture repair. At discharge from the hospital, PLAINTIFF was fitted with an
uncomfortable “Miami J” cervical collar which was to be worn at all times for the rest of his life.

17. During his admission to the FACILITY, DEFENDANTS failed to provide PLAINTIFF
with adequate custodial care and failed to ensure there was sufficient staff at the FACILITY to meet
PLAINTIFF’s needs. ‘On multiple occasions, PLAINTIFF’s family would wait more-than 30 minutes
for a response to the call light. On multiple occasions, PLAINTIFF’s family would arrive.to find him in
soiled sheets after incontinence of bowel and/or urine and would have to ‘search the FACILITY fora
nurse to assist in cleaning PLAINTIFF and changing his clothing, adult briefs, and linens. On another -
occasion, PLAINTIFF was found with severe dehydration as a.result of DEFENDANTS? acts and
omissions,

18. During the time he.was a-resident at DEFENDANTS’ FACILITY, PLAINTIFF was
neglected as set forth herein. DEFENDANTS failed to provide PLAINTIFF with a safe environment at
the FACILITY, failed to protect him from health and safety hazards at the FACILITY and did not put
adequate safety interventions in place at the FACILITY to keep him free from injury. Moreover,
DEFENDANTS failed:to properly assess PLAINTIFF, failed to respond:to changes in.his condition, and
failed to provide him with the necessary supervision, care and assistance that he required to keep him
safe at the FACILITY.

19, Pursuant to California law, DEFENDANTS are required to provide an elder, such as
PLAINTIFF, “basic services” including, at a minimum, safe and healthful living. accommodations-and
services, regular observation of the resident, arrangements to meet the health needs of a resident,
adequately trained and sufficiently staffed employee levels necessary to provide minimum services and
oversight of residents, policies and procedures to ensure that-basic services and oversight are
implemented to assure 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

6 COMPLAINT AND DEMAND FOR JURY TRIALwn

managerial employees such that there is little or no continuity and/or an absence of crucial managerial
employees at critical times such as the initial admission of a resident to the facility, notification to the
family regarding the condition of a resident and the keeping and maintenance of authentic, original
tecords without altering or forging such records.

20. DEFENDANTS failed to ensure that PLAINTIFF was provided with continuing
supervision and meaningful and informed assessrhent of his care needs while at the FACILITY and
failed to protect PLAINTIFF from known health and safety hazards. This failure by DEFENDANTS
had a direct relationship to the health and safety of PLAINTIFF and proximately caused him injuries,.as
described herein.

21. PLAINTIFF is informed and believes, and based thereon alleges, that at the time that
PLAINTIFF was.admitted to the FACILITY, DEFENDANTS knew that according to their plan to
‘increase profits at the:expense of residents such as PLAINTIFF, the operation of the FACILITY. was
neither designed, administered, nor funded in a manner reasonably necessary to provide adequate care,
oversight and integration of PLAINTIFF into the FACILITY. DEFENDANTS and their managing
agents, had knowledge of, ratified and/or otherwise authorized all of the acts ot.omissions, which caused
the injuries to PLAINTIFF. DEFENDANTS and their managing agents knew that their 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 PLAINTIFF, and, iri particular, the duty to provide
oversight and management of PLAINTIFF during his residency at the FACILITY. DEFENDANTS, and]
each of them, knew or should have known that the FACILITY’s operations were designed and operated
by DEFENDANTS in a manner to circumvent their legal duty to.comply with applicable statutes and
regulations so-as to maximize profitability.

22. PLAINTIFF is informed and believes, and based thereon alleges, that as part of the
process anid plan impleniented by DEFENDANTS at the direction of DEFENDANTS?’ imanaging agents,
DEFENDANTS owned multiple other related entities which were paid monies which were generated
from provision of resident care at the FACILITY purportedly in exchange for services and/or products.
PLAINTIFF is informed and believes and based thereon alleges that-while holding the FACILITY ‘out to}
PLAINTIFF and other members of the public as-providing good care, DEFENDANTS and their related

7 COMPLAINT AND DEMAND FOR JURY TRIALentities extracted considerable revenues and/or profits through the mianagement and operation of the
FACILITY by paying “administrative services” and other “related party” transactions to the
DEFENDANTS named herein which should have been utilized to hire and train and retain sufficient
numbers of qualified staff to meet the needs of PLAINTIFF.

