ELECTRONICALLY FILED 2/5/2013 10:57 AM CV-2013-900242.00 CIRCUIT COURT OF MADISON COUNTY, ALABAMA JANE C.

SMITH, CLERK

IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA Elin Baroni, by and through her ) Daughter and Next Friend, Susan Pugh, ) ) & ) ) Elizabeth Boutwell, by and through her ) Son and Next Friend, Robert A. Boutwell, ) ) Plaintiffs, ) ) v. ) ) Great Oaks Healthcare Management, ) LLC, d/b/a Agape Village Memory Care ) )

CV2013 -______________

There may be other entities whose true names and identities are unknown to plaintiff at this time who may be legally responsible for the claim(s) set forth herein. The true names and identities will be added by amendment by plaintiff when accurately ascertained by further discovery. Until that time, plaintiff will designate these parties in accordance with ARCP 9(h). The word entity as used herein is intended to refer to and include any and all legal entities including individual persons, any and all forms of partnership, any and all types of corporations and unincorporated associations. Fictitious Defendant A, being the correct legal name of the entity identified herein as Great Oaks Healthcare Management, LLC, d/b/a Agape Village Memory Care; Fictitious Defendant B,C,D being the correct legal name of the individual(s), corporation(s), or other entity(ies) that owned or operated the residential assisted living facility where Elin Baroni and Elizabeth Boutwell resided on the occasion(s) described herein; Fictitious Defendant E,F,G being the correct legal name of the individual(s), corporation(s), or other entity(ies) that provided care to or were responsible for the care of Elin Baroni and Elizabeth Boutwell, on the occasion(s) described herein; Fictitious Defendant H,I,J being the correct legal name of the individual(s), corporation(s), or other entity(ies) that is legally responsible for the injuries to Elin Baroni and Elizabeth Boutwell described herein; )

Defendants.

) ) COMPLAINT

1. Plaintiff, Elin Baroni, by and through her daughter and next friend, Susan Pugh, is a resident of Madison County, Alabama. 2. Plaintiff, Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, is a resident of Madison County, Alabama. 3. Agape Village Memory Care, is a residential assisted living facility located at 372 Jimmy Fisk Road, Hazel Green, Alabama 35750. The facility is owned and operated by Great Oaks Healthcare Management, LLC, an Alabama corporation doing business in Madison County, Alabama. 4. The true names and identities of the other named defendants are unknown to plaintiffs at this time and will be added by amendment in accordance with Rule 9 (h) of the Alabama Rules of Civil Procedure when the true names and identities are ascertained. 5. Agape Village Memory Care is a residential assisted living facility licensed by the Alabama State Board of Health and subject to the Rules of Alabama State Board of Health, Division of Licensure and Certification, Ala. Admin. Code, Chapter 420-5-10 and Alabama Code § 22-21-20. As a nursing facility receiving public funds, Agape Village Memory Care is also subject to regulatory standards found in 42 C.F.R. part 483 (Requirements for States and Long-Term Care Facilities), and the Nursing Home Reform Act, 42 U.S.C. § 1396. (also known as the Omnibus Budget Reconciliation Act of 1987 or “OBRA”) 6. The State and Federal laws and regulations described above create a legal duty that requires Agape Village Memory Care to provide appropriate nursing care and services to each of its residents. 7. The plaintiffs in this action, Elin Baroni, by and through her daughter and next friend, Susan Pugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, assert that Agape Village Memory Care has violated its duty to provide appropriate nursing care and services and that these violations caused injuries to Elin Baroni and Elizabeth Boutwell. 8. The acts and omissions complained of occurred in Madison County, Alabama and the amount in controversy exceeds $ 10,000. FACTUAL ALLEGATIONS 9. In or about February, 2008, Elin Baroni was admitted to Agape Village Memory At the time of admission, Ms. Baroni suffered from anemia, chronic obstructive

Care.

