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Gregory L. Johnson, 177889 E-FILED
1 2/8/2023 1:15 PM
Joanna A. Hutchins, 307058 Superior Court of California
2 JOHNSON MOORE County of Fresno
100 E. Thousand Oaks Boulevard, Suite 229 By: Marta Sanchez, Deputy
3 Thousand Oaks, CA 91360
Telephone: (805) 988-3661
4
Facsimile: (805) 494-4777
5 Attorneys for Plaintiffs
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
COUNTY OF FRESNO
8
9 LOLA NUTT, by and through her Successor CASE NO.: 21CECG00531
in Interest, HENRY NUTT; and HENRY
10
NUTT, KEVIN NUTT, VASHON NUTT, and SECOND AMENDED COMPLAINT FOR
11 TYRONE NUTT, individually, DAMAGES:
1. Elder Abuse and Neglect (Welf. &
12 Plaintiffs, Inst. Code, § 15600 et seq.)
vs. 2. Violation of Resident Rights (Health
13 & Saf. Code, § 1430(b))
3. Wrongful Death
14 ASFC, LLC dba SIERRA VISTA
HEALTHCARE; ASPEN SKILLED
15 HEALTHCARE, INC; SAINT AGNES
16 MEDICAL CENTER and CRYSTAL IRWIN-
SINGH, D.O., DOES 1-15; and DOES 18-25
17
Defendants.
18
19
20
21 Plaintiffs hereby allege as follows:
22 PARTIES
23 1. Plaintiff: Plaintiff LOLA NUTT (hereinafter “MS. NUTT”) was born on April 11, 1948
24 and died on February 25, 2020. At all times relevant herein, MS. NUTT was a resident of the
25 State of California, County of Fresno.
26 2. MS. NUTT was, at all times relevant herein, an “elder” as defined by Welfare and
27 Institutions Code section 15610.27 and had physical limitations that restricted her ability to carry
28 out normal activities to protect her rights as discussed more fully infra.
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SECOND AMENDED COMPLAINT FOR DAMAGES
1 3. Successor in Interest: HENRY NUTT is the son of MS. NUTT and brings this brings
2 this action on her behalf as her Successor in Interest.
3 4. Heirs: HENRY NUTT, KEVIN NUTT, VASHON NUTT, and TYRONE NUTT are MS.
4 NUTT’s living children and they bring the Wrongful Death claim in their individual capacities as
5 her heirs.
6 5. ASFC, LLC dba SIERRA VISTA HEALTHCARE: Defendant ASFC, LLC
7 (“LICENSEE”), at all times relevant herein was, a California limited liability company engaged
8 in the business of providing long-term custodial care as a Skilled Nursing Facility (“SNF”)
9 operating under the fictitious business name of SIERRA VISTA HEALTHCARE (“SIERRA
10 VISTA” or the “FACILITY”) at 1715 S. Cedar Avenue in Fresno, California 93702, within the
11 County of Fresno.
12 6. ASFC, LLC DUTIES: ASFC, LLC is responsible for compliance with licensing
13 requirements and the organization, management, operation, and control of the FACILITY. The
14 general duties of a licensee are set forth in Title 22 of the California Code of Regulations section
15 72501. Certain duties are non-delegable including the responsibility for compliance with
16 regulations and the management and control of the SNF. Delegation of authority by a licensee
17 shall not diminish the responsibilities of the licensee. Therefore, even where a SNF licensee
18 delegates operational control to another person or entity, that SNF licensee remains directly
19 liable for management, operation, and control of the facility. (Cal. Code Regs., tit. 22, §
20 72501(a).)
21 7. ASFC, LLC was subject to the requirement of federal and state laws and regulations that
22 govern the operation of a SNF in California. In connection with its operation of the FACILITY,
23 ASFC, LLC has a substantial and ongoing caretaking and custodial relationship involving
24 ongoing responsibility for the basic needs of its residents, including MS. NUTT.
25 8. By law, the licensee of SNFs operating in California must delegate to a designated
26 administrator, in writing, the authority to organize and carry out the day-to-day functions of the
27 SNF. During MS. NUTT’s residency at the FACILITY, the FACILITY had an Administrator,
28 believed to be Jordan Holt, who was responsible for the administration and management of the
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SECOND AMENDED COMPLAINT FOR DAMAGES
1 SNF in accordance with Title 22 of the California Code of Regulations section 72513. During
2 MS. NUTT’s residency at the FACILITY, the FACILITY had a Director of Nursing, believed to
3 be Ptolomeo Causing III, who was responsible for the administration and management of the
4 SNF in accordance with Title 22 of the California Code of Regulations section 72327. The
5 Administrator and the Director of Nursing were managing agents of the LICENSEE and had care
6 or custody of MS. NUTT.
7 9. The Administrator and Director of Nursing of the FACILITY were vested with sufficient
8 authority and discretion in making decisions that would ultimately affect corporate policy,
9 including decisions regarding budget, allocation of resources, staffing, hiring, firing, training,
10 and other aspects of day-to-day operations, such that they were also the managing agents of the
11 owner/operator ASPEN SKILLED HEALTHCARE, INC. (hereinafter “ASPEN.”)
12 10. ASFC, LLC had the duty to employ an adequate number of qualified personnel to carry
13 out all the functions of the FACILITY. (Health & Safety Code § 1599.1(a); Cal. Code Regs., tit.
14 22, § 72501, subd. (e).) Adequate staffing is essential to proper patient care and outcomes.
15 There is no greater predictor of patient outcome in a skilled nursing facility than understaffing.
16 The standard of care codified at 42 Code of Federal Regulations parts 482.30 and 483.25 is to
17 provide sufficient qualified nursing staff to provide nursing and related services to attain or
18 maintain the highest practicable physical, mental, and psychosocial well-being of each resident,
19 as determined by resident assessments, and plans of care. Because these requirements are
20 codified in state and federal regulations, everyone involved in nursing home operations,
21 including the owners, operators, managers, administrators, and directors of nursing in this case,
22 understands the direct relationship between quality staff and patient outcomes.
23 11. In addition to ASFC, LLC’s duty to have sufficient numbers of well-qualified and trained
24 staff, they had a duty to ensure that SIERRA VISTA was operated in a way that respected and
25 did not violate well-recognized resident rights under California Code of Regulations, title 22;
26 Health and Safety Code section 1599.1; 42 U.S.C. sections 1395-1396; and 42 Code of Federal
27 Regulations part 483.
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SECOND AMENDED COMPLAINT FOR DAMAGES
1 12. ASPEN SKILLED HEALTHCARE, INC: Defendant ASPEN SKILLED
2 HEALTHCARE, INC. (hereinafter, “ASPEN”) is, and at all times relevant was, a California
3 corporation engaged in the business of owning, operating, and/or administrating the FACILITY.
4 13. Unity of Interest: Upon information and belief, ASPEN and the LICENSEE are alter-
5 egos of one another and form part of a single enterprise. These Defendants will collectively be
6 known as the “SIERRA VISTA DEFENDANTS”. There is sufficient unity of interest and
7 ownership among the SIERRA VISTA DEFENDANTS such that the acts of one are for the
8 benefit of all and can be imputed to the acts of others.
9 14. On information and belief, ASPEN and the LICENSEE are under common ownership,
10 sharing a seamless flow of corporate officers. SIERRA VISTA DEFENDANTS, and each of
11 them, were jointly responsible to ensure the FACILITY was operated in full compliance with
12 federal and state laws and regulations governing operations of a SNF, and for all aspects of the
13 organization, management, operation, and control of the FACILITY. MS. NUTT’s injuries arise
14 out of the organization, management, operation, and control of the FACILITY by the SIERRA
15 VISTA DEFENDANTS in their capacity as owner/operators/managing agents of the FACILITY.
16 SIERRA VISTA DEFENDANTS, and each of them, share joint responsibility for MS. NUTT’s
17 injuries.
18 15. SIERRA VISTA DEFENDANTS treat the assets of one as the assets of all. They make
19 and approve key decisions concerning the FACILITY’s day-to-day operations, such as staffing
20 levels, employee hiring and firing, budgets and related issues, which decisions, and directives, on
21 information and belief, were made at the direction of and/or for the benefit of the SIERRA
22 VISTA DEFENDANTS.
23 16. Moreover, ASPEN siphons funds and assets away from the FACILITY as the FACILITY
24 pays large administrative fees to ASPEN. In its 2018 Long-Term Care Facility Integrated
25 Disclosure and Medi-Cal Cost Report submitted to California’s Office of Statewide Health,
26 Planning, and Development (“OSHPD Report”), the FACILITY reports administrative service
27 payments payable to ASPEN in the amount of $658,364.00.
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SECOND AMENDED COMPLAINT FOR DAMAGES
1 17. Injustice will result if the Court does not disregard the fiction of the separate entities.
2 ASPEN misuses their corporate form to siphon funds from the FACILITY. They conceal and
3 misrepresent the identity of the responsible ownership, management, and financial interests of
4 the SIERRA VISTA DEFENDANTS. They created a fractured ownership and management
5 structure in order to shield the SIERRA VISTA DEFENDANTS from liability and to carry out
6 their single enterprise with financial impunity.
7 18. The SIERRA VISTA DEFENDANTS manage and control the FACILITY and make
8 critical decisions regarding staffing budget and census, resulting in nurse staffing which falls
9 below the legal minimum. The SIERRA VISTA DEFENDANTS benefit financially from the
10 policies and procedures, decisions, control, and management of the FACILITY in the form of
11 income and profits received from the FACILITY but hide behind the corporate structure to
12 escape financial and legal liability arising from the very conduct they directed.
13 19. If the SIERRA VISTA DEFENDANTS are not treated as a single enterprise or alter egos
14 of each other, a severe injustice will result. The SIERRA VISTA DEFENDANTS caused staff
15 levels to fall below the legal minimum and siphoned millions of dollars from the FACILITY,
16 monies which were obtained through wholesale violations of the California’s staffing laws.
17 Allowing the SIERRA VISTA DEFENDANTS to avoid legal responsibility for actions taken at
18 the FACILITY level, which they directed and caused, would be unfair and unjust.
19 20. Advance Knowledge/Authorization/Ratification: Because of the unity of interest and
20 common ownership and control alleged herein, the acts of the SIERRA VISTA DEFENDANTS
21 were done pursuant to policies, practices, procedures, written or otherwise, established and
22 implemented by and with the advance knowledge, acquiescence, or subsequent ratification of the
23 SIERRA VISTA DEFENDANTS by and through its officers, directors and managing agents,
24 including the Administrator and Director of Nursing. The SIERRA VISTA DEFENDANTS’
25 process and plan of operating the FACILITY for the purpose of generation of revenue is the
26 same process and plan engaged in by the SIERRA VISTA DEFENDANTS in the operation of
27 other SNFs under common ownership and control.