23. DEFENDANTS had an obligation to sufficiently staff the FACILITY to ensure.that each
of their residents, including PLAINTIFF, received the necessary care and services in order for them to
attain or maintain the highest practicable physical, mental and psychosocial well-being, consistent:with
the resident’s comprehensive assessment:and plan of care: This obligation required DEFENDANTS to
base the number of Registered Nurses (RNs), Licensed Vocational Nursés (LVNs) and Certified Nurse
Aides (CNAs) to be provided at.the FACILITY not only upon the number of residents residing in their
FACILITY (commonly referred to as “resident census”) but'also onthe intensity of nursing care
required by their residents or their “acuity level.” Acuity levels are reflected in the resident’s “Resource

Utilization Group” classification or “RUGs”. RUGs are mutually exclusive categories that reflect the

‘amount of resources that will be needed in order to meet the needs of a particular resident in a nursing

facilities. They are assigned to residents based on data derived from an assessment tool referred to as a
“Minimum Data Set” (“MDS”). An MDS is prepared for each resident of a nursing facility regardless off
who is paying for their stay in the nursing facility. MDSs are required to be prepared when a resident
initially arrives at the facility and periodically thereafter depending on the couise of the resident’s
medical progression. At a minimum, an MDS is to be prepared for every resident in a nursing facility
on a quarterly basis. The completion of an MDS by a nursing facility is a pait of the legally mandated
process for clinical assessments of all residents'in nursing facilities. MDS need to be as detailed and
comprehensive 2s possible so that they reflect all of the needs of each of the residents in the nursing

facility. When done properly, an MDS provides a comprehensive assessment of each resident's

functional capabilities and helps the staff of a nuising facility identify all of the health problems of each

of their residents. The information contained in an MDS is used to slot the resident into a RUG. RUGs
are organized in.a hierarchy from residents who will need the greatest amount of resources to.residents
who will need the least amount of resources during their stay at the nursing facility. Residents who will

need the greatest amounit of resources are.assigned to higher groups in the RUG hierarchy. The only

8 COMPLAINT AND DEMAND FOR JURY TRIAL,CO Om IY DWH BF wWw PY =

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way to determine the total acuity level and corresponding RUG of each of the residents atthe
FACILITY ona given day is by examining section Z of every MDS in effect on that ‘day.

24, Through the years, the government has sponsored multiple studies to determirie the
amount of time that. RNs, LVNs, and CNAs in nursing facility spend providing direct care to residents as|
well as other elements of resident care. Because of these'studies, the government is able to set a number
of hours of direct care tliat they expect to be provided to residents by RNs, LVNs, and CNAs based on
the nursing facility’s total acuity level. This expectation is expressed in terms of “hours per patient day”
or “HPPD”, Using the information contained in the MDSs of every resident in a nursing facility, the
government is able to determine an HPPD that is expected for each nursing facility in the country. This
is referred to as the “expected HPPD”. They are also able'to adjust the HPPD per facility on a quarterly
basis based-on the updated MDSs that are provided to them. Nursing facilities, like the FACILITY, are

| required to submit an annual “Cost Report” to the government known as “Form 2540-10”, The cost

report is.a financial report that identifies the cost and charges related. to healthcare treatment activities in
a particular nursing facility. Included in the costs are extensive details as to how much money the
nursing facility spent on RNs, LVNs, and CNAs during that year. The cost report also-reports the-
resident census, hours paid, and the hourly rate that the nursing facility paid each category of direct
caregivers during that year. By dividing the paid hours by the resident census it is possible to determine
how many- houts the nursing facility paid for eacli category of direct caregivers per resident, per day for
the time period covered by that particular cost report. This number is referred to as the “reported
HPPD”. The reported HPPD is actually an inflated number due to the fact that hours paid includes sick
pay and vacation pay. By removing the sick pay and vacation pay. from the hours paid the resulting
HPPD would be closer to the actual HPPD provided by caregivers to residents in nursing facilities. The
actual HPPD for any given nursing facility can be determined by examining the data that nursing
facilities use to track the number of hours their employees work. This information is easily accessed
through reports that are commonly referred to as “Time Detail Reports”, “Punch Detail Data Reports”,
or some other similarly:named report depending on the time-keeping systém used by the particular
nursing facility. This information can reveal the actual HPPD for any period of time including a year, a

quarter, a month, or even a day. PLAINTIFF is informed and believes, and based thereon alleges, that at|

