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STATE OF MICHIGAN

IN THE 17TH JUDICIAL CIRCUIT COURT

COUNTY OF KENT

BELLAH LEVIN, and

STEVEN LEVIN, Case No. 20-048-CZ

on behalf of the deceased

ADAM ABEL, HON. MARK A. TRUSOCK

Plaintiffs,

SENEX INC and

LINDSAY NUGATOR,

Home for the Aged,

Regular licensed practical nurse,

Defendants.

____________________________________/

PLAINTIFFS’ MOTION FOR SUMMARY DISPOSITION

Plaintiff’s, Bellah Levin and Steven Levin, by their attorney, move for summary disposition under MCR 2.116(C)(10) for the reasons set forth in the accompanying brief.

WHEREFORE, Plaintiffs respectfully request this Honorable Court to grant its motion for summary disposition and award such further relief this Court deems just and reasonable, including costs and attorney fees.

Respectfully submitted,

Hypatia Swanson (P10048)

Dated: April 14, 2020

PROOF OF SERVICE

Kalyn B. Weaver certifies that on the 24th day of March, 2020, she served a copy of the above document in this matter on all counsel of record and parties in pro per at their last known addresses via first class mail by depositing same in a United States Post Office depository in Grand Rapids, Michigan with first class postage fully paid.

____________________________

Kalyn B. Weaver

STATE OF MICHIGAN

IN THE 17TH JUDICIAL CIRCUIT COURT

COUNTY OF KENT

BELLAH LEVIN, and

STEVEN LEVIN, Case No. 20-048-CZ

on behalf of the deceased

ADAM ABEL, HON. MARK A. TRUSOCK

Plaintiffs,

SENEX INC and

LINDSAY NUGATOR,

Home for the Aged,

Regular licensed practical nurse,

Defendants.

____________________________________/

BRIEF IN SUPPORT OF PLAINTIFFS’

MOTION FOR SUMMARY DISPOSITION

TABLE OF CONTENTS

Index of Authorities . . . . . . . . . iii

Introduction . . . . . . . . . . 1

Background . . . . . . . . . . 2

Arguments

1. Defendants engaged in negligence beyond a reasonable doubt . . . 2

A. Negligence requires a duty and breach . . . . . 2

B. Defendant, Ms. Nugator breached this duty and was negligent by failing

provide proper care to Adam Abel. . . . . . 3

2. Defendants engaged in breach of contract beyond a reasonable doubt . . 3

A. In order for a contract or agreement to be breached, there needs to

be a valid, enforceable contract . . . . . . 4

B. Plaintiff’s had fully performed all performance required by the agreement 5

C. Both Defendant’s breached the contract by failing to uphold the

obligations required by the agreement . . . . . 5

3. Defendant engaged in negligence per se beyond a reasonable doubt . . 7

A. Homes for the aged are designed to protect a class of persons from a

particular type of harm . . . . . . 7

B. Senex Inc. is in violation of MCL 333.21313 and failed to give Adam

Abel proper care and treatment . . . . . 7

4. Defendant engaged in medical malpractice beyond a reasonable doubt . . 7

A. Ms. Lindsay Nugator, LPN, deviated from the acceptable standard of

medical care during the care and treatment of Mr. Abel . . 7

Conclusion . . . . . . . . . 9

INDEX OF AUTHORITIES

Caselaw

Adkins v. Annapolis Hosp.,

116 Mich. App. 558, 323 N.W.2d 482 (1982) . . . . 8

Bryant v. Oakpointe Villa Nursing Ctr

471 Mich App 411; 684 N.W.2d 864 (2004) . . . . . 9

Statutes

MCL 333.21313 . . . . . . . . . passim

MCL 333.20106 . . . . . . . . . passim

MCL 333.20201 . . . . . . . . . passim

MCL 500.129 . . . . . . . . . . 4

MCL 600.5838a . . . . . . . . . 8

Court Rules

MCR 2.116 . . . . . . . . . . passim

INTRODUCTION

Plaintiff’s Bellah Levin and Steven Levin seek compensatory damages from the defendants, Senex Inc. and Ms. Lindsay Nugator that stem from their actions of negligence, breach of contract, negligence per se, and medical malpractice. Senex Inc which is an elite ‘home for the aged’ and its employees had a duty to give proper care and treatment to the people residing therein.