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5
SECOND AMENDED COMPLAINT FOR DAMAGES
1 21. SIERRA VISTA DEFENDANTS, and each of their tortious acts and omissions, as
2 alleged herein, were done in concert and with each other and pursuant to a common design and
3 agreement to accomplish a particular result, namely maximizing profits from the operation of the
4 FACILITY. SIERRA VISTA DEFENDANTS, and each of them, implemented a business plan
5 to underfund, understaff, undertrain, and undersupervise the staff at the FACILITY.
6 22. MS. NUTT’s injuries and subsequent death arise out of the organization, management,
7 operation, and control of the FACILITY by and between SIERRA VISTA DEFENDANTS in
8 their capacity as owner/operators and Administrator and Director of Nursing as managing agents
9 of the FACILITY. As such, the SIERRA VISTA DEFENDANTS share joint responsibility for
10 MS. NUTT’s injuries and subsequent death as a result of the harm she suffered.
11 23. Defendant SAINT AGNES MEDICAL CENTER is a California corporation which
12 owns and operates a General Acute Care Hospital (“GACHs”) under the same name, located at
13 7300 N. Fresno Street, Fresno, California, 93720, in the county of Fresno.
14 24. Defendant CRYSTAL IRWIN-SINGH, D.O. is a physician licensed to practice in the
15 State of California. She is an emergency room physician at SAINT AGNES MEDICAL
16 CENTER.
17 25. DOE Allegations: To the extent any entity, person, or company other than the SIERRA
18 VISTA DEFENDANTS owned, operated, managed, supervised, controlled, maintained, or were
19 otherwise responsible for the business activities of the FACILITY, the identity of such persons
20 or entities are unknown to Plaintiffs and Plaintiffs will seek leave to amend when those identities
21 are ascertained. Plaintiffs sue those persons/entities as DOES 1-10. Plaintiffs are informed and
22 believe, and thereon allege, that each of the Defendants designated as a DOE is responsible in
23 some manner for the events and happenings herein referred to and thereby legally caused the
24 injuries and damages herein alleged. Such DOES would include officers, directors, controlling
25 shareholders, partners, parent and/or sister companies, governing board members, and persons in
26 de facto control of healthcare, operators, or employees of the SIERRA VISTA DEFENDANTS.
27 26. On information and belief, DOES 11 through 15 may be staff or contracted personnel of
28 the SIERRA VISTA DEFENDANTS, including physicians, physician’s assistants, nurse
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SECOND AMENDED COMPLAINT FOR DAMAGES
1 practitioners, licensed nurses, aides, social workers, business office personnel, or other
2 administrative or clinical personnel including persons directly or indirectly responsible for
3 provision of patient care, persons having made representations or warranties to Plaintiffs, and
4 persons acting in concert with other Defendants.
5 27. On information and belief, DOES 16 through 25 include persons directly or indirectly
6 responsible for provision of care to MS. NUTT, including but not limited to physicians, medical
7 groups, managed care organizations, acute care hospitals, skilled nursing facilities, residential
8 care facilities for the elder, home health agencies, visiting nurses, therapists, or other ancillary
9 care providers who saw, examined, evaluated, observed or treated or failed to treat MS. NUTT
10 for care or conditions relating to mismanagement of her medications, malnutrition, and/or
11 dehydration, and/or persons having made representations or warranties to or from the
12 Department of Social Services, the Department of Public Health, the Long Term Care
13 Ombudsman, Adult Protective Services, and/or SIERRA VISTA, and/or anyone purporting to act
14 on behalf of or in concert with these persons or entities. The identities of such persons or entities
15 are unknown to Plaintiff and Plaintiff will seek leave to amend when those identities are
16 ascertained. Plaintiff is informed and believes, and thereon alleges, that each of the defendants
17 designated as a DOE is responsible in some manner for the events and happenings herein
18 referred to and thereby legally caused the injuries and damages herein alleged.
19 28. Upon information and belief, Plaintiffs allege that each Defendant was the agent, servant,
20 employee, joint venturer and/or partner of each Co-Defendant, and at all times acted within the
21 course and scope of said agency, employment, venture, and/or partnership pursuant to the
22 policies, practices, procedures, written or otherwise, and with the advance knowledge,
23 acquiescence, or subsequent ratification of each Co-Defendant.
24 Jurisdiction and Venue
25 29. This Court has jurisdiction over the cause of action asserted. The Defendants have
26 sufficient minimum contacts in California based on their residency in California or otherwise
27 intentionally avail themselves of the California market though their provision of services in the
28 County of Fresno, so as to render them essentially at home in California and making the exercise
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SECOND AMENDED COMPLAINT FOR DAMAGES
1 of jurisdiction by the California courts consistent with traditional notions of fair play and
2 substantial justice.
3 30. Venue is proper in the County of Fresno under Code of Civil Procedure section 395(a)
4 based on the facts, without limitation, that this Court is a court of competent jurisdiction, that the
5 defendants reside in the County of Fresno, and that all of the events described occurred in the
6 County of Fresno.
7 GENERAL ALLEGATIONS
8 31. MS. NUTT became a resident at SIERRA VISTA on February 15, 2020, following a
9 brief hospitalization for a total knee replacement. At the time, MS. NUTT was fully cognizant,
10 conversant, and able to ambulate with a walker. She was admitted to improve her strength and
11 mobility in order to resume living independently. At the time, MS. NUTT also suffered from
12 hypertension, type II diabetes, anemia, and chronic kidney failure.
13 32. . As a result of all these conditions, MS. NUTT was dependent on SIERRA VISTA staff
14 for assistance with all activities of daily living including but not limited to personal hygiene,
15 continence care, transferring and repositioning in bed, transferring in and out of bed and
16 wheelchair, eating, hydrating, and managing her medications.
17 33. Everybody in the business of caring for the elderly knows that they must provide
18 individualized care and treatment to avoid certain custodial care issues from developing. Upon
19 admission, the resident must be properly assessed to gather information to make decisions about
20 suitable interventions to avoid individualized health risks. The care plan must set goals to
21 provide benchmarks for evaluating whether the planned care interventions are actually working.
22 The staff must assess and reassess the resident to determine whether the care plan goals are being
23 met. If the interventions are not working, the care plan must be modified to include alternative
24 treatment interventions. If the resident has a change of condition, he or she must be reassessed to
25 determine if the care plan needs to be modified as a result of the resident’s new condition and/or
26 baseline. Care planning is an ongoing interdisciplinary process that is critical to patient
27 outcomes.
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8
SECOND AMENDED COMPLAINT FOR DAMAGES
1 34. MS. NUTT’s chronic kidney failure and her diabetes placed her at high risk for
2 dehydration. A symptom of diabetes is the buildup of excess glucose in the blood. This forces the
3 kidneys to work overtime to filter and absorb the excess glucose. If a person’s kidneys are
4 impaired (like MS. NUTT’s were) they cannot keep up with the excess glucose. As a result, the
5 glucose is unable to be absorbed and is instead excreted through the urine, causing dehydration.
6 35. Because this is such a common risk, everybody in the business of caring for the elderly
7 knows that residents living with diabetes and chronic kidney failure are at risk of dehydration.
8 The way to combat this risk is an interdisciplinary approach based on close monitoring of the
9 hydration status of the patient including the patient’s intake and output of fluids. The patient’s
10 fluid status should be monitored in conjunction with the patient’s dietary intake as fluid comes
11 into the body through drinking, water in food, and water formed by oxidation of foods. The
12 patient’s urine color and amount should be assessed and if urine output is less than 30 ml/hour
13 for two consecutive hours, this should be reported to the patient’s family and physician. Close
14 monitoring of vital signs such as blood pressure and heart rates for hypotension and tachycardia
15 should be implemented. The patient’s weight should be monitored for possible fluid volume
16 imbalance.
17 36. Furthermore, during her admission to SIERRA VISTA, SIERRA VISTA staff were
18 administering several medications to MS. NUTT, including spironolactone and Edarbi.
19 Spironolactone and Edarbi are used to treat high blood pressure; however, when given together,
20 these drugs pose an increased risk of hyperkalemia (too much potassium) to the patient.
21 Hyperkalemia in turn can cause cardiac arrest leading to death. Because of this, SIERRA VISTA
22 staff were supposed to monitor MS. NUTT’s vitals closely. Her physician orders were to hold
23 the Spironolactone and Edarbi if her blood pressure dropped below 100 systolic or her heart rate
24 below 60 bpm.
25 37. SIERRA VISTA knew MS. NUTT was at an increased risk of dehydration and
26 hyperkalemia when she was admitted to their facility, and throughout her stay. However, they
27 failed to adequately assess her high-risk status, failed to care plan for these risks, failed to
28 monitor her vital signs, failed to track her fluid intake and output, failed to monitor her for signs
9
SECOND AMENDED COMPLAINT FOR DAMAGES
1 and symptoms of dehydration, and failed to follow doctor’s orders to notify her physician and
2 hold certain medications when her blood pressure dropped below 100 systolic.
3 38. During the 10 days that she was at SIERRA VISTA, MS. NUTT lost five pounds, had a
4 consistently low body temperature, and her blood pressure dropped below 100 systolic four
5 times. Also during this time, MS. NUTT averaged about 988 ccs per day – less than half of what
6 she required (ideal adult fluid intake is 2000 cc per day), and staff documented that she had
7 “loose” and “watery” stools. In other words, she wasn’t getting enough fluid intake and the fluids
8 that she was getting were coming out in her stools, leaving her body depleted of the necessary
9 hydration to survive.
10 39. All of these were indications that MS. NUTT was becoming progressively dehydrated
11 and should have prompted SIERRA VISTA staff to notify her physician, increase her monitoring
12 and assessments, and update her care plan to include additional interventions. Yet they did none
13 of these.
14 40. On or around February 21, 2020, approximately one week after being at the FACILITY,
15 MS. NUTT’s son HENRY NUTT came to visit her and noticed that she looked fatigued and
16 worn out. It was at this time that he became aware that she had been experiencing diarrhea.
17 41. That same day, SIERRA VISTA staff documented that MS. NUTT had an acute change
18 in mental status. An acute change of mental status is a medical emergency because it is
19 indicative of severe and life-threatening causes. It should have prompted immediate action by
20 SIERRA VISTA staff. At the very minimum it required SIERRA VISTA staff to report the acute
21 change in mental to her physician or send her to the hospital to obtain further medical assessment
22 and treatment. The change should also have been reported to MS. NUTT’s medical decision-
23 maker. Yet SIERRA VISTA staff did not report this change to MS. NUTT’s physician, nor did
24 they send her to the hospital, nor did they report it to MS. NUTT’s family.
