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FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/30/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
DENISE CLAY, Individually and as Administratrix of the
Estate of RANDALL CLAY; THADDEUS C. TOMAKA,
Individually and as Executor of the Estate of LILLIAN
TOMAKA; ALBERT YOUNG, Individually and as
Executor of the Estate of LULA STEVENS; BRENDA
BARNES, Individually and as Administratrix De Bonis
Non of the Estate of JOHN ANTHONY DOBBINS;
VELPO JOHNSON, III,Individually and as Executor of
the Estate of WILLIE LEE STEWART; DIANE
ANTKOWIAK and DAVID JANUSZ, Individually and as
Co-Executors of the Estate of LEOCADIA FRANUSIAK;
and on behalf of all others similarly situated,
Plaintiffs'
Plaintiffs Verified
vs. BILL OF PARTICULARS
Index #003907/2010
RIDGE VIEW MANOR, LLC,
WILLIAMSVILLE SUBURBAN, LLC
LEGACY HEALTH CARE, LLC
W. RICHARD ZACHER
JOHN DOES 1-200
Defendants
Pursuant to Rule 3041 et sequitur of the Civil Practice Law and Rules, BROWN
CHIARI us, attorneys for Plaintiff, ALBERT YOUNG, Individually and as Executor of the
ESTATE OF LULA STEVENS, herein serve upon the attorneys for Defendants, LEGACY
HEALTH CARE, LLC, W. RICHARD ZACHER, and JOHN DOES 1-200 (hereinafter
"Defendants"), submits this verified bill of particulars of the complaint:
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DEMAND NO. 1
The manner and respect in which itis claimed defendants, were negligent, careless, and
unskillful including, but not limited to, how defendants failed to exercise due and reasonable care
under the circumstances in rendering care and treatment to the plaintiff's decedent, LULA
STEVENS (hereinafter "decedent"), so as to avoid injury to decedent.
"treatment"
Plaintiff abjects to this demand to the extent that it references of
decêdent, LULA STEVENS, to the extent that it implies that decedent sought medical
treatment from Defêñdsñts. Decedent did not seek medical treatment from the
Defendants'
Defendants. Rather, deccdent was admitted to facility for nursing
home/rehabilitative services. As such, the instant litigation has been brought for personal
injuries arising as a result of nursing home negligence, pursuant to cc==:ñ law and the
provisions afforded to the Plaintiff in conjunction with Public Health Law §2801-d.
Subject to, and without waiving Plaintiff's objection, based upon information
presently availshis, Plaintiff will claim that Defcñdañts were ñegligeñt, careless and reckless
in that they, by and/or through its owners, management, administration, agents, servants,
and employees, by virtue of their failure to comply with New York State Public Health Law
§2801-d, failure to employ an adeqüate number of qualified personnel to carry out all the
functions of their in violation of New York State Public Health Law §2801-
necessary facility
d, and related statutes, codes, rules and regulations, allowance of a pattern of deficiency for
quality of care issues, failure to advance and support envirañmcats that pramated resident
dignity and quality of care, and failure to provide appropriate and z±qüã‡ê resources for
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facility staff, facility maintenance, facility supplies and staff training: failed to provide
proper services to decadent; failed to properly staff subject facility; failed to provide
adequate staffing; willfully, wantonly and/or recklessly disregarded the safety and well-being
of decedent by deliberately understaffing the facility; failed to meet basic human needs by
deliberately understaffing the facility; failed to provide sufficient care and staffing to provide
necessary services; failed to enact proper and adeqüâ‡e staffing procedures that included an
adequate number of qualified personnel; failed to provide adequate services to maintain
decedent's physical, mental, and psycho-social well-being in violation of New York State
Public Health Law §2801; failed to comply with state and federal statutes and regulations
including New York State Public Health Law §2801; accepted and retained admission for
nursing home residents, including Plaintiff's decedent, for whom Defendant knew it could
not provide adequate care based upon inadequate staffing; failed to identify and evaluate the
resident's need and the capability of the facility to meet those needs with adequate stamng;
as a result of insufficient staffing, failed to prevent the devêlepsent of pressure sore(s) and
failed to prevent the worsening of a pressure sore(s); failed to enact appropriate pelicies to
prevent the development of pressure sore(s); failed to properly identify the lack of care that
decedent was receiving with regard to skin condition; failed to provide appropriate pressure
relieving and positioning devices and assistance; failed to provide adequate interventions to
prevent improper pressure and body alignment; failed to prevent infection; failed to
maintain an adequate infection control program; failed to enact proper pülicies and/or
procedures to prevent the develêpment of infection; failed to enact and follow an appropriate
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care plan for the Decedent; failed to chañge and/or adjust the decedcñt's care plan to meet
the decedent's needs, most significantly, to address the prevention of the devel0pment and
worsening of sacral pressure sore(s); allowing the decedent to suffer with a painful and
extreme pressure sore; failed to provide adequate pain management; failed to properly train
and/or instruct its agents, employees and/or servants with regard to proper skin care
protocol for residents at risk for skin breakdown, as well as to properly and/or adequately
supervise said employees to ensure that prsper skin care precedures were being followed;
failed to maintain an adeqüåte infection control program; failed to enact proper p6licica and
prõcedures to prevent devel0pment of infection; and failed to provide appropriate services
in order to increase and maintain decedent's protein levels to effectuate adeqüâte healiñg of
pressure ulcer(s).
