MASSEY v. FAIR ACRES GERIATRIC CENTER et al
MEMORANDUM AND OPINION. SIGNED BY HONORABLE EDMUND V. LUDWIG ON 3/23/12. 3/23/12 ENTERED AND E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FAIR ACRES GERIATRIC CENTER and
March 23, 2012
This is a survivor and wrongful death benefits action. Jurisdiction is federal question,
28 U.S.C. § 1331. The complaint alleges that on June 24, 2007, defendants, a skilled nursing
facility and the County that owns and operates it,1 permitted plaintiff’s decedent to consume
solid food, which she was physically unable to ingest. As a result, she choked, was
hospitalized, and, on July 17, 2009, died. The gravamen of the claim is that defendants’
conduct violated her rights under the Federal Nursing Home Reform Amendments, 42 U.S.C.
§ 1396r et seq. (FNHRA). These rights are enforceable under 42 U.S.C. § 1983. Grammar
v. John J. Kane Regional Centers, 570 F.3d 520, 532 (3d Cir. 2009).
On July 22, 2010, defendants’ motion to dismiss the complaint was denied and the
parties engaged in extensive discovery. Defendants now move for summary judgment.2 For
The named defendants are Fair Acres Geriatric Center and Delaware County. Fair Acres
is not an independent corporate entity and exists only as part of Delaware County. Counties may
sue and be sued in their own name; however, Fair Acres may not be sued as if it were a legal
entity separate from the county. 16 P.S. § 202; City of Philadelphia v. Glin, 613 A.2d 613, 616
(Pa. Cmwlth. 1992).
Under Fed. R. Civ. P. 56(a), “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
the following reasons, summary judgment will be granted in defendants’ favor and against
plaintiff on Count I and on the § 1983 action contained in Count II of the complaint. It will
be denied as to the state law survival claim.
The record3 reflects the following: On January 16, 2003, decedent Bernice Massey4
was admitted to Fair Acres for long-term care. Her medical history included a variety of
conditions including gastro-esophageal reflux disorder. Deposition of Ruby Dickinson, p.
97, Exhibit 3 to defendant’s motion. She was wheelchair-bound, but able to propel herself
within the facility. Deposition of Patrice Todd, p. 29, Exhibit 4 to defendants’ motion. While
a resident at Fair Acres, she required assistance with her activities of daily living, including
monitoring of her diet. On March 9, 2006, a physician directed that she receive “no
judgment as a matter of law. The court should state on the record the reasons for granting or
denying the motion.” Fed. R. Civ. P. 56(a). The rule “mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof.” Grosso v. Univ. Pittsburgh Med. Ctr., 2012 WL 787481, at
*9-10 (W.D. Pa., filed Mar. 9, 2012), citing Marten v. Godwin, 499 F.3d 290, 295 (3d Cir.
2007). “In deciding a summary judgment motion, a court must view the facts in the light most
favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts
in favor of the nonmoving party.” Id. (citations omitted).
The record consists of the pleadings, deposition testimony, and documents produced in
the course of discovery.
At the time of her admission, Bernice Massey was a ward of the state and a courtappointed guardian was responsible for her care. Court order granting guardianship, Exhibit 6 to
defendant’s motion. Plaintiff Kenneth Massey, Bernice Massey’s son, grew up in foster care and
had only sporadic contact with his mother. Deposition of Kenneth Massey, p. 17, 21, Exhibit 7
to defendant’s motion. She did not support him financially and had ceased contacting him by the
time she was admitted to Fair Acres. Id., p. 22-23. He was not aware that she had been admitted
to Fair Acres and did not visit her there. Id., p. 35.
sandwiches, no bread, lemon ice with lunch and dinner” with close supervision during oral
intake. Dickinson N.T. p. 114-15, Exhibit 3 to defendants’ motion. Additionally, her diet
was changed to “mechanical soft, with pureed vegetables.” Id., p. 101. A written care plan
was prepared in the event of swallowing difficulties, which included staff assistance while
eating and aspiration precautions.
Swallowing Precaution Care Plan, Exhibit 8 to
On April 4, 2006, her speech therapist recommended continued mechanical soft diet
with pureed fruits and vegetables; 1:1 assist at meals; alternate liquids/solids; aspiration
precautions; no bread, sandwiches or ground chicken. A physician agreed with these
recommendations and wrote an appropriate order.
On May 22, 2007, her diet was
downgraded from mechanical soft to pureed. Swallowing Precautions Care Plan, Exhibit 8
to defendants’ motion.
On June 24, 2007, Patrice Todd, LPN, fed her a pureed lunch, and gave her one-onone assistance. Todd N.T., p. 37, Exhibit 4 to defendants’ motion. Also, she was fed at a
separate table so she would not have access to other residents’ meals. Id., p. 39-40. After
lunch, the room was cleaned and all food and trays removed. At 2:30 that afternoon, she
asked Sharona Brown, CNA for a dollar. Statement of Sharona Brown, attached to Incident
Report, Exhibit 10 to defendants’ motion. She appeared to be fine at that time. Id.