This motion for summary disposition is being brought by the Plaintiffs under MCR 2.116(C)(10). Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law. (Id.) The defendants’ claims against the plaintiffs right to judgment as a matter of law contain several faults, as they have not reached the proper areas of law and should be dismissed. Pursuant to that, plaintiffs request this Court to grant their motion for summary disposition, in accordance with MCR 2.116(C)(10).

BACKGROUND

On January 1st, 2019 Adam Abel moved into Senex, an elite home for the aged with a memory care facility. Prior to moving in, Senex required that Adam Abel have a full medical examination so that they could tailor his care to his needs. Mr. Abel met with his primary care physician, Dr. Consano and a full examination was conducted. Mr. Abel was found to suffer from Alzheimer’s disease/dementia and severe muscular atrophy. Dr. Consano concluded that Mr. Abel would require constant supervision, short walks with supervision, a wheelchair for moving from medium to long distances, surroundings that are “fall-safe” because Mr. Abel is a fall hazard, a fall monitor that is to be worn at all times, and access to an attendant and wheelchair at all times. These were all submitted to Senex’s chief wellness director, Ms. Nugator LPN. Ms. Nugator informed plaintiff, Bellah Levin that everything Dr. Consano recommended would be provided for as it is part of Senex’s resident agreement/contract.

Throughout his stay at Senex, Mr. Abel’s needs were not met, and the contract was breached which resulted in several injuries and a couple hospital visits for Mr. Abel which ultimately resulted in his death. (Complaint ¶¶ 2-4). The defendants contributed to the death of Adam Abel through multiple acts of negligence, breach of contract, negligence per se, and medical malpractice. Rather than follow the contract and the law of Michigan’s ‘homes for the aged’ the defendants chose to ignore them and in doing so cost Mr. Abel his life.

Instead of settling with the Plaintiffs and taking sole responsibility for their actions, the defendants believe they are not liable under Michigan law. For the reasons set forth below, plaintiffs’ claims prevail as a matter of law.

ARGUMENT

1. Defendants engaged in negligence beyond a reasonable doubt

A. Negligence requires a duty and a breach of said duty

In the state of Michigan, a ‘home for the aged’ is defined as “a supervised personal care facility at a single address, other than hotel, adult foster care facility, hospital, nursing home, or county medical care facility that provides room, board, and supervised personal care to 21 or more unrelated, nontransient, individuals 55 years of age or older .”

Senex Inc. in the state of Michigan, qualifies as a ‘home for the aged.’ Since it does qualify, Senex Inc. has a duty to the people who reside there. The rights of residents in a ‘home for the aged’ is defined in a Michigan statute that states “a patient or resident is entitled to receive adequate and appropriate care, and to receive from the appropriate individual within the health facility or agency, information about his or her medical condition, proposed course of treatment, and prospects for recovery, in terms that the patient or resident can understand, unless medically contraindicated as documented in the medical record by the attending physician, a physician’s assistant with whom the physician has a practice agreement, or an advanced practice registered nurse .” Mr. Abel was not subject to “adequate and appropriate care” during his time at Senex Inc which eventually led to his death. Senex Inc. and its employees breached this duty when they were negligent and failed to properly give Mr. Abel “adequate and appropriate care.”

B. Defendant, Ms. Nugator breached this duty and was negligent by failing to provide proper care to Adam Abel.

Ms. Lindsay B. Nugator is a registered licensed practitioner nurse who is the chief wellness director of Senex Inc. As a wellness director she is responsible for the health and safety of the people she is a director over and is responsible in making sure that the facility’s standards of care are met and that the facility is adhering to applicable laws and regulations. When Mr. Abel was first admitted to Senex Inc. plaintiff Bellah Levin submitted a full body examination of her father, she was then assured by Ms. Nugator that everything that was recommended in the examination would be provided to Mr. Abel and that he would receive the proper care that he needed. Ms. Nugator breached this and was negligent in the care of Mr. Abel which can be seen when she; failed to report incidents of Mr. Abel to his daughter Bellah Levin, failed to provide Mr. Abel with a ‘fall safe’ room; failed to provide Mr. Abel with a fall monitor for over a month into his stay; failed to make sure Mr. Abel was constantly provided the proper supervision he needed; failed to provide Mr. Abel with easy access to a wheelchair at all times; and failed to instruct staff and caretakers on proper etiquette and patient care and treatment.

2. Defendants’ engaged in breach of contract beyond a reasonable doubt

A. In order for a contract or agreement to be breached, there needs to be a valid, enforceable contract

In the state of Michigan, a ‘medical retainer agreement’ is defined as “a contract between a health care provider and an individual patient or his or her legal representative in which the health care provider agrees to provide routine health care services to the individual patient for an agreed upon fee and period of time .”

