United States District Court, E.D. North Carolina, Northern Division
ALFONZA J. HIGGS, as Administrator of the Estate of Alonza Higgs, Plaintiff,
BRIAN CENTER HEALTH & RETIREMENT/WINDSOR, INC., et al., Defendants.
C. DEVER III UNITED STATES DISTRICT JUDGE.
12, 2018, Alfonza J. Higgs ("plaintiff')), on behalf
of the estate of Alonza Higgs, filed a complaint in Bertie
County Superior Court against Brian Center Health &
Retirement/Windsor, Inc. ("Brian Center") and
twenty-one other entities (collectively
"defendants"), alleging negligence, medical
malpractice, wrongful death, breach of contract, breach of
third party beneficiary contract, and negligent
misrepresentation [D.E. 1-1]. On August 24, 2018, the
defendants Jointly removed the action to this court [D.E. 1].
On October 26, 2018, plaintiff moved to remand the action to
state court [D.E. 49] and filed a memorandum in support [D.E.
SO]. On November 16, 2018, defendants SSC Windsor Brian
Operating Company LLC ("SSC Windsor") and
SavaSeniorCare Administrative Services LLC ("SSC
Admin") responded in opposition [D.E. 59].
August 27 and 28, 2018, sixteen defendants moved to dismiss
the complaint [D.E. 14, 16, 18, 20, 22, 24, 26, 27, 30, 32,
34, 36, 38, 40, 42], and filed memoranda in support [D.E. 15,
17, 19, 21, 23, 25, 28, 29, 31, 33, 35, 37, 39, 41]. On
October 26, 2018, plaintiff responded in opposition [D.E.
51]. On November 16, 2018, several defendants replied [D.E.
August 31, 2018, SSC Windsor and SSC Admin answered
plaintiff's complaint [D.E. 45, 46]. On November 12,
2018, plaintiff moved to strike both answers pursuant to Rule
12(f) of the Federal Rules of Civil Procedure [D.E. 55] and
filed a memorandum in support [D.E. 56]. On December 3, 2018,
SSC Windsor and SSC Admin responded in opposition [D.E. 69].
As explained below, the court denies plaintiff's motion
to remand, grants the motions to dismiss, and denies the
14, 2015, Alonza Higgs ("Higgs") moved into Brian
Center Health & Rehabilitation/Windsor in Windsor, North
Carolina See Compl. [D.E. 1-1] ¶73. At the time, Higgs
was 73 years old and had been hospitalized from July 10,
2015, until July 14, 2015. See id. ¶¶ 3,
79. While in the hospital, Higgs had received treatment for
numerous ailments, including a urinary tract infection, renal
failure, hypertension, and generalized weakness. Id.
¶ 79. Higgs, however, did not have any pressure injuries
at that time. See Id. ¶¶ 87-90. When the
staff admitted Higgs to the nursing home, the staff
anticipated that he would be discharged after completing
short-term rehabilitation. See id. ¶¶ 84,
entered the nursing home, Higgs's general physical
condition was poor. On July 15, 2015, Regina Bond
("Bond"), an occupational therapist, noted that
Higgs had "muscle weakness, strength impairments, fine
motor control deficits, decreased coordination, and limb
pain." Id. ¶ 147. He was unable to sit or
stand and was "totally dependent" on others for
necessary activities, including bathing, using the toilet,
and dressing. Id. ¶¶ 148-150. Bond also
noted that Higgs required "maximum assistance for bed
mobility" and was at risk of developing pressure
injuries and sores. Id. ¶¶ 151, 156-57.
alleges that the nursing home staff failed to provide
competent care to Higgs. See Id. ¶¶
92-117. Although the staff wrote an interim plan of care when
the staff admitted Higgs, the plan did not indicate that
Higgs was at risk for developing pressure injuries and did
not include any instruction to reposition Higgs frequently to
decrease pressure. See Id. ¶¶ 119-23. As a
result, plaintiff alleges that the nursing home staff failed
to implement a care plan to prevent Higgs from developing
pressure injuries, like repositioning Higgs regularly or
placing Higgs on a custom mattress that would decrease the
risk of such injuries. See Id. ¶¶ 125-33,
157-58. Additionally, plaintiff alleges that the nursing home
staff failed to manage Higgs's nutrition properly to
minimize the risk of pressure injuries. See Id.
¶¶ 134-35, 163-65.
22, 2015, the nursing home staff observed "two large
blisterous type pressure ulcers" on Higgs's
buttocks. Id. ¶¶ 174-75. Although one of
"[defendants' licensed practical nurses"
provided limited initial treatment, the nursing home staff
failed to timely notify Higgs's doctors or his family of
the ulcers. See Id. ¶¶ 176-79, 181.
