Complaint- Civil Action

Transcription

1 J. CRAIG CURRIE & ASSOCIATES, P.C. BY: J. Craig Currie, Esquire 25 th Floor 1600 Market Street Philadelphia, PA (215) Fax (215) Attorneys for Plaintiffs Filed and Attested by PROTHONOTARY 18 MAR :56 pm P. MARTIN EDSHIONA ALEXANDER 4309 Brown Street Philadelphia, PA and VERNON DAVIS 4309 Brown Street Philadelphia, PA as Administrators of the Estate of Vernon Davis, Jr., deceased, and in their own right, Plaintiffs v. FRIENDS HOSPITAL 4641 Roosevelt Blvd. Philadelphia, PA and ALEXANDER BERGER, D.O Roosevelt Blvd. Philadelphia, PA and DAVID M. LEACH, M.D Roosevelt Blvd. Philadelphia, PA Defendants IN THECOURT OF COMMON PLEAS PHILADELPHIA COUNTY November Term 2013 NO CIVIL ACTION SECOND AMENDED Complaint- Civil Action NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses of objections to the claims set forth against you. You are warned that if you fail to 1

2 do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP As provided by Pennsylvania Rule of Civil Procedure , the following office is designated to be named in the Notice to Defend prescribed by that rule as the office from which advice on where to get legal help can be obtained. Lawyer Referral and Information Service Philadelphia Bar Association 1101 Market Street, 11 th Floor Philadelphia, Pennsylvania (215) FIRST AMENDED COMPLAINT 1. Plaintiffs are the parents of Vernon Davis, Jr. who died on or about October 6, Plaintiffs were appointed co-administrators of the estate of Vernon Davis, Jr. on November 12, Defendant Friends Hospital is a duly licensed health care provider which holds itself out as a hospital for patients suffering from mental/behavioral illnesses; it maintains its principal place of business at 4641 Roosevelt Boulevard, Philadelphia, Pennsylvania. Plaintiffs are maintaining a professional liability claim against this Defendant. 4. Defendant Alexander Berger is a duly licensed osteopath specializing in the field of psychiatry and who, on October 3, 2012 was employed by Friends Hospital in the capacity of a resident. this Defendant. Plaintiffs are maintaining a professional liability claim against 2

3 5. Defendant David M. Leach is a duly licensed physician specializing in the field of psychiatry and who, on October 3, 2012 was employed by Friends Hospital. At all times pertinent hereto individual defendants Berger and Leach acting as agents, servants and/or employees of co-defendant Friends Hospital. Plaintiffs are maintaining a professional liability claim against this Defendant. Background Facts 6. On or about September 29, 2012, the Plaintiffs took their son, Vernon Davis, Jr., then 22 years old, to the Emergency Room of Presbyterian Hospital because of anxiety that he had been exhibiting during the preceding month as well a inability to sleep. 7. At the Emergency Room, Vernon Davis, Jr. was seen by the emergency room staff and by Roy Gay, M.D., the patient s regular treating doctor. 8. Dr. Gay prescribed anti anxiety and anti depressant medications for his patient and instructed him to return to see Dr. Gay in three days. 9. Mr. Davis, Jr. was discharged with a diagnosis of anxiety and panic attacks. 10. On or about October 2, 2012 Vernon Davis Jr., accompanied by his parents, returned as requested to Dr. Gay s office at Presbyterian Hospital at which time Dr. Gay determined that his mental status had deteriorated significantly and, therefore, escorted him to the Emergency Room of Presbyterian Hospital. 11. According to the emergency room records, the father reported that his son was having a change in mood that was worse today and was expressing a belief that he was going to die that day. 3

4 12. Mr. Davis, Jr. was diagnosed at Presbyterian Hospital at that time as suffering from auditory hallucinations and new onset schizophrenia. 13. During his examination at Presbyterian Hospital s Emergency room, Mr. Davis, Jr. denied that he was taking drugs or was having psych complaints but he admitted that he heard the voice of God telling him to become an apostle, and that he had perceived himself as being chased by others who wanted to hurt him but that he got away. Transfer to Psychiatric Emergency Evaluation Center 14. The staff at Presbyterian Hospital, including Roy Gay, M.D., sent Mr. Davis, Jr. to the Psychiatric Emergency Evaluation Center ( PEEC ) at the Hospital of the University of Pennsylvania ( HUP ) for psychiatric assessment where he arrived at approximately 9:00 p.m. 15. Vernon Davis, Jr. signed a consent form agreeing to the transfer to PEEC/HUP. 16. At PEEC/HUP his admitting diagnosis was listed as auditory hallucinations, new onset schizophrenia. 17. At PEEC/ HUP, Mr. Davis, Jr. was examined by one Katie Hoeveler, M.D. and diagnosed by her according to Axis I of the Diagnostic and Statistical Manual of Mental Disorders (DSM) as: Bipolar D/O, single manic episode, mild, current GAF: 26. The Plan was to admit the patient to an inpatient psychiatric unit. 16. GAF stands for Global Assessment of Functioning and is commonly used by mental health professionals with a ranking system between 1 and 50, with 50 representing full ability to function. 4

