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29.c.Budgeting, including controlling the amount of funds available forstaffing facilities;d.Personnel management, including hiring and firing, or havingauthority to hire and fire, the supervisory and managementpersonnel in each facility;e.Supervision of management, care providers, and staff in each facility,including compliance with federal and state regulations;f.Employment, such as setting pay scales, shifts, and time and vacationpolicies;g.Systems for training, monitoring, and supervising staff;h.Medical record systems and management;i.Financial control systems, including budgeting and paymentprocessing;j.Marketing, including setting the image and expectations residentsand their family should expect at the facility, and even the name ofthe facility;k.Reporting procedures, including reporting to Medicare as toindividual resident care and facility-wide issues.As the result of this control, Defendants Blue Ash Healthcare, LLC,Hillstone Healthcare, Inc., HC Consulting/Management, LLC make decisions that affectthe day-to-day care of Cooper’s Trace Nursing and Rehabilitation residents, such as theresources available for providing nursing staff and care to residents like Holly Howes,meaning they are responsible for the foreseeable harm that results from careless decisionswhile voluntarily exercising that control.Reporting Data30.Cooper’s Trace Nursing and Rehabilitation is required to report significantamounts of data to the federal agency that oversees operations of nursing homes receivingfederal or state funding, the Centers for Medicare and Medicaid Services, or “Medicare.”10

31.The data Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc.,HC Consulting/Management, LLC submit to Medicare regarding its facility includes dataon its residents (numbers, care needs, and bed days), its finances, and its nurse andnursing aide staffing levels as compared to resident care needs.32.This data is certified correct by the Defendants a Blue Ash Healthcare, LLC,Hillstone Healthcare, Inc., and HC Consulting/Management, LLC and / or submittedunder penalty of perjury and / or civil or criminal penalties.33.Medicare uses some of this data submitted by Defendants Blue AshHealthcare, LLC, Hillstone Healthcare, Inc., HC Consulting/Management, LLC toproduce its nursing home 5-star rating system, also known as “Nursing Home Compare.”Nursing Home Resident Care Needs and Staffing Levels(MDS and RUG Scores)34.Every nursing home receiving Medicare or Medicaid funding—the clearmajority of nursing homes, including Cooper’s Trace Nursing and Rehabilitation andothers operated and / or controlled by Defendants Blue Ash Healthcare, LLC, HillstoneHealthcare, Inc., HC Consulting/Management, LLC—is required to provide detailedinformation regarding the health status, care and treatment, and services provided toeach resident in the facility using a questionnaire called the Minimum Data Set, orMDS. This evaluation is done for all nursing home residents regardless of whether theircare is being paid for by Medicare.35.Nursing homes like Cooper’s Trace Nursing and Rehabilitation are requiredto evaluate every resident using the Minimum Data Set questionnaire shortly after thetime of admission, every 90 days thereafter, when a resident has a significantimprovement or decline in health (physical, mental, or psychosocial), and upon discharge.11

36.Based on this Minimum Data Set, each resident’s individual care needs(called “acuity level”) are assigned into a group signifying how much nursing or staff carethe resident requires, called a Resource Utilization Group score, or RUG score.37.Each resident’s Resource Utilization Group score is contained in section Zof their Minimum Data Set evaluations, meaning the total care needs of the residents inany facility at a specific time is available by totaling the residents’ Resource UtilizationGroup scores from their Minimum Data Set evaluations.38.Medicare has commissioned and made available to every nursing homestudies and data showing the number of minutes of nursing and nursing aide care aperson at a specific RUG level should be expected to require, which Medicare calls“expected staffing.”39.When these Resource Utilization Group scores are combined for allresidents in a nursing home facility, the nursing home knows exactly how many minutesof nursing and nursing aide care should be provided, on average, to meet the expectedcare needs of their residents.Misleading Advertising40.In an effort to persuade the families of patients with memory care disordersto become customers, Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc.,and HC Consulting/Management, LLC make promises to the families of such potentialresidents that they will provide a level of care that they know they are incapable ofproviding, including touting their expertise in patient safety issues concerning residentsrequiring skilled nursing care.12

