Petition for Writ of Certiorari — Bonnie Townsend, as Executrix of the Estate of Linda Elam, Petitioner v. BLC Lexington SNF, LLC, et al.
Supreme Court briefJul 27, 2026
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No. ______
In the
Supreme Court of the United States
BONNIE TOWNSEND, EXECUTRIX OF THE ESTATE OF
LINDA ELAM,
Petitioner,
v.
BLC LEXINGTON SNF, LLC D/B/A
BROOKDALE RICHMOND PLACE SNF, et al.,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the
Sixth Circuit
APPENDIX
D. TODD VARELLAS
Counsel of Record
SANDRA M. VARELLAS
VARELLAS &
VARELLAS PLLC
360 E. Vine St., Ste. 320
Lexington, KY 40507
(859) 252-4473
tvarellas@varellaslaw.com
Counsel for Petitioner
July 27, 2026
i
APPENDIX
TABLE OF CONTENTS
Appendix A
Opinion Affirming, U.S. Court of Appeals
for the Sixth Circuit, BLC Lexington
SNF v. Townsend, 171 F.4th 788 (6th
Cir. 2026), No. 25-5675
(March 26, 2026) ... .................... .......... App 1
Appendix B
Eastern District of Kentucky Order
denying Petitioner’s Motion to Alter,
Amend, or Vacate Arbitration Award,
BLC Lexington SNF v. Townsend, 5:21cv-223-KKC, 2025 WL 2181407
(June 27, 2025) ...... .................... .......... App 18
Appendix C
Eastern District of Kentucky modified
Order compelling arbitration, BLC
Lexington SNF v. Townsend, 5:21-cv223-KKC,
2022
WL
23038738
(September 28, 2022) ................. .......... App 34
Appendix D
Order denying Petition for Rehearing,
U.S. Court of Appeals for the Sixth
Circuit, BLC Lexington SNF v.
Townsend, No. 25-5675
(April 27, 2026)...... .................... .......... App 41
Appendix E
Arbitration Award . .................... .......... App 43
(June 24, 2024)
Appendix F
Petitioner’s (plaintiff in the arbitration)
Proposed Findings of Fact and
ii
Conclusions of Law in the arbitration
(submitted May 15, 2024) .......... .......... App 85
Appendix G
Order of Public Censure of Thomas
E. McDonald, III .... .................... .. … …App 131
(September 7, 1990)
Appendix H
Kentucky Court of Appeals Opinion
Affirming in state court companion case,
BLC Lexington SNF v. Townsend,
719 S.W. 3d 48 (Ky. App. 2025) . .......... App 135
Appendix I
Constitutional and statutory
provisions .......... .................... .......... App 147
FAA 9 U.S.C. § 9 .............. .......... App 147
FAA 9 U.S.C. § 10 ............ .......... App 148
Pet. App. 1
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
No. 25-5675
BLC LEXINGTON SNF, LLC; BROOKDALE
SENIOR
LIVING
COMMUNITIES,
INC.;
BROOKDALE SENIOR LIVING INC.; AMERICAN
RETIREMENT CORPORATION,
Plaintiffs-Appellees,
v.
BONNIE TOWNSEND, Executrix of the Estate of
Linda Elam,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 5:21-cv-00223—Karen K. Caldwell, District
Judge.
Decided and Filed: March 26, 2026
Before: BATCHELDER, THAPAR, and
MATHIS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: D. Todd Varellas, Sandra M. Varellas,
VARELLAS & VARELLAS, Lexington, Kentucky, for
Pet. App. 2
Appellant. Kif H. Skidmore, Connor B. Egan, STOLL
KEENON OGDEN PLLC, Lexington, Kentucky, for
Appellees.
_________________
OPINION
_________________
MATHIS, Circuit Judge. Linda Elam resided at
a nursing home in Lexington, Kentucky, in the weeks
leading up to her death. Shortly before she died, Elam
was diagnosed with several serious illnesses. Bonnie
Townsend, Elam’s sister and estate executor, sued
BLC Lexington SNF, LLC, Brookdale Senior Living
Communities, Inc., Brookdale Senior Living Inc., and
American Retirement Corporation (collectively, “BLC
Lexington”) in Kentucky state court, bringing claims
related to Elam’s care and death. BLC Lexington then
filed a complaint in federal court, asking the district
court to enjoin the state-court proceedings and compel
Townsend to arbitrate her claims. The district court
found the parties’ arbitration agreement enforceable
and compelled arbitration for nearly all of Townsend’s
claims. After a week-long arbitration, the arbitrator
ruled in BLC Lexington’s favor on all claims. The
district court confirmed the arbitration award.
Because we agree with the district court’s decisions
compelling arbitration and confirming the arbitration
award, we affirm.
I.
From June to July 2020, Linda Elam resided at
Brookdale Richmond Place SNF (“Brookdale”), a
nursing home operated by BLC Lexington. Before her
admission, Elam developed serious medical issues.
Pet. App. 3
She was diagnosed with uterine cancer and treated
with a radioactive implant, which caused severe pelvic
complications. Then in May 2020, she suffered a
stroke. The stroke caused paralysis, confusion,
difficulty swallowing, and incontinence. The following
month, Elam was transferred to Brookdale for shortterm rehabilitation and nursing care.
A few years before her stroke, Elam appointed
her sister, Bonnie Townsend, as her attorney-in-fact
to manage her “business of every kind,” including her
health care. R. 1-3, PageID 32. Townsend handled
Elam’s admission to Brookdale. That process required
Townsend to execute an admission agreement. As part
of Elam’s admission agreement, Townsend signed an
optional arbitration agreement, which required the
arbitration of “[a]ny and all claims or controversies
arising out of” the arbitration agreement or Elam’s
stay at Brookdale. R. 1-1, PageID 9.
Elam’s health deteriorated while at Brookdale.
She developed respiratory failure and her cognition
continued to decline. When she went into severe
respiratory distress, Brookdale transported her to the
hospital. Elam was then diagnosed with sepsis,
pneumonia, dehydration, severe malnutrition, and
multiple ulcers. She died a few days later in hospice
care. Her death certificate lists multiple causes of
death, including sepsis, pneumonia, and stroke.
In 2021, Townsend, in her capacity as executor
of Elam’s estate, sued BLC Lexington and Betty
Stocker, Brookdale’s former administrator, in
Kentucky state court. She asserted claims for
Wrongful death, negligence, and violations of statelaw statutory rights. BLC Lexington then sued
Pet. App. 4
Townsend in federal court, seeking to compel
arbitration and enjoin Townsend from pursuing her
claims in state court. The district court granted BLC
Lexington’s request and compelled Townsend to
arbitrate nearly every claim, except for the wrongfuldeath claims of nonsignatories to the arbitration
agreement.
Retired judge Thomas E. McDonald III
presided over the arbitration and held a weeklong
final hearing in April 2024. During the hearing, he
heard arguments from both sides, listened to
testimony from 14 witnesses, and admitted 98
exhibits into evidence. The arbitrator ultimately ruled
in BLC Lexington’s favor on all claims because
Townsend failed to meet her burden of proof.
Following
this,
Townsend
moved
for
reconsideration of the district court’s order compelling
arbitration. She argued, for the first time, that the
power of attorney did not authorize her to enter into
an arbitration agreement on Elam’s behalf. And she
moved separately to vacate the arbitration award.
BLC Lexington then moved to confirm the award. The
district court denied Townsend’s motions, granted
BLC Lexington’s motion, and confirmed the
arbitration award.
This appeal followed. On appeal, Townsend
argues that the district court erred in three ways: (1)
by granting BLC Lexington’s motion to compel
arbitration; (2) by denying Townsend’s motion to
reconsider the order granting the motion to compel
arbitration; and (3) by denying Townsend’s motion to
vacate the arbitration award. We address each
argument in turn.
Pet. App. 5
II.
We start with Townsend’s challenge to the
district court’s order compelling arbitration.
Townsend argues that the district court erred in
granting BLC Lexington’s motion to compel
arbitration because: (1) she did not act as Elam’s
attorney-in-fact when she signed the arbitration
agreement, and (2) key terms of the arbitration
agreement are indefinite, rendering it unenforceable.
We review the district court’s decision to compel
arbitration de novo. McGee v. Armstrong, 941 F.3d
859, 865 (6th Cir. 2019).
The Federal Arbitration Act (“FAA”) governs
arbitration agreements. Congress enacted the FAA “in
response to widespread judicial hostility to
arbitration agreements.” AT&T Mobility LLC v.
Concepcion, 563 U.S. 333, 339 (2011). The
“overarching purpose of the FAA . . . is to ensure the
enforcement of arbitration agreements according to
their terms so as to facilitate streamlined
proceedings.” Id. at 344.
Under the FAA, arbitration agreements “shall
be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation
of any contract.” 9 U.S.C. § 2. The Supreme Court has
described § 2 as reflecting a “liberal federal policy
favoring arbitration.” Concepcion, 563 U.S. at 339
(quotation omitted). To that end, “any doubts
concerning the scope of arbitrable issues should be
resolved in favor of arbitration.” Moses H. Cone Mem’l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25
(1983).
To eliminate (or at least diminish) the expense
Pet. App. 6
and delay of extended court proceedings before
arbitration, § 4 of the FAA outlines the abbreviated
procedures for obtaining enforcement of arbitration
agreements. Section 4 explains that if the “making of
the agreement for arbitration . . . is not in issue,” then
courts must direct “the parties to proceed to
arbitration.” 9 U.S.C. § 4. But “[i]f the making of the
arbitration agreement . . . be in issue, the court shall
proceed summarily to the trial thereof.” Id. To decide
whether the formation of an arbitration agreement is
“in issue,” courts apply the summary-judgment
standard. In re StockX Customer Data Sec. Breach
Litig., 19 F.4th 873, 881 (6th Cir. 2021) (quoting 9
U.S.C. § 4). A party seeking to compel arbitration
bears the initial burden of providing evidence, such as
a signed arbitration agreement, that would allow a
reasonable jury to find that a valid agreement to
arbitrate exists. GGNSC Louisville Hillcreek, LLC v.
Est. of Bramer ex rel. Bramer, 932 F.3d 480, 484 (6th
Cir. 2019).
In our analysis, we “apply ordinary state-law
principles that govern the formation of contracts.” In
re Auto. Parts Antitrust Litig., 951 F.3d 377, 381 (6th
Cir. 2020) (quoting First Options of Chi., Inc. v.
Kaplan, 514 U.S. 938, 944 (1995)). And the parties
agree that Kentucky contract law applies to this
dispute. Under Kentucky law, a valid, enforceable
contract requires “voluntary, complete assent by the
parties having capacity to contract.” Baumann Paper
Co. v. Holland, 554 S.W.3d 845, 848 (Ky. 2018)
(quotation omitted). BLC Lexington met its prima
facie burden of showing an agreement exists by
providing a copy of the signed arbitration agreement.
Pet. App. 7
Elam’s admission documents show that
Townsend signed the documents as “Resident
Representative” for Elam. R. 7-2, PageID 170.
Townsend does not dispute BLC Lexington’s assertion
that she provided the nursing home with a copy of the
power of attorney.
In the arbitration agreement, Townsend signed
her name on the line designated for the
“Resident/Resident Representative.” R. 1-1, PageID
11. And directly above the signature line, the
agreement states, “The Resident hereby represents
and warrants that they have fully read, understand
and consent to the terms of this Arbitration
Agreement by their signature below.” Id. Townsend
did not check the box that states, “Resident has
declined to sign arbitration agreement.” Id. Still, she
contends that the
arbitration agreement is
unenforceable because she signed the agreement in
her individual capacity, not as Elam’s attorney-infact.
But “Kentucky law does not require a party to
explicitly state they are acting as an attorney-in-fact.”
Cambridge Place Grp., LLC v. Mundy, 617 S.W.3d
838, 841 (Ky. Ct. App. 2021). On this point, LP
Louisville Quinn Drive, LLC v. Leonard-Ray is
instructive. 704 S.W.3d 386 (Ky. Ct. App. 2025).
There, a nursing-home resident had appointed his
sister as his attorney-in-fact through a power of
attorney. Id. at 388. When the resident was admitted
to a nursing home, his sister signed a pre-admission
arbitration agreement “on the line designated for
‘Resident’s Authorized Representative/Individual*
Signature.’” Id. at 388–90. The court rejected the
Pet. App. 8
sister’s argument that she signed the agreement in
her personal capacity. Id. at 391–92. It reasoned that
she need not expressly state that she was acting as
her brother’s attorney-in-fact for the arbitration
agreement to be enforceable. Id. It sufficed that “[s]he
did indicate that she was acting as his authorized
representative.” Id. at 392. And “[s]he did not
affirmatively hold herself out as signing in a capacity
which would not allow her to enter into an arbitration
agreement.” Id.
The same rationale applies here. Townsend did
not need to identify herself as Elam’s attorney-in-fact
when she signed the arbitration agreement for it to be
enforceable. It suffices that she specified that she was
acting as Elam’s representative. And just as
important, Townsend did not represent herself as
signing the agreement in a different capacity, like as
a family member or in her sole personal capacity. See
id. Like the attorney-in-fact in Leonard-Ray,
Townsend never suggested that she was signing the
document in a capacity that would prevent her from
entering into an arbitration agreement on Elam’s
behalf. See id.
Townsend relies primarily on Cambridge Place
Group v. Mundy to argue otherwise. But that case
does not help her. In Mundy, the court held that an
arbitration agreement was unenforceable where the
signer executed the agreement in her capacity as
spouse, not as attorney-in-fact. 617 S.W.3d at 841. A
wife admitted her husband to a nursing home, signing
an arbitration agreement as part of that process. Id.
at 839–41. The wife was the resident’s attorney-infact, but in the arbitration agreement she signed her
Pet. App. 9
name and wrote “wife” on the line titled “Legal
Representative Capacity.” Id. at 840. The nursing
home argued that the plaintiff’s signature made the
arbitration agreement enforceable. Id. The court
rebuffed the nursing home’s argument, concluding
that although the wife did not need to state that she
was acting as her husband’s attorney-in-fact, the issue
was not her “silence but rather her affirmative avowal
that she was acting in a separate capacity. In her
capacity as wife, [she] was authorized to make limited
decisions on behalf of [her husband]; however, the predispute arbitration agreement was outside that
scope.” Id. at 841.
Mundy is distinguishable. Unlike the plaintiff
in Mundy, Townsend signed the arbitration
agreement as Elam’s authorized representative. And
she did not indicate that she was acting in any other
capacity. The issue here is Townsend’s silence—not a
declaration that she was acting in a separate capacity.
See id.
Townsend also asserts that the arbitrate on
agreement is unenforceable because the terms
“Resident” and “Resident Representative” are
indefinite. But this argument ignores that the
arbitration agreement is just one part of the
admission agreement between the nursing home and
Elam. The admission agreement identifies Elam as
the “Resident” and Townsend as the “Resident
Representative.” Townsend does not dispute that she
provided Brookdale with a copy of the power of
attorney that identifies her as Elam’s attorney-in-fact.
Relying on our decision in Glazer v. Lehman
Brothers, Inc., 394 F.3d 444 (6th Cir. 2005), Townsend
Pet. App. 10
argues that the arbitration agreement must be
considered separate from the rest of the admission
paperwork. But her reliance on Glazer is misplaced.
In Glazer, we determined that “arbitration clauses
should not be considered ‘separate contracts’ at all.
Rather, . . . arbitration agreements contained in larger
contracts should be considered ‘separate’ from the
contract only insofar as a federal court (as opposed to
the arbitrator) can examine whether the arbitration
clause was fraudulently induced or is otherwise
unenforceable.” 394 F.3d at 454. Glazer does not
prohibit us from carrying out the uncontroversial task
of reviewing other provisions in a contract to ascertain
the meaning of important or ambiguous terms and
phrases. See, e.g., Benjamin v. JP Morgan Chase
Bank, N.A., 305 S.W.3d 446, 452 (Ky. Ct. App. 2010)
(“Courts should not examine each provision of the
instrument in isolation but should instead construe
the drafter’s intent from a consideration of the whole
document.” (citation modified)).
The district court thus did not err in granting
BLC Lexington’s motion to compel arbitration.
III.
We turn next to the denial of Townsend’s
motion for reconsideration. In that motion, Townsend
argued, for the first time, that the arbitration
agreement is unenforceable because the power of
attorney did not grant her the authority to enter into
such an agreement on Elam’s behalf. Because
Townsend sought reconsideration of an interlocutory
order, Federal Rule of Civil Procedure 54(b) governs.
See Adkisson v. Jacobs Eng’g Grp., Inc., 36 F.4th 686,
694 (6th Cir. 2022). We review a district court’s denial
Pet. App. 11
of a motion for reconsideration of an interlocutory
order for an abuse of discretion. State Farm Mut. Auto.
Ins. Co. v. Angelo, 95 F.4th 419, 435 (6th Cir. 2024). “A
district court abuses its discretion when it relies on a
clearly erroneous factual determination, applies the
wrong legal standard, misapplies the correct one, or
makes a clear error of judgment.” In re FirstEnergy
Corp. Sec. Litig., 149 F.4th 587, 601 (6th Cir. 2025)
(quotation omitted). District courts have discretion to
reconsider “interlocutory orders where there is (1) an
intervening change of controlling law; (2) new
evidence available; or (3) a need to correct a clear error
or prevent manifest injustice.” Luna v. Bell, 887 F.3d
290, 297 (6th Cir. 2018) (citation modified).
Townsend makes an intervening-change-ofcontrolling-law argument. Specifically, she argues
that LP Louisville Lynn Way, LLC v. Woford, 701
S.W.3d 836 (Ky. Ct. App. 2024), established that Elam
did not imbue Townsend with authority to enter an
arbitration agreement on Elam’s behalf. In denying
the motion for reconsideration, the district court
rejected Townsend’s contention that Woford
constituted an intervening change in the law.
The district court did not abuse its discretion in
denying Townsend’s motion. Woford did not change
the controlling law; it applied the controlling law. In
Woford, the court considered whether a power of
attorney authorized an attorney-in-fact to execute an
arbitration agreement with a nursing home on behalf
of a nursing-home resident. 701 S.W.3d at 838–41.
The court noted that the Kentucky Supreme Court, in
Ping v. Beverly Enterprises, Inc., 376 S.W.3d 581 (Ky.
2012), set forth the guidance for construing powers of
Pet. App. 12
attorney. Id. at 841. Woford then proceeded to “apply[]
the[] principles” from Ping and other Kentucky
Supreme Court cases to the arguments the parties
raised. Id. at 841–42. Woford did not overturn any
prior caselaw, nor did it change the general principles
used in evaluating powers of attorney. See id. at 839–
43.
The district court thus did not err in denying
Townsend’s motion for reconsideration.
IV.
Townsend also contends that the district court
erred in confirming the arbitration award because the
arbitrator: (1) failed to disclose prior misconduct, and
(2) applied the wrong legal standard in evaluating her
burden of proof. When reviewing a district court’s
decision confirming an arbitration award, we review
questions of law de novo and factual findings for clear
error. Holtec Int’l Corp. v. Mich. State Util. Workers
Council, 160 F.4th 723, 727 (6th Cir. 2025). When
reviewing an arbitrator’s decision, we apply “one of
the narrowest standards of judicial review in all of
American jurisprudence.” McGee, 941 F.3d at 867
(quotation omitted).
