IN THE IOWA DISTRICT COURT FOR DELAWARE COUNTY JOYCE EVERETT, Individually and as Executor of the Estate of VERNA KELLEY, STEPHEN KELLEY, Individually, BILL JOHNSTON, Individually, EDGAR KELLEY, Individually, LINDA MILLARD, Individually, and SHIRLEY POSSEHL, Individually, vs. Plaintiffs, EDGEWOOD CONVALESCENT HOME, INC. d/b/a EDGEWOOD CONVALESCENT HOME, Defendant. LAW NO. PETITION AT LAW AND JURY DEMAND Plaintiffs, Joyce Everett, Individually and as Executor of the Estate of Verna Kelley, Stephen Kelley, Individually, Bill Johnston, Individually, Edgar Kelley, Individually, Linda Millard, Individually, and Shirley Possehl, Individually, for their causes of action against Defendant Edgewood Convalescent Home, Inc., d/b/a Edgewood Convalescent Home state to the Court as follows: PARTIES, VENUE AND JURISDICTION 1. Decedent Verna Kelley died testate a resident of the City of Edgewood, Delaware County, Iowa on January 29, 2016. 2. Plaintiff Joyce Everett was at all times relevant hereto a resident of Edgewood, Delaware County, Iowa, and is the decedent s daughter. Kelley. 3. Plaintiff Joyce Everett is the duly appointed Executor of the Estate of Verna
4. Plaintiff Stephen Kelley was at all times relevant hereto a resident of Manchester, Delaware County, Iowa. 5. Plaintiff Bill Johnston was at all times relevant hereto a resident of Carson City, Ormsby County, Nevada. 6. Plaintiff Edgar Kelley was at all times relevant hereto a resident of Mission, Hidalgo County, Texas. 7. Plaintiff Linda Millard was at all times relevant hereto a resident of Floral City, Citrus County, Florida. 8. Plaintiff Shirley Possehl was at all times relevant hereto a resident of Grundy Center, Grundy County, Iowa. 9. Defendant Edgewood Convalescent Home, Inc. d/b/a Edgewood Convalescent Home (hereinafter referred to as Edgewood Convalescent Home is an Iowa Code 490 domestic profit corporation doing business in the State of Iowa at all times relevant to this action. 10. Defendant owns, operates, and / or manages a facility located at 513 S. Bell Street, Edgewood, Delaware County, Iowa, and venue is appropriate. 11. The amount in controversy exceeds jurisdictional minimums. BACKGROUND AND FACTS 12. Defendant holds itself out as an expert in skilled care facility and licensed nursing home care. 13. At all times relevant to this action, Verna Kelley required and was dependent upon Defendant to provide her with nursing home care and supervision. It is reasonably believed that Defendant is responsible for all relevant acts and omissions that 2
resulted in Verna Kelley s illness, injuries, and damages. To the extent discovery proves otherwise, Plaintiffs reserve the right to amend this Petition to add parties and claims, as necessary. 14. At all times relevant to this action, Verna Kelley was a resident of Edgewood Convalescent Home. 15. During this time of continuous care, Defendant negligently cared for Verna Kelley and violated numerous regulations, laws, rights, and industry standards, causing Verna Kelley personal injury, illness, harm, and eventual death, including but not limited to failing to appropriately monitor Verna to avoid injury, failing to adequately staff its facility to provide for her care, and failing to comply with Code of Federal Regulations 42 Part 483, Iowa Administrative Code Chapter 58, and other related regulations and laws. COUNT I WRONGFUL DEATH, NEGLIGENCE, GROSS NEGLIGENCE, and/or RECKLESSNESS AGAINST DEFENDANT 16. Plaintiffs replead paragraphs 1 through 15, as if fully set forth herein. 17. Defendant represented to Verna Kelley and her family that it had the skill and care necessary to provide her with safe care and housing and an organized continuous twenty-fourhour program of care commensurate with the needs of Verna Kelley, under the immediate direction of qualified personnel. Defendant. 18. In reliance upon Defendant s representations, Verna Kelley became a resident of 19. As a nursing home community, Defendant has the duty to exercise reasonable care toward its residents and patients to ensure that each resident s health is cared for, and that they have appropriate medical attention, if needed. 3