At 4:20 p.m., Gretchen Shelton, a nurse, was passing out medication when she was
told that Bernice Massey “did not look right.” Incident Report, Exhibit 10 to defendants’
motion. She found her choking, called 911, and began a Heimlich Maneuver. Id. Massey
lost consciousness at that time. Continued use of the Heimlich Maneuver and finger sweeps
revealed that she had been choking on white bread and pink-colored lunchmeat. Id.
Emergency medical personnel resuscitated Massey and transported her to the hospital,
but she never regained consciousness. Id. She was placed and remained on life support until
July 17, 2007, when after her family discontinued the support she died. Riddle Memorial
Hospital Discharge Summary, Exhibit 11 to defendants’ motion. The Death Certificate lists
“complications of asphyxia due to obstruction of airway by food bolus, with anoxic
encephalopathy” as the cause of death. Death Certificate, Exhibit 12 to defendants’ motion.
Count I of the complaint sets forth a claim under Pennsylvania’s Wrongful Death Act,
42 Pa.C.S.A. § 8301and a corresponding § 1983 action alleging a deprivation of federal
rights enumerated in FNHRA, 42 U.S.C. § 1396r. Count II alleges a state law survival action
under Pennsylvania’s Survival Act, 42 Pa.C.S.A. § 8302 and a corresponding § 1983 action,
again for deprivation of rights accorded under FNHRA.5
Wrongful Death Action and § 1983
Defendants contend, and plaintiff concedes, that the wrongful death act claim under
The parties agree that the complaint does not allege a common law negligence claim.
Defendant’s memorandum at 9-10; plaintiff’s memorandum at 14 n.2. A common law
negligence claim would be barred by the Pennsylvania Political Subdivision Tort Claims Act. 42
Pa.C.S.A. § 8541 and § 8545 grant governmental immunity for local municipal agencies and
their employees. The Act applies to county-owned skilled nursing facilities. Morris v.
Montgomery County Geriatric and Rehab. Ctr., 459 A.2d 919 (Pa. Cmwlth. 1983). None of the
exceptions to governmental immunity are present here; this is a professional negligence action.
state law is barred by the Pennsylvania Political Subdivision Tort Claims Act.
As to the § 1983 actions, plaintiff lacks standing to file such a claim to enforce rights
under FNRHA flowing from his mother’s wrongful death. In wrongful death actions as
embodied in Count I, the rights of the survivors, not the decedent, are at issue.6 Here, the
survivors have no rights under FNHRA arising from Massey’s death because they were not
nursing home residents. Grammar, 570 F.3d at 530-31 (rights are conferred on nursing home
residents). Plaintiff does not oppose this aspect of defendant’s motion.7
Survival Action and § 1983
According to defendants’ motion, both actions are barred by the applicable statute of
A. Survival Action
A survival action is a continuation of a personal injury action held by the decedent at
the time of death and may be brought by the personal representative of the decedent’s estate.
Miller v. Philadelphia Geriatric Ctr., 463 F.3d 266, 272 (3d Cir. 2006), citing Moyer v.
Rubright, 438 Pa. Super. 154 (1994). Here, under 42 Pa.C.S. § 5524(2), an action to recover
See, e.g., Pennsylvania’s wrongful death statute: “the right of action created by
this section shall exist only for the benefit of the spouse, children or parents of the
deceased.” 42 Pa.C.S.A. § 8301(b). In contrast, the § 1983 claim in Count II asserts
Bernice Massey’s rights under FINHRA insofar as they are premised on a survival action.
Local Rules of Civil Procedure 7.1(c) (“In the absence of a timely response [to a
motion] the motion may be granted as uncontested.”); Jackson v. J. Lewis Crozer Library, 2007
WL 2407102, at *6 (E.D. Pa., filed Aug. 22, 2007) (“Since plaintiff did not address defendants’
motion with respect to punitive damages, I will treat that portion of the motion as uncontested.”)
damages for injuries to the person or for the death of an individual caused by the wrongful
act of another must be commenced within two years. Baumgart v. Keene Building Products
Corp., 633 A.2d 1189, 1192 (Pa. Super. 1993). The limitations period begins to run on the
date of injury, unless an exception tolls the statute. Pocono Int’l Raceway, Inc. v. Pocono
Produce, Inc., 503 Pa. 80, 84 (1983).
For purposes of a survival action, Pennsylvania courts have distinguished between the
date of injury and the date of death, in that survival action damages are, essentially, for pain
and suffering between the time of injury and death. Frey v. Pennsylvania Elec. Co., 607 A.2d
796, 798 (Pa. Super. 1992) (a “survival action has its genesis in the decedent’s injury, not his
death.”). If a period of two years has passed following the date of injury, an action for such
injury is barred and cannot be asserted by the personal representative of the injured person
following his death. Id., citing Anthony v. Koppers Co., Inc., 436 A.2d 181, 184-85 (Pa.
