Cunningham v. Kentmere Rehabilitation and Healthcare Center, Inc.

• Court: Superior Court of Delaware
• Decided: March 25, 2021
• Docket: N20C-10-287 VLM
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

BAYYINAH CUNNINGHAM, ) Plaintiff, ) ) ) v. ) C.A. No.: N20C-10-287 VLM ) ) KENTMERE REHABILITATION ) AND HEALTHCARE CENTER, ) INC., ) Defendants. )

ORDER Submitted: March 16, 2021 Decided: March 25, 2021

Upon Consideration of Defendant’s Motion to Dismiss, GRANTED in part, DENIED in part.

Joshua J. Inkell, Esquire of Hudson & Castle Law, LLC, Wilmington, Delaware. Attorney for Plaintiff.

Maria R. Granaudo, Esquire of Burns White, LLC, Wilmington, Delaware. Attorney for Defendant.

MEDINILLA, J. AND NOW TO WIT, this 25th day of March, 2021, upon consideration of

Defendant Kentmere Rehabilitation and Healthcare Center’s Motion to Dismiss,

Plaintiff’s Response in Opposition, Defendant’s Reply, oral argument, and the

record in this case, IT IS HEREBY ORDERED that Defendant’s Motion is

GRANTED in part, and DENIED in part for the following reasons:

1. Plaintiff Bayyinah Cunningham (“Plaintiff”) is the daughter and

Personal Representative of the Estate of Gloria Rashada (“Ms. Rashada”). 1 From

August 7, 2018, until July 13, 2019, Ms. Rashada was a resident of a nursing home

facility located at 704 River Road in Wilmington, Delaware (the “Facility”). 2 The

Facility was owned and operated by Defendant Kentmere Rehabilitation and

Healthcare Center, Inc. (“Defendant”). 3 During the time in which Ms. Rashada was

a resident at the Facility, Defendant “controlled the management and healthcare

decisions and exercised control over, and authorized the daily work of their

employees.”4

2. During Ms. Rashada’s time at the Facility, she was at risk for falls and

the development and deterioration of pressure sores. 5 Between August 7, 2018, and

March 9, 2019, Ms. Rashada sustained approximately fourteen falls while at the

1 Complaint, D.I. 1, ¶ 1. 2 Id. ¶¶ 4, 19. 3 Id. ¶¶ 4-5. 4 Id. ¶ 8. 5 Id. ¶ 21. 1 Facility.6 On October 30, 2018, an open area on Ms. Rashada’s coccyx and right

buttocks were first noticed, which would develop into pressure ulcers. 7

3. On March 9, 2019, Ms. Rashada sustained the last of her recorded

fourteen falls.8 As a result of the March 9 fall, Ms. Rashada was taken to St. Francis

hospital where it was discovered she had sustained a hip fracture. 9 Corrective

surgery was performed on March 12, 2019, and Ms. Rashada remained at St. Francis

until March 28, 2019 after which she was transferred to Select Specialty Hospital

until April 25, 2019 when she returned to the Facility.10

4. On May 11, 2019, Plaintiff visited Ms. Rashada at the Facility and

noticed that Ms. Rashada’s eyes were glazed over. 11 Plaintiff asked Ms. Rashada’s

doctor about her, but the doctor told Plaintiff that Ms. Rashada was fine.12 Plaintiff

then called for emergency services and Ms. Rashada was taken to St. Francis where

she was diagnosed with an infection of her pressure ulcer which had made its way

into Ms. Rashada’s bloodstream.13 Ms. Rashada returned to the Facility on May 14,

2019.14

6 Complaint, ¶¶ 22-38. 7 Id. ¶¶ 29, 44. 8 Id. ¶ 40. 9 Id. ¶¶ 41-42. 10 Id. ¶¶ 42-44. 11 Id. ¶ 45. 12 Id. 13 Id. ¶¶ 45-46. 14 Id. ¶ 47. 2 5. On June 20, 2019, Ms. Rashada was sent to Christiana Care for wound

care.15 She was later admitted after it was learned that her feeding tube, gallbladder,

and ulcer on her right buttock and coccyx had become infected.16 Ms. Rashada was

readmitted to the Facility on July 10, 2019, at which time she had a Stage IV pressure

ulcer with bone exposure.17 The next day she returned to the hospital where she

passed away on July 30, 2019.18

6. On October 30, 2020, Plaintiff brought this action against Defendant,

alleging, in part, medical negligence and a series of additional claims.19 On January

29, 2021, Defendant filed this Motion to Dismiss that seeks to dismiss the claims of

Breach of Fiduciary Duty (Count II), Consumer Fraud (Count IV) 20, and Negligence

Per Se Based on Federal and State Law (Counts V & VI). 21 On February 25, 2021,

Plaintiff filed her response in opposition. On March 4, 2021, Defendant filed its

reply. Oral argument was held on March 16, 2021. This matter is ripe for decision.

