Motion for Writ in Manuel Zaruma As Proposed Administrator Of The Estate Of Jose Luis Zaruma Deceased And Manuel Zaruma Individually v. Fordham Nursing And Rehabilitation Center, Fka Kings Terrace Nursing Home| Trellis.Law

On April 11, 2024 a Complaint,Petition was filed involving a dispute between Manuel Zaruma As Proposed Administrator Of The Estate Of Jose Luis Zaruma Deceased And Manuel Zaruma Individually, and Fka Kings Terrace Nursing Home, Fordham Nursing And Rehabilitation Center, for Torts - Medical, Dental, or Podiatrist Malpractice in the District Court of Bronx County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
Filed:_____________
______________________________________________
MANUEL ZARUMA, As Proposed Administrator of the
INDEX NO.:
Estate of JOSE LUIS ZARUMA, Deceased and
MANUEL ZARUMA Individually,
Plaintiff designates BRONX
Plaintiff,
County as the place of trial.
-against-
SUMMONS
FORDHAM NURSING AND REHABILITATION
The basis of venue is
CENTER, F/K/A KINGS TERRACE NURSING HOME,
Plaintiff residence:
Defendant.
109 East 153rd Street
______________________________________________
Bronx, New York 10451

To the above named Defendant:

YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve

a copy of your answer on the plaintiff’s attorneys within 20 days after the service of this

summons, exclusive of the day of service of this summons, or within 30 days after service of this

summons is complete if this summons is not personally delivered to you within the State of New

York.

In case of your failure to answer this summons, a judgment by default will be taken

against you for the relief demanded in the complaint, together with the costs of this action

Dated: New York, New York
April 11, 2024

________________________________________
DAVID SILVERMAN, ESQ.
RAPHAELSON & LEVINE LAW FIRM, P.C.
Attorneys for Plaintiff
Pennsylvania Building
14 Penn Plaza, Suite 1718
New York, New York 10122
(212) 268-3222

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DEFENDANTS:

FORDHAM NURSING AND REHABILITATION CENTER, F/K/A KINGS TERRACE
NURSING HOME
2678 Kingsbridge Terrace
Bronx, New York 10463

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
________________________________________________
MANUEL ZARUMA, As Proposed Administrator of the
Estate of JOSE LUIS ZARUMA, Deceased and
MANUEL ZARUMA Individually, INDEX NO.

Plaintiff, VERIFIED COMPLAINT
-against-

FORDHAM NURSING AND REHABILITATION CENTER, F/K/A KINGS TERRACE
NURSING HOME,

Defendant.
________________________________________________

Plaintiff JOSE LUIS ZARUMA by his attorneys, RAPHAELSON & LEVINE

LAW FIRM, P.C. complaining of the Defendant FORDHAM NURSING AND

REHABILITATION CENTER, F/K/A KINGS TERRACE NURSING HOME, respectfully

alleges, upon information and belief, as follows:

1. At all times relevant herein, Plaintiff, MANUEL ZARUMA (“Plaintiff”),

was a resident of the County of Bronx, State of New York.

2. Plaintiff is Proposed Administrator of the Estate of JOSE LUIS ZARUMA.

3. At all relevant times herein, Plaintiff, as the Proposed Administrator

of the Estate of JOSE LUIS ZARUMA, brings these causes of actions on behalf of Plaintiff,

JOSE LUIS ZARUMA.

4. At all times hereinafter mentioned the Defendant, FORDHAM NURSING

AND REHABILITATION CENTER, F/K/A KINGS TERRACE NURSING HOME was and is

a domestic corporation duly organized and existing under and by virtue of the laws of the State

of New York.

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5. At all times hereinafter mentioned the Defendant, FORDHAM NURSING

AND REHABILITATION CENTER, F/K/A KINGS TERRACE NURSING HOME at all times

herein mentioned was and still is a foreign corporation duly license and authorized to do business

in the State of New York.

6. At all times relevant herein, the Defendant, FORDHAM NURSING AND

REHABILITATION CENTER, F/K/A KINGS TERRACE NURSING HOME, maintained a

principal place of business in the County of Bronx, State of New York.

7. At all times relevant herein, the Defendant, FORDHAM NURSING AND

REHABILITATION CENTER, F/K/A KINGS TERRACE NURSING HOME, owned the

premises, the pertinences and fixtures thereto, located at 2678 Kingsbridge Terrace, Bronx, New

York.

