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Katz v. Golden Gate National Senior Care LLC

United States District Court, D. Massachusetts

July 8, 2019

JENNIFER KATZ, Personal Representative of the Estate of Donald Cohen, Plaintiff,



         Plaintiff Jennifer Katz is suing Golden Gate National Senior Care, LLC (“Golden Gate”) and GGNSC Chestnut Hill, LLC for the wrongful death of her father while he was a resident at Golden Living, a nursing home owned and operated by the defendants.[1] Ms. Katz claims that Golden Gate and Golden Living were negligent in caring for her father, and that as a result, he suffered a fall and thereafter died in the hospital. The defendants collectively moved to strike the report of Ms. Katz's expert and for summary judgment. Ms. Katz opposed both motions.

         I. FACTS[2]

         Donald Cohen was admitted to Golden Living, a nursing home, on August 5, 2011. Doc. No. 72 at 16. At that time, Mr. Cohen was seventy-nine years old and required twenty-four hour nursing care, supervision, and assistance with his daily living. Id. Mr. Cohen had multiple diagnoses relevant to his mental and physical wellbeing, including senile dementia. Id. at 17. Additionally, for over a year before he was admitted, he had been experiencing increasingly frequent falls. Id. at 16. When admitted to Golden Living, Mr. Cohen was “considered a high fall risk and exhibited wandering behavior throughout his stay at the Defendants' facility.” Id.

         Almost immediately after being admitted to Golden Living, Mr. Cohen began to experience falls. Id. Initially, the staff at Golden Living developed fall precautions relating to Mr. Cohen's wheelchair-such as assessing its size, locking mechanisms, and anti-tipping mechanisms-and referred him to physical therapy. Id. However, Mr. Cohen continued to fall while at Golden Living. Id. The staff did not make major changes to his fall prevention plan, other than adding a self-releasing seatbelt alarm to Mr. Cohen's wheelchair on April 1, 2012. Id. Mr. Cohen could unfasten the seatbelt and turn off the alarm, and indeed, he routinely did so. Id. The staff at Golden Living were aware that Mr. Cohen almost immediately began to disregard the seatbelt alarm and continued to suffer falls. Id. No. additional “serious interventions” were made to prevent him from falling, even though additional interventions were listed as available in his nursing chart. Id. Additionally, during the period of time between March 2012 and March 2013, “thirty residents suffered forty eight documented falls, resulting in six fractures and an additional subdural hematoma.” Id. at 18.

         On March 12, 2013, Mr. Cohen was sitting in his wheelchair at approximately 11:30 a.m., and “fell to the ground after trying to self ambulate, ” according to nurses' notes. Id. There were no nurses or other Golden Living staff present at the time of Mr. Cohen's fall, so it was unwitnessed. Id. Immediately after the fall, “Mr. Cohen was indicated as not being able to articulate his pain situation, and as having a large bump on his right temporal lobe that was very tender to touch.” Id. An unidentified member of the Golden Living staff gave him ice for his head and initiated an observation period. Id. According to Ms. Katz, at no point during the observation period did Mr. Cohen receive an examination by a physician, a nurse practitioner, or a registered nurse.[3] Id. When Ms. Katz arrived at Golden Living that evening, she observed that Mr. Cohen had “extensive facial bruising” and insisted that he be taken to the hospital. Id. At the hospital, Mr. Cohen was diagnosed with a subdural hematoma. Id. He did not recover and died at the hospital six days later, on March 18, 2013. Id.

         Ms. Katz filed a six-count complaint in Middlesex Superior Court, which the defendants timely removed to this Court. Doc. No. 1. The complaint alleges that each of the defendants wrongfully caused Mr. Cohen's death under Mass. Gen. Laws ch. 229, § 2. Counts I and IV allege negligence against Golden Gate and Golden Living, respectively, Counts II and V allege gross negligence, and Counts III and VI allege willful, wanton, and reckless conduct. Doc. No. 1-1.

         During discovery, Ms. Katz disclosed her expert, Lance Youles, who she plans to call to testify to the standards applicable to administration of a nursing home and the standard of care exercised by nursing home administrators. Docs. No. 67-2, 67-3. The defendants collectively moved to strike Mr. Youles's expert report on the theories that Mr. Youles is not qualified to opine on the nursing standard of care or on the causes of Mr. Cohen's death. Doc. No. 62. Ms. Katz opposed on the grounds that Mr. Youles would only offer opinions on administrative, regulatory, and institutional standards of nursing homes and nursing home operations, which she asserts he is qualified to do. Doc. No. 67.

         The defendants also moved for summary judgment on the theories that there is no vicarious liability by which to hold Golden Gate liable and that Ms. Katz has no expert to testify to the nursing standard of care or to causation. Doc. No. 64. Ms. Katz opposed on both grounds. Doc. No. 72.

         The Court heard argument on each of these motions on June 19, 2019.


         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute “is one on which the evidence would enable a reasonable jury to find the fact in favor of either party.” Perez v. Lorraine Enters., Inc., 769 F.3d 23, 29 (1st Cir. 2014). “A ‘material' fact is one that is relevant in the sense that it has the capacity to change the outcome of the jury's determination.” Id. (citation omitted). The Court is “obliged to view the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving party's favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). However, the Court must ignore “conclusory allegations, improbable inferences, and unsupported speculation.” Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009).


         Because the relevance and admissibility of Mr. Youles's testimony depends upon Ms. Katz's theory of liability, the Court first addresses the motion for summary judgment, specifically, the elements of the asserted claims. The Court then turns to the question of whether Mr. Youles may offer an expert opinion related to any or all of those claims. The Court addresses these claims as against Golden Living before considering the question of vicarious liability.

         A. Negligence Claim Against Golden Living

         Count IV alleges that Golden Living was negligent in caring for Mr. Cohen, thereby causing his death. Ms. Katz's theories of liability, gleaned from both the papers submitted and the oral arguments presented, are that Golden Living was negligent in 1) establishing a “fall intervention plan, ”[4] 2) failing to evaluate and update that plan with additional precautions after Mr. Cohen continued to fall, 3) not properly supervising him on March 12, 2013, and 4) failing to provide him with medical evaluation and treatment for nine hours after his March 12, 2013 fall.

         As an initial matter, the Court addresses the defendants' contention that Ms. Katz's claims are really claims for medical malpractice. Because Ms. Katz asserts a general negligence claim, rather than a medical malpractice claim, the Court compares the elements of each type of claim to her asserted theories of liability. In Massachusetts, “a medical malpractice plaintiff must show (1) the existence of a doctor or nurse-patient relationship, (2) that the performance of the doctor or nurse did not conform to good medical practice, and (3) that damage resulted therefrom.” St. Germain v. Pfeifer, 637 N.E.2d 848, 851 (Mass. 1994). In contrast, a plaintiff asserting a negligence claim under Massachusetts law must prove that “(1) the defendant owed the plaintiff a duty of reasonable care; (2) the defendant ...

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