Under that narrow standard, a court “must
refrain from reversing an arbitrator simply because
the court disagrees with the result or believes the
arbitrator made a serious legal or factual error.”
Samaan v. Gen. Dynamics Land Sys., Inc., 835 F.3d
593, 600 (6th Cir. 2016) (quotation omitted). Our
review is necessarily narrow because the parties
bargained for “the arbitrator’s construction” of the
issue, not for “layers of federal judicial review.” Mich.
Fam. Res., Inc. v. Serv. Emps. Int’l Union Loc. 517M,
Pet. App. 13
475 F.3d 746, 756 (6th Cir. 2007) (en banc).
A.
Under the FAA, courts can vacate an
arbitration award in four circumstances:
(1) where the award was procured by
corruption, fraud, or undue means;
(2) where there was evident partiality or
corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of
misconduct in refusing to postpone the hearing,
upon sufficient cause shown, or in refusing to
hear evidence pertinent and material to the
controversy; or of any other misbehavior by
which the rights of any party have been
prejudiced; or
(4) where the arbitrators exceeded their
powers, or so imperfectly executed them that a
mutual, final, and definite award upon the
subject matter submitted was not made.
9 U.S.C. § 10(a). A party must give “[n]otice of a
motion to vacate” “within three months after the
award is filed or delivered.” Id. § 12.
Townsend claims the arbitrator was not
impartial because he had been publicly censured in
1990 when he was a state court judge. “To establish
evident partiality, the challenging party must show
that a reasonable person would have to conclude that
an arbitrator was partial to one party to the
arbitration.” Thomas Kinkade Co. v. White, 711 F.3d
719, 723–24 (6th Cir. 2013) (citation modified).
Townsend raised her evident-partiality challenge in a
“supplemental filing” filed well over three months
Pet. App. 14
after the arbitration award was filed or delivered.
Without
deciding
whether
Townsend’s
“supplemental filing” can relate back to her motion to
vacate, her argument fails on the merits. “[N]ot every
nondisclosure violates the FAA.” Uhl v. Komatsu
Forklift Co., 512 F.3d 294, 306 (6th Cir. 2008).
Instead, Townsend “must show that a reasonable
person would have to conclude that” the arbitrator
was partial to BLC Lexington. Id. (citation modified).
To meet that burden, Townsend needed to point to
“specific facts that indicate improper motives on the
part of the arbitrator.” Id. (quotation omitted).
Townsend failed to satisfy her burden. The
arbitrator’s three-decade-old public censure over
improper campaign contributions does not show that
he was partial to BLC Lexington. The mere failure to
disclose the censure thus does not, on its own, warrant
vacating the arbitration award. See ANR Coal Co. v.
Cogentrix of N.C., Inc., 173 F.3d 493, 500 (4th Cir.
1999).
B.
Townsend also argues that the arbitrator
applied the wrong legal standard in evaluating the
evidence. Specifically, she claims that the arbitrator
applied a “certainty” standard rather than evaluating
whether she proved her claims by a preponderance of
the evidence.
Essentially, Townsend asserts that the
arbitrator exceeded his powers. See 9 U.S.C. §
10(a)(4). Arbitrators exceed their authority only when
“they display a manifest disregard of the law.” In re
Romanzi, 31 F.4th 367, 375 (6th Cir. 2022) (quotation
Pet. App. 15
omitted).
Townsend’s argument finds no support in the
record. In the award, the arbitrator recited the correct
legal standard: to prevail on her claims, Townsend
must establish each element by a preponderance of
the evidence. Nothing suggests that the arbitrator
failed to apply this standard in his analysis. The
arbitration award comprehensively evaluates each
issue based on the evidentiary record.
V.
For these reasons, we AFFIRM the district
court’s judgment
Pet. App. 16
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 25-5675
FILED Mar 26, 2026, Kelly L. Stephens, Clerk
BLC LEXINGTON SNF, LLC; BROOKDALE
SENIOR
LIVING
COMMUNITIES,
INC.;
BROOKDALE SENIOR LIVING INC.; AMERICAN
RETIREMENT CORPORATION,
Plaintiffs-Appellees,
v.
BONNIE TOWNSEND, Executrix of the Estate of
Linda Elam,
Defendant-Appellant.
Before: BATCHELDER, THAPAR, and
MATHIS, Circuit Judges.
JUDGMENT
On Appeal from the United States District
Court for the Eastern District of Kentucky at
Lexington.
THIS CAUSE was heard on the record from the
Pet. App. 17
district court and was submitted on the briefs without
oral argument.
IN CONSIDERATION THEREOF, it is
ORDERED that the judgment of the district court is
AFFIRMED.
ENTERED BY ORDER OF THE COURT
/s/ Kelly L. Stephens
Kelly L. Stephens, Clerk
Pet. App. 18
APPENDIX B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTONCASE
NO. 5:21-CV-223-KKC
BLC LEXINGTON SNF, LLC d/b/a
BROOKDALE RICHMOND PLACE SNF;
BROOKDALE SENIOR LIVING
COMMUNITIES, INC.; BROOKDALE
SENIOR LIVING INC.; and AMERICAN
RETIREMENT CORPORATION,
Plaintiffs,
v.
BONNIE TOWNSEND, Executrix of the
Estate of LINDA ELAM,
Defendant.
ORDER
*** *** ***
This matter is before the Court on Bonnie
Townsend’s Motion to Reconsider Order Compelling
Arbitration (DE 35) and Motion to Amend, Modify,
Correct, or Vacate Arbitration Award and Order
Rehearing. (DE 38.) Also pending is a Motion to
Confirm Arbitration Award (DE 70) filed by American
Retirement Corporation, BLC Lexington SNF, LLC,
Pet. App. 19
Brookdale Senior Living Communities, Inc., and
Brookdale
Senior
Living
Inc.
(collectively,
“Plaintiffs”). The Court will discuss each motion in
turn.
I. BACKGROUND
This case arises from the alleged wrongful death of
Linda Elam (“Elam”). Elam was a resident at
Plaintiffs’ nursing home, Brookdale Richmond Place,
in Lexington, Kentucky (hereinafter, “the facility”)
from June 15, 2020 through July 8, 2020. On July 8,
2020, Elam was hospitalized and diagnosed with
“multiple pressure ulcers, sepsis, dehydration, and
malnutrition[.]” (DE 35 at 1-2). She subsequently died
on July 13, 2020. (Id. at 2.)
Elam’s sister and Attorney-in-Fact, Bonnie Townsend
(“Townsend”), filed an initial Complaint in Fayette
Circuit Court against Plaintiffs and Becky Stocker, in
her capacity as Administrator of the facility, seeking
compensatory and punitive damages. (Id.) Plaintiffs
later filed a Complaint in this Court, asking that that
the Court compel arbitration of the
state court action and enter an order enjoining
Townsend from advancing the state court claims.
While Townsend argued that the relevant arbitration
agreement was not valid nor legally enforceable, the
Court (following a successful motion to reconsider)
ultimately compelled arbitration on all claims except
for the wrongful death claims of the nonsignatory
beneficiaries. (DE 15.)
Arbitration in this matter, directed by retired
Judge Thomas E. McDonald, III (hereinafter, “the
Arbitrator”), took place from April 22, 2024 to April
Pet. App. 20
29, 2024. Following the submission of proposed
findings of fact and conclusions of law by the parties,
the Arbitrator issued his Findings of Fact and
Conclusions of Law on June 24, 2024. His conclusions
found in favor of Plaintiffs on all claims. Now that
arbitration has concluded, Townsend asks the Court
to reconsider its prior order compelling arbitration
and/or vacate the arbitration award in this matter.
(DEs 35, 38.) Plaintiffs ask that the Court confirm the
arbitration award. (DE 70.)
II. ANALYSIS
A. Motion to Reconsider
Motions to reconsider are construed as motions
to alter, amend, or vacate pursuant to Federal Rule of
Civil Procedure 59(e). Moody v. Pepsi-Cola Metro.
Bottling Co., 915 F.2d 201, 206 (6th Cir. 1990). The
standard for a motion under Rule 59(e) is “necessarily
high.” Hewitt v. W. & S. Fin. Grp. Flexibly Benefits
Plan, CIVIL ACTION NO. 16-120-HRW, 2017 WL
2927472, at *1 (E.D. Ky. July 7, 2017). The moving
party may not use a Rule 59(e) motion as a tool to “relitigate issues the Court previously considered.” Id. at
*1. A court may only grant a Rule 59(e) motion if the
moving party sets forth: (1) a clear error of law; (2)
newly discovered evidence; (3) an intervening change
in the controlling law; or (4) a manifest injustice.
GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804,
834 (6th Cir. 1999) (citations omitted). Further, “Rule
59(e) motions cannot be used to present new
arguments that could have been raised prior to
judgment.” Howard v. U.S., 533 F.3d 472, 475 (6th
Cir. 2008). It “allows for reconsideration; it does not
permit parties to effectively ‘re-argue a case.’” Id.
Pet. App. 21
(quoting Sault Ste. Marie Tribe of Chippewa Indians
v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)
(explaining that a district court “may well deny the
Rule 59(e) motion on that ground.”)). Plaintiffs do not
dispute
Townsend’s
ability
to
move
for
reconsideration but rather address her arguments on
the merits.
Townsend argues the following in support of
her motion to reconsider: (1) that it was clear error
and a manifest injustice to compel her to arbitrate and
waive her rights and access to the courts; and (2) that
there has been an intervening change in controlling
law, found in LP Louisville Lynn Way, LLC v. Woford,
701 S.W.3d 836 (Ky. Ct. App. 2024). Yet a review of
the record and Townsend’s motion shows that her
former arguments are attempts to relitigate
arguments that the Court previously addressed. (DEs
15, 19.) The Court has already discussed the general
validity of the arbitration agreement and the issue of
the capacity of Townsend’s signature in a previous
opinion. (DE 15 at 4-7.) It is clear that the primary
focus of her motion to reconsider is the assertion that
the Kentucky Court of Appeals has changed the
controlling law on the power of attorney issue.
Accordingly, the Court will limit its analysis to the
argument that Townsend did not have the proper
delegated authority to enter into an arbitration
agreement on behalf of Elam pursuant to the relevant
power of attorney instrument (hereinafter, “the Elam
POA”) and Woford.1
1 At the time of the filing of the motion to reconsider, Woford was
not a final opinion and pending the Kentucky Supreme Court’s
Pet. App. 22
The Court must first decide whether Woford
constitutes an intervening change in controlling law.
An “intervening change in law” means a change in
underlying principles. United States v. Campbell, 168
F.3d 263, 269 (6th Cir. 1999) (explaining that a
clarification of the law does not constitute a change in
the underlying principles of the law). “Where a
movant points to a “new” holding that merely reflects
the basis for the court’s previous ruling, there is no
intervening change in law.” Brookdale Senior Living,
Inc. v. Caudill, No. 5:14-098-DCR, 2015 U.S. Dist.
LEXIS 134912, at *5 (E.D. Ky. Oct. 1, 2015) (citing
United States ex rel. SNAPP, Inc. v. Ford Motor Co.,
618 F.3d 505, 513 (6th Cir. 2010)).
Here, the Court is unconvinced that Woford
constitutes an intervening change in controlling law.
The primary issue that Woford discussed was whether
the relevant POA instrument authorized the
Attorney-in-Fact to sign and effectuate a valid
arbitration agreement. Woford, 701 S.W.3d at 840.
The Kentucky Court of Appeals emphasized,
consistent with prior case law, that “[a]n attorney-infact can assent on the principal’s behalf only if the
POA instrument confers the authority to do so.” Id. at
841. It restates the Kentucky Supreme Court’s
guidance regarding the construction of a POA, which
“is consistent with section 37 of the Restatement
(Second) of Agency,” and applies that guidance to the
underlying facts. Id. Specifically, the appeals court
decision to grant discretionary review. The Kentucky Supreme
Court has since declined to grant discretionary review. Thus, the
Woford opinion is now final and this Court will consider it as
such.
Pet. App. 23
found that because the Woford POA identified specific
acts, it found that the POA’s general expressions of
authority were limited to the type of transactions or
business to which the POA primarily relates. Id.
Because the Woford POA related to managing
property and financial affairs, it noted that Kentucky
courts “have repeatedly held that a pre-dispute
arbitration agreement waiving the principal’s
constitutional rights does not fall within [that]
authority.” Id. at 842.
Nothing in the Kentucky Court of Appeals’
Woford opinion seeks to change the underlying
principles of the construction of POA instruments. It
does not indicate that the appeals court is overturning
or abrogating any prior case law. It simply applies the
relevant principles regarding POA construction to the
facts and finds that the arbitration agreement was not
valid because the attorney-in-fact was not authorized
to execute such an agreement. Accordingly,
Townsend’s argument for reconsideration on the basis
of Woford being an intervening change in controlling
law fails.
Even if the Court were to address the
applicability of Woford to the instant case, it does not
support Townsend’s argument and demonstrate a
clear error of law. First, the POA in Woford is
distinguishable from the Elam POA. In Woford, it is
clear from the plain language of the instrument that
the primary purpose was to manage relating to “real
estate or personal property”. (DE 65-4 at 1.) It states
as much in the very first sentence. The Elam POA is
not so limited—directing Townsend to “manage and
control all of my property and business of every
Pet. App. 24
kind, with full power and authority to act for me and
in my name and stead, and to act for me in every
lawful way as I might or could do personally,
including the following specific powers which are
not to be construed in any way as limiting or
restricting the general powers granted to my
attorney-in-fact[.]” (DE 65-1 at 1 (emphasis added).)
While Woford stands for the conclusion that
“[u]nless otherwise agreed, general expressions
used in authorizing an agent are limited in application
to acts done in connection with the act or business to
which the authority primarily relates[,]” the Elam
POA falls squarely within the rule’s exception. See
Restatement (Second) of Agency § 37 (1958). Here,
Elam and Townsend agreed in the plain language of
the contract that the enumerated specific powers
would not “be construed in any way as limiting or
restricting the general powers granted to my attorneyin-fact[.]” Although the Elam POA does not expressly
authorize Townsend to enter into arbitration
agreements, the Court can find no reasonable
interpretation of it that would limit her authority to
do so on Elam’s behalf. Accordingly, the Court will
deny Townsend’s motion to reconsider.
B. Motion to Vacate Arbitration Award
Next, Townsend contests the arbitration
proceedings by arguing that: (1) the award was
procured by undue means; (2) the Arbitrator
demonstrated evident partiality; (3) her rights were
prejudiced by other misbehavior; (4) the Arbitrator
exceeded his powers and so imperfectly executed them
that a proper award was not made; (5) there was a
material mistake in the description of a person, thing,
Pet. App. 25
or property referred to in the award; and (6) the award
was made in manifest disregard of the law. (DE 38 at
9-10.) Specifically, Townsend argues that the
Arbitrator abdicated his role and acted improperly by:
(1) imposing an improper “certainty” burden of proof
on Townsend; (2) holding that Plaintiffs could not be
responsible for the care provided at their facility so
long as there were agents who were not employees
involved in the care; (3) ruling that Plaintiffs could not
be responsible for their own failure to follow clear
orders when they claimed they ran out of appropriate
air mattresses to prevent pressure injuries; and (4)
construing nearly every issue against Townsend. (DE
38 at 5.)
The Federal Arbitration Act (FAA) lays out
various instances in which courts may vacate an
arbitration award. These include, as Townsend
argues, “where the award was procured by . . . undue
means;” “where there was evident partiality . . . in the
arbitrators[;]” “where the arbitrators were guilty of
misconduct . . . in refusing to hear evidence pertinent
and material to the controversy; or of any other
misbehavior by which the rights of any party have
been prejudiced;” or “where the arbitrators exceeded
their powers, or so imperfectly executed them that a
mutual, final, and definite award upon the subject
matter submitted was not made.” 9 U.S.C. § 10(a)(1)(4). The Kentucky Arbitration Act, KRS §
417.160(1)(a)-(d), lists similar reasons to vacate an
arbitration award.
Yet “[w]hen courts are called on to review an
arbitrator’s decision, the review is very narrow; it is
one of the narrowest standards of judicial review in all
Pet. App. 26
of American jurisprudence.” Samaan v. Gen.
Dynamics Land Sys., 835 F.3d 593, 600 (6th Cir. 2016)
(quoting Uhl v. Komatsu Forklift Co., Ltd., 512 F.3d
294, 305 (6th Cir. 2008)). “Courts must refrain from
reversing an arbitrator simply because the court
disagrees with the result or believes the arbitrator
made a serious legal or factual error.” Solvay Pharms.,
Inc. v. Duramed Pharms., Inc., 442 F.3d 471, 476 (6th
Cir. 2006) (brackets, citation, and emphasis omitted).
In fact, there is a “presumption that arbitration
awards will be confirmed.” Nationwide Mut. Ins. Co.
v. Home Ins. Co., 429 F.3d 640, 643 (6th Cir. 2005).
First, a quick review of the record shows that
the Arbitrator did not apply the incorrect burden of
proof. Townsend focuses on the Arbitrator’s passing
use of the phrase “cannot be certain” during his
analysis of the negligence and wrongful death claims
to argue that he used a “certainty” standard of proof
rather than a “preponderance of the evidence” one. Yet
the Arbitrator explains that Townsend “must prove,
by a preponderance of the evidence,” the existence of
the relevant elements. (DE 46-1 at 24.) When read in
context, it is clear that the Arbitrator’s statement that
he “cannot be certain that Ms. Elam had developed the
precise wounds shown in the photographs taken by
the hospital staff at UK Medical Center on July 9,
2020 during her residency at Brookdale Richmond
Place” was not him imposing a higher standard of
proof, but instead conveying his doubt regarding proof
of the causation element. (Id. at 28-29.) The
Arbitrator, in his analysis, reviewed the record and
found that Townsend failed to prove her claims by a
preponderance of the evidence. One word does not
Pet. App. 27
convince this Court that the arbitrator disregarded
the relevant standard of proof and employed a higher
one.
Second, Townsend argues that the Arbitrator
incorrectly held that the nursing home cannot be
responsible for certain nursing home agents—
specifically, the primary care physicians in charge of
Elam’s care. (DE 38 at 16.) The Court is persuaded
that regardless of whether the Arbitrator’s statement
was a misstatement of law, it amounts to harmless
error. Plaintiffs correctly point out that Townsend
“did not name the primary care providers in the
Arbitration or the State Action, nor did she direct
allegations of negligence toward them during
discovery or at the Final Hearing.” (DE 48 at 22.)
Townsend was primarily focused on alleged
misconduct of the nursing team; she did not allege
misconduct of the primary care providers. Further,
the Arbitrator separately found that Townsend’s
experts did not show that the providers “would or
could have done anything differently” if the nursing
staff had communicated what Townsend argues was
absent from its documentation. (DE 46-1 at 27.) Even
if this was a misstatement of the law, it did not affect
the Arbitrator’s underlying decision and does not
constitute a “manifest injustice.”
