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**** CASE NUMBER: 502024CA005871XXXAMB Div: AJ ****
Filing # 201192858 E-Filed 06/24/2024 02:05:06 PM
IN THE 15TH JUDICIAL CIRCUIT COURT
IN AND FOR PALM BEACH COUNTY, FLORIDA
EDWARD EBERTS, as Personal
Representative of the Estate of ELIZABETH
EBERTS,
Case No.:
Plaintiff,
v.
BOYNTON BEACH OPCO, LLC, d/b/a
DISCOVERY VILLAGE AT BOYNTON BEACH AL,
and GUARDIAN PHARMACY, LLC, d/b/a
GUARDIAN PHARMACY SERVICES,
Defendants.
_________________________________________/
COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff, EDWARD EBERTS, as Personal Representative of the Estate of
ELIZABETH EBERTS, sues Defendants, BOYNTON BEACH OPCO, LLC, d/b/a
DISCOVERY VILLAGE AT BOYNTON BEACH AL, and GUARDIAN PHARMACY, LLC,
d/b/a GUARDIAN PHARMACY SERVICES, and states:
JURISDICTION, VENUE, AND IDENTIFICATION OF PARTIES
1. This is an action for damages in excess of fifty thousand dollars ($50,000.00),
exclusive of interest and costs.
2. At all material times, ELIZABETH EBERTS was an adult resident of Palm Beach
County, Florida, and was a person over sixty (60) years of age who was suffering
from the infirmities of aging to the extent that she was impaired in her ability to
adequately provide for her own care and protection.
3. ELIZABETH EBERTS died on September 20, 2023. Plaintiff, EDWARD EBERTS, is
the duly appointed Personal Representative of the Estate of ELIZABETH EBERTS.
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FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 06/24/2024 02:05:06 PM
4. At the time of her death, ELIZABETH EBERTS was not married. She is survived by
her adult children, CATHERINE DUMAROT, JOHN EBERTS, ANN COSTOSO,
DENISE PASTORE, SUSAN GOLDSTEIN, and EDWARD EBERTS.
5. At all material times, ELIZABETH EBERTS was a resident of Discovery Village at
Boynton Beach, an assisted living facility licensed under Chapter 429, Fla. Stat.,
located at 4733 NW 7th Ct., Boynton Beach, Palm Beach County, FL 33426
(hereinafter “Discovery Village” or the “subject facility”).
6. At all material times, Defendant BOYNTON BEACH OPCO, LLC, d/b/a DISCOVERY
VILLAGE AT BOYNTON BEACH AL (hereinafter “BOYNTON BEACH OPCO”), was
and is the owner, operator, manager, overseer, and/or licensee of Discovery Village.
7. At all material times, Defendant GUARDIAN PHARMACY, LLC, d/b/a GUARDIAN
PHARMACY SERVICES (hereinafter “GUARDIAN”) was and is a Florida corporation
with its principal place of business in Palm Beach County, Florida, and was the
provider of pharmacy services to Discovery Village and its residents during
ELIZABETH EBERTS’s residency there.
8. This is an action for violations of Fla. Stat. § 429.29 for violations of ELIZABETH
EBERTS’s resident rights and for common law negligence based solely on custodial
care and pharmacy issues; therefore, any presuit pursuant to Chapter 766, Florida
Statutes, is unnecessary.
9. At all material times, Plaintiff, by and through undersigned counsel, has conducted a
good faith investigation as permitted by the circumstances, and such investigation
has led to a good faith belief that a cause of action for negligence exists against
each of the named Defendants.
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10. All conditions precedent pursuant to Chapter 429, Fla. Stat., have been satisfied
and/or waived.
11. At all material times and while ELIZABETH EBERTS was a resident of the subject
facility, she was known to suffer from atrial fibrillation and known to be at risk of
blood clots and stroke. She had been prescribed Eliquis, a blood-thinner, by her
physician in order to prevent clotting and stroke.
12. At all material times, Defendant GUARDIAN was responsible for communicating with
ELIZABETH EBERTS’s physician regarding medication refills and for ordering,
providing, and managing ELIZABETH EBERTS’s medications and for ensuring that
ELIZABETH EBERTS’s medications were supplied to her in a consistent and timely
manner.
13. At all material times, Defendant BOYNTON BEACH OPCO was responsible for
communicating with ELIZABETH EBERTS’s physician regarding medication refills
and for ordering, providing, and managing ELIZABETH EBERTS’s medications and
for ensuring that ELIZABETH EBERTS’s medications were administered to her in a
consistent and timely manner.
14. During ELIZABETH EBERTS’s residency at the subject facility, Defendants, by and
through their employees, agents, and/or apparent agents, due to, without limitation,
mismanagement, oversight, and a lack of communication resulting in a medication
error, neglected to refill, supply, and/or administer ELIZABETH EBERTS with her
prescribed Eliquis for an extended period of time.
15. On or about September 13, 2023, ELIZABETH EBERTS suffered a stroke and
cerebral infarction due to the Defendants’ failure to manage, refill, supply, and/or
3
administer her medication as prescribed and directed by ELIZABETH EBERTS’s
physician.
16. Defendant BOYNTON BEACH OPCO, by and through its employees, agents and
staff, further failed to provide timely medical care and treatment to ELIZABETH
EBERTS as she exhibited symptoms of stroke onset.
17. ELIZABETH EBERTS died on September 20, 2023. She is survived by her adult
children, CATHERINE DUMAROT, JOHN EBERTS, ANN COSTOSO, DENISE
PASTORE, SUSAN GOLDSTEIN, and EDWARD EBERTS.
18. The Plaintiff, EDWARD EBERTS, as Personal Representative of the Estate of
ELIZABETH EBERTS, has retained the undersign counsel and has agreed to pay a
reasonable fee for their services.
COUNT I
CHAPTER 429 DEPRIVATION OF RIGHTS CLAIM FOR WRONGFUL DEATH
DAMAGES PURSUANT TO FLORIDA STATUTES, §§ 429.29 AND 768.21
AGAINST DEFENDANT BOYNTON BEACH OPCO
19. Plaintiff incorporates the allegations contained in paragraphs 1 through 18 above
as though fully set forth herein.
