Preview
FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010
NYSCEF DOC. NO. 48 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 allothers 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 ete,attorneys for Plaintiff, VELPO JOHNSON, III, Individually and as Executor of the
ESTATE OF WILLIE LEE STEWART, 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 maññct 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 decedcñt, WILLIE LEE
STEWART (hereinafter "decedent"), so as to avoid injury to decedent.
"treatment"
Plaintiff objects to this dêmañd to the extent that it references of
decedent, WILLIE LEE STEWART, to the extent that it implies that decedent sought
medical treatment from Defendants. Decedent did not seek medical treatment from the
Defendants'
Defcadaats. Rather, decedent 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 negligcace, pursuant to common law and the
provisions afforded to the Plaintiff in c:: : :tion with Public Health Law §2801-d.
Subject to, and without waiving Plaintiff's objection, based upon information
presently available, Plaintiff will claim that Defendants were negligent, 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 adeqüâte 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 deficicñcy for
qüâlity of care issues, failure to advance and s=pport environments that prêmeted resident
dignity and quality of care, failure to provide appropriate and adequate resources for facility
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staff, facility maintenance, facility supplies and staff training: failed to provide proper
services to decedent; failed to properly staff subject facility; failed to provide adequate
staffing; willfully, wanto=ly and/or recklessly disregarded the safety and well-being of
decedent by deliberately understaffing the facility; failed to meet basic humañ needs by
deliberately understaffing the facility; failed to provide sufficient care and staffing to provide
necessary services; failed to enact proper and adequate staffing precedures that included an
adequate number of qualified personnel; failed to provide adequate services to maintain
decedêñt'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 regulatiens;
accepted and retained admission for nursing home residents, including Plaintiff's decedcat,
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 staffing; as a result of insufficient staffing, failed to
prevent the development of pressure sore(s) and failed to prevent the worsening of a sacral
pressure sore(s); failed to enact appropriate pslicies to prevent the derclapment of pressure
sore(s); failed to properly identify the lack of care that decedent was receiving with regard
to skin ceñditic=; failed to provide appropriate pressure relieving and positicñiñg devices
and assistance; failed to provide adequate interventions to prevent improper pressure and
body alignscñt; failed to prevent infection; failed to maintain an adequate infection control
program; failed to enact proper palicies and/or precedüres to prevent the development of
infection; failed to enact and follow an appropriate care plan for the Decedent; failed to
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change and/or adjust the decedent's care plan to meet the decedent's needs, most
significantly, to address the prevention of the development 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,
empleyces and/or servants with regard to proper skin care protocol for residents at risk for
skin breakdown, as well as to properly and/or adcquately supervise said emplõyees to ensure
that proper skin care precedures were being followed; failed to maintain an adeqüà te
infection control program; failed to enact proper palicies and procedures to prevent
develop=cat of infection; and failed to provide appropriate services in order to increase and
maintain decedent's protein levels to effectuate adeqüâte healing of pressure ulcer(s).
Plaintiff will claim, pursuant to Public Health Law §2808-a, that W. RICHARD
ZACHER is and/or was a contralling 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, ãssessment or
damages.
Plaintiff additionally centends that Defcsdast, W. RICHARD ZACHER, failed to
adequately and properly manage, 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 financial decisians that adversely affected resident care. Plaintiff contends that said
Defeñdañt failed to ensure that subject nursing home was properly and sufficiently staffed,
and further failed to ensure that adequate and proper policies and procedures were
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established, promulgatcd, effectuated and/or followed at subject facility for the prevention
of a pressure sore, to ensure that accurate and consistent cliaical records were kept with
regard to residents, as well as to ensure that proper "working relationships"/communication
were established among nursing staff and other departments/services añd/or discipliñc:, so
that resident care needs could be met.
Plaintiff contcñds that Defendant allowed for systemic failures at subject facility,
most significantly, with regard to prevention of development and worsening of a pressure
sore.
To particularize further would requirc evidentiary information andler would
require Plaintiff to render a legal and/or medical epis!en, 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 sapplement a=d/or amend this response upon
completion of discovery and, further, will rely on any and all facts elicited at depositions,
during other discavery 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 defendants 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.
