SHAFEEQSADIQESQ SBN 233049 SHAFEEQ'SADnESQJBN 233049 ROGER KOSLA.E SQSBN.2 85266 ROGER KOSLA. ESQ,SBN. 285266 SSEEVVEENN HHUUNNDDRREEDD "'EE"" SSTTRREEEETT E-FILED SSAACCRRAAMMEENNTTOO.. CCAALLIIFFOORRNNIIAA 9955881144 El: I LED 1/8/2016 1:28:52 PM 1/8/20161:28:52 PM PH. 916.446.2800 FRESNO COUNTY SUPERIOR COURT PH. 916.446.2800 FRESNO COUNTY SUPERIOR COURT FX 916.446.2828 FX. 916.446.2828 By: M. Meza, Deputy By: M. Meza, Deputy 00°\l0\UI4BWN1—n SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO UNLIMITED CIVIL JURISDICTION UNLIMITED CIVIL JURISDICTION I Alan MARCUM, A1 an MARCUM, Case No. 15CECGO1327 Case No. ISCECG01327 Plaintiff, Plaintiff, VVSS'. FIRST AMENDED COMPLAINT FOR FIRST AMENDED COMPLAINT FOR DAMAGES St. Agnes Medical Center, Dr. Chinnapa D ‘ ‘M‘ ‘GES NSt.a rAegdndeys, HMeedrbiecratl L Ceeen lTtihro, mDra.s ,C Slihianrmonanp a Nareddy, Herbert Lee omas, S on JURY TRIAL DEMANDED Wimberley, Wayne Thomas, Leisure Care Wimberley, Wayne Thomas, Leisure Care LLC, Does 1-10 , LLC, Does 1-10, I—Ib—ll—‘D—ID—‘l—iD—‘b—lI—I Defendants. Defendants. GENERAL FACTUAL ALLEGATIONS RELEVANT TO ALL DEFENDANTS GENERAL FACTUAL ALLEGATIONS RELEVANT TO ALL DEFENDANTS I. Plaintiff Alan Marcum brings his complaint for damages as against defendants St. 1. Plaintiff Alan Marcum brings his complaint for damages as against defendants St. Agnes Medical Center, Dr. Chinnapa Nareddy, M.D., Herbert Lee Thomas ("Lee"), Sharon Agnes Medical Center, Dr. Chinnapa Nareddy, M.D., Herbert Lee Thomas (“Lee”), Sharon Wimberley, Wayne Thomas, and Leisure Care LLC. Plaintiff has complied with all I Wimberley, Wayne Thomas, and Leisure Care LLC. Plaintiff has complied with all statutory prerequisites regarding a professional negligence action as he caused to be served a statutory prerequisites regarding a professional negligence action as he caused to be served a 20 pre-claim notice on the medical professional entities on April 9,20 15. pre-claim notice on the medical professional entities on April 9, 2015. NNN 2. Plaintiff is a resident of Sacramento County. The defendants except Wayne 2. Plaintiff is a resident of Sacramento County. The defendants except Wayne Thomas are residents of Fresno County. Wayne resides in Alarneda County. All acts Thomas are residents of Fresno County. Wayne resides in Alameda County. All acts alleged herein occurred within Fresno County within the jurisdiction of the Fresno alleged herein occurred within Fresno County within the jurisdiction of the Fresno County Superior Court. Therefore, Fresno County is the appropriate venue for this action County Superior Court. Therefore, Fresno County is the appropriate venue for this action and the Fresno County Superior Court has jurisdiction over all defendants in this acti~nin and the Fresno County Superior Court has jurisdiction over all defendants in this action in light of their substantial contact with the jurisdiction and that all acts alleged herein occurred light of their substantial contact with thejurisdiction and that all acts alleged herein occurred within the boundary of the county. within the boundary of the county. FlRST AMENDED COMPLADlT FOR DAMAGES FIRST AMENDED COMPLAINT FOR DAMAGES u Nam—u.» Following the death of her first husband, Dorothy Marcum married her second 33.. Following the death of her first husband, Dorothy Marcum married her second husband Herbert Lee Thomas. Following a divorce from his first wife, Herbert Lee husband Herbert Lee Thomas. Following a divorce from his first wife, Herbert Lee Thomas married his second wife Dorothy Marcum. Dorothy's first marriage produced Thomas married his second wife Dorothy Marcum. Dorothy’s first marriage produced two children: Alan Marcum and Dan Marcum. Lee's first marriage produced three two children: Alan Marcum and Dan Marcum. Lee’s first marriage produced three children: Wayne Thomas, Sharon Wimberley (Sharon Thomas) and Suzanne Thomas children: Wayne Thomas, Sharon Wimberley (Sharon Thomas) and Suzanne Thomas \DOOQO’tUI-BWNI-I (Deceased). Lee and Dorothy had no children together. On October 25, 1990, Lee and (Deceased). Lee and Dorothy had no children together. On October 25, 1990, Lee and Dorothy created the Herbert L Thomas and Dorothy A Thomas trust. The beneficiaries of Dorothy created the Herbert L Thomas and Dorothy A Thomas trust. The beneficiaries of that trust were the children of both Lee and Dorothy. The trust was restated June 21,2007. that trust were the children of both Lee and Dorothy. The trust was restated June 21, 2007. At that time, Wayne Thomas and Dan Marcum were added as co-successor trustees, with At that time, Wayne Thomas and Dan Marcum were added as co-successor trustees, with Alan Marcum named as Dan's available replacement, and Wayne Thomas and Dan Marcum Alan Marcum named as Dan’s available replacement, and Wayne Thomas and Dan Marcum as "co-disability panelists," again with Alan Marcum as Dan Marcum's available as “co-disability panelists,” again with Alan Marcum as Dan Marcum’s available replacement. Dan Marcum and Wayne Thomas are also co-personal representatives in replacement. Dan Marcum and Wayne Thomas are also co-personal representatives in Dorothy Thomas' pour-over will (executed as part of the trust). Dorothy Thomas died on Dorothy Thomas’ pour-over will (executed as part of the trust). Dorothy Thomas died on April 30,2013. Immediately after her death, Lee amended the trust. In his amendment, he April 30, 2013. Immediately afier her death, Lee amended the trust. In his amendment, he made sweeping changes, including the removal of Dan and Alan from all positions of made sweeping changes, including the removal of Dan and Alan from all positions of responsibility as successor trustees, and removing Dan and Alan fiom the disability panel. responsibility as successor trustees, and removing Dan and Alan from the disability panel. Dan Marcum's removal required court approval, as per the terms of the trust, and service of Dan Marcum’s removal required court approval, as per the terms of the trust, and service of process on him. That did not occur. Notably, the original trust permitted removal of a fi—DHI—hi—hl—il—i—I‘—Il—D‘—lNNNNNNNNN process onhim. That did not occur. Notably, the original trust permitted removal ofa trustee only for cause and required court approval. Furthermore, Lee also altered the trust to trustee only for cause and required court approval. Furthermore, Lee also altered the trust to remove the requirement that capacity determinations be made based on the opinion of an remove the requirement that capacity determinations be made based on the opini0n of an OONQUl-IBUJNHOOOOQONMhUJNb—o attending physician. attending physician. 