25 42. On February 24, 2020, SIERRA VISTA ran labs on MS. NUTT as a result of her ongoing
26 diarrhea and discovered that she was positive for C-Diff. MS. NUTT was given an order for
27 Keflex, which SIERRA VISTA staff immediately carried out, despite knowing that she was
28 allergic to it, as was documented throughout her chart.
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SECOND AMENDED COMPLAINT FOR DAMAGES
1 43. By February 25, 2020, MS. NUTT’s dehydration had progressed to such a severe point
2 that her lips, fingertips, and skin became “cracked.” When MS. NUTT’s physician learned of
3 this, he ordered that she be started on IV fluids at the rate of 65 cc per hour. Even then, however,
4 SIERRA VISTA staff failed to administer the IV fluids as ordered. Instead, they gave her a total
5 intake of 195 cc that day – which was only a fraction of what she needed.
6 44. That same day, MS. NUTT was given an order for Bactrim DS, which was once again
7 carried out by SIERRA VISTA staff. MS. NUTT was already on 30mgs of a diabetic medication
8 called Pioglitazone HCI when this order was made. Pioglitazone HCI is known to have serious
9 risks associated with its interaction with Bactrim DS including cardiac failure. The SIERRA
10 VISTA chart flagged this warning; however, SIERRA VISTA staff ignored the warning and
11 nonetheless carried out both orders.
12 45. Later that same day on February 25, 2 020, MS. NUTT was taken to a follow up
13 orthopedic appointment for x-rays of her recent right knee replacement. While on the table at the
14 orthopedic office for x-rays, MS. NUTT suffered a cardiac event. CPR was administered, and
15 paramedics transported MS. NUTT to SAINT AGNES MEDICAL CENTER..
16 46. Once at SAINT AGNES MEDICAL CENTER, MS. NUTT was triaged in the
17 Emergency Department and her labs showed a critical value of Calcium at 18.6 – in other words,
18 she was critically hypercalcemic. However, the hypercalcemia was not addressed, diagnosed, or
19 treated at all by SAINT AGNES MEDICAL CENTER staff, nor by the Emergency Department
20 physician attending to her, CRYSTAL IRWIN-SINGH, D.O. As a result, MS. NUTT’s
21 hypercalcemia – which could have been easily rectified by simply administering intravenous
22 fluids – caused her heart to go into arrhythmia, which caused her cardiac arrest and death. The
23 failure to diagnose or treat MS. NUTT’s hypercalcemia on February 25, 2020 is a breach of the
24 standard of care for a general acute hospital and emergency physician.
25 47. The actions and omissions of SIERRA VISTA, SAINT AGNES MEDICAL CENTER
26 and CRYSTAL IRWIN-SINGH, D.O. proximately caused MS. NUTT’s suffering and death.
27 48. Had SIERRA VISTA provided MS. NUTT with adequate fluids, treated her C. diff
28 properly, and accurately reported her changes of condition to her physician – including lethargy
11
SECOND AMENDED COMPLAINT FOR DAMAGES
1 and altered mental status – then her hypercalcemia would not have progressed to the extent that it
2 did, and she would not have died. Had SAINT AGNES MEDICAL CENTER and CRYSTAL
3 IRWIN-SINGH, D.O. timely recognized and treated her hypercalcemia upon arrival at the ER,
4 she would not have died.
5 FIRST CAUSE OF ACTION
6 (Elder Abuse and Neglect by Plaintiff LOLA NUTT, by and through her Successor in
7 Interest, HENRY NUTT, as against all Defendants)
8 49. Plaintiff incorporates by reference Paragraphs 1 through 45 of this Complaint as though
9 fully set forth.
10 50. Elder and Dependent Adult: MS. NUTT, at all relevant times herein, was over the age
11 of 65 and thus, an “elder” as that term is defined in Welfare & Institutions Code section
12 15610.27. MS. NUTT was also a “dependent adult” as that term is defined in Welfare &
13 Institutions Code section 15610.23.
14 51. Dependence on Staff for All Care Needs: At all relevant times during her admission at
15 SIERRA VISTA, MS. NUTT was dependent on SIERRA VISTA care staff for all of her
16 activities of daily living including personal hygiene, transferring, and repositioning in bed,
17 transferring in and out of bed and wheelchair, eating, drinking, and medication management.
18 52. Substantial Ongoing Caretaking and Custodial Relationship: MS. NUTT was
19 rehabilitating from a total knee replacement and was unable to take care of her own needs during
20 the time she was under the care and custody of SIERRA VISTA DEFENDANTS. The SIERRA
21 VISTA DEFENDANTS had a substantial ongoing caretaking and custodial relationship with
22 MS. NUTT while she was a resident at the FACILITY. MS. NUTT was dependent on the
23 SIERRA VISTA DEFENDANTS for all of her custodial and other care needs.
24 53. Knowledge of Vulnerable Resident Population: Each adult resident of SIERRA
25 VISTA is an elder and/or dependent adult as defined by Welfare & Institutions Code sections
26 15610.27 and 15610.23, respectively. Defendants, and each of them, knew or should have
27 known that their conduct, as described herein, was directed to one or more elder and/or
28 dependent adults. Because of her age, condition, and restricted mobility, MS. NUTT was
12
SECOND AMENDED COMPLAINT FOR DAMAGES
1 substantially more vulnerable to the conduct of the Defendants, than other members of the
2 public.
3 54. Duties of SIERRA VISTA: SIERRA VISTA had a duty to arrange for or provide access
4 to medical care, including but not limited to care and treatment and management of her
5 medications; to ensure medical care that was needed was actually provided; and to accept and
6 retain only those residents for whom it could provide adequate care, supervision, and assistance.
7 Because SIERRA VISTA accepted and retained MS. NUTT as a resident, they owed a duty to
8 her to act reasonably in the discharge of their duties and to not willfully or recklessly ignore her
9 medical care needs or cause unnecessary suffering. Without limiting the foregoing, SIERRA
10 VISTA owed the following duties to MS. NUTT:
11 a. Duty to treat residents with consideration, respect, and full recognition of dignity
12 (Cal. Code Regs., tit. 22, § 72527(a)(12));
13 b. Duty to provide care in such a manner and in such an environment by facility staff to
14 be free from mental and physical abuse and neglect (Cal. Code Regs., tit. 22, §
15 72527(a)(10); 42 C.F.R. § 483.12);
16 c. Duty to identify care needs based upon an initial written assessment of the patient’s
17 needs, develop a patient care plan based on that assessment, and review, evaluate, and
18 update the patient care plan upon a change of condition (Cal. Code of Regs., tit. 22,
19 §§ 72311(a)(1)(A)-(C));
20 d. Duty to provide care as implemented by the patient care plan according to the
21 methods indicated (Cal. Code Regs., tit. 22, § 72311(a)(2); 42 U.S.C. § 1395i-
22 3(b)(4));
23 e. Duty to review, evaluate, and update patient care plans as necessary and more often if
24 there is a change of the patient’s condition (Cal. Code Regs., tit. 22, §
25 72311(a)(1)(C));
26 f. Duty to provide the resident or responsible party with the opportunity to participate in
27 an immediate and ongoing basis in the total plan of care including identification of
28 medical, nursing, and psychosocial needs and the planning of related services (Cal.
13
SECOND AMENDED COMPLAINT FOR DAMAGES
1 Code Regs., tit. 22, § 72527(a)(3); 42 C.F.R. § 483.10(c));
2 g. Duty to record nurses’ notes that are clear and legible, dated and signed, among other
3 qualifications, including narratives or how a patient responds, eats, drinks, looks,
4 feels, and reacts (Cal. Code Regs., tit. 22, § 72547(a)(5));
5 h. Duty to notify family and physician of significant changes in the resident's condition
6 or a need to alter treatment significantly (Cal. Code of Regs., tit. 22, §§ 72311 (3)(B),
7 (D)-(G); 42 CFR §483.10(g)(14));
8 i. Duty to provide adequate personal hygiene, nutrition, and fluids to prevent
9 malnutrition and dehydration, (Cal. Code of Regs., tit. 22, §§ 72315(d)(g)(h); Health
10 & Saf. Code, § 1599.1(b));
11 j. Duty to provide pharmaceutical and physical therapy services for effective pain
12 management (Cal. Code Regs., tit. 22, §§ 72355, 72403(b)(3));
13 k. Duty to provide adequate care and treatment to prevent the development and
14 progression of infections (Cal. Code Regs., tit. 22, § 72321(b));
15 l. Duty to provide adequate number of qualified personnel to carry out all functions of
16 the facility and to meet patients’ needs as well as adequate training and competent
17 supervision (Cal. Code of Regs., tit. 22, §§ 72329 and 72329.1; Health & Saf. Code, §
18 1599.1(a); 42 C.F.R. §§ 483.35, 483.95).
19 55. Duties of SIERRA VISTA DEFENDANTS: As alleged above, SIERRA VISTA is a
20 mere shell of ASPEN. ASPEN manages and directs SIERRA VISTA’s day-to-day operations.
21 By virtue of this agency relationship, SIERRA VISTA DEFENDANTS also owed the duties
22 identified in Paragraph 50 (a)-(l) to MS. NUTT.
23 56. In addition, and without limiting the generality of the foregoing, ASPEN, as the managers
24 and operators of SIERRA VISTA owed the following duties to MS. NUTT: to implement
25 policies and procedures to ensure resident care needs are met; to provide training on the policies
26 and procedures to ensure resident care needs are met; to ensure physicians care is provided; to
27 plan a budget whereby staffing levels are adequate; to allocate sufficient resources to SIERRA
28
14
SECOND AMENDED COMPLAINT FOR DAMAGES
1 VISTA; to staff SIERRA VISTA in both quantity and quality caregivers; and to comply with
2 state and federal laws and regulations pertaining to SNFs.
3 57. Physical Abuse: The conduct of the SIERRA VISTA DEFENDANTS constitutes
4 "physical abuse" as defined in Welfare and Institutions Code section 15610.63(c) for prolonged
5 and continued deprivation of water. By failing to provide MS. NUTT with adequate water intake,
6 she became dehydrated, went into hyperkalemia and acute renal failure, and died of a cardiac
7 arrest.
8 58. Neglect: The conduct of the SIERRA VISTA DEFENDANTS constitutes neglect as that
9 term is defined in Welfare and Institutions Code § 15610.57 to include “the negligent failure of
10 any person having the care or custody of an elder or a dependent adult to exercise that degree of
11 care that a reasonable person in a like position would exercise” including but not limited to:
12 “(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.
13 (2) Failure to provide medical care for physical and mental health needs…
14 (3) Failure to protect from health and safety hazards.
15 (4) Failure to prevent malnutrition or dehydration.”
