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Higgs v. Brian Center Health & Retirement/Windsor, Inc.

United States District Court, E.D. North Carolina, Northern Division

February 7, 2019

ALFONZA J. HIGGS, as Administrator of the Estate of Alonza Higgs, Plaintiff,



         On July 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].[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].

         On 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. 60-62].

         On 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 remaining motions.


         On July 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, 139.

         When he 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.

         Plaintiff 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.

         On July 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.

         Despite 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.

         While 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.

         On July 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. ¶¶ 337-96.

         Defendants 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").[2]

         Plaintiff 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] ...

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