Bedenbauh V. Encompass Health

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STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS ) COUNTY OF RICHLAND ) Case No.: 2020-CP-40-______

Geraldine Deloris Bedenbaugh, ) ) Plaintiff, ) ) SUMMONS vs. ) ) Encompass Health Rehabilitation ) Hospital of Columbia, Inc. ) ) Defendant. ) ______)

YOU ARE HEREBY SUMMONED and required to Answer the Complaint in this action, a copy of which is served upon you, and to serve a copy of your Answer to the Complaint on the subscriber at his office at 1517 Hampton Street, Columbia, South Carolina 29201, within thirty (30) days of service, exclusive of the date of service; and if you fail to Answer the

Complaint within that time, judgment by default will be rendered against you for the relief demanded in the Complaint.

Respectfully submitted,

s/ Richard A. Jones III #100654 S. Randall Hood John G. Felder, Jr. Richard A. “Trey” Jones III McGowan, Hood & Felder, LLC 1517 Hampton Street Columbia, SC 29201 Telephone: (803) 779-0100 Facsimile: (803) 256-0702 [email protected] Columbia, South Carolina [email protected] May 22, 2020 [email protected]

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STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS ) COUNTY OF RICHLAND ) Case No.: 2020-CP-40-______

Geraldine Deloris Bedenbaugh, ) ) Plaintiff, ) ) COMPLAINT vs. ) (JURY TRIAL DEMANDED) ) Encompass Health Rehabilitation ) Hospital of Columbia, Inc., ) ) Defendant. ) ______)

Plaintiff, by and through her undersigned counsel, hereby submits her Complaint against the Defendant, and respectfully alleges as follows:

SUMMARY OF EVENTS

1. Geraldine Deloris Bedenbaugh was born the only child to Jeremiah and Annie Bell

Green in Columbia, South Carolina on June 2, 1942. At the age of seven, Geraldine was diagnosed with Rheumatic Fever and was not expected to live past the age of 32.

2. Geraldine defied the odds and survived that disease. She was married and had two daughters in the 1970s. After only three years of marriage, Geraldine’s husband left the family, leaving her to raise the daughters alone.

3. Geraldine supported her family by working for 24 years as an educator in the South

Carolina public school system. After her retirement in 2005, Geraldine was appointed as the second-ever female to serve as Chair of the Trustees for Trinity Baptist Church—the church to which she has belonged as a member for 77 years. Her involvement with Trinity extended to teaching Sunday School and Vacation Bible School for many years.

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4. In 2018, Geraldine lost her eyesight due to vascular occlusion. This change in her life dramatically increased the importance and necessity of verbal communication to ensure

Geraldine’s wellness and safety.

5. COVID-19 is a new respiratory virus first identified in Wuhan, China which has now spread throughout the world. On or around March 6, 2020, the virus began spreading in

South Carolina. Symptoms of the virus—fever, cough and shortness of breath—can be mild, or in some cases, can be severe enough to require hospitalization. Those at particular risk for more severe Covid-19 illness are individuals 65 years and older and those with underlying health conditions. There is currently no vaccine to protect against the virus. The best way to protect oneself is to take precautions to avoid being exposed to the virus.

6. The World Health Organization, the Centers for Disease Control and Prevention, and other recognized health care authorities were warning the general public (and especially those in health care) that social distancing while symptomatic, washing one’s hands and proper sterilization of surfaces are mandatory in an attempt to stop the spread of the virus. These same health care facilities (including rehabilitation facilities and nursing homes) were on notice that if they did not follow recommended guidelines and safety precautions, they were exposing an entire vulnerable patient population to a deadly virus.

7. On March 6, 2020, Geraldine was admitted to Prisma Health Baptist Hospital for generalized weakness, secondary to low hemoglobin. Her condition improved and on March 13,

2020, she was transferred to Encompass for short-term rehabilitation following her hospitalization.

As early as March 18, 2020 Ms. Bedenbaugh overheard an Encompass employee stating that three employees with COVID-19 related symptoms were sent home from work at some time prior to that date.