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pulmonary disorder, hypertension, osteopenia, dementia, and other health problems, and was wheelchair bound. 10. While at Agape Village Memory Care, Ms. Baroni required assistance for activities of daily living, including protection from physical and mental abuse. She had memory deficits and impaired cognitive skills, with limited ability to communicate and express her needs. 11. In or about December, 2011, Elizabeth Boutwell was admitted to Agape Memory Care. At the time of her admission, Ms. Boutwell suffered from dementia, Alzheimer’s, and other medical problems. 12. While at Agape Village Memory Care, Ms. Boutwell required assistance for activities of daily living, including protection from physical and mental abuse. She had memory deficits and impaired cognitive skills, with limited ability to communicate and express her needs. 13. Beginning sometime in 2011, and lasting until through September 2012, Elin Baroni, Elizabeth Boutwell, and other elderly residents of Agape Village Memory Care were the victims of physical and mental abuse carried out by an employee of the facility. This abuse included, but was not limited to, striking, slapping, smacking, pinching, swatting, pushing, shoving, violently moving into and out of sitting and prone positions, yelling, harsh language, and verbal insults. 14. This abuse resulted in physical injuries, including, but not limited to, bruises, contusions, cuts, and lacerations. This abuse also resulted in severe mental anguish. 15. The abuse of Ms. Baroni and Ms. Boutwell was reported to Agape Village Memory Care administration and management in or about February, 2012, but the facility failed to report the abuse to the victims’ families or to the appropriate state or federal authorities, or to take other appropriate action to protect the victims from abuse. 16. In or about June and July, 2012, Elin Baroni was identified as suffering from injuries consistent with physical and mental abuse, but no report was made to Ms. Baroni’s family or to the appropriate state or federal authorities, or to take other appropriate action to protect Ms. Baroni from abuse. 17. The abuse of residents was again reported to Agape Village Memory Care administration and management on or about September 19, 2012, but the facility delayed reporting the abuse to the appropriate state or federal authorities until August 31, 2012. The abuse was still not reported to the families of Elin Baroni or Elizbeth Boutwell.

COUNT ONE MEDICAL NEGLIGENCE 18. full. Plaintiff adopts and realleges paragraphs 1 through 17 as if they were set forth in

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19. While Ms. Baroni and Ms. Boutwell were residents of the facility in 2011 and 2012, Agape Village Memory Care had a duty or obligation to provide proper nursing care, including, but not limited to, taking appropriate actions to prevent the physical and mental abuse of residents. 20. Great Oaks Healthcare Management, LLC, d/b/a Agape Village Memory Care, violated of the standard of skill, care and diligence required of a residential assisted living facility and its staff in the national medical community when treating patients such as Elin Baroni and Elizabeth Boutwell and/or acted negligently by: a) failing to screen and/or improperly screening personnel hired to provide care to residents at Agape Village Memory Care; failing to properly and adequately train, supervise, monitor, evaluate and/or reprimand, terminate or otherwise discipline personnel that provided care to residents at Agape Village Memory Care; failing to adopt and enforce proper polices and procedures to ensure proper care for residents at Agape Village Memory Care; failing to assign personnel to care for Elin Baroni and Elizabeth Boutwell who were competent or otherwise fit or capable of providing adequate nursing care; failing to provide a sufficient number of nursing personnel to provide necessary nursing care to Elin Baroni and Elizabeth Boutwell; failing to provide adequate funding to allow Agape Village Memory Care to provide an acceptable level of care to Elin Baroni and Elizabeth Boutwell; failing to take proper steps to prevent physical and mental abuse of residents at Agape Village Memory Care; failing to timely report physical and mental abuse of residents to the appropriate government agencies; and failing to report the physical and mental abuse of residents to the residents’ families.

b)

c)

d)

e)

f)

g)

h)

i)

21. The foregoing violations, acts, and omissions reveal and directly result from Great Oaks Healthcare Management LLC’s systemic and/or institutional failure to adopt, promulgate, and enforce policies and procedures at Agape Village Memory Care that would prevent or minimize the risk of physical and mental abuse to residents.

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22. The acts, omissions, and violations of the standard of care outlined above caused, contributed to, and/or proximately resulted in injuries to Elin Baroni and Elizabeth Boutwell. 23. Plaintiffs, Elin Baroni, by and through her daughter and next friend, Susan Pugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, are entitled to compensation from Great Oaks Healthcare Management LLC, d/b/a Agape Village Memory Care for: a) b) c) d) e) f) the cost of hospital, physician, and pharmaceutical bills; the cost of future medical treatment; pain and suffering on account of personal injury; mental anguish on account of personal injury; permanent disfigurement; and permanent injury.

24. Defendant Great Oaks Healthcare Management, LLC, d/b/a Agape Village Memory Care is liable for the torts of its employees under the laws of agency and/or the doctrine of respondeat superior. Wherefore, plaintiffs Elin Baroni, by and through her daughter and next friend, Susan Pugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, demand a judgment against Great Oaks Healthcare Management, LLC d/b/a Agape Village Memory Care in an amount to be determined by a jury, plus costs. COUNT TWO

MEDICAL WANTONNESS
25. full. 26. While Ms. Baroni and Ms. Boutwell were residents of the facility in 2011 and 2012, Agape Village Memory Care had a duty or obligation to provide proper nursing care, including, but not limited to, taking appropriate actions to prevent the physical and mental abuse of residents. 27. Great Oaks Healthcare Management, LLC, d/b/a Agape Village Memory Care, violated of the standard of skill, care and diligence required of a residential assisted living facility and its staff in the national medical community when treating patients such as Elin Baroni and Elizabeth Boutwell and/or acted wantonly by: a) failing to screen and/or improperly screening personnel hired to provide care to residents at Agape Village Memory Care; Plaintiffs adopt and re-allege paragraphs 1 through 24 as if they were set forth in

