Pace v. Medco Franklin RE, LLC et al

Filing 44

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 6/24/2013 re 10 Motion for Partial Judgment on the Pleadings. For all of the foregoing reasons the motion is GRANTED IN PART AND DENIED IN PART. Plaintiff Patricia Pace's negligence per se claim based on federal statutes and regulations is DISMISSED. Likewise, her causes of action under KRS Chapters 209 and 216, save for those rights expressly enumerated in KRS § 216.515, are also DISMISSED. Her claim brought pursuant to KRS § 530.080 may proceed. cc: Counsel (CDF)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCY
BOWLING GREEN DIVISION
CASE NO. 1:12-CV-00132
PATRICIA ANN PACE, AS
ADMINISTRATRIX OF THE
ESTATE OF SARAH ELIZABETH
PACE, DECEASED

PLAINTIFF

v.
MEDCO FRANKLIN RE, LLC, D/B/A/
MEDCO CENTER OF FRANKLIN;
MEDCO FRANKLIN RE, LLC;
EXTENDICARE HEALTH SERVICES,
INC., and JOHN DOES 1 THROUGH 5,
UNKNOWN DEFENDANTS

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the Defendants’ motion for partial judgment on
the pleadings. (Defs.’ Mot., Docket Number (“DN”) 10.) The Plaintiff responded. (Pl.’s Resp.,
DN 14.) The Defendants replied. (Defs.’ Reply, DN 27.) Fully briefed, this matter is ripe for
adjudication. For all of the following reasons, the Defendants’ motion is GRANTED IN PART
AND DENIED IN PART.
I.
Plaintiff Patricia Pace (“Pace”) is the administratrix of the estate of Sarah Elizabeth Pace
(“Sarah”). In that capacity Pace asserts various causes of action, including negligence, medical
negligence, corporate negligence, violation of long term care resident’s rights, wrongful death,
and other statutory and regulatory violations. Pace brings these claims against the Medco Center
of Franklin; Medco Franklin RE, LLC; and Extendicare Health Services, Inc. (“Nursing Home
Defendants”).

She also brings those claims against John Does 1 through 5 (referred to

collectively with the Nursing Home Defendants as “Defendants”). These causes of action arise
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from Sarah’s stay and treatment at a facility owned and operated by the Nursing Home
Defendants in Simpson County, Kentucky. Sarah was a resident of the facility from September 2
until October 18, 2011. On that day, she was transferred from the facility to the Medical Center
at Franklin where she died on October 22, 2011.
The Nursing Home Defendants’ present motion does not seek dismissal of every cause of
action asserted by Pace. Rather, the Nursing Home Defendants, pursuant to Federal Rule of
Civil Procedure 12(c), seek judgment on the pleadings for Pace’s causes of action asserted
pursuant to KRS § 446.070, Kentucky’s negligence per se statute. Pace’s negligence per se
claims are divided into three broad categories. First, on the “federal claim,” she alleges that the
Nursing Home Defendants were per se negligent for violation of “the applicable federal laws and
regulations governing the certification of long-term care facilities under Titles XVIII or XIX of
the Social Security Act.” (Compl., DN 1-1, ¶¶ 23(c), 42(e), 43.) Second, on the “criminal
claim,” she asserts negligence per se for violation of KRS § 530.080, a provision of Kentucky’s
penal code creating a misdemeanor for “endangering the welfare of an incompetent person.” (Id.
at ¶ 23(b).) Finally, on the “state claim,” Pace charges that the Nursing Home Defendants were
per se negligent for violating Chapters 209 and 216 of the Kentucky Revised Statutes. (Id. at ¶¶
23(a), 23(c), 40-44.) Chapter 209 contains various statutes relating to the “Protection of Adults,”
while Chapter 216 addresses the licensing requirements for long-term care facilities and
establishes the rights of residents in those facilities. In all, the Nursing Home Defendants argue
that Pace has no cause of action under any of these categories and that any claim based on
negligence per se must be dismissed.
II.
After the pleadings are closed, a party may move for judgment on the pleadings pursuant