16 59. Neglect of SIERRA VISTA: Without limiting the generality of the foregoing paragraph,
17 SIERRA VISTA committed elder neglect by failing to provide medical care for MS. NUTT’s
18 physical needs and failing to prevent dehydration. SIERRA VISTA recklessly administered
19 medications to her which they knew she was allergic to, and which were known to cause
20 hyperkalemia and cardiac failure – without implementing appropriate interventions to monitor
21 her condition. SIERRA VISTA knew MS. NUTT was at risk for dehydration and hyperkalemia,
22 yet failed to provide adequate fluids, failed to monitor and track her input and output, failed to
23 reassess her condition and report it to her physician, failed to update their Care Plans to
24 implement interventions to combat these risks, and failed to follow physicians orders regarding
25 the provision of medications. SIERRA VISTA knew they were supposed to monitor MS.
26 NUTT’s vitals closely and hold the Spironolactone and Edarbi if her blood pressure dropped
27 below 100 systolic or her heart rate below 60 bpm. However, they failed to do so on the four
28 occasions that her blood pressure dropped below 100 systolic, and failed to report this to her
15
SECOND AMENDED COMPLAINT FOR DAMAGES
1 physician. They failed to obtain appropriate medical care for her “acute change in mental status”
2 on February 21, 2021. Had they notified her physician or sent her to the ER on that date, it is
3 more likely than not that her death would have been avoided.
4 60. Neglect by SIERRA VISTA DEFENDANTS: As alleged above, SIERRA VISTA is a
5 mere shell of the SIERRA VISTA DEFENDANTS. SIERRA VISTA DEFENDANTS manage
6 and direct SIERRA VISTA’s day-to-day operations. By virtue of this agency relationship, the
7 SIERRA VISTA DEFENDANTs also neglected MS. NUTT in the ways identified in the
8 foregoing Paragraph.
9 61. In addition, and without limiting the generality of the foregoing, the SIERRA VISTA
10 DEFENDANTS, as managers and operators of SIERRA VISTA neglected MS. NUTT when
11 they failed to implement policies and procedures to ensure resident care needs are met; to
12 provide training on the policies and procedures to ensure resident care needs are met; to ensure
13 physicians care was provided; to plan a budget whereby staffing levels were adequate; to allocate
14 sufficient resources to SIERRA VISTA; to staff SIERRA VISTA in both quantity and quality
15 caregivers; and to comply with state and federal laws and regulations pertaining to SNFs.
16 62. Evidence of Recklessness and Conscious Disregard for the Safety and Well-Being of
17 MS. NUTT by the SIERRA VISTA DEFENDANTS: Pursuant to California law, the
18 Defendants, and each of them, are required to provide a dependent and elder adult, such as MS.
19 NUTT, “basic services” including, a duty to continually assess MS. NUTT’s condition, a duty to
20 note changes in her condition, and a duty to immediately notify her physician and family of
21 changes. Defendants similarly had a duty to create and update adequate plans of care, and to
22 receive, note and follow physicians’ orders. Defendants had a duty to provide physician care and
23 treatment that was specialized to MS. NUTT’s needs. Defendants had a duty to assist with
24 hygiene, feeding, bathing, dressing, and toileting, to treat her with dignity and respect, and to
25 provide adequate numbers of nursing and other similar staff to assist her. The SIERRA VISTA
26 DEFENDANTS had a duty to employ adequately trained staff. Yet Defendants failed to provide
27 medical care and custodial care sufficient to meet MS. NUTT’s physical and mental health needs
28 and failed to protect her from health and safety hazards, as described in detail herein.
16
SECOND AMENDED COMPLAINT FOR DAMAGES
1 63. Defendants knew that MS. NUTT was an elder who required assistance to meet her basic
2 needs, yet failed to provide for those needs, even with knowledge of her high risk for injury, her
3 dependence on the Defendants, and the substantial certainty that she would be injured if these
4 needs were not provided for. Defendants’ failure to provide MS. NUTT with the care,
5 assistance, and monitoring that she required caused her harm.
6 64. Withholding of Care: Defendants denied and withheld basic care to MS. NUTT despite
7 the knowledge that by doing so, injury was substantially certain to befall her or with conscious
8 disregard of the high probability of such injury. Defendants’ denial and withholding of basic
9 care to MS. NUTT caused her injuries, needless suffering, and emotional distress. Specifically,
10 Defendants failed to provide MS. NUTT with the care and treatment she needed to prevent her
11 dehydration, hyperkalemia, acute renal failure, and death. Defendants failed to monitor, assess,
12 and reassess MS. NUTT’s deteriorating condition and to report her change of condition to her
13 physician and/or family to arrange for a higher level of care.
14 65. Furthermore, Defendants, and each of them, withheld medical care by failing to assess
15 and reassess MS. NUTT’s condition, update individualized care plans, and monitor her condition
16 to see whether she was improving, staying the same, or worsening.
17 66. In Sababin v. Sup. Ct. (Covina Rehabilitation Center) (2006) 144 Cal.App.4th 81
18 establishes that a total absence of care is not required for a care facility to be held liable for Elder
19 Abuse and Neglect: “If some care is provided, that will not necessarily absolve a care facility of
20 dependent abuse liability. For example, if a care facility knows it must provide a certain type of
21 care on a daily basis but provides that care sporadically, or is supposed to provide multiple types
22 of care but only provides some of those types of care, withholding of care has occurred. In those
23 cases, the trier of fact must determine whether there is a significant pattern of withholding
24 portions or types of care. A significant pattern is one that involves repeated withholding of care
1
25 and leads to the conclusion that the pattern was the result of choice or deliberate indifference.”
26 Thus, there was repeated withholding of care each time SIERRA VISTA staff interacted with
27
28
1
Sababin v. Superior Court (2006) 144 Cal.App,4th 81, 90.
17
SECOND AMENDED COMPLAINT FOR DAMAGES
1 MS. NUTT and failed to respond to her complaints of fatigue, lethargy, and severe diarrhea until
2 it was too late. These daily failures constitute withholding of care.
3 67. Knowledge of Dangerous Consequences: Defendants’ conduct, as detailed herein, was
4 reckless and in conscious disregard of MS. NUTT’s rights and safety. This is because
5 Defendants, and each of them, knew of MS. NUTT’s vulnerable condition and the critical need
6 to monitor and treat her condition properly and to provide adequate custodial care to her at all
7 times yet failed to do so.
8 68. Defendants’ conduct, as detailed herein, was directed not only to MS. NUTT but instead,
9 was part of a continual pattern at SIERRA VISTA in failing to provide assessments, failing to
10 implement individualized care plans, failing to notify physicians of significant changes in
11 resident conditions, failing to monitor, failing to continually assess residents’ needs, failing to
12 provide ancillary services, and failing to provide residents with adequate custodial care.
13 69. Neglect by the SIERRA VISTA DEFENDANTS /Corporate Choice to Minimize
14 Staff and Maximize Profits: One of the reasons SIERRA VISTA staff failed to meet MS.
15 NUTT’s need for care and basic services, to avoid needless suffering, injury, and emotional
16 distress, is that the SIERRA VISTA DEFENDANTS made a conscious choice to understaff
17 SIERRA VISTA, in both quantity and quality of nursing personnel. The decision to understaff
18 was made at the corporate level by the SIERRA VISTA DEFENDANTS in order to increase the
19 profitability of SIERRA VISTA, in conscious disregard of patient care needs. The SIERRA
20 VISTA DEFENDANTS together with their directors, officers and managing agents (including
21 SIERRA VISTA’s Administrator and Director of Nursing) conceived of and implemented a plan
22 to increase business profits at the expense of residents like MS. NUTT, and other SIERRA
23 VISTA residents. Integral to this plan was the practice and pattern of the SIERRA VISTA
24 DEFENDANTS in staffing the FACILITY with an insufficient number of care personnel, many
25 of whom were not properly trained nor qualified to care for the residents whose lives were
26 entrusted to them. The understaffing and lack of training was designed to reduce labor costs and
27 to increase profits and resulted in high staff turnover and the physical abuse and neglect of many
28 residents of the facilities and most specifically, MS. NUTT. This corporate policy to not
18
SECOND AMENDED COMPLAINT FOR DAMAGES
1 maintain sufficient staffing as required by law was developed and implemented with the
2 conscious disregard for the likelihood of physical harm and injury to those who it is in the
3 business to protect, including MS. NUTT, who did in fact suffer as a direct consequence of the
4 SIERRA VISTA DEFENDANTS’ proprietary interests, which it placed above that of her and
5 other residents/patients.
6 70. The SIERRA VISTA DEFENDANTS had a duty to employ adequate numbers of
7 sufficiently staffed employees to provide minimum services and oversight of residents, policies
8 and procedures to ensure that basic services and oversight are implemented to assure the health
9 and safety of residents, employment and training of staff such that staff is experienced and
10 competent to perform the job duties necessary to assure safety and oversight of residents,
11 accepting, training and employing staff in a manner that avoids “a revolving door” of crucial
12 managerial employees such that there is little or no continuity and/or an absence of crucial
13 managerial employees at critical times such as the initial admission of a resident to the
14 FACILITY.
15 71. Understaffing causes poor patient outcomes: The SIERRA VISTA DEFENDANTS
16 knew that by understaffing their FACILITY, in quantity and quality, they were putting
17 FACILITY residents (including MS. NUTT) at risk for known, harmful, life threatening
18 conditions, including untreated infections. This is because everyone involved in nursing home
19 operations including the owners, operators, administrators, and directors of nursing understand
20 the direct relationship between staffing and patient outcomes. The higher the staffing ratio, the
21 better the patient outcome.
22 72. Fraud in the Commission of Elder Abuse and Neglect/Knowing concealment of
23 profit motives: The SIERRA VISTA DEFENDANTS knew or should have known that their
24 operation was designed and operated in a manner to circumvent its legal duty to comply with
25 applicable statutes and regulations so as to maximize profitability. That knowledge was
26 exclusively in the possession of the Defendants. MS. NUTT had no such knowledge, nor the
27 opportunity to obtain such knowledge and information. MS. NUTT and her family believed that
28 the SIERRA VISTA DEFENDANTS’ business operations were, as represented by the
19
SECOND AMENDED COMPLAINT FOR DAMAGES
1 Defendants, properly run in compliance with the law and that the care afforded to its residents
2 was within all State guidelines. In particular, they understood that the management and staff at
3 SIERRA VISTA were “experts” and were readily familiar, capable, able, and committed to the
4 care and oversight of residents such as MS. NUTT. Such representations were fraudulent.
5 Further, Defendants’ conduct was reckless and in conscious disregard of MS. NUTT’s rights and
6 safety.