20. This is a claim brought pursuant to § 429.29, Florida Statutes for damages
arising out of negligence and the deprivation of assisted living facility residents'
rights set forth in § 429.28, Florida Statutes.
21. At all material times, BOYNTON BEACH OPCO had a duty to use reasonable
care in the assisted living care and treatment they provided to ELIZABETH
EBERTS, including, but not limited to, ensuring that their employees rendered
care and services, including medication management, in a safe and beneficial
4
manner and in accordance with the prevailing standard of care for assisted living
facilities.
22. At all material times, BOYNTON BEACH OPCO had a duty to comply with the
applicable administrative standards and guidelines set forth in 42 U.S.C. § 1395i-
3; 42 U.S.C. § 1396r; 42 C.F.R. Part 483; Chapter 429, Florida Statutes and Fla.
Admin. Code Chapter 59A-4.
23. At all material times, BOYNTON BEACH OPCO had a statutory obligation to
protect the assisted living facility residents' rights of ELIZABETH EBERTS as set
forth in § 429.28, Florida Statutes, which include:
a. The right to live in a safe and decent living environment, free from abuse
and neglect;
b. The right to be treated with consideration and respect and with due
recognition of personal dignity, individuality, and the need for privacy; and,
c. The right to access adequate and appropriate health care, including
management of medications and the performance of healthcare services,
consistent with established and recognized standards within the
community.
24. At all material times, the duties of BOYNTON BEACH OPCO as outlined above
were non-delegable, such that BOYNTON BEACH OPCO has direct liability for
any negligence and/or violations, deprivations, and infringements of ELIZABETH
EBERTS's assisted living facility resident's rights by any officers, managing
agents, servants, employees or outside nonprofessional health care providers or
contractors acting in furtherance of the operations of BOYNTON BEACH OPCO.
5
25. At all material times, BOYNTON BEACH OPCO was and is vicariously liable for
any negligence and/or violations, deprivations and infringements of ELIZABETH
EBERTS's assisted living facility residents' rights by the officers, managing
agents, servants and employees of BOYNTON BEACH OPCO acting within the
course and scope of their employment or agency.
26. Notwithstanding the duties, obligations, and responsibilities outlined above,
BOYNTON BEACH OPCO was negligent in the assisted living care and
treatment they provided to ELIZABETH EBERTS and violated, deprived, and/or
infringed upon the assisted living facility residents' rights of ELIZABETH EBERTS
as set forth in § 429.28, Florida Statutes by acts and/or omissions, including but
not limited to:
a. Failing to appropriately monitor ELIZABETH EBERTS’s condition and
health;
b. Failing to provide health care services, including medication management
services, in compliance with state law and applicable Federal and State
Rules and Regulations and with acceptable professional standards and
principles applicable to the personnel providing those services at the
nursing facility;
c. Failing to provide and administer appropriate medications to ELIZABETH
EBERTS in light of her health condition, risk factors, and/or the orders of
her physician;
d. Failing to provide appropriate medication management;
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e. Failing to timely and appropriately communicate with ELIZABETH
EBERTS’s other health care providers regarding management of
ELIZABETH EBERTS’s medications and health conditions;
f. Failing to timely provide adequate and appropriate care and treatment,
nursing services, physician services, safety protocols, and other health
care in an effort to enhance or maintain ELIZABETH EBERTS’s quality of
life and medical condition and to prevent her from suffering clotting,
stroke, and related injury and death;
g. Failing to require timely physician supervision or adequate physician
supervision and/or involvement in medical care provided to ELIZABETH
EBERTS;
h. Failing to properly supervise and train staff;
i. Failing to provide adequate and appropriate protective and support
services to ELIZABETH EBERTS;
j. Failing to ensure ELIZABETH EBERTS was appropriate for continued
residency at the subject facility;
k. Failing to discharge ELIZABETH EBERTS to a higher level of care facility;
l. Failing to arrange for timely treatment for ELIZABETH EBERTS’s
emergent medical conditions;
m. Failing to monitor ELIZABETH EBERTS for significant changes in her
medical condition;
n. Failing to maintain complete and accurate records of ELIZABETH
EBERTS’S residency at the Defendant facility; and
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o. Failing to prevent the development of new or worsened health conditions,
resulting in ELIZABETH EBERTS’s death.
27. In addition, BOYNTON BEACH OPCO failed to provide an adequate number of
employees to meet the needs and protect the rights of residents and failed to
properly train, supervise, discipline, and retain employees, both professional and
non-professional.
28. The acts and omissions committed by employees and agents of BOYNTON
BEACH OPCO were pervasive events that occurred and continued throughout
ELIZABETH EBERTS's residency at Discovery Village and were such that
supervisors, administrators and managing agents of BOYNTON BEACH OPCO
should have been aware of them.
29. As a direct and proximate result of the acts and omissions of BOYNTON BEACH
OPCO and the resulting deprivation of ELIZABETH EBERTS’s resident’s rights,
ELIZABETH EBERTS suffered a cerebral infarction requiring hospitalization, and
sustained damages including, without limitation, mental and physical pain and
suffering, medical testing and treatment, reasonable and necessary medical
expenses, disfigurement, disability, mental anguish, aggravation of a previously
existing condition, humiliation, discomfort, inconvenience, and loss of dignity, and
loss of the capacity for the enjoyment of life, and wrongfully died.
30. As a direct and proximate result of the acts and omissions of BOYNTON BEACH
OPCO and the resulting deprivation of ELIZABETH EBERTS’s resident’s rights
and her wrongful death, ELIZABETH EBERTS's survivors have suffered mental
anguish and loss of services, comfort, society, consortium, protection, love,
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guidance and companionship, and all other allowable damages and have lost the
financial and emotional support of their mother, ELIZABETH EBERTS. These
losses are permanent and continuing in nature and the survivors will suffer such
losses in the future. They have also paid medical and/or funeral expenses due to
the injury and resulting death of ELIZABETH EBERTS.