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all times mentioned herein, DEFENDANTS failed to provide the level of staffing necessary to meet the:
needs of their residents according to government expectations. Additionally, whenever more accurate
staffing information is made available to PLAINTIFF, by way of employee time cards, thé percentage off
understaffing will likely increase significantly. DEFENDANTS made these conscious decisions to
decrease nurse staffing hours well below their known need despite knowledge that a shortage in nurse
staffing within a skilled nutsing facility can have severe and widespread consequences from failing to
ensure residents such as PLAINTIFF are-provided with the care and treatment they require:

25.. PLAINTIFF is informed and believes, and based thereon alleges, that at all times
mentioned herein, the DEFENDANTS saved large sums of monies by understaffing. the FACILITY in
comparison to the amount of nursing hours the FACILITY was expected to have pursuant to the
government. In the time period in which the FACILITY was not being staffed as expectéd by the.
government, funds were siphoned out of the FACILITY’s patient care revenues and into payments to co-+
DEFENDANTS. The managing agents of the DEFENDANTS actively tracked the FACILITY’s
adherence to the annual operating budget and pressured the FACILITY to’ stay within the anriual
operating budget by directing them to take actions including but not limited to trimming staff, reducing
overtime hours, and or terminating employment of employees to meet labor hours targets.

26. | DEFENDANTS substantially derive their revenue anid profits from receipt of taxpayer
dollars through federally and state funded Medicare and Medicaid programs. Residents with higher
acuity levels such as those sought by DEFENDANTS for admission at the FACILITY place higher
demands for care and services on the FACILITY and its staff. Each resident's acuity level or RUG
score is contained in section Z of the required Minimum Data Set (“MDS”).assessment. The rate at
which the DEFENDANTS are reimbursed by Medicare and Medicaid for the delivery of nursing home
care and services, and accordingly, the amounts of their ultimate revenue and profits, are based upon the
acuity level of the residents confined to their facilities. The daily reimbursement rate varies based on the
level of nursing care and number of therapy minutes provided to the resident. For example, the highest
and second highest daily rates that Medicare will pay a skilled nursing facility fortherapy are known as
“Ultra High” and “High.” This creates:a financial incentive on owners and operators of skilled nursing

facilities, including DEFENDANTS, to admit and retain residents with greater mental, physical, atid

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psychosocial needs.

27. That knowledge was exclusively in the possession of DEFENDANTS and their
managing agents: Neither PLAINTIFF nor his family had any such knowledge, or the opportunity to
obtain such knowledge.and information. PLAINTIFF and his family believed that DEFENDANTS’
business operations were, as: represented by DEFENDANTS, properly run-in compliance with the law
and that the care afforded to its.residents was within all State guidelines. In particular, they understood
that the management and staff of the FACILITY were “experts” and were readily familiar, capable, able
and committed to the care and oversight of residents such as PLAINTIFF.

28. | DEFENDANTS, and:each of them, had responsibility for meeting the basic needs of
PLAINTIFF at the FACILITY, including his safety, nutrition, hydration, hygiene.and medical. care.
Although: DEFENDANTS knew of conditions that made PLAINTIFF unable to. provide for his own
basic needs as described herein, DEFENDANTS denied and withheld goods or services necessary to
meet PLAINTIFF’s basic needs. DEFENDANTS denied.and withheld this basic care to PLAINTIFF
despite the knowledge that by doing’so, injury was substantially certain to: befall PLAINTIFF or with
conscious disregard of the high probability of such injury. DEFENDANTS’ reckless denial and
withholding of basic care to PLAINTIFF caused his injuries as described herein.

29. Specifically, DEFENDANTS, and each of them, recklessly failed to take necessary
precautions to protect. PLAINTIFF from falls and serious injury at the FACILITY; and these failures
caused his injuries. DEFENDANTS failed to-provide him with supervision and assistance that he
required, failed to provide him with meaningful and informed assessments, failed to provide him with
assistance. for activities of daily living, and failed to protect him from health and safety hazards, which
caused his injuries. DEFENDANTS failed to implement timely and adequate interventions, which
eaused his injuries.

30. At all times-relevant, DEFENDANTS, and each of them, knew of PLAINTIFF’s
declining condition and the critical need to monitor and treat his.condition properly at the FACILITY
and to provide adequate custodial care to him at the FACILITY at all times. However, DEFENDANTS
recklessly failed to provide proper custodial care to PLAINTIFF despite his worsening condition,

including his known history of falls, his unsteady gait, his dementia, and his need for supervision'and

tT COMPLAINT AND DEMAND FOR JURY TRIALassistance with transfers. DEFENDANTS’ conduct, as detailed herein,:was reckless and in conscious

|| disregard of PLAINTIFF’s rights and safety.