7 73. The SIERRA VIS
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Gregory L. Johnson, 177889 E-FILED 1 2/8/2023 1:15 PM Joanna A. Hutchins, 307058 Superior Court of California 2 JOHNSON MOORE County of Fresno 100 E. Thousand Oaks Boulevard, Suite 229 By: Marta Sanchez, Deputy 3 Thousand Oaks, CA 91360 Telephone: (805) 988-3661 4 Facsimile: (805) 494-4777 5 Attorneys for Plaintiffs 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 COUNTY OF FRESNO 8 9 LOLA NUTT, by and through her Successor CASE NO.: 21CECG00531 in Interest, HENRY NUTT; and HENRY 10 NUTT, KEVIN NUTT, VASHON NUTT, and SECOND AMENDED COMPLAINT FOR 11 TYRONE NUTT, individually, DAMAGES: 1. Elder Abuse and Neglect (Welf. & 12 Plaintiffs, Inst. Code, § 15600 et seq.) vs. 2. Violation of Resident Rights (Health 13 & Saf. Code, § 1430(b)) 3. Wrongful Death 14 ASFC, LLC dba SIERRA VISTA HEALTHCARE; ASPEN SKILLED 15 HEALTHCARE, INC; SAINT AGNES 16 MEDICAL CENTER and CRYSTAL IRWIN- SINGH, D.O., DOES 1-15; and DOES 18-25 17 Defendants. 18 19 20 21 Plaintiffs hereby allege as follows: 22 PARTIES 23 1. Plaintiff: Plaintiff LOLA NUTT (hereinafter “MS. NUTT”) was born on April 11, 1948 24 and died on February 25, 2020. At all times relevant herein, MS. NUTT was a resident of the 25 State of California, County of Fresno. 26 2. MS. NUTT was, at all times relevant herein, an “elder” as defined by Welfare and 27 Institutions Code section 15610.27 and had physical limitations that restricted her ability to carry 28 out normal activities to protect her rights as discussed more fully infra. 1 SECOND AMENDED COMPLAINT FOR DAMAGES 1 3. Successor in Interest: HENRY NUTT is the son of MS. NUTT and brings this brings 2 this action on her behalf as her Successor in Interest. 3 4. Heirs: HENRY NUTT, KEVIN NUTT, VASHON NUTT, and TYRONE NUTT are MS. 4 NUTT’s living children and they bring the Wrongful Death claim in their individual capacities as 5 her heirs. 6 5. ASFC, LLC dba SIERRA VISTA HEALTHCARE: Defendant ASFC, LLC 7 (“LICENSEE”), at all times relevant herein was, a California limited liability company engaged 8 in the business of providing long-term custodial care as a Skilled Nursing Facility (“SNF”) 9 operating under the fictitious business name of SIERRA VISTA HEALTHCARE (“SIERRA 10 VISTA” or the “FACILITY”) at 1715 S. Cedar Avenue in Fresno, California 93702, within the 11 County of Fresno. 12 6. ASFC, LLC DUTIES: ASFC, LLC is responsible for compliance with licensing 13 requirements and the organization, management, operation, and control of the FACILITY. The 14 general duties of a licensee are set forth in Title 22 of the California Code of Regulations section 15 72501. Certain duties are non-delegable including the responsibility for compliance with 16 regulations and the management and control of the SNF. Delegation of authority by a licensee 17 shall not diminish the responsibilities of the licensee. Therefore, even where a SNF licensee 18 delegates operational control to another person or entity, that SNF licensee remains directly 19 liable for management, operation, and control of the facility. (Cal. Code Regs., tit. 22, § 20 72501(a).) 21 7. ASFC, LLC was subject to the requirement of federal and state laws and regulations that 22 govern the operation of a SNF in California. In connection with its operation of the FACILITY, 23 ASFC, LLC has a substantial and ongoing caretaking and custodial relationship involving 24 ongoing responsibility for the basic needs of its residents, including MS. NUTT. 25 8. By law, the licensee of SNFs operating in California must delegate to a designated 26 administrator, in writing, the authority to organize and carry out the day-to-day functions of the 27 SNF. During MS. NUTT’s residency at the FACILITY, the FACILITY had an Administrator, 28 believed to be Jordan Holt, who was responsible for the administration and management of the 2 SECOND AMENDED COMPLAINT FOR DAMAGES 1 SNF in accordance with Title 22 of the California Code of Regulations section 72513. During 2 MS. NUTT’s residency at the FACILITY, the FACILITY had a Director of Nursing, believed to 3 be Ptolomeo Causing III, who was responsible for the administration and management of the 4 SNF in accordance with Title 22 of the California Code of Regulations section 72327. The 5 Administrator and the Director of Nursing were managing agents of the LICENSEE and had care 6 or custody of MS. NUTT. 7 9. The Administrator and Director of Nursing of the FACILITY were vested with sufficient 8 authority and discretion in making decisions that would ultimately affect corporate policy, 9 including decisions regarding budget, allocation of resources, staffing, hiring, firing, training, 10 and other aspects of day-to-day operations, such that they were also the managing agents of the 11 owner/operator ASPEN SKILLED HEALTHCARE, INC. (hereinafter “ASPEN.”) 12 10. ASFC, LLC had the duty to employ an adequate number of qualified personnel to carry 13 out all the functions of the FACILITY. (Health & Safety Code § 1599.1(a); Cal. Code Regs., tit. 14 22, § 72501, subd. (e).) Adequate staffing is essential to proper patient care and outcomes. 15 There is no greater predictor of patient outcome in a skilled nursing facility than understaffing. 16 The standard of care codified at 42 Code of Federal Regulations parts 482.30 and 483.25 is to 17 provide sufficient qualified nursing staff to provide nursing and related services to attain or 18 maintain the highest practicable physical, mental, and psychosocial well-being of each resident, 19 as determined by resident assessments, and plans of care. Because these requirements are 20 codified in state and federal regulations, everyone involved in nursing home operations, 21 including the owners, operators, managers, administrators, and directors of nursing in this case, 22 understands the direct relationship between quality staff and patient outcomes. 23 11. In addition to ASFC, LLC’s duty to have sufficient numbers of well-qualified and trained 24 staff, they had a duty to ensure that SIERRA VISTA was operated in a way that respected and 25 did not violate well-recognized resident rights under California Code of Regulations, title 22; 26 Health and Safety Code section 1599.1; 42 U.S.C. sections 1395-1396; and 42 Code of Federal 27 Regulations part 483. 28 /// 3 SECOND AMENDED COMPLAINT FOR DAMAGES 1 12. ASPEN SKILLED HEALTHCARE, INC: Defendant ASPEN SKILLED 2 HEALTHCARE, INC. (hereinafter, “ASPEN”) is, and at all times relevant was, a California 3 corporation engaged in the business of owning, operating, and/or administrating the FACILITY. 4 13. Unity of Interest: Upon information and belief, ASPEN and the LICENSEE are alter- 5 egos of one another and form part of a single enterprise. These Defendants will collectively be 6 known as the “SIERRA VISTA DEFENDANTS”. There is sufficient unity of interest and 7 ownership among the SIERRA VISTA DEFENDANTS such that the acts of one are for the 8 benefit of all and can be imputed to the acts of others. 9 14. On information and belief, ASPEN and the LICENSEE are under common ownership, 10 sharing a seamless flow of corporate officers. SIERRA VISTA DEFENDANTS, and each of 11 them, were jointly responsible to ensure the FACILITY was operated in full compliance with 12 federal and state laws and regulations governing operations of a SNF, and for all aspects of the 13 organization, management, operation, and control of the FACILITY. MS. NUTT’s injuries arise 14 out of the organization, management, operation, and control of the FACILITY by the SIERRA 15 VISTA DEFENDANTS in their capacity as owner/operators/managing agents of the FACILITY. 16 SIERRA VISTA DEFENDANTS, and each of them, share joint responsibility for MS. NUTT’s 17 injuries. 18 15. SIERRA VISTA DEFENDANTS treat the assets of one as the assets of all. They make 19 and approve key decisions concerning the FACILITY’s day-to-day operations, such as staffing 20 levels, employee hiring and firing, budgets and related issues, which decisions, and directives, on 21 information and belief, were made at the direction of and/or for the benefit of the SIERRA 22 VISTA DEFENDANTS. 23 16. Moreover, ASPEN siphons funds and assets away from the FACILITY as the FACILITY 24 pays large administrative fees to ASPEN. In its 2018 Long-Term Care Facility Integrated 25 Disclosure and Medi-Cal Cost Report submitted to California’s Office of Statewide Health, 26 Planning, and Development (“OSHPD Report”), the FACILITY reports administrative service 27 payments payable to ASPEN in the amount of $658,364.00. 28 /// 4 SECOND AMENDED COMPLAINT FOR DAMAGES 1 17. Injustice will result if the Court does not disregard the fiction of the separate entities. 2 ASPEN misuses their corporate form to siphon funds from the FACILITY. They conceal and 3 misrepresent the identity of the responsible ownership, management, and financial interests of 4 the SIERRA VISTA DEFENDANTS. They created a fractured ownership and management 5 structure in order to shield the SIERRA VISTA DEFENDANTS from liability and to carry out 6 their single enterprise with financial impunity. 7 18. The SIERRA VISTA DEFENDANTS manage and control the FACILITY and make 8 critical decisions regarding staffing budget and census, resulting in nurse staffing which falls 9 below the legal minimum. The SIERRA VISTA DEFENDANTS benefit financially from the 10 policies and procedures, decisions, control, and management of the FACILITY in the form of 11 income and profits received from the FACILITY but hide behind the corporate structure to 12 escape financial and legal liability arising from the very conduct they directed. 13 19. If the SIERRA VISTA DEFENDANTS are not treated as a single enterprise or alter egos 14 of each other, a severe injustice will result. The SIERRA VISTA DEFENDANTS caused staff 15 levels to fall below the legal minimum and siphoned millions of dollars from the FACILITY, 16 monies which were obtained through wholesale violations of the California’s staffing laws. 17 Allowing the SIERRA VISTA DEFENDANTS to avoid legal responsibility for actions taken at 18 the FACILITY level, which they directed and caused, would be unfair and unjust. 19 20. Advance Knowledge/Authorization/Ratification: Because of the unity of interest and 20 common ownership and control alleged herein, the acts of the SIERRA VISTA DEFENDANTS 21 were done pursuant to policies, practices, procedures, written or otherwise, established and 22 implemented by and with the advance knowledge, acquiescence, or subsequent ratification of the 23 SIERRA VISTA DEFENDANTS by and through its officers, directors and managing agents, 24 including the Administrator and Director of Nursing. The SIERRA VISTA DEFENDANTS’ 25 process and plan of operating the FACILITY for the purpose of generation of revenue is the 26 same process and plan engaged in by the SIERRA VISTA DEFENDANTS in the operation of 27 other SNFs under common ownership and control. 28 /// 5 SECOND AMENDED COMPLAINT FOR DAMAGES 1 21. SIERRA VISTA DEFENDANTS, and each of their tortious acts and omissions, as 2 alleged herein, were done in concert and with each other and pursuant to a common design and 3 agreement to accomplish a particular result, namely maximizing profits from the operation of the 4 FACILITY. SIERRA VISTA DEFENDANTS, and each of them, implemented a business plan 5 to underfund, understaff, undertrain, and undersupervise the staff at the FACILITY. 