Plaintiff will claim, pursuant to Public Health Law §2808-a, that W. RICHARD
ZACHER is and/or was a controlling person of LEGACY HEALTH CARE, LLC, and liable,
jointly and severally, with and to the same extent as such residential health care facility, to
Plaintiff's decedent for damages, or to the state for any civil fine, penalty, assessment or
damages.
Plaintiff additionally contends that Defendant, W. RICHARD ZACHER, failed to
adeqüãtcly and properly mañagc, control and/or supervise the daily operations of, and/or
services provided by agents, servants and/or employees of Defendant's facility, and cagaged
in finañcial decisions that adversely affected resident care. Plaintiff contends that said
Defêñdañt failed to ensure that subject nursing home was properly and sufficiently staffed,
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and further failed to ensure that adeqüã‡e and proper policies and precedures were
established, promulgated, effectuated and/or followed at subject facility for the prevention
of a pressure sore, to ensure that accurate and ecñsistent clinical records were kept with
regard to residents, as well as to ensure that proper "working relationships"/commüñication
were established ameng nursing staff and other departments/services and/or disciplines, so
that resident care needs could be met.
Plaintiff contends that Defendant allõwed for systemic failures at subject facility,
most significañtly, with regard to prevention of development and worsening of a pressure
sore.
To particularize further would require evidentiary information and/or would
require Plaintiff to render a legal and/or medical episiêñ, which is improper for this
pleading, as it goes beyond the scope of that which is required pursuant to CPLR §3043.
Plaintiff nonetheless reserves the right to supplement and/or amend this response upon
completion of discovery and, further, will rely on any and all facts clicited at depositions,
during other discovery proceedings, and at the trial of this action to establish a claim in this
regard.
DEMAND NO. 2
State decedent's condition which itis claimed that defeñdañts failed to take due and
improper cognizance of, and the true condition from which the decedent from which the
decedent was suffering, which itis claimed that defendants failed to guard and treat against.
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Plaintiff abjects to this demand to the extent that it infers that Plaintiff's decedent,
sought medical treatment from Defendants. Plaintiff's decedent did not seek medical
treatment from Defendants. Rather, Plaintiff's decedeñt, LULA STEVENS, was admitted
Defêsessts'
to facility for nursing home care and rehabilitative services. As such, subject
litigation has been brought for personal injuries arising as a result of nursing home and
corporate negligence, and pursuant to the provisions afforded to the Plaintiff concomitant
with Public Health Law §2801-d. Subject to, and without waiving this objection, Plaintiff's
decedent, LULA STEVENS, sustained an unstageable decubitus ulcer(s); dehydration;
deprivation of dignity; deprivation of rights; loss of enjoyment of life; fear of impending
death; and ultimately, death.
To particularize further goes beyond the scope of CPLR §3043, requests evidentiary
(expert) information, and is virtually identical to others struck down in the Fourth
(4th
Department (See Stidham v. Clerk,, 57 A.D.2d 1369 Dept. 20084
DEMAND NO. 3
The place or places where the services were rendered by defendants.
Subject nursing home care and services were rendered at Williamsville Suburban
Nursing Home, located at 193 South Union Road, Williamsville, New York 14221.
DEMAND NO. 4
The nature, location, extent, and duration of each injury itwill be claimed was caused by
the negligence of defendants.
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Based upon information presently available, the Plaintiff will claim that as a result
of the negligence of Defendants, and/or itsagents, servants, empicyces and/or other
personnel, Plaintiff's decedent, LULA STEVENS, sustained serious and permañêñt
injuries, including but not limited to: unstageable dêcabitus ulcer(s); dehydration;
deprivation of dignity; deprivation of rights; loss of enjoyment of life; fear of impcñdiñg
death; and ultimately, death.
Further information responsive to this demand is presently unknown or unavailable
to the Plaintiff. However, the Plaintiff reserves the right to amcñd this response upon
completion of discovery and, further, will rely on any and all facts elicited at depositions,
during other discovery preecediñgs, and at the trial of this action to establish a claim in this
regard.
DEMAND NO. 5
Pursuant to the authority of Webb-Weber v. Community Action for Human Services, Inc.,
(3rd
23 N.Y.3d 448 (2014), and Neissel v. Rensselaer Polytechnic Inst., 30 A.D.3d 881 Dept.
2006), identify each section of every statute, code, regulation, and/or ordinance which plaintiff
will claim defendants violated and as to each such alleged violation:
a. State the manner and respect in which itis claimed that defendants violated each
statute, code regulation, and/or ordinance set forth above; and
b. As to each such alleged violation, identify the agent or employee or other
representative of defendants for whom plaintiff would hold defendants vicariously
liable whom plaintiff alleges committed the violation.
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Plaintiff abjects to this query to the extent that itwould require evidentiary
information and/or would require Plaintiff to render a legal and/or expert epinien, which is
improper for this pleading, as it goes bey6ñd the scope of that which is required pursuant
to CPLR §3043.