Third, Townsend argues that the Arbitrator
incorrectly held that there was no liability when
Plaintiffs disregarded their own care plan and failed
to put Elam on an appropriate air mattress. (DE 38 at
20.) This argument boils down to Townsend
disagreeing with how the arbitrator weighed the
evidence, finding there was likely a mattress
Pet. App. 28
malfunction when Elam was not using an air
mattress. Townsend further claims that the
Arbitrator “completely dismiss[ed]” Dr. Barzyk’s
opinions about the delay in providing a proper air
mattress, but a review of the arbitration award shows
that claim is demonstrably false. The Arbitrator
explained that he found Dr. Barzyk’s opinions not “to
be any more credible than that of several other
witnesses who stated that the static foam mattresses
. . . do provide pressure redistribution.” 2 It is not this
Court’s duty to fight against the factual findings of the
Arbitrator. Further, the Court is persuaded that even
if the Arbitrator should have found a breach on this
issue, he found that Townsend’s claim fails on the
causation element. Such an error would be harmless.
Fourth,
Townsend
presents
a
broad
argument—claiming that the Arbitrator “slanted
every material issue against” her and in favor of
Plaintiffs. (DE 54 at 12.) Yet this, too, is another
argument asking the Court to review the underlying
issues of the arbitration. The Court “must refrain from
reversing an arbitrator simply because the court
disagrees with the result or believes the arbitrator
made a serious legal or factual error.” Solvay Pharms.,
Inc. v. Duramed Pharms., Inc., 442 F.3d 471, 476 (6th
Cir. 2006) (brackets, citation, and emphasis omitted).
Townsend defends herself by claiming that this
argument is not an attack on the factual findings
because “every single material fact, inference and
2 Contrary to Townsend’s claim, the arbitrator makes this point
to explain that the foam mattress may have provided the
pressure redistribution Elam needed under her care plan.
Pet. App. 29
opinion was construed and slanted in favor of
Plaintiffs.” (DE 54 at 13.) This, she claims, shows
partiality on the part of the Arbitrator.
“[E]vident partiality will be found where a
reasonable person would have to conclude that an
arbitrator was partial to one party to the arbitration.”
Nationwide Mut. Ins. Co. v. Home Ins. Co., 429 F.3d
640, 645 (6th Cir. 2005) (quotation marks and citation
omitted). “[T]he party seeking invalidation must
demonstrate more than an amorphous institutional
predisposition towards the other side; a lesser
showing would be tantamount to an ‘appearance of
bias’ standard.” Id. “The alleged partiality must be
direct, definite, and capable of demonstration, and the
party asserting [it] . . . must establish specific facts
that indicate improper motives on the part of the
arbitrator.” Id. (quotation marks omitted). This is a
case-by-case objective inquiry. Id.
Here, Townsend does not allege a substantial
prior relationship between the Arbitrator and
Plaintiffs. Despite her claims otherwise, her argument
focuses solely on the findings of the Arbitrator and his
weighing of the evidence. Townsend provides no
authority that disagreement with the findings and
conclusions of the Arbitrator, without more, is enough
to find evident partiality and vacate the arbitration
award. Accordingly, the Court finds that Townsend
has failed to show evident partiality that is direct,
definite, and capable of demonstration, nor has
Townsend established specific facts indicating
improper motives on the part of the Arbitrator.
Finally, in a supplemental briefing, Townsend
points to the Arbitrator’s prior public censure in
Pet. App. 30
arguing for renewed arbitration. She claims that she
learned of the public censure, relating to “moral
turpitude and dishonesty in [the Arbitrator’s] judicial
capacity,” only after the filing of her motion to vacate
the arbitration award. (DE 58 at 2.) She asserts that
the failure of the Arbitrator to disclose this
information should require that the arbitration be
vacated in its entirety and conducted before a
different arbitrator. (Id.)
In 1990, the Commonwealth of Kentucky
Judicial Retirement and Removal Commission
(JRRC) found that the Arbitrator “campaign
contributions from attorneys in private practice in
Jefferson County” and “solicited contributions from
certain attorneys in connection with their
appointment as guardian ad litem in juvenile cases in
his court.” (DE 58-1 at 1.) Finding that his actions
amounted to judicial misconduct, the JRRC chose to
publicly censure the Arbitrator after he withdrew
from a judicial campaign for a seat on the Kentucky
Court of Appeals, returned all contributions, and
provided the JRRC with evidence of the refunds.
Townsend argues that the failure to disclose this
misconduct meets the criteria to vacate an arbitration
award under 9 U.S.C. § 10(a)(1)-(3).
However, Townsend fails to explain how a
public censure from 35 years ago has any bearing on
the underlying arbitration proceedings. She appears
to argue, without evidence, that “economic theory”
might support the Arbitrator being “either consciously
or subconsciously” biased against her. (DE 58 at 8.)
She asserts, without evidence, that Plaintiffs “provide
a reasonable likelihood of repeat financial and
Pet. App. 31
political reward” to the Arbitrator if he gives them
favorable outcomes. (Id.) Townsend attempts to
invoke Commonwealth Coatings Corp. v. Cont’l Cas.
Co., 393 U.S. 145 (1968) in support of its disclosure
argument, but its facts are wholly dissimilar to the
instant case. In Commonwealth Coatings Corp., the
arbitration award was set aside because the arbitrator
did not disclose a prior financial relationship
between the arbitrator and one of the parties.
393 U.S. at 146, 150. The United States Supreme
Court stressed that “an atmosphere of frankness at
the outset” is best, “through disclosure by the
arbitrator of any financial transactions which he had
had or is negotiating with either of the parties.” Id.
at 151 (White, J., and Marshall, J., concurring)
(emphasis added). In other words, the Supreme Court
was primarily concerned about the undisclosed
relationships between arbitrators and parties. This
type of disclosure issue in not implicated in regard to
the public censure.
Townsend, in her supplemental reply, asserts
that the Arbitrator has worked on a similar case with
Plaintiffs that settled back in July 2021. Yet this
apparent nondisclosure is still not enough to violate
the FAA. The Sixth Circuit has explained that “not
every nondisclosure violates the FAA” and a
challenging party “must show that a reasonable
person would have to conclude that an arbitrator was
partial to the other party to the arbitration.” Uhl v.
Komatsu Forklift Co., 512 F.3d 294, 306 (6th Cir.
2008) (citing Apperson v. Fleet Carrier Corp., 879 F.2d
1344, 1358 (6th Cir. 1989)) (quotation marks omitted).
Here, Townsend points to a case that settled before an
Pet. App. 32
arbitration award could be handed down. Perhaps
Townsend’s argument might have held some weight if
the Arbitrator issued an uneven award in favor of
Plaintiffs—but that is not the case. A reasonable
person would not have to conclude that an arbitrator
was partial to Plaintiffs because they presided over a
previous arbitration that settled before an award
could be issued. Accordingly, the Court finds that any
nondisclosures by the Arbitrator in this matter are not
enough to warrant vacating the arbitration award.
C. Motion to Confirm Arbitration Award
For the reasons stated in Section II.B, the
Court declined to vacate the arbitration award in this
matter. On application of one of the parties, a district
court possessing a basis for subject-matter jurisdiction
independent of the FAA must issue an order
confirming an arbitration award “unless the award is
vacated, modified, or corrected as prescribed in” 9
U.S.C. §§ 10 and 11. 9 U.S.C. § 9. While this motion is
not fully briefed, the Court finds briefing unnecessary
because it does not present new arguments.
Accordingly, having declined to vacate the arbitration
award pursuant to the FAA, the Court will confirm the
arbitration award in this matter.
III. CONCLUSION
For the aforementioned reasons, the Court
hereby ORDERS as follows:
1) Townsend’s Motion to Reconsider Order
Compelling Arbitration (DE 35) is
DENIED;
2) Townsend’s Motion to Amend, Modify,
Correct, or Vacate Arbitration Award and
Pet. App. 33
Order Rehearing (DE 38) is DENIED; and
3) Plaintiffs’ Motion to Confirm Arbitration
Award (DE 70) is GRANTED, in that the
June 24, 2024 arbitration award entered by
arbitrator Thomas E. McDonald, III is
CONFIRMED pursuant to the Federal
Arbitration Act.
June 27, 2025
/s/ Karen L. Caldwell
Karen L. Caldwell
United
States
District
Judge
Eastern
District
of
Kentucky
Pet. App. 34
APPENDIX C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTONCASE
NO. 5:21-CV-223-KKC
BLC LEXINGTON SNF, LLC d/b/a
BROOKDALE RICHMOND PLACE SNF;
BROOKDALE SENIOR LIVING
COMMUNITIES, INC.; BROOKDALE
SENIOR LIVING INC.; and AMERICAN
RETIREMENT CORPORATION,
Plaintiffs,
v.
BONNIE TOWNSEND, Executrix of the
Estate of LINDA ELAM,
Defendant.
ORDER
*** *** ***
This matter is before the Court on defendant
Bonnie Townsend’s motion for reconsideration and
modification of order (DE 16). The Court ORDERS
Townsend’s motion is GRANTED and the Opinion and
Order (DE 15) is amended as follows.
I.
On July 2, 2021 Townsend, acting as executrix
Pet. App. 35
of the estate of Linda Elam, filed a complaint against
BLC Lexington SNF, et al., in Fayette Circuit Court.
The complaint alleged medical negligence, corporate
negligence, and statutory rights violations, all
stemming from Elam’s care and eventual death at
Brookdale Richmond Place, a long-term care facility
owned, operated, and managed by plaintiffs. Notably,
this original complaint did not include a cause of
action for wrongful death. (DE 1, #2).
On August 26, 2021, BLC filed an action in this
Court to compel arbitration and enjoin Townsend
from pursuing her action in state court (DE 1).
Townsend subsequently moved to dismiss and
plaintiffs again moved to compel arbitration and
enjoin Townsend’s state court action. (DE 6, 7). On
May 27, 2022, the Court entered its opinion and order
denying Townsend’s motion to dismiss and granting
plaintiffs’ motion to compel arbitration and enjoin the
state court action. (DE 15). The Court addressed (and
rejected) Townsend’s numerous arguments, including
lack of subject matter jurisdiction, failure to join an
indispensable party, and the invalidity of the
underlying arbitration agreement. The Court did not
consider one of Townsend’s arguments, however.
Townsend argued that the arbitration agreement did
not bind the wrongful death beneficiaries in this case.
The Court, correctly noting that Townsend’s original
state court
complaint did not contain any wrongful death claims,
refused to consider the issue. (DE 15, at 6).
On May 6, 2022, three weeks before the Court
issued its opinion and order in this matter, Townsend
filed an amended complaint in Fayette Circuit Court.
Pet. App. 36
Townsend amended the complaint to include the
wrongful death claims she argued in her original
motion to dismiss but that were inexplicably absent
from her original state court complaint. (DE 14, #1).
This first amended complaint did not appear on the
Court’s docket until May 27, 2022, when Townsend
filed a supplemental reply to her motion to dismiss,
attaching the amended complaint. (DE 14). This
happened on the same day that the Court issued its
opinion and order. Thus, the Court was unaware of
this amended complaint when it rightfully refused to
consider Townsend’s wrongful death arguments.
This timely motion to reconsider followed.
II.
“[D]istrict courts have inherent power to
reconsider interlocutory orders and reopen any part of
a case before entry of a final judgment.” In re Saffady,
524 F.3d 799, 803 (6th Cir. 2008). Motions to
reconsider are generally construed as motions to alter
or amend a judgment under Rule 59(e) of the Federal
Rules of Civil Procedure. Moody v. Pepsi-Cola Metro.
Bottling Co., 915 F.2d 201, 206 (6th Cir. 1990).
Because such motions are not opportunities to reargue a case, a court may only grant a Rule 59(e)
motion if the moving party shows (1) a clear error of
law; (2) newly discovered evidence; (3) an intervening
change in the controlling law; or (4) a manifest
injustice. GenCorp, Inc. v. Am. Int’l Underwriters, 178
F.3d 804, 834 (6th Cir. 1999) (citations omitted).
Though Townsend argues the Court should modify its
order under Rule 54(b), “the standard for
reconsidering interlocutory orders under Rule 54(b) is
the same as the standard under Rule 59(e).”
Pet. App. 37
Brookdale Senior Living, Inc. v. Caudill, No. CV 5: 14098-DCR, 2015 WL 5822633, at *2 n.2 (E.D. Ky. Oct.
1, 2015).
III.
Townsend’s one and only argument is that the
Court should reconsider and modify its opinion and
order to allow her to proceed with any existing
wrongful death claims in state court. The Court issued
its original opinion and order without any knowledge
of Townsend’s amended complaint. But the complaint
now includes the appropriate wrongful death claims.
These claims were added (and granted by the state
court), weeks before this Court issued the relevant
order. Because it would be manifestly unjust to refuse
to consider arguments regarding existing claims in a
proper complaint3, the Court will now consider the
wrongful death claims.
Under Kentucky law, a decedent or
representative of a decedent cannot bind a wrongful
death beneficiary to an arbitration agreement. Ping v.
Beverly Enters., Inc., 376 S.W.3d 581, 597–99 (Ky.
2012); “Whenever the death of a person results from
an injury inflicted by the negligence or wrongful act of
another” a representative of the decedent can bring a
claim for damages against the person or agent who
caused the death. Ky. Rev. Stat. § 411.130(1). “[T]he
Plaintiffs argue that Townsend’s wrongful death claims are
time-barred pursuant to KRS 413.140. This issue is not before
the Court. The Court is only considering whether Townsend’s
particular claims are compelled to arbitration and enjoined in the
state court. The Court notes, however, that the Fayette Circuit
Court granted Townsend’s motion to file the amended complaint
on May 2, 2022. (DE 14, #2).
3
Pet. App. 38
wrongful death claim is not derived through or on
behalf of the [decedent] but accrues separately to the
wrongful death beneficiaries and is meant to
compensate them for their own pecuniary loss.” Ping,
376 S.W.3d at 599. Thus, wrongful death beneficiaries
who do not sign the arbitration agreement are not
parties to the agreement and their claims are not
subject to an order compelling arbitration. See
Richmond Health Facilities-Madison, L.P. v. Shearer,
No. CV 5:17-255-KKC, 2017 WL 3273381, at *6 (E.D.
Ky. Aug. 1, 2017).
But statutory beneficiaries who do sign an
arbitration agreement do elect to arbitrate their
wrongful
death
claims—because
resident
representatives are in fact parties to the contract. See
BLC Lexington SNF, LLC v. Oatis, No. CV 5:19-284DCR, 2019 WL 6221006, at *14 (E.D. Ky. Nov. 20,
2019) (daughters who signed a care facility arbitration
agreement as representatives bound to arbitrate their
wrongful death claims); Diversicare Leasing Corp. v.
Hall, No. CV 15-29-HRW, 2016 WL 10654078, at *1
(E.D. Ky. Aug. 8, 2016) (a wrongful death beneficiary
who signed a valid arbitration agreement “was thus a
party to it”); BLC Lexington SNF, LLC v. Petersen, No.
CV 5:19-465-GFVT, 2020 WL 3130292, at *10 (E.D.
Ky. June 12, 2020) (citing Richmond Health Facilities
v. Nichols, 811 F.3d 192, 199 (6th Cir. 2016)).
Townsend is Elam’s surviving sibling. Because
Elam left no surviving spouse, children, or parents,
Townsend is a beneficiary under KRS 411.130(e).
Townsend signed the arbitration agreement acting as
resident representative and is therefore a party to the
agreement. Townsend, in her capacity as a wrongful
Pet. App. 39
death beneficiary herself, is bound to commit her own
wrongful death claims to arbitration. Though
plaintiffs seem to suggest that this ends the inquiry,
there remains the matter of the additional wrongful
death beneficiaries, as outlined in Townsend’s
amended state court complaint and her pleadings to
this Court (DE 6, 11, 16). As to the non-signatory
wrongful death beneficiaries, the law is clear: they are
not parties to the arbitration agreement. Townsend
may pursue their claims in court. The opinion and
order (DE 15) is modified only as to the issue of the
wrongful death claims.
IV.
Accordingly, for the reasons set forth herein,
the Court hereby ORDERS that the motion to
reconsider is GRANTED. The Court’s May 27, 2022
Opinion and Order (DE 15) is MODIFIED as follows:
(1) Defendant’s motion to dismiss (DE 6) is
DENIED IN PART and GRANTED IN PART. The
motion to dismiss is GRANTED as to the claim to
compel arbitration in the wrongful death claims of the
non-signatory
beneficiaries,
which
are
not
encompassed by the arbitration agreement. The
motion to dismiss is DENIED in all other respects.
(2) Plaintiffs’ motion to compel arbitration and
to enjoin Defendant (DE 7) is GRANTED IN PART
and DENIED IN PART. The motion to compel is
DENIED as to the wrongful death claims of the nonsignatory beneficiaries but is GRANTED in all other
respects.
(3) Defendant is ENJOINED from pursuing
any potential wrongful death claim as a beneficiary
Pet. App. 40
herself, as well as all other claims in Fayette Circuit
Court, except for the wrongful death claims of the
other, non-signatory beneficiaries.
(4) Pursuant to 9 U.S.C. § 3, further
proceedings in this matter are STAYED until the
conclusion of the ordered arbitration; and
(5) The parties SHALL file a joint status report
regarding the progress of arbitration by
January 7, 2023
/s/ Karen L. Caldwell
Karen L. Caldwell
United
States
District
Judge
Eastern
District
of
Kentucky
Pet. App. 41
APPENDIX D
No. 25-5675
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BLC LEXINGTON SNF, LLC; BROOKDALE
SENIOR
LIVING
COMMUNITIES,
INC.;
BROOKDALE SENIOR LIVING INC.; AMERICAN
RETIREMENT CORPORATION,
Plaintiffs-Appellees,
v.
BONNIE TOWNSEND, Executrix of the Estate of
Linda Elam,
Defendant-Appellant.
ORDER
FILED
Apr 27, 2026
KELLY L. STEPHENS, Clerk
BEFORE: BATCHELDER, THAPAR, and MATHIS,
Circuit Judges.
The court received a petition for rehearing en
banc. The original panel has reviewed the petition for
rehearing and concludes that the issues raised in
the petition were fully considered upon the original
Pet. App. 42
submission and decision of the case. The petition then
was circulated to the full court. No judge has
requested a vote on the suggestion for rehearing en
banc.
Therefore, the petition is denied.
ENTERED BY ORDER OF THE COURT
/s/ Kelly L. Stephens
Kelly L. Stephens, Clerk
Pet. App. 43
APPENDIX E
IN RE ARBITRATION OF
BONNIE TOWNSEND, EXECUTRIX,
ESTATE OF LINDA ELAM
PLAINTIFF
BLC LEXINGTON SNF, LLC d/b/a BROOKDALE
RICHMOND PLACE SNF d/b/a RICHMOND PLACE
REHABILITATION AND HEALTH CENTER, et al.