8. At all times relevant herein, the Defendant, FORDHAM NURSING AND

REHABILITATION CENTER, F/K/A KINGS TERRACE NURSING HOME, and was and

still remains engaged in the ownership of a facility located at 2678 Kingsbridge Terrace, Bronx,

New York, which was and is governed by the laws and regulations of the State of New York.

9. At all times relevant herein, Defendant, FORDHAM NURSING AND

REHABILITATION CENTER, F/K/A KINGS TERRACE NURSING HOME, held itself out to

the public as furnishing medical treatment facilities where patients including Plaintiff, JOSE

LUIS ZARUMA, could be provided with proper medical care and treatment, which included

providing medical personnel, including, doctors, nurses, attendants, assistants, physician

assistants, and other health care providers and Defendant, FORDHAM NURSING AND

REHABILITATION CENTER, F/K/A KINGS TERRACE NURSING HOME, represented that

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they/it were/was competent to perform and render all the required medical care, treatment

services and advice required by the Plaintiff, JOSE LUIS ZARUMA.

10. At all times relevant herein, Plaintiff, JOSE LUIS ZARUMA, was a

patient at Defendant, FORDHAM NURSING AND REHABILITATION CENTER, F/K/A

KINGS TERRACE NURSING HOME, and under the medical care, services, treatment and

management of the Defendant FORDHAM NURSING AND REHABILITATION CENTER,

F/K/A KINGS TERRACE NURSING HOME.

11. At all times relevant herein, Defendant, FORDHAM NURSING AND

REHABILITATION CENTER, F/K/A KINGS TERRACE NURSING HOME, stood in such

relationship of Plaintiff, JOSE LUIS ZARUMA, as to make Defendant FORDHAM NURSING

AND REHABILITATION CENTER, F/K/A KINGS TERRACE NURSING HOME, liable for

all of the acts and/or omissions of its agents, servants, licensees, doctors, nurses, staff,

contractors and for employees.

12. At all times relevant herein, Defendant was operating a nursing home,

skilled nursing facility and/or long term care facility in New York, and accordingly:

a. Defendant was a nursing home within the meaning of Article 28 of

the Public Health Law and at all times relevant, Defendant was

under a duty to comply with all duties set forth under that chapter;

b. The New York Codes, Rules, and Regulations (NYCRR),

10NYCCR 415.1(b) (4) require that Nursing Homes comply with

all pertinent Federal, State, and local laws, regulations, codes,

standards, and principles;

c. In New York, Nursing Homes are required to provide care and

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services in a manner and quality consistent with generally accepted

standards of practice pursuant to 10 NYCRR 415.1 (b) (1);

d. The Defendant was and are participants in Medicare and Medicaid

programs.

e. To participate in Medicare and Medicaid programs, nursing homes

must be in compliance with the federal requirements for long term

care as prescribed in the U.S. Code of Federal Regulations, 42

C.F.R.§483.

13. Defendant, FORDHAM NURSING AND REHABILITATION CENTER,

F/K/A KINGS TERRACE NURSING HOME, is aware that it is to be in compliance with the

federal requirements for long term care as prescribed in the U.S. Code of Federal Regulations, 42

C.F.R.§483.

14. Under the Code of Federal Regulations, a nursing home must:

a. have sufficient nursing staff to provide nursing and related services to

attain and maintain the highest practicable physical, mental, and

psycho social well-being of each resident (42 C.F.R.§483.30);

b. provide, if a resident is unable to carry out activities of daily living,

the necessary services to maintain good nutrition, grooming, and

personal and oral hygiene (42 C.F.R. §483.25);

c. ensure that the resident's environment remains free of accident hazards

(42 C.F.R§483.25 (h) (1));

d. ensure that each resident receives adequate supervision and assistance

devices to prevent accidents (42 C.F.R.§483.25 (h) (2);
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e. ensure that a resident's maintains acceptable parameters of nutritional

status such as body weight and protein levels (42 C.F.R.§483.25);

f. provide an appropriate assessment of each resident entering a

certified Nursing Home and the development and implementation of

an appropriate care plan so that each resident is allowed to attain and

maintain the highest practicable mental, physical and psycho social

well-being (See 42 C.F.R.§483.1);