Subject to, and without waiving said abjection, based upon information presently
available, itwill be claimed that Defendants violated the following statutes, codes and/or
regulations: Public Health Law §2801-d, in that the facility dcñied the resident rights and
benefits pursuant to State and Federal regulations and pursuant to the admission contract;
failed to promote and/or eñhañce her quality of life; failed to enact and follow an
appropriate care plan; failed to provide adequate staffing; failed to provide adequate
and services to maintain resident's physical Public Health Law §2803-
staffing well-bciñg;
d, in that the resident was ñcgiccted and/or mistreated; 42 CFR §483.10(a)(1), in that
subject facility failed to care for resident in a manner in which promoted and/or êñhañced
her quality of life,and failed to promote care for resident to maintain resident's dignity; 42
CFR §483.10(e), in that the facility failed to protect the resident's right to be treated with
respect and dignity; 42 CFR §483.21(b)(1), in that the facility failed to develop and
implement a comprehensive person-centered care plan for the resident, including
measurable objectives and timeframes to meet a resident's medical, nursing, and mental
and psychosocial needs; 42 CFR §483.24, in that the facility failed to provide the necessary
care and services to attain or maintain the highest practicable physical, mental, and
psychosocial well-being, includiñ¡; for activities of daily living; 42 CFR §483.25, in that the
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facility failed to provide quality of care, consistent with professional standards of practice;
42 CFR §483.25(b), in that the facility failed to prevent developmcat and worsening of
pressure ulcer(s), and failed to ensure that the resident received necessary treatment and
services to promote healing of pressure ulcer(s); 42 CFR §483.35, in that subject facility
failed to have sufficient nursing staff to provide nursing and related services in accordañce
with resident's care plan; 42 CFR §483.70, in that the Defendants failed to administer the
subject facility in a manner that used its resources effectively and efficicñtly, and in that
the facility failed to operate and provide services in compliance with all applicable Federal,
State, and local laws, regulations, and codes, and with accepted professional standards and
principles that apply to services being provided at the facility; 42 CFR §483.70(e), in that
the facility failed to conduct and document a facility-wide assessment to determine what
resources were necessary to care for its residents competently during day-to-day
operations; 10 NYCRR §415.1(a)(1), in that the facility failed to meet every basic human
need of the resident; 10 NYCRR §415.1(b)(1), in that the facility failed to provide care and
services in a manner and quality consistent with generally accepted standards of practice,
by deviating from and/or disregarding resident's care plan, and failing to properly staff
subject facility;10 NYCRR §415.3(a), in that the facility failed to ensure a dignified
existence to said resident and to protect and promote the rights of the resident; 10 NYCRR
§415.3(f)(1)(i), in that the facility failed to protect the resident's right to adequate and
appropriate medical care; 10 NYCRR §415.5(a), in that the facility failed to ensure an
appropriate quality of life for said resident by deprivation of resident's dignity; 10 NYCRR
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§415.11, in that subject facility failed to develop and keep current a comprehensive care
plan to meet resident's needs; 10 NYCRR §415.11(c)(3), in that subject facility failed to
provide or arrange services that met generally accepted standards of care provided by
qüâlified persons in accordancc with resident's care plan; 10 NYCRR §415.12, in that the
facility failed to provide necessary care and services to attain or maintain the highest
practicable physical, mental and psycho-social well-being for resident; 10 NYCRR
§415.12(c), in that the facility failed to provide necessary care and services to ensure
pressure sore(s) did not develop and/or worsen and to promote healing of pressure sore(s);
10 NYCRR §415.12(h)(2), in that the facility failed to provide adequate supervision to
LULA STEVENS; 10 NYCRR §415.12(i), in that subject facility failed to ensure that
resident maintained acceptable parameters of nutritional status, inclüding protein levels;
10 NYCRR §415.12(j), in that resident was not provided sufficient fluid intake to =ai=*ain
proper hydration and health; 10 NYCRR §415.13, in that the facility failed to provide
sufficient nursing staff to provide nursing and related services to attain or maintain. the
highest practicable physical, mental, and psychesocial well-being of resident; 10 NYCRR
§415.15(b)(2)(i), in that the proper communicatien was not established between nursing
staff and the responsible physician, to assure that all patient care needs were met in the
develc-pment and implementation of the resident's care plan; 10 NYCRR §415.26(c), in that
the Defendant failed to employ sufficient prefessiõnal staff members to assure the health,
safety, proper care and treatment of the residents, including Plaintiff's deccdent.
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Plaintiff reiterates that Defêñdants allowed for systemic failures at subject facility
with regard to adeqüâ‡c staffing, proper hydration and health, and prevention of
development and worsening of a pressure sore.
To particularize further would require evidentiary information and/or would require
the Plaintiff to render a legal and/or medical spiñiêñ, which is improper for this pleading,
as it goes beyond the scope of that which is required pursuant to CPLR §3043. The Plaintiff
nonetheless will reserve the right to supplement and/or amend this response upon
complation of discovery and, further, will rely on any and all facts elicited at depositions,
during other discovery praccedings, and at the trial of this action to establish a claim in this
regard.
DEMAND NO. 6
Ifitwill be claimed defendants violated any right or benefit of the decedent, identify each
and every such right and/or benefit plaintiff claims was violated and as to each such alleged
violation:
a. State the date of each and every alleged violation as claimed above;
b. Set forth the source of each such right and/or benefit claimed to have bene
violated, specifically identifying whether such right and/or benefit was created by
the following:
1. The terms of any contract and, if so, the date and signatories to such
contract;
2. State statute;
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3. State rule or regulation;
4. State code;
5. Federal statute;
6. Federal code; and/or
7. Federal rule or regulation;
c. Identify each section and subsection of every contract, statute, code, regulation,
rule, and ordinance set forth above as the source of each right or benefit
defendants alleged to have violated; and
d. If itwill be claimed that the decedent suffered injuries as a result of a violation of
any of the above rights and/or benefits, state the nature, location, extent, and
duration of each such injury.
Plaintiff abjccts to this query to the extent that it would require evidentiary
information and/or would require Plaintiff to render a legal and/or expert :;!r!:r, which is
improper for this pleeding, as it goes beyond the scope of that which is required pursuant
to CPLR §3043.