31. In addition to the above referenced failures, DEFENDANTS, and each of them:

a. Failed to establish and implementa patient care plan for PLAINTIFF based upon and
including without limitation an ongoing process of identifying, reviewing, evaluating and
updating his.care needs, as.required by 22 C.C.R. § 72311(a)(3)(B);

b. Failed to maintain accurate and complete records of PLAINTIFF’s condition, as required
by 22 C.C:R. § 72547;

c. Failed to maintain nursing and other staffing at levels adequate to meet.the needs of all
residefits, including PLAINTIFF as required by 22 C.C.R. § 72501 (e);

d. Failed to-employ an adequate number of qualified personnel to carry. out all of the
functions of the FACILITY, as required by California Health & Safety Code § 1599,1(a);
and.

e. Made false and/or misleading statements regarding the facilities or services provided at
the FACILITY, in violation of 22 C.C.R § 72509.

The foregoing regulations define the duties of care owed to the residents of skilled nursing facilities
such as PLAINTIFF. DEFENDANTS? violations of these regulations constitute a negligent failuré to
exercise the care that a ‘similarly situated reasonable person would exercise and/or a failure to protect
PLAINTIFF from health and safety hazards.

32. The above-referenced acts and omissions by DEFENDANTS were not only to
PLAINTIFF, but, instead, were part of a continual pattern by DEFENDANTS at the FACILITY in
failing to_supervise and monitor residents, failing to continually assess residents’ needs, failing.to
employ an-adequate number of trained staff, and failing to protect residents from health and safety
hazards. This continual pattern of substandard care and understaffing.was well known to
DEFENDANTS’ managing agents, including but not limited to Daniel Ruth, President and Chief
Executive Officer, Mark Friedlander, Executive Director, Kyle Ruth-Islas, the Administrator and Peggy
Cmiel, the Director of Nursing at the FACILITY, who were corporate managing agents of

DEFENDANTS. Additionally, the nurses who provided care to PLAINTIFF at the FACILITY wete

12 COMPLAINT AND DEMAND FOR JURY TRIAL_

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tinder the direction of Kyle Ruth-Islas, the Administrator, and Peggy Cimiel, the Director of Nurses of
the FACILITY. According to 22'C.C.R. § 72501(c), the licensee of.a. skilled nursing facility such as the
FACILITY “shall delegate'to the-designated administrator, in writing, authority to organize and carry
out the day-to-day functions of the facility.” 22 C.C.R. § 72513(a) states that the “administrator shall’ be
responsible for the administration and management of the facility.” Additionally, according to.42:
CR. § 483.70(d), facilities such asthe FACILITY “must have a governing: body... that is legally
responsible for establishing and implementing policies regarding the management and opération of the
facility.”: The governing body is responsible for:appointing the-administrator who is “[r]esponsible for
management of the facility” and is responsible’for the creation and implementation of policies and
procedures for the operation of the FACILITY pursuant to-42°C.F.R. § 483.75. Plaintiff further alleges,
based on information and: belief, that these members, as executives, managing agents and/or owners of
the FACILITY, were focused on unlawfully increasing the profits in the operation of DEFENDANTS’
business as opposéd to providing the legally mandated minimum care tobe provided-to elder and/or
infirm residents in their FACILITY, including but not limited to PLAINTIFF, and that the focus.on
increasing profits played a part in'the under-furiding of the FACILITY, which led to understaffing at the

|| FACILITY, to the violation of state rules, laws and regulations, and to the injuries that PLAINTIFF

suffered as alleged herein.