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8. Geraldine was aware of the COVID-19 virus and inquired as to Encompass or their employees’ knowledge of anyone at the facility having the virus. She was not trying to ascertain any HIPAA-protected information or prohibited information but was simply trying to ensure that she was safe from the virus. Though she made these inquiries to different Encompass employees, she received no communication regarding any symptomatic employees or residents.

9. Geraldine was discharged home from Encompass on March 26, 2020. On April 1,

2020, she received a letter dated March 28, 2020 from Encompass informing her that several of their employees had tested positive for COVID-19. By that time, Geraldine had become symptomatic and was taken to the hospital where she tested positive for COVID-19. As a result of this viral infection, she required hospitalization for nine days and unwittingly exposed several of her family members to the illness.

PARTIES

Plaintiff:

10. Plaintiff Geraldine Deloris Bedenbaugh (“Ms. Bedenbaugh”) is a citizen and resident of Richland County, South Carolina, and is a former resident of the Defendant’s Richland

County inpatient rehabilitation facility.

Defendant:

11. Upon information and belief, Defendant Encompass Health Rehabilitation Hospital of Columbia, Inc. (“Encompass”), is a business corporation organized and existing pursuant to the laws of the State of Delaware which conducts business in Richland County, South Carolina, at

2935 Colonial Drive, Columbia, South Carolina.

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12. The Defendant had the right and/or power to direct and control its employees and/or agents in the business and they are personally, jointly and severally liable for the acts and omissions committed.

13. The negligent acts, omissions, and liability of the Defendant includes that of their agents, principals, employees, and/or servants, both directly and vicariously, pursuant to principles of corporate liability, apparent authority, agency, ostensible agency, non-delegable duty, and/or respondeat superior.

14. At all times referenced in this Complaint, and as to all allegations in this Complaint, the agents, principals, employees, and/or servants of the Defendant were acting within the course and scope of their employment.

15. The above-named Defendant (through its actions or inactions, or the actions or inactions of its agents and/or employees) is liable for all damages alleged herein since their multiple and separate negligent, grossly negligent, reckless, and/or willful and wanton acts and omissions are a proximate cause of Plaintiff’s damages, injuries and losses.

JURISDICTION AND VENUE

16. This Court has subject-matter jurisdiction over this action and the claims set forth in this complaint.

17. This Court has personal jurisdiction over the Defendant pursuant to S.C. Code Ann.

§ 36-2-802 because the Defendant resides in or has enduring relationships with the State of South

Carolina.

18. Venue is appropriate pursuant to S.C. Code Ann. § 15-7-30 because the Defendant has its principal place of business in Richland County and the most substantial part of the acts giving rise to these claims occurred in Richland County.

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COVID-19 “CORONAVIRUS” FACTS

19. COVID-19 is a new respiratory virus first identified in Wuhan, China which has now spread throughout the world.

20. On or around March 6, 2020, the virus began spreading in South Carolina.

21. The virus has the potential to cause severe illness and pneumonia in some people.

22. The virus can be spread through the air by coughing and sneezing; close personal contact, such as touching or shaking hands; and touching an object or surface with the virus on it, then touching your mouth, nose or eyes.

23. Those at particular risk for more server illness are individuals 65 years and older and those with underlying health conditions.

24. Symptoms of the virus—fever, cough and shortness of breath—can be mild, or in some cases, can be severe enough to require hospitalization.

25. There is currently no vaccine to protect against the virus. The best way to protect oneself is to take precautions to avoid being exposed to the virus.

26. The world, and the medical community (including rehabilitation centers and nursing homes) were warned in late 2019, or at the latest in early 2020, that residents of rehabilitation facilities and nursing homes were susceptible to multiple instances of exposure if facilities were not careful.

27. The World Health Organization, the Centers for Disease Control and Prevention, and other recognized health care authorities were warning the general public (and especially those in health care) that washing one’s hands and proper sterilization of surfaces was mandatory in an attempt to stop the spread of the virus.

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28. Those in the rehabilitation and nursing home arena were aware that they had a susceptible patient population and conditions that were ripe for cases to savage their vulnerable residents and patients.

29. These same rehabilitation facilities and nursing homes were on notice that if they did not follow recommended guidelines and safety precautions, they were exposing an entire vulnerable patient population to a deadly virus.

30. The rehabilitation and nursing home industry has been beset with numerous instances of short staffing and lack of capital funding in the past which have led to instances of injury at these same types of facilities.