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to Federal Rule of Civil Procedure 12(c). A district court considers a Rule 12(c) motion under
the same standard governing a Rule 12(b)(6) motion to dismiss for failure to state a claim. “For
purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the
pleadings of the opposing party must be taken as true, and the motion may be granted only if the
moving party is nevertheless clearly entitled to judgment.” JPMorgan Chase Bank, N.A. v.
Winget, 510 F.3d 577, 582 (6th Cir. 2007) (quoting Southern Ohio Bank v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)). While the allegations of the complaint
are the primary focus in assessing a Rule 12(c) motion, “matters of public record, orders, items
appearing in the record of the case, and exhibits attached to the complaint[ ] also may be taken
into account.” Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (quoting Amini v.
Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)). Legal conclusions and unwarranted factual
inferences need not be accepted as true. JPMorgan, 510 F.3d at 582 (citing Mixon v. Ohio, 193
F.3d 389, 400 (6th Cir. 1999)). “A Rule 12(c) motion ‘is granted when no material issue of fact
exists and the party making the motion is entitled to judgment as a matter of law.’” Id. (quoting
Paskvan v. City of Cleveland Civil Serv. Comm'n, 946 F.2d 1233, 1235 (6th Cir.1991)).
III.
Kentucky’s negligence per se statute provides that “[a] person injured by the violation of
any statute may recover from the offender such damages as he sustained by reason of the
violation, although a penalty or forfeiture is imposed for such violation.” KRS § 446.070. The
Nursing Home Defendants contend that Pace has no cause of action for the federal, criminal, and
state negligence per se claims outlined above. The Court considers each category separately.
1.
First, the Nursing Home Defendants argue that violation of the federal statutes and

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regulations alleged in the complaint are not actionable under Kentucky’s negligence per se
statute. The Court agrees. As an initial matter, it appears that Pace effectively conceded this
point as she did not oppose the Nursing Home Defendants’ argument on the federal claim in her
response brief. Even had she responded, dismissal of the federal claim would still be appropriate
because “Kentucky courts have held that the ‘any statute’ language in KRS 446.070 is limited to
Kentucky statutes and does not extend to federal statutes and regulations . . . .” Young v. Carran,
289 S.W.3d 586, 589 (Ky. Ct. App. 2008) (emphasis added) (citing T&M Jewelry, Inc. v. Hicks,
189 S.W.3d 526, 530 (Ky. 2006)); see Cummings v. BIC USA, Inc., No. 1:08-CV-00019, 2011
WL 1399768, at *3 (W.D. Ky. April 13, 2011). “The Kentucky General Assembly did not intend
for KRS 446.070 to embrace the whole of federal laws and the laws of other states and thereby
confer a private civil remedy for such a vast array of violations.” Hicks, 189 S.W.3d at 530;
Alderman v. Bradley, 957 S.W.2d 265, 266 (Ky. Ct. App. 1997) (“[The reach of KRS § 446.070]
is limited to violations of Kentucky statutes and does not extend to federal regulations.”).
Therefore, as a matter of law, Pace may not assert a negligence per se claim under Kentucky law
for violation of federal statutes and regulations at issue in this action. It is clearly established in
Kentucky law that “[v]iolations of federal laws and regulations and the law of other states do not
create a cause of action based on KRS 446.070.” St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529,
534 (Ky. 2011) (citation omitted). The “any statute” language of KRS § 446.070 relates only to
Kentucky’s state law and does not embrace federal statutes or regulations. Pace’s negligence per
se claim based on violation of federal law fails as a matter of law and will be dismissed.
2.
Second, the Nursing Home Defendants contend that Pace’s assertion of negligence per se
for violation of KRS § 530.080 also fails as a matter of law. Although Pace also failed to

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respond to the Nursing Home Defendants’ arguments on this issue, the Court finds that she can
maintain a negligence per se claim for violation of this statute.
KRS § 446.070 “creates a private right of action in a person damaged by another person's
violation of any statute that is penal in nature and provides no civil remedy, if the person
damaged is within the class of persons the statute intended to be protected.” Hargis v. Baize, 168
S.W.3d 36, 40 (Ky. 2005) (citations omitted). Accordingly, in order for Pace to maintain a
negligence per se action for the Nursing Home Defendants’ violation of KRS § 530.080, Sarah
must be within the class of person protected by the statute, and the statute must be penal in
nature and silent as to any civil remedy. These elements are present in KRS § 530.080.
First, a private right of action may be maintained “for the violation of any statute so long
as the plaintiff belongs to the class intended to be protected by the statute.” State Farm Mut.
Auto. Ins. Co. v. Reeder, 763 S.W.2d 116, 118 (Ky. 1988). The complaint alleges, and the Court
assumes as true, that Sarah was “[a]t all relevant times . . . of unsound mind, and she remained
incompetent until her death on October 22, 2011.” (Compl., DN 1-1, ¶ 4.) KRS § 530.080
creates criminal liability for anyone who endangers the “welfare of an incompetent person” by
acting “in a manner which results in an injury to the physical or mental welfare of a person who
is unable to care for himself because of mental illness or intellectual disability.” The complaint
alleges that the Nursing Home Defendants violated KRS § 530.080 “by knowingly acting in a
manner which resulted in an injury to the physical and/or mental welfare of [Sarah], who was
unable to care for himself [sic] because of her illness[.]” (Compl., DN 1-1, ¶ 23(b).) Based on
these allegation, Sarah clearly belongs to the class intended to be protected by KRS § 530.080.
Second, a private right of action may be maintained via KRS § 446.070 for violation of a
statute if the underlying statute “is penal in nature[.]” Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky.