DEFENDANT
*****
I. Introduction
This matter came before the Arbitrator for a
final hearing that began on April 22 and ended on
April 29,2024. The Plaintiff was represented by Todd
Varellas and Jeremy Prichard of Varellas & Varellas
PLLC. The Defendants were represented by Kif
Skidmore and Connor Egan of Stoll Keenon Ogden
PLLC.
After a few preliminary matters were
addressed, the final hearing began with opening
statements from counsel. The Arbitrator then heard
testimony from seven fact witnesses, including Becky
Stocker, Breanne Lutes, Steven Richardson, Amber
Hinkle a/k/a Amber Moon, Karen Hatfield, Lisa
Dotson, and Bonnie Townsend, and seven expert
witnesses, including Tisha Barzyk, D.N.P, John
Cascone, M.D., Byron Arbeit, Melissa Todd, Martha
Kelso, Mark Elam, M.D., and Rodney Whittington.
The Arbitrator also admitted 98 exhibits into
evidence. The final hearing concluded with closing
Pet. App. 44
statements from counsel.
At the conclusion of closing statements,
counsel agreed to submit proposed findings of fact and
conclusions of law. Counsel submitted their proposed
findings of fact and conclusions of law on May 15,
2024. This matter is now ripe for a decision.
II. Findings of Fact4
A. The Parties
The Plaintiff is Bonnie Townsend, the sister of
Linda Elam and the executrix of Ms. Elam's estate.
Ms. Townsend asserts claims arising out of Ms. Elam'
s residency at a skilled nursing facility operated by
Defendant BLC Lexington SNF, LLC d/b/a Brookdale
Richmond Place d/b/a Richmond Place Rehabilitation
and Health Center ("Brookdale Richmond Place"). Ms.
Elam resided at Brookdale Richmond Place from June
15 until July 8, 2020. Ms. Elam passed away while in
hospice care on July 13, 2020.
The Defendants are (1) Brookdale Richmond
Place, (2) ARC Richmond Place, LLC d/b/a Brookdale
Richmond Place PCH, Brookdale Senior Living
Communities, Inc., Brookdale Senior Living, Inc.,
American Retirement Corporation (the "Non-Facility
Defendants"), and (3) Becky Stocker, in her capacity
as the administrator of Brookdale Richmond Place.
Ms. Stocker was the administrator of Brookdale
Richmond Place during Ms. Elam' s residency. Ms.
Stocker testified that she has worked in nursing
4 The Arbitrator bases his findings of fact on the testimony and
exhibits from the final hearing. In preparing this section, the
Arbitrator was assisted greatly by the parties' proposed findings
of fact.
Pet. App. 45
homes for 37 years and as an administrator of nursing
homes for 23 years. Ms. Stocker further testified that,
as the administrator of Brookdale Richmond Place,
she had the responsibility of overseeing directors of
various departments, including the clinical services or
nursing department, who, in turn, managed
employees working within those departments.
B. Ms. Elam's Prior Medical History
Prior to her admission at Brookdale Richmond
Place in June 2020, Ms. Elam had developed a
complicated and extensive medical history. Ms. Elam
had suffered from uterine cancer, for which she was
treated with a radioactive implant. Ms. Elam
thereafter was plagued by pelvic complications, which
her treating physicians attributed to her prior
radiation treatment.Ms. Elam also experienced
chronic
urinary
tract
infections
("UTIs"),
hydronephrosis (i.e. swelling of the kidneys) requiring
ureteral stents to drain urine, hernia repair,
gastroesophageal reflux disease, and a colectomy with
removal of twelve inches of her colon from radium
exposure.
On January 3, 2020, Ms. Elam was hospitalized
at Clark Regional Medical Center ("CRMC") for a
bowel obstruction and Clostridium difficile ("C. diff')
infection. On April 17, 2020, Ms. Elam visited CRMC
again for a UTI. On April 27, 2020, Ms. Elam returned
to CRMC and was transferred emergently to the
University of Kentucky Medical Center ("UK Medical
Center) to have her ureteral stents replaced, a
procedure which had been delayed by the COVID-19
pandemic. On April 28, 2020, Ms. Elam' s treating
physicians at UK Medical Center found "[c]opious
Pet. App. 46
debris and purulent urine" in Ms. Elam's bladder and
aspirated a combined 50 milliliters (mL) of "frank pus"
from her kidneys. From April 28 to May 6, 2020, Ms.
Elam remained hospitalized at UK Medical Center
with urosepsis (i.e. sepsis from a UTI) caused by a
vesicovaginal fistula, an abnormality that allows fluid
and material to pass between the vagina and the
bladder. Ms. Elam's treating physicians attributed the
fistula to prior radiation treatment and expressed
concern for continued infections because the fistula
was causing continuous "translocation of bacteria." An
earlier CT scan at CRMC also revealed an enlarging
lower abdominal density that had increased in size
since Ms. Elam's last scan and was described by her
treating physicians as a possible abnormal retrocaval
lymph node. Ms. Elam' s treating physicians
recommended a follow-up appointment and biopsy to
evaluate the suspected node, which was scheduled
with a gyn-oncologist on May 21, 2020.
Within a week after being discharged from UK
Medical Center on May 6, 2020, Ms. Elam, who was
76 years old, suffered a cerebrovascular accident or
stroke. Ms. Elam was readmitted to UK Medical
Center on May 13, 2020 with paralysis, dysphagia (i.e.
difficulty swallowing), confusion, and incontinence of
bowel and bladder. Ms. Elam's dysphagia required her
to establish an alternative feeding method through
the placement of a feeding tube. Ms. Townsend
testified that Ms. Elam had a living will expressing
her desire not to have a feeding tube, so she and other
members of Ms. Elam' s family requested that Ms.
Elam be placed in hospice care. Ms. Elam then
verbally indicated that she wanted a feeding tube and,
Pet. App. 47
on May 23, 2020, one was placed in her. On May 26,
2020, Ms. Elam was discharged from UK Medical
Center
and
transferred
to
Cardinal
Hill
Rehabilitation Hospital ("Cardinal Hill"). As shown by
her neurological exam, at the time of her discharge
from UK Medical Center, Ms. Elam was exhibiting no
spontaneous movement in her right upper and lower
extremities. Ms. Elam was in stable condition and
oriented to time, place, and self and able to follow
commands and had increased wakefulness with
improvement in her speech and the ability to
communicate her needs. Both Breanne Lutes and
Steven Richardson, Ms. Elam' s grandchildren,
testified that they either visited or spoke to Ms. Elam
on multiple occasions during her stay at UK Medical
Center and that, while there, Ms. Elam continued to
improve and was able to ambulate and communicate
coherently. Ms. Elam was not diagnosed with any
terminal illnesses or conditions during her stay at UK
Medical Center.
From May 26 to June 15, 2020, Ms. Elam
remained at Cardinal Hill for temporary acute
rehabilitation following her stroke. During her
residency at Cardinal Hill, Ms. Elam suffered from
diarrhea and incontinence associated with C. diff,
which began as early as May 30, 2020. Ms. Elam also
received treatment for two other UTls on June 1 and
14, 2020. The diarrhea and incontinence resulted in
skin breakdown in Ms. Elam's perineal and gluteal
areas, which were described by her treatment
providers as "badly excoriated," "extremely excoriated
from diarrhea despite attempts at multiple creams
and medicated creams," "evidence of healing
Pet. App. 48
breakdown," and "diffuse areas of MASD [(i.e.
moisture-associated skin damage)] with clusters of
broken skin." Ms. Elam's records from Cardinal Hill
indicate that Ms. Elam was experiencing some
discomfort as a result of the skin breakdown, noting
that she was, on various occasions, "in excruciating
pain," "screaming in burning pain," and expressing
that her "butt hurts" and was "raw." Those same
records, however, also indicate that Ms. Elam was
tolerating up to three hours of physical therapy per
day, although she did resist therapy at times, that she
was alert with appropriate conversation, and that she
was able to communicate her needs, oriented to
herself and surroundings, and able to follow
commands. Though Ms. Elam was still using a feeding
tube at night to supplement her oral intake, she was
able to eat during the day. By the time of her
discharge, Ms. Elam's weight was around 140 to 145
pounds. Ms. Elam's creatinine and blood urea
nitrogen (BUN) levels also had declined, reflecting
that her renal failure from sepsis had returned back
to baseline and that she was receiving proper
hydration. Ms. Townsend, Ms. Lutes, and Mr.
Richardson all testified that they were able to visit or
speak to Ms. Elam on multiple occasions during her
stay at Cardinal Hill and that, while there, Ms. Elam
continued to progress, seemed noticeably better, and
did not voice any complaints about her physical
wellbeing.
C. Ms. Elam's Residency at Brookdale
Richmond Place
1. Ms. Elam’s Admission, Care Plan,
and Primary Care Providers
Pet. App. 49
On June 15, 2020, Ms. Elam was transferred
from Cardinal Hill and admitted to Brookdale
Richmond Place for short-term skilled rehabilitation
and nursing care, including physical, occupational,
and speech therapy, with the ultimate goal of
returning home. Ms. Elam' s admission to Brookdale
Richmond Place occurred during the first few months
of the COVID-19 pandemic. Ms. Townsend testified
that Brookdale Richmond Place was particularly
suitable for Ms. Elam because of her fear of
contracting COVID-19, given that Brookdale
Richmond Place had experienced no facility-acquired
cases of COVID-19. Throughout Ms. Elam's residency,
Brookdale
Richmond
Place
operated
under
government-mandated restrictions on visitations,
which limited family members to window visits and
FaceTime audio or video calls with residents. Because
of those restrictions, members of Ms. Elam's family
were unable to observe in person any changes in her
condition or treatment.
Throughout her residency at Brookdale
Richmond Place, Ms. Elam was under the care of her
own primary care providers, including Dr. Davanand
Doodnauth, Dr. Jesus Tovar, Arnie Osbourne, Stacy
Mills, and Patricia Garrett. Ms. Elam' s primary care
providers and their team members were independent
contractors and not employees of Brookdale Richmond
Place. Ms. Elam also was attended to, cared for,
observed, and evaluated by members of the nursing
staff at Brookdale Richmond Place, including Lisa
Dotson, the director of nursing, Amber Hinkle a/k/a
Amber Moon, a registered nurse who specializes in
infection control and wound care, and Karen Hatfield,
Pet. App. 50
a nurse manager.
Ms. Hatfield completed an assessment of Ms.
Elam upon her admission to Brookdale Richmond
Place on June 15, 2020. Ms. Hatfield's assessment
incorporated information from Cardinal Hill, as well
as her own assessment of and discussion with Ms.
Elam. Ms. Hatfield noted that Ms. Elam had
"macerated
associated
dermatitis/incontinent
associated dermatitis" on her left and right gluteal
folds related to an active C. diff infection. Ms. Hatfield
used the Braden Scale to assess Ms. Elam' s risk for
skin breakdown and placed her at high risk (i.e. she
had a score of nine on the Braden Scale) for developing
pressure injuries and as needing appropriate
planning and intervention. Ms. Hatfield did not
document Ms. Elam as having a history of skin issues,
any pressure sores, or a terminal diagnosis at the time
of her admission. Ms. Hatfield did note that Ms. Elam
appeared to be alert, had okay short- and long-term
memory, did not exhibit any inattention, disorganized
thinking, or altered consciousness, and was eating
50% of her meals consistently. Ms. Hatfield, however,
also noted that Ms. Elam reported blurred vision in
her right eye, feeling confused on occasion, and having
difficulty finding words, that Ms. Elam was able to
make her needs known but was required to repeat
herself on account of using the wrong words or
occasional slurring, that Ms. Elam was incontinent of
bowel and bladder, and that the incontinence was the
cause of the excoriation to Ms. Elam' s buttocks and
perineum. Ms. Hatfield's assessment also indicates an
awareness that Ms. Elam had received the following
diagnoses: hypertension; hyperlipidemia; dysphagia
Pet. App. 51
following stroke; hydronephrosis with renal and
ureteral calculous obstruction; artificial openings of
the digestive tract; dysarthria and anarthria; cerebral
infarction from an unspecified occlusion or stenosis of
the left cerebral artery; neuromuscular dysfunction of
the bladder; recurrent enterocolitis from C. diff; longterm use of aspirin; hemiplegia and hemiparesis
following cerebrovascular disease; and muscle
weakness. No information appears to have been
shared with Ms. Hatfield or any other member of
Brookdale Richmond Place's nursing staff concerning
the following: Ms. Elam's hospitalization for sepsis
from late April to early May 2020; Ms. Elam's
diagnosis for a vesicovaginal fistula; Ms. Elam's
enlarging lower abdominal density or the
recommendation for a follow-up biopsy; Ms. Elam' s
appointments with an infectious disease clinic and a
gyn-oncologist to evaluate her fistula and enlarging
lower abdominal density; or Ms. Elam's recent
consultation for hospice care.
In conjunction with her admission assessment,
Ms. Hatfield developed an interim care plan for Ms.
Elam, which included interventions for bathing, fall
risk, skin, communication deficits, visual function,
cognitive loss, and a feeding tube for nutrition and
hydration, among others. By June 18, 2020, Ms. Elam
had a comprehensive care plan in place, which
included areas of focus around infection, skin
integrity, COVID-19, bowel and bladder issues, fall
risk, diet, functional ability, advanced directives,
medication, mobility, and complications associated
with stroke. A sample of the interventions called for
by Ms. Elam' s care plan, both initial and as revised,
Pet. App. 52
included a right elbow protector, a pressure
redistribution mattress, seat cushions, an evaluation
of her skin conditions on a daily and weekly basis
(along with communication with her treating
physicians in the event of any complications),
assistance with turning and repositioning as needed,
the use of lift and transfer sheets to reduce friction
and shearing, and keeping her skin clean and dry.
In addition to developing and implementing a
care plan for Ms. Elam, the nursing staff at Brookdale
conducted numerous assessments and observations of
her during her residency through daily comprehensive
nursing notes, collaborative care reviews, change-incondition evaluations, and multidisciplinary progress
notes. The nursing staff completed comprehensive
nursing notes every day of Ms. Elam' s residency.
Those daily notes were reviewed regularly by
supervisory nurses and clinical management in daily
morning meetings and by Ms. Elam' s primary care
providers. A multidisciplinary team at Brookdale
Richmond Place, which included Gayla Smith, a
licensed practical nurse, Heather Richmond, the
social services coordinator at Brookdale Richmond
Place, Ms. Dotson, Rena Cochran, a registered nurse,
and Ms. Hinkle, also met on multiple occasions during
Ms. Elam' s residency to review her condition and
care, received regular updates concerning the same,
and made numerous revisions to her care plan based
on her needs. Ms. Elam' s care plan for skin integrity,
for example, was updated no less than six times
during her residency, including on June 18, June 19,
June 23, July 1, July 4, and July 6, 2020. Ms. Elam
also met regularly in person with her primary care
Pet. App. 53
providers, including Dr. Tovar, Ms. Osbourne, and
Ms. Mills. In total, Ms. Elam met in person with her
primary care providers on seven different occasions,
including on June 16, June 18, June 22, June 25, June
29, July 1, and July 7, 2020. Ms. Elam's primary care
providers
also
reviewed
notes
and
other
documentation completed daily by nursing staff at
Brookdale Richmond Place and received frequent
updates from them concerning changes in Ms. Elam's
condition, including on June 20, June 24, June 26,
June 27, June 29, July 1, July 3, July 4, July 6, and
July 8, 2020.
2. Interventions by the Nursing Staff
and Primary Care Providers
Throughout Ms. ELam's residency, the nursing
staff at Brookdale Richmond Place followed all orders
by her primary care providers, including with respect
to enteral and supplemental feedings and the
administration of fluids. On June 16, 2020, Ms. Elam's
feeding and dietary regimen was changed by her
nutritionist to only one can of Nepro, a nutritional
supplement, with 50 mL of free water on each occasion
that she ate less than 50% of her meal. Ms. Elam
previously had been receiving Nepro continuously
after each meal. By June 22, 2022, Ms. Elam's weight
had dropped to 132 pounds from 140 to 145 pounds
while she was at Cardinal Hill. Ms. Elam also was
suffering from bouts of diarrhea attributable to her C.
diff infection during this time. Under the
circumstances, Ms. Elam' s dietician updated her
previous order to provide for Nepro with
CARBSTEADY. From then on, Ms. Elam's weight
remained stable.
Pet. App. 54
With respect to hydration, the nursing staff at
Brookdale Richmond Place was under orders by Ms.
Elam's primary care providers to provide 300 mL free
water flushes every six hours. Accordingly, Ms. Elam
received 1200 mL of free water flushes per day. Ms.
Elam also received 50 mL of water before and after
each tube feeding. Combined with a can of Nepro,
which contains 172 mL of water, Ms. Elam received
over two liters of water each day that she failed to
consume at least 50% of her meals.
In terms of skin care and personal care and
hygiene, the nursing staff at Brookdale Richmond
Place conducted weekly skin integrity reviews and
followed its protocol of turning and repositioning or,
at the very least, offering to turn and position Ms.
Elam every two hours. Such turning and repositioning
would occur in a variety of ways, including when the
nursing staff checked or changed Ms. Elam's
underwear, applied ointment to Ms. Elam's excoriated
areas, or assisted Ms. Elam to move in her bed so she
could receive physical, occupational, and speech
therapy. Ms. Elam also regularly received baths,
which were normally scheduled every Tuesday and
Friday. Ms. Elam received almost twice the number of
baths called for by Brookdale Richmond Place's
policies from June 16 through June 30, 2020. From
July 1 until her discharge on July 8, 2020, Ms. Elam
received twice the number of baths called for by
Brookdale Richmond Place's policies.
Upon admission, Ms. Elam received a static
foam mattress for pressure redistribution, which, as
mentioned above, was an intervention called for by
her care plan. On June 30, 2020, Ms. Dotson entered
Pet. App. 55
an order for Ms. Elam to receive an air (or low air loss)
mattress after she refused to be turned and
repositioned and to participate in therapy. On the
following day, July 1, 2020, Ms. Dotson's order was
discontinued and replaced by another order for an air
mattress by Ms. Osbourne, who had met with Ms.
Elam the same day and observed that she had
"decreased mobility with skin impairment." At least
seven different nurses at Brookdale Richmond Place
later documented that Ms. Elam was on an air
mattress each day from July 2 until the evening of
July 6, 2020. From the night of July 6 until July
8,2020, Ms. Elam was not on an air mattress for some
unknown reason, although multiple witnesses
testified that it was likely because her air mattress
had malfunctioned. By the morning of July 8, 2020,
Ms. Elam was back on an air mattress.
3. Deterioration
in
Ms.
Elam's
Condition
Despite the interventions by the nursing staff
and her primary care providers, Ms. Elam's health
deteriorated significantly during her residency at
Brookdale Richmond Place. As early as as June 18 and
19, 2020, Ms. Elam reported pain in her belly and legs,
exhibited poor oral intake, and voiced concerns about
her mood. On June 20, 2020, Jade Parris, a nurse at
Brookdale Richmond Place, documented Ms. Elam as
having frequent diarrhea and continuing to have
excoriation to her perineum and buttocks. Ms. Parris
notified Ms. Elam' s primary care provider that she
would no longer be receiving vancomycin at the end of
her shift and received an order from the primary care
provider to obtain a stool sample and continue with
Pet. App. 56
contact precautions for C. diff until her lab results
were available. On June 22, 2020, Ms. Elam's lab
results showed that she no longer had C. diff. Ms.