6 22. MS. NUTT’s injuries and subsequent death arise out of the organization, management, 7 operation, and control of the FACILITY by and between SIERRA VISTA DEFENDANTS in 8 their capacity as owner/operators and Administrator and Director of Nursing as managing agents 9 of the FACILITY. As such, the SIERRA VISTA DEFENDANTS share joint responsibility for 10 MS. NUTT’s injuries and subsequent death as a result of the harm she suffered. 11 23. Defendant SAINT AGNES MEDICAL CENTER is a California corporation which 12 owns and operates a General Acute Care Hospital (“GACHs”) under the same name, located at 13 7300 N. Fresno Street, Fresno, California, 93720, in the county of Fresno. 14 24. Defendant CRYSTAL IRWIN-SINGH, D.O. is a physician licensed to practice in the 15 State of California. She is an emergency room physician at SAINT AGNES MEDICAL 16 CENTER. 17 25. DOE Allegations: To the extent any entity, person, or company other than the SIERRA 18 VISTA DEFENDANTS owned, operated, managed, supervised, controlled, maintained, or were 19 otherwise responsible for the business activities of the FACILITY, the identity of such persons 20 or entities are unknown to Plaintiffs and Plaintiffs will seek leave to amend when those identities 21 are ascertained. Plaintiffs sue those persons/entities as DOES 1-10. Plaintiffs are informed and 22 believe, and thereon allege, that each of the Defendants designated as a DOE is responsible in 23 some manner for the events and happenings herein referred to and thereby legally caused the 24 injuries and damages herein alleged. Such DOES would include officers, directors, controlling 25 shareholders, partners, parent and/or sister companies, governing board members, and persons in 26 de facto control of healthcare, operators, or employees of the SIERRA VISTA DEFENDANTS. 27 26. On information and belief, DOES 11 through 15 may be staff or contracted personnel of 28 the SIERRA VISTA DEFENDANTS, including physicians, physician’s assistants, nurse 6 SECOND AMENDED COMPLAINT FOR DAMAGES 1 practitioners, licensed nurses, aides, social workers, business office personnel, or other 2 administrative or clinical personnel including persons directly or indirectly responsible for 3 provision of patient care, persons having made representations or warranties to Plaintiffs, and 4 persons acting in concert with other Defendants. 5 27. On information and belief, DOES 16 through 25 include persons directly or indirectly 6 responsible for provision of care to MS. NUTT, including but not limited to physicians, medical 7 groups, managed care organizations, acute care hospitals, skilled nursing facilities, residential 8 care facilities for the elder, home health agencies, visiting nurses, therapists, or other ancillary 9 care providers who saw, examined, evaluated, observed or treated or failed to treat MS. NUTT 10 for care or conditions relating to mismanagement of her medications, malnutrition, and/or 11 dehydration, and/or persons having made representations or warranties to or from the 12 Department of Social Services, the Department of Public Health, the Long Term Care 13 Ombudsman, Adult Protective Services, and/or SIERRA VISTA, and/or anyone purporting to act 14 on behalf of or in concert with these persons or entities. The identities of such persons or entities 15 are unknown to Plaintiff and Plaintiff will seek leave to amend when those identities are 16 ascertained. Plaintiff is informed and believes, and thereon alleges, that each of the defendants 17 designated as a DOE is responsible in some manner for the events and happenings herein 18 referred to and thereby legally caused the injuries and damages herein alleged. 19 28. Upon information and belief, Plaintiffs allege that each Defendant was the agent, servant, 20 employee, joint venturer and/or partner of each Co-Defendant, and at all times acted within the 21 course and scope of said agency, employment, venture, and/or partnership pursuant to the 22 policies, practices, procedures, written or otherwise, and with the advance knowledge, 23 acquiescence, or subsequent ratification of each Co-Defendant. 24 Jurisdiction and Venue 25 29. This Court has jurisdiction over the cause of action asserted. The Defendants have 26 sufficient minimum contacts in California based on their residency in California or otherwise 27 intentionally avail themselves of the California market though their provision of services in the 28 County of Fresno, so as to render them essentially at home in California and making the exercise 7 SECOND AMENDED COMPLAINT FOR DAMAGES 1 of jurisdiction by the California courts consistent with traditional notions of fair play and 2 substantial justice. 3 30. Venue is proper in the County of Fresno under Code of Civil Procedure section 395(a) 4 based on the facts, without limitation, that this Court is a court of competent jurisdiction, that the 5 defendants reside in the County of Fresno, and that all of the events described occurred in the 6 County of Fresno. 7 GENERAL ALLEGATIONS 8 31. MS. NUTT became a resident at SIERRA VISTA on February 15, 2020, following a 9 brief hospitalization for a total knee replacement. At the time, MS. NUTT was fully cognizant, 10 conversant, and able to ambulate with a walker. She was admitted to improve her strength and 11 mobility in order to resume living independently. At the time, MS. NUTT also suffered from 12 hypertension, type II diabetes, anemia, and chronic kidney failure. 13 32. . As a result of all these conditions, MS. NUTT was dependent on SIERRA VISTA staff 14 for assistance with all activities of daily living including but not limited to personal hygiene, 15 continence care, transferring and repositioning in bed, transferring in and out of bed and 16 wheelchair, eating, hydrating, and managing her medications. 17 33. Everybody in the business of caring for the elderly knows that they must provide 18 individualized care and treatment to avoid certain custodial care issues from developing. Upon 19 admission, the resident must be properly assessed to gather information to make decisions about 20 suitable interventions to avoid individualized health risks. The care plan must set goals to 21 provide benchmarks for evaluating whether the planned care interventions are actually working. 22 The staff must assess and reassess the resident to determine whether the care plan goals are being 23 met. If the interventions are not working, the care plan must be modified to include alternative 24 treatment interventions. If the resident has a change of condition, he or she must be reassessed to 25 determine if the care plan needs to be modified as a result of the resident’s new condition and/or 26 baseline. Care planning is an ongoing interdisciplinary process that is critical to patient 27 outcomes. 28 /// 8 SECOND AMENDED COMPLAINT FOR DAMAGES 1 34. MS. NUTT’s chronic kidney failure and her diabetes placed her at high risk for 2 dehydration. A symptom of diabetes is the buildup of excess glucose in the blood. This forces the 3 kidneys to work overtime to filter and absorb the excess glucose. If a person’s kidneys are 4 impaired (like MS. NUTT’s were) they cannot keep up with the excess glucose. As a result, the 5 glucose is unable to be absorbed and is instead excreted through the urine, causing dehydration. 6 35. Because this is such a common risk, everybody in the business of caring for the elderly 7 knows that residents living with diabetes and chronic kidney failure are at risk of dehydration. 8 The way to combat this risk is an interdisciplinary approach based on close monitoring of the 9 hydration status of the patient including the patient’s intake and output of fluids. The patient’s 10 fluid status should be monitored in conjunction with the patient’s dietary intake as fluid comes 11 into the body through drinking, water in food, and water formed by oxidation of foods. The 12 patient’s urine color and amount should be assessed and if urine output is less than 30 ml/hour 13 for two consecutive hours, this should be reported to the patient’s family and physician. Close 14 monitoring of vital signs such as blood pressure and heart rates for hypotension and tachycardia 15 should be implemented. The patient’s weight should be monitored for possible fluid volume 16 imbalance. 17 36. Furthermore, during her admission to SIERRA VISTA, SIERRA VISTA staff were 18 administering several medications to MS. NUTT, including spironolactone and Edarbi. 19 Spironolactone and Edarbi are used to treat high blood pressure; however, when given together, 20 these drugs pose an increased risk of hyperkalemia (too much potassium) to the patient. 21 Hyperkalemia in turn can cause cardiac arrest leading to death. Because of this, SIERRA VISTA 22 staff were supposed to monitor MS. NUTT’s vitals closely. Her physician orders were to hold 23 the Spironolactone and Edarbi if her blood pressure dropped below 100 systolic or her heart rate 24 below 60 bpm. 25 37. SIERRA VISTA knew MS. NUTT was at an increased risk of dehydration and 26 hyperkalemia when she was admitted to their facility, and throughout her stay. However, they 27 failed to adequately assess her high-risk status, failed to care plan for these risks, failed to 28 monitor her vital signs, failed to track her fluid intake and output, failed to monitor her for signs 9 SECOND AMENDED COMPLAINT FOR DAMAGES 1 and symptoms of dehydration, and failed to follow doctor’s orders to notify her physician and 2 hold certain medications when her blood pressure dropped below 100 systolic. 3 38. During the 10 days that she was at SIERRA VISTA, MS. NUTT lost five pounds, had a 4 consistently low body temperature, and her blood pressure dropped below 100 systolic four 5 times. Also during this time, MS. NUTT averaged about 988 ccs per day – less than half of what 6 she required (ideal adult fluid intake is 2000 cc per day), and staff documented that she had 7 “loose” and “watery” stools. In other words, she wasn’t getting enough fluid intake and the fluids 8 that she was getting were coming out in her stools, leaving her body depleted of the necessary 9 hydration to survive. 10 39. All of these were indications that MS. NUTT was becoming progressively dehydrated 11 and should have prompted SIERRA VISTA staff to notify her physician, increase her monitoring 12 and assessments, and update her care plan to include additional interventions. Yet they did none 13 of these. 14 40. On or around February 21, 2020, approximately one week after being at the FACILITY, 15 MS. NUTT’s son HENRY NUTT came to visit her and noticed that she looked fatigued and 16 worn out. It was at this time that he became aware that she had been experiencing diarrhea. 17 41. That same day, SIERRA VISTA staff documented that MS. NUTT had an acute change 18 in mental status. An acute change of mental status is a medical emergency because it is 19 indicative of severe and life-threatening causes. It should have prompted immediate action by 20 SIERRA VISTA staff. At the very minimum it required SIERRA VISTA staff to report the acute 21 change in mental to her physician or send her to the hospital to obtain further medical assessment 22 and treatment. The change should also have been reported to MS. NUTT’s medical decision- 23 maker. Yet SIERRA VISTA staff did not report this change to MS. NUTT’s physician, nor did 24 they send her to the hospital, nor did they report it to MS. NUTT’s family. 