Plaintiff objects to this demase to the extent that it infers that Plaintiff's decedent,
sought medical treatment from Defendants. Plaintiff's decedent did not seek medical
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treatment from Defcñdants. Rather, Plaintiff's decedent, WILLIE LEE STEWART, was
Defêñdants'
admitted to facility for nursing home care and rchshilitative services. As such,
subject litigati6n has been brought for personal injuries arising as a result of nursing home
and corporate ñcgligence, and pursuant to the provisions affarded to the Plaintiff
cGaccmitant with Public Health Law §2801-d. Subject to, and without waiving this
objection, Plaintiff's decedent, WILLIE LEE STEWART, sustained an unstageable
dccabitus ulcer requiring debridement; blisters; deprivation of dignity; deprivation of
rights; loss of enjoyment of life; fear of impending death; and nItimately, 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. 2008%
DEMAND NO. 3
The place or places where the services were rendered by defendants.
Subject nursing home care and services were rendered at Wil!ªe=aville Suburban
Nursing Home, located at 193 South Union Road, Williamsville, New York 14221.
pEMAND NO. 4
The nature, location, extent, and duration of each injury itwill be claimed was caused by
the negligence of defendants.
Based upon information presently available, the Plaintiff will claim that as a result
of the negligêñce of Defendants, and/or its agents, servants, emplGyees and/or other
personnel, Plaintiff's decedent, WILLIE LEE STEWART, sustained serious and
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permancñt injuries, iñcluding but not limited to: unstagcable decubitus ulcer requiring
debridemêñt; blisters; deprivation of dignity; deprivation of rights; loss of enjoyment of
life;fear of impending death; and ultimately, death.
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 discavery and, further, will rely on any and allfacts elicited at depositions,
other discovery proceedings, and at the trial of this action to establish a claim in this
during
regard.
DE-MAND 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), each section of every statute, code, regulation, and/or ordinance which plaintiff
identify
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.
Plaintiff objects to this query to the extent that it would require evidentiary
information and/or would require Plaintiff to render a legal and/or expert :;ir!::, which is
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improper for this pleading, as it goes beyond the scope of that which is required pursuant
to CPLR §3043.
Subject to, and without waiving said objection, based upon information presently
availabic, it will be claimed that Defendants violated the following statutes, codes and/or
regulatiõns: Public Health Law §2801(d), in that the facility denied the resident rights and
beacfits pursuant to State and Federal regulations and pursuant to the admission contract;
failed to premett and/or enhance her quality of life; failed to enact and follow an
appropriate care plan; failed to provide adeqüâ‡ê staffing; failed to provide adequate
and services to maintain resident's physical Public Health Law §2803-
staffing well-being;
d, in that the resident was neglected and/or mistreated; 42 CFR §483.10(a)(1), in that
subject facility failed to care for resident in a sssscr in which promoted and/or cahaaced
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, 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 necessäry care and services to
attain or maintain the highest practicable physical, mental, and psychesecial well-being,
including for activities of daily living; 42 CFR §483.25, in that the facility failed to provide
quality of care, consistent with professional standards of practice; 42 CFR §483.25(b)(1), in
that the facility failed to prevent development and worsening of pressure ulcer(s), and
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failed to ensure that resident received necessary treatment and services to pramatê 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 accordance with resident's care
plan; 42 CFR §483.70, in that the Defendants failed to sdrEister the subject facility in a
maññêr that used its resources effectively and efficiently, and in that the facility failed to
operate and provide services in compliañce with all applicable Federal, State, and local
laws, regüIati6ns, 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 qüâIity of life for said
resident by deprivation of resident's dignity; 10 NYCRR §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
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generally accepted standards of care provided by qualified persons in accordance 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 mental and psycho-
physical,
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
pramats healing of pressure sore(s); 10 NYCRR §415.12(h)(2), in that the facility failed to
provide adequate supervision to WILLIE LEE STEWART; 10 NYCRR §415.12(i)(1), in
that subject facility failed to ensure that resident maintained acceptable parameters of
nutritional status, incinding protein levels; 10 NYCRR §415.12(j), in that resident was not
pr6vided sufficient fluid intake to maintain 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
psychosocial well-being of resident; 10 NYCRR §415.15(b)(2)(i), in that the proper
cons::ication was not established between nursing staff and the responsible physician, to
assure that all patient care needs were met in the development and implescñtation of the
resident's care plan; 10 NYCRR §415.26(c), in that the Defendant failed to cmplay
sufucicat professional staff members to assure the health, safety, proper care and
treatment of the residents, including Plaintiff's decedent.
Plaintiff reiterates that Defendants allowed for systemic fãilüres at subject facility
with regard to adequate staffing, proper hydration and health, and prevention of
development and worsening of a pressure sore.