4. Lee and Dorothy Thomas resided in a single family residence at 532 W. Rialto, 4. Lee and Dorothy Thomas resided in a single family residence at 532 W. Rialto, Fresno CA 93705 until they moved to Fairwinds-Woodward, a residential care facility Fresno CA 93705 until they moved to Fairwinds-Woodward, a residential care facility pursuant to 22 CCR §87101(5), owned and operated by Leisure Care LLC. It is pursuant to 22 CCR §87101(5), owned and operated by Leisure Care LLC. It is regulated by the California Department of Social Services as facility number 107201 156. regulated by the California Department of Social Services as facility number 107201156. Lee was physically abusive toward Dorothy. Instances of abuse are documented throughout 25 Lee was physically abusive toward Dorothy. Instances of abuse are documented throughout Dorothy's medical records. They include Lee offering conflicting versions of events to Dorothy’s medical records. They include Lee offering conflicting versions of events to 26 medical personnel regarding the circumstances surrounding Dorothy's injuries. Elsewhere medical personnel regarding the circumstances surrounding Dorothy’s injuries. Elsewhere 27 in the records medical personnel, including nurses, specifically indicate that abuse of in the records medical personnel, including nurses, specifically indicate that abuse of 28 -2- -2- FIRST AMENDED COMPLAINT FOR DAMAGES FIRST AMENDED COMPLAINT FOR DAMAGES Dorothy is occurring in the home she shared with Lee. Indeed referral to local authorities Dorothy is occurring in the home she shared with Lee. Indeed referral to local authorities was even noted and recommended. For his part, Plaintiff also had personally witnessed was even noted and recommended. For his part, Plaintiff also had personally witnessed physical indicia of abuse to his mother. Indeed, Dan and Alan confronted Lee in 2012 at the physical indicia of abuse to his mother. Indeed, Dan and Alan confronted Lee in 2012 at the Rialto residence regarding physical abuse of their mother. In that meeting, they demanding Rialto residence regarding physical abuse of their mother. In that meeting, they demanding notification of all future ambulance incidents, hospitalizations, and emergency room visits. \OOOQO\UI4}DJNi-I notification of all future ambulance incidents, hospitalizations, and emergency room visits. In response, Lee capitulated, stating: “" You have a right to know." In response, Lee capitulated, stating: You have a right to know.” 5. Primary care physician Dr. Garry Steven Sevel even noted in his August 6,2012, 5. Primary care physician Dr. Garry Steven Sevel even noted in his August 6, 2012, report that Lee was incapable of continuing as Dorothy's primary health caregiver. report that Lee was incapable of continuing as Dorothy’s primary health caregiver. Specifically, he wrote: "Pt's husband is very confbsed as to meds pt should be taking, and in Specifically, he wrote: “Pt‘s husband is very confused as to meds pt should be taking, and in my opinion is not giving her needed meds or in my opinion able to be primary care giver." my opinion is not giving her needed meds or in my opinion able to be primary care giver.” A second letter of similar substance from Dorothy's new primary care physician Dr. A second letter of similar substance from Dorothy’s new primary care physician Dr. Kirandeep Kaur Batth, M.D., was written on 12/4/2012. However, Lee concealed this report Kirandeep Kaur Batth, M.D., was written on 12/4/2012. However, Lee concealed this report from plaintiff. Moreover, Dorothy's medical records fiom 2012 reveal a woman who was from plaintiff. Moreover, Dorothy’s medical records from 2012 reveal a woman who was consistently malnourished and dehydrated, with bed sores and other injuries consistent with consistently malnourished and dehydrated, with bed sores and other injuries consistent with domestic abuse including a broken rib and black eyes. Lee consistently delayed Dorothy's domestic abuse including a broken rib and black eyes. Lee consistently delayed Dorothy’s r—Ir—Ip—nr—ni—np—Iv—tr—Iv—Ir—n medical treatment for days or weeks at a time. He deliberately withheld Dorothy's son medical treatment for days or weeks at a time. He deliberately withheld Dorothy’s son , Dan's contact information from Leisure Care LLC to prevent the facility from contacting Dan’s contact information from Leisure Care LLC to prevent the facility from contacting I him about her care. He resisted and refused efforts to provide in-home caregivers for him about her care. He resisted and refused efforts to provide in—home caregivers for Dorothy. He failed to take adequate action to ensure that Dorothy's walker could fit through Dorothy. He failed to take adequate action to ensure that Dorothy’s walker could fit through the bathroom door of the home. He rendered himself incommunicado fiom health caregivers the bathroom door of the home. He rendered himself incommunicado from health caregivers during times when