41.The intent and outcome of this misleading practice is to cause residents,their families, and external care providers to believe the nursing facility is much betterstaffed than it is.42.Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HCConsulting/Management, LLC do not inform families of potential residents of thefollowing:a. Staffing Ratingsi. Cooper’s Trace Nursing and Rehabilitation is a 1-star facilityaccording to Medicare’s staffing ratings, meaning that it hasthe worst rating for nursing care staffing possible.b. Registered Nurse Staffingi. The national and state average for registered nursing timeavailable in a particular day for each resident is 40 and 38minutes, respectively.This means that for the averagenursing home facility in Ohio or across the country, if you takethe total amount of hours registered nurses are paid to workduring a given day and divide that time by the number ofresidents in the facility, there would be approximately 50minutes of time registered nurses could spend with eachresident per day.ii. But at Cooper’s Trace Nursing and Rehabilitation there is onlyon average 18 minutes of registered nursing time available perday for each resident.13

iii. The amount of registered nursing time available at Cooper’sTrace is actually less than 18 minutes per resident each daybecause these figures take into account all time nurses arebeing paid—including breaks, vacations, holidays, andpersonal time off—and is not limited to the time they areactually at Cooper’s Trace providing nursing care.c. Nursing Assistant and Aide Staffingi. Cooper’s Trace Nursing and Rehabilitation also falls far shortin the amount of nursing assistant or aide time available forits residents. The national and state average for nursingassistant or nursing aide time per resident is 2 hours and 19minutes (national) and 2 hours and 6 minutes (Ohio) per day.This means that if you take the total amount of time allnursing assistants or aides worked per day and divided it bythe total number of nursing home residents in the facility, thestate and national average is close to two-and-a-quarter hoursof nursing assistant / aide time available for each resident perday.ii. But at Cooper’s Trace Nursing and Rehabilitation there is only1 hour and 37 minutes of available nursing assistant / aidetime available per resident per day—approximately half thenational average.d. In addition to having severely deficient staffing levels, DefendantsBlue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HC14

Consulting/Management, LLC also fail to mention that the amountthey pay those staff members is nearly 30-40% less than the industryaverage meaning not only is Cooper’s Trace severely understaffed,the available staff is underpaid and overburdened.43.The intent and outcome of this misleading practice is to drastically limit thebudget and overhead needed to run a safe facility in order to maximize profits and syphonresources at the expense of patient safety.Systemic Understaffing and Holly Howes’s Care44.Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HCConsulting/Management, LLC failed to ensure, through their operational, budgetary,consultation and managerial decisions and actions, that Cooper’s Trace Nursing andRehabilitation was sufficiently staffed to meet the individual needs of Holly Howes.45.Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HCConsulting/Management, LLC engaged in a systemic practice to understaff its nursinghome facility to maximize its profits at the expense of its residents’ care.15

46.This lack of sufficient staff directly resulted in Holly Howes not receivingbasic and necessary services to prevent, among other things, neglect leading to bed sores,sepsis, and her death.Centers for Medicare and Medicaid Services, the Federal Agency that regulatesnursing homes, has determined that Cooper’s Trace Nursing and Rehabilitation is 1Star or Much Below Average overall as a nursing home and for staffing16

According to Centers for Medicare and Medicaid Services, Cooper’s Trace Nursingand Rehabilitation is much below Ohio and National averages for staffing in allcategories that are measured, including nurse, nurse aide, and therapy time.Defendants’ Negligence and Recklessness with Holly Howes47.Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HCConsulting/Management, LLC received Holly Howes as a nursing home resident in July2017.48.Defendants Blue Ash Healthcare, LLC, Hillstone Healthcare, Inc., HCConsulting/Management, LLC agreed to accept Holly Howes into their facility andprovide care to her in exchange for monetary payment.49.Holly Howes had a disorder called multiple sclerosis50.Holly Howes was 41 years old when these events happened.51.Defendants knew that Holly Howes had multiple sclerosis.17

52.People with multiple sclerosis are known to be at an increased risk of skinbreakdowns and pressure sores because of limitations in movement.53.Because of these numerous risk factors and prior falling incidents, HollyHowes required additional supervision and precautions to prevent additional falls andfall-related injuries.54.Holly Howes was suffered numerous, large infected bedsores while underthe care of Cooper’s Trace, including Stage 4 ischial ulcer, sacral ulcer, and ulcers to herhips, buttocks, and heels.A bedsore found on Holly’s buttocks on May 10, 2018 at Cooper’sTrace Nursing and Rehabilitation.18