15 Complaint, ¶ 53. 16 Id. ¶ 49. 17 Id. ¶¶ 54-55. 18 Id. ¶ 56. 19 Plaintiff’s Claims are as follows: Count I Survival; Count II Breach of Fiduciary Duty; Count III Deceptive Trade Practices; Count IV Consumer Fraud; Count V Negligence Per Se Based on Federal Law; Count VI Negligence Per Se Based on State Law; Count VII Wrongful Death; and Count VIII Punitive Damages. 20 As of March 23, 2021, Plaintiff indicated an intent to voluntarily withdraw this claim after a review of the pertinent case law provided by Defendant at oral argument on March 16, 2021. As such, this issue is considered moot. 21 See Defendant’s Motion to Dismiss, D.I. 11. 3 Party Contentions

7. Defendant argues that Plaintiff’s claims for Breach of Fiduciary Duty,

Consumer Fraud and Negligence Per Se have not been adequately plead.22 In the

alternative Defendant argues that Plaintiff’s claims are predicated upon theories that

do not entitle Plaintiff to relief. 23 Plaintiff argues that this case involves the same

and/or similar arguments made by Defendant in D’Agostino v. The Milton & Hattie

Kutz Home, Inc., et al.24 currently before this Court and asks the Court to rule

consistently and against Defendant.25

Standard of Review

8. On a Motion to Dismiss for failure to state a claim under Superior Court

Civil Rule 12(b)(6), all well-pleaded allegations in the complaint must be accepted

as true.26 Even vague allegations are considered well plead if they give the opposing

party notice of a claim.27 The Court must draw all reasonable inferences in favor of

the non-moving party.28 However, it will not “accept conclusory allegations

unsupported by specific facts,” nor will it “draw unreasonable inferences in favor of

22 Defendant’s Opening Brief, D.I. 12, at 4 [hereinafter Def’s Opening Brief]. 23 Id. 24 D’Agostino v. The Milton & Hattie Kutz Home, Inc., et al., C.A. No. N20C-09-148 VLM. 25 Plaintiff’s Answering Brief, D.I. 17, at 3 [hereinafter Plaintiff’s Answering Brief]. 26 Spence v. Funk, 396 A.2d 967, 968 (Del. 1978). 27 In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006) (quoting Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002)). 28 Id. 4 the non-moving party.”29 The Court will grant the motion to dismiss “only if it

appears with reasonable certainty that the plaintiff could not prove any set of facts

that would entitle [the plaintiff] to relief.”30

Discussion

A. Count II: Breach of Fiduciary Duty

9. Defendant argues that Plaintiff has failed to state a claim because no

fiduciary relationship existed between Defendant and Ms. Rashada or Plaintiff. 31

Plaintiff argues that whether a fiduciary relationship exists is a question of fact that

should be left to the jury and dismissal at this juncture is inappropriate.32 Plaintiff

also argues that where this Court has considered that a fiduciary duty may exist

between a patient and a nursing home as it discussed in D’Agostino, dismissal is not

proper.33

10. To make out a claim for breach of fiduciary duty, Plaintiff must

establish two elements: (1) that Defendant owed a fiduciary duty to Plaintiff; and (2)

that Defendant breached the fiduciary duty. 34 A fiduciary relationship is when “one

person reposes special trust in and reliance on the judgment of another or where a

special duty exists on the part of one person in another to protect the interests of