Dorothy was in their care and communication needed to occur with her during times when Dorothy was in their care and communication needed to occur with her personal representative/contact. He withheld information fiom Dan and Alan Marcurn, personal representative/contact. He withheld information from Dan and Alan Marcum, including when she was admitted to the St. Agnes Emergency Room on 4/14/20 13 and again including when she was admitted to the St. Agnes Emergency Room on 4/14/2013 and again on 4/29/2013. He failed to provide nutrition and feeding for Dorothy, often forcing her to go on 4/29/2013. He failed to provide nutrition and feeding for Dorothy, often forcing her to go nine to twelve hours at a time without food. He failed to pick up her necessary prescription NNNN nine to twelve hours at a time without food. He failed to pick up her necessary prescription medication or would cancel them altogether. He repeatedly and consistently allowed her to 25 medication or would cancel them altogether. He repeatedly and consistently allowed her to develop debilitating bedsores. Lee isolated Dorothy from her sons, relatives, and develop debilitating bedsores. Lee isolated Dorothy from her sons, relatives, and 26 friends she had prior to the marriage. Lee controlled every aspect of Dorothy's life. friends she had prior to the marriage. Lee controlled every aspect of Dorothy's life. 37 L I When Dan and Alan called Dorothy, Lee listened in on all phone calls. When Dan When Dan and Alan called Dorothy, Lee listened in on all phone calls. When Dan 28 - -3 -3- I FIRST AMENDED COMPLAINT FOR DAMAGES FIRST AMENDED COMPLAINT FOR DAMAGES -4 ----A-A and Alan visited Dorothy, Lee listened to all conversations. Lee and Dorothy rarely ._. and Alan visited Dorothy, Lee listened to all conversations. Lee and Dorothy rarely visited Dan and Alan. The hospital records revealed this abuse. Visited Dan and Alan. The hospital records revealed this abuse. 6. At one juncture in 20 12, plaintiff and Dan and Alan hired an in-home caregiver to 6. At one juncture in 2012, plaintiff and Dan and Alan hired an in-home caregiver to assist with his mother's care. A-Plus was the in-home care service business. Alan and assist with his mother’s care. A—Plus was the in—home care service business. Alan and Dan employed A-Plus in 20 12 to provide care to Lee and Dorothy Thomas in their Dan employed A-Plus in 2012 to provide care to Lee and Dorothy Thomas in their home. However, Lee refused to allow the caregiver to perform its duties, instead relegating \OOOQO‘UIvAUJN home. However, Lee refused to allow the caregiver to perform its duties, instead relegating them to light housework. At another point in time, Dorothy was enrolled in Horizon Health them to light housework. At another point in time, Dorothy was enrolled in Horizon Health Care center. Her condition improved. A 1/4/20 13 email fiom Ginger McMurchie stated that Care center. Her condition improved. A 1/4/2013 email from Ginger McMurchie stated that Lee had declined training for the family on caring for Dorothy. This was prior to the move to Lee had declined training for the family on caring for Dorothy. This was prior to the move to Fairwinds. Next, Wayne was complicit with the Horizon assessment and ratified it without Fairwinds. Next, Wayne was complicit with the Horizon assessment and ratified it without notifling co-trustee Dan Marcum on 1/27/201 3. Wayne signed a service contract with a notifying co-trustee Dan Marcum on 1/27/2013. Wayne signed a service contract with a level of care which was insufficient for the level of care Dorothy required. Wayne Thomas level of care which was insufficient for the level of care Dorothy required. Wayne Thomas V purchased virtually the most inexpensive care Fairwinds provided. At the time Dorothy's purchased virtually the most inexpensive care Fairwinds provided. At the time Dorothy’s net worth exceeded two million dollars. net worth exceeded two million dollars. 7. Dr. A.P.S. Sidhu M .D., completed Form LIC 602A, a separate interdisciplinary 7. Dr. A.P.S. Sidhu M .D., completed Form LIC 602A, a separate interdisciplinary Nl—lt—‘I—‘D—‘h—ll—‘h—‘D—ll—ll—l discharge summary that Lee signed on January 30,20 13, the day Dorothy was COOOQO‘UI-PUJNp—o discharge summary that Lee signed on January 30, 2013, the day Dorothy was transferred fiom Horizon to Fairwinds. Dorothy moved into Fairwinds on January 30, transferred from Horizon to Fairwinds. Dorothy moved into Fairwinds on January 30, 2013, at 1 1:30am. Yet Lee did not sign off on her intake form until much later that same 2013, at 11:30am. Yet Lee did not sign off on her intake form until much later that same day, therefore the form could not possibly have been utilized/considered in the day, therefore the form could not possibly have been utilized/considered in the admission appraisal process by the caregiver. admission appraisal process by the caregiver. 8. Further records demonstrate that Lee was "tired" of his responsibility as caregiver to 8. Further records demonstrate that Lee was “tired” of his responsibility as caregiver to Dorothy. Thus, it was unsurprising that Dorothy was taken to the Emergency Room at St. Dorothy. Thus, it was unsurprising that Dorothy was taken to the Emergency Room at St. Agnes Medical Center on April 14,201 3, after having suffered a fall on 41 13 /20 13 while Agnes Medical Center on April 14, 2013, after having suffered a fall on 4/13/2013 while getting out of bed. Unfortunately, the fall caused her to break her back. Lee did not getting out of bed. Unfortunately, the fall caused her to break her back. Lee did not accompany her to the hospital, nor could he be reached by telephone at any time during accompany her to the hospital, nor could he be reached by telephone at any time during Dorothy's stay there. Indeed even after she had received medical treatment and was ready NNNNNNNN OOQONUIADJND— Dorothy’s stay there. Indeed even after she had received medical treatment and was ready for discharge, Lee refused the calls of hospital staff and allowed Dorothy to languish at the for discharge, Lee refused the calls of hospital stafi and allowed Dorothy to languish at the hospital. hospital. 