31. The rehabilitation and nursing home industry were aware in January and February

2020 that families of residents and employees would be the most likely source of exposure to its residents.

32. There were historical accounts available to the rehabilitation and nursing home industry from reports in China, South Korea, and Italy.

33. The rehabilitation and nursing home arena were aware that if they had employees engaging in risky behavior regarding potential exposure to the virus (through not washing hands, etc.), that it was probable, and even highly likely, that their residents would be exposed to employees with the virus.

34. As a result of all of the past notices of potential instances regarding sterilization, staffing and the possible exposure of a deadly virus to a vulnerable patient population, the rehabilitation and nursing home industries were tasked with doing everything in their power to combat the spread of the virus within their own facilities.

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ALLEGATIONS IN THIS COMPLAINT ARE NON-MEDICAL OR WITHIN THE COMMON KNOWLEDGE EXCEPTION

35. This case is brough pursuant to allegations of negligence, gross negligence or recklessness that are not medical in nature.

36. The allegations that could be construed to be medical in some form or another do not require an expert affidavit since the claims of negligence that could possibly be construed as medical in nature involve allegations that do not require the expertise of a medical expert witness.

FACTUAL ALLEGATIONS

37. Geraldine Bedenbaugh is a 78-year-old female and retired educator of 24 years in the South Carolina public school system.

38. On or about March 6, 2020, Ms. Bedenbaugh was admitted to Prisma Health Baptist

Hospital for generalized weakness, secondary to low hemoglobin.

39. On March 13, 2020, Ms. Bedenbaugh was transferred to Encompass for short-term rehabilitation following her hospitalization.

40. On March 16, 2020, Bedenbaugh family members were advised that no visitors were allowed in Encompass as a precaution to prevent COVID-19 from being brought into the facility from the outside.

41. As early as March 18, 2020 Ms. Bedenbaugh overheard an Encompass employee stating that three employees with COVID-19 related symptoms were sent home from work.

42. Ms. Bedenbaugh was aware of the COVID-19 virus and inquired as to Encompass or their employees’ knowledge of anyone at the facility having the virus.

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43. Ms. Bedenbaugh was not trying to ascertain any HIPAA-protected information or prohibited information but was simply trying to ensure that she was safe from the virus.

44. Though Ms. Bedenbaugh made these inquiries to different Encompass employees, she received no communication regarding any symptomatic employees or residents.

45. Encompass made no communication regarding the residents being exposed to the three symptomatic employees since mid-March.

46. Ms. Bedenbaugh was discharged home from Encompass on March 26, 2020.

47. At the time of discharge, Ms. Bedenbaugh was experiencing a slight cough and a low-grade fever.

48. Encompass did not test Ms. Bedenbaugh for the virus at this time.

49. Encompass did not warn Ms. Bedenbaugh or her family about her potential exposure to the virus at this time.

50. Encompass did not inform Ms. Bedenbaugh or her family that they needed to quarantine from one another due to her exposure due to the virus during the time she was a patient at Encompass rehabilitation.

51. At discharge, Encompass made no communication to the family regarding Ms.

Bedenbaugh’ s exposure to symptomatic employees while in the facility that would have allowed her family to take precautions to protect themselves.

52. Over the weekend (March 28-29, 2020), Ms. Bedenbaugh’ s fever increased to over

100 degrees Fahrenheit and her cough worsened.

53. On April 1, 2020, the Bedenbaugh family received a letter from Encompass (dated

March 26, 2020) that thanked the family for selecting their facility for rehabilitation.

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54. On April 1, 2020, the Bedenbaugh family also received a letter from Encompass

(dated March 28, 2020) that stated:

55. Despite knowledge of the exposure as early as March 12, 2020, Encompass delayed communicating this critical information with residents and their families for nearly three weeks.

56. Despite drafting the letter dated March 28, 2020 (which was a Saturday),

Encompass did not telephone any residents or former residents with this critical information— instead, they allowed an additional four days to pass before the letter was delivered via US Mail.

57. After receiving this letter from Encompass, Ms. Bedenbaugh was taken to

Lexington Medical Center, where she tested positive for COVID-19.