A photo of the pressure ulcer on Holly’s buttocks on May 18, 2018 atCooper’s Trace Nursing and Rehabilitation.55.While a resident of Cooper’s Trace Nursing and Rehabilitation, Holly Howessuffered osteomyelitis—an infection of the bone—in her sacrum and trochanter becauseof the infected bedsores.56.While a resident of Cooper’s Trace Nursing and Rehabilitation, Holly Howeswas permitted to suffer sepsis, a potentially deadly inflammatory response to an infection.57.While a resident of Cooper’s Trace Nursing and Rehabilitation, Holly Howeswas permitted to become protein-calorie malnourished, which both causes bedsores andprevents healing.19

58.Holly Howes was prescribed methadone for her severe pain. Defendantswithheld and failed to deliver her medication causing her to be in severe, unnecessarypain.59.Holly Howes was permitted to fall several times, including on April 20,2018, when she was allowed to fall and remain on the floor for approximately 5 hoursbefore Cooper’s Trace Nursing and Rehabilitation staff tended to her.60.Co-Defendants Robert Bogli, D.O., Stephanie Siegrest, NP, and ArvindModawal, M.D. were medical and nursing providers responsible for providing medicaland nursing care within the standard of care while Holly Howes was a resident and whodid, for the reasons stated previously and as discovered in this lawsuit, failed to delivercare to Holly Howes that was consistent with the standard of care.61.Holly Howes suffered mental and physical pain suffering as a direct andproximate result of Defendants’ failure to provide adequate care.62.Holly Howes died on July 16, 2018 as a direct and proximate result ofDefendants’ failure to provide adequate care.FIRST CAUSE OF ACTION(SURVIVORSHIP / NEGLIGENCE / RECKLESSNESS)63.Plaintiff incorporates all other paragraphs of this Complaint as if fullyrewritten herein.64.Holly Howes depended on the Defendants, and their respective nursing andmedical staff, for medical and nursing care, treatment, evaluation, and assistance.65.The Defendants, including their medical and nursing staff, failed to provideproper care and treatment to Holly Howes, which they knew or should have known sherequired, resulting in her injury and death.20

66.The Defendants’ failure to provide proper care and treatment included, butis not limited to:l. Choosing to put inadequate prevention and response interventions in placeto prevent falling and injuries, including deaths;m. Choosing to provide inadequate resident observation, supervision, andmonitoring;n. Choosing to provide improper training to staff members regarding fallprevention and response;o. Choosing to provide too few, and / or underqualified nursing staff membersfor the resident needs at the facility to protect and provide adequate care toresidents like Holly Howes;p. Choosing to not provide accurate, adequate, or timely information to HollyHowes’s family;q. Choosing to violate state and federal regulations governing care and staffinglevels in nursing home facilities by which residents like Holly Howes are amember of the class of persons intended to be protected from injuries likeshe suffered;r. Choosing not to timely report to a physician significant changes in Plaintiff’sDecedent’s condition;s. Choosing not to carry out the instructions of Plaintiff’s Decedent’sphysician;t. Choosing not to adequately, timely and consistently prevent, assess, andtreat Plaintiff’s Decedent’s risk for falls;u. Choosing not to adequately, timely and consistently prevent, assess, andtreat Plaintiff’s Decedent’s risk for wounds;v. Choosing not to adequately, timely and consistently prevent, assess, andtreat Plaintiff’s Decedent’s risk for infections;w. Choosing not to timely transfer Plaintiff’s Decedent to a facility that couldprovide adequate care;x. Choosing not to have and/or implement appropriate policies andprocedures regarding the prevention, assessment and treatment ofresidents at risk for falls;21