9. On several occasions Dorothy has signed advance healthcare directives (AHCD) and 9. On several occasions Dorothy has signed advance healthcare directives (AHCD) and -4- -4- FIRST AMENDED COMPLAINT FOR DAMAGES FIRST AMENDED COMPLAINT FOR DAMAGES .. "mum—A physician's order for life sustaining treatment (POLST). On each and every occasion, she physician’s order for life sustaining treatment (POLST). On each and every occasion, she stated her desire that everything be done to save her in the event medical intervention stated her desire that everything be done to save her in the event medical intervention became necessary. Lee failed to notify Dan of this AHCD and also failed to provide the became necessary. Lee failed to notify Dan of this AHCD and also failed to provide the AHCD to St. Agnes. The Fairwinds AHCD named two specific health care agents, Lee AHCD to St. Agnes. The Fairwinds AHCD named two specific health care agents, Lee Thomas and Dan Marcum, and it included detailed contact information for both. Thomas and Dan Marcum, and it included detailed contact information for both. \DOOQQUI-P-WNt—t 10. On April 29,20 13, Dorothy was admitted to the Emergency Room at St. Agnes 10. On April 29, 2013, Dorothy was admitted to the Emergency Room at St. Agnes Medical Center. Upon arrival she is in possession of her POLST and the records so indicate Medical Center. Upon arrival she is in possession of her POLST and the records so indicate that a Dr. Vallapu confirmed having received and reviewed same. Again, Lee did not that a Dr. Vallapu confirmed having received and reviewed same. Again, Lee did not accompany her to the hospital. Nor did he respond to numerous calls fkom hospital staff and accompany her to the hospital. Nor did he respond to numerous calls from hospital staff and was never mentioned as being reasonably available by phone or at St. Agnes. For his part, was never mentioned as being reasonably available by phone or at St. Agnes. For his part, 10 plaintiff was never informed that Dorothy had been hospitalized or had visited the plaintiff was never informed that Dorothy had been hospitalized or had Visited the 11 Emergency Room in 20 13. - Emergency Room in 2013. 12 11. Regardless, even after being admitted to St. Agnes Medical Center, Dorothy again 11. Regardless, even after being admitted to St. Agnes Medical Center, Dorothy again 13 was presented with forms regarding her wishes in the event life-saving medical care and was presented with forms regarding her wishes in the event life-saving medical care and treatment became necessary. She consistently indicated that everything should be done to 14 treatment became necessary. She consistently indicated that everything should be done to save her life, including full resuscitation. 15 save her life, including fiill resuscitation. 12. Inexplicably, defendant Sharon Wimberley, a healthcare professional herself with 16 12. Inexplicably, defendant Sharon Wimberley, a healthcare professional herself with twenty years of experience in the industry, approached Dr. Nareddy and informed him that 17 twenty years of experience in the industry, approached Dr. Nareddy and informed him that Dorothy should not receive any lifesaving treatment whatsoever. Sharon had never had any 18 Dorothy should not receive any lifesaving treatment whatsoever. Sharon had never had any authorization to act on Dorothy's behalf or even Lee's behalf. Instead she appears to have 19 authorization to act on Dorothy’s behalf or even Lee’s behalf. Instead she appears to have simply materialized as the angel of death at Dorothy's side. Sharon knew that Dorothy 20 simply materialized as the angel of death at Dorothy’s side. Sharon knew that Dorothy wanted her AHCD mandating full resuscitation to be followed, yet she disregarded wanted her AHCD mandating full resuscitation to be followed, yet she disregarded 21 Dorothy's wishes. Dorothy’s wishes. 22 13. For his part, Dr. Nareddy did nothing to confirm whether Sharon had any such 13. For his part, Dr. Nareddy did nothing to confirm whether Sharon had any such 23 authorization to change Dorothy's AHCD or POLST. Instead, he simply alters the authorization to change Dorothy’s AHCD or POLST. Instead, he simply alters the 24 recordslchart and physician's orders requiring full resuscitation to indicate that Dorothy records/chart and physician’s orders requiring full resuscitation to indicate that Dorothy 25 should not be resuscitated or receive any therapies in the event she needed such medical should not be resuscitated or receive any therapies in the event she needed such medical 26 intervention to stay alive and never mentioned that Dorothy had lost capacity. Thus at intervention to stay alive and never mentioned that Dorothy had lost capacity. Thus at 27 4:47:50 all 7-9 medical procedures were halted along with medications "allowing a natural 4:47:50 all 7-9 medical procedures were halted along with medications “allowing a natural 28 -5- -5- FIRST AMENDED COMPLAINT FOR DAMAGES FIRST AMENDED COMPLAINT FOR DAMAGES ......... ——_— ddeeaa th”" aass ssttaatteedd iinn DDr.r. N~aarerdeddyd’sy 'nsno otetes.s . A~ll1 tthh1eerra appiieess wweerree ssppeecciififciaclallyly r reemmoovvede,d , aanndd nnoo fifumahheerr eeffffoortrsts w weerree mmaaddee ttoo hheellpp hheerr ssttaayy aalliivvee. . AA ssuubbsseeqquueentn t eexxpperetrt wwititnneessss rreevviieeww ooff tthhee records concluded that it was reasonably probable that Dorothy would have continued living records concluded that it was reasonably probable that Dorothy would have continued living hhaadd sshhee bbeeeenn ttaakkeenn ttoo iinntteennssiivvee ccaarree. . TThhuus,s, iinn aa vveerryy rreeaall sseennssee SShhaaroron,n , LLeeee, , WWayanyen,e , aanndd DDr.r. Nareddy killed her. Nareddy killed her. 14. Sharon had departed the hospital and Dorothy died alone of acute respiratory failure HNWP-IUSOQOOO\ 14. Sharon had departed the hospital and Dorothy died alone of acute respiratory failure at 5:45 p.m. on April 30,2013 , with no family at her bedside. Also, Lee is inexplicably at 5:45 pm. on April 30, 2013, with no family at her bedside. Also, Lee is inexplicably never mentioned as being in the hospital or being in contact with any of the staff in 20 13. never mentioned as being in the hospital or being in contact with any of the staff in 2013. 