Subject to, and without waiving this objection, Plaintiff refers to respanse numbers
1, 4 and 5, supra. Plaintiff nonetheless reserves the right to supplement and/or amend this
respanse upon completion of discovery and, further, will rely on any and all facts elicited at
depositions, during other diseõvery proceedings, and at the trial of this action to establish a
claim in this regard.
DEMAND NO. 7
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State with particularity each other act and/or omission on the part of defendants not
included above which plaintiff will claim constituted a violation of a right and/or benefit of the
decedent.
Plaintiff ûbjects to this query to the extent that itwould require evidentiary
information and/or would require plaintiff to render a legal and/or medical episiêñ, which
is improper for this pleading, as it goes bcyead the scope of that which is required pursuant
to CPLR §3043. Subject to, and without waiving this objection, see response numbers 1
and 5,supra. Plaintiff nonetheless reserves the right to supplement and/or amend this
response upon completion of discovery and, further, will rely on any and all facts clicited at
depositions, during other discovery proceedings, and at the trial of this action to establish a
claim in this regard.
DEMAND NO. 8
A particular statement setting forth the name and address of each and every physician
who rendered treatment to the decedent as a result of the injuries alleged in the Complaint,
providing the dates of all such treatment.
Upon information and belief, the names and address of each and every physician
who rendered treatment to Plaintiff's decedent, LULA STEVENS, are contained in the
clinical chart/records of Willi9=sville Suburban Nursing Home, 193 South Union Road,
Williamsville, New York 14221; Millard Fillmore Suburban Hospital, 1540 Maple Road,
Williamsville, New York 14221; Buffalo Ultrasound, 388 Evans Street, Williamsville, New
York 14221 and Niagara Lutheran Home and Rehabilitation Center, 64 Hager Street,
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Buffalo, New York 14208. Plaintiff will rely upon the medical records for exact dates and
types of treatment.
Further information responsive to this demand is presently unknown or üñavailable
to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon
completion of discovery and, further, will rely on any and all facts clicited at dcpasitions,
during other discovery proceediñgs, and at the trial of this action to establish a claim in this
regard.
DEMAND NO. 9
A particular statement setting forth the name and address of each and every physician
who rendered treatment to the decedent, prior to the date(s) of the alleged negligence/violation,
for the injuries and/or conditions alleged in the Complaint, providing the dates of all such
treatment.
Plaintiff abjects to this demand upon the grounds of relevance. Subject to, and
without waiving said objection, Defesdssts are referred to response number 8, supra.
DEMAND NO. 10
If itwill be claimed that the aforesaid injuries necessitated any hospitalization or
treatment at a health care facility, set forth the name of each hospital or health care facility with
the dates of confinement or outpatient treatment.
Upon information and belief, Plaintiff's dêcêdent, LULA STEVENS, was admitted
to Millard Fillmore Suburban Hospital. Plaintiff relies upon the medical records for any
and all medical providers and dates of treatment.
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Further information responsive to this damand is presently unknown or unavailable
to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon
completion of discovery and, further, will rely on any and all facts clicited at depositions,
during other discovery preccedings, and at the trial of this action to establish a claim in this
regard.
DEMAND NO. 11
Ifitwill be elaimed that the aforesaid injuries necessitated treatment by any other facility
or institution, set forth the name of each facility and/or institution with dates of confinement or
outpatient treatment.
Objection is made to this demand, upon the grounds of ambiguity. To the extent the
"institutions"
term is understood, Plaintiff's decedent, LULA STEVENS, did not receive
"institutions."
treatment by any other
DEMAND NO. 12
If itwill be claimed that the aforesaid injuries necessitated confinement to bed or home,
set forth the following:
a. The date or dates of conf-mement to home; and
b. The date or dates of confinement to bed.
Based upon information presently available, the Plaintiff alleges that as a result of
the negligence of the Defendants, decedent, LULA STEVENS, was generally confined more
so to bed as a result of the aforesaid injuries, through the time of her death, on April 20,
2017.
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DEMAND NO. 13
If any special damages are claimed as a result of the alleged negligence or violation by
defendants, set forth the following:
a. The charges for the above-named hospitals, health care facilities, or any other
facilities or institutions, separately listing each hospital or other facility bill;
Physicians'
b. charges, separately listing each such physician and the amount of
special damages claim;
c. Charges for medicines, itemizing the medicines charged; and
d. Charges for nursing care.
Plaintiff presently has no record or information regarding the total an::rts paid
for medical care and treatment rendered to Plaintiff's decedent, LULA STEVENS, as a
result of the events in the underlying matter. Upon information and belief, the relevant
medical expenses of Plaintiff's dccedent, LULA STEVENS, were paid by Medicaid
(Medicaid No.: BP39297J); Medicare (Medicare No.: *****0197A); and United Healthcare
(Policy No.: 821029599-00), which may retain a right of subrogation. Plaintiff is seeking
medical expenses in this matter, and will provide additional information relative to same,
under separate cover.
DEMAND NO. 14
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A particular statement as to each of the aforesaid amounts of money paid on behalf of the
decedent setting forth which, ifany, were covered by insurance, the name of the insurance
company involved in each case, and the amount paid in each case by said insurance company.
Defeñdants are referred to response number 13, supra.