g. ensure that the facility protects the resident from unnecessary falls and

accidents (See C.F.R. 42§483.25(h));

h. conduct an initial assessment to determine the resident's risk of

falling and develop a care plan that is tailored to address the

resident's needs (See C.F.R. 42§483.20);

i. report any resident falls to the attending physician and also to the

responsible party for the resident and to monitor the resident's

complications from the fall; and,

j. the facility further has an obligation to investigate the cause of all

falls and develop a plan to protect the resident from future falls (See

42 CFR § 483.10 (10)).

k. conduct initially (no later than 14 days after admission) and

periodically (after a significant change in the resident's physical or

mental condition and, in no case, less often than once every 12

months) a comprehensive, accurate, standardized, reproducible

assessment of each resident's functional capacity (42 CFR §483.20).
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l. develop a comprehensive care plan for each resident that includes

measurable objectives and timetables to meet a resident's medical,

nursing, and mental and psychosocial needs that are identified in the

comprehensive assessment. The care plan must be developed within 7

days after completion of the comprehensive assessment and describe

the services that are to be furnished. Also, the care plan must be

periodically reviewed and revised by a team of qualified persons after

each assessment (42 CFR §483.20).

m. prevent the deterioration of a resident's ability to bathe, dress,

groom, transfer and ambulate, toilet, eat, and to use speech, language

or other functional communication systems (42 CFR § 483.25).

n. ensure that residents receive proper treatment and assistive devices to

maintain vision and hearing abilities (42 CFR § 483.25).

o. ensure that residents do not develop pressure sores and, if a resident

has pressure sores, must provide the necessary treatment and services

to promote healing, prevent infection and prevent new sores from

developing (42 CFR § 483.25).

p. provide appropriate treatment and services to incontinent residents to

restore as much normal bladder functioning as possible and prevent

urinary tract infections and to restore as much normal bladder

function as possible (42 CFR § 483.25).

q. provide each resident with sufficient fluid intake to maintain proper

hydration and health (42 CFR § 483.25).

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r. ensure that residents are free of any significant medication errors (42

CFR § 483.25).

s. care for its residents in a manner and in an environment

that promotes maintenance or enhancement of each resident's

quality of life (42 CFR § 483.15).

t. promote care for residents in a manner and in an environment that

maintains or enhances each resident's dignity and respect in full

recognition of his or his individuality (42 CFR § 483.15).

u. ensure that the resident has the right to choose activities, schedules,

and health care consistent with his or his interests, assessments and

plan of care (42 CFR § 483.15).

v. ensure that the medical care of each resident is supervised by a

physician and must provide or arrange for the provision of physician

services 24 hours a day, in case of an emergency (42 CFR § 483.40).

w. provide pharmaceutical services (including procedures that assure the

accurate acquiring, receiving, dispensing, and administering of all

drugs and biologicals) to meet the needs of each resident (42 CFR §

483.60).

x. be administered in a manner that enables it to use its resources

effectively and efficiently to attain or maintain the highest practicable

physical, mental, and psychosocial well-being of each resident (42

CFR § 483.75).

y. maintain clinical records on each resident in accordance with a
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accepted professional standards and practices that are complete,

accurately documented, readily accessible, and systematically

organized (42 CFR § 483.75).

15. Defendant, FORDHAM NURSING AND REHABILITATION CENTER,

F/K/A KINGS TERRACE NURSING HOME, had the duty to properly complete a

comprehensive MDS assessment for the plaintiff, JOSE LUIS ZARUMA no later than by day 14

after admission.

16. Defendant, FORDHAM NURSING AND REHABILITATION CENTER,

F/K/A KINGS TERRACE NURSING HOME, had the duty to complete a comprehensive

assessment for the plaintiff, JOSE LUIS ZARUMA.

17. Defendant, FORDHAM NURSING AND REHABILITATION CENTER,

F/K/A KINGS TERRACE NURSING HOME, had the duty to update the comprehensive

assessment and to keep it current.

18. Defendant, FORDHAM NURSING AND REHABILITATION CENTER,

F/K/A KINGS TERRACE NURSING HOME, had the duty to complete a comprehensive plan of

care by day twenty-one (21) after admission.

19. Defendant, FORDHAM NURSING AND REHABILITATION CENTER,

F/K/A KINGS TERRACE NURSING HOME, had the duty to complete a comprehensive plan of

care for plaintiff, JOSE LUIS ZARUMA.