31. As a direct and proximate result of the acts and omissions of BOYNTON BEACH
OPCO, THE ESTATE OF ELIZABETH EBERTS has incurred reasonable and
necessary medical and/or funeral expenses and loss of net accumulations due to
the injury and the resulting death of ELIZABETH EBERTS.
WHEREFORE, Plaintiff demands judgment against BOYNTON BEACH OPCO
for damages in excess of the jurisdictional limits of this Court, together with costs,
pre-judgment interest, attorneys’ fees, and any other relief this Court deems just and
proper. Plaintiff further demands a jury trial on all issues so triable.
COUNT II
SECTION 429.29 SURVIVAL CLAIM AGAINST DEFENDANT BOYNTON
BEACH OPCO
32. Plaintiff incorporates the allegations contained in paragraphs 1 through 18 of this
Complaint as if fully set forth herein.
33. This is a claim brought pursuant to § 429.29, Florida Statutes for damages
arising out of negligence and the deprivation of assisted living facility residents'
rights set forth in § 429.28, Florida Statutes.
34. At all material times, BOYNTON BEACH OPCO had a duty to use reasonable
care in the assisted living care and treatment they provided to ELIZABETH
EBERTS, including, but not limited to, ensuring that their employees rendered
9
care and services in a safe and beneficial manner and in accordance with the
prevailing standard of care for assisted living facilities.
35. At all material times, BOYNTON BEACH OPCO had a duty to comply with the
applicable administrative standards and guidelines set forth in 42 U.S.C. § 1395i-
3; 42 U.S.C. § 1396r; 42 C.F.R. Part 483; Chapter 429, Florida Statutes and Fla.
Admin. Code Chapter 59A-4.
36. At all material times, BOYNTON BEACH OPCO had a statutory obligation to
protect the assisted living facility residents' rights of ELIZABETH EBERTS as set
forth in § 429.28, Florida Statutes, which include:
a. The right to live in a safe and decent living environment, free from abuse
and neglect;
b. The right to be treated with consideration and respect and with due
recognition of personal dignity, individuality, and the need for privacy; and,
c. The right to access adequate and appropriate health care, including
management of medications and the performance of healthcare services,
consistent with established and recognized standards within the
community.
37. At all material times, the duties of BOYNTON BEACH OPCO as outlined above
were non-delegable, such that BOYNTON BEACH OPCO has direct liability for
any negligence and/or violations, deprivations, and infringements of ELIZABETH
EBERTS's assisted living facility resident's rights by any officers, managing
agents, servants, employees or outside nonprofessional health care providers or
contractors acting in furtherance of the operations of BOYNTON BEACH OPCO.
10
38. At all material times, BOYNTON BEACH OPCO was and is vicariously liable for
any negligence and/or violations, deprivations and infringements of ELIZABETH
EBERTS's assisted living facility residents' rights by the officers, managing
agents, servants and employees of BOYNTON BEACH OPCO acting within the
course and scope of their employment or agency.
39. Notwithstanding the duties, obligations, and responsibilities outlined above,
BOYNTON BEACH OPCO was negligent in the assisted living care and
treatment they provided to ELIZABETH EBERTS and violated, deprived, and/or
infringed upon the assisted living facility residents' rights of ELIZABETH EBERTS
as set forth in § 429.28, Florida Statutes by acts and/or omissions, including but
not limited to:
a. Failing to appropriately monitor ELIZABETH EBERTS’s condition and
health;
b. Failing to provide health care services, including medication management
services, in compliance with state law and applicable Federal and State
Rules and Regulations and with acceptable professional standards and
principles applicable to the personnel providing those services at the
nursing facility;
c. Failing to provide and administer appropriate medications to ELIZABETH
EBERTS in light of her health condition, risk factors, and/or the orders of
her physician;
d. Failing to provide appropriate medication management;
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e. Failing to timely and appropriately communicate with ELIZABETH
EBERTS’s other health care providers regarding management of
ELIZABETH EBERTS’s medications and health conditions;
f. Failing to timely provide adequate and appropriate care and treatment,
nursing services, physician services, safety protocols, and other health
care in an effort to enhance or maintain ELIZABETH EBERTS’s quality of
life and medical condition and to prevent her from suffering clotting,
stroke, and related injury and death;
g. Failing to require timely physician supervision or adequate physician
supervision and/or involvement in medical care provided to ELIZABETH
EBERTS;
h. Failing to properly supervise and train staff;
i. Failing to provide adequate and appropriate protective and support
services to ELIZABETH EBERTS;
j. Failing to ensure ELIZABETH EBERTS was appropriate for continued
residency at the subject facility;
k. Failing to discharge ELIZABETH EBERTS to a higher level of care facility;
l. Failing to arrange for timely treatment for ELIZABETH EBERTS’s
emergent medical conditions;
m. Failing to monitor ELIZABETH EBERTS for significant changes in her
medical condition;
n. Failing to maintain complete and accurate records of ELIZABETH
EBERTS’S residency at the Defendant facility; and
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o. Failing to prevent the development of new or worsened health conditions.
40. In addition, BOYNTON BEACH OPCO failed to provide an adequate number of
employees to meet the needs and protect the rights of residents and failed to
properly train, supervise, discipline, and retain employees, both professional and
non-professional.
41. The acts and omissions committed by employees and agents of BOYNTON
BEACH OPCO were pervasive events that occurred and continued throughout
ELIZABETH EBERTS's residency at Discovery Village and were such that
supervisors, administrators and managing agents of BOYNTON BEACH OPCO
should have been aware of them.
42. The acts and omissions of the Defendant as set forth herein constitute violations
of the resident, ELIZABETH EBERTS’s, rights pursuant to Chapter 429, Florida
Statutes.
43. The end of ELIZABETH EBERT’s life both during her stay at the subject facility
and after she left, until her death, were severely compromised by the pain,
suffering and agony caused by the Defendant’s deprivation of her resident’s
rights.
44. As a direct and proximate result of the acts and omissions of the Defendant,
BOYNTON BEACH OPCO, which resulted in the deprivation of ELIZABETH
EBERTS’s resident’s rights, ELIZABETH EBERTS suffered a cerebral infarction
requiring hospitalization and sustained damages from the time of her injury to the
time of her death, including, without limitation, mental and physical pain and
suffering, medical testing and treatment, reasonable and necessary medical
13
expenses, disfigurement, disability, mental anguish, aggravation of previously
existing conditions, humiliation, discomfort, inconvenience, and loss of dignity,
and loss of the capacity for the enjoyment of life.