58. Ms. Bedenbaugh was admitted to Prisma Health Richland Hospital for treatment of her COVID-19 related symptoms and remained there for approximately 9 days.

59. Ms. Bedenbaugh’ s daughter and son-in-law also tested positive for COVID-19 and were hospitalized after their exposure to Ms. Bedenbaugh March 19, 2020 through April 1, 2020.

60. As a direct and proximate result of the Defendant’s failure to communicate, Ms.

Bedenbaugh was exposed to COVID-19 and became infected with the virus. The failure to communicate also allowed Ms. Bedenbaugh to spread COVID-19 to others. Had Defendant

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properly communicated, Ms. Bedenbaugh would not have suffered the pain and indignity that she did as a result of Defendant’s negligence.

FOR A FIRST CAUSE OF ACTION (General Negligence – Routine/Non-Medical Care)

61. The Plaintiff re-alleges and reiterates paragraphs one (1) through sixty (60) as though fully set forth herein verbatim.

62. Defendant and its employees and/or agents undertook the duty to render routine, ministerial, administrative, and/or non-medical care to Ms. Bedenbaugh.

63. Upon information and belief, the Defendant has a non-delegable duty to provide necessary and proper staff adequately trained and able to provide any routine and/or non-medical care to patients.

64. Upon information and belief, the Defendant has the right or power to direct and control the manner in which its employees and/or agents provide care and operate the business of delivering routine, general, ministerial, and/or non-medical care.

65. “[N]ot every action taken by a medical professional in a hospital or doctor’s office necessarily implicates medical malpractice and, consequently, the requirements of [S.C. Code

Ann.] Section 15-79-125.” Dawkins v. Union Hosp. Dist., 408 S.C. 171, 178, 758 S.E.2d 501,

504 (2014).

66. “However, at all times, the medical professional must ‘exercise ordinary and reasonable care to ensure that no unnecessary harm [befalls] the patient.’” Id. at 178, 758 S.E.2d at 504 (further citations omitted).

67. “The statutory definition of medical malpractice found in section 15-79-110(6) does not impact medical providers’ ordinary obligation to reasonably care for patients with respect to nonmedical, administrative, ministerial, or routine care.” Id.

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68. “Thus, medical providers are still subject to claims sounding in ordinary negligence.” Id.

69. Encompass and its employees and/or agents had a duty to protect Ms. Bedenbaugh from the exposure to the COVID-19 virus while she was a resident at their facility.

70. Encompass and its employees and/or agents had a duty to inform Ms. Bedenbaugh that there were people who were employees in the facility who had been exposed to COVID-19 and had contracted the virus.

71. Encompass and its employees and/or agents had a duty to train its staff in proper regarding handwashing, exposure to the virus while off work, bringing the virus to work, taking an employee’s temperature before letting them in the facility, etc.

72. Notwithstanding said undertaking, and while Ms. Bedenbaugh was under the care of the Defendant, the Defendant and its employees and/or agents breached their duties for reasonable breached their duties to Plaintiff and were thereby negligent, grossly negligent, reckless, and in violation of the duties owed to Plaintiff and are therefore liable for one or more of the following acts of omission or commission:

a. Defendants failed to communicate with their residents and residents’ families;

b. Defendants failed to act in a way that would be appropriate to a member of the general public;

c. Defendants failed to render proper routine care;

d. Defendants failed to render proper ministerial care; e. Defendants failed to render proper administrative care;

f. Defendants failed to render proper non-medical care;

g. Defendants failed to communicate the known exposure of a potentially deadly virus outbreak within the facility;

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h. Defendants failed to communicate critical information in an effective and urgent manner;

i. Defendants failed to train their employees, nurses, physicians, and/or agents in an appropriate manner; and

j. In such other particulars as may be ascertained through discovery.

73. As a direct and proximate result of the negligence, gross negligence, recklessness, willful and wanton departure from proper routine, ministerial, administrative, or non-medical care by the Defendant, Ms. Bedenbaugh incurred expenses associated with her injuries, including medical bills, experienced pain and suffering, underwent mental anguish and anxiety, contracted a deadly virus, has suffered the loss of enjoyment of life, now and in the future for which the

Plaintiff is entitled to recover an amount of actual, consequential damages and punitive damages from Defendants in an amount to be determined by a jury at trial.