Senex Inc. agreed into such a contract when Mr. Abel moved in as a resident. Before moving in, plaintiff Bellah Levin was asked to submit a medical examination of Mr. Abel so that Senex Inc. could tailor to his needs and provide him with the proper care he needed. Ms. Levin was informed that this was a part of Senex’s agreement/ contract. Senex Inc. once in the possession of Mr. Abel’s examination was then responsible for upholding their side of the agreement/contract. Senex Inc. breached this by failing to provide Mr. Abel with proper routine health care services. Failing to provide Mr. Abel with proper routine health care services resulted in six injuries, two hospital visits and an extreme surgery that resulted from one of the injuries that ultimately led to his death.

As stated above, in the state of Michigan a ‘medical retainer agreement’ is defined as “a contract between a health care provider and an individual patient or his or her legal representative in which the health care provider agrees to provide routine health care services to the individual patient for an agreed upon fee and period of time .”

As required by Senex Inc. which is a ‘home for the aged’ under Michigan law and so therefore a health care provider, plaintiff Bellah Levin submitted a full medical examination that had been done by their trusted physician who had been seeing Mr. Abel for many years to the chief director of wellness at Senex Inc, Ms. Nugator. Ms. Nugator then informed Ms. Levin that everything would be provided for in order to properly care for Mr. Abel. Plaintiff also paid in full the cost of living at the Senex facility every month. Doing all of this made their agreement a valid, enforceable contract.

B. Plaintiff had fully performed all performance required by the agreement

In order for a person to be admitted at Senex Inc. there was a requirement of a full medical examination on top of a monthly payment. The full medical examination that was required by Senex Inc. was to ensure that their residents were getting the upmost care that they required. The monthly price was to ensure they could obtain the proper equipment required to care for their residents. These were two things that the Plaintiffs were required to do in order to perform what is required to enforce the contract. Bellah Levin took it upon herself to make sure that these two requirements were fulfilled. Ms. Levin had a full medical examination performed on Mr. Abel and submitted it to Ms. Nugator who then informed Mr. Levin that everything that had been recommended would be provided to Mr. Abel. Ms. Levin also never failed to pay the monthly rent needed in order to reside at Senex Inc.

C. Both Defendant’s breached the contract by failing to uphold the obligations required by the agreement

In Michigan, “the owner, operator, and governing body of a home for the aged are responsible for all phases of the operation of the home and shall assure that the home maintains an organized program to provide room and board, protection, supervision, assistance, and supervised personal care for its residents .” Senex Inc. had the responsibilities and obligation to uphold the requirements in the agreement/contract.

Senex Inc. breached this by failing to provide Mr. Abel with proper supervised personal care and proper routine health care services. Failing to provide Mr. Abel with proper routine health care services and proper supervised personal care resulted in six injuries, two hospital visits and an extreme surgery that resulted from one of the injuries that ultimately led to his death. Senex Inc. also breached contract when they failed to make sure that their employees were adhering to the contract as well.

Under the same statute it also states that “staff and facility shall be trained and involved in the implementation of the policy created by the home for the aged and its residents.” (Id.) Senex Inc failed to properly instruct and train their employees to properly care for the residents and adhere to the contract. This failure to properly instruct and train their employees led to a breach in contract and in doing so put all of the residents in Senex Inc. at risk.

Ms. Lindsay Nugator also breached this contract by failing to provide Mr. Abel with proper care and treatment. Ms. Nugator was the chief wellness director at Senex Inc. and with that role comes the responsibility of the health and safety of the people she is a director over and is responsible in making sure that the facility’s standards of care are met and that the facility is adhering to applicable laws and regulations. When she was handed the full medical examination of Mr. Abel from Bellah Levin she assured Ms. Levin that everything that was recommended in the report would be provided for as it is part of the agreement/contract. Ms. Nugator breached the contract by failing to provide Mr. Abel with adequate and appropriate care under Michigan Law. Ms. Nugator also breached the contract when she failed to instruct and train the employees to properly care for the residents at Senex Inc. Ms. Nugator breach of contract can be seen when she; failed to report incidents of Mr. Abel to his daughter Bellah Levin, failed to provide Mr. Abel with a ‘fall safe’ room; failed to provide Mr. Abel with a fall monitor for over a month into his stay; failed to make sure Mr. Abel was constantly provided the proper supervision he needed; failed to provide Mr. Abel with easy access to a wheelchair at all times; and failed to instruct staff and caretakers on proper etiquette and patient care and treatment. With the defendants breaching this contract, summary disposition is warranted under MCR 2.116(C)(10).