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b)

failing to properly and adequately train, supervise, monitor, evaluate and/or reprimand, terminate or otherwise discipline personnel that provided care to residents at Agape Village Memory Care; failing to adopt and enforce proper policies and procedures to ensure proper care for residents at Agape Village Memory Care; failing to assign personnel to care for Elin Baroni and Elizabeth Boutwell who were competent or otherwise fit or capable of providing adequate nursing care; failing to provide a sufficient number of nursing personnel to provide necessary nursing care to Elin Baroni and Elizabeth Boutwell; failing to provide adequate funding to allow Agape Village Memory Care to provide an acceptable level of care to Elin Baroni and Elizabeth Boutwell; failing to take proper steps to prevent physical and mental abuse of residents at Agape Village Memory Care; failing to timely report physical and mental abuse of residents to the appropriate government agencies; and failing to report the physical and mental abuse of residents to the residents’ families.

c)

d)

e)

f)

g)

h)

i)

28. The foregoing violations, acts, and omissions reveal and directly result from Great Oaks Healthcare Management LLC’s systemic and/or institutional failure to adopt, promulgate, and enforce policies and procedures at Agape Village Memory Care that would prevent or minimize the risk of physical and mental abuse to residents. 29. The acts, omissions, and violations of the standard of care outlined above caused, contributed to, and/or proximately resulted in injuries to Elin Baroni and Elizabeth Boutwell. 30. Plaintiffs, Elin Baroni, by and through her daughter and next friend, Susan Pugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, are entitled to compensation from Great Oaks Healthcare Management LLC, d/b/a Agape Village Memory Care for: a) b) c) d) e) the cost of hospital, physician, and pharmaceutical bills; the cost of future medical treatment; pain and suffering on account of personal injury; mental anguish on account of personal injury; permanent disfigurement; and

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f)

permanent injury.

31. Plaintiffs Elin Baroni, by and through her daughter and next friend, Susan Pugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, are entitled to punitive damages. 32. Defendant Great Oaks Healthcare Management, LLC, d/b/a Agape Village Memory Care is liable for the torts of its employees under the laws of agency and/or the doctrine of respondeat superior. Wherefore, plaintiffs Elin Baroni, by and through her daughter and next friend, Susan Pugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, demand a judgment against Great Oaks Healthcare Management, LLC d/b/a Agape Village Memory Care in an amount to be determined by a jury, plus costs. COUNT THREE FRAUDULENT SUPPRESSION 33. full. 34. While Elin Baroni was a resident at Agape Village Memory Care, her daughter, Susan Pugh, maintained power of attorney for Ms. Baroni and was responsible for decisions regarding Ms. Baroni’s care at Agape Village Memory Care. 35. While Elizabeth Boutwell was a resident at Agape Village Memory Care, her son, Robert A. Boutwell, maintained power of attorney for Ms. Boutwell and was responsible for decisions regarding Ms. Boutwell’s care at Agape Village Memory Care. 36. During the time that Agape Village Memory Care provided care and treatment to Elin Baroni and Elizabeth Boutwell, a confidential medical provider/patient relationship was established, developed, and maintained. As such, Agape Village Memory Care had a duty to fully disclose to Elin Baroni/Susan Pugh, and Elizabeth Boutwell/Robert A. Boutwell all facts necessary to enable them to intelligently exercise their right to control, to the extent feasible, their own health care and/or health care for their loved ones. See Johnson v. McMurray, 461 So. 2d 775 (Ala. 1984). 37. Agape Village Memory Care breached this duty of disclosure and/or concealed or suppressed material facts by failing to inform Elin Baroni/Susan Pugh and Elizabeth Boutwell/Robert A. Boutwell that Elin Baroni and Elizabeth Boutwell were the victims of past and on-going physical and mental abuse. 38. As a direct and proximate result of Agape Village Memory Care’s failure to fully disclose to Susan Pugh and Robert A. Boutwell all facts necessary to enable them to intelligently exercise their right to control, to the extent feasible, their own health care and/or the health care Plaintiffs adopt and re-allege paragraphs 1 through 32 as if they were set forth in

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of their loves ones, Elin Baroni and Elizabeth Boutwell suffered personal injury, including, but not limited to, physical and mental abuse. 39. Plaintiffs, Elin Baroni, by and through her daughter and next friend, Susan Pugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, are entitled to compensation from Great Oaks Healthcare Management LLC, d/b/a Agape Village Memory Care for: a) b) c) d) e) f) the cost of hospital, physician, and pharmaceutical bills; the cost of future medical treatment; pain and suffering on account of personal injury; mental anguish on account of personal injury; permanent disfigurement; and permanent injury.