29 Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011) (citation omitted). 30 Sliney v. New Castle Cty., 2019 WL 7163356, at *1 (Del. Super. Dec. 23, 2019). 31 Def’s Opening Brief, at 5. 32 Plaintiff’s Answering Brief, at 6. 33 Id. 34 Estate of Eller v. Barton, 21 A.3d 895, 897 (Del. 2011). 5 another.”35 Whether a particular relationship gives rise to a fiduciary status is a

question of fact.36 In deciding whether a fiduciary relationship exists, the Court may

consider factors including whether: (1) a “party places trust in the faithful integrity

of another who thus gains superiority or influence;” (2) “one party assumes control

and responsibility over another;” (3) “one party has a duty to act or give advice for

matters within the relationship;” and (4) “there is a traditionally recognized fiduciary

relationship.”37 The crux of Defendant’s argument revolves around the final factor,

i.e. whether a long-term nursing facility would be a traditionally recognized

fiduciary relationship. The other three factors are not in contention.

11. In this case, while perhaps not true of all nursing home or long-term

care facility cases, this Plaintiff specifically claims that her mother, Ms. Rashada,

was incapable of caring for herself due to age and infirmities and that she enjoyed a

fiduciary relationship with Defendant, alleging the existence of a traditionally

recognized fiduciary relationship with its patients.

12. It is true that other jurisdictions have held that a fiduciary relationship

may exist between a nursing home and its residents.38 For example, in Petre v. Living

35 Bamford v. Penfold, L.P., 2020 WL 967942, at *8 (Del. Ch. Feb. 28, 2020) (quoting Cheese Shop Int’l v. Steele, 303 A.2d 689, 690 (Del. Ch.), rev’d on other grounds, 311 A.2d 870 (Del. 1973)) (internal quotations omitted). 36 Id. (quoting White v. Lamborn, 1977 WL 9612, at *4 (Del. Ch. Mar. 16, 1977)). 37 Beyers v. Bd. of Educ., 2011 Del. Super. LEXIS 1678, at *17. 38 See Zaborowski v. Hospitality Care Ctr. of Hermitage, Inc., 2002 Pa. Dist. & Cnty. Dec. LEXIS 169, *20-21; Petre v. Living Centers-East, 935 F. Supp. 808, 812 (E.D. La. 1996); but see Manor Care, Inc. v. Douglas, 763 S.E.2d 73 (W. Va. 2014). 6 Centers-East, the Federal District Court for the Eastern District of Louisiana denied

defendant’s motion for summary judgment and allowed the case to go to a jury. 39

Finding that while a fiduciary relationship normally exists in the context of a

business relationship, “one would hope at least in principle that entrusting a valued

family member to the care of a business entity such as a nursing home would carry

similar responsibilities.”40 Defendant deflects and cites Corrado Bros., Inc. v. Twin

City Fire Ins. Co.,41 and Beyers v. Board of Education 42 in support of its argument

that a nursing home is does not have a traditionally recognized fiduciary relationship

with its patients. But these cases are distinguishable as neither involve a nursing

home or were decided at different procedural junctures.

13. First, Corrado Bros. involved a contract claim, not a breach of fiduciary

claim.43 Second, while it is true that Defendant is a business, this relationship

between Defendant and Ms. Rashada is perhaps more personal than that of the

insurer/insured in Corrado. To echo Petre, this Court too hopes that entrusting one’s

39 Petre, 935 F. Supp. 808. 40 Id. at 812 (quoting Schenck v. Living Centers-East, Inc., et al., 917 F. Supp. 432, 437-38 (E.D. La. 1996)) (internal quotations omitted). 41 Corrado Bros., Inc. v. Twin City Fire Ins. Co., 562 A.2d 1188 (Del. 1989) (holding that no fiduciary relationship exists between an insured and the insurance agency where in the context of an insurance relationship, the expected clash of interest was not compatible with the concept of a fiduciary). 42 Beyers, 2011 Del. Super. LEXIS 1678 (holding that no fiduciary relationship exists between a school district and its students after two students were sexually assaulted by teachers where there was the lack of a personal dimension traditionally encountered in recognized fiduciary relationships). 43 See Corrado Bros., 562 A.2d at 1191-92. 7 loved one to the care of a business entity such as a nursing home would carry similar

responsibilities, and that the patient/nursing home relationship is more personal than

a mere contractual relationship between and insured and its insurer.44 And, unlike

Beyers, where no “personal dimension” was found between a school district and its

students,45 here, the Plaintiff has alleged a personal dimension between Ms. Rashada

and Defendant as she claims that Ms. Rashada was not able to care for herself due

to her age and infirmities.46

14. At this stage it is enough that Plaintiff has set out facts to properly plead

her allegation that the relationship existed. Also, this Court also recently decided

that a fiduciary relationship may exist between a nursing home and almost identical

claims made in the D’Agostino matter.47 Like D’Agostino, the burden of proving

that the relationship exists remains on Plaintiff, but the claim cannot be dismissed at

this stage. Defendants may renew their dispositive motion after discovery, if

appropriate.