20. Defendant was generally negligent and also specifically negligent, grossly negligent, and reckless in one or more of the following particulars: a. Failure to ensure proper medical attention or adequate medical supervision; b. Failure to provide appropriate care and staffing including complete and full nursing assessments and nursing interventions; c. Failure to assure urgent access to hospital and medical care as needed; d. Failure to transfer to an appropriate level of care in a timely manner; e. Failure to prevent injuries and, in doing so, failure to prevent accident from occurring; f. Failure to keep Verna Kelley safe and secure; g. Failure to keep Verna Kelley from falling; h. Failure to accurately document changes in condition or to notify physicians of changes in condition; i. Failure to provide complete, accurate, and reliable charting; j. Failure to administer correct medications; k. Failure to abide by all relevant state and federal regulations, administrative codes, regulations, and laws; l. Failure to formulate, adopt, enforce and/or follow policy and procedures; m. Failure to respect and protect Verna Kelley s rights; n. Violating Verna Kelley s dignity; o. Failure to follow the care plan; p. Failure to follow the facility s contractual agreement; q. Failure to provide sufficient or appropriate care and staffing to meet the needs of the resident; r. Failure of facility administration to assure the resident s needs were met; 4
s. False or otherwise misleading advertising; t. Negligently hiring, retaining, and supervising personnel; u. Inadequate training of staff; v. Failing to properly supervise residents; w. Failure to properly budget to maintain adequate care and safe facility; x. Mismanagement of the facility and staff; and y. Such other acts and omissions as may be developed through the course of discovery. 21. As a result of Defendant s negligence, gross negligence, and/or recklessness, Verna Kelley unnecessarily suffered from preventable and/or treatable health conditions, thereby incurring pain, suffering, and injuries, which eventually resulted in her death. 22. Defendant s negligence, gross negligence, and/or recklessness was the cause of Verna Kelley s illnesses and injuries, which eventually resulted in her death. 23. The provisions of comparative fault do not apply to Verna Kelley as she was a nursing home resident without the ability to care for herself. 24. Joyce Everett, as Executor of the Estate of Verna Kelley, is entitled to recover damages on behalf of the Estate and individually as follows: a. The present worth or value of the Estate that would reasonably be expected to have been saved and accumulated as a result of her efforts between the time of her premature death and the end of her natural life, had she lived; b. Fair and reasonable compensation for injuries and damages sustained by Verna Kelley s surviving children Joyce Everett, Stephen Kelley, Bill Johnston, Edgar Kelley, Linda Millard, and Shirley Possehl for their loss of consortium, including love, affection, services, society, and companionship, as a result of the injuries and premature death of Verna Kelley; c. Past, present, and future medical expenses; 5
d. Past, present, and future pain and suffering; e. Decreased ability to lead a normal life; f. Past, present, and future loss of mental and physical function; g. Past, present, and future emotional impairment and mental anguish; h. Funeral and burial expenses as well as interest on the cost of the funeral and burial of Verna Kelley for the period between the date of her premature death and the date on which she could have been expected to die; and i. Other such damages as may arise through the course of discovery. COUNT II BREACH OF CONTRACT 25. Plaintiffs replead paragraphs 1 through 24, as if fully set forth herein. 26. Defendant entered into a written agreement whereby it agreed to provide Verna Kelley with adequate and safe care and housing and an organized, continuous twenty-four-hour program of care commensurate with the needs of Verna Kelley under the immediate direction of qualified personnel. 27. Verna Kelley and those family members responsible for her fulfilled all of their obligations under her agreement with Defendant. 28. Defendant breached its contract with Verna Kelley. 29. As a result of Defendant s breach of contract, Verna Kelley incurred substantial pain, suffering, and injuries, eventually resulting in her death. 30. To the extent that any contract exists between Defendant and some other unknown party concerning the care and treatment of Verna Kelley, Verna Kelley is a third-party beneficiary of such a contract and accordingly alleges a breach of such contract. 6