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1985). KRS § 350.080 falls within Kentucky’s penal code and a violation of the statute is
punishable as a Class A misdemeanor. KRS § 350.080(2). The statute is undoubtedly penal in
nature.
Finally, if the first two prongs are fulfilled, a private right of action for violation of a
statute may be maintained pursuant to KRS § 446.070 “where by its terms the statute [at issue]
does not prescribed the remedy for its violation.” Grzyb, 700 S.W.2d at 401.” However,
‘[w]here the statute both declares the unlawful act and specifies the civil remedy available to the
aggrieved party, the aggrieved party is limited to the remedy provided by the statute,’ and may
not sue under section 446.070.” Thompson v. Breeding, 351 F.3d 732, 736 (6th Cir. 2003)
(quoting Grzyb, 700 S.W.2d at 401). As noted by the Sixth Circuit, “[t]he Kentucky Supreme
Court has carefully limited the applicability of section 446.070 to situations where the statute
that was allegedly violated provides no remedy for the aggrieved party.” Id. at 737 (citations
omitted). In the present case, no civil remedy is prescribed in KRS § 530.080. A violation of the
statute is criminally punishable as a “Class A misdemeanor,” meaning that it is an offense “for
which a sentence to a term of imprisonment of not more than twelve (12) months can be
imposed.” KRS § 500.080 (defining “misdemeanor” for the purposes of Kentucky’s penal code).
But the statute is silent as to a civil remedy available to an individual injured by violation of the
statute. Accordingly, the third prong of a private right of action pursuant to KRS 446.070 is
fulfilled.
In total, Pace may maintain a private right of action against the Nursing Home
Defendants for their alleged violation of KRS 350.080 because Sarah was a member of the class
protected by the statute, the statute is penal in nature, and provides no civil remedy for its
violation. To the extent that the Nursing Home Defendants rely on Anthony v. American General

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Financial Services, Inc., 697 S.E.2d 166, 173 (Ga. 2010), and Vansant & Gusler, Inc. v.
Washington, 429 S.E.2d 31, 34 (Va. 1993), for the proposition that a private right of action
cannot be maintained for violation of a criminal statute, the Court is not persuaded by those
cases. The negligence per se statutes in Georgia and Virginia are worded differently than KRS §
446.070, and in light of the above-conducted analysis and interpretation of the negligence per se
statute by Kentucky courts, the Court is persuaded that a Kentucky court considering this issue
would hold that Pace can maintain a negligence per se action against the Nursing Home
Defendants for their alleged violation of KRS § 350.080. Therefore, this claim will not be
dismissed.
3.
Finally, the Nursing Home Defendants argue that Pace may not maintain a claim for
alleged violations of KRS Chapters 209 and 216 and the regulations promulgated thereunder.
Considering each of these chapters separately, the Court finds that, except for the rights
explicitly given to residents of long-term care facilities by KRS § 216.515, Pace’s cause of
action under these statutes fails as a matter of law.
i.
Chapter 209 of the Kentucky Revised Statutes, KRS § 209.005 et seq., is known as the
Kentucky Adult Protection Act (“KAPA”). KRS § 209.080. Pace’s attempt to maintain a
negligence per se action against the Nursing Home Defendants for their violation of KAPA fails
for two reasons. First, KAPA grants no right of enforcement to individuals. Rather, KAPA vests
the state of Kentucky with an obligation to investigate and prosecute instances of adult abuse
reported to the state. KAPA’s underlying purpose is to “provide for the protection of adults who
may be suffering from abuse, neglect, or exploitation.” KRS § 209.010(1)(a). To carry out that

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purpose, “any person who becomes aware of [abuse] shall report them to a representative of the
[Cabinet for Health and Family Services], thereby causing the protective services of the state to
be brought to bear in an effort to protect the health and welfare of these adults[.]” KRS §
209.010(1)(b) (emphasis added). The previously quoted section makes clear that the protections
established by KAPA are to be “brought to bear” by the state.