Elam's weight, however, had dropped to 132 pounds
by this time, as mentioned above, and her buttocks
continued to be "very red but blanche [ d]" with the
skin intact. Ms. Elam met with Dr. Tovar, who noted
that she appeared to be somewhat confused and
that her dinner tray was untouched. Ms. Elam also
met with Ms. Richmond on June 23, 2020. Ms.
Richardson noted that Ms. Elam expressed
frustration about her lack of progress with therapy
and stated that she would like to "die and go to
heaven." Ms. Richmond explored with Ms. Elam the
risk of self-harm, offered counseling services, and
discussed the possibility of taking an antidepressant.
On June 24, 2020, Donna Collins, a nurse at
Brookdale Richmond Place, reported Ms. Elam's
negative lab results for C. diff to Dr. Doodnauth, who
ordered the discontinuance of all contact precautions.
Ms. Collins also documented that Ms. Elam ate less
than 25% of her meals that day and received
encouragement and assistance with her meals. On
June 25, 2020, Ms. Elam was visited by Ms. Mills, who
documented her as being confused and uncomfortable.
Though lab results showed that Ms. Elam' s kidney
function had worsened by this time, Ms. Mills did not
change her treatment plan to include intravenous
fluids or tube feeding at night. June 25, 2020 also was
the last day that Ms. Elam was willing to participate
in physical therapy. Prior to that time, Ms. Elam had
received physical therapy on June 17, 18, 19, 22, and
23, 2020.
Pet. App. 57
On June 26, 2020, Ms. Paris documented a
change in Ms. Elam's condition related to worsening
diarrhea. Ms. Paris noted that Ms. Elam had
approximately five episodes of loose, watery stools and
that her oral intake was poor. Ms. Paris notified Ms.
Elam's primary care provider of the change in her
condition and received new orders to place her on
Xifaxan for her worsening diarrhea. On June 27, 2020,
Angela Young, a nurse at Brookdale Richmond Place,
documented that Ms. Elam continued to have
diarrhea and sought pre-authorization for the
medication ordered by her primary care provider. Ms.
Young noted that Ms. Elam was "restless, crying and
yelling out from time to time," that Ms. Elam's
buttocks were "very red and excoriated" and had
"creams in place," and that Ms. Elam was being
"turned and repositioned as she will allow." On June
28, 2020, Ms. Young noted that Ms. Elam had been
restless and yelling out loudly and refused to get out
of bed for a window visit with her family and to sit in
a chair. Ms. Young further noted that Ms. Elam' s oral
intake was poor, that Ms. Elam denied experiencing
any pain except for the redness to her buttocks, and
that Ms. Elam had been turned side to side. Ms.
Townsend testified that she recalled trying to visit Ms.
Elam with her sisters on this day and that Ms. Elam
refused to come to the window to see them.
By June 29, 2020, records from Brookdale
Richmond Place indicate that the skin was no longer
intact on Ms. Elam' s coccyx and the area had redness
related to incontinence-associated dermatitis, neither
of which was documented by the nursing staff as a
new finding. On the same day, Ms. Elam was visited
Pet. App. 58
by Dr. Tovar after one of her nurses reported that she
has "a lot of diarrhea and her bottom is excoriated."
Dr. Tovar noted that Ms. Elam was lethargic and
complained that her "bottom is hurting." Dr. Tovar
examined Ms. Elam's buttocks and perineum and
noted his observation of "excoriation to buttocks and
peri-area," without reporting any palpation or
visualization of an internal abscess. Dr. Tovar ordered
another round of labs and for Mylanta to be applied to
Ms. Elam's excoriated skin. Chasidy Wicks, a nurse at
Brookdale Richmond Place, documented that staff had
notified Ms. Townsend of Dr. Tovar's new orders and
complied with them. Members of the interdisciplinary
team at Brookdale Richmond Place also exchanged
emails about identifying ways to keep Ms. Elam in
therapy after she refused to participate in it and
scheduled a conference to discuss Ms. Elam' s care for
the next day.
By June 30, 2020, records from Brookdale
Richmond Place indicate that Ms. Elam had developed
leukocytosis (i.e. a high white blood count) and
elevated BUN and creatinine levels, which led to an
acute kidney injury. On the same day, Ms. Townsend
met with members of the nursing staff to discuss Ms.
Elam' s care plan, her recent refusal to participate in
therapy, and the sufficiency of tube feeding to her
overall care. Though Ms. Townsend could not recall
this meeting at the final hearing, she testified that she
knew at this time that Ms. Elam was sick, did not
want to participate in therapy, and never wanted to
be on tube feeding long term. As mentioned above,
June 30, 2020 also was the day that Ms. Dotson
entered an order for Ms. Elam to receive an air
Pet. App. 59
mattress for the first time. Kenneth Yeaples, a nurse
at Brookdale Richmond Place, documented that, in
accordance with Ms. Dotson's order, Ms. Elam was on
an air mattress during the night shift on June 30,
2020.
On July 1, 2020, records from Brookdale
Richmond Place indicate that Ms. Elam had three
open areas on her buttocks, was loud and yelling, and
did not take a sufficient amount of fluids. Ms. Elam
was visited by Ms. Osbourne after the nursing staff at
Brookdale Richmond Place reported that she had
developed skin breakdown on her buttocks and that
her family was conflicted about continuing her tube
feeding. Ms. Osbourne observed that Ms. Elam was
"[p]alliative, but she may be Hospice appropriate at
this time given decline ... [and] she is not eating for
the last few days." Ms. Osbourne also noted that Ms.
Elam was starting to develop skin breakdown "not
just from recent diarrhea but also from decline and
immobility and decreased nutrition outside of [tube
feeding]." After examining the areas of skin
breakdown, Ms. Osbourne identified them as
"[e]xcoriation/yeast to buttocks/groin/inner things
with multiple slough/unstageable areas to buttocks
from combo of immobility and moisture 2/2 to
diarrhea." Ms. Osbourne gave Ms. Elam a diagnosis of
"Failure to Thrive" and did not report palpation or
visualization of an internal abscess. Based on her
observations, Ms. Osbourne issued new orders for
medication, cleansing, topical treatments, and, as
mentioned above, an air mattress. Ms. Osbourne
attempted to contact Ms. Elam' s family to discuss her
visit but was unsuccessful, so she left a voicemail with
Pet. App. 60
Ms. Townsend. On the same day as Ms. Osbourne's
visit, members of the interdisciplinary team at
Brookdale Richmond Place conducted another review
of Ms. Elam's care plan and made updates to it. Mr.
Yeaples also placed a catheter in Ms. Elam to obtain a
culture because of her increased white blood cell count
without reporting any palpation or visualization of an
internal abscess.
On July 2, 2020, records from Brookdale
Richmond Place indicate that Ms. Elam was again
yelling loudly, had unclear or slurred speech, and
continued not to eat or drink. On the following day,
July 3, 2020, the nursing staff at Brookdale Richmond
Place received and reported to Ms. Elam' s primary
care providers lab results showing that she had
another UTI and received orders to administer an
antibiotic. In accordance with Ms. Osbourne's new
orders, Ms. Hinkle cleansed and applied medicated
ointment to areas around Ms. Elam' s sacrum,
perineum, groin, and inner thighs. Ms. Hinkle did not
report any palpation or visualization of an internal
abscess.
On July 4, 2020, Geneva Crawford, a nurse at
Brookdale Richmond Place, documented another
change in Ms. Elam' s condition related to worsening
urinary incontinence. Ms. Crawford reported the
change in Ms. Elam' s condition to her primary care
providers on the same day. On July 5, 2020, records
from Brookdale Richmond Place indicate that Ms.
Elam's cognition and ability to communicate
continued to decline. On July 6, 2020, the same
records indicate that Ms. Elam developed acute
hypoxic respiratory failure, with her oxygen
Pet. App. 61
saturation level dropping to as low as 85%. Ms. Elam'
s weekly skin integrity review also identified three
open wounds on her buttocks with multiple areas of
slough, redness, and yellow tissues. Ms. Young
contacted Dr. Doodnauth and obtained an order for
oxygen to maintain Ms. Elam's saturation level above
90%. After carrying out Dr. Doodnauth's order, Ms.
Young documented that Ms. Elam's oxygen saturation
level increased to 90 to 92% with no cyanosis or
labored breathing. As mentioned above, the night of
July 6, 2020 also appears to have been the first night
since June 30 that Ms. Elam was not on an air
mattress.
On July 7, 2020, records from Brookdale
Richmond Place indicate that Ms. Elam continued not
to eat or drink, exhibited confusion, disorientation,
and lethargy, was yelling out in pain, and had a strong
odor of urine. Ms. Elam met with Ms. Garrett for a
follow-up visit. Ms. Garrett documented a
conversation with Ms. Elam' s sister during which the
sister stated that Ms. Elam never wanted to be on
tube feeding long term or to live the way she was
living and that Ms. Elam's family wanted to receive
consultation for hospice care. Ms. Garrett entered an
order for the nursing staff at Brookdale Richmond
Place to request consultation for hospice care soon
given Ms. Elam' s hyponatremia (i. e. a low level of
sodium in the blood) and acute kidney injury, which
was carried out promptly by Ms. Young on the same
day. As mentioned above, Ms. Young was not on an air
mattress at all on July 7, 2020.
On July 8, 2020, records from Brookdale
Richmond Place indicate that Ms. Elam continued to
Pet. App. 62
have diarrhea, which she also had had on July 1, 2, 4,
6, and 7, with large bowel movements during both the
morning and afternoon shifts. Ms. Elam was back on
an air mattress by morning and had her tube feedings
and water flushes as scheduled, with the last
supplemental feeding and water flush occurring at or
around 6:00 p.m. In the late evening, Ms. Elam went
into pulmonary distress with a drop in her oxygen
saturation level. Ms. Elam's primary care providers
and family were notified by the nursing staff at
Brookdale Richmond Place, and an order was entered
by Ms. Elam' s primary care providers to send her to
the hospital. At approximately 10: 12 p.m., Ms. Elam
left Brookdale Richmond Place and was transported
by ambulance to UK Medical Center. EMS personnel
noted that Ms. Elam had altered mental status and
used a non-breather mask to deliver high
concentrations of oxygen to her while in transit to UK
Medical Center.
D. Ms. Elam's Final Hospitalization and
Death
Ms. Elam arrived at UK Medical Center on July
8, 2020 at 10:27 p.m. Ms. Elam was first evaluated by
a physician in the emergency department at 11 :55
p.m., over 90 minutes after her departure from
Brookdale Richmond Place and at least six hours after
she had last received any hydration or nutrition
intake. The physician noted that Ms. Elam had
"impressively dry" mucous membranes at the time of
his evaluation. Between July 8 and 9, 2020, Ms.
Elam's treating physicians at UK Medical Center
diagnosed her with sepsis, a "purulent" UTI,
pneumonia, "severe protein calorie malnutrition," and
Pet. App. 63
multiple pressure ulcers on areas around her sacrum
and buttocks. A CT scan also revealed that Ms. Elam
had a perirectal abscess. Records from UK Medical
Center indicate that Ms. Elam had "frank puss"
coming out of her bladder, along with "[m]ixed
urogenital, fecal or skin flora" in her bladder.
Photographs of the areas where Ms. Elam was
experiencing skin breakdown were taken by hospital
staff almost 18 hours after she left Brookdale
Richmond Place.
On July 9, 2020, Ms. Elam was admitted to
hospice care. According to Ms. Townsend, Ms. Elam
mostly slept and was comfortable while in hospice
care. On July 13, 2020, Ms. Elam passed away. Ms.
Elam' s certificate of death lists several causes of
death, including sepsis, pneumonia, and stroke. All of
the parties' experts agreed that sepsis was the
immediate cause of Ms. Elam' s death.
In total, Ms. Elam's medical expenses for the
period from June 15 to July 13, 2020 were $48,115.47.
Those expenses are for Ms. Elam' s residency at
Brookdale Richmond Place, her hospitalization at UK
Medical Center, and hospice care. Ms. Elam's funeral
and burial expenses amounted to $5,079.19.
E. Expert Opinions
As mentioned above, the Arbitrator heard
testimony during the final hearing from seven expert
witnesses, including Dr. Tisha Barzyk, Dr. John
Cascone, Byron Arbeit, Melissa Todd, Martha Kelso,
Dr. Mark Elam, and Rodney Whittington. Dr. Barzyk
testified on behalf of Ms. Townsend as an expert in
nursing. Dr. Barzyk stated that the nursing staff at
Brookdale Richmond Place failed in its role of acting
Pet. App. 64
as the "eyes and ears" of Ms. Elam' s primary care
providers by failing to detail and document
adequately Mr. Elam's condition, which, she stated,
had a direct impact on the care that Ms. Elam
received. Dr. Barzyk stated that the nursing staffs
documentation was not reflective of what was later
found by Ms. Elam's treating physicians at UK
Medical Center. Dr. Barzyk was critical of the nursing
staffs use of standard wound care terminology in its
initial assessment of Ms. Elam's skin, specifically its
description of the skin breakdown that Ms. Elam was
experiencing as "excoriation" rather than denuded
skin. Dr. Barzyk also was critical of Ms. Elam's skin
assessments not always being signed off by registered
nurses. Dr. Barzyk opined that the static foam
mattress initially provided to Ms. Elam by the nursing
staff was insufficient for pressure redistribution, that
the delay in providing Ms. Elam an air mattress fell
below the standard of care, and that the nursing staff
failed to assess, document, and update the
interventions called for by its care plan for Ms. Elam
based on changes in her condition. Dr. Barzyk was
critical of the nursing staffs concurrent use of multiple
creams and topical ointments on Ms. Elam' s skin,
which, she stated, effectively cancelled each other out
and might have impaired Ms. Elam's skin further. Dr.
Barzyk opined that the nursing staff failed to identify,
assess, and document Ms. Elam' s skin breakdown as
pressure ulcers or as being avoidable and that such
failure disregarded Ms. Elam' s wellbeing and
prevented her from receiving the remedial care that
she needed. Dr. Barzyk also stated that the nursing
staff provided Ms. Elam with an inadequate amount
Pet. App. 65
of fluids daily and failed to document how much fluid
or food that she was actually ingesting.
Dr. Cascone testified on behalf of Ms. Townsend
as an expert in internal medicine and infectious
disease. Dr. Cascone characterized Ms. Elam's
condition upon admission to Brookdale Richmond
Place as normal for residents at nursing homes and
"par for the course." Dr. Cascone opined that the skin
issues identified by the nursing staff at Brookdale
Richmond Place upon Ms. Elam's admission were
different from what is depicted in the photographs
taken by hospital staff at UK Medical Center on July
9, 2020 and that Ms. Elam developed five unstageable
pressure ulcers during her residency at Brookdale
Richmond Place. In addition, Dr. Cascone testified
that Ms. Elam also developed malnutrition,
dehydration, and a perirectal abscess during her
residency at Brookdale Richmond Place, which, he
stated, were all missed by the nursing staff and
allowed to flourish until she went to UK Medical
Center, by which time she already had developed
sepsis. Dr. Cascone stated that Ms. Elam entered
Brookdale
Richmond
Place
for
short-term
rehabilitation, speech, and occupational care with the
goal of returning home but had a significant decline in
her health that was manifested by severe pain and
yelling, which distracted her from her therapy, and
that the nursing staff failed to evaluate Ms. Elam
thoroughly to see why she continued to yell and
scream in pain. Dr. Cascone testified that the nursing
staff could have taken several simple measures to
prevent injury and harm to Ms. Elam, including
providing her with the hydration and nutrition she
Pet. App. 66
required, evaluating her on a daily basis,
investigating why she was screaming and yelling,
examining her perineum and buttocks after she
complained of pain in those areas, reporting her dusky
skin and labored respirations to her primary care
providers, assessing her caloric intake, and
recommending feedings at night to her primary care
providers to address her lack of oral and dietary
intake, but failed to do so. Dr. Cascone stated that the
nursing staff failed to measure, describe, and stage
Ms. Elam' s wounds and that those failures prevented
it from communicating her overall condition and the
downward trajectory of her health to her primary care
providers effectively. Dr. Cascone was critical of the
way that the nursing staff documented changes in Ms.
Elam's behavior and stated that the nursing staff
failed to advocate for Ms. Elam or to inform her
primary care providers adequately concerning the
dramatic decline in her health. Similar to Dr. Barzyk,
Dr. Cascone testified that, as the "eyes and ears" of
Ms. Elam's primary care providers, the nursing staff
had a duty to relay adequate information to her
primary care providers between visits and that the
nursing staff most likely
failed to fulfill this duty because of inaccuracies in
their nursing notes. Dr. Cascone testified that the
hypoxic respiratory failure experienced by Ms. Elam
on July 6, 2020 was indicative of organ dysfunction
and most likely caused by sepsis and that the nursing
staff should have sent Ms. Elam to the hospital
immediately for an evaluation. Dr. Cascone also
stated that the 60-hour delay in sending Ms. Elam to
UK Medical Center affected her mortality directly and
Pet. App. 67
that, if Ms. Elam had gone to the hospital on July 6,
2020, she more likely than not would have survived
given that the mortality of sepsis functions on an
exponential curve, with every minute of delay
significantly increasing the risk of mortality.
Mr. Arbeit testified on behalf of Ms. Townsend
as an expert in the administration of nursing homes.
Mr. Arbeit stated that an administrator of a nursing
home is the last line of internal defense and protection
of residents' rights and care. Mr. Arbeit opined that,
as the administrator of Brookdale Richmond Place,
Ms. Stocker failed in her role and responsibility to
monitor, coordinate, and evaluate the quality of care
of each resident, appropriately tailor discipline or
terminate the practice of anybody in the nursing
home, clinician or otherwise, who
compromises the nursing home's policies or
governmental regulations, and to ensure a safe
environment for residents, competent staff, and an
efficient and effective nursing home. Mr. Arbeit
testified that the Defendants committed a plethora of
violations of state and federal regulations during Ms.
Elam's residency, including those regarding skin care,
nutritional care, hydrational care, abuse and neglect,
and inadequate care. Mr. Arbeit criticized the
accuracy and consistency of the documentation in Ms.
Elam' s records from Brookdale Richmond Place. Mr.
Arbeit also was highly critical of Ms. Stocker's
testimony, stating that it displayed a lack of basic
understanding of the duties and standards applicable
to her administrative role.
Ms. Todd testified on behalf of the Defendants
as an expert in nursing. Ms. Todd opined that the care
Pet. App. 68
plan developed for Ms. Elam by the nursing staff at
Brookdale Richmond Place was appropriate and
addressed all known areas of concern, including Ms.
Elam's skin breakdown and persistent diarrhea. Ms.
Todd stated that the nursing staff complied with all
orders from Ms. Elam's primary care providers and
categorized the frequent contact between the nursing
staff and Ms. Elam' s primary care providers as very
good, particularly during the COVID-19 pandemic.