31. As a result of Defendant s breach of contract, Plaintiffs have and will in the future suffer damages. COUNT III DEPENDENT ADULT ABUSE 32. Plaintiffs replead paragraphs 1 through 31, as if fully set forth herein. 33. At the time of her injuries and death, Verna Kelley was older than age eighteen. 34. At all times material hereto, Verna Kelley was unable to protect her own interests and to perform necessary services to adequately meet her essential human needs due to physical and/or mental conditions that required assistance from others. 35. The negligent and/or reckless acts or omissions of Defendant resulted in the deprivation of the minimum supervision, physical or mental health care, and/or other care necessary to maintain Verna Kelley s health. 36. Defendant s negligent and/or reckless acts or omissions constitute Dependent Adult Abuse under Iowa Code Chapter 235E. 37. As a result of Defendant s Dependent Adult Abuse, Verna Kelley suffered damages. 38. Plaintiff, Joyce Everett, individually and as Executor of the Estate of Verna Kelley, is entitled to damages for the Defendant s Dependent Adult Abuse under Iowa Code Chapter 235E. 39. As a result of Defendant s Dependent Adult Abuse, Plaintiffs Joyce Everett, Stephen Kelley, Bill Johnston, Edgar Kelley, Linda Millard, and Shirley Possehl have and will in the future suffer loss of services, companionship, and society of Verna Kelley, their mother. COUNT IV- LOSS OF CONSORTIUM FOR JOYCE EVERETT, STEPHEN KELLEY, BILL JOHNSTON, EDGAR KELLEY, LINDA MILLARD, AND SHIRLEY POSSEHL 7
Plaintiffs replead paragraphs 1 through 39, as if fully set forth herein. 40. Joyce Everett, Stephen Kelley, Bill Johnston, Edgar Kelley, Linda Millard, and Shirley Possehl are the adult children of Verna Kelley. 41. As a direct result of the negligence of the Defendant, Joyce Everett, Stephen Kelley, Bill Johnston, Edgar Kelley, Linda Millard, and Shirley Possehl have suffered and will in the future continue to suffer damages as the result of the loss of services, companionship, society, and support of their mother, Verna Kelley. COUNT V PUNITIVE DAMAGES 42. Plaintiffs replead paragraphs 1 through 41, as if fully set forth herein. 43. Defendant knew or in the exercise of reasonable care should have known that Defendant s conduct constituted a willful and wanton disregard for the right or safety of another and caused actual damage to the Plaintiffs. 44. Defendant acted with willful or reckless disregard for the rights of Verna Kelley, and as a result, Plaintiffs are entitled to punitive damages. COMMON REQUEST FOR RELIEF WHEREFORE, Plaintiffs Joyce Everett, Individually and as Executor of the Estate of Verna Kelley, Stephen Kelley, Individually, Bill Johnston, Individually, Edgar Kelley, Individually, Linda Millard, Individually, and Shirley Possehl, Individually, are entitled to money damages against Defendant in an amount that will fully, fairly, and adequately compensate them 8
for their injuries and damages sustained, including tort damages allowable by law and contractual damages, together with interest as provided for by law, and the costs of this action. JURY DEMAND Plaintiffs request a jury trial on all issues triable to a jury. 9
Original filed. /s/ Pressley Henningsen PRESSLEY HENNINGSEN AT0003402 BENJAMIN LONG AT0010155 BRIAN C. IVERS AT0003781 RSH LEGAL, P.C. 425 Second Street SE, Suite 1140 Cedar Rapids, IA 52401 Phone: (319 365-9200 Fax: (319 365-1114 phenningsen@fightingforfairness.com blong@fightingforfairness.com bivers@fightingforfairness.com ATTORNEYS FOR PLAINTIFFS 10