Further information responsive to this demand is unknown at this time; if any
exists, itwill be provided once it isobtained. Accordingly,
Preview
FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/30/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE DENISE CLAY, Individually and as Administratrix of the Estate of RANDALL CLAY; THADDEUS C. TOMAKA, Individually and as Executor of the Estate of LILLIAN TOMAKA; ALBERT YOUNG, Individually and as Executor of the Estate of LULA STEVENS; BRENDA BARNES, Individually and as Administratrix De Bonis Non of the Estate of JOHN ANTHONY DOBBINS; VELPO JOHNSON, III,Individually and as Executor of the Estate of WILLIE LEE STEWART; DIANE ANTKOWIAK and DAVID JANUSZ, Individually and as Co-Executors of the Estate of LEOCADIA FRANUSIAK; and on behalf of all others similarly situated, Plaintiffs' Plaintiffs Verified vs. BILL OF PARTICULARS Index #003907/2010 RIDGE VIEW MANOR, LLC, WILLIAMSVILLE SUBURBAN, LLC LEGACY HEALTH CARE, LLC W. RICHARD ZACHER JOHN DOES 1-200 Defendants Pursuant to Rule 3041 et sequitur of the Civil Practice Law and Rules, BROWN CHIARI us, attorneys for Plaintiff, ALBERT YOUNG, Individually and as Executor of the ESTATE OF LULA STEVENS, herein serve upon the attorneys for Defendants, LEGACY HEALTH CARE, LLC, W. RICHARD ZACHER, and JOHN DOES 1-200 (hereinafter "Defendants"), submits this verified bill of particulars of the complaint: - BROWN CHIARI LLP - 1 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/30/2021 - Page 2 - DEMAND NO. 1 The manner and respect in which itis claimed defendants, were negligent, careless, and unskillful including, but not limited to, how defendants failed to exercise due and reasonable care under the circumstances in rendering care and treatment to the plaintiff's decedent, LULA STEVENS (hereinafter "decedent"), so as to avoid injury to decedent. "treatment" Plaintiff abjects to this demand to the extent that it references of decêdent, LULA STEVENS, to the extent that it implies that decedent sought medical treatment from Defêñdsñts. Decedent did not seek medical treatment from the Defendants' Defendants. Rather, deccdent was admitted to facility for nursing home/rehabilitative services. As such, the instant litigation has been brought for personal injuries arising as a result of nursing home negligence, pursuant to cc==:ñ law and the provisions afforded to the Plaintiff in conjunction with Public Health Law §2801-d. Subject to, and without waiving Plaintiff's objection, based upon information presently availshis, Plaintiff will claim that Defcñdañts were ñegligeñt, careless and reckless in that they, by and/or through its owners, management, administration, agents, servants, and employees, by virtue of their failure to comply with New York State Public Health Law §2801-d, failure to employ an adeqüate number of qualified personnel to carry out all the functions of their in violation of New York State Public Health Law §2801- necessary facility d, and related statutes, codes, rules and regulations, allowance of a pattern of deficiency for quality of care issues, failure to advance and support envirañmcats that pramated resident dignity and quality of care, and failure to provide appropriate and z±qüã‡ê resources for - BROWN CHIARI LLP - 2 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/30/2021 - Page 3 - facility staff, facility maintenance, facility supplies and staff training: failed to provide proper services to decadent; failed to properly staff subject facility; failed to provide adequate staffing; willfully, wantonly and/or recklessly disregarded the safety and well-being of decedent by deliberately understaffing the facility; failed to meet basic human needs by deliberately understaffing the facility; failed to provide sufficient care and staffing to provide necessary services; failed to enact proper and adeqüâ‡e staffing procedures that included an adequate number of qualified personnel; failed to provide adequate services to maintain decedent's physical, mental, and psycho-social well-being in violation of New York State Public Health Law §2801; failed to comply with state and federal statutes and regulations including New York State Public Health Law §2801; accepted and retained admission for nursing home residents, including Plaintiff's decedent, for whom Defendant knew it could not provide adequate care based upon inadequate staffing; failed to identify and evaluate the resident's need and the capability of the facility to meet those needs with adequate stamng; as a result of insufficient staffing, failed to prevent the devêlepsent of pressure sore(s) and failed to prevent the worsening of a pressure sore(s); failed to enact appropriate pelicies to prevent the development of pressure sore(s); failed to properly identify the lack of care that decedent was receiving with regard to skin condition; failed to provide appropriate pressure relieving and positioning devices and assistance; failed to provide adequate interventions to prevent improper pressure and body alignment; failed to prevent infection; failed to maintain an adequate infection control program; failed to enact proper pülicies and/or procedures to prevent the develêpment of infection; failed to enact and follow an appropriate -BROWN CHIARI LLP - 3 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/30/2021 - Page 4 - care plan for the Decedent; failed to chañge and/or adjust the decedcñt's care plan to meet the decedent's needs, most significantly, to address the prevention of the devel0pment and worsening of sacral pressure sore(s); allowing the decedent to suffer with a painful and extreme pressure sore; failed to provide adequate pain management; failed to properly train and/or instruct its agents, employees and/or servants with regard to proper skin care protocol for residents at risk for skin breakdown, as well as to properly and/or adequately supervise said employees to ensure that prsper skin care precedures were being followed; failed to maintain an adeqüåte infection control program; failed to enact proper p6licica and prõcedures to prevent devel0pment of infection; and failed to provide appropriate services in order to increase and maintain decedent's protein levels to effectuate adeqüâte healiñg of pressure ulcer(s). Plaintiff will claim, pursuant to Public Health Law §2808-a, that W. RICHARD ZACHER is and/or was a controlling person of LEGACY HEALTH CARE, LLC, and liable, jointly and severally, with and to the same extent as such residential health care facility, to Plaintiff's decedent for damages, or to the state for any civil fine, penalty, assessment or damages. Plaintiff