Ms. Todd testified that the standard of care requires
an individualized plan for turning and
repositioning each resident and that both Ms. Elam' s
care plan and the nursing staff met this standard. Ms.
Todd stated that the nursing staff communicated Ms.
Elam's skin breakdown to her primary care providers
effectively and that the nursing staffs failure to use
the term "pressure ulcer" did not alter the impression
created by its communications. Ms. Todd stated that
the nursing staff would not have been able to palpate
or visualize the perirectal abscess later identified by
Ms. Elam's treating physicians at UK Medical Center.
Ms. Todd testified that all skin care provided to Ms.
Elam by the nursing staff was appropriate, including
the use of
multiple creams and topical ointments in accordance
with orders by Ms. Elam's primary care providers. Ms.
Todd stated that the nursing staff met the standard of
care related to nutritional and hydrational care, that
Ms. Elam' s primary care providers were aware of her
intake and entered appropriate orders, and that the
nursing staff were not allowed to change any orders
from Ms. Elam's primary care providers and did not
need to push back against them. Ms. Todd also
Pet. App. 69
testified that the nursing staff acted appropriately in
investigating instances of Ms. Elam yelling and
screaming and in contacting her primary care
providers to report that she was in pain.
Ms. Kelso testified on behalf of the Defendants
as an expert in wound care. Ms. Kelso stated that
pressure, radiation, and end of life all contributed to
the wounds characterized by Ms. Elam's treating
physicians at UK Medical Center as pressure ulcers.
Ms. Kelso testified that the nursing staff at Brookdale
Richmond Place complied with and, in some instances,
exceeded the standard of care in treating Ms. Elam' s
skin breakdown. Ms. Kelso stated that the
photographs of Ms. Elam's wounds from UK Medical
Center on July 9, 2020 depict a horseshoe pattern that
is prevalent in end-of- life wounds and that such
wounds are no longer referred to as pressure wounds.
Ms. Kelso testified that the nursing staff followed all
orders from Ms. Elam's primary care providers related
to skin care and that she saw no reason for
challenging any of those orders. Ms. Kelso stated that
the nursing staff documented adequately the changes
in Ms. Elam' s
behavior and cognition and acted appropriately in not
labeling Ms. Elam' s skin breakdown as pressure
ulcers. Ms. Kelso testified that pressure ulcers can
develop in as little as two hours and Ms. Elam' s
wounds were unavoidable. Ms. Kelso also noted that
no member of the nursing staff or any of Ms. Elam's
primary care providers palpated or visualized the
perirectal abscess later identified by CT scan at UK
Medical Center.
Dr. Elam testified on behalf of the Defendants
Pet. App. 70
as an expert in internal, geriatric, and hospice
medicine. Dr. Elam stated that the nursing staff at
Brookdale Richmond Place met all applicable
standards of care during Ms. Elam' s residency. Dr.
Elam testified that the care plan for Ms. Elam and all
assessments and interventions by the nursing staff
were appropriate. Dr. Elam testified that he was very
impressed by the communication between the nursing
staff and Ms. Elam's primary care providers and by
the number of times that Ms. Elam's primary care
providers visited her in person. Dr. Elam stated that
Ms. Elam's primary care providers were aware of her
significant skin breakdown, knew exactly what was
going on with her, and gave her a high level of care
through their orders to the nursing staff. Dr. Elam
testified that the pause in Ms. Elam's being on an air
mattress from the night of July 6 to the morning of
July 8, 2020 was not likely to have resulted in any
harm to her. Dr. Elam stated that all orders from Ms.
Elam's primary care providers related to nutrition
and hydration were adequate, that Ms. Elam was
receiving at least two liters of fluid daily, and that the
nursing staff acted reasonably in following and not
challenging the orders from Ms. Elam's primary care
providers. Dr. Elam stated that Ms. Elam did not need
to go to the hospital immediately after she
experienced hypoxic respiratory failure on July 6,
2020. Though agreeing with Dr. Cascone's conclusion
that sepsis was the immediate cause of Ms. Elam's
death, Dr. Elam noted that none of Ms. Elam's
treating physicians at UK Medical Center associated
it with her wounds. Dr. Elam stated that he believed
that Ms. Elam' s fistula contributed to the infection
Pet. App. 71
that resulted in her becoming septic. Dr. Elam also
testified that Ms. Elam was in a gradual decline and
severely debilitated after her stroke in mid-May 2020,
that Ms. Elam did not get better during her stay at
Cardinal Hill, and that the nursing staff at Brookdale
Richmond Place did nothing to contribute to Ms.
Elam' s death.
Lastly, Mr. Whittington testified on behalf of
the Defendants as an expert in the administration of
nursing homes. Mr. Whittington described how, in a
nursing home, the nursing staff communicates
upwards to the primary care providers, that the
primary care providers issue orders for managing a
resident's health, and that the nursing staff should
follow the orders issued by the primary care providers.
Mr. Whittington testified that, within this framework,
the nursing staff at Brookdale Richmond Place
communicated well with and followed all orders
issued by Ms. Elam's primary care providers. Mr.
Whittington testified that, under the circumstances,
Ms. Stocker's administrative responsibilities did not
call for her to intervene in Ms. Elam's care.
III. Conclusions of Law
Ms. Townsend asserts claims against the
Defendants for negligence, medical negligence,
corporate negligence, wrongful death, violations of
Kentucky's long-term care residents' rights statute,
KRS 216.515, and punitive damages arising from Ms.
Elam's residency at Brookdale Richmond Place.
A. Negligence and Wrongful Death
To prevail on her claims for negligence, Ms.
Townsend must prove, by a preponderance of the
Pet. App. 72
evidence, the existence of a duty, breach of that duty,
and an injury resulting from the breach. Blankenship
v. Collier, 302 S.W.3d 665, 675 (Ky. 2010); Keaton v.
G.C. Williams Funeral Home, Inc., 436 S.W.3d 538,
542 (Ky. App. 2013). The duty of care owed by a
nursing home to a resident consists of that level of
care that one would expect from a reasonably prudent
nursing home or medical provider. Lake Cumberland
Reg 'I Hosp., LLC v. Adams, 536 S.W.3d 683,695 (Ky.
2017); Wright v. House o/Imports, Inc., 381 S.W.3d
209, 213 (Ky. 2012).
Under Kentucky law, an employer may be held
vicariously liable for the negligent acts of his or her
agent but generally is not liable for the conduct of an
independent contractor. Nazar v. Branham, 291
S.W.3d 599, 606-07 (Ky. 2009). An employer can be
liable for its failure to exercise ordinary care in the
management and supervision of employees and
activities when that management or supervision
causes harm to someone else. Smith v. Isaacs, 777
S.W.2d 912, 914 (Ky. 1989) (citing Restatement
(Second) of Agency § 213). See also McDonald's Corp.
v. Ogborn, 309 S.W.3d 274, 291 (Ky. 2009); Oakley v.
Flor-Shin, Inc., 964 S.W.2d 438, 442 (Ky. App. 1998).
A tortfeasor "takes the claimant as he finds him and
is entitled neither a credit nor setoff against the
amount of the claimant's damages because of
preexisting physical conditions which make the
claimant more susceptible to injury, or to greater
injury, than would have been the case with better
health." Morgan v. Scott, 291 S.W.3d 622, 640-41 (Ky.
2009) (internal quotation marks and citation omitted).
And, where "a substantial personal injury is
Pet. App. 73
sustained, suffering is presumed and need not be
proven." Schriewer v. Schworer, 178 S.W.2d 598, 599
(Ky. 1944).
To recover for wrongful death, Ms. Townsend
must prove that the "death of a person results from an
injury inflicted by the negligence or wrongful act of
another." KRS 411.130(1). Funeral expenses,
including the cost of a tombstone, are recoverable in
an action for wrongful death. See KRS 395.370;
Square Deal Cartage Co. v. Smith's Adm'r, 210
S.W.2d 340,345-46 (Ky. 1948).
Based on his review of the record and relevant
legal authorities, the Arbitrator must hold that Ms.
Townsend has failed to meet her burden of proving her
claims for negligence and wrongful death. The
Arbitrator cannot conclude that the Defendants
breached any of their duties to Ms. Elam. Even if the
Arbitrator could conclude that the Defendants
breached one or more of their duties, Ms. Townsend
has failed to prove that Ms. Elam' s death resulted
from the breach. The absence of proof on anyone of the
required elements is fatal to a claim for negligence. M
& T Chemicals, Inc. v. Westrick, 525 S.W.2d 740,741
(Ky. 1974).
The testimony and documentary evidence
demonstrate that the nursing staff at Brookdale
Richmond Place developed and implemented an
appropriate care plan for Ms. Elam. Upon Ms. Elam's
admission on June 15, 2020, Ms. Hatfield completed
an interim care plan for Ms. Elam with interventions
based on her needs, including bathing, fall risk, skin,
communication deficits, visual function, cognitive
loss, and feeding tube for nutrition and hydration. By
Pet. App. 74
June 18, 2020, Ms. Elam had a comprehensive care
plan in place with focus areas and interventions for
infection, mood, skin integrity, COVID-19, bowel and
bladder issues, fall risk, altered diet, impaired
functional ability, advanced directives, medications,
impaired mobility, and stroke related complications.
The testimony and documentary evidence show that
the nursing staff implemented all of the interventions
called for by Ms. Elam' s care plan and that Ms. Elam'
scare plan was updated regularly based on changes in
her condition. Ms. Elam' s care plan for skin integrity,
for example, was updated no less than six times
during her residency, including on June 18, June 19,
June 23, July 1, July 4, and July 6, 2020. In light of
these well documented changes, the Arbitrator was
not persuaded by Dr. Barzyk's testimony concerning
the inadequacy of the nursing staff s updates to Ms.
Elam' s care plan.
The testimony and documentary evidence also
demonstrate that the nursing staff at Brookdale
Richmond Place completed adequate assessments and
observations of Ms. Elam, including upon admission,
in daily comprehensive nursing notes, and through
collaborative care reviews, change-in-condition
evaluations, and multidisciplinary progress notes.
The nursing staff completed comprehensive nursing
notes every day of Ms. Elam's residency. Those daily
notes were reviewed regularly by supervisory nurses
and clinical management in daily morning meetings
and by Ms. Elam' s primary care providers. The
assessments and ongoing observations established a
baseline and documented developments with respect
to Ms. Elam's skin breakdown, incontinence, and
Pet. App. 75
stroke-related deficits affecting her mobility, speech,
and cognition, and nutritional and hydrational status,
among other issues.
The Arbitrator finds the testimony of the
Defendants' experts to be more credible on the issue of
whether the nursing staff at Brookdale Richmond
Place communicated effectively with Ms. Elam's
primary care providers concerning her condition and
changes therein. The testimony and documentary
evidence demonstrate that the nursing staff provided
frequent updates to Ms. Elam's primary care
providers concerning changes in her condition,
including on June 20, June 24, June 26, June 27, June
29, July 1, July 3, July 4, July 6, and July 8, 2020. Ms.
Elam's primary care providers also met with her in
person on seven different occasions, including on June
16, June 18, June 22, June 25, June 29, July 1, and
July 7, 2020. The Arbitrator can find nothing in the
record to support the suggestion by Ms. Townsend's
experts that Ms. Elam's primary care providers were
unaware of the true state of her condition. The
documentation completed by Ms. Elam's primary care
providers, including Dr. Tovar, Ms. Mills, and Ms.
Osbourne, show an awareness of the major issues
facing her, including her diarrhea and incontinence,
her skin breakdown, the alterations in her cognition
and mood, and the challenges associated with
ensuring that she was receiving adequate nutrition
and hydration. Ms. Townsend's experts also failed to
convince the Arbitrator that Ms. Elam's primary care
providers would or could have done anything
differently in their care and treatment of Ms. Elam if
the nursing staff had supplied the information that
Pet. App. 76
they claimed was missing from its communications
and documentation.
With respect to nutritional and hydrational
care, the testimony and documentary evidence
demonstrate that the nursing staff at Brookdale
Richmond Place complied with all orders from Ms.
Elam's primary care providers as required by federal
and state regulations. See 42 C.F.R 483.25(h); 902
KAR 20:048 § 4(11 )(a). The nursing staff provided all
enteral and supplemental feeding and hydration
called for by the orders of Ms. Elam' s primary care
providers. On numerous occasions, the nursing staff
documented and communicated to Ms. Elam' s
primary care providers that her oral intake was poor
and that she was refusing to eat and drink. The
documentation completed by Ms. Elam' s primary care
providers demonstrate that they were well aware of
the problems that she was facing in terms of receiving
adequate nutrition and hydration. Given the variety
of factors complicating Ms. Elam' s nutritional and
hydrational care, including her diarrhea, her repeated
refusal to eat and drink, and her family's reluctance
to continue with tube feeding, Ms. Townsend's experts
failed to convince the Arbitrator that the nursing staff
had any reason to question the orders of her primary
care physicians or could have done anything
differently to ensure that she received adequate
nutrition and hydration.
With respect to skin care, the testimony and
documentary evidence demonstrate that Ms. Elam
was assessed correctly upon admission by the nursing
staff at Brookdale Richmond Place as being at high
risk for skin breakdown. Ms. Elam received a care
Pet. App. 77
plan with interventions for skin breakdown associated
with moisture and incontinence, which was updated
regularly during her residency based on changes in
her condition. The nursing staff implemented all of
the interventions called for by Ms. Elam' s care plan
related to turning, repositioning, and bathing and
complied with all orders from Ms. Elam' s primary
care providers related to the application of creams and
topical ointments to and the cleansing of areas where
she was experiencing skin breakdown. The nursing
staff also monitored and documented Ms. Elam' s skin
breakdown and communicated their observations to
her primary care providers. Though the nursing staff
might not have used the terminology preferred by Ms.
Townsend's experts, the documentation completed by
Ms. Elam' s primary care providers show that they
were well aware of the problems that she was facing
with skin breakdown. The Arbitrator also cannot be
certain that Ms. Elam had developed the precise
wounds shown in the photographs taken by the
hospital staff at UK Medical Center on July 9, 2020
during her residency at Brookdale Richmond Place.
Given her expertise in wound care, the Arbitrator
finds Ms. Kelso's testimony concerning these issues to
be highly compelling.
The only questionable issue related to the skin
care received by Ms. Elam during her residency at
Brookdale Richmond Place pertains to the nursing
staff s provision of a mattress for pressure
redistribution. The Arbitrator heard conflicting
testimony as to whether the static foam mattress
initially given to Ms. Elam by the nursing staff
provided any pressure redistribution as called for by
Pet. App. 78
her care plan. The Arbitrator does not find Dr.
Barzyk's testimony concerning this issue to be any
more credible than that of several other witnesses who
stated that the static foam mattresses utilized by
Brookdale Richmond Place, including the one initially
given to Ms. Elam, do provide pressure redistribution.
The testimony and documentary evidence do show
unequivocally that the nursing staff did provide Ms.
Elam with an air mattress eventually, which is what
Dr. Barzyk testified was the standard of care. The
testimony and documentary evidence are inconclusive
in terms of showing what caused Ms. Elam not to be
on an air mattress from the night of July 6 to the
morning of July 8, 2020, with multiple witnesses
stating that it likely was because the air mattress
malfunctioned, which, if true, would not necessarily
involve any violation of the standard of care by
Brookdale Richmond Place or its nursing staff. Under
the circumstances, the Arbitrator cannot conclude
that Brookdale Richmond Place violated the standard
of care by failing to provide Ms. Elam an appropriate
mattress for pressure redistribution at any time
during her residency.
The Arbitrator also cannot conclude that the
nursing staff at Brookdale Richmond Place violated
the standard of care by failing to transfer Ms. Elam to
the hospital when she experienced
hypoxic respiratory failure on July 6, 2020 or by
failing to identify her perirectal abscess. As Ms.
Dotson testified, except in the case of emergencies,
state regulations required the nursing staff to consult
with a physician before transferring or discharging
Ms. Elam. See 902 KAR 20:048 § 3(8)( d). The
Pet. App. 79
testimony and documentary evidence demonstrate
that the nursing staff communicated the drop in Ms.
Elam's oxygen saturation level to her primary care
providers promptly after it occurred. The nursing staff
then received and followed all orders from Ms. Elam's
primary care provider, who did not consider Ms. Elam'
s condition to be serious enough for her to be
transferred to the hospital. Ms. Elam's oxygen
saturation level then increased to 90 to 92% with no
cyanosis or labored breathing. Under the
circumstances, the Arbitrator finds Dr. Elam's
testimony more compelling than that of Dr. Cascone
on the issue of whether the nursing staff violated the
standard of care by failing to transfer Ms. Elam to the
hospital immediately after she started experiencing
hypoxic respiratory failure.
With respect to the perirectal abscess, the
Arbitrator finds little credibility in Dr. Cascone's
assertion that it should have been discovered by the
nursing staff at Brookdale Richmond Place prior to
her final hospitalization at UK Medical Center. The
testimony and documentary evidence demonstrate
that several members of the nursing staff and Ms.
Elam' s primary care providers examined and
palpated the area where the perirectal abscess was
later identified by CT scan without discovering it. For
example, Dr. Tovar examined the area on June 29,
2020 when Ms. Elam told him that her bottom was
hurting and did not discover a perirectal abscess. Ms.
Osbourne examined the area on July 1, 2020 and did
not discover a perirectal abscess. Mr. Yeaples placed
a catheter in Ms. Elam later on the same day and did
not discover a perirectal abscess. Neither Ms. Hinkle
Pet. App. 80
nor any of the several other nurses who administered
wound care to Ms. Elam, including cleansing and
applying creams and topical ointments in the areas of
her skin breakdown, documented the existence of a
perirectal abscess. Not even Ms. Elam's treating
physicians at UK Medical Center diagnosed her with
a perirectal abscess by palpation or visualization
alone. Based on the evidence In the record, the
Arbitrator finds substantial merit in the testimony of
the Defendants' experts that the nursing staff at
Brookdale Richmond Place met all applicable
standards of care during Ms. Elam' s residency. Any
deficiencies iri the care and treatment provided to Ms.
Elam by her primary care providers cannot be the
basis for imposing liability on Brookdale Richmond
Place because Ms. Elam' s primary care providers
acted as independent contractors, not agents of
Brookdale Richmond Place. In the absence of any
substandard care on the part of the nursing staff, the
Arbitrator finds no credibility in Mr. Arbeit's
testimony that Ms. Stocker breached her duties as the
last line of defense and protector of Ms. Elam's rights.
Ms. Townsend also failed to put forth any evidence
that Brookdale Richmond Place was understaffed or
lacked the resources to provide care for Ms. Elam.
None of the witnesses testified that they had any
concerns about Brookdale Richmond Place's staffing
or resources. Ms. Townsend did not identify any
policies of Brookdale Richmond Place with which any
member of its staff failed to comply during Ms. Elam's
residency. Nor did Ms. Townsend present any
evidence from which the Arbitrator could conclude
that the Non-Facility Defendants had any
Pet. App. 81
involvement in Ms. Elam's care, much less breached
any duties to her.