WHEREFORE, the Plaintiff, EDWARD EBERTS, as Personal Representative of
the Estate of ELIZABETH EBERTS, demands judgment against Defendant
BOYNTON BEACH OPCO for all damages available by law in an amount in excess
of the jurisdictional limits of this Court, together with attorneys’ fees, interest, and
costs, and further demands a trial by jury of all issues so triable.
COUNT III
WRONGFUL DEATH AGAINST DEFENDANT GUARDIAN
45. Plaintiff incorporates the allegations contained in paragraphs 1 through 18 above
as though fully set forth herein.
46. At all material times, GUARDIAN owed a duty to ELIZABETH EBERTS to,
without limitation, exercise due and proper care in the filling and maintenance of
ELIZABETH EBERTS’s prescriptions, including the duty to review, assess, and
accurately maintain ELIZABETH EBERTS’s prescription history, and the duty to
communicate with ELIZABETH EBERTS’s physicians and facility concerning any
concerns regarding the filling and availability of her necessary medications.
47. At all material times, GUARDIAN knew or should have known that ELIZABETH
EBERTS had been prescribed Eliquis by her physician and that GUARDIAN had
been charged with the responsibility for the timely and accurate filling of this
prescription, and with communicating with ELIZABETH EBERTS’s physician and
facility should GUARDIAN become unable to fill this prescription.
14
48. GUARDIAN breached its duty to ELIZABETH EBERTS by, without limitation,
failing to accurately assess and maintain ELIZABETH EBERTS’s prescription
history, failing to communicate with ELIZABETH EBERTS’s facility and physician
concerning the filling and availability of ELIZABETH EBERTS’s prescriptions,
failing to maintain accurate records concerning ELIZABETH EBERTS, and
otherwise failing to act as a reasonably careful pharmacy would under similar
circumstances.
49. As a direct and proximate result of the acts and omissions of GUARDIAN, its
employees, agents, servants and managers, ELIZABETH EBERTS suffered a
cerebral infarction requiring hospitalization, and sustained damages including,
without limitation, mental and physical pain and suffering, medical testing and
treatment, reasonable and necessary medical expenses, disfigurement,
disability, mental anguish, aggravation of a previously existing condition,
humiliation, discomfort, inconvenience, and loss of dignity, and loss of the
capacity for the enjoyment of life, and wrongfully died.
50. As a direct and proximate result of the acts and omissions of GUARDIAN, its
employees, agents, servants and managers, ELIZABETH EBERTS's survivors
have suffered anguish and the loss of services, comfort, society, consortium,
protection, love, guidance and companionship, and all other allowable damages
and have lost the financial and emotional support of their mother, ELIZABETH
EBERTS. These losses are permanent and continuing in nature and the
survivors will suffer such losses in the future. They have also paid medical and/or
funeral expenses due to the injury and resulting death of ELIZABETH EBERTS.
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51. As a direct and proximate result of the acts and omissions of GUARDIAN, THE
ESTATE OF ELIZABETH EBERTS has incurred reasonable and necessary
medical and/or funeral expenses and loss of net accumulations due to the injury
and the resulting death of ELIZABETH EBERTS.
WHEREFORE, Plaintiff demands judgment against GUARDIAN for damages in
excess of the jurisdictional limits of this Court, together with costs, pre-judgment
interest, attorneys’ fees, and any other relief this Court deems just and proper.
Plaintiff further demands a jury trial on all issues so triable.
COUNT IV
NON-LETHAL NEGLIGENCE AGAINST DEFENDANT GUARDIAN
52. Plaintiff incorporates the allegations contained in paragraphs 1 through 18 above
as though fully set forth herein.
53. At all material times, GUARDIAN owed a duty to ELIZABETH EBERTS to,
without limitation, exercise due and proper care in the filling and maintenance of
ELIZABETH EBERTS’s prescriptions, including the duty to review, assess, and
accurately maintain ELIZABETH EBERTS’s prescription history, and the duty to
communicate with ELIZABETH EBERTS’s physicians and facility concerning any
concerns regarding the filling and availability of her necessary medications.
54. At all material times, GUARDIAN knew or should have known that ELIZABETH
EBERTS had been prescribed Eliquis by her physician and that GUARDIAN had
been charged with the responsibility for the timely and accurate filling of this
prescription, and with communicating with ELIZABETH EBERTS’s physician and
facility should GUARDIAN become unable to fill this prescription.
16
55. GUARDIAN breached its duty to ELIZABETH EBERTS by, without limitation,
failing to accurately assess and maintain ELIZABETH EBERTS’s prescription
history, failing to communicate with ELIZABETH EBERTS’s facility and physician
concerning the filling and availability of ELIZABETH EBERTS’s prescriptions,
failing to maintain accurate records concerning ELIZABETH EBERTS, and
otherwise failing to act as a reasonably careful pharmacy would under similar
circumstances.
56. As a direct and proximate result of the acts and omissions of GUARDIAN, its
employees, agents, servants and managers, ELIZABETH EBERTS suffered a
cerebral infarction requiring hospitalization, and sustained damages from the
time of her injury until the time of her death including, without limitation, mental
and physical pain and suffering, medical testing and treatment, reasonable and
necessary medical expenses, disfigurement, disability, mental anguish,
aggravation of a previously existing condition, humiliation, discomfort,
inconvenience, and loss of dignity, and loss of the capacity for the enjoyment of
life.
WHEREFORE, Plaintiff demands judgment against GUARDIAN for damages in
excess of the jurisdictional limits of this Court, together with costs, pre-judgment
interest, attorneys’ fees, and any other relief this Court deems just and proper.
Plaintiff further demands a jury trial on all issues so triable.
DATED: June 24, 2024
THE GRIFE LAW FIRM, P.A.