20. Defendant, FORDHAM NURSING AND REHABILITATION CENTER,

F/K/A KINGS TERRACE NURSING HOME, had the duty to update the plan of care and to

keep it current.

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21. At all times hereinafter mentioned herein, Defendant was operating a

nursing home in New York, and accordingly:

a. That at all times hereinafter mentioned, Defendant had the duty to

comply with Public Health Law Article 28;

b. That at all times hereinafter mentioned, Defendant was subject to

Public Health Law §2801(d);

c. That at all times hereinafter mentioned, Defendant was under a duty

to comply with New York State Law and Regulations, including but

not limited to Part 10, §415 of NYCRR;

d. That at all times hereinafter mentioned, Defendant was under a duty

to ensure that a resident who enters the facility without pressure sores

does not develop pressure sores unless the individual's clinical

condition demonstrates that they were unavoidable despite every

reasonable effort to prevent them; and a resident having pressure

sores receives necessary treatment and services to promote healing,

prevent infection and prevent new sores from developing;

e. That at all times hereinafter mentioned, Defendant was under a duty

to ensure that a resident who enters the facility as a fall risk does not

fall; and that patient is properly assessed as a fall risk; and, that

proper steps are placed to ensure that the patient does not fall; and,

that if incidents occur, or fall risk changes a re-assessment is done,

and steps are taken to ensure the patient does not fall;

f. That at all times hereinafter mentioned, Defendant was under a duty
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to comply with 42 CFR Part 483;

g. That at all times hereinafter mentioned, Defendant was under a duty

to comply with 42 U.S.C. §1396-r (1990) et seq., as amended by

OBRA of 1987.

22. On the May 29, 2022, plaintiff JOSE LUIS ZARUMA, was lawfully on

the premises of Defendant, FORDHAM NURSING AND REHABILITATION CENTER, F/K/A

KINGS TERRACE NURSING HOME located at 2678 Kingsbridge Terrace, Bronx, New York

11754.

23. Prior to, and on May 29, 2022 Defendant, FORDHAM NURSING AND

REHABILITATION CENTER, F/K/A KINGS TERRACE NURSING HOME agreed and

undertook to care for and treat plaintiff JOSE LUIS ZARUMA.

24. On the above dates, plaintiff, JOSE LUIS ZARUMA, sought the

professional care of Defendant for certain medical complaints, the need for medical care,

medical advice, long term care, rehabilitation care and for nursing home care, including

complaints, from which he was suffering, and these Defendant its agents, servants and

employees took on the responsibility of rendering medical and nursing care, diagnosis, treatment

and services to plaintiff, JOSE LUIS ZARUMA.

25. While plaintiff, JOSE LUIS ZARUMA, was lawfully about the aforesaid

premises and under the medical care and treatment of the Defendant. Plaintiff, JOSE LUIS

ZARUMA, was caused to sustain serious and permanent personal injuries which caused

extensive pain and mental suffering.

26. That no negligence on the part of plaintiff, JOSE LUIS ZARUMA,

contributed to the occurrence or injuries.

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27. The causes of action alleged herein falls within one or more of the

exemptions set forth in CPLR 1602.

AS AND FOR A FIRST CAUSE OF ACTION IN NEGLIGENCE
AGAINST THE DEFENDANT

28. Plaintiff repeats and realleges each and every allegation set forth above

with the same force and effect as though set forth herein at length.

29. The above care, diagnoses, treatment and services rendered to Plaintiff

JOSE LUIS ZARUMA by the Defendant and/or said Defendant’s servants, agents, contractors,

licensees and/or employees, were rendered carelessly, unskillfully, negligently, and in a manner

which departed from customary and accepted standards of practice, diagnosis, treatment and

service in the community; and negligently failed to use ordinary and reasonable care, diligence

and skills.