Even if the Arbitrator could find that the
Defendants breached one or more duties to Ms. Elam,
Ms. Townsend has failed to prove that Ms. Elam' s
death was caused by the breach. The parties' experts
agreed that the immediate cause of Ms. Elam's death
was sepsis. No treating provider or expert has
suggested or opined that any conduct by the
Defendants caused Ms. Elam to develop the infection
that was the source of her sepsis. The testimony and
documentary evidence also demonstrate that Ms.
Elam had a vesicovaginal fistula that was not known
by the nursing staff at Brookdale Richmond Place and
could very well have been the cause of the infection
that resulted in her sepsis in early July 2020. Ms.
Elam's fistula had even been identified by her treating
physicians as the cause of her sepsis in late April and
early May 2020, which preceded her residency at
Brookdale Richmond Place. The symptoms associated
with Ms. Elam's fistula-caused sepsis in late April and
early May 2020 also were strikingly similar to what
she experienced after her discharge from Brookdale
Richmond Place in early July of the same year.
For the foregoing reasons, the Arbitrator holds
that Ms. Townsend has failed to meet her burden of
proving her claims for negligence and wrongful death.
B. Violations of Kentucky's Long-Term
Care Residents' Rights Statute
KRS 216.515 provides a cause of action for the
violation of a long-term care residents' rights, as
enumerated under its 26 subsections. The only claims
under KRS 216.515 that survive the death of a
Pet. App. 82
resident are those that are indistinguishable from
traditional claims for personal injury under the
common law. See Overstreet v. Kindred Nursing Ctrs.
Ltd. P'ship, 479 S.W.3d 69, 78 (Ky. 2015). Having
concluded that Ms. Townsend has failed to establish
any negligence on the part of the Defendants, the
Arbitrator also must conclude that her claims under
KRS 216.515 fail as well. The testimony and
documentary evidence do not permit the conclusion
that the Defendants violated any of Ms. Elam's rights
under KRS 216.515. For that reason, the Arbitrator
holds that Ms. Townsend has failed to meet her
burden of proving her claims under KRS 216.515.
C. Punitive Damages
The purpose of punitive damages is to "punish
and discourage [the defendant] and others from
similar conduct in the future." Osborne v. Keeney, 399
S.W.3d 1, 20 (Ky. 2012). In contrast, the purpose of
compensatory damages is to "make the injured party
whole to the extent that it is possible to measure his
injury in terms of money." Id. (internal quotation
marks and citations omitted). Punitive damages
therefore have "nothing to do with a plaintiffs loss or
making the plaintiff whole." Id Rather, punitive
damages "serve a broader function ... aimed at
deterrence and retribution." Id (internal quotation
marks and citations omitted). In matters involving
allegations of gross negligence, punitive damages
require a showing of "wanton or reckless disregard for
the lives, safety, or property of others." Horton v.
Union Light, Heat & Power Co., 690 S.W.2d 382, 38788 (Ky. 1985) (internal quotation marks omitted).
Gross negligence may result from several acts, even if
Pet. App. 83
a single act might not itself constitute gross
negligence. Id. at 388. By statute, the following factors
must be considered by the finder of fact in determining
the amount of punitive damages to assess: (1) the
likelihood at the relevant time that serious harm
would arise from the defendant's misconduct; (2) the
degree of the defendant's awareness of that likelihood;
(3) the profitability of the misconduct to the
defendant; (4) the duration of the misconduct and any
concealment of it by the defendant; and (5) any actions
by the defendant to remedy the misconduct once it
became known to the defendant. KRS 411.186.
Having concluded that Ms. Townsend has
failed to prove any negligence on the part of the
Defendants, the Arbitrator also must conclude that
her claim for punitive damages fails as well. The
testimony and documentary do not permit the
conclusion that the Defendants acted with wanton or
reckless disregard of Ms. Elam's health and wellbeing.
For that reason, the Arbitrator holds that an award of
punitive damages is not appropriate under the
circumstances.
IV. Judgment
Based on the foregoing Findings of Fact and
Conclusions of Law, IT IS HEREBY ORDERED AND
ADJUDGED that the Defendants are entitled to
judgment in their favor on all claims asserted against
them by Ms. Townsend arising from Ms. Elam's
residency at Brookdale Richmond Place from June 15
to July 8, 2020.
As set forth in section 13 of the parties'
arbitration
agreement
(the
"Confidentiality
Provision'} this "arbitration proceeding shall remain
Pet. App. 84
confidential in all respects." The Confidentiality
Provision applies to "all arbitration filings, deposition
transcripts, documents produced or obtained in
discovery, or other material provided by and
exchanged between the parties and the arbitrator's
findings of fact and conclusions of law." The
Confidentiality Provision also applies to "the amount
of the arbitration award or any settlement, the names
of the parties, or the name/location of the [facility]
except as required by law." Unless and until the
Arbitrator or a court of law shall make an additional
or contrary ruling, no party or their agent shall
disclose such confidential records for any purpose
other than this arbitration.
These Findings of Fact, Conclusions of Law,
and .Judgment are final and appealable.
/s/ Tom McDonald
TOM MCDONALD
ARBITRATOR
Date Signed: 6/24/24
Pet. App. 85
APPENDIX F
COMMONWEALTH OF KENTUCKY
FAYETTE CIRCUIT COURT
DIVISION 7
CIVIL ACTION NO.: 21-CI-01993
In Arbitration
BONNIE TOWNSEND, EXECUTRIX,
ESTATE OF LINDA ELAM
PLAINTIFF
v.
PLAINTIFF’S PROPOSED
FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND
JUDGMENT
[served May 15, 2024]
BLC LEXINGTON SNF,
LLC d/b/a BROOKDALE
RICHMOND PLACE SNF
d/b/a RICHMOND PLACE
REHABILITATION AND
HEALTH
CENTER;
BECKY STOCKER, in her
capacity as Administrator
of
BROOKDALE
RICHMOND PLACE SNF;
et al.
DEFENDANTS
Pet. App. 86
This matter came on for Arbitration from April
22, 2024, to April 29, 2024 at the office of Stoll Keenon
Ogden PLLC, 300 West Vine Street, Suite 2100,
Lexington, Kentucky 40507.
The Plaintiff was represented by Todd Varellas
and Jeremy Prichard of Varellas & Varellas PLLC.
The Defendants were represented by Kif Skidmore
and Connor Egan of Stoll Keenon Ogden PLLC. The
presiding Arbitrator was the Honorable Judge (Ret.)
Tom McDonald.
The parties presented evidence and made
arguments concerning the claims made by Plaintiff
Bonnie Townsend, Executrix of the Estate of Linda
Elam (“Plaintiff”) against Defendant BLC Lexington
SNF, LLC d/b/a Brookdale Richmond Place SNF d/b/a
Richmond Place Rehabilitation and Health Center
(Defendant “Brookdale Richmond Place” or the
“facility”) and Defendant Becky Stocker, in her
capacity as Administrator of Brookdale Richmond
Place SNF (both collectively sometimes referred to as
“Defendants”).
The Arbitrator requested that the parties
submit their respective Proposed Findings of Fact,
Conclusions of Law, and Judgment.
The Arbitrator having heard the testimony,
reviewed the record, and being otherwise sufficiently
advised, enters the following Findings of Fact,
Conclusions of Law, and Judgment.
BURDEN OF PROOF
In civil actions, the plaintiff must prove her
claims by a preponderance of the evidence,
CertainTeed v. Dexter, 330 S.W.3d 64, 73 (Ky. 2010),
Pet. App. 87
which is a more likely than not standard. See, e.g.,
Strong v. Gary, 673 S.W. 3d 77, 80 (Ky. App. 2023).
Under this standard, the Arbitrator finds and
concludes as follows:
FINDINGS OF FACT
1.
The Plaintiff is Bonnie Townsend,
Executrix of the Estate of Linda Elam (“Plaintiff”).
2.
The
parties
introduced
evidence
regarding claims against Defendant BLC Lexington
SNF, LLC d/b/a Brookdale Richmond Place SNF d/b/a
Richmond Place Rehabilitation and Health Center
(Defendant “Brookdale Richmond Place” or the
“facility”) and Defendant Becky Stocker, in her
capacity as Administrator of Brookdale Richmond
Place SNF (both collectively sometimes referred to as
“Defendants”).
3.
Brookdale Richmond Place is a skilled
nursing home facility, providing total needs care to
residents including Linda Elam.
4.
Linda Elam was a resident at the
Brookdale Richmond Place facility from June 15, 2020
to July 8, 2020.
5.
Defendant administrator Becky Stocker
was the administrator of the facility during the period
of Linda Elam’s residency.
6.
902
KAR
20:048
pertaining
to
“Operation and services; nursing homes,” provides as
follows: “Section 3. Administration and Operation. . .
. (2) Administrator. (a) All facilities shall have an
administrator who is responsible for the operation of
the facility.”
A.
Linda Elam’s UK HealthCare Treatment
from May 13, 2020 through May 26, 2020
Pet. App. 88
7.
Linda Elam, who was 76 years old, was
admitted to UK HealthCare from May 13, 2020,
through May 26, 2020, for a cerebrovascular incident
(“CVA”).
8.
Ms. Elam was discharged from UK
HealthCare with a PEG tube in place with her
consent. She was diagnosed with acute ischemic
stroke, left MCA—embolic, dysphagia, and acute
injury.
9.
Upon discharge from UK HealthCare,
Ms. Elam’s neurologic exam revealed no spontaneous
right upper and lower extremities movements. She
was noted to be oriented time, place, and self, and able
to follow commands.
10.
Ms. Elam’s granddaughter, Breanne
Lutes, testified that Ms. Elam was able to ambulate
and communicate while she was recovering at UK
Healthcare on multiple occasions while visiting her.
She also testified that Ms. Elam was cognitive
throughout their conversations during Ms. Elam’s
stay at UK HealthCare during the month of May 2020.
She further testified that her grandmother had a
strong spirit and desire to return home to her family
and dog.
11.
Ms.
Elam’s
grandson,
Steven
Richardson, testified that his grandmother was able
to ambulate and communicate while she was
recovering at UK Healthcare on multiple occasions
while seeing her through FaceTime video. He further
testified that Ms. Elam was cognitive throughout
their conversations during Ms. Elam’s stay at UK
HealthCare during the month of May 2020.
12.
Upon discharge, UK HealthCare noted
Pet. App. 89
that Ms. Elam had increased wakefulness during her
stay with speech improvement and the ability to
communicate her needs. She was discharged to
Cardinal Hill Rehabilitation Hospital (“Cardinal
Hill”) for acute rehabilitation in stable condition. (Pl.’s
Exhibit 1).
13.
Ms. Elam was not diagnosed with any
terminal illnesses or conditions during her UK
HealthCare treatment during the month of May 2020.
B.
Linda Elam’s Cardinal Hill Treatment from
May 26, 2020 to June 15, 2020
14.
Upon discharge from UK HealthCare,
Ms. Elam was admitted to Cardinal Hill from May 26,
2020, through June 15, 2020, for temporary acute
rehabilitation following her stroke.
15.
During Ms. Elam’s stay at Cardinal Hill,
it was noted that she was compliant with all therapies
with skin improvement in her perirectal area.
16.
Dr. John Cascone, M.D. testified that
Ms. Elam’s June 12, 2020 progress note documented
Ms. Elam was appropriate with conversation and able
to make her needs known. Additionally, the same
record indicated that Ms. Elam’s skin around the
inner thighs was improving. (Pl.’s Exhibit 34).
17.
On June 12, 2020, while staying at
Cardinal Hill, nurse Amanda Helton documented that
Ms. Elam was more alert with appropriate
conversation.
18.
On June 13, 2020, while staying at
Cardinal Hill, Ms. Elam received nepro continuous
PEG feeds at 35 ml/hour, and free water flushes at 300
cc every 6 hours. According to Dr. Cascone, the nepro
feeding was only at night, she would eat during the
Pet. App. 90
day, and the free water and PEG feedings were
supplementing Ms. Elam’s oral intake.
19.
Ms. Elam’s granddaughter, Breanne
Lutes, testified that she visited Ms. Elam on multiple
occasions during her stay at Cardinal Hill. She also
testified that Ms. Elam continued to improve in
regards to her ambulation, cognition, and speech
while at Cardinal Hill and did not hear Ms. Elam voice
any complaints to her physical well-being.
20.
Ms.
Elam’s
grandson,
Steven
Richardson, testified that at Cardinal Hill she
continued to improve regarding her ambulation,
cognition, and speech. He also testified that during
her stay at Cardinal Hill he did not hear Ms. Elam
voice any complaints regarding her physical wellbeing.
21.
Bonnie Townsend, Ms. Elam’s sister and
her power of attorney, testified that she would visit
Ms. Elam while she was at Cardinal Hill, and she was
noticeably better and progressing there.
22.
On June 15, 2020, Ms. Elam’s laboratory
records at Cardinal Hill showed the following: sodium
134 (reference range: 138-146), BUN 35, Creatinine
1.48, Albumin 2.4 (referenced range: 3.5-5.0), WBC
6.3, and Hemoglobin 9.9. (Pl.’s Exhibit 5).
23.
Dr. Cascone noted that during the time
Ms. Elam was at Cardinal Hill, she was able to
communicate her needs, oriented to herself and
surroundings, able to follow commands, and
participated in physical therapy three hours a day and
five days a week, with appropriate progress.
24.
Dr. Cascone noted that Ms. Elam’s
creatinine levels went from 1.58 on May 26, 2020
Pet. App. 91
while at UK HealthCare (Pl.’s Exhibit 2), to 1.48 on
June 12, 2020 while at Cardinal Hill (Pl.’s Exhibit 5).
Dr. Cascone testified that this signified Ms. Elam’s
prior renal failure due to sepsis had returned back to
baseline. Additionally, Dr. Cascone noted that Ms.
Elam’s BUN levels were decreasing from her stay at
UK HealthCare, (Pl.’s Exhibit 2), and reflected
positive hydration.
25.
Ms. Elam’s weight at the time of
discharge from Cardinal Hill was between 140 to 145
pounds.
26.
Dr. Cascone noted that Ms. Elam’s
discharge summary from Cardinal Hill documented
her as having Clostridium Difficile (“C. Difficile” or “C
Diff.”), which can cause diarrhea.
C.
Linda Elam’s Brookdale Richmond Place
Residency from June 15, 2020 to July 8,
2020
27.
On June 15, 2020, Ms. Elam was
discharged from care at Cardinal Hill to Defendant
Brookdale Richmond Place.
28.
Ms. Elam was admitted to Brookdale
Richmond Place on June 15, 2020 for short-term
skilled rehabilitation services due to her CVA,
including total needs care. Brookdale Richmond Place
was to deliver skilled nursing care to Ms. Elam,
including physical therapy, occupational therapy, and
speech therapy with the goal to discharge home.
29.
Brookdale Richmond Place reaped
financial compensation from Ms. Elam’s admission
and it billed her for the nursing home residency. (Pl.’s
Exhibit 58).
Pet. App. 92
30.
On June 15, 2020, Ms. Elam’s nursing
admission data collection sheet documented the
following: level of consciousness—alert, okay shortterm memory, okay long-term memory, bilateral
gluteal
fold
“macerated
associated
dermatitis/incontinent associated dermatitis” related
to an active C. Diff., no history of skin issues, (Pl.’s
Exhibit 54), no pressure injuries were noted, no
terminal diagnosis, no pain, was eating consistently
50% of her meals, buttock excoriations were noted,
and she was not receiving hospice care services.
31.
According to Dr. Cascone, Brookdale
Richmond Place’s minimum data set for Ms. Elam
from June 15, 2020 reflected that she did not have
inattention, disorganized thinking, or altered
consciousness, nor any pressure wounds, and she was
not considered terminal.
32.
Dr. Cascone noted that Ms. Elam’s
medical conditions on admission to Brookdale
Richmond Place were normal for nursing home
residents and “par for the course.”
33.
Ms.
Elam’s
Brookdale
admission
evaluation sheet noted that she had a Braden score of
9, which according to Dr. Tisha Barzyk, D.N.P., meant
Ms. Elam was at a very high risk for the development
of pressure injuries and required appropriate
planning and intervention.
34.
Dr. Barzyk testified that it is standard
practice and care for a routine skin check assessment
to be conducted by nurses during every shift, and it is
required under Medicare and Medicaid conditions for
funding nursing facilities, and also under Kentucky
state rules and regulations.
Pet. App. 93
35.
To prevent pressure ulcers, Brookdale
Richmond staff were required to turn over and
reposition residents every two hours.
36.
Residents would be turned over and
repositioned by nursing assistance and nurse aides.
37.
Lisa Dotson, Brookdale Richmond
Place’s Director or Nursing (“DON”), testified that she
had no way of knowing whether or not the nursing
assistance and aides would actually turn over and
reposition residents every two hours.
38.
Dr. Cascone noted that the only skin
issues referenced in the Brookdale Richmond Place
nursing admission data collection sheet upon Ms.
Elam’s admission to Brookdale Richmond Place was
regarding a right gluteal fold with moistureassociated skin dermatitis (“MASD”) and some
excoriation of the skin. Multiple witnesses and
experts testified that this was not the same skin
issues that she developed while at Brookdale
Richmond Place.
39.
Dr. Cascone distinguished the right
gluteal fold with moisture from the pressure ulcers
noted by UK HealthCare in July 2020 by stating the
latter was unstageable devitalized tissue wounds and
not moisture associated skin damage, and these are
not in the same area.
40.
Dr. Barzyk noted that Ms. Elam’s skin
condition related to C diff. was the result of a caustic
breakdown of the epidermal skin layer.
41.
Dr. Barzyk was critical of Brookdale
Richmond Place’s incorrect use of standard wound
care terminology—specifically, calling Ms. Elam’s C
diff. infection “excoriation” when it should have been
Pet. App. 94
noted as denuded skin, since denuded skin is a
breakdown of the epidermal skin layer due to urine
and feces.
42.
DON Lisa Dotson testified that she had
found charting errors in residents’ records previously.
43.
The Brookdale Richmond Place nursing
admission data collection, stating “no history of skin
issues,” (Pl.’s Exhibit 8, at p. 2 of 32), identified the
needs for a right elbow protector, a pressure
redistribution mattress, seat cushions, evaluation of
skin conditions on a daily and weekly basis with
weekly assessments to be performed “per licensed
nurse,” informing MD of any concerns, assisting with
turning and repositioning as needed, and reduced
friction and shearing with use of lift and transfer
sheets, keeping skin clean and dry, (Pl.’s Exhibit 8, at
p. 26 of 32), that Ms. Elam did not have a terminal
diagnosis and was not receiving hospice or palliative
services, (Pl.’s Exhibit 8, at p. 13 of 32), and the
admission mobility evaluation records stated that Ms.
Elam needed assistance with dressing, bathing,
turning and repositioning in her bed, (Pl.’s Exhibit 8,
at p. 25 of 32).
44.
Dr. Barzyk noted that Brookdale
Richmond Place records documented Ms. Elam was
provided with a “static foam mattress” for pressure
redistribution, which, according to Dr. Barzyk, is a
standard mattress and insufficient for proper
pressure redistribution.
45.