15. Less than an hour after Dorothy expired, Wayne resurfaced at 6:40 authorizing release 15. Less than an hour afier Dorothy expired, Wayne resurfaced at 6:40 authorizing release of Dorothy's health information and ordered no autopsy to be performed on Dorothy's of Dorothy’s health information and ordered no autopsy to be performed on Dorothy’s corpse. Wayne lacked the authority to make such a decision on her behalf. Indeed, on corpse. Wayne lacked the authority to make such a decision on her behalf. Indeed, on information and belief it is alleged that Wayne also engaged in a pattern of making financial information and belief it is alleged that Wayne also engaged in a pattern of making financial decisions which were not in Dorothy's best interest and which were not ratified by co-trustee decisions which were not in Dorothy’s best interest and which were not ratified by co-trustee Dan Marcum. These decisions were intended not to benefit Dorothy, but rather to save as Dan Marcum. These decisions were intended not to benefit Dorothy, but rather to save as much of his potential inheritance for himself and for his sister Sharon. They include much of his potential inheritance for himself and for his sister Sharon. They include consistently denying or cancelling necessary healthcare for Dorothy because he deemed it consistently denying or cancelling necessary healthcare for Dorothy because he deemed it too expensive for her. I—rI—hA—un—r—yI—lI—tI—pt—hI—INNNNNN too expensive for her. 16. Finally, two days after her death, Dr. Nareddy made retroactive alterations to 16. Finally, two days afier her death, Dr. Nareddy made retroactive alterations to Dorothy's medical records to indicate that the patient's wish was for DNAR (Do Not Dorothy’s medical records to indicate that the patient’s wish was for DNAR (Do Not Attempt Resuscitation) and DNR/DNI (Do Not Resuscitate/Do Not Intubate). All of these Attempt Resuscitation) and DNR/DNI (Do Not Resuscitate/Do Not Intubate). All of these actions either violated St. Agnes Medical Center proper best practices and procedures actions either violated St. Agnes Medical Center proper best practices and procedures regarding the verification of authority to alter health care directives or the medical center regarding the verification of authority to alter health care directives or the medical center simply failed to have such necessary and appropriate best practices and procedural simply failed to have such necessary and appropriate best practices and procedural safeguards in place. On information and belief, St. Agnes Medical Center failed to follow its safeguards in place. On information and belief, St. Agnes Medical Center failed to follow its protocols by allowing Dr. Nareddy to disregard the physician's order for life sustaining protocols by allowing Dr. Nareddy to disregard the physician’s order for life sustaining treatment thereby ignoring the POLST and AHCD. The nursing staff who are hospital treatment thereby ignoring the POLST and AHCD. The nursing staff who are hospital employees found Dorothy not breathing and were unable to even check patient's status employees found Dorothy not breathing and were unable to even check patient’s status because of Dr. Nareddy's instructions (DNAR). The nurses are mandated reporters who because of Dr. Nareddy’s instructions (DNAR). The nurses are mandated reporters who failed to report the crime. According to a subsequent expert analysis, had Dorothy simply failed to report the crime. According to a subsequent expert analysis, had Dorothy simply -6- -5- FIRST AMENDED COMPLAINT FOR DAMAGES .. FIRST AMENDED COMPLAINT FOR DAMAGES .. ...-.--..4.- .4. .... bbeeeenn iinnttuubbaatteedd sshhee wwoouulldd hhaavvee lliivveedd.. PPllaaiinnttiiffff iiss iinnffoorrmmeedd aanndd bbeelliieevveess tthhaatt DDrr.. NNaarreeddddyy iiss aann eemmppllooyyeeee ooff SSt.t. AAggnneess MMedeidcicaall CCeenntteerr aanndd tthhuuss iiss aann aaggeenntt uunnddeerr tthhee lleeggaall ddooccttrriinnee ooff respondeat superior. respondeat superior. 17. Plaintiff is also informed and believes and based thereon alleges that the hospital must 17. Plaintiff is also informed and believes and based thereon alleges that the hospital must have had some written policy or procedure or protocol in place to ensure that complete have had some written policy or procedure or protocol in place to ensure that complete strangers were not making changes to patient's wishes as regards the scope of their strangers were not making changes to patient’s wishes as regards the scope of their \DOOQQUI-kWN lifesaving medical treatment. However neither the hospital nor any of its agents took any lifesaving medical treatment. However neither the hospital nor any of its agents took any appropriate action to follow their own procedures in this case. The result was the death of appropriate action to follow their own procedures in this case. The result was the death of Dorothy Thomas. Dorothy Thomas. 