Indeed, KRS § 209.180

establishes Kentucky’s Commonwealth and county attorneys as the state officers responsible for
investigating and prosecuting allegations of adult abuse. Nothing in KAPA grants individuals
the right to prosecute claims of adult abuse. KAPA’s provisions only relate to the state’s
authority to do so. This is confirmed by KAPA’s statement of legislative intent:
The General Assembly of the Commonwealth of Kentucky recognizes that some
adults of the Commonwealth are unable to manage their own affairs or to protect
themselves from abuse, neglect, or exploitation. Often such persons cannot find
others able or willing to render assistance. The General Assembly intends,
through this chapter, to establish a system of protective services designed to fill
this need and to assure their availability to all adults.
KRS § 209.090. Accordingly, Chapter 209 simply prescribes procedures, committees, and
methods that the state of Kentucky must follow when investigating and prosecuting allegations
of adult abuse. Nothing in KAPA was intended to create enforcement rights in individuals.
Second, Pace’s attempt to pursue negligence per se under KAPA fails because no
statutory standards of care are prescribed within the act. Therefore, even if individuals have a
right to pursue violations of KAPA, there is no statutorily provided standard by which to judge
those violations. A negligence per se claim “is merely a negligence claim with a statutory
standard of care substituted for the common law standard of care.” Young v. Carran, 289
S.W.3d 586, 588-89 (Ky. 2008) (citations omitted). Absent some statutorily prescribed standard
of care, however, there is no negligence per se cause of action as a matter of law.
Pace broadly alleges that the Nursing Home Defendants violated “KRS 209.005 et seq.
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and the regulations promulgated thereunder by abuse, neglect and/or exploitation of [Sarah].”
(Compl., DN 1-1, ¶ 23(a).) In the complaint and the subsequent briefing on the present motion,
Pace fails to identify any statutorily prescribed standards of care within KAPA that replace the
common law standard of care. Upon its own review of the statutes, the Court could not find any
standards of care prescribed in KAPA.

Rather, as discussed above, KAPA is largely a

procedural statute establishing a framework for processing adult abuse claims reported to the
state of Kentucky. This is not to say that individuals are entirely prohibited from bringing suit
against others for adult abuse. To do so, however, they must pursue those claims under the
common law theory of negligence because no superseding standard is contained within KAPA.
Absent a statutorily prescribed standard of care, Pace’s negligence per se claim under KAPA
fails as a matter of law.
ii.
Pace also brings a negligence per se claim against the Nursing Home Defendants for
violating “the statutory standards and requirements governing licensing and operation of longterm care facilities as set forth by the Cabinet for Health and Family Services, pursuant to
provisions of KRS Chapter 216 and the regulations promulgated thereunder[.]” (Compl., DN 11, ¶ 23(c).) This claim fails as a matter of law because KRS § 216.515(26) provides a private
right of action for the violation of any of the rights set forth in KRS § 216.515. Enumeration of
specific rights that are enforceable via KRS § 216.515(26) precludes a negligence per se action
to enforce the broader provision of KRS Chapter 216. The specific enumeration evidences the
intent of Kentucky’s General Assembly to confine private rights of action to those rights in KRS
§ 216.515 to the exclusion of other aspects of Chapter 216.
The Nursing Home Defendants do not dispute Pace’s ability to bring a private right of

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action to enforce the rights granted to residents of long-term care facilities by KRS § 216.515.
By way of example, Pace contends, among other things, that the Nursing Home Defendants
violated KRS § 216.515(22), which vests a resident with the right to have his or her family
member or guardian “notified immediately of any accident, sudden illness, disease, unexplained
absence, or anything unusual involving the resident.” (See Compl., DN 1-1, ¶ 42(b).) Residents
and their guardian are granted a private right of action to enforce this right by KRS §
216.515(26), which provides that “[a]ny resident whose rights as specified in this section are
deprived or infringed upon shall have a cause of action against any facility responsible for the
violation.”
Although the Nursing Home Defendants do not seek dismissal of the rights asserted by
Pace under KRS § 216.515, they argue that any negligence per se claim for enforcement of the
other provisions of KRS Chapter 216 fails as a matter of law because only those rights created by
KRS § 216.515 are enforceable in a private right of action. Put another way, the specific grant of
a private right of action for violation of the rights enumerated in KRS § 216.515 precludes a
negligence per se action to enforce the general provisions of Chapter 216. The Court agrees.
As discussed previously, a plaintiff lacks a negligence per se cause of action under KRS §
446.070 where the more specific statute at issue “both declares the unlawful act and specifies the
civil remedy available[.]” Grzby v. Evans, 700 S.W.2d 399, 401 (Ky. 1985). In that situation, the
plaintiff “is limited to the remedy provided by the statute.” Id. (citations omitted). This outcome
flows from the general rule of statutory construction that “when two statutes are in conflict, one
which deals with the subject matter in a general way and the other in a specific way, the more
specific provision prevails.” Travelers Indem. Co. v. Reker, 100 S.W.3d 756, 763 (Ky. 2003). In
the present action, Kentucky’s General Assembly, in KRS § 216.515, expressly listed the rights