Numerous witnesses testified that the
static foam mattress is merely the mattress used for
all residents at the facility and is not a specific
mattress used for the prevention of pressure injuries.
Pet. App. 95
46.
On June 16, 2020, Ms. Elam’s tube feeds
and diet orders were abruptly changed with the
nutritionist recommending stopping a continuous
Nepro order and providing one can of Nepro after
meals with 50 ml of free water if she eats less than
50% of her meals.
47.
On June 20, 2020, the Brookdale
Richmond Place Minimum Data Set (“MDS”)
documented that Ms. Elam had no disorganized
thinking, no altered consciousness, and no unhealed
pressure ulcers/injuries.
48.
On June 22, 2020, Ms. Elam’s Brookdale
Richmond Place providers noted that her C. Difficile
PCR test was negative. (Pl.’s Exhibit 11).
49.
Dr. Cascone testified that Ms. Elam no
longer had C diff. as of June 22, 2020.
50.
Ms. Elam’s June 22, 2020 records
indicate that she had “buttocks very red but blanches”
with skin intact.
51.
Dr. Cascone noted that on June 22, 2020,
the first date for her weight in Brookdale Richmond
Place’s records, Ms. Elam’s weight had dropped to 132
pounds. (Pl.’s Exhibit 12).
52.
Dr. Cascone noted that this weight drop
to 132 pounds within a week at Brookdale Richmond
Place from 140 to 145 pounds at Cardinal Hill was a
significant drop in weight in a short amount of time.
53.
According to Dr. Cascone, Ms. Elam had
recorded five diarrhea stools noted on June 22, 2020,
and that it could be concluded that she was having
volume loss.
54.
Consequently, Dr. Cascone testified that
the five diarrhea stools was something that the
Pet. App. 96
Brookdale Richmond staff nurses should have noted
and planned for.
55.
A week later, June 29, 2020, Ms. Elam’s
medical records indicated that the skin was no longer
intact with redness related to incontinence-associated
dermatitis (“IAD”) located on her coccyx, and this was
documented as not being a new finding.
56.
On June 30, 2020, Brookdale Richmond
Place providers noted that Ms. Elam had an acute
kidney injury with elevated BUN levels of 45 and
elevated creatinine levels of 2.1, as well as
leukocytosis.
57.
Dr. Cascone testified that Ms. Elam
started developing a kidney injury on June 30, 2020
due to the creatinine and BUN levels and
leukocytosis, which was due to a lack of hydration.
58.
On June 30, 2020, there was an order for
a low air loss mattress for Ms. Elam.
59.
The June 30, 2020 order for a low air loss
mattress was discontinued the following day on July
1, 2020 by Amber Moon, Brookdale Richmond Place’s
wound care nurse, and replaced with an order for a
pressure redistribution mattress. (Pl.’s Exhibit 53).
60.
DON Lisa Dotson could not explain why
the low air loss mattress order was discontinued on
July 1, 2020.
61.
DON Dotson testified that a pressure
redistribution mattress (also known as a static foam
mattress) is a standard mattress provided to all
residents at Brookdale Richmond Place and, unlike a
low air loss mattress, it does not have air that relieves
pressure and pressure points.
62.
DON Dotson testified that a low air loss
Pet. App. 97
mattress helps prevent pressure ulcers or the
progression of pressure ulcers.
63.
DON Dotson testified that she authored
a record in Ms. Elam’s nursing home chart that stated
“DON is awaiting to be ordered and to be delivered on
July 7, 2020”, and then on July 8, 2020 that the low
air loss pressure mattress was “waiting for delivery.”
(Pl.’s Exhibit 48).
64.
There is not adequate documentation
that Ms. Elam was ever on a low loss air mattress
from July 1, 2020 to the time she was discharged to
UK Hospital.
65.
Brookdale Richmond Place’s medical
bills state that Ms. Elam only had a low air loss
mattress for one day, the last day of her residency at
the facility. (Pl.’s Exhibits 40, 58).
66.
Brookdale Richmond Place conceded
that at the very least, Ms. Elam was not on a low air
mattress from July 6 to July 8, 2020, and the facility’s
documentation does not substantiate a reason for her
not being on a low air loss mattress for this period of
time.
67.
DON Dotson testified that low air loss
mattresses were important for residents at high risk
for pressure ulcer development, like Ms. Elam.
68.
DON Dotson testified that there were no
records regarding the issue for the need to change the
low air loss mattress for Ms. Elam.
69.
DON Dotson testified that on the night
she was caring for Ms. Elam, July 7, 2020, Ms. Elam
did not have a low air loss mattress.
70.
Dr. Barzyk testified that the delay that
occurred in receiving a low air loss mattress was below
Pet. App. 98
the standard of care.
71.
On July 1, 2020, it was documented that
Ms. Elam was loud and yelling with three open areas
on her buttocks. It was further documented that she
did not take sufficient amount of oral fluids. (Pl.’s
Exhibit 16).
72.
On July 1, 2020, Ms. Elam’s medical
records documented the presence of significant
excoriation/yeast/redness noted to her groins, inner
thighs, and buttocks, with multiple areas of slough.
Additionally, her mouth was noted as being dry.
73.
Ms. Elam was given multiple topical
treatments, including steroid creams to combat her
denuded and inflamed skin.
74.
Dr. Barzyk was critical of the usage of
these multiple creams as having the effect of
“cancelling” each other out in concurrent usage, and
further noted that topical treatments including
steroids can actually further impair the skin. (Pl.’s
Exhibit 38).
75.
Dr. Barzyk criticized the failure to
diagnose Ms. Elam’s skin condition properly and the
failure to document any ICD-10 diagnosis codes in her
medical record.
76.
Dr. Barzyk testified that nurse
practitioner Amie Osborne had noted on July 1, 2020
that Ms. Elam had excoriation redness and open skin,
along with multiple areas of slough, but failed to
identify the wounds as pressure ulcers.
77.
Dr. Barzyk was critical of Brookdale
Richmond Place’s nurses never identifying Ms. Elam’s
pressure wounds, even though Osborne identified that
Ms. Elam’s skin had issues including slough on her
Pet. App. 99
wounds and open skin.
78.
Dr. Barzyk noted that Ms. Elam’s
pressure wounds were finally identified at UK
Hospital, after Mrs. Elam was transferred from
Brookdale Richmond Place.
79.
Dr. Barzyk testified that it is below the
standard of care not to properly identify, assess,
document, and provide care plans for pressure
wounds.
80.
DON Dotson testified that the standard
of care required appropriate revisions to a patient’s
care plan if necessary for effective care.
81.
Dr. Barzyk noted that a RN nurse had to
perform Ms. Elam’s skin assessment and that a LPN
nurse or nurse aide could not. However, the nursing
home records do not have documented RN nurses’
signatures as required.
82.
Dr. Barzyk testified that there are
regulatory and penalty concerns which would provide
a motive for Defendants not to identify the pressure
ulcers.
83.
Dr. Barzyk noted that nurses tend to get
in trouble when patients develop facility acquired
wounds and will as a result sometimes try to hide
them.
84.
Dr. Barzyk stated another potential
reason that the nursing home’s documentation is
inaccurate is due to lack of proper education.
85.
Dr. Barzyk noted that there was only one
instance in Ms. Elam’s Brookdale Richmond Place
medical record of her actually refusing to turn and
reposition, immediately after she had a urethral
catheterization placed in her, and further noted that
Pet. App. 100
her mental status, which was becoming altered and
not oriented, could not adequately be characterized as
“refusing.”
86.
Dr. Barzyk noted that there was no
record found in Cardinal Hill’s records of Ms. Elam
refusing to turn, which was only one month prior, and
the July 12, 2020 progress note at Cardinal Hill states
“Patient compliant with all therapies.” (Pl.’s Exhibit
3).
87.
On July 2, 2020, it was again
documented that Ms. Elam was yelling loudly and
continued not eating and drinking. (Pl.’s Exhibit 17).
88.
The July 2, 2020 functional abilities and
goals record states that Ms. Elam required
“substantial/maximal assistance” for eating. (Pl.’s
Exhibit 39).
89.
The Brookdale Richmond Place nursing
home records had multiple entries of Ms. Elam having
unclear speech and/or slurred speech and then,
simultaneously, other records claimed she had clear
speech.
90.
Dr. Cascone testified that within the last
week she was at Brookdale Richmond Place, Ms. Elam
experienced a dramatic decline in oral intake, eating
nothing for breakfast, lunch, or dinner for seven days,
except for in the evening.
91.
According to Dr. Cascone, this lack of
oral intake was not enough to maintain adequate
nutrition or to fight off infection.
92.
DON Lisa Dotson conceded that risk
factors for pressure ulcers include lack of cushioning,
lack of turning and repositioning, malnutrition, and
dehydration.
Pet. App. 101
93.
On July 5, 2020, Dr. Cascone noted that
Ms. Elam had a continued decline in her cognition and
ability to communicate. (Pl.’s Exhibit 19). Ms. Elam
was again yelling out most of the day. (Pl.’s Exhibit
46).
94.
On July 6, 2020, it was documented that
Ms. Elam had acute hypoxic respiratory failure (O2
oxygen level dropping to 85%) with an altered mental
status and there were three open wounds on her
buttocks. The wounds were not measured, described,
or staged as required. (Pl.’s Exhibits 19, 47).
95.
Dr. Cascone testified that Ms. Elam’s
wounds should have been measured, described, and
staged. There was no note detailing what was
conveyed to her primary care provider in terms of her
overall condition and the downward trajectory of her
health.
96.
Dr. Cascone testified that Ms. Elam’s
drop in oxygen on July 6, 2020 was a new finding
which showed evidence of organ dysfunction.
97.
Defendant’s expert Dr. Mark Elam
agreed that one of the ways to diagnose sepsis was by
organ failure.
98.
Dr. Cascone testified that the acute
hypoxic respiratory failure detailed on July 6, 2020,
was more likely than not caused by sepsis.
99.
The Brookdale Richmond Place weight
and vitals summary dated July 9, 2020 at 1:41 a.m.
(recorded and documented as taking place after her
discharge, which expert Byron Arbeit testified was
below the standard of care for required
documentation), stated that Ms. Elam’s O2 oxygen
level had dropped to 76%. (Pl.’s Exhibit 20).
Pet. App. 102
100. On July 6, 2020, Ms. Elam’s weekly skin
integrity review identified three open areas to her
buttocks with yellow tissues and buttocks red followed
by wound care nurse. This was also identified as not
being a new finding.
101. Dr. Barzyk testified that Brookdale
Richmond
Place’s
nursing
home
chart’s
documentation of open wounds on the coccyx and
yellow tissue on the buttocks with the noted presence
of multiple areas of slough was conclusive evidence of
the existence of full thickness wounds on Ms. Elam’s
coccyx at Brookdale Richmond Place, which developed
during her residency there.
102. Dr. Barzyk testified that Brookdale
Richmond Place’s documentation of Ms. Elam only
having skin damage from MASD (“moistureassociated skin damage”) and IAD, which both
produce only partial thickness skin damage to the
epidermal and dermal skin layers, was not consistent
with her slough, which can only be developed by full
thickness wounds.
103. Dr.
Barzyk
testified
that
the
development of pressure ulcers was a “never event,”
meaning that these were serious, preventable, and
should never occur.
104. Dr. Cascone testified that Ms. Elam’s
Brookdale Richmond Place admission notes from June
15, 2020, which noted “macerated associated
dermatitis/incontinent associated dermatitis” was
completely different than her five unstageable
pressure wounds. Specifically, Dr. Cascone stated that
her pressure wounds were devitalized tissue wounds
on her bilateral buttocks and not moisture associated
Pet. App. 103
skin damage.
105. On July 7, 2020, Ms. Elam was further
documented to have confusion, disorientation,
lethargy, yelling out in pain, strong urine odor, not
eating or drinking with the progression of multi organ
failure. (Pl.’s Exhibit 21).
106. Dr. Cascone stated that Ms. Elam should
have been sent to the hospital immediately for an
evaluation once she had hypoxic respiratory failure on
July 6, 2020.
107. Despite the requirement that Ms. Elam
be immediately transferred for urgent hospital care,
there was a delay in transferring her of approximately
60 hours.
108. Dr. Cascone testified that this 60-hour
delay directly affected her mortality, and if she had
been sent to UK Hospital on July 6, 2020, she more
likely than not would have survived due to the
mortality of sepsis functioning on an exponential
curve.
109. Dr. Cascone testified that every minute
that Ms. Elam failed to be sent to the hospital
significantly increased her risk of mortality.
110. Dr. Cascone was critical of Ms. Elam’s
July 8, 2020 Brookdale Richmond Place nursing home
chart because it did not detail skin issues, despite the
open areas on her buttocks, it did not detail behavioral
changes, despite her detailed mental status changes,
and it did not have pain documentation, despite her
having been documented as screaming out in pain for
several consecutive days. (Pl.’s Exhibit 22).
111. Ms. Elam’s granddaughter Breanne
Lutes testified that she never saw her grandmother
Pet. App. 104
while she was at Brookdale Richmond Place.
112. Ms. Elam’s grandson Steven Richardson
testified that he never spoke to his grandmother while
she was at Brookdale Richmond Place.
113. Breanne Lutes and Steven Richardson
both testified that they were never contacted by
Brookdale
Richmond
Place
regarding
their
grandmother’s health status and health changes.
114. Breanne Lutes and Steven Richardson
both testified that they never received any
communication whatsoever from Brookdale Richmond
Place.
115. Breanne Lutes testified that, on multiple
occasions, she would try to reach her grandmother
through Brookdale Richmond Place but would be
constantly re-directed and placed on hold to the point
that she would have to hang up.
116. Ms. Elam’s sister and power of attorney
Bonnie Townsend testified that the only contact she
remembered receiving from Brookdale Richmond
Place was when she signed the admission documents
from Brookdale Richmond Place.
117. Bonnie Townsend testified that she could
not recall any communications from Brookdale
Richmond Place regarding Ms. Elam’s care and
treatment at Brookdale Richmond Place until the
night she was transferred to UK Hospital on July 8,
2020.
118. Defendant’s nurse administrator expert
Rodney Whittington admitted that communication
with the family of residents is required by government
regulation, is part of the standard of care, and is “good
practice.”
Pet. App. 105
119. Dr. Barzyk testified that due to
Brookdale Richmond Place records having no
documentation nor records regarding Ms. Elam’s
integumentary skin assessment, Brookdale Richmond
Place did not comply with the requirement for
documentation regarding the admission data
collection of weekly skin integrity review.
120. Dr. Barzyk testified that there were
inconsistent medical records regarding the completion
of turning and repositioning flow sheets and bathing
frequency recordation.
121. Dr. Barzyk was critical of Brookdale
Richmond Place staff for their lack of recording Ms.
Elam’s pressure ulcers.
122. Dr. Barzyk testified that Ms. Elam’s full
body skin assessment documentation was not
completed and a form regarding it (entitled “Skin &
Wound Evaluation”) was blank and simply stated “No
Data Found.” (Pl.’s Exhibit 41). No appropriate skin
and wound evaluation was performed for Ms. Elam.
123. Dr. Barzyk testified that weekly skin
reviews were for documenting wounds on the skin,
detailing if the wound is new or not new, and that as
a result a care plan would be started, but even when
Brookdale Richmond Place nurses found open wounds
on Ms. Elam they did not detail those as new which
affected the care plan.
124. Dr. Barzyk testified that not adequately
documenting Ms. Elam’s pressure wounds would
affect the ability of nutritionists, social workers,
physicians, and other nurses to provide the
appropriate interventions and care plans.
125. The Brookdale Richmond Place form for
Pet. App. 106
“Unavoidable Pressure Ulcer” is blank and states “No
Data Found.” (Pl.’s Exhibit 41). Defendants did not
conclude that Ms. Elam’s pressure ulcers were
“unavoidable.”
126. Nursing home administration expert
Byron Arbeit testified that the nursing home
administrator is the last line of internal defense and
protection of a resident’s rights and care.
127. Arbeit
testified
that
Defendant
Brookdale Richmond Place, and also specifically
Defendant-administrator Becky Stocker, failed in
their role and responsibility in the administration of a
nursing home to monitor, coordinate, and evaluate the
quality of care of each resident; appropriately modify
discipline, or terminate the practice of anybody in the
nursing home, clinician or otherwise, if the practice
compromises the nursing home facility’s policies or
governmental regulations; to ensure a safe
environment for residents; ensuring competent staff
at the nursing home facility; and to ensure the nursing
home is run efficiently and effectively.
128. Defendants’ expert Rodney Whittington
agreed that there were numerous federal standards
known as “F-Tags” which govern nursing homes,
including many “Substandard Quality of Care”
requirements and obligations with which Defendants
were required to comply. (Pl.’s Exhibit 50).
129. Arbeit also testified that in this case
there are a plethora of violations of governmental
state and federal regulations including the F-Tags
and vitally important Substandard of Care
requirements, which have a special meaning in
nursing home administration and can result in
Pet. App. 107
reporting of an administrator to his or her state board
of licensure.
130. Arbeit testified that numerous F-Tags
were violated by Defendants in this case, including
those regarding skin care, nutritional care,
hydrational care, abuse and neglect and inadequate
care.
131. Arbeit testified that the administrator
should be automatically reported to the state
licensure board if there is substandard skin care,
nutritional care, or hydrational care at a nursing
home facility.
132. Arbeit testified that the “buck stops”
with the administrator.
133. Defendants’ nursing home administrator
Defendant Becky Stocker also admitted that, as the
administrator of Brookdale Richmond Place, the
“buck stops” with her.
134. Becky Stocker testified that she believed
an administrator should not conduct charting audits
unless there was a complaint or regulatory issue.
135. Specifically, Stocker stated that she
would not intervene in charting unless it was brought
to her attention through a complaint.
136. Arbeit testified that as part of their
oversight role, administrators are required to be
competent regarding and to investigate care issues
and to review nursing home records at their facility,
and that Defendant Becky Stocker failed this
requirement.
137. Stocker testified that neither the staff
nor Ms. Elam’s family brought any issues to her
attention despite Breanne Lutes, Steven Richardson,
Pet. App. 108
and Bonnie Townsend testifying they had virtually no
contact with Brookdale Richmond Place and were not
informed of changes in her condition, and they
thereafter filed a lawsuit on her behalf.
138. Stocker admitted that during her
previous sworn deposition she did not know if the
standard of care of nursing home staff required
assessment.
139. However, at the Arbitration, Stocker
admitted that assessment by nursing home staff was
important and was required by state and federal
regulation.
140. Stocker testified that she could not give
a definition for the term “substandard quality of care.”
(See Pl.’s Exhibit 50).
141. Nursing home administration experts for
both the Plaintiff and Defendants testified that the
regulations and requirements regarding substandard
quality of care are very important to appropriately
running a nursing home and providing care.
142. Stocker admitted that, during her
previous sworn deposition, she did not know if
charting was an important tool for looking back to see
what had happened and to prevent the same problems
in the future.
143. However, at the Arbitration, Stocker
admitted that charting was very important.
144. Stocker testified that she did not know
what “charting by exception” meant.
145. Stocker testified that during her two
years at
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