18. Lee was the primary caregiver of Dorothy and had authority to make medical 18. Lee was the primary caregiver of Dorothy and had authority to make medical 10 decisions on her behalf. However he secreted himself and otherwise rendered himself in decisions on her behalf. However he secreted himself and otherwise rendered himself in absentia during those crucial times that she needed his advocacy. The co-successors trustees absentia during those crucial times that she needed his advocacy. The co-successors trustees 12 and co-personal representatives of the family trust after Lee were Wayne Thomas and Dan and co-personal representatives of the family trust after Lee were Wayne Thomas and Dan 13 Marcurn, plaintiffs brother. However Wayne ignored his co-trustee status and engaged in a Marcum, plaintiffs brother. H0wever Wayne ignored his co-trustee status and engaged in a pattern of decision-making on Dorothy's behalf without first consulting with co-trustee Dan. 14 pattern of decision-making on Dorothy’s behalf without first consulting with co-trustee Dan. For a M e re xample, it is alleged on information and belief that Wayne wrote unauthorized 15 For a further example, it is alleged on information and belief that Wayne wrote unauthorized checks to third parties from Dorothy's h d s w ithout first consulting either Lee or co-trustee 16 checks to third parties from Dorothy’s fimds without first consulting either Lee or co-trustee Dan. ' 17 Dan. 19. Dan Marcurn refuses to commence or maintain an elder abuse action at this time 18 19. Dan Marcum refuses to commence or maintain an elder abuse action at this time because of the cost of an attorney. Dan agrees with Alan that Herbert Lee Thomas, Sharon 19 because of the cost of an attorney. Dan agrees with Alan that Herbert Lee Thomas, Sharon Wimberley, Wayne Thomas, Leisure Care LLC, Dr. Chinnapa Nareddy, and St. Agnes 20 Wimberley, Wayne Thomas, Leisure Care LLC, Dr. Chinnapa Nareddy, and St. Agnes Medical Center all committed elder abuse to Dorothy.' Alan does not accuse Dan of elder Medical Center all committed elder abuse to Dorothy. Alan does not accuse Dan of elder 21 abuse. Dan has authorized Alan to commence and maintain this action on behalf of their abuse. Dan has authorized Alan to commence and maintain this action on behalf of their 22 mother. mother. 23 ALLEGATIONS SPECIFIC TO FAIRWINDSILEISURE CARE LLC ALLEGATIQNS SPES 2151;: TO FAIRWINDS/LEISUE CARE LLC 24 1 20. 22 CCR 87455(c)(2) states that residents who require 24 hour skilled nursing cannot 20. 22 CCR 87455(c)(2) states that residents who require 24 hour skilled nursing cannot 25 be admitted into residential care facilities like Fairwinds. Notably, Fairwinds is a non- be admitted into residential care facilities like Fairwinds. Notably, Fairwinds is a non- 26 1 medical facility (and therefore not subject to MICRA). Yet, Dorothy required such care and medical facility (and therefore not subject to MICRA). Yet, Dorothy required such care and 27 1 was still admitted there. V was still admitted there. 28 -7- -7- FIRST AMENDED COMPLAINT FOR DAMAGES FIRST AMENDED COMPLAINT FOR DAMAGES ,_. 2211.. DDoorrootthhyy wwaass iinn ffaacctt "“bbeeddrriiddddeenn"” uunnddeerr TTiittllee 22228877660066 aanndd HHeeaalltthh && SSaaffeeettyy CCooddee $1569.72(e)&(f) of California law. Specifically regulation 87582(d)(2) provides that a §1569.72(e)&(f) of California law. Specifically regulation 87582(d)(2) provides that a resident is "bedridden" who cannot independently transfer to and fiom bed and is unable to resident is “bedridden” who cannot independently transfer to and from bed and is unable to leave the building unassisted for emergency purposes. According to the Physician's Report leave the building unassisted for emergency purposes. According to the Physician’s Report for Residential Care Facilities for the Elderly, Dorothy was non-ambulatory and not for Residential Care Facilities for the Elderly, Dorothy was non-ambulatory and not independently able to transfer from her bed. Under the law, Dorothy was in fact bedridden. independently able to transfer from her bed. Under the law, Dorothy was in fact bedridden. \OOOQONUI-bWN Thus, despite the report not specifically indicating she was bedridden, a clear profit motive Thus, despite the report not specifically indicating she was bedridden, a clear profit motive was at play for both the Thomas family to enroll Lee and Dorothy in less expensive care and was at play for both the Thomas family to enroll Lee and Dorothy in less expensive care and for Fairwinds to receive another patient despite not being equipped or able to handle her. for Fairwinds to receive another patient despite not being equipped or able to handle her. FairwindsLeisure Care LLC violated California regulations in accepting Dorothy. Pursuant Fairwinds/Leisure Care LLC violated California regulations in accepting Dorothy. Pursuant ,_.O to California law under 22 CCR 87637, a resident cannot be cared for if the care exceeds the to California law under 22 CCR 87637, a resident cannot be cared for if the care exceeds the 11 limits of the provider's license, department of health relocation order 87637(2). limits of the provider’s license, department of health relocation order 87637(2). 12 22. Fairwindskeisure Care LLC is required to perform reappraisals in writing pursuant to 22. Fairwinds/Leisure Care LLC is required to perform reappraisals in writing pursuant to 13 87463 whenever there is a change in the medical condition and said reassessment/reappraisal 87463 whenever there is a change in the medical condition and said reassessment/reappraisal must be delivered to the State of California licensing agency within seven calendar days 14 must be delivered to the State of California licensing agency within seven calendar days pursuant to regulation 8006 1 and 8756 1. Here, Dorothy experienced a material change in 15 pursuant to regulation 80061 and 87561. Here, Dorothy experienced a material change in her circumstances when she broke her back on April 13,20 13. Yet no reassessment or 16 her circumstances when she broke her back on April 13, 2013. Yet no reassessment or reporting was done. She was dead fifteen days later. 