FOR A SECOND CAUSE OF ACTION (General Negligence – Hiring, Retention and Supervision)

74. The Plaintiff re-alleges and reiterates paragraphs one (1) through seventy-three (73) as though fully set forth herein verbatim.

75. The Defendant owed a duty to the patient population, or potential population to properly investigate, hire, supervise, and entrust administrators, physicians, nurses, and aides to the patients.

76. The Defendant breached its duties and were thereby negligent, grossly negligent, reckless and acted in violation of the duties owed to the Ms. Bedenbaugh, and those similar situated, in that they committed one or more of the following acts of omission or commission, any or all of which were departures from the prevailing standards of care:

a. In failing to have in place policies and procedures for hiring properly qualified administrators, physicians, nurses and aides to work for their facilities, or if such policies and procedures were in place, in failing to abide

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by them in the hiring and/or retention of those employees that provided care to Ms. Bedenbaugh; b. In failing to ensure that the employees that interacted with Ms. Bedenbaugh had the proper training and experience to competently provide treat patients such as Ms. Bedenbaugh; c. In failing to conduct a proper investigation on the employees that provided care to Ms. Bedenbaugh before hiring and/or allowing them to interact with patients such as Ms. Bedenbaugh in Encompass; d. In hiring the employees that provided treatment to Ms. Bedenbaugh as administrators, physicians, nurses, and aides, when Defendant knew, or should have known, that they were either not qualified, incompetent, and/or not fit for the positions; e. In either ignoring, or not becoming aware, that their administrators, physicians, nurses, and aides were violating non-medical rules of patient care; f. In failing to have in place policies and procedures for supervising administrators, physicians, nurses, and aides, or if such policies and procedures were in place, in failing to ensure such employees were properly supervised; g. In allowing administrators, physicians, nurses, and aides to hold themselves out as long-term care and rehabilitation specialists when they lacked the appropriate training, education, and experience; h. In allowing administrators, physicians, nurses, and aides to practice medicine/provide treatment as long-term care and rehabilitation specialists when they lacked the appropriate training, education, and experience; i. In retaining these administrators, physicians, nurses, and aides that held themselves out as long-term care and rehabilitation specialists once they became aware these employees lacked the appropriate training, education, and experience; j. In generally failing to use the degree of care and caution that reasonably prudent entities would have used under the same or similar circumstances; k. And in such other particulars as will be proven at trial.

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77. As a direct and proximate result of the negligence, gross negligence and reckless departures from industry standards and standards of care by the Defendant and their agents and/or employees, Ms. Bedenbaugh incurred medical bills, expenses associated with her injuries, including medical bills, experienced pain and suffering, underwent mental anguish and anxiety, contracted a deadly virus, has suffered the loss of enjoyment of life, now and in the future for which Plaintiff is entitled to recover an amount of actual, consequential damages and punitive damages from Defendants in an amount to be determined by a jury at trial.

FOR A THIRD CAUSE OF ACTION (Gross Negligence)

78. The Plaintiff re-alleges and reiterates paragraphs one (1) through seventy-seven

(77) as though fully set forth herein verbatim.

79. The Defendant undertook the duty to render general care to Ms. Bedenbaugh in accordance with the prevailing professional standards in the national community.

80. Notwithstanding said undertaking, and while Ms. Bedenbaugh was under the

Defendant’s care, the Defendant departed from prevailing and acceptable standards in a grossly negligent and/or reckless manner.

81. As a direct and proximate result of the negligence, gross negligence and reckless departures from industry standards by the Defendant and its agents and/or employees, Ms.

Bedenbaugh incurred medical bills, expenses associated with her injuries, including medical bills, experienced pain and suffering, underwent mental anguish and anxiety, contracted a deadly virus, has suffered the loss of enjoyment of life, now and in the future for which the Plaintiff is entitled to recover an amount of actual, consequential damages and punitive from Defendants in an amount to be determined by a jury at trial

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PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays for judgment against Defendant for actual damages, consequential damages, and punitive damages in an amount to be determined by the jury at the trial of this action, for the costs and disbursements of this action and for such other and further relief as this court deems just and proper.

Respectfully submitted,