30. That the injuries by plaintiff JOSE LUIS ZARUMA was caused by the

lack of reasonable care exercised by Defendant, in that the above mentioned injuries and

occurrence, and the results thereof, were caused by the negligence of this Defendant and/or said

Defendant’s servants, agents, staff, contractors, employees, and/or licensees in the ownership,

operation, management, supervision, maintenance and control of the aforesaid Nursing

Home, and this patient and the negligent care and treatment provided to plaintiff JOSE LUIS

ZARUMA, and negligence in failing to hire sufficiently qualified staff to meet plaintiff JOSE

LUIS ZARUMA’s needs; in improperly supervising its staff and its residents/patients; in failing

to properly train the staff; in failing to have sufficient number of staff; in violating plaintiff

JOSE LUIS ZARUMA’s rights; in violating plaintiff’s rights under federal law and

regulations and state law and regulations; in failing to provide adequate and appropriate care

and services to plaintiff JOSE LUIS ZARUMA, in negligently hiring and/or retaining staff and
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employees; and in failing to follow statutory laws, rules, and regulations thereby resulting in

negligence per se and evidence of negligence.

31. That no negligence on the part of plaintiff JOSE LUIS ZARUMA

contributed to the occurrence or injuries.

32. By reason of the foregoing, plaintiff JOSE LUIS ZARUMA was

caused to suffer and sustain severe, serious and permanent personal injuries, severe and

serious pain and suffering and mental anguish; plaintiff JOSE LUIS ZARUMA has been caused

to expend and become obligated to expend and be liable for sums of money for medical

services and related expenses, and has thereby been injured and damaged in a sum which

exceeds the jurisdictional limitations of all lower courts which would otherwise have

jurisdiction.

33. That the conduct aforedescribed involved willful malfeasance, gross

neglect and negligence and gross abuse on the part of the Defendant.

34. By reason of the above plaintiff JOSE LUIS ZARUMA sustained great

pain, agony, injury, suffering, disability, and hospitalization, as well as mental anguish and

emotional distress.

35. That as a consequence, the plaintiff demands special, general and punitive

damages in the sum which exceeds the jurisdictional limits of all lower courts.

AS AND FOR A SECOND CAUSE OF ACTION
IN NEGLIGENCE PER SE AGAINST DEFENDANT

36. Plaintiff repeats and realleges each and every allegation set forth above

with the same force and effect as though set forth herein at length.

37. During the period of plaintiff, JOSE LUIS ZARUMA’s residency in the

Defendant’s facilities, the Defendant, through its officers, employees, agents and staff, were
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negligent in the operation of the facility and particularly in the care rendered to plaintiff and

violated 42CFR Part 483.25 of the OBRA regulations and other Federal rules and regulations

and 10 NYCRR Part 415 and other New York State and County rules and regulations, Federal

Statutes, New York State Statutes, and PHL§2801-d and PHL§2803-c.

38. As a consequence of the Defendant’s failure to adhere to the duties set

forth above, as well as the statutory, licensing and regulatory rules of the United States, the

State of New York and County of Bronx, Defendant is liable in negligence per se.

39. The aforesaid legislative commands and administrative regulations are

designed to prevent injury to the class of persons to which plaintiff JOSE LUIS ZARUMA

belonged.

40. The aforesaid violations by the Defendant was a proximate cause of

plaintiff JOSE LUIS ZARUMA’s injuries.

41. By reason of the foregoing, plaintiff JOSE LUIS ZARUMA was caused to

suffer and sustain severe and permanent serious personal injuries, severe and serious pain

and suffering and mental anguish; plaintiff has been caused to expend and become obligated to

expend sums of money for medical services and related expenses, and has thereby been

injured and damaged in a sum which exceeds the jurisdictional limitations of all lower courts

which would otherwise have jurisdiction.

42. That the conduct aforedescribed involved gross abuse, willful malfeasance

and gross neglect on the part of the Defendant.

43. As a consequence thereof, the plaintiff demands punitive damages

in the sum which exceeds the jurisdictional limits of all lower courts.

AS AND FOR A THIRD CAUSE OF ACTION PURSUANT TO PUBLIC HEALTH
LAW SECTION 2801-d AGAINST DEFENDANT
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44. Plaintiff repeats and realleges each and every allegation set forth above

with the same force and effect as though set forth herein at length.

45. During the period of plaintiff, JOSE LUIS ZARUMA’s residency in the

Defendant’s facility, the Defendant, through its officers, employees, agents and staff, violated

Public Health Law Section 2801-d.