33.  These'corporate managing agents. had a duty to direct the nurses and staff yet did not
make ainy charges at the JEWISH HOME, even witli knowledge of substandard care, failures to
supervise and monitor residents, inadequate staffing, and failures to protect residents from health:and
safety hazards. The managing ageiits of each DEFENDANT knew or should havé knowir of the lack of
basic assistance, supervision and care to.its patients, and the lack of training provided to the JEWISH
HOME’s staff. DEFENDANTS have been the subject of at least two recent lawsuits prior to
PLAINTIFF'S injury, Feygenberg v. Hebrew Home for Aged Disabled dba Jewish Home of San
Francisco, for what Plaintiff is informed-and believes alleged -that:a fall which resulted in death, and
Khazanov y. Hebrew Home for Aged Disabled dba Jewish Home-of San:Francisco, which alleged that a
fall-resultéd in death, as a result of inadequate resident.care, supervision'and protection from injury at

the JEWISH HOME, which show understaffing resulting in harm, lack of'training resulting in hatm, and

13 COMPLAINT.AND-DEMAND.FOR JURY TRIAL.failure to follow DEFENDANTS’ own policies, resulting in harm.

34, | DEFENDANTS have also received. multiple:repeated Statements of Deficiencies and
Citations from the California Department of Public Health (“DPH”) as a result of inadequate resident
care, supervision and protection from injury at the JEWISH HOME. For example, DEFENDANTS were
cited on May 21, 2018 for violating 42 C.F.R. § 483.10(2). when DPH found that for two residents, the
FACILITY “failed to-ensure a comprehensive Person, Centered Care Plan (PCCP - a-caré plan that
focuses:on the resident as ‘the center of control,.and support the-resident in making their own choices and
having control over their daily lives) was.developed.” DEFENDANTS were also cited'on Marchi 12,
2019, for violating 42 C.F.R. §§ 483.25(d)(1) anid (2) when DPH found that the FACILITY had failed to
adequately supervise a.resident which resulted. in a fall with injury requiring emergency treatment.
During the DPH investigation, a review of the resident’s records showed the resident had repeated falls,
and i a nurse-acknowledged that “no new interventions were'noted.as implemented on‘the care plan” since
a previous fall. Despite DEFENDANTS’ conscious knowledge of these: conditions, the managing agents
did not take appropriate‘and adequate steps.to prevent and correct them, and they did not inform
PLAINTIFF, his represeritatives, or his family of what they kriew about these dangerous conditions.
This is a pattern and itis reckless:

35. | DEFENDANTS had a duty to continually assess PLAINTIFF’s condition at the
FACILITY,,.a duty to note changes in his condition at the FACILITY, and a duty to immediately notify
PLAINTIFF’s physician and family.of changes. DEFENDANTS similarly had a duty’ to create and
update. adequate plans of care and to put fall prevention interventions into place at the FACILITY in
light of the fact that PLAINTIFF was.a known fall risk, and to receive, note and follow physicians’
orders. DEFENDANTS had a duty to assist PLAINTIFF with hygiene, bathing, dressing, toileting and
feeding, to'treat him with dignity and respect, and to provide adequate numbers of nursing and other.
similar staff to assist him at the FACILITY. Yet DEFENDANTS failed to provide custodial and
medical care sufficient to meet PLAINTIFF’s physical and mental health needs and failed to protect him
from health-and safety hazards,.as described in detail herein. Moreover, he was not treated with dignity
and respect, and was not provided with the necessary assistance-with activities of daily living, including

transfers, to keep him free from injury. DEFENDANTS knew that PLAINTIFF was.an elder and

14 COMPLAINT AND DEMAND FOR JURY TRIALdependent adult who required assistance to meet his basic needs, yet failed to provide for those needs,
even with knowledge of PLAINTIFF’s high risk for falls and injury, his dependence on
DEFENDANTS’ staff, and their substantial certainty that PLAINTIFF would be injured if these needs
were not provided for. DEFENDANTS’ failure to provide PLAINTIFF with the care, assistance, and
monitoring:that he required caused him injury.

FIRST CAUSE OF ACTION

(Violation of Patient’s Rights)

36. PLAINTIFF refers to, and incorporates herein by this reference, all preceding paragraphs
to this cause of action as though fully set forth herein.

37. The acts.and omissions.alleged above constitute violations of patients’ rights within the
meaning of 22 C.C.R. § 72527(a) and Health and Safety Code § 1430(b). This statute and regulation
require that residents be treated with.dignity and be free from mental or physical abuse and require that
patients shall have all. other rights as specified in Health and.Safety Code §1599.1, which states that
skilled nursing facilities such as the FACILITY “shall employ. an adequate number of qualified
personnel to carry out all of the functions of the facility” and requires that said facilities have a nuises’
call system maintained in operating order in all nursing units and provide-visible and audible signal
communication between nursing personnel and patients.