Attorneys for Plaintiff
The Atrium at Broken Sound
6111 Broken Sound Parkway NW, Suite 300
17
Boca Raton, FL 33487
By: s/Catherine C. Darlson
MICHAEL K. GRIFE, ESQ.
Florida Bar No. 016583
CATHERINE C. DARLSON, ESQ.
Florida Bar No. 112440
Telephone: (561) 998-0770
Facsimile: (561) 998-0778
Primary Email: mike@thegrifelawfirm.com
catherine@thegrifelawfirm.com
Secondary Email: angelika@thegrifelawfirm.com
18
Preview
**** CASE NUMBER: 502024CA005871XXXAMB Div: AJ **** Filing # 201192858 E-Filed 06/24/2024 02:05:06 PM IN THE 15TH JUDICIAL CIRCUIT COURT IN AND FOR PALM BEACH COUNTY, FLORIDA EDWARD EBERTS, as Personal Representative of the Estate of ELIZABETH EBERTS, Case No.: Plaintiff, v. BOYNTON BEACH OPCO, LLC, d/b/a DISCOVERY VILLAGE AT BOYNTON BEACH AL, and GUARDIAN PHARMACY, LLC, d/b/a GUARDIAN PHARMACY SERVICES, Defendants. _________________________________________/ COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff, EDWARD EBERTS, as Personal Representative of the Estate of ELIZABETH EBERTS, sues Defendants, BOYNTON BEACH OPCO, LLC, d/b/a DISCOVERY VILLAGE AT BOYNTON BEACH AL, and GUARDIAN PHARMACY, LLC, d/b/a GUARDIAN PHARMACY SERVICES, and states: JURISDICTION, VENUE, AND IDENTIFICATION OF PARTIES 1. This is an action for damages in excess of fifty thousand dollars ($50,000.00), exclusive of interest and costs. 2. At all material times, ELIZABETH EBERTS was an adult resident of Palm Beach County, Florida, and was a person over sixty (60) years of age who was suffering from the infirmities of aging to the extent that she was impaired in her ability to adequately provide for her own care and protection. 3. ELIZABETH EBERTS died on September 20, 2023. Plaintiff, EDWARD EBERTS, is the duly appointed Personal Representative of the Estate of ELIZABETH EBERTS. 1 FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 06/24/2024 02:05:06 PM 4. At the time of her death, ELIZABETH EBERTS was not married. She is survived by her adult children, CATHERINE DUMAROT, JOHN EBERTS, ANN COSTOSO, DENISE PASTORE, SUSAN GOLDSTEIN, and EDWARD EBERTS. 5. At all material times, ELIZABETH EBERTS was a resident of Discovery Village at Boynton Beach, an assisted living facility licensed under Chapter 429, Fla. Stat., located at 4733 NW 7th Ct., Boynton Beach, Palm Beach County, FL 33426 (hereinafter “Discovery Village” or the “subject facility”). 6. At all material times, Defendant BOYNTON BEACH OPCO, LLC, d/b/a DISCOVERY VILLAGE AT BOYNTON BEACH AL (hereinafter “BOYNTON BEACH OPCO”), was and is the owner, operator, manager, overseer, and/or licensee of Discovery Village. 7. At all material times, Defendant GUARDIAN PHARMACY, LLC, d/b/a GUARDIAN PHARMACY SERVICES (hereinafter “GUARDIAN”) was and is a Florida corporation with its principal place of business in Palm Beach County, Florida, and was the provider of pharmacy services to Discovery Village and its residents during ELIZABETH EBERTS’s residency there. 8. This is an action for violations of Fla. Stat. § 429.29 for violations of ELIZABETH EBERTS’s resident rights and for common law negligence based solely on custodial care and pharmacy issues; therefore, any presuit pursuant to Chapter 766, Florida Statutes, is unnecessary. 9. At all material times, Plaintiff, by and through undersigned counsel, has conducted a good faith investigation as permitted by the circumstances, and such investigation has led to a good faith belief that a cause of action for negligence exists against each of the named Defendants. 2 10. All conditions precedent pursuant to Chapter 429, Fla. Stat., have been satisfied and/or waived. 11. At all material times and while ELIZABETH EBERTS was a resident of the subject facility, she was known to suffer from atrial fibrillation and known to be at risk of blood clots and stroke. She had been prescribed Eliquis, a blood-thinner, by her physician in order to prevent clotting and stroke. 12. At all material times, Defendant GUARDIAN was responsible for communicating with ELIZABETH EBERTS’s physician regarding medication refills and for ordering, providing, and managing ELIZABETH EBERTS’s medications and for ensuring that ELIZABETH EBERTS’s medications were supplied to her in a consistent and timely manner. 13. At all material times, Defendant BOYNTON BEACH OPCO was responsible for communicating with ELIZABETH EBERTS’s physician regarding medication refills and for ordering, providing, and managing ELIZABETH EBERTS’s medications and for ensuring that ELIZABETH EBERTS’s medications were administered to her in a consistent and timely manner. 14. During ELIZABETH EBERTS’s residency at the subject facility, Defendants, by and through their employees, agents, and/or apparent agents, due to, without limitation, mismanagement, oversight, and a lack of communication resulting in a medication error, neglected to refill, supply, and/or administer ELIZABETH EBERTS with her prescribed Eliquis for an extended period of time. 15. On or about September 13, 2023, ELIZABETH EBERTS suffered a stroke and cerebral infarction due to the Defendants’ failure to manage, refill, supply, and/or 3 administer her medication as prescribed and directed by ELIZABETH EBERTS’s physician. 16. Defendant BOYNTON BEACH OPCO, by and through its employees, agents and staff, further failed to provide timely medical care and treatment to ELIZABETH EBERTS as she exhibited symptoms of stroke onset. 17. ELIZABETH EBERTS died on September 20, 2023. She is survived by her adult children, CATHERINE DUMAROT, JOHN EBERTS, ANN COSTOSO, DENISE PASTORE, SUSAN GOLDSTEIN, and EDWARD EBERTS. 18. The Plaintiff, EDWARD EBERTS, as Personal Representative of the Estate of ELIZABETH EBERTS, has retained the undersign counsel and has agreed to pay a reasonable fee for their services. COUNT I CHAPTER 429 DEPRIVATION OF RIGHTS CLAIM FOR WRONGFUL DEATH DAMAGES PURSUANT TO FLORIDA STATUTES, §§ 429.29 AND 768.21 AGAINST DEFENDANT BOYNTON BEACH OPCO 19. Plaintiff incorporates the allegations contained in paragraphs 1 through 18 above as though fully set forth herein. 20. This is a claim brought pursuant to § 429.29, Florida Statutes for damages arising out of negligence and the deprivation of assisted living facility residents' rights set forth in § 429.28, Florida Statutes. 21. At all material times, BOYNTON BEACH OPCO had a duty to use reasonable care in the assisted living care and treatment they provided to ELIZABETH EBERTS, including, but not limited to, ensuring that their employees rendered care and services, including medication management, in a safe and beneficial 4 manner and in accordance with the prevailing standard of care for assisted living facilities. 