3. Defendant engaged in negligence per se beyond a reasonable doubt

A. Homes for the aged are designed to protect a class of persons from a particular type of harm

As stated previously, “the owner, operator, and governing body of a home for the aged are responsible for all phases of the operation of the home and shall assure that the home maintains an organized program to provide room and board, protection, supervision, assistance, and supervised personal care for its residents.” (Id.) Senex Inc. had the responsibility under Michigan law to protect a class of persons from a particular harm. While in the care of Senex Inc. Mr. Abel experienced six injuries, had to go on two hospital visits, and had to undergo an intensive life-threatening surgery while ultimately resulted in his death.

B. Senex Inc. is in violation of MCL 333.21313 and failed to give Adam Abel proper care and treatment

Everything that Mr. Abel needed in order to receive proper care and treatment while living in Senex Inc. was stated in his medical examination. Senex Inc. was negligent and failed to provide Mr. Abel with the care and treatment that was stated in the examination, in doing so they failed to protect him from particular harm which in the end resulted in his death. Senex Inc. violated Michigan law when they failed to protect a class of persons from a particular harm.

4. Defendant engaged in medical malpractice beyond a reasonable doubt

A. Ms. Lindsay Nugator, LPN, deviated from the acceptable standard of medical care during the care and treatment of Mr. Abel

Ms. Lindsay Nugator is also a registered licensed practical nurse. In Michigan there is a statute that states that “a licensed health care professional means an individual licensed or registered under article 15 of the public health code and has engaged in the practice of his or her health profession in a sole proprietorship, partnership, professional corporation, or other business entity .” The responsibilities of that are generally to observe patients or residents’ health and to communicate with the patients and their families as well as provide routine care for the patients or residents.

Under another Michigan statute, it states that “the staff and facility shall be trained and involved in the implementation of the policy .” Ms. Nugator failed to uphold the responsibilities of an LPN and under the Senex Inc. contract. She failed to provide Mr. Abel with proper routine health care services and proper supervised personal care which then resulted in him obtaining six injuries, having to go on two hospital visits and an extreme surgery that resulted from one of the injuries that ultimately led to his death. In Adkins v. Annapolis Hosp the Court of Appeals held that medical malpractice “…has been defined as the failure of a member of the medical profession, employed to treat a case professionally, to fulfill the duty to exercise that degree of skill, care and diligence exercised by members of the same profession, practicing in the same or similar locality, in the light of the present state of medical science. ” Ms. Nugator deviated from the acceptable standard of medical care during the treatment of Mr. Abel as seen in his numerous injuries and untimely death.

Medical malpractice also requires proof of negligence and this can be seen through multiple examples of the treatment Ms. Nugator gave to Mr. Abel. Ms. Nugator failed to properly implement the care that was needed by Mr. Abel stated in his medical examination. In a case similar to this, the defendant was found to be liable of medical malpractice by failing to take adequate corrective measures after finding the plaintiff entangled in her bedding the day before she died of asphyxiation the next day because of the same reason. (See Bryant v. Oakpointe Villa Nursing Ctr, 471 Mich App. 411, 684 N.W.2d 864 (2004)). The plaintiff’s failure to train and educate their employees of proper care led them to be liable of medical malpractice. (Id.) Similarly, when Mr. Abel’s room was supposed to be made fall safe, the employees couldn’t properly set up the bed rails, so they ended up not properly putting them on. This resulted in Mr. Abel falling numerous times and Ms. Nugator never did anything to fix his room to be properly fall safe and she failed to train her employees on how to set up a fall safe room. This is just one example of how Ms. Nugator was negligent and deviated from the acceptable standard of medical care during the treatment and care of Adam Abel.

CONCLUSION

The motion for summary disposition as requested by the Plaintiffs should be granted for several reasons. Both Defendants engaged in several acts that without a reasonable doubt constitute as negligence, they also failed to perform all the actions and requirements in the contract regarding how to properly care for and tailor to Mr. Abel’s needs. Defendant Ms. Nugator also engaged in medical malpractice and defendant Senex Inc engaged in negligence per se. All of these acts eventually added up and caused the death of Adam Abel.