25 42. On February 24, 2020, SIERRA VISTA ran labs on MS. NUTT as a result of her ongoing 26 diarrhea and discovered that she was positive for C-Diff. MS. NUTT was given an order for 27 Keflex, which SIERRA VISTA staff immediately carried out, despite knowing that she was 28 allergic to it, as was documented throughout her chart. 10 SECOND AMENDED COMPLAINT FOR DAMAGES 1 43. By February 25, 2020, MS. NUTT’s dehydration had progressed to such a severe point 2 that her lips, fingertips, and skin became “cracked.” When MS. NUTT’s physician learned of 3 this, he ordered that she be started on IV fluids at the rate of 65 cc per hour. Even then, however, 4 SIERRA VISTA staff failed to administer the IV fluids as ordered. Instead, they gave her a total 5 intake of 195 cc that day – which was only a fraction of what she needed. 6 44. That same day, MS. NUTT was given an order for Bactrim DS, which was once again 7 carried out by SIERRA VISTA staff. MS. NUTT was already on 30mgs of a diabetic medication 8 called Pioglitazone HCI when this order was made. Pioglitazone HCI is known to have serious 9 risks associated with its interaction with Bactrim DS including cardiac failure. The SIERRA 10 VISTA chart flagged this warning; however, SIERRA VISTA staff ignored the warning and 11 nonetheless carried out both orders. 12 45. Later that same day on February 25, 2 020, MS. NUTT was taken to a follow up 13 orthopedic appointment for x-rays of her recent right knee replacement. While on the table at the 14 orthopedic office for x-rays, MS. NUTT suffered a cardiac event. CPR was administered, and 15 paramedics transported MS. NUTT to SAINT AGNES MEDICAL CENTER.. 16 46. Once at SAINT AGNES MEDICAL CENTER, MS. NUTT was triaged in the 17 Emergency Department and her labs showed a critical value of Calcium at 18.6 – in other words, 18 she was critically hypercalcemic. However, the hypercalcemia was not addressed, diagnosed, or 19 treated at all by SAINT AGNES MEDICAL CENTER staff, nor by the Emergency Department 20 physician attending to her, CRYSTAL IRWIN-SINGH, D.O. As a result, MS. NUTT’s 21 hypercalcemia – which could have been easily rectified by simply administering intravenous 22 fluids – caused her heart to go into arrhythmia, which caused her cardiac arrest and death. The 23 failure to diagnose or treat MS. NUTT’s hypercalcemia on February 25, 2020 is a breach of the 24 standard of care for a general acute hospital and emergency physician. 25 47. The actions and omissions of SIERRA VISTA, SAINT AGNES MEDICAL CENTER 26 and CRYSTAL IRWIN-SINGH, D.O. proximately caused MS. NUTT’s suffering and death. 27 48. Had SIERRA VISTA provided MS. NUTT with adequate fluids, treated her C. diff 28 properly, and accurately reported her changes of condition to her physician – including lethargy 11 SECOND AMENDED COMPLAINT FOR DAMAGES 1 and altered mental status – then her hypercalcemia would not have progressed to the extent that it 2 did, and she would not have died. Had SAINT AGNES MEDICAL CENTER and CRYSTAL 3 IRWIN-SINGH, D.O. timely recognized and treated her hypercalcemia upon arrival at the ER, 4 she would not have died. 5 FIRST CAUSE OF ACTION 6 (Elder Abuse and Neglect by Plaintiff LOLA NUTT, by and through her Successor in 7 Interest, HENRY NUTT, as against all Defendants) 8 49. Plaintiff incorporates by reference Paragraphs 1 through 45 of this Complaint as though 9 fully set forth. 10 50. Elder and Dependent Adult: MS. NUTT, at all relevant times herein, was over the age 11 of 65 and thus, an “elder” as that term is defined in Welfare & Institutions Code section 12 15610.27. MS. NUTT was also a “dependent adult” as that term is defined in Welfare & 13 Institutions Code section 15610.23. 14 51. Dependence on Staff for All Care Needs: At all relevant times during her admission at 15 SIERRA VISTA, MS. NUTT was dependent on SIERRA VISTA care staff for all of her 16 activities of daily living including personal hygiene, transferring, and repositioning in bed, 17 transferring in and out of bed and wheelchair, eating, drinking, and medication management. 18 52. Substantial Ongoing Caretaking and Custodial Relationship: MS. NUTT was 19 rehabilitating from a total knee replacement and was unable to take care of her own needs during 20 the time she was under the care and custody of SIERRA VISTA DEFENDANTS. The SIERRA 21 VISTA DEFENDANTS had a substantial ongoing caretaking and custodial relationship with 22 MS. NUTT while she was a resident at the FACILITY. MS. NUTT was dependent on the 23 SIERRA VISTA DEFENDANTS for all of her custodial and other care needs. 24 53. Knowledge of Vulnerable Resident Population: Each adult resident of SIERRA 25 VISTA is an elder and/or dependent adult as defined by Welfare & Institutions Code sections 26 15610.27 and 15610.23, respectively. Defendants, and each of them, knew or should have 27 known that their conduct, as described herein, was directed to one or more elder and/or 28 dependent adults. Because of her age, condition, and restricted mobility, MS. NUTT was 12 SECOND AMENDED COMPLAINT FOR DAMAGES 1 substantially more vulnerable to the conduct of the Defendants, than other members of the 2 public. 3 54. Duties of SIERRA VISTA: SIERRA VISTA had a duty to arrange for or provide access 4 to medical care, including but not limited to care and treatment and management of her 5 medications; to ensure medical care that was needed was actually provided; and to accept and 6 retain only those residents for whom it could provide adequate care, supervision, and assistance. 7 Because SIERRA VISTA accepted and retained MS. NUTT as a resident, they owed a duty to 8 her to act reasonably in the discharge of their duties and to not willfully or recklessly ignore her 9 medical care needs or cause unnecessary suffering. Without limiting the foregoing, SIERRA 10 VISTA owed the following duties to MS. NUTT: 11 a. Duty to treat residents with consideration, respect, and full recognition of dignity 12 (Cal. Code Regs., tit. 22, § 72527(a)(12)); 13 b. Duty to provide care in such a manner and in such an environment by facility staff to 14 be free from mental and physical abuse and neglect (Cal. Code Regs., tit. 22, § 15 72527(a)(10); 42 C.F.R. § 483.12); 16 c. Duty to identify care needs based upon an initial written assessment of the patient’s 17 needs, develop a patient care plan based on that assessment, and review, evaluate, and 18 update the patient care plan upon a change of condition (Cal. Code of Regs., tit. 22, 19 §§ 72311(a)(1)(A)-(C)); 20 d. Duty to provide care as implemented by the patient care plan according to the 21 methods indicated (Cal. Code Regs., tit. 22, § 72311(a)(2); 42 U.S.C. § 1395i- 22 3(b)(4)); 23 e. Duty to review, evaluate, and update patient care plans as necessary and more often if 24 there is a change of the patient’s condition (Cal. Code Regs., tit. 22, § 25 72311(a)(1)(C)); 26 f. Duty to provide the resident or responsible party with the opportunity to participate in 27 an immediate and ongoing basis in the total plan of care including identification of 28 medical, nursing, and psychosocial needs and the planning of related services (Cal. 13 SECOND AMENDED COMPLAINT FOR DAMAGES 1 Code Regs., tit. 22, § 72527(a)(3); 42 C.F.R. § 483.10(c)); 2 g. Duty to record nurses’ notes that are clear and legible, dated and signed, among other 3 qualifications, including narratives or how a patient responds, eats, drinks, looks, 4 feels, and reacts (Cal. Code Regs., tit. 22, § 72547(a)(5)); 5 h. Duty to notify family and physician of significant changes in the resident's condition 6 or a need to alter treatment significantly (Cal. Code of Regs., tit. 22, §§ 72311 (3)(B), 7 (D)-(G); 42 CFR §483.10(g)(14)); 8 i. Duty to provide adequate personal hygiene, nutrition, and fluids to prevent 9 malnutrition and dehydration, (Cal. Code of Regs., tit. 22, §§ 72315(d)(g)(h); Health 10 & Saf. Code, § 1599.1(b)); 11 j. Duty to provide pharmaceutical and physical therapy services for effective pain 12 management (Cal. Code Regs., tit. 22, §§ 72355, 72403(b)(3)); 13 k. Duty to provide adequate care and treatment to prevent the development and 14 progression of infections (Cal. Code Regs., tit. 22, § 72321(b)); 15 l. Duty to provide adequate number of qualified personnel to carry out all functions of 16 the facility and to meet patients’ needs as well as adequate training and competent 17 supervision (Cal. Code of Regs., tit. 22, §§ 72329 and 72329.1; Health & Saf. Code, § 18 1599.1(a); 42 C.F.R. §§ 483.35, 483.95). 19 55. Duties of SIERRA VISTA DEFENDANTS: As alleged above, SIERRA VISTA is a 20 mere shell of ASPEN. ASPEN manages and directs SIERRA VISTA’s day-to-day operations. 21 By virtue of this agency relationship, SIERRA VISTA DEFENDANTS also owed the duties 22 identified in Paragraph 50 (a)-(l) to MS. NUTT. 23 56. In addition, and without limiting the generality of the foregoing, ASPEN, as the managers 24 and operators of SIERRA VISTA owed the following duties to MS. NUTT: to implement 25 policies and procedures to ensure resident care needs are met; to provide training on the policies 26 and procedures to ensure resident care needs are met; to ensure physicians care is provided; to 27 plan a budget whereby staffing levels are adequate; to allocate sufficient resources to SIERRA 28 14 SECOND AMENDED COMPLAINT FOR DAMAGES 1 VISTA; to staff SIERRA VISTA in both quantity and quality caregivers; and to comply with 2 state and federal laws and regulations pertaining to SNFs. 3 57. Physical Abuse: The conduct of the SIERRA VISTA DEFENDANTS constitutes 4 "physical abuse" as defined in Welfare and Institutions Code section 15610.63(c) for prolonged 5 and continued deprivation of water. By failing to provide MS. NUTT with adequate water intake, 6 she became dehydrated, went into hyperkalemia and acute renal failure, and died of a cardiac 7 arrest. 8 58. Neglect: The conduct of the SIERRA VISTA DEFENDANTS constitutes neglect as that 9 term is defined in Welfare and Institutions Code § 15610.57 to include “the negligent failure of 10 any person having the care or custody of an elder or a dependent adult to exercise that degree of 11 care that a reasonable person in a like position would exercise” including but not limited to: 12 “(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. 13 (2) Failure to provide medical care for physical and mental health needs… 14 (3) Failure to protect from health and safety hazards. 15 (4) Failure to prevent malnutrition or dehydration.” 