15. Drawing all reasonable inferences in favor of Plaintiff under Rule

12(b)(6), Defendant’s Motion to Dismiss Count II for Breach of Fiduciary Duty is

DENIED.

44 See Petre, 935 F. Supp. at 812. 45 Beyers, 2011 Del. Super. LEXIS 1678, at *18. 46 Complaint, ¶ 67. 47 See Judicial Action Form, D’Agostino v. The Milton & Hattie Kutz Home, Inc. et al., N20C- 09-148 VLM, D.I. 29 (Del. Super. Jan. 27, 2021). 8 B. Negligence Per Se

16. To make out a claim for Negligence Per Se, a plaintiff must establish

four elements: (1) that the statute was “enacted for the safety of others;” (2) that a

causal connection exists between the statutory violations and the injury, and that

Plaintiff was “a member of the class of persons the statute set out to protect;” (3)

that the statute set forth “a standard of conduct which was designed to avoid the

harm” suffered; and (4) that the defendant violated the statute “by failing to comply

with that standard of conduct.”48

1. Count V: Claims Based on Federal Law

17. Defendant argues that because Plaintiff has not identified a statute for

the basis of her negligence per se claim, one cannot be sustained.49 In the alternative,

Defendant argues that even if a statute has been identified, the claim for negligence

per se must fail because the OBRA regulations do not set forth a standard of specific

conduct involving specific acts that are required. 50 Plaintiff argues that a statute is

not required and that violations of administrative regulations may establish

negligence per se in certain situations.51

48 NVF Co. v. Garrett Snuff Mills, Inc. 2002 WL 130536, at *2 (Del. Super. Jan. 30, 2002) (citations omitted). 49 Def’s Opening Brief, at 27. 50 Id. at 28. 51 Plaintiff’s Answering Brief, at 20. 9 18. The Court need not address the parties’ arguments as to this count

because, as more fully outlined during oral argument, the allegations in Count V are

not well plead on its face. Plaintiff lists out the OBRA regulations in paragraph 94

of the Complaint that neither exist nor support the asserted contentions.52 Plaintiff’s

counsel admitted as much during oral argument. As such, the Court finds that

Plaintiff’s claim for Negligence Per Se Pursuant to Federal Law has not been

adequately plead. Therefore, Defendant’s Motion to Dismiss Count V: Negligence

Per Se Pursuant to Federal Law is GRANTED, without prejudice.

2. Count VI: Claims Based on State Law

19. Plaintiff alleges negligence per se for violations under 16 Del C §§

1131(11) and 1136.53 Section 1136 sets forth criminal degrees of culpability for

persons that are found to have abused, mistreated, or neglected residents of a long-

term care facility. 54 Defendant first argues dismissal is appropriate because Chapter

52 Paragraph 94(a) Plaintiff cites to regulation 483.13(c) when such a regulation no longer exists. In paragraph 94(d) Plaintiff cites to regulation 483.20(k) for the contention that a nursing facility had to appropriately develop, implement, and revise a care plan to address Ms. Rashada’s fall risk and the risk that she would develop pressure ulcers. However, regulation 483.20(k) deals with preadmission screening for individuals with mental health disorders and intellectual disabilities. In paragraphs 94(e) and 94(f) Plaintiff cites to regulations 483.25(h)(1) and (h)(2) respectively, but there are no subsections to regulation 483.25(h). In paragraph 94(h) Plaintiff cites to regulation 483.75(b) contending that Defendant failed to comply with federal, state, and local laws, and professional standards in violation of the regulation; this regulation does not support such a contention. In paragraph 94(i) Plaintiff cites to regulation 483.75(i)(1) for failure to keep medical records; there is no regulation 483.75(i)(1). 53 See Complaint, ¶¶ 99-103. 54 16 Del. C. § 1136 (“Any person who knowingly or recklessly abuses, mistreats, or neglects a patient or resident of a facility is guilty of a class A misdemeanor.”). 10 11 is a licensing statute and therefore it cannot constitute the basis for negligence

per se.55 In support, Defendant cites to Tydings v. Loewenstein56 and Fansler v.