5 17. A GAF score of between 20 and 30 characterizes the patient as follows: Behavior is considerably influenced by delusions or hallucinations or serious impairment, in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends). 18. When the patient s parents left PEEC/HUP at the end of the evening, they were told by the PEEC staff that their son would be transferred the following morning to Pennsylvania Hospital s Behavioral Floor for further study. 19. However, it is believed and therefore averred that later that night or early the following morning the staff at PEEC/HUP learned that Pennsylvania Hospital would not accept the patient s insurance and alternative arrangements were made to transfer Mr. Davis, Jr. to Friends Hospital. The parents were not informed of this change in plans. 20. Although at 1 a.m. on October 3, 2012, Mr. Davis, Jr. was reported as calm and cooperative, and at 3 a.m. as sleeping, at 5 a.m. he was reported to be in the hall, praying loudly, reading from a bible and feeling and appearing anxious. 21. In response to the patient s change in behavior at 5 a.m., the staff at PEEC/HUP medicated him with 1 mg. of Ativan and transferred him by ambulance to Friends Hospital. Arrival At Friends Hospital 22. At the time of his arrival at Friends Hospital at approximately 6:45 a.m., Mr. Davis, Jr. was still wearing his hospital-issued scrubs with paper slippers or socks; he did bring with him a separate bag, however, containing his street clothes. 5

6 23. Shortly after arriving at Friends, Mr. Davis, Jr. reported to a guard that although he had arrived at Friends with a gold cross on a necklace around his neck, he threw it away and then he claimed he had it in his hand but that he could not find it. A Friends Hospital staff member, one Wade Jeffries, wrote on the Safety Search Checklist: We don t know what he did with the jewelry. 24. Mr. Davis, Jr. signed in at Friends but listed his home address as one that did not correspond with the address supplied in other paperwork that accompanied him from PEEC/HUP. Under religion he wrote: 25. Once he had checked in at Friends, Mr. Davis, Jr. was evaluated by Defendant Alexander Berger, D.O. 26. In his Admission note, under History of Present Illness Dr. Berger made the following observations: a. patient comes to hospital on advice of his family physician Roy Gay, M.D. who was concerned about patient s Bizarre behavior and religious preoccupation and focusing on death. b. patient has had poor sleep and increased energy. c. patient has two personalities, one of which is a rapper who owns a clothing line. d. Per report [unspecified in the Friends chart], father says that patient was studying Islam for a couple of weeks and then has switched to Christianity over the past week. e. At the doctor s appointment [with Dr. Gay], patient was focused on the bible and death. 6

7 f. Patient denies previous allegations and does not know why he came to hospital! [Exclamation mark in the original.] g. Patient says he is only one person, the son of Christ. h. Patient says he sees the cross but would not elaborate. i. Patient denies SI (suicidal ideation) and HI (homicidal ideation) and AH (auditory hallucinations). 27. Under Mental Status Exam Dr. Berger assessed Vernon Davis, Jr. as follows: a. as to behavior he is minimally cooperative, guarded b. as to TC (cognitive thought, i.e., his thinking processes) he is experiencing visual hallucinations (seeing the cross) and is preoccupied with religion, c. His mood is normal [quotation marks in original]. d. His affect is flat e. His Judgment: poor f. Under Assessment per the Diagnostic and Statistical Manual of Mental Disorders (DSM) 1. Axis I: Bipolar D/O single manic episode Axis II: Deferred Axis III: Sickle cell anemia; s/p splenectomy Axis IV: Poor social support Axis V: GAF Dr. Berger then unaccountably concluded in the intake form, under Plan, that: the patient is competent to refuse admission; understands risks; he is not committable and he will be discharged with outpatient referral. 29. The Admission Note and Plan is co-signed by Defendant Leach. 7

8 30. At approximately 8 a.m. on October 3, 2012, one Jill Kilian, a Friends Hospital staff member gave decedent patient a referral sheet instructing him to call JFK [apparently the JFK Behavioral Health Center] at 112 North Broad St. (phone number provided) to schedule an outpatient appointment and that shelter services were available at the Sunday Breakfast Shelter, 302 N. 13th Street. 31. Although the paperwork available to Friends Hospital contained the name and phone numbers of the patient s grandmother and parents, and noted that his parents had brought him to Presbyterian Hospital and to PEEC/HUP, none of those family members was alerted that the patient was being discharged. 32. The patient s chart at Friends does not reflect any expression by him that he did not want his family notified about his discharge/release. 33. At or about 8 a.m. the patient was escorted to the entry and exit area of the facility where one of the staff members attempted to hand the patient a bus token and his bag of street clothes as the patient walked out the door. 34. The patient refused the bag and the token and instead walked into the rain, in his hospital scrubs and paper slippers and then walked across the driveway and into the woods surrounding the Friends structural campus. 35. Vernon Davis, Jr, plaintiffs decedent, was never seen alive after he disappeared into the woods. 36. Although the events of the patient s refusal of clothing and token and his exit into the woods were observed by staff personnel and partially recorded by 8