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granted to residents of long-term care facilities and made those rights enforceable via a private
right of action in KRS § 216.515(26). This evidences the legislature’s intent and ability to create
private rights of action for some of the provisions found in KRS Chapter 216 to the exclusion of
others. “[A] civil remedy need not be perfect in order to displace a private cause of action under
§ 446.070.” Franklin Cnty., Ky. v. Travelers Prop. Cas. Ins. Co., 368 F. App’x 669, 672-73 (6th
Cir. 2010). Accordingly, because KRS § 216.515 provides a cause of action to enforce the rights
enumerated therein, Pace is precluded from seeking private enforcement of the other provisions
of KRS Chapter 216.
In response to the Nursing Home Defendants’ “specific versus general” argument, Pace
points the Court to the last sentence of KRS § 216.515(26), which states that “the remedies
provided in this section are in addition to and cumulative with the other legal and administrative
remedies available to a resident and to the cabinet.” (emphasis added). Based on this language,
Pace argues that the rights set forth in KRS § 216.515 and made enforceable via a private right of
action in that section are not the only provisions of KRS Chapter 216 that are individually
enforceable. Under Pace’s understanding, other provisions of KRS Chapter 216 are enforceable
via KRS § 446.070 as a negligence per se action.
Pace’s reliance on the last sentence in KRS § 216.515 is misplaced. Although no
decision have interpreted this provision in Kentucky law, a similar provision contained in 42
U.S.C § 1396r(h)(8), the federal statute concerning nursing home certification, has been
interpreted to preserve the right to bring suit in common law, not to create new federal rights not
expressly enumerated.

See Baum v. Northern Dutchess Hosp., 764 F. Supp. 2d 410, 426

(N.D.N.Y. 2011) (“The overall text and structure of [the federal nursing home act] provides no
indication that Congress intended to create new individual rights. To the contrary, rather than

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establishing a new federally enforceable right, [42 U.S.C. 1396r(h)(8)] explicitly announces that
a resident may pursue any other federal and common law rights.”). This same reasoning applies
to the last sentence of KRS § 216.515(26). That provision does not authorize the enforcement of
the other provisions of KRS Chapter 216 via KRS § 446.070. Rather, it makes clear that rights
expressly listed in KRS § 216.515 are in addition to already existing common law rights and
does not preempt or otherwise preclude enforcement of those other rights.
Finally, the provisions of KRS Chapter 216 outside of KRS § 216.515 are unenforceable
via a claim of negligence per se for an additional reason. As with the prior discussion of KAPA,
the other provisions of KRS Chapter 216 do not speak of or otherwise create statutorily
prescribed standards of care. Instead, the remaining provisions establish nursing home licensing
requirements and enforcement mechanisms for those requirements through the state of Kentucky.
As with KAPA, Pace has not pointed to one statutorily created standard of care arising outside of
KRS § 216.515, and the Court, in a review of the remaining provision of KRS Chapter 216, has
likewise failed to find any. Absent a prescribed standard of care, the other provisions of KRS
Chapter 216 are unenforceable as a negligence per se action.
CONCLUSION
This matter came before the Court on the Nursing Home Defendants’ motion for partial
judgment on the pleadings. For all of the foregoing reasons that motion is GRANTED IN
PART AND DENIED IN PART. Plaintiff Patricia Pace’s negligence per se claim based on
federal statutes and regulations is DISMISSED. Likewise, her causes of action under KRS
Chapters 209 and 216, save for those rights expressly enumerated in KRS § 216.515, are also
DISMISSED. Her claim brought pursuant to KRS § 530.080 may proceeded.

June 24, 2013

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