22. At all material times, BOYNTON BEACH OPCO had a duty to comply with the applicable administrative standards and guidelines set forth in 42 U.S.C. § 1395i- 3; 42 U.S.C. § 1396r; 42 C.F.R. Part 483; Chapter 429, Florida Statutes and Fla. Admin. Code Chapter 59A-4. 23. At all material times, BOYNTON BEACH OPCO had a statutory obligation to protect the assisted living facility residents' rights of ELIZABETH EBERTS as set forth in § 429.28, Florida Statutes, which include: a. The right to live in a safe and decent living environment, free from abuse and neglect; b. The right to be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy; and, c. The right to access adequate and appropriate health care, including management of medications and the performance of healthcare services, consistent with established and recognized standards within the community. 24. At all material times, the duties of BOYNTON BEACH OPCO as outlined above were non-delegable, such that BOYNTON BEACH OPCO has direct liability for any negligence and/or violations, deprivations, and infringements of ELIZABETH EBERTS's assisted living facility resident's rights by any officers, managing agents, servants, employees or outside nonprofessional health care providers or contractors acting in furtherance of the operations of BOYNTON BEACH OPCO. 5 25. At all material times, BOYNTON BEACH OPCO was and is vicariously liable for any negligence and/or violations, deprivations and infringements of ELIZABETH EBERTS's assisted living facility residents' rights by the officers, managing agents, servants and employees of BOYNTON BEACH OPCO acting within the course and scope of their employment or agency. 26. Notwithstanding the duties, obligations, and responsibilities outlined above, BOYNTON BEACH OPCO was negligent in the assisted living care and treatment they provided to ELIZABETH EBERTS and violated, deprived, and/or infringed upon the assisted living facility residents' rights of ELIZABETH EBERTS as set forth in § 429.28, Florida Statutes by acts and/or omissions, including but not limited to: a. Failing to appropriately monitor ELIZABETH EBERTS’s condition and health; b. Failing to provide health care services, including medication management services, in compliance with state law and applicable Federal and State Rules and Regulations and with acceptable professional standards and principles applicable to the personnel providing those services at the nursing facility; c. Failing to provide and administer appropriate medications to ELIZABETH EBERTS in light of her health condition, risk factors, and/or the orders of her physician; d. Failing to provide appropriate medication management; 6 e. Failing to timely and appropriately communicate with ELIZABETH EBERTS’s other health care providers regarding management of ELIZABETH EBERTS’s medications and health conditions; f. Failing to timely provide adequate and appropriate care and treatment, nursing services, physician services, safety protocols, and other health care in an effort to enhance or maintain ELIZABETH EBERTS’s quality of life and medical condition and to prevent her from suffering clotting, stroke, and related injury and death; g. Failing to require timely physician supervision or adequate physician supervision and/or involvement in medical care provided to ELIZABETH EBERTS; h. Failing to properly supervise and train staff; i. Failing to provide adequate and appropriate protective and support services to ELIZABETH EBERTS; j. Failing to ensure ELIZABETH EBERTS was appropriate for continued residency at the subject facility; k. Failing to discharge ELIZABETH EBERTS to a higher level of care facility; l. Failing to arrange for timely treatment for ELIZABETH EBERTS’s emergent medical conditions; m. Failing to monitor ELIZABETH EBERTS for significant changes in her medical condition; n. Failing to maintain complete and accurate records of ELIZABETH EBERTS’S residency at the Defendant facility; and 7 o. Failing to prevent the development of new or worsened health conditions, resulting in ELIZABETH EBERTS’s death. 27. In addition, BOYNTON BEACH OPCO failed to provide an adequate number of employees to meet the needs and protect the rights of residents and failed to properly train, supervise, discipline, and retain employees, both professional and non-professional. 28. The acts and omissions committed by employees and agents of BOYNTON BEACH OPCO were pervasive events that occurred and continued throughout ELIZABETH EBERTS's residency at Discovery Village and were such that supervisors, administrators and managing agents of BOYNTON BEACH OPCO should have been aware of them. 29. As a direct and proximate result of the acts and omissions of BOYNTON BEACH OPCO and the resulting deprivation of ELIZABETH EBERTS’s resident’s rights, ELIZABETH EBERTS suffered a cerebral infarction requiring hospitalization, and sustained damages including, without limitation, mental and physical pain and suffering, medical testing and treatment, reasonable and necessary medical expenses, disfigurement, disability, mental anguish, aggravation of a previously existing condition, humiliation, discomfort, inconvenience, and loss of dignity, and loss of the capacity for the enjoyment of life, and wrongfully died. 30. As a direct and proximate result of the acts and omissions of BOYNTON BEACH OPCO and the resulting deprivation of ELIZABETH EBERTS’s resident’s rights and her wrongful death, ELIZABETH EBERTS's survivors have suffered mental anguish and loss of services, comfort, society, consortium, protection, love, 8 guidance and companionship, and all other allowable damages and have lost the financial and emotional support of their mother, ELIZABETH EBERTS. These losses are permanent and continuing in nature and the survivors will suffer such losses in the future. They have also paid medical and/or funeral expenses due to the injury and resulting death of ELIZABETH EBERTS. 31. As a direct and proximate result of the acts and omissions of BOYNTON BEACH OPCO, THE ESTATE OF ELIZABETH EBERTS has incurred reasonable and necessary medical and/or funeral expenses and loss of net accumulations due to the injury and the resulting death of ELIZABETH EBERTS. WHEREFORE, Plaintiff demands judgment against BOYNTON BEACH OPCO for damages in excess of the jurisdictional limits of this Court, together with costs, pre-judgment interest, attorneys’ fees, and any other relief this Court deems just and proper. Plaintiff further demands a jury trial on all issues so triable. COUNT II SECTION 429.29 SURVIVAL CLAIM AGAINST DEFENDANT BOYNTON BEACH OPCO 32. Plaintiff incorporates the allegations contained in paragraphs 1 through 18 of this Complaint as if fully set forth herein. 