17 reporting was done. She was dead fifteen days later. 23. Under California 22 CCR 87455, a resident must be removed from the'facility if she 18 23. Under California 22 CCR 87455, a resident must be removed from the‘facility if she requires twenty-four skilled nursing care or intermediate care as specified in the regulations. 19 requires twenty-four skilled nursing care or intermediate care as specified in the regulations. According to a registered nurse, on January 1,201 3, the facility was incapable of providing 20 According to a registered nurse, on January 1, 2013, the facility was incapable of providing care to Dorothy due to her care needs. Still, after admission FairwindsLeisure Care LLC 1 care to Dorothy due to her care needs. Still, afier admission Fairwinds/Leisure Care LLC 21 did nothing to move Dorothy to a facility that court provide a higher level of care. did nothing to move Dorothy to a facility that court provide a higher level of care. 22 24. Under California regulation 87202, a special fue clearance must be issued to the 24. Under California regulation 87202, a special fire clearance must be issued to the 23 facility when someone like Dorothy resides there. But FairwindsLeisure Care LLC had no facility when someone like Dorothy resides there. But Fairwinds/Leisure Care LLC had no 24 such clearance. FairwindsLeisure Care LLC also did not maintain a copy of the admission such clearance. Fairwinds/Leisure Care LLC also did not maintain a copy of the admission 25 agreement with the client and the client's authorized representative in the file for Dokothy as agreement with the client and the client’s authorized representative in the file for Dorothy as 26 required by 22 CCR 80068. No such agreement was maintained andlor it was willfully 1 required by 22 CCR 80068. No such agreement was maintained and/or it was willfully 27 concealed fiom Alan Marcum when he requested the file after presenting HIPPA papers to concealed from Alan Marcum when he requested the file afier presenting HIPPA papers to 28 -8- -8- FIRST AMENDED COMPLAINT FOR DAMAGES FIRST AMENDED COMPLAINT FOR DAMAGES a “mu-4.4 Fairwinds. Fairwinds. 25. Dorothy moved into Fairwinds on January 30,2013 at 11 :30am. Lee did not sign off 25. Dorothy moved into Fairwinds on January 30, 2013 at 11:30am. Lee did not sign off on her intake form until the same day; therefore the form was not used in the admission on her intake form until the same day; therefore the form was not used in the admission appraisal process by Fairwinds. appraisal process by Fairwinds. 26. California law (22 CCR 87303) requires a comfortable temperature must be 26. California law (22 CCR 87303) requires a comfortable temperature must be maintained for residents at all times. Yet on the afternoon of April 29,2013, the day \OOOQO’xUIAWNH maintained for residents at all times. Yet on the afternoon of April 29, 2013, the day Dorothy had to go to the hospital, the air conditioning was not functioning and the room was Dorothy had to go to the hospital, the air conditioning was not fimctioning and the room was ninety five degrees, causing increased edema for Dorothy and an inability to elevate her legs. ninety five degrees, causing increased edema for Dorothy and an inability to elevate her legs. 27. By February 14,2013, it was clear to the physical therapists of Dorothy that she 27. By February 14, 2013, it was clear to the physical therapists of Dorothy that she needed more assistance and care. Both Wayne and Lee chose a level of care well below needed more assistance and care. Both Wayne and Lee chose a level of care well below what Dorothy required. what Dorothy required. 28. On or about February 4,2013, a medical note indicates that Lee is not giving Dorothy 28. On or about February 4, 2013, a medical note indicates that Lee is not giving Dorothy her required medication. Fairwinds did nothing to ensure that she received her medication. her required medication. Fairwinds did nothing to ensure that she received her medication. 29. On January 3 1,20 13, a registered nurse found Dorothy suffering in Fairwinds 29. On January 31, 2013, a registered nurse found Dorothy suffering in Fairwinds because she was not receiving the level of care she required. This is documented in the because she was not receiving the level of care she required. This is documented in the nurse's medical note that Fairwinds is incapable of offering the required level of care. nurse’s medical note that Fairwinds is incapable of offering the required level of care. Dorothy was calling for help ten or more times a day and not receiving adequate assistance. Dorothy was calling for help ten or more times a day and not receiving adequate assistance. 30. As demonstrated by a series of electronic mail correspondences between Alan NNNNNNNNNI—l—II—ll—ID—‘HHD—Ki—‘l—I 30. As demonstrated by a series of electronic mail correspondences between Alan Marcum and the director of health and wellness, Dorothy's falls were concealed from Alan Marcum and the director of health and wellness, Dorothy’s falls were concealed from Alan by FairwindsLeisure Care LLC despite her having confmed that he is authorized to receive by Fairwinds/Leisure Care LLC despite her having confirmed that he is authorized to receive “\IO‘UIJBUJNt-‘OWOOQQMAWNt—‘O medical information. This director cannot dispute or claim that she was unaware of the falls medical information. This director cannot dispute or claim that she was unaware of the falls because she received the prescription for medication for Dorothy arising directly fiom the because she received the prescription for medication for Dorothy arising directly from the falls. falls. 