United States District Court, D. Massachusetts
JENNIFER KATZ, Personal Representative of the Estate of Donald Cohen, Plaintiff,
GOLDEN GATE NATIONAL SENIOR CARE, LLC and GGNSC CHESTNUT HILL, LLC, Defendants.
ORDER ON MOTION TO STRIKE (DOC. NO. 61) AND MOTION
FOR SUMMARY JUDGMENT (DOC. NO. 63)
SOROKIN, UNITED STATES DISTRICT JUDGE
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. 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.
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.
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.
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. 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.
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.
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.
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.
Court heard argument on each of these motions on June 19,
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).
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.
Negligence Claim Against Golden Living
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,
” 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.
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 ...