16 59. Neglect of SIERRA VISTA: Without limiting the generality of the foregoing paragraph, 17 SIERRA VISTA committed elder neglect by failing to provide medical care for MS. NUTT’s 18 physical needs and failing to prevent dehydration. SIERRA VISTA recklessly administered 19 medications to her which they knew she was allergic to, and which were known to cause 20 hyperkalemia and cardiac failure – without implementing appropriate interventions to monitor 21 her condition. SIERRA VISTA knew MS. NUTT was at risk for dehydration and hyperkalemia, 22 yet failed to provide adequate fluids, failed to monitor and track her input and output, failed to 23 reassess her condition and report it to her physician, failed to update their Care Plans to 24 implement interventions to combat these risks, and failed to follow physicians orders regarding 25 the provision of medications. SIERRA VISTA knew they were supposed to monitor MS. 26 NUTT’s vitals closely and hold the Spironolactone and Edarbi if her blood pressure dropped 27 below 100 systolic or her heart rate below 60 bpm. However, they failed to do so on the four 28 occasions that her blood pressure dropped below 100 systolic, and failed to report this to her 15 SECOND AMENDED COMPLAINT FOR DAMAGES 1 physician. They failed to obtain appropriate medical care for her “acute change in mental status” 2 on February 21, 2021. Had they notified her physician or sent her to the ER on that date, it is 3 more likely than not that her death would have been avoided. 4 60. Neglect by SIERRA VISTA DEFENDANTS: As alleged above, SIERRA VISTA is a 5 mere shell of the SIERRA VISTA DEFENDANTS. SIERRA VISTA DEFENDANTS manage 6 and direct SIERRA VISTA’s day-to-day operations. By virtue of this agency relationship, the 7 SIERRA VISTA DEFENDANTs also neglected MS. NUTT in the ways identified in the 8 foregoing Paragraph. 9 61. In addition, and without limiting the generality of the foregoing, the SIERRA VISTA 10 DEFENDANTS, as managers and operators of SIERRA VISTA neglected MS. NUTT when 11 they failed to implement policies and procedures to ensure resident care needs are met; to 12 provide training on the policies and procedures to ensure resident care needs are met; to ensure 13 physicians care was provided; to plan a budget whereby staffing levels were adequate; to allocate 14 sufficient resources to SIERRA VISTA; to staff SIERRA VISTA in both quantity and quality 15 caregivers; and to comply with state and federal laws and regulations pertaining to SNFs. 16 62. Evidence of Recklessness and Conscious Disregard for the Safety and Well-Being of 17 MS. NUTT by the SIERRA VISTA DEFENDANTS: Pursuant to California law, the 18 Defendants, and each of them, are required to provide a dependent and elder adult, such as MS. 19 NUTT, “basic services” including, a duty to continually assess MS. NUTT’s condition, a duty to 20 note changes in her condition, and a duty to immediately notify her physician and family of 21 changes. Defendants similarly had a duty to create and update adequate plans of care, and to 22 receive, note and follow physicians’ orders. Defendants had a duty to provide physician care and 23 treatment that was specialized to MS. NUTT’s needs. Defendants had a duty to assist with 24 hygiene, feeding, bathing, dressing, and toileting, to treat her with dignity and respect, and to 25 provide adequate numbers of nursing and other similar staff to assist her. The SIERRA VISTA 26 DEFENDANTS had a duty to employ adequately trained staff. Yet Defendants failed to provide 27 medical care and custodial care sufficient to meet MS. NUTT’s physical and mental health needs 28 and failed to protect her from health and safety hazards, as described in detail herein. 16 SECOND AMENDED COMPLAINT FOR DAMAGES 1 63. Defendants knew that MS. NUTT was an elder who required assistance to meet her basic 2 needs, yet failed to provide for those needs, even with knowledge of her high risk for injury, her 3 dependence on the Defendants, and the substantial certainty that she would be injured if these 4 needs were not provided for. Defendants’ failure to provide MS. NUTT with the care, 5 assistance, and monitoring that she required caused her harm. 6 64. Withholding of Care: Defendants denied and withheld basic care to MS. NUTT despite 7 the knowledge that by doing so, injury was substantially certain to befall her or with conscious 8 disregard of the high probability of such injury. Defendants’ denial and withholding of basic 9 care to MS. NUTT caused her injuries, needless suffering, and emotional distress. Specifically, 10 Defendants failed to provide MS. NUTT with the care and treatment she needed to prevent her 11 dehydration, hyperkalemia, acute renal failure, and death. Defendants failed to monitor, assess, 12 and reassess MS. NUTT’s deteriorating condition and to report her change of condition to her 13 physician and/or family to arrange for a higher level of care. 14 65. Furthermore, Defendants, and each of them, withheld medical care by failing to assess 15 and reassess MS. NUTT’s condition, update individualized care plans, and monitor her condition 16 to see whether she was improving, staying the same, or worsening. 17 66. In Sababin v. Sup. Ct. (Covina Rehabilitation Center) (2006) 144 Cal.App.4th 81 18 establishes that a total absence of care is not required for a care facility to be held liable for Elder 19 Abuse and Neglect: “If some care is provided, that will not necessarily absolve a care facility of 20 dependent abuse liability. For example, if a care facility knows it must provide a certain type of 21 care on a daily basis but provides that care sporadically, or is supposed to provide multiple types 22 of care but only provides some of those types of care, withholding of care has occurred. In those 23 cases, the trier of fact must determine whether there is a significant pattern of withholding 24 portions or types of care. A significant pattern is one that involves repeated withholding of care 1 25 and leads to the conclusion that the pattern was the result of choice or deliberate indifference.” 26 Thus, there was repeated withholding of care each time SIERRA VISTA staff interacted with 27 28 1 Sababin v. Superior Court (2006) 144 Cal.App,4th 81, 90. 17 SECOND AMENDED COMPLAINT FOR DAMAGES 1 MS. NUTT and failed to respond to her complaints of fatigue, lethargy, and severe diarrhea until 2 it was too late. These daily failures constitute withholding of care. 3 67. Knowledge of Dangerous Consequences: Defendants’ conduct, as detailed herein, was 4 reckless and in conscious disregard of MS. NUTT’s rights and safety. This is because 5 Defendants, and each of them, knew of MS. NUTT’s vulnerable condition and the critical need 6 to monitor and treat her condition properly and to provide adequate custodial care to her at all 7 times yet failed to do so. 8 68. Defendants’ conduct, as detailed herein, was directed not only to MS. NUTT but instead, 9 was part of a continual pattern at SIERRA VISTA in failing to provide assessments, failing to 10 implement individualized care plans, failing to notify physicians of significant changes in 11 resident conditions, failing to monitor, failing to continually assess residents’ needs, failing to 12 provide ancillary services, and failing to provide residents with adequate custodial care. 13 69. Neglect by the SIERRA VISTA DEFENDANTS /Corporate Choice to Minimize 14 Staff and Maximize Profits: One of the reasons SIERRA VISTA staff failed to meet MS. 15 NUTT’s need for care and basic services, to avoid needless suffering, injury, and emotional 16 distress, is that the SIERRA VISTA DEFENDANTS made a conscious choice to understaff 17 SIERRA VISTA, in both quantity and quality of nursing personnel. The decision to understaff 18 was made at the corporate level by the SIERRA VISTA DEFENDANTS in order to increase the 19 profitability of SIERRA VISTA, in conscious disregard of patient care needs. The SIERRA 20 VISTA DEFENDANTS together with their directors, officers and managing agents (including 21 SIERRA VISTA’s Administrator and Director of Nursing) conceived of and implemented a plan 22 to increase business profits at the expense of residents like MS. NUTT, and other SIERRA 23 VISTA residents. Integral to this plan was the practice and pattern of the SIERRA VISTA 24 DEFENDANTS in staffing the FACILITY with an insufficient number of care personnel, many 25 of whom were not properly trained nor qualified to care for the residents whose lives were 26 entrusted to them. The understaffing and lack of training was designed to reduce labor costs and 27 to increase profits and resulted in high staff turnover and the physical abuse and neglect of many 28 residents of the facilities and most specifically, MS. NUTT. This corporate policy to not 18 SECOND AMENDED COMPLAINT FOR DAMAGES 1 maintain sufficient staffing as required by law was developed and implemented with the 2 conscious disregard for the likelihood of physical harm and injury to those who it is in the 3 business to protect, including MS. NUTT, who did in fact suffer as a direct consequence of the 4 SIERRA VISTA DEFENDANTS’ proprietary interests, which it placed above that of her and 5 other residents/patients. 6 70. The SIERRA VISTA DEFENDANTS had a duty to employ adequate numbers of 7 sufficiently staffed employees to provide minimum services and oversight of residents, policies 8 and procedures to ensure that basic services and oversight are implemented to assure the health 9 and safety of residents, employment and training of staff such that staff is experienced and 10 competent to perform the job duties necessary to assure safety and oversight of residents, 11 accepting, training and employing staff in a manner that avoids “a revolving door” of crucial 12 managerial employees such that there is little or no continuity and/or an absence of crucial 13 managerial employees at critical times such as the initial admission of a resident to the 14 FACILITY. 15 71. Understaffing causes poor patient outcomes: The SIERRA VISTA DEFENDANTS 16 knew that by understaffing their FACILITY, in quantity and quality, they were putting 17 FACILITY residents (including MS. NUTT) at risk for known, harmful, life threatening 18 conditions, including untreated infections. This is because everyone involved in nursing home 19 operations including the owners, operators, administrators, and directors of nursing understand 20 the direct relationship between staffing and patient outcomes. The higher the staffing ratio, the 21 better the patient outcome. 22 72. Fraud in the Commission of Elder Abuse and Neglect/Knowing concealment of 23 profit motives: The SIERRA VISTA DEFENDANTS knew or should have known that their 24 operation was designed and operated in a manner to circumvent its legal duty to comply with 25 applicable statutes and regulations so as to maximize profitability. That knowledge was 26 exclusively in the possession of the Defendants. MS. NUTT had no such knowledge, nor the 27 opportunity to obtain such knowledge and information. MS. NUTT and her family believed that 28 the SIERRA VISTA DEFENDANTS’ business operations were, as represented by the 19 SECOND AMENDED COMPLAINT FOR DAMAGES 1 Defendants, properly run in compliance with the law and that the care afforded to its residents 2 was within all State guidelines. In particular, they understood that the management and staff at 3 SIERRA VISTA were “experts” and were readily familiar, capable, able, and committed to the 4 care and oversight of residents such as MS. NUTT. Such representations were fraudulent. 5 Further, Defendants’ conduct was reckless and in conscious disregard of MS. NUTT’s rights and 6 safety. 7 73. The SIERRA VIS