North American Title Insurance Company.57 Alternatively, it argues that §§

1131(11) and 1136 do not identify a specific standard of conduct such that the statute

cannot support a claim for negligence per se,58 mainly that § 1131(11) defines

“neglect,” but fails to set forth a standard of care, 59 and that since Defendant is not a

“person,” under § 1136, it cannot apply here.60 Neither argument supports dismissal.

20. Both Tydings and Fansler discuss the applicability of a different

statute; Section 2802 of the Delaware Professional Engineers Act.61 In Tydings, the

Delaware Supreme Court held that the Superior Court did not err in failing to provide

a jury instruction on negligence per se for violation of the statute.62 Notably, that

case went to a jury and the Court’s focus was procedurally different as it was not

asked to conduct a 12(b)(6) analysis as here.

21. Moreover, that Court found that the Delaware Professional Engineers

Act is a licensing statute that does not define a standard of conduct.63 This is what

55 Def’s Opening Brief, at 23. 56 Tydings v. Loewenstein, 505 A.2d 443 (Del. 1986). 57 Fansler v. N. Am. Title Ins. Co., 2020 WL 5793750 (Del. Super. Sept. 29,2020). 58 Def’s Opening Brief, at 29. 59 Id. at 30-31. 60 Id. at 31-32. 61 24 Del. C. § 2801 et seq. 62 Tydings, 505 A.2d at 446. 63 Id. 11 proved fatal to the Tydings plaintiff that found that the Professional Engineering Act

could not constitute the basis for negligence per se.64 To be clear, Tydings did not

hold that a licensing statue could never form the basis of negligence per se. Instead,

it stated that a statute that does not “define a standard of conduct” could not form the

basis for negligence per se.65

22. Here, the statute relied upon by Plaintiff to establish her claim is

Chapter 11 of Title 16. It provides not only do state regulations establish the

“minimum acceptable levels of care,” the actual statute does as well. 66 Further the

statute states that “[t]his chapter and its regulations . . . are designed to be useful to

consumers and providers in assessing the quality of care in a facility.” 67 Similarly,

in Fansler, the Superior Court followed the holding in Tydings and granted summary

judgment.68 For the same reasons as Tydings, the Court finds that Fansler—also

decided at a different procedural posture—is distinguishable.

23. Lastly, it cannot be said that a violation under § 1136 which provides

criminal degrees of culpability can never form the basis for a negligence per se

64 Tydings, 505 A.2d at 446. 65 See id. 66 See 16 Del. C. § 1101(b) (“This chapter and the regulations adopted to implement it establish minimum acceptable levels of care.”). 67 Id. § 1101(f). 68 See Fansler, 2020 WL 5793750 at *3. 12 claim.69 This argument is counter to what we know often supports a basis for a

strong negligence per se claim (i.e., violations on the part of caregivers that support

findings of criminal liability.) Further, Defendant ignores the definition of “person”

under the statute. Section 1131(12) defines “person” as a “human being and, where

appropriate, a public or private corporation, an entity, an unincorporated association,

a partnership, a government, or government instrumentality.” 70 As such the Court

finds that Plaintiff has sufficiently alleged in her Complaint violations under § 1136

to survive dismissal of her claim of negligence per se. Therefore, Defendant’s

Motion to Dismiss Count VI: Negligence Per Se Pursuant to State Law is DENIED.

Conclusion

For the reasons stated above, Defendant’s Motion to Dismiss is GRANTED

as to Count V for Negligence Per Se Pursuant to Federal Law. Defendant’s Motion

is DENIED as to Count II for Breach of Fiduciary Duty and Count VI for Negligence

Per Se Pursuant to State Law.

/s/ Vivian L. Medinilla Vivian L. Medinilla Judge

69 See Sammons v. Ridgeway, 293 A.2d 547, 550 (Del. 1972) (“We note, too, the historical relationship between criminal statutes and the development of the doctrine of negligence per se.”). 70 16 Del. C. § 1131(12). 13