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To particularize further would require evidentiary information and/or would require
the Plaintiff to render a legal and/or medical epinion, 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 supple=ent and/or amend this response upon
completion of discovery and, further, will rely on any and all facts clicited at depesitions,
during other discovery prsecediñgs, and at the trial of this action to establish a claim in this
regard.
DEMAND NO. 6
If itwill 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;
3. State rule or regulation;
4. State code;
5. Federal statute;
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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 objects to this query to the extent that it would require evidentiary
information and/or would require Plaintiff to render a legal and/or expert :;irier, which is
improper for this pleading, 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 response numbers
1, 4 and 5, supra. Plaintiff nonetheless reserves the right to suppkmcñ‡ and/or amend this
response upon completion of discovery and, further, will rely on any and all facts elicited at
depositions, during other discovery proceediags, and at the trial of this action to establish a
claim in this regard.
DEMAND NO. 7
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.
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Plaintiff objects to this query to the extent that it would require evidentiary
information and/or would require Plaintiff to render a legal and/or medical :;ini:n, which
is improper for this pleadiag, as it goes beyond the scope of that which is required pursuant
to CPLR §3043. Subject to, and without waiving this objection, see response numbers 1
and 5, su pra. Plaintiff nonetheless reserves the right to supplcmcnt and/or amend this
response upon completion of discovery and, further, will rely on any and all facts clicitcd at
depositions, during other discovery procccdings, 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, WILLIE LEE STEWART, are contained
in the clinical chart/records of Williamsville Suburban Nursing Home, 193 South Union
Road, Williamsville, New York 14221; Erie County Medical Center, 462 Grider Street,
New York and Sisters of Hospital - St. Joseph's 2605
Buffalo, 14215; Charity Campus,
Harlem Road, Cheektowaga, New York 14225. Plaintiff will rely upon the medical records
for exact dates and types of treatment.
Further information responsive to this demand is presently unknown or unavailable
to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon
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completion of discovery and, further, will rely on any and all facts elicited at depositions,
during other discovery proceedings, 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 allsuch
treatment.
Plaintiff objects to this demand upon the grounds of relevance. Subject to, and
without waiving said objection, Defendâñ‡s are referred to response number 8, supra.
DEMAND NO. 10
Ifitwill 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 decedent, WILLIE LEE STEWART, was
admitted to Erie Medical Center and Sisters of Hospital - St. Joseph's
County Charity
Campus. Plaintiff relies upon the medical records for any and all medical providers and
dates of treatment.
Further information responsive to this demand is presently unknown or unavailable
to the Plaintiff. However, the Plaintift reserves the right to amcad this response upon
completion of discovery and, further, will rely on any and all facts clicited at depositions,
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during other discovery precccdiñgs, and at the trial of this action to establish a claim in this
regard.
DEMAND NO. 11
Ifitwill be claimed 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 confinemeñt 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, WILLIE LEE STEWART, did not
"institutions."
receive treatment by any other
DEMAND NO. 12
Ifitwill be claimed that the aforesaid injuries necessitated confinemeñt to bed or home,
set forth the following:
a. The date or dates of confinement 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 Defeñdañts, decedeñt, WILLIE LEE STEWART, was generally
confined more so to bed as a result of the aforesaid injuries, from the date of her adm_issian
on or about February 9, 2008, through the time of her death, on January 29, 2011.
DEMAND NO. 13
If any special damages are claimed as a result of the alleged negligence or violation by
defendants, set forth the following:
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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 amounts paid
for medical care and treatment rendered to Plaintiff's decedent, WILLIE LEE
STEWART, as a result of the events in the underlying matter. Upon information and
belief, the relevant medical expenses of Plaintiff's decedeñt, WILLIE LEE STEWART,
were paid by Medicaid (Medicaid No.: EE50326J) and Medicare (Medicare No.:
*****5912D). Plaintiff is seeking medical expenses in this matter, and will provide
additional information relative to same, under separate cover.