additionally contends that Defendant, W. RICHARD ZACHER, failed to adeqüãtcly and properly mañagc, control and/or supervise the daily operations of, and/or services provided by agents, servants and/or employees of Defendant's facility, and cagaged in finañcial decisions that adversely affected resident care. Plaintiff contends that said Defêñdañt failed to ensure that subject nursing home was properly and sufficiently staffed, -BROWN CHIARI LLP - 4 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 - RECEIVED NYSCEF: 08/30/2021 - Page 5 and further failed to ensure that adeqüã‡e and proper policies and precedures were established, promulgated, effectuated and/or followed at subject facility for the prevention of a pressure sore, to ensure that accurate and ecñsistent clinical records were kept with regard to residents, as well as to ensure that proper "working relationships"/commüñication were established ameng nursing staff and other departments/services and/or disciplines, so that resident care needs could be met. Plaintiff contends that Defendant allõwed for systemic failures at subject facility, most significañtly, with regard to prevention of development and worsening of a pressure sore. To particularize further would require evidentiary information and/or would require Plaintiff to render a legal and/or medical episiêñ, which is improper for this pleading, as it goes beyond the scope of that which is required pursuant to CPLR §3043. Plaintiff nonetheless reserves the right to supplement and/or amend this response upon completion of discovery and, further, will rely on any and all facts clicited at depositions, during other discovery proceedings, and at the trial of this action to establish a claim in this regard. DEMAND NO. 2 State decedent's condition which itis claimed that defeñdañts failed to take due and improper cognizance of, and the true condition from which the decedent from which the decedent was suffering, which itis claimed that defendants failed to guard and treat against. - BROWN CHIARI LLP - 5 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/30/2021 - Page 6 - Plaintiff abjects to this demand to the extent that it infers that Plaintiff's decedent, sought medical treatment from Defendants. Plaintiff's decedent did not seek medical treatment from Defendants. Rather, Plaintiff's decedeñt, LULA STEVENS, was admitted Defêsessts' to facility for nursing home care and rehabilitative services. As such, subject litigation has been brought for personal injuries arising as a result of nursing home and corporate negligence, and pursuant to the provisions afforded to the Plaintiff concomitant with Public Health Law §2801-d. Subject to, and without waiving this objection, Plaintiff's decedent, LULA STEVENS, sustained an unstageable decubitus ulcer(s); dehydration; deprivation of dignity; deprivation of rights; loss of enjoyment of life; fear of impending death; and ultimately, death. To particularize further goes beyond the scope of CPLR §3043, requests evidentiary (expert) information, and is virtually identical to others struck down in the Fourth (4th Department (See Stidham v. Clerk,, 57 A.D.2d 1369 Dept. 20084 DEMAND NO. 3 The place or places where the services were rendered by defendants. Subject nursing home care and services were rendered at Williamsville Suburban Nursing Home, located at 193 South Union Road, Williamsville, New York 14221. DEMAND NO. 4 The nature, location, extent, and duration of each injury itwill be claimed was caused by the negligence of defendants. - BROWN CHIARI LLP - 6 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/30/2021 - Page 7 - Based upon information presently available, the Plaintiff will claim that as a result of the negligence of Defendants, and/or itsagents, servants, empicyces and/or other personnel, Plaintiff's decedent, LULA STEVENS, sustained serious and permañêñt injuries, including but not limited to: unstageable dêcabitus ulcer(s); dehydration; deprivation of dignity; deprivation of rights; loss of enjoyment of life; fear of impcñdiñg death; and ultimately, death. Further information responsive to this demand is presently unknown or unavailable to the Plaintiff. However, the Plaintiff reserves the right to amcñd this response upon completion of discovery and, further, will rely on any and all facts elicited at depositions, during other discovery preecediñgs, and at the trial of this action to establish a claim in this regard. DEMAND NO. 5 Pursuant to the authority of Webb-Weber v. Community Action for Human Services, Inc., (3rd 23 N.Y.3d 448 (2014), and Neissel v. Rensselaer Polytechnic Inst., 30 A.D.3d 881 Dept. 2006), identify each section of every statute, code, regulation, and/or ordinance which plaintiff will claim defendants violated and as to each such alleged violation: a. State the manner and respect in which itis claimed that defendants violated each statute, code regulation, and/or ordinance set forth above; and b. As to each such alleged violation, identify the agent or employee or other representative of defendants for whom plaintiff would hold defendants vicariously liable whom plaintiff alleges committed the violation. - BROWN CHIARI up - 7 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 - - RECEIVED NYSCEF: 08/30/2021 Page 8 Plaintiff abjects to this query to the extent that itwould require evidentiary information and/or would require Plaintiff to render a legal and/or expert epinien, which is improper for this pleading, as it goes bey6ñd the scope of that which is required pursuant to CPLR §3043. Subject to, and without waiving said abjection, based upon information presently available, itwill be claimed that Defendants violated the following statutes, codes and/or regulations: Public Health Law §2801-d, in that the facility dcñied the resident rights and benefits pursuant to State and Federal regulations and pursuant to the admission contract; failed to promote and/or eñhañce her quality of life; failed to enact and follow an appropriate care plan; failed to provide adequate staffing; failed to provide adequate and services to maintain resident's physical Public Health Law §2803- staffing well-bciñg; d, in that the resident was ñcgiccted and/or mistreated; 42 CFR §483.10(a)(1), in that subject facility failed to care for resident in a manner in which promoted and/or êñhañced her quality of life,and failed to promote care for resident to maintain resident's dignity; 42 CFR §483.10(e), in that the facility failed to protect the resident's right to be treated with respect and dignity; 42 CFR §483.21(b)(1), in that the facility failed to develop and implement a comprehensive