y. Choosing not to have and/or implement appropriate policies andprocedures regarding the prevention, assessment and treatment ofresidents at risk for wounds;z. Choosing not to have and/or implement appropriate policies andprocedures regarding the prevention, assessment and treatment ofresidents at risk for infections;aa. Choosing not to timely carry out and follow standing orders, instructionsand protocol regarding the prevention of falls;bb. Choosing not to timely carry out and follow standing orders, instructionsand protocol regarding the prevention of wounds;cc. Choosing not to timely carry out and follow standing orders, instructionsand protocol regarding the prevention of infections;dd. Choosing not to have and/or implement appropriate policies andprocedures regarding the prevention, assessment and treatment ofresidents at risk for falls;ee. Choosing to withhold and / or otherwise not provide medications that wereordered for pain; andff. Such other acts or omissions described in this Complaint or discoveredduring litigation.67.The Defendants and their medical and nursing staff provided care to HollyHowes that fell below the standard of care expected of medical care and nursing homeorganizations, under the same or similar circumstances.68.The departures from the standard of care included violating sections ofFederal Regulations, 42 C.F.R. § 483 et seq., and Ohio Administrative Code sections, OAC3701-17 et seq.69.As a direct and proximate result of the negligence described above, HollyHowes sustained permanent injury and loss including, but not limited to, conscious painand suffering, disability, and her untimely and wrongful death.70.WHEREFORE, Plaintiff demands judgment against the Defendants, jointly,in an amount more than Twenty-Five Thousand Dollars ( 25,000.00), for conscious pain22

and suffering, loss of enjoyment of life, together with costs of suit, attorney’s fees andexpenses, punitive and exemplary damages, and any other relief to which the decedentmay be entitled to and / or that the court finds is appropriate and / or equitable.SECOND CAUSE OF ACTION(WRONGFUL DEATH)71.Plaintiff incorporates all other paragraphs of this Complaint as if fullyrewritten herein.72.Plaintiff brings this Cause of Action pursuant to Ohio’s Wrongful DeathStatute, Ohio Revised Code section 2125 et seq., for the benefit of Holly Howes’s heirs andnext of kin who have suffered loss and damage due to Holly Howes’s wrongful anduntimely death.73.As a direct and proximate result of the negligence / recklessness describedabove, Holly Howes sustained physical injuries that caused her untimely and wrongfuldeath.74.Plaintiff and Holly Howes’s additional next-of-kin suffered damages as setforth in the Ohio Wrongful Death statute, including mental anguish and grief, medicaland funeral expenses, and loss of decedent’s support, services, society andcompanionship.75.WHEREFORE, Plaintiff demands judgment against the Defendants, jointly,in an amount more than 25,000.00 to compensate the decedent’s next of kin and heirsat law, together with costs of suit, attorney’s fees and expenses, exemplary damages, andany other relief the court finds is appropriate and / or equitable.23

THIRD CAUSE OF ACTION(NURSING HOME RESIDENT RIGHTS VIOLATION R.C. 3721.13)76.Plaintiff incorporates all other paragraphs of this Complaint as if fullyrewritten herein.77.Defendants, directly or through their employees or agents, violated HollyHowes’s rights as a resident of the Defendants’ facilities, as enumerated in Ohio RevisedCode section 3721.13, including, but not limited to, the right to adequate and appropriatemedical treatment and nursing care.78.These violations constitute negligence per se and give rise to a statutorycause of action.79.As a direct and proximate result of Defendants’ violations of R.C. 3721.13,Holly Howes endured conscious pain and suffering and disability, incurred medicalexpenses, suffered her untimely death, and was otherwise harmed.80.WHEREFORE, Plaintiff demands judgment against the Defendants, jointly,in an amount in excess of 25,000.00, together with costs of suit, attorney’s fees andexpenses, punitive and exemplary damages, and any other relief to which the court findsis appropriate and / or equitable.FOURTH CAUSE OF ACTION(VIOLATION OF R.C. 3701.74(C))81.Plaintiff brings this Cause of Action against Blue Ash Healthcare, LLC,Hillstone Healthcare, Inc., and HC Consulting/Management, LLC only.82.Plaintiff incorporates all other paragraphs of this Complaint as if fullyrewritten herein.24

83.Sandra Howes is the duly appointed Administrator of the Estate of

Jun 07, 2019 · THE ESTATE OF HOLLY MARIE HOWES, by Sandra L. Howes, Estate Representative c/o Eadie Hill Trial Lawyers 3100 East 45th St., Suite 400 Cleveland, Ohio 44127 Plaintiff, vs. BLUE ASH HEALTHCARE, LLC DBA BLUE ASH CARE CENTER AKA COOPER’S TRACE NURSING AND REHABILITATION c/o