DEMAND NO. 14
A particular statement as to each of the aforesaid amounts of money paid on behalf of the
decedent se
Preview
FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 48 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 allothers 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 ete,attorneys for Plaintiff, VELPO JOHNSON, III, Individually and as Executor of the ESTATE OF WILLIE LEE STEWART, 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. 48 - - RECEIVED NYSCEF: 08/30/2021 Page 2 DEMAND NO. 1 The maññct 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 decedcñt, WILLIE LEE STEWART (hereinafter "decedent"), so as to avoid injury to decedent. "treatment" Plaintiff objects to this dêmañd to the extent that it references of decedent, WILLIE LEE STEWART, to the extent that it implies that decedent sought medical treatment from Defendants. Decedent did not seek medical treatment from the Defendants' Defcadaats. Rather, decedent 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 negligcace, pursuant to common law and the provisions afforded to the Plaintiff in c:: : :tion with Public Health Law §2801-d. Subject to, and without waiving Plaintiff's objection, based upon information presently available, Plaintiff will claim that Defendants were negligent, 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 adeqüâte 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 deficicñcy for qüâlity of care issues, failure to advance and s=pport environments that prêmeted resident dignity and quality of care, failure to provide appropriate and adequate resources for facility - BROWN CHIARI LLP - 2 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 48 - - RECEIVED NYSCEF: 08/30/2021 Page 3 staff, facility maintenance, facility supplies and staff training: failed to provide proper services to decedent; failed to properly staff subject facility; failed to provide adequate staffing; willfully, wanto=ly and/or recklessly disregarded the safety and well-being of decedent by deliberately understaffing the facility; failed to meet basic humañ needs by deliberately understaffing the facility; failed to provide sufficient care and staffing to provide necessary services; failed to enact proper and adequate staffing precedures that included an adequate number of qualified personnel; failed to provide adequate services to maintain decedêñt'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 regulatiens; accepted and retained admission for nursing home residents, including Plaintiff's decedcat, 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 staffing; as a result of insufficient staffing, failed to prevent the development of pressure sore(s) and failed to prevent the worsening of a sacral pressure sore(s); failed to enact appropriate pslicies to prevent the derclapment of pressure sore(s); failed to properly identify the lack of care that decedent was receiving with regard to skin ceñditic=; failed to provide appropriate pressure relieving and positicñiñg devices and assistance; failed to provide adequate interventions to prevent improper pressure and body alignscñt; failed to prevent infection; failed to maintain an adequate infection control program; failed to enact proper palicies and/or precedüres to prevent the development of infection; failed to enact and follow an appropriate care plan for the Decedent; failed to -BROWN CHIARI LLP - 3 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 48 - Page - RECEIVED NYSCEF: 08/30/2021 4 change and/or adjust the decedent's care plan to meet the decedent's needs, most significantly, to address the prevention of the development 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, empleyces and/or servants with regard to proper skin care protocol for residents at risk for skin breakdown, as well as to properly and/or adcquately supervise said emplõyees to ensure that proper skin care precedures were being followed; failed to maintain an adeqüà te infection control program; failed to enact proper palicies and procedures to prevent develop=cat of infection; and failed to provide appropriate services in order to increase and maintain decedent's protein levels to effectuate adeqüâte healing of pressure ulcer(s). Plaintiff will claim, pursuant to Public Health Law §2808-a, that W. RICHARD ZACHER is and/or was a contralling 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, ãssessment or damages. Plaintiff additionally centends that Defcsdast, W. RICHARD ZACHER, failed to adequately and properly manage, 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 financial decisians that adversely affected resident care. Plaintiff contends that said Defeñdañt failed to ensure that subject nursing home was properly and sufficiently staffed, and further failed to ensure that adequate and proper policies and procedures were -BROWN CHIARI LLP - 4 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 48 - - RECEIVED NYSCEF: 08/30/2021 Page 5 established, promulgatcd, effectuated and/or followed at subject facility for the prevention of a pressure sore, to ensure that accurate and consistent cliaical records were kept with regard to residents, as well as to ensure that proper "working relationships"/communication were established among nursing staff and other departments/services añd/or discipliñc:, so that resident care needs could be met. Plaintiff contcñds that Defendant allowed for systemic failures at subject facility, most significantly, with regard to prevention of development and worsening of a pressure sore. To particularize further would requirc evidentiary information andler would require Plaintiff to render a legal and/or medical epis!en, 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 sapplement a=d/or amend this response upon completion of discovery and, further, will rely on any and all facts elicited at depositions, during other discavery 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 defendants 