Here, the record establishes that the decedent choked on June 24, 2007. According
to defendants, this is the date on which her injury occurred, and the date on which the statute
of limitations for a survival action began to run. Therefore, in order to be timely, the survival
action was barred unless filed by June 24, 2009. It was not filed until July 16, 2009, several
weeks after the statute of limitations expired.
Plaintiff responds that the survival action was timely filed under the Medical Care and
Reduction of Error Act, 40 Pa.C.S.§ 1303 et seq. Under that Act, claims must be filed within
two years after the date of death in a professional liability case.8 The Act is specifically
applicable to professional liability actions involving nursing homes. 40 Pa.C.S. § 1301.503.
It does not speak to accrual of claims.
However, in Matharu v. Muir, 29 A.3d 375 (Pa. Super. 2011), the Pennsylvania
Superior Court held as a matter of statutory construction that “the specific statute of repose
set forth at section 513(d) of the MCARE Act controls over the general statutory language
of 42 Pa.C.S.A. § 5524.” Therefore, in that case, “[p]ursuant to section 513(d) of the
MCARE Act, Plaintiffs were required to commence their causes of action ‘within two years
after the death’”of their child. Id. at 382.
The parents of the deceased infant in Matharu brought wrongful death and survival
actions against physicians involved with the mother’s care in a prior pregnancy. The parties
agreed that the negligence in question was the failure to administer RhoGAM during the
mother’s pregnancy in 1998. Id. at 379-80, citing Trial Court Opinion at 1-5. As a result,
the mother became Rh sensitized. As a further result, in November 2005, mother’s sixth
child was born with birth defects and died two days later. The parents filed suit in April
2007. Id. at 380.
On a motion for summary judgment, the Matharu defendants contended that
plaintiffs’ claims were barred, having been filed nearly seven years after defendants’
“DEATH OR SURVIVAL ACTIONS. - If the claim is brought under 42 Pa.C.S.A. §
8301 (relating to death action) or 8302 (relating to survival action). The action must be
commenced within two years after the death in the absence of affirmative misrepresentation or
fraudulent concealment of the cause of death.” 40 P.S. § 1303.513.
negligence, which plaintiffs acknowledged being aware of at the time. The evidence was
“that [the] Child suffered an injury either at his birth on November 10, 2005, or upon his
death (two days later). Plaintiffs commenced the survival action on April 25, 2007, well
within the two-years of Child’s injury.” Id. at 384. Their wrongful death and survival claims
depended on the loss sustained as a result of the injury and death of their child, which did not
occur prior to his birth. The claims having been filed within two-years of the birth were, as
a result, timely both under the MCARE Act and Pennsylvania’s general statute of limitations
provisions. Id. At 383-84. It was unnecessary to determine whether the Pennsylvania
legislature intended to extend the accrual of survival claims from the date of injury to the
date of death in actions governed by the Act. Therefore, the broad language of Matharu
court’s holding would seem to require denial of defendants’ motion for summary judgment
with respect to plaintiff’s state law survival action in that the action was filed within two
years of Massey’s death.9
B. § 1983 Claim
Count II of the complaint also includes a § 1983 claim. Section 1983 does not contain
a statute of limitations. However, 42 U.S.C. § 1988 states that where federal law does not
set forth a statute of limitations, state law shall apply. The Supreme Court has held that in
the interests of national uniformity and predictability, all § 1983 claims shall be treated as tort
claims for the recovery of personal injuries. Wilson v. Garcia, 47 U.S. 261 (1985).
Defendants did not move for summary judgment on the state law survival claim on
grounds other than statute of limitations.
Here, according to defendants, the § 1983 action is time-barred because it was filed
more than two years after the choking incident, which occurred on June 24, 2007, the date
on which the limitations period began to run on the § 1983 claim. Plaintiff again responds
that under MCARE, the § 1983 claim, too, was timely filed. However, MCARE, a state
statute, does not control the accrual of a claim under § 1983. Claims under § 1983 are treated
as personal injury claims and are subject, in this case, to Pennsylvania’s two-year statute of
limitations. Federal law determines when the claim accrues - when plaintiff knew or had
reason to know of the injury forming the basis for the action. Sameric Corp. v. City of
Philadelphia, 142 F.2d 582, 599 (3d Cir. 1998); Oschiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1386 (3d Cir. 1994). Here, the injury giving rise to the survival
action was the choking, which occurred on June 24, 2007. The complaint was not filed until
more than two years after that date and the § 1983 claim is, therefore, time-barred.
Summary judgment must be entered in favor of defendant and against plaintiff on
Count I of the complaint and on the § 1983 claim contained in Count II. It must be denied
as to the survival action under state law contained in Count II
BY THE COURT:
/s/Edmund V. Ludwig
Edmund V. Ludwig, J.
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