38. As alleged above, PLAINTIFF was neglected by DEFENDANTS and numerous of
PLAINTIFF’s patient rights were violated repeatedly. Each violation of PLAINTIFF’s patient’s rights,
as described in detail above, was a violation of a primary right and is actionable in its own right. As
such, each violation of PLAINTIFF’s primary rights, as discussed in detail above, constitutes a “cause off
action.” However, for efficiency’s sake, PLAINTIFF is labeling this first cause of action collectively
the Violation of Patient’s-Rights, which discusses the numerous causes of action subsumed herewith.
Thus, this has the force and effect of being multiple causes of action.

39. | DEFENDANTS’ FACILITY was continually staffed inadequately such that the residents,
including PLAINTIFF , were often unsupervised and the FACILITY was often unsafe. PLAINTIFF
was repeatedly not protected from health and safety hazards, was repeatedly not provided with necessary|

fall prevention interventions, and was frequently not provided with meaningful and informed

15 COMPLAINT AND_DEMAND FOR JURY TRIALassessments, was repeatedly left unsupervised, unmonitored, and without meaningful or adequate care or
treatment at the FACILITY. Additionally, during PLAINTIFF’s admission to the FACILITY, there was
repeatedly not enough staff at the FACILITY to provide PLAINTIFF with the assistance, custodial and
medical care that he needed to keep him safe and free from injury. As a result, he fell at the FACILITY
ahd was injured. PLAINTIFF should not have been faced with the recurrent indignities set forth above.

40. In addition to other relief, PLAINTIFF is accordingly. entitled to attorney’s fees and
costs.

WHEREFORE, PLAINTIFF prays for judgment as hereinafter set forth.

SECOND CAUSE OF ACTION
(Elder Abuse/Neglect)

41, PLAINTIFF refers to; and incorporates herein by this reference, all preceding paragraphs
to this cause of action as though fully set forth herein.

42. The above-mentioned acts of DEFENDANTS, and each of them, constituted “abuse,”
“neglect” and/or “abandonment” within the meaning of Welfare and Institutions Code § 15610, et seq.,
and.caused physical pain and/or mental.suffering and/or deprived PLAINTIFF of the services that were
necessary to avoid physical harm or mental suffering.

43. DEFENDANTS committed elder neglect as defined under the Elder Abuse Act by
repeatedly and recklessly failing to assist in PLAINTIFF with ambulation and transfers, failing to
provide him with adequate custodial care, and failing to protect PLAINTIFF from health and safety
hazards while he was in thei care and custody as described herein. (Welf. Inst. Code § 15610.57.)
Pursuant to Welfare & Institutions Code § 15610.57(a)(1), DEFENDANTS negligently failed to
exercise the degree of care that a reasonable person in a like position would exercise.

44, The above-mentioned acts of DEFENDANTS, and each of them, evidetice a pattern of
willful rules violations, with conscious disregard of the health, safety and welfare of its residents,
including PLAINTIFF, and such mistreatment constitutes elder abuse/neglect.

45. Asa direct result of the abuse, neglect and/or abandonment of PLAINTIFF by
DEFENDANTS, and each of them, PLAINTIFF was caused to incur the expense of ambulance

transport, skilled nursing care and acute hospitalization, all to his special damage in a sum to be

16 COMPLAINT AND DEMAND FOR JURY TRIALSC mrt aA A Fw DD

established according to proof.

46. _ By the conduct, acts and omissions of DEFENDANTS, as.alleged above, they. are guilty
of recklessness, oppression, and/or:malice. The specific facts set forth above show a disregard of the
high probability that PLAINTIFF, as well as other residents; would be injured at the FACILITY. In
addition to special damages, PLAINTIFF is therefore entitled.to an award against DEFENDANTS, and
each of them, of the reasonable attorney’s fees and costs incurred in prosecuting this case pursuant to

Welfare & Institutions Code §15657. As a direct.result of the abuse, neglect and/or abandonment of

| PLAINTIFF by DEFENDANTS, and each of them, PLAINTIFF suffered fear, anxiety, humiliation,

physical pain and discomfort, and emotional distress, all to his general. damage in a sum to be’

| established according to. proof.

WHEREFORE, PLAINTIFF prays for judgment as hereinafter set forth.
THIRD CAUSE OF ACTION
(Negligence)

47, PLAINTIFF refers to, and incorporates herein by this reference, all preceding paragraphs
into this cause of action as though fully set forth herein.