46. By reason of the foregoing, plaintiff, JOSE LUIS ZARUMA was caused

to suffer and sustain severe and permanent serious personal injuries, severe and serious pain

and suffering and mental anguish; and has been caused to expend and become obligated to

expend sums of money for medical services and related expenses, and has thereby been

injured and damaged in a sum which exceeds the jurisdictional limitations of all lower courts

which would otherwise have jurisdiction

47. By virtue thereof, plaintiff additionally demands as damages attorney's

fees based upon reasonable value of legal services rendered pursuant to Public Health Law

Section 2801-d.

48. By virtue thereof, plaintiff additionally demands as damages the per diem

damages pursuant to Public Health Law Section 2801-d.

49. As a result of the foregoing, plaintiff JOSE LUIS ZARUMA sustained

compensatory damages in excess of jurisdictional limits of all lower courts.

50. That the conduct aforedescribed involved gross abuse, willful malfeasance

and gross neglect on the part of the Defendant.

51. As a consequence thereof, the plaintiff demands special, general and

punitive damages in the sum which exceeds the jurisdictional limits of all lower courts.

AS AND FOR A FOURTH CAUSE OF ACTION
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BREACH OF CONTRACT AGAINST DEFENDANT

52. Plaintiff repeats and realleges each and every allegation set forth above

with the same force and effect as though set forth herein at length.

53. Prior to plaintiff’s admission to Defendant corporation’s facility and/or

prior to going under the care of the Defendant, Defendant represented to the Plaintiff that

Defendant could provide good nursing care, good nursing home care and good supervision for

plaintiff JOSE LUIS ZARUMA.

54. Based upon the representations of the Defendant, and plaintiff JOSE LUIS

ZARUMA and/or his representative entered into an agreement with the Defendant, whereby the

Defendant was to provide plaintiff JOSE LUIS ZARUMA with good nursing, medical care and

treatment, and supervision.

55. Pursuant to the agreement, the Defendant had a contractual responsibility

to provide plaintiff JOSE LUIS ZARUMA with his nursing home resident’s rights as set forth in

the contract with the Defendant’s facility, which responsibility included, but was not limited to

the following:

a. Provide adequate and appropriate health care, protective and support

services;

b. Complying with regulations for the operation of nursing facilities

promulgated by the Department of Health and Human Services,

c. Developing and implementing a preliminary and comprehensive resident

assessment, and preliminary and comprehensive resident care plan, with

ongoing evaluation and update;

d. Providing prompt notification to the family and physician of significant

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changes in his health status;

e. Providing prompt documentation of accidents or unusual incidents;

f. Protect plaintiff JOSE LUIS ZARUMA from foreseeable harm;

g. Maintaining medical records which contain sufficient information to

justify the diagnosis and treatment, and to document the results,

including at a minimum, documented evidence of assessments of the

needs of the resident, of establishment of appropriate plans of care and

treatment, and of the care and services provided;

h. Properly supervise staff;

i. Properly train staff;

j. Proper retention of staff;

k. Protect the dignity of plaintiff JOSE LUIS ZARUMA;

l. Protect the privacy of plaintiff JOSE LUIS ZARUMA;

m. Provide adequate and appropriate health care to plaintiff JOSE LUIS

ZARUMA;

n. Provide proper documentation of care for plaintiff JOSE LUIS

ZARUMA;

o. Develop, implement, and update an adequate and appropriate resident

care plan to meet the needs of plaintiff JOSE LUIS ZARUMA;

p. Maintain medical records which contain sufficient information to justify

the diagnosis and treatment, and to document the results, including at a

minimum documented evidence of assessment of the needs of the

resident, of establishment of appropriate plans of care and treatment, and

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of the care and services provided;

q. Appropriately monitor plaintiff JOSE LUIS ZARUMA, and recognize

significant signs and symptoms of change in his health condition;

56. That the Defendant’s responsibilities to plaintiff, JOSE LUIS ZARUMA

as outlined in the contract are non-delegable and such that the Defendant(s) had direct liability

for violations, deprivations or infringements by any person or entity under Defendant’s control,

direct or indirect, including its employees, agents, consultants and independent contractors,

whether in- house or outside entities, individuals, agencies or pools, or caused by Defendant’s

policies, whether written or unwritten, or common practices.

57. That in addition to Defendant’s direct responsibility under contract,

Defendant’s has a vicarious liability for the acts or omissions of all persons or entities under

Defendant’s control, either direct or indirect including its employees, agents, consultants and

independent contractors, whether in- house or outside entities, individuals, agencies or pools,

causing any deprivation or infringements of plaintiff resident’s rights as set forth in the contract.