33. This is a claim brought pursuant to § 429.29, Florida Statutes for damages arising out of negligence and the deprivation of assisted living facility residents' rights set forth in § 429.28, Florida Statutes. 34. At all material times, BOYNTON BEACH OPCO had a duty to use reasonable care in the assisted living care and treatment they provided to ELIZABETH EBERTS, including, but not limited to, ensuring that their employees rendered 9 care and services in a safe and beneficial manner and in accordance with the prevailing standard of care for assisted living facilities. 35. At all material times, BOYNTON BEACH OPCO had a duty to comply with the applicable administrative standards and guidelines set forth in 42 U.S.C. § 1395i- 3; 42 U.S.C. § 1396r; 42 C.F.R. Part 483; Chapter 429, Florida Statutes and Fla. Admin. Code Chapter 59A-4. 36. At all material times, BOYNTON BEACH OPCO had a statutory obligation to protect the assisted living facility residents' rights of ELIZABETH EBERTS as set forth in § 429.28, Florida Statutes, which include: a. The right to live in a safe and decent living environment, free from abuse and neglect; b. The right to be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy; and, c. The right to access adequate and appropriate health care, including management of medications and the performance of healthcare services, consistent with established and recognized standards within the community. 37. At all material times, the duties of BOYNTON BEACH OPCO as outlined above were non-delegable, such that BOYNTON BEACH OPCO has direct liability for any negligence and/or violations, deprivations, and infringements of ELIZABETH EBERTS's assisted living facility resident's rights by any officers, managing agents, servants, employees or outside nonprofessional health care providers or contractors acting in furtherance of the operations of BOYNTON BEACH OPCO. 10 38. At all material times, BOYNTON BEACH OPCO was and is vicariously liable for any negligence and/or violations, deprivations and infringements of ELIZABETH EBERTS's assisted living facility residents' rights by the officers, managing agents, servants and employees of BOYNTON BEACH OPCO acting within the course and scope of their employment or agency. 39. Notwithstanding the duties, obligations, and responsibilities outlined above, BOYNTON BEACH OPCO was negligent in the assisted living care and treatment they provided to ELIZABETH EBERTS and violated, deprived, and/or infringed upon the assisted living facility residents' rights of ELIZABETH EBERTS as set forth in § 429.28, Florida Statutes by acts and/or omissions, including but not limited to: a. Failing to appropriately monitor ELIZABETH EBERTS’s condition and health; b. Failing to provide health care services, including medication management services, in compliance with state law and applicable Federal and State Rules and Regulations and with acceptable professional standards and principles applicable to the personnel providing those services at the nursing facility; c. Failing to provide and administer appropriate medications to ELIZABETH EBERTS in light of her health condition, risk factors, and/or the orders of her physician; d. Failing to provide appropriate medication management; 11 e. Failing to timely and appropriately communicate with ELIZABETH EBERTS’s other health care providers regarding management of ELIZABETH EBERTS’s medications and health conditions; f. Failing to timely provide adequate and appropriate care and treatment, nursing services, physician services, safety protocols, and other health care in an effort to enhance or maintain ELIZABETH EBERTS’s quality of life and medical condition and to prevent her from suffering clotting, stroke, and related injury and death; g. Failing to require timely physician supervision or adequate physician supervision and/or involvement in medical care provided to ELIZABETH EBERTS; h. Failing to properly supervise and train staff; i. Failing to provide adequate and appropriate protective and support services to ELIZABETH EBERTS; j. Failing to ensure ELIZABETH EBERTS was appropriate for continued residency at the subject facility; k. Failing to discharge ELIZABETH EBERTS to a higher level of care facility; l. Failing to arrange for timely treatment for ELIZABETH EBERTS’s emergent medical conditions; m. Failing to monitor ELIZABETH EBERTS for significant changes in her medical condition; n. Failing to maintain complete and accurate records of ELIZABETH EBERTS’S residency at the Defendant facility; and 12 o. Failing to prevent the development of new or worsened health conditions. 40. In addition, BOYNTON BEACH OPCO failed to provide an adequate number of employees to meet the needs and protect the rights of residents and failed to properly train, supervise, discipline, and retain employees, both professional and non-professional. 41. The acts and omissions committed by employees and agents of BOYNTON BEACH OPCO were pervasive events that occurred and continued throughout ELIZABETH EBERTS's residency at Discovery Village and were such that supervisors, administrators and managing agents of BOYNTON BEACH OPCO should have been aware of them. 42. The acts and omissions of the Defendant as set forth herein constitute violations of the resident, ELIZABETH EBERTS’s, rights pursuant to Chapter 429, Florida Statutes. 43. The end of ELIZABETH EBERT’s life both during her stay at the subject facility and after she left, until her death, were severely compromised by the pain, suffering and agony caused by the Defendant’s deprivation of her resident’s rights. 