48. Atall times herein mentioned, DEFENDANTS, and each of them, did negligently and
carelessly caré for PLAINTIFF in the manner herein alleged. DEFENDANTS, and each of them, failed
to exercise that degree of skill and care commorily required of skilled nursing facilities, as discussed in
detail.above:

49. The above-mentioned conduct of DEFENDANTS, and each of them, including the:
violation of the statutory and regulatory duties imposed by law, constituted negligence, per se.

50. Asa direct legal result of the negligence and carelessness of DEFENDANTS, and-each o
them, as stated above, PLAINTIFF was severely injured.

51. Asa further direct legal result of the negligence of DEFENDANTS, and each of them, as
stated above; PLAINTIFF was.caused to incur the expense of medical expenses, all to his special
damage in a sum to be established according to proof.

52. Asa further direct legal result of the negligence of DEFENDANTS as stated above, and

each of them, PLAINTIFF suffered fear, anxiety, humiliation, physical pain and discomfort, and

17 COMPLAINT AND DEMAND FOR JURY TRIALemotional distress, all to his general damage in-éxcess of the minimum jurisdiction of the Court, to be

established.according to'proof.

WHEREFORE, PLAINTIFF praysjudgment as hereinafter set forth.
REQUEST FOR JURY TRIAL

PLAINTIFF hereby. requests.a jury trial.

PRAYER

WHEREFORE, PLAINTIFF prays for judgment against DEFENDANTS, and each of them, as

follows:

1. For general damages according to law and‘proof;

For special damages according to law and proof;

For costs of suit;

For punitive damages;

Noa vw ®F wo DN

Exhibit “A”;

For attorney’s fees pursuant to law;

For pré-judgment interest according to law;

For damages and injunctive relief pursuant to Health:and Safety:Code § 1430, see

8. For pre-judginent interest-according to.law; and

9. For such other and further relief as the:Court may deem proper.

|| Dated: June 18,.2019

‘STEBNER & ASSOCIATES

B

y: :
Kathryn. Stebner
George Kawamoto
Deena K. Zacharin

Attorneys for Plaintiff

18 COMPLAINT AND DEMAND FOR JURY TRIALExhibitoy

EXHIBIT A to Plaintiff's Complaint and Demand for Jury Trial

KATHRYN A. STEBNER (SBN 121088)
GEORGE KAWAMOTO (SBN 280358)
DEENA K. ZACHARIN (SBN 141249)
STEBNER AND ASSOCIATES,
870Market Street, Suite 1212
San-Francisco, CA 94102

Tel: (415) 362-9800

Fax: (415) 362-9801

CRAIG:NEEDHAM (SB #52010)
KIRSTEN FISH (SB #217940)
NEEDHAM. KEPNER & FISH LLP
1960: The Alameda, Suite 210.

Sani Jose, CA: 95126

Tel: (408) 244-2166

Fax: (408) 244-7815

Attorneys for Plaintiff

IN THE'SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

JOSE MANULAT, by and through his Case Noi:
Guardian:ad Litem,,Rodulfo: Manulat, [PROPOSED] ORDER.AND
Plaintiff, JUDGMENT FOR PERMANENT
INJUNCTION

VS.

JEWISH SENIOR LIVING: GROUP; BAY
AREA SENIOR HEALTH: ‘SERVICES, INC;
HEBREW HOME FOR AGED. DISABLED,
INC. dba JEWISH: HOME & REHAB
CENTER D/P SNF; SAN FRANCISCO,
CAMPUS FOR JEWISH LIVING; and Does 1-
100, inclusive;,

Defendants.

Wt
1
i

zl:

[PROPOSED]-ORDER AND:It UDGMENT E OR PERMANENT INJUNCTIONa a a
eco N DA A PF YW YD

19

EXHIBIT A to Plaintiff's Complaint and Demand for Jury Trial

IT IS HEREBY ORDERED, ADJUDGED AND DECREED ‘that the following permanent
injunction (“Injunction”) shall be entered against JEWISH SENIOR LIVING GROUP; BAY AREA
SENIOR HEALTH SERVICES, INC.; HEBREW HOME FOR AGED DISABLED, INC. dba
JEWISH HOME & REHAB CENTER D/P SNF; SAN FRANCISCO CAMPUS FOR JEWISH
LIVING; and the Facility (defined below) and any other person or entity that owns, manages and/or
operates the Facility, and each of them; as well as their respective predecessor,, successors. and
assigns, collectively referred to herein as “Defendants.”