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. Plaintiff objects to this demase to the extent that it infers that Plaintiff's decedent, sought medical treatment from Defendants. Plaintiff's decedent did not seek medical - BROWN CHIARILLP- 5 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 48 - - RECEIVED NYSCEF: 08/30/2021 Page 6 treatment from Defcñdants. Rather, Plaintiff's decedent, WILLIE LEE STEWART, was Defêñdants' admitted to facility for nursing home care and rchshilitative services. As such, subject litigati6n has been brought for personal injuries arising as a result of nursing home and corporate ñcgligence, and pursuant to the provisions affarded to the Plaintiff cGaccmitant with Public Health Law §2801-d. Subject to, and without waiving this objection, Plaintiff's decedent, WILLIE LEE STEWART, sustained an unstageable dccabitus ulcer requiring debridement; blisters; deprivation of dignity; deprivation of rights; loss of enjoyment of life; fear of impending death; and nItimately, 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. 2008% DEMAND NO. 3 The place or places where the services were rendered by defendants. Subject nursing home care and services were rendered at Wil!ªe=aville Suburban Nursing Home, located at 193 South Union Road, Williamsville, New York 14221. pEMAND NO. 4 The nature, location, extent, and duration of each injury itwill be claimed was caused by the negligence of defendants. Based upon information presently available, the Plaintiff will claim that as a result of the negligêñce of Defendants, and/or its agents, servants, emplGyees and/or other personnel, Plaintiff's decedent, WILLIE LEE STEWART, sustained serious and -BROWN CHIARI LLP - 6 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/30/2021 - Page 7 - permancñt injuries, iñcluding but not limited to: unstagcable decubitus ulcer requiring debridemêñt; blisters; deprivation of dignity; deprivation of rights; loss of enjoyment of life;fear of impending death; and ultimately, death. 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 discavery and, further, will rely on any and allfacts elicited at depositions, other discovery proceedings, and at the trial of this action to establish a claim in this during regard. DE-MAND 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), each section of every statute, code, regulation, and/or ordinance which plaintiff identify 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. Plaintiff objects to this query to the extent that it would require evidentiary information and/or would require Plaintiff to render a legal and/or expert :;ir!::, which is -BROWN CHIARI LLP - 7 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 48 - - RECEIVED NYSCEF: 08/30/2021 Page 8 improper for this pleading, as it goes beyond the scope of that which is required pursuant to CPLR §3043. Subject to, and without waiving said objection, based upon information presently availabic, it will be claimed that Defendants violated the following statutes, codes and/or regulatiõns: Public Health Law §2801(d), in that the facility denied the resident rights and beacfits pursuant to State and Federal regulations and pursuant to the admission contract; failed to premett and/or enhance her quality of life; failed to enact and follow an appropriate care plan; failed to provide adeqüâ‡ê staffing; failed to provide adequate and services to maintain resident's physical Public Health Law §2803- staffing well-being; d, in that the resident was neglected and/or mistreated; 42 CFR §483.10(a)(1), in that subject facility failed to care for resident in a sssscr in which promoted and/or cahaaced 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, 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 necessäry care and services to attain or maintain the highest practicable physical, mental, and psychesecial well-being, including for activities of daily living; 42 CFR §483.25, in that the facility failed to provide quality of care, consistent with professional standards of practice; 42 CFR §483.25(b)(1), in that the facility failed to prevent development and worsening of pressure ulcer(s), and -BROWN CHIARI LLP - 8 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/30/2021 - Page 9 - failed to ensure that resident received necessary treatment and services to pramatê 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 accordance with resident's care plan; 42 CFR §483.70, in that the Defendants failed to sdrEister the subject facility in a maññêr that used its resources effectively and efficiently, and in that the facility failed to operate and provide services in compliañce with all applicable Federal, State, and local laws, regüIati6ns, 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 qüâIity of life for said resident by deprivation of resident's dignity; 10 NYCRR §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 - BROWN CHIARI LLP - 9 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 48 - - RECEIVED NYSCEF: 08/30/2021 Page 10 generally accepted standards of care provided by qualified persons in accordance 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 mental and psycho- physical, 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 pramats healing of pressure sore(s); 10 NYCRR §415.12(h)(2), in that the facility failed to provide adequate supervision to WILLIE LEE STEWART; 10 NYCRR §415.12(i)(1), in that subject facility failed to ensure that resident maintained acceptable parameters of nutritional status, incinding protein levels; 10 NYCRR §415.12(j), in that resident was not pr6vided sufficient fluid intake to maintain 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 psychosocial well-being of resident; 10 NYCRR §415.15(b)(2)(i), in that the proper cons::ication was not established between nursing staff and the responsible physician, to assure that all patient care needs were met in the development and implescñtation of the resident's care plan; 10 NYCRR §415.26(c), in that