44. As a direct and proximate result of the acts and omissions of the Defendant, BOYNTON BEACH OPCO, which resulted in the deprivation of ELIZABETH EBERTS’s resident’s rights, ELIZABETH EBERTS suffered a cerebral infarction requiring hospitalization and sustained damages from the time of her injury to the time of her death, including, without limitation, mental and physical pain and suffering, medical testing and treatment, reasonable and necessary medical 13 expenses, disfigurement, disability, mental anguish, aggravation of previously existing conditions, humiliation, discomfort, inconvenience, and loss of dignity, and loss of the capacity for the enjoyment of life. WHEREFORE, the Plaintiff, EDWARD EBERTS, as Personal Representative of the Estate of ELIZABETH EBERTS, demands judgment against Defendant BOYNTON BEACH OPCO for all damages available by law in an amount in excess of the jurisdictional limits of this Court, together with attorneys’ fees, interest, and costs, and further demands a trial by jury of all issues so triable. COUNT III WRONGFUL DEATH AGAINST DEFENDANT GUARDIAN 45. Plaintiff incorporates the allegations contained in paragraphs 1 through 18 above as though fully set forth herein. 46. At all material times, GUARDIAN owed a duty to ELIZABETH EBERTS to, without limitation, exercise due and proper care in the filling and maintenance of ELIZABETH EBERTS’s prescriptions, including the duty to review, assess, and accurately maintain ELIZABETH EBERTS’s prescription history, and the duty to communicate with ELIZABETH EBERTS’s physicians and facility concerning any concerns regarding the filling and availability of her necessary medications. 47. At all material times, GUARDIAN knew or should have known that ELIZABETH EBERTS had been prescribed Eliquis by her physician and that GUARDIAN had been charged with the responsibility for the timely and accurate filling of this prescription, and with communicating with ELIZABETH EBERTS’s physician and facility should GUARDIAN become unable to fill this prescription. 14 48. GUARDIAN breached its duty to ELIZABETH EBERTS by, without limitation, failing to accurately assess and maintain ELIZABETH EBERTS’s prescription history, failing to communicate with ELIZABETH EBERTS’s facility and physician concerning the filling and availability of ELIZABETH EBERTS’s prescriptions, failing to maintain accurate records concerning ELIZABETH EBERTS, and otherwise failing to act as a reasonably careful pharmacy would under similar circumstances. 49. As a direct and proximate result of the acts and omissions of GUARDIAN, its employees, agents, servants and managers, ELIZABETH EBERTS suffered a cerebral infarction requiring hospitalization, and sustained damages including, without limitation, mental and physical pain and suffering, medical testing and treatment, reasonable and necessary medical expenses, disfigurement, disability, mental anguish, aggravation of a previously existing condition, humiliation, discomfort, inconvenience, and loss of dignity, and loss of the capacity for the enjoyment of life, and wrongfully died. 50. As a direct and proximate result of the acts and omissions of GUARDIAN, its employees, agents, servants and managers, ELIZABETH EBERTS's survivors have suffered anguish and the loss of services, comfort, society, consortium, protection, love, guidance and companionship, and all other allowable damages and have lost the financial and emotional support of their mother, ELIZABETH EBERTS. These losses are permanent and continuing in nature and the survivors will suffer such losses in the future. They have also paid medical and/or funeral expenses due to the injury and resulting death of ELIZABETH EBERTS. 15 51. As a direct and proximate result of the acts and omissions of GUARDIAN, THE ESTATE OF ELIZABETH EBERTS has incurred reasonable and necessary medical and/or funeral expenses and loss of net accumulations due to the injury and the resulting death of ELIZABETH EBERTS. WHEREFORE, Plaintiff demands judgment against GUARDIAN for damages in excess of the jurisdictional limits of this Court, together with costs, pre-judgment interest, attorneys’ fees, and any other relief this Court deems just and proper. Plaintiff further demands a jury trial on all issues so triable. COUNT IV NON-LETHAL NEGLIGENCE AGAINST DEFENDANT GUARDIAN 52. Plaintiff incorporates the allegations contained in paragraphs 1 through 18 above as though fully set forth herein. 53. At all material times, GUARDIAN owed a duty to ELIZABETH EBERTS to, without limitation, exercise due and proper care in the filling and maintenance of ELIZABETH EBERTS’s prescriptions, including the duty to review, assess, and accurately maintain ELIZABETH EBERTS’s prescription history, and the duty to communicate with ELIZABETH EBERTS’s physicians and facility concerning any concerns regarding the filling and availability of her necessary medications. 54. At all material times, GUARDIAN knew or should have known that ELIZABETH EBERTS had been prescribed Eliquis by her physician and that GUARDIAN had been charged with the responsibility for the timely and accurate filling of this prescription, and with communicating with ELIZABETH EBERTS’s physician and facility should GUARDIAN become unable to fill this prescription. 16 55. GUARDIAN breached its duty to ELIZABETH EBERTS by, without limitation, failing to accurately assess and maintain ELIZABETH EBERTS’s prescription history, failing to communicate with ELIZABETH EBERTS’s facility and physician concerning the filling and availability of ELIZABETH EBERTS’s prescriptions, failing to maintain accurate records concerning ELIZABETH EBERTS, and otherwise failing to act as a reasonably careful pharmacy would under similar circumstances. 56. As a direct and proximate result of the acts and omissions of GUARDIAN, its employees, agents, servants and managers, ELIZABETH EBERTS suffered a cerebral infarction requiring hospitalization, and sustained damages from the time of her injury until the time of her death including, without limitation, mental and physical pain and suffering, medical testing and treatment, reasonable and necessary medical expenses, disfigurement, disability, mental anguish, aggravation of a previously existing condition, humiliation, discomfort, inconvenience, and loss of dignity, and loss of the capacity for the enjoyment of life. WHEREFORE, Plaintiff demands judgment against GUARDIAN for damages in excess of the jurisdictional limits of this Court, together with costs, pre-judgment interest, attorneys’ fees, and any other relief this Court deems just and proper. Plaintiff further demands a jury trial on all issues so triable. DATED: June 24, 2024 THE GRIFE LAW FIRM, P.A. Attorneys for Plaintiff The Atrium at Broken Sound 6111 Broken Sound Parkway NW, Suite 300 17 Boca Raton, FL 33487 By: s/Catherine C. Darlson MICHAEL K. GRIFE, ESQ. Florida Bar No. 016583 CATHERINE C. DARLSON, ESQ. Florida Bar No. 112440 Telephone: (561) 998-0770 Facsimile: (561) 998-0778 Primary Email: mike@thegrifelawfirm.com catherine@thegrifelawfirm.com Secondary Email: angelika@thegrifelawfirm.com 18