Plaintiff also alleges that defendants failed to implement
additional measures, such as nutritional changes or a
speciality mattress, to help heal Higgs's wounds and
prevent them from worsening. See id. ¶¶
183-86. On July 25, 2015, the nursing home staff prepared and
implemented a plan to address Higgs's pressure injuries.
See Id. ¶¶ 190-94.
this plan, Higgs's condition worsened over the following
weeks. See id. ¶¶ 199-262. On August 16,
2015, Higgs was "not acting like himself' and at
some point became unresponsive. Id. ¶¶
263, 266. On August 17, 2015, the nursing home transferred
Higgs to Vidant Bertie Hospital ("Vidant")in
Windsor, North Carolina. Id. ¶268. When Higgs
arrived, plaintiff alleges that hospital staff noted a foul
odor coming from Higgs's pressure wounds, and Higgs
suffered extreme sensitivity to movement and pain.
Id. ¶¶ 272-73. Higgs was "in critical
condition," and the hospital admitted Higgs to the
Medical Intensive Care Unit. Id. ¶ 284. The
hospital staff determined that Higgs had a "Stage IV
decubitus ulcer." Id. ¶¶ 285, 294.
Higgs also displayed signs of either septic shock or
bacterial sepsis. See id. ¶¶
288-93.295-97. Doctors operated on Higgs's ulcer that
day. Id. ¶ 306. On September 3, 2015, Vidant
transferred Higgs to LifeCare Hospital of North Carolina
("LifeCare") for "wound management."
Id. ¶¶ 311-12.
at LifeCare, Higgs's condition continued to deteriorate.
See Id. ¶¶ 316-22. On October 7, 2015,
Higgs went into cardiac arrest. Id. ¶ 323.
After being resuscitated, Higgs was transferred from LifeCare
to Vidant, and Higgs was hospitalized. See Id.
¶¶ 324-25. More pressure ulcers developed on
different parts of Higgs's body. See Id.
¶¶ 327-31. On October 20, 2015, Higgs was
discharged from Vidant and transferred to LifeCare for
continued wound care. Id. ¶¶ 332-33.
"After completing care at LifeCare," Higgs was
transferred to PruittHealth in Farmville, North Carolina.
Id. ¶334. On April 8, 2017, Higgs died.
Id. ¶ 335. Plaintiff alleges that the original
pressure injuries proximately caused Higgs's death.
Id. ¶ 336.
12, 2018, plaintiff filed a complaint based on the conduct
that allegedly caused Higgs's pressure wounds [D.E. 1-1].
In the complaint, plaintiff alleges eight claims: (1)
wrongful death based on negligence, (2) wrongful death based
on medical malpractice, (3) negligence, (4) medical
malpractice, (5) punitive damages, (6) breach of contract,
(7) breach of third-party beneficiary contract, and (8)
negligent misrepresentation. See Id. ¶¶
are business entities that, at some point, had a relationship
with Brian Center Health & Rehabilitation/Windsor where
Higgs stayed in July 2015. SSC Windsor operates Brian Center
Health & Rehabilitation/Windsor. See Sims Aff. [D.E. 1-4]
¶ 2. Plaintiff also sued the business entities that own
SSC Windsor, including North Carolina Holdco II, LLC
("NC Holdco II"), the sole member of SSC Windsor;
SSC Equity Holdings MT LLC ("SSC Equity"), the sole
member of NC Holdco II; Master Tenant Parent Holdco II, LLC
("Master Tenant?'), the sole member of SSC Equity;
SavaSeniorCare, LLC ("Sava"), the sole member of
Master Tenant; Proto Equity Holdings, LLC ("Proto
Equity"), the sole member of Sava; and Terpax, Inc.
("Terpax"), the sole member of Proto Equity. See
Id. ¶¶ 4-10. Additionally, plaintiff sued
other entities that it alleges are related to Sava, including
North Carolina Holdco, LLC ("NC Holdco"), SSC
Special Holdings, LLC, Special Holdings Parent Holdco, LLC,
and SSC Admin. See Id. Each limited liability
company is formed under Delaware law and has no other members
than those listed above. See Id. ¶¶ 3-11.
Terpax, a corporation, was incorporated in Delaware and has
its principal place of business in Tennessee. See id ¶
11. Plaintiff also sued SMV Windsor Brian, LLC, ("SMV
Windsor"), the entity which leases the nursing home to
SSC Windsor. See Wayne Craig Aff. [D.E. 31-3] ¶ 2.
Finally, Higgs sued Brian Center and Living Centers Southeast
Development Corp. ("Living Centers").
alleges that the defendants were "engaged, directly or
indirectly, in partnerships, joint enterprises, and/or joint
ventures, to own, operate, and/or manage a for-profit, 82-bed
skilled nursing facility, known as 'Brian Center Health
& Rehabilitation/Windsor." See Compl. [D.E. 1-1]