3 1. Fairwinds utilized witnesses for Dorothy's AHCD that worked for and at Fairwinds. 31. Fairwinds utilized witnesses for Dorothy’s AHCD that worked for and at Fairwinds. This is in violation of California law. Probate Code $4674. This is in violation of California law. Probate Code §4674. 32. Fairwinds should have enacted the processeslprocedures for removing Dorothy from 32. Fairwinds should have enacted the processes/procedures for removing Dorothy from the facility pursuant to 22 CCR 87224. However no action was taken. the facility pursuant to 22 CCR 87224. However no action was taken. 33. Fairwinds was required to provide the AHCD to the responding emergency personnel. 33. Fairwinds was required to provide the AHCD to the responding emergency personnel. 22 CCR 85075.3. Fairwinds never did this. 22 CCR 85075.3. Fairwinds never did this. -9- -9- FIRST AMENDED COMPLAMT FOR DAMAGES FIRST AMENDED COMPLAINT FOR DAMAGES ......... 34. The advanced healthcare directive signed on 212 112013 at Fairwinds was concealed ._n 34. The advanced healthcare directive signed on 2/21/2013 at Fairwinds was concealed and never taken to St. Agnes and is the only directive listing Lee and Dan as the only 2 and never taken to St. Agnes and is the only directive listing Lee and Dan as the only medical agents. Dorothy signed a statement, "I want this person to help make my medical medical agents. Dorothy signed a statement, “I want this person to help make my medical 3 decisions." decisions.” 4 35. Fairwinds' facility number is 107201 1 56. The license did not allow any bedridden 35. Fairwinds’ facility number is 107201156. The license did not allow any bedridden 5 people on the second floor where Dorothy resided. The license allows only three bedridden people on the second floor where Dorothy resided. The license allows only three bedridden 6 _ people on the first floor and they must be recovering from surgery or near a status above people on the first floor and they must be recovering from surgery or near a status above 7 bedridden. From 3/29/20 11 to 08/12/20 15 Fairwinds received 15 citations from the bedridden. From 3/29/2011 to 08/12/2015 Fairwinds received 15 citations from the 8 Department of Social Services. Department of Social Services. 9 ALLEGATIONS SPECIFIC TO ST. AGNES MEDICAL CENTER ALLEGATIONS SPECIFIC TO ST. AGNES MEDICAL CENTER 36. On or about January 2 1,2013 , Dorothy filled out a Physician's Order for Life Saving 36. On or about January 21, 2013, Dorothy filled out a Physician’s Order for Life Saving Treatment (POLST). It provided for all life-saving treatment. And she arrived at the Treatment (POLST). It provided for all life-saving treatment. And she arrived at the 1 emergency room on April 29,2013, with it and provided it to the admitting physician at St. emergency room on April 29, 2013, with it and provided it to the admitting physician at St. Agnes, one Hemanth K. Vallapu, the authorized agenthepresentative of St. Agnes, per the Agnes, one Hemanth K. Vallapu, the authorized agent/representative of St. Agnes, per the hospital's own stamp. This evidence demonstrates the hospital was on full notice of her hospital’s own stamp. This evidence demonstrates the hospital was on full notice of her AHCD at all times upon her admission. AHCD at all times upon her admission. - 37. Probate Code $4780 4786 requires St. Agnes and its physicians to honor this 37. Probate Code §4780 - 4786 requires St. Agnes and its physicians to honor this NNNNNNNNNHD—‘h—lI—ll—li—ll—ID—‘i—‘D—l POLST and to make all healthcare decisions in accord with this document. POLST and to make all healthcare decisions in accord with this document. 38. The hospital made her sign another advance AHCD. Again, she indicates that they 38. The hospital made her sign another advance AHCD. Again, she indicates that they are to do everything possible to save her. Under California law codified at Probate Code are to do everything possible to save her. Under California law codified at Probate Code ®\IO\UIJ>UQN'-‘O\O®\IO\LIIJ§WNHO 9473 1, the physicians at the hospital must have obtained a copy of this new document and §4731, the physicians at the hospital must have obtained a copy of this new document and ensured that it was made part of the patient's medical records. St. Agnes date-stamps ensured that it was made part of the patient’s medical records. St. Agnes date-stamps indicate the document was prepared and received by the hospital, and the document on its indicate the document was prepared and received by the hospital, and the document on its face also indicates it is not in conflict with the POLST. Hospitals are required to follow face also indicates it is not in conflict with the POLST. Hospitals are required to follow AHCD orders. Cardoza v. USC Univ. Hospital, (2008) B.195092. AHCD orders. Cardozo v. USC Univ. Hospital, (2008) B.l95092. 39. The back of the POLST states modifLing "based on known desires of patient." 39. The back of the POLST states modifying “based on known desires of patient.” Probate Code $4657 provides that Dorothy wadis presumed to have capacity. Indeed there Probate Code §4657 provides that Dorothy was/is presumed to have capacity. Indeed there is nothing in the records to indicate that Dorothy lacked capacity to execute these documents is nothing in the records to indicate that Dorothy lacked capacity to execute these documents until after she is deceased, at which time Dr. Nareddy enters a cryptic / incomplete / until after she is deceased, at which time Dr. Nareddy enters a cryptic / incomplete / -10- - 1 0- FIRST AMENDED COMPLAINT FOR DAMAGES FIRST AMENDED COMPLAINT FOR DAMAGES a "mum":