58. That the duty alleged includes, but is not limited to, proper training and

supervision; proper hiring background and referral check, and proper testing and dismissal of

employees, agents consultants and independent contractors.

59. That notwithstanding, the responsibility of Defendant to provide plaintiff

JOSE LUIS ZARUMA with contractual nursing home resident’s rights and with proper nursing

care, was deprived of such contractual rights by the acts or omissions of Defendant, which

include, but are not limited to, the following:

a. Failure to provide adequate and appropriate health care, protective

and support services;

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b. Failure to comply with regulations for the operation of nursing

facilities promulgated by the Department of Health and Human

Services,

c. Failure in developing and implementing a preliminary and

comprehensive resident assessment, and preliminary and

comprehensive resident care plan, with ongoing evaluation and

update;

d. Failure in providing prompt notification to the family and

physician of significant changes in his health status;

e. Failure in providing prompt documentation of accidents or

unusual incidents;

f. Failing to protect plaintiff JOSE LUIS ZARUMA from foreseeable

harm;

g. Failure in maintaining medical records which contain sufficient

information to justify the diagnosis and treatment, and to document

the results, including at a minimum, documented evidence of

assessments of the needs of the resident, of establishment of

appropriate plans of care and treatment, and of the care and

services provided;

h. Failing to properly supervise staff;

i. Failing to properly train staff;

j. Improper retention of staff;
20

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k. Failing to protect the dignity of plaintiff JOSE LUIS ZARUMA;

l. Failing to protect the privacy of plaintiff JOSE LUIS ZARUMA;

m. Failing to provide adequate and appropriate health care to plaintiff

JOSE LUIS ZARUMA;

n. Failing to provide proper documentation of care for plaintiff JOSE

LUIS ZARUMA;

o. Failing to develop, implement, and update an adequate and

appropriate resident care plan to meet the needs of plaintiff JOSE

LUIS ZARUMA;

p. Failing to maintain medical records which contain sufficient

information to justify the diagnosis and treatment, and to document

the results, including at a minimum documented evidence of

assessment of the needs of the resident, of establishment of

appropriate plans of care and treatment, and of the care and

services provided;

q. Failing to appropriately monitor plaintiff JOSE LUIS ZARUMA,

and recognize significant signs and symptoms of change in his

health condition;

60. As a result of Defendant’s breach of contract, plaintiff, JOSE LUIS

ZARUMA, suffered injury, harm and pecuniary loss, which necessitated the plaintiff JOSE LUIS

ZARUMA, to expend and/or become liable for medical expenses.

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61. Accordingly, the plaintiff has suffered special, general and punitive

damages in an amount exceeding the jurisdictional limits of all lower courts.

AS AND FOR A FIFTH CAUSE OF ACTION
FOR MEDICAL MALPRACTICE AS AGAINST DEFENDANT

62. Plaintiff repeats and realleges each and every allegation above with the

same force and effect as though set forth herein at length.

63. That the medical care, treatment, services and advice rendered to plaintiff

JOSE LUIS ZARUMA by the Defendant, its agents, servants, licenses and/or employees was

negligently, recklessly, improperly and carelessly performed, and was rendered in a manner

which departed from good and accepted medical practice then and there prevailing and constituted

medical malpractice.

64. By reason of the foregoing, plaintiff JOSE LUIS ZARUMA, was caused to

suffer and sustain severe and permanent serious personal injuries, severe and serious pain,

suffering and mental anguish; plaintiff JOSE LUIS ZARUMA and/or the plaintiff has been

caused to expend and obligated to expend sums of money for medical services and related

expenses, and has thereby injured and damaged in a sum which exceeds the jurisdictional

limitations of all lower courts, which would otherwise have jurisdiction.

65. That the conduct aforedescribed involved gross abuse, willful malfeasance

and gross neglect on the part of the Defendant.

66. As a consequence thereo

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Document Filed Date

April 11, 2024

Case Filing Date

April 11, 2024

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Complaint,Petition: Manuel Zaruma As Proposed Administrator Of The Estate Of Jose Luis Zaruma Deceased And Manuel Zaruma Individually v. Fordham Nursing And Rehabilitation Center, Fka Kings Terrace Nursing Home

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