the Defendant failed to cmplay sufucicat professional staff members to assure the health, safety, proper care and treatment of the residents, including Plaintiff's decedent. Plaintiff reiterates that Defendants allowed for systemic fãilüres at subject facility with regard to adequate staffing, proper hydration and health, and prevention of development and worsening of a pressure sore. -BROWN CHIARI LLP - 10 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 48 - RECEIVED NYSCEF: 08/30/2021 Page 11 - To particularize further would require evidentiary information and/or would require the Plaintiff to render a legal and/or medical epinion, 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 supple=ent and/or amend this response upon completion of discovery and, further, will rely on any and all facts clicited at depesitions, during other discovery prsecediñgs, and at the trial of this action to establish a claim in this regard. DEMAND NO. 6 If itwill 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; 3. State rule or regulation; 4. State code; 5. Federal statute; - BROWN CHIARI LLP - 11 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/30/2021 - Page 12 - 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 objects to this query to the extent that it would require evidentiary information and/or would require Plaintiff to render a legal and/or expert :;irier, which is improper for this pleading, 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 response numbers 1, 4 and 5, supra. Plaintiff nonetheless reserves the right to suppkmcñ‡ and/or amend this response upon completion of discovery and, further, will rely on any and all facts elicited at depositions, during other discovery proceediags, and at the trial of this action to establish a claim in this regard. DEMAND NO. 7 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. -BROWN CHIARI LLP - 12 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/30/2021 - Page 13 - Plaintiff objects to this query to the extent that it would require evidentiary information and/or would require Plaintiff to render a legal and/or medical :;ini:n, which is improper for this pleadiag, as it goes beyond the scope of that which is required pursuant to CPLR §3043. Subject to, and without waiving this objection, see response numbers 1 and 5, su pra. Plaintiff nonetheless reserves the right to supplcmcnt and/or amend this response upon completion of discovery and, further, will rely on any and all facts clicitcd at depositions, during other discovery procccdings, 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, WILLIE LEE STEWART, are contained in the clinical chart/records of Williamsville Suburban Nursing Home, 193 South Union Road, Williamsville, New York 14221; Erie County Medical Center, 462 Grider Street, New York and Sisters of Hospital - St. Joseph's 2605 Buffalo, 14215; Charity Campus, Harlem Road, Cheektowaga, New York 14225. Plaintiff will rely upon the medical records for exact dates and types of treatment. Further information responsive to this demand is presently unknown or unavailable to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon -BROWN CHIARI u p - 13 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/30/2021 - Page 14 - completion of discovery and, further, will rely on any and all facts elicited at depositions, during other discovery proceedings, 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 allsuch treatment. Plaintiff objects to this demand upon the grounds of relevance. Subject to, and without waiving said objection, Defendâñ‡s are referred to response number 8, supra. DEMAND NO. 10 Ifitwill 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 decedent, WILLIE LEE STEWART, was admitted to Erie Medical Center and Sisters of Hospital - St. Joseph's County Charity Campus. Plaintiff relies upon the medical records for any and all medical providers and dates of treatment. Further information responsive to this demand is presently unknown or unavailable to the Plaintiff. However, the Plaintift reserves the right to amcad this response upon completion of discovery and, further, will rely on any and all facts clicited at depositions, - BROWN CHIARI LLP - 14 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 48 - - RECEIVED NYSCEF: 08/30/2021 Page 15 during other discovery precccdiñgs, and at the trial of this action to establish a claim in this regard. DEMAND NO. 11 Ifitwill be claimed 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 confinemeñt 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, WILLIE LEE STEWART, did not "institutions." receive treatment by any other DEMAND NO. 12 Ifitwill be claimed that the aforesaid injuries necessitated confinemeñt to bed or home, set forth the following: a. The date or dates of confinement 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 Defeñdañts, decedeñt, WILLIE LEE STEWART, was generally confined more so to bed as a result of the aforesaid injuries, from the date of her adm_issian on or about February 9, 2008, through the time of her death, on January 29, 2011. DEMAND NO. 13 If any special damages are claimed as a result of the alleged negligence or violation by defendants, set forth the following: -BROWN CHIARIUP- 15 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 48 - - RECEIVED NYSCEF: 08/30/2021 Page 16 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 amounts paid for medical care and treatment rendered to Plaintiff's decedent, WILLIE LEE STEWART, as a result of the events in the underlying matter. Upon information and belief, the relevant medical expenses of Plaintiff's decedeñt, WILLIE LEE STEWART, were paid by Medicaid (Medicaid No.: EE50326J) and Medicare (Medicare No.: *****5912D). Plaintiff is seeking medical expenses in this matter, and will provide additional information relative to same, under separate cover. DEMAND NO. 14 A particular statement as to each of the aforesaid amounts of money paid on behalf of the decedent se