This Couit has jurisdiction over the parties and the claims asserted by Plaintiff JOSE
MANULAT (herein defined as: “Plaintiff’). As referenced herein, the term “Plaintiff's Counsel”
means:counsel of record for the Plaintiff, specifically, Kathryn A. Stebner of Stebner & Associates.

As referenced. herein, the teri “Facility” means the skilled nursing facility doing business as
HEBREW HOME FOR AGED DISABLED, INC. dba JEWISH HOME & REHAB CENTER D/P
SNF (also known as San Francisco Campus for Jewish Living and the Jewish Homé of San
Francisco) and licensed by HEBREW HOME FOR AGED DISABLED, INC. as well as jits-as well

as its successors and assigns.

1. COMPLIANCE

A. — Staffing
1. At all times, Defendants shall comply with Health.and ‘Safety Code section 7599.1(a)

by employing an adequate number of qualified personnel to cariy out all of the fiinctions of the
Facility. Without limitation, this paragraph shall require that Defendants employ! an adequate
number of qualified nursing personnel to provide skilled nursing services (as that.term is defined in

22 C:C.R section 72309) at the Facility.

' Employ”, for purposes of this Injunction, shall mean “to use on a daily basis”.

. -2-
[PROPOSED] ORDER AND JUDGMENT FOR PERMANENT INJUNCTION:EXHIBIT A to Plaintiff's Complaint and Demand for Jury Trial

2. At all times, Defendants shall provide a minimum of 4.4 actual nursing hours per
patient day (“NHPPD”) at the Facility. “Nursing hours” shall mean the. actual number of ‘nursing
hours. performed by direct caregivers pursuant to Health & Safety Code section. 1276.5 and the
California Department of Public Health All Facilities Letter (AFL 19-16), issued .on April 9, 2019.
Notwithstanding the foregoing, if “nursing hours” as defined by. Health & Safety Code
section 1276.5 or the California Department of Public’ Health is amended during the time period this
Injunction is in effect, the amendinént:shall apply to the terms of this Injunction, The hours worked |
by the Director of Nursing Services and the Director of Staff: Development shall not be counted for
purposes of compliance with this requirement.

3. Atvall times, Defendants shall provide 4 minimum of 1.08 actual Registered Nurse
(“RN”) nursing hours PPD at:the Facility. The-hours worked by the Director of Nursing: Services
and the Director of Staff Development shall not: be counted. for purposes of compliance with this
réquirement.

4. At all times, Defendants shall comply withthe provisions of Health and Safety Code
section 1276.65 and 42 C.F.R. § 483.30(e) by posting the following information in a ‘prominent
public place at the Facility: (a) the actual diréct care nursing hours for each shift; and. (b) the
resident census for each day. In addition, Defendants shall retain the daily posted nurse staffing

sheets for the term of this Injunction, or the period required under applicable law, whichever is

‘longer. Only. time spent providing’ nursing services shall be included in calculating NHPPD.

Activities that are not nursing:services include, but are not limited to:
a. Paid or tinpaid time spent on meal periods;
db. Nursing services provided by the same employee in the. same. shift: to. both
skilled nursing patients and intermediate care or sub-acute patients, unless the facility
provides docutnentation of the actual time spent performing nursing services to

skilled nursing residents;

3

[PROPOSED] ORDER AND JUDGMENT FOR PERMANENT INJUNCTIONEXBIBIT A to Plaintiff's Complaint and Demand for Jury Trial

C Staff time spent in non-nursing services such as scheduling, food preparation,
laundry, housekeeping, maintenance, administrative and financial recordkeeping, and
administrative maintenance of health records;

d. Nursing serves that are provided in the same shift as non-nursing services by
employees who are primarily engaged in non-nursing services unless the facility
provides documentation of the actual time spent on. nursing services as well as the
actual nursing assignment performed;

e Private duty nursing services performed by staff paid for or supplied by a.
patient, patient’s family, guardian, coniservator, or other representative;

£ Staff vacation, holiday or sick leave time;

g. Training, except for on-site in-service training. No more than 2 hours a month
of in-service training offered at the facility where the staff are employed shall be
counted, Time spent by new employees during orientation shall not count; and

h. Work performed by non-direct nursing staff.

5. The Facility shall employ a full time Director of Nursing five full days a week and
shall not count Director of Nursing hours for purposes of calculating NHPPD.

6. The Facility. shall not accept residents with health conditions or needs for which it
does not employ sufficient numbers of qualified nursing, staff with experience and training-in caring
for individuals with said needs or health conditions.

B. Training

1