40. Plaintiffs Elin Baroni, by and through her daughter and next friend, Susan Pugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, are entitled to punitive damages. 41. Defendant Great Oaks Healthcare Management, LLC, d/b/a Agape Village Memory Care is liable for the torts of its employees under the laws of agency and/or the doctrine of respondeat superior. Wherefore, plaintiffs Elin Baroni, by and through her daughter and next friend, Susan Pugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, demand a judgment against Great Oaks Healthcare Management, LLC d/b/a Agape Village Memory Care in an amount to be determined by a jury, plus costs. COUNT FOUR OUTRAGE 42. full. 43. Defendant Agape Village Memory Care was informed that Elin Baroni, Elizabeth Boutwell, and other residents were the victims of physical and mental abuse at the hands of a facility employee. Despite this, Agape Village Memory Care failed to inform the appropriate government enforcement agencies and/or the victims’ families of this abuse, and failed to take appropriate action to protect residents from this abuse. 44. Defendant Agape Village Memory Care’s failures resulted in the physical and mental abuse of Elin Baroni, Elizabeth Boutwell, and other residents, thus resulting in emotional distress. Plaintiffs adopt and re-allege paragraphs 1 through 41 as if they were set forth in

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45. Defendant Agape Village Memory Care knew or should have known that these failures would cause Elin Baroni, Elizabeth Boutwell, and other residents to suffer from emotional distress. 46. Defendant Agape Village Memory Care’s behavior was extreme and outrageous, and no reasonable person could be expected to endure the emotional distress that Elin Baroni, Elizabeth Boutwell, and other residents suffered. 47. Plaintiffs, Elin Baroni, by and through her daughter and next friend, Susan Pugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, are entitled to compensation from Great Oaks Healthcare Management LLC, d/b/a Agape Village Memory Care for: a) b) c) d) e) f) the cost of hospital, physician, and pharmaceutical bills; the cost of future medical treatment; pain and suffering on account of personal injury; mental anguish on account of personal injury; permanent disfigurement; and permanent injury.

48. Plaintiffs Elin Baroni, by and through her daughter and next friend, Susan Pugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, are entitled to punitive damages. 49. Defendant Great Oaks Healthcare Management, LLC, d/b/a Agape Village Memory Care is liable for the torts of its employees under the laws of agency and/or the doctrine of respondeat superior. Wherefore, plaintiffs Elin Baroni, by and through her daughter and next friend, Susan Pugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, demand a judgment against Great Oaks Healthcare Management, LLC, d/b/a Agape Village Memory Care in an amount to be determined by a jury, plus costs. COUNT FIVE FICTITIOUS DEFENDANTS 50. full. 51. Plaintiff alleges and avers that the violations of the standard of care or negligent acts and/or omissions of Fictitious Defendants A-J proximately caused and/or combined and concurred with the violations of the standard of care or negligent and/or wanton acts and/or omissions of Great Oaks Healthcare Management, LLC, d/b/a Agape Village Memory Care, to proximately cause injuries to Elin Baroni and Elizabeth Boutwell as set forth in Counts One through Four above. Plaintiffs adopt and re-allege paragraphs 1 through 49 as if they were set forth in

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52. The true names and identities of Fictitious Defendants A-J are unknown to plaintiff at this time and will be added by amendment in accordance with Rule 9 (h) of the Alabama Rules of Civil Procedure when the true names and identities are ascertained. Wherefore, plaintiffs Elin Baroni, by and through her daughter and next friend, Susan Pugh, and Elizabeth Boutwell, by and through her son and next friend, Robert A. Boutwell, demand a judgment against Great Oaks Healthcare Management, LLC, d/b/a Agape Village Memory Care in an amount to be determined by a jury, plus costs. Dated this the 5th day of February, 2013. PLAINTIFF REQUESTS A TRIAL BY STRUCK JURY.

/s/ Michael Timberlake Michael K. Timberlake (TIM 003) /s/ Chris Wooten Christopher M. Wooten (WOO 118)

Siniard, Timberlake & League, P.C. P.O. Box 2767 125 Holmes Avenue Huntsville, Alabama 35804 256-536-0770 (p) 256-539-0540 (f) Timber@law-injury.com Chris.wooten@law-injury.com

Served Defendant by Certified Mail: Great Oaks Healthcare Management, LLC d/b/a Agape Village Memory Care 5303 Vaughn Road Montgomery, Alabama 36116

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