9 videotape, the staff did not immediately attempt any type of retrieval or search efforts. 37. A search of the Friends campus was not attempted until at least five minutes later and then only by automobile and then lasting approximately ten minutes. 38. Aforesaid search efforts by the staff did not include any forays into the woods, aerial surveillance, or any attempt to place the perimeter of the campus under direct surveillance. 39. Plaintiffs believe and therefore aver that aforesaid search efforts by the Friends Staff consisted of a visual assay of the premises from the staff van conducted by driving the van around the parking lot and out the driveway to its intersection with Roosevelt Boulevard. 40. Some time prior to 9:40 a.m. on October 3, 2012 Friends employee Jill Kilian prepared an Application for Involuntary Emergency Examination and Treatment in accordance with 302 of the Mental Health Procedures Act of 1976, summarily stating that the patient represented a clear and present danger to self or others. 41. In support of the 302 Application, Jill Kilian stated that although the patient was thought to need admission, he refused to sign in despite apparent need for inpatient and instead he left without his belongings and then ran into the woods in the pouring rain with no shoes or socks. 42. Aforesaid 302 Application was verbally approved by another Friends Staff member, one G. Garner, at 9:40 a.m. on October 3,

10 43. Friends Hospital is located on a mostly wooded campus of many acres, in the Lawncrest section of Philadelphia, and its southwestern, southern and southeastern borders are contiguous to wooded park areas, a cemetery and a golf course. The campus is bordered on the north by Roosevelt Boulevard and the Northwest by Pennway Street. 44. On October 6, 2012 Vernon Davis, Jr. was found floating in the Frankford Creek at 1391 Cayuga Avenue, Philadelphia clothed in his hospital scrubs and paper slippers. He was pronounced dead at the scene. 45. The location of 1391 Cayuga Avenue is approximately 1.4 miles from the entrance to Friends Hospital by highway. 46. However, the Frankford Creek at the above location is located in the Juniata Park which is contiguous to the southern edge of the Tacony Creek Park which in turn is contiguous to the southern, wooded border of the Friends Hospital Campus. Contiguous to the Southeastern Border of the wooded Friends Hospital Campus is the Oakland Cemetery. 47. A direct path from the Friends Hospital to the Frankford Creek at the 1391 Cayuga Avenue location is approximately 3,000 feet. 48. According to an autopsy, Plaintiff s decedent s cause of death was drowning 49. According to the autopsy, the body of Plaintiff s decedent showed no signs of recent trauma; the report concluded that the manner of death was suicide. 50. As a result of the negligence of the defendants, as is more fully set forth hereinafter, Plaintiffs decedent was caused to suffer, in addition to death, 10

11 a. Physical pain and emotional distress; b. Embarrassment, humiliation and inconvenience; and c. The loss of life s pleasures from the time he walked into the woods until his death 51. As set forth in greater detail below, Decedent s emotional and physical deprivation for three days and his death were caused by the negligence of the defendants and was in no way legally caused by the decedent who was at all times material hereto incapable of acting as a reasonable man under the circumstances to look out for his own safety, health and welfare. Likewise, because of his impaired mental condition, decedent was not capable of assuming any risk of injury and death by his conduct on October 3, 2012 or thereafter. In the alternative, the negligence of the defendants increased the risk that Plaintiffs decedent would desert the Friends campus and suffer the injuries and death he was caused to suffer. Count I Plaintiffs v. Defendant Leach (Wrongful Death) 52. Paragraphs 1 through 51 are incorporated herein by reference as though fully set forth. 53. Decedent s injuries and death were caused by the conduct of Dr. Leach which constituted negligence as follows: a. Authorizing the discharge of the decedent without personally examining him or, if he did examine him, for only a few minutes; 11

12 b. Authorizing the discharge of decedent based primarily on the 30 minute examination by a resident; c. Authorizing the discharge of decedent although he was i. repeatedly given a GAF score of 25 or 26; ii. was experiencing visual hallucinations; iii. was experiencing two personalities; iv. Was providing obviously incorrect information; d. Authorizing the discharge of the patient without consulting with the patient s treating physician, Roy Gay, M.D.; e. Authorizing release of the patient without consulting with the referring physician at PEEC/HUP; f. Authorizing the release of the physician without reviewing any of the surveillance videotapes; g. Authorizing the release of the patient without assuring that arrangements had been made for his safe transfer to a safe place; h. Authorizing his release without attempting to contact his parents or other family members; i. Failing to initiate Emergency Examination and Treatment in accordance with 302 of the Mental Health Procedures Act of 1976 prior to allowing him to leave the building; 12

13 j. Failing to immediately initiate a thorough search of the premises and to secure the perimeter of the Hospital grounds upon learning of decedent s bizarre departure; k. Failing to initiate a missing persons report with the Philadelphia Police Department after decedent was not found on the Hospital s grounds; l. In assessing the decedent s mental status in that decedent was obviously psychotic and incapable of rational thinking. m. In assessing the decedent s mental status, failing to give due consideration to the fact that he had consented to