Estate of Dorothy Faye Lanham v. Springfield Nursing & Rehabilitation Center

Filing 84

MEMORANDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 9/25/2017 denying 65 Motion to Dismiss. This matter is set for a telephonic status conference on September 28, 2017 at 1:00 PM Eastern Standard Time before Senior Judge Thomas B. Russell. Counsel must call 1-877-848-7030 then give Access Code 2523122 and #, then when prompted press # again to join the call. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:15-cv-00397-TBR
ESTATE OF DOROTHY FAYE LANHAM

PLAINTIFF

v.
SPRINGFIELD NURSING & REHABILITATION CENTER

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendant Springfield Nursing & Rehabilitation
Center’s (“Defendant”) “Motion to Dismiss Resident’s Rights Claims and Attendant Claims for
Attorneys Fees.” [DN 65.] The time has passed for Plaintiff to respond. This matter is ripe for
adjudication. For the following reasons, Defendant’s motion is DENIED at this time.
I. BACKGROUND
Defendant, a Kentucky limited liability company, is in the business of providing certain
medical services and nursing home care. [DN 1-2, at 4.] Dorothy Lanham (“Ms. Lanham”), the
decedent, became a patient of Defendant on November 19, 2013. [Id.] Plaintiff alleges that, due
to Defendant’s negligence and its failure to provide adequate care and supervision for Ms.
Lanham, she suffered numerous falls, and later died on April 14, 2014. [Id.] Plaintiff’s
Complaint, [id.], appears to lay out standard negligence allegations alluding to Defendant’s duty
of care for Ms. Lanham, Defendant’s breach thereof, causation, and the resultant damages that
ensued in the form of Ms. Lanham losing her life. [Id. at 4-5.] In the instant Motion, Defendant
moves to have dismissed any potential attempts by Plaintiff to utilize K.R.S. 216.515 in support
of the claims against Defendant, or to obtain attorney fees. The Complaint does not reference

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K.R.S. 216.515, and Plaintiff has filed no response to this Motion indicating an intent, or lack
thereof, to rely upon this statutory provision.
II. DISCUSSION
K.R.S. 216.515 “Rights of residents – Duties of facilities – Actions,” lays out the
statutory rights possessed by residents of long-term-care facilities in the State of Kentucky, the
duties imposed upon those long-term-care facilities as it relates to its residents, and the actions
available to residents should the statute be violated. The thrust of Defendant’s argument is that,
due to the recent Kentucky Supreme Court decision in Overstreet v. Kindred Nursing Ctrs. Ltd.
P’ship, 479 S.W.3d 69 (Ky. 2015), this statute is not available for use by Plaintiff in a future
trial. In Overstreet, the Kentucky Supreme Court held that, where “claims are based upon
liabilities created by KRS 216.515, and are not simply restatements of the common law personal
injury action, K.R.S. 411.140 does not provide for their survival beyond the death of the [longterm-care facility] resident.” Overstreet, 479 S.W.3d at 77.
However, Plaintiff’s Complaint does not reference K.R.S. 216.515, or otherwise indicate
an intent to rely upon the statute in seeking damages from Defendant. [See DN 1-2.] Further,
Plaintiff has filed no motions for leave to amend this Complaint to include this statutory
provision. And while Defendant’s instant Motion avers that “Plaintiffs have recently indicated
that they plan on arguing violations of Ms. Lanham’s residents’ rights at the trial,” Defendant
relies primarily on references to potential future use by Plaintiff: “any potential attempt by
Plaintiffs to assert these claims should be foreclosed by this Court as they have not been
asserted.” [DN 65, at 2.] Here, Defendant’s Motion, by its very terms, explains that claims of a
violation of K.R.S. 216.515 “have not been asserted,” leading to the conclusion that this issue is
not properly before the Court. Should Plaintiff actually attempt to amend the original Complaint

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to allege violations of K.R.S. 216.515, or file another motion doing the same, the Court will
entertain renewed motions from Defendant regarding its availability to Plaintiff for use at that
time. The Court also declines to issue a speculative ruling regarding the other issue Defendant
seeks to have dismissed: the issue of attorney fees. [DN 65, at 6.] Defendant argues that
“Plaintiffs cannot receive an award of attorney’s fees for their personal injury claims simply by
alluding that those claims are being brought pursuant to KRS §216.515(6).” Because the Court
has already noted that Plaintiff has not actually pled any claims under K.R.S. 216.515 to date,
ruling on the issue of attorney fees at this juncture would be inappropriate. In the unlikely event
that attorney fees become an issue, the Court can address that after a verdict.
IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED THAT Defendant’s Motion to
Dismiss, [DN 65], is DENIED at this time. This matter is set for a telephonic status conference
on September 28, 2017 at 1:00 PM Eastern Standard Time before Senior Judge Thomas B.
Russell. Counsel must call 1-877-848-7030 then give Access Code 2523122 and #, then when
prompted press # again to join the call.
IT IS SO ORDERED.

cc: Counsel of Record
September 25, 2017

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