person-centered care plan for the resident, including measurable objectives and timeframes to meet a resident's medical, nursing, and mental and psychosocial needs; 42 CFR §483.24, in that the facility failed to provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, includiñ¡; for activities of daily living; 42 CFR §483.25, in that the -BROWN CHIARILLP- 8 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 - - RECEIVED NYSCEF: 08/30/2021 Page 9 facility failed to provide quality of care, consistent with professional standards of practice; 42 CFR §483.25(b), in that the facility failed to prevent developmcat and worsening of pressure ulcer(s), and failed to ensure that the resident received necessary treatment and services to promote healing of pressure ulcer(s); 42 CFR §483.35, in that subject facility failed to have sufficient nursing staff to provide nursing and related services in accordañce with resident's care plan; 42 CFR §483.70, in that the Defendants failed to administer the subject facility in a manner that used its resources effectively and efficicñtly, and in that the facility failed to operate and provide services in compliance with all applicable Federal, State, and local laws, regulations, and codes, and with accepted professional standards and principles that apply to services being provided at the facility; 42 CFR §483.70(e), in that the facility failed to conduct and document a facility-wide assessment to determine what resources were necessary to care for its residents competently during day-to-day operations; 10 NYCRR §415.1(a)(1), in that the facility failed to meet every basic human need of the resident; 10 NYCRR §415.1(b)(1), in that the facility failed to provide care and services in a manner and quality consistent with generally accepted standards of practice, by deviating from and/or disregarding resident's care plan, and failing to properly staff subject facility;10 NYCRR §415.3(a), in that the facility failed to ensure a dignified existence to said resident and to protect and promote the rights of the resident; 10 NYCRR §415.3(f)(1)(i), in that the facility failed to protect the resident's right to adequate and appropriate medical care; 10 NYCRR §415.5(a), in that the facility failed to ensure an appropriate quality of life for said resident by deprivation of resident's dignity; 10 NYCRR -BROWN CHIARI LLP - 9 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/30/2021 - Page 10 - §415.11, in that subject facility failed to develop and keep current a comprehensive care plan to meet resident's needs; 10 NYCRR §415.11(c)(3), in that subject facility failed to provide or arrange services that met generally accepted standards of care provided by qüâlified persons in accordancc with resident's care plan; 10 NYCRR §415.12, in that the facility failed to provide necessary care and services to attain or maintain the highest practicable physical, mental and psycho-social well-being for resident; 10 NYCRR §415.12(c), in that the facility failed to provide necessary care and services to ensure pressure sore(s) did not develop and/or worsen and to promote healing of pressure sore(s); 10 NYCRR §415.12(h)(2), in that the facility failed to provide adequate supervision to LULA STEVENS; 10 NYCRR §415.12(i), in that subject facility failed to ensure that resident maintained acceptable parameters of nutritional status, inclüding protein levels; 10 NYCRR §415.12(j), in that resident was not provided sufficient fluid intake to =ai=*ain proper hydration and health; 10 NYCRR §415.13, in that the facility failed to provide sufficient nursing staff to provide nursing and related services to attain or maintain. the highest practicable physical, mental, and psychesocial well-being of resident; 10 NYCRR §415.15(b)(2)(i), in that the proper communicatien was not established between nursing staff and the responsible physician, to assure that all patient care needs were met in the develc-pment and implementation of the resident's care plan; 10 NYCRR §415.26(c), in that the Defendant failed to employ sufficient prefessiõnal staff members to assure the health, safety, proper care and treatment of the residents, including Plaintiff's deccdent. -BROWN CHIARILLP- 10 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/30/2021 - Page 11 - Plaintiff reiterates that Defêñdants allowed for systemic failures at subject facility with regard to adeqüâ‡c staffing, proper hydration and health, and prevention of development and worsening of a pressure sore. To particularize further would require evidentiary information and/or would require the Plaintiff to render a legal and/or medical spiñiêñ, which is improper for this pleading, as it goes beyond the scope of that which is required pursuant to CPLR §3043. The Plaintiff nonetheless will reserve the right to supplement and/or amend this response upon complation of discovery and, further, will rely on any and all facts elicited at depositions, during other discovery praccedings, and at the trial of this action to establish a claim in this regard. DEMAND NO. 6 Ifitwill be claimed defendants violated any right or benefit of the decedent, identify each and every such right and/or benefit plaintiff claims was violated and as to each such alleged violation: a. State the date of each and every alleged violation as claimed above; b. Set forth the source of each such right and/or benefit claimed to have bene violated, specifically identifying whether such right and/or benefit was created by the following: 1. The terms of any contract and, if so, the date and signatories to such contract; 2. State statute; - BROWN CHIARI up - 11 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 - Page - RECEIVED NYSCEF: 08/30/2021 12 3. State rule or regulation; 4. State code; 5. Federal statute; 6. Federal code; and/or 7. Federal rule or regulation; c. Identify each section and subsection of every contract, statute, code, regulation, rule, and ordinance set forth above as the source of each right or benefit defendants alleged to have violated; and d. If itwill be claimed that the decedent suffered injuries as a result of a violation of any of the above rights and/or benefits, state the nature, location, extent, and duration of each such injury. Plaintiff abjccts to this query to the extent that it would require evidentiary information and/or would require Plaintiff to render a legal and/or expert :;!r!:r, which is improper for this pleeding, as it goes beyond the scope of that which is required pursuant to CPLR §3043. Subject to, and without waiving this objection, Plaintiff refers to respanse numbers 1, 4 and 5, supra. Plaintiff nonetheless reserves the right to supplement and/or amend this respanse upon completion of discovery and, further, will rely on any and all facts elicited at depositions, during other diseõvery proceedings, and at the trial of this action to establish a claim in this regard. DEMAND NO. 7 - BROWN CHIARI LLP - 12 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/30/2021 - Page 13 - State with particularity each other act and/or omission on the part of defendants not included above which plaintiff will claim constituted a violation of a right and/or benefit of the decedent. Plaintiff ûbjects to this query to the extent that itwould require evidentiary information and/or would require plaintiff to render a legal and/or medical episiêñ, which is improper for this pleading, as it goes bcyead the scope of that which is required pursuant to CPLR §3043. Subject to, and without waiving this objection, see response numbers 1 and 5,supra. Plaintiff nonetheless reserves the right to supplement and/or amend this response upon completion of discovery and, further, will rely on any and all facts clicited at depositions, during other discovery proceedings, and at the trial of this action to establish a claim in this regard. DEMAND NO. 8 A particular statement setting forth the name and address of each and every physician who rendered treatment to the decedent as a result of the injuries alleged in the Complaint, providing the dates of all such treatment. Upon information and belief, the names and address of each and every physician who rendered treatment to Plaintiff's decedent, LULA STEVENS, are contained in the clinical chart/records of Willi9=sville Suburban Nursing Home, 193 South Union Road, Williamsville, New York 14221; Millard Fillmore Suburban Hospital, 1540 Maple Road, Williamsville, New York 14221; Buffalo Ultrasound, 388 Evans Street, Williamsville, New York 14221 and Niagara Lutheran Home and Rehabilitation Center, 64 Hager Street, -BROWN CHIARI LLP - 13 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 - - RECEIVED NYSCEF: 08/30/2021 Page 14 Buffalo, New York 14208. Plaintiff will rely upon the medical records for exact dates and types of treatment. Further information responsive to this demand is presently unknown or üñavailable to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon completion of discovery and, further, will rely on any and all facts clicited at dcpasitions, during other discovery proceediñgs, and at the trial of this action to establish a claim in this regard. DEMAND NO. 9 A particular statement setting forth the name and address of each and every physician who rendered treatment to the decedent, prior to the date(s) of the alleged negligence/violation, for the injuries and/or conditions alleged in the Complaint, providing the dates of all such treatment. Plaintiff abjects to this demand upon the grounds of relevance. Subject to, and without waiving said objection, Defesdssts are referred to response number 8, supra. DEMAND NO. 10 If itwill be claimed that the aforesaid injuries necessitated any hospitalization or treatment at a health care facility, set forth the name of each hospital or health care facility with the dates of confinement or outpatient treatment. Upon information and belief, Plaintiff's dêcêdent, LULA STEVENS, was admitted to Millard Fillmore Suburban Hospital. Plaintiff relies upon the medical records for any and all medical providers and dates of treatment. - BROWN CHIARI LLP - 14 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 - Page 15 - RECEIVED NYSCEF: 08/30/2021 Further information responsive to this damand is presently unknown or unavailable to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon completion of discovery and, further, will rely on any and all facts clicited at depositions, during other discovery preccedings, and at the trial of this action to establish a claim in this regard. DEMAND NO. 11 Ifitwill be elaimed that the aforesaid injuries necessitated treatment by any other facility or institution, set forth the name of each facility and/or institution with dates of confinement or outpatient treatment. Objection is made to this demand, upon the grounds of ambiguity. To the extent the "institutions" term is understood, Plaintiff's decedent, LULA STEVENS, did not receive "institutions." treatment by any other DEMAND NO. 12 If itwill be claimed that the aforesaid injuries necessitated confinement to bed or home, set forth the following: a. The date or dates of conf-mement to home; and b. The date or dates of confinement to bed. Based upon information presently available, the Plaintiff alleges that as a result of the negligence of the Defendants, decedent, LULA STEVENS, was generally confined more so to bed as a result of the aforesaid injuries, through the time of her death, on April 20, 2017. -BROWN CHIARI LLP - 15 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 - Page - RECEIVED NYSCEF: 08/30/2021 16 DEMAND NO. 13 If any special damages are claimed as a result of the alleged negligence or violation by defendants, set forth the following: a. The charges for the above-named hospitals, health care facilities, or any other facilities or institutions, separately listing each hospital or other facility bill; Physicians' b. charges, separately listing each such physician and the amount of special damages claim; c. Charges for medicines, itemizing the medicines charged; and d. Charges for nursing care. Plaintiff presently has no record or information regarding the total an::rts paid for medical care and treatment rendered to Plaintiff's decedent, LULA STEVENS, as a result of the events in the underlying matter. Upon information and belief, the relevant medical expenses of Plaintiff's dccedent, LULA STEVENS, were paid by Medicaid (Medicaid No.: BP39297J); Medicare (Medicare No.: *****0197A); and United Healthcare (Policy No.: 821029599-00), which may retain a right of subrogation. Plaintiff is seeking medical expenses in this matter, and will provide additional information relative to same, under separate cover. DEMAND NO. 14 -BROWN CHIARILLP- 16 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 47 - Page 17 - RECEIVED NYSCEF: 08/30/2021 A particular statement as to each of the aforesaid amounts of money paid on behalf of the decedent setting forth which, ifany, were covered by insurance, the name of the insurance company involved in each case, and the amount paid in each case by said insurance company. Defeñdants are referred to response number 13, supra. Further information responsive to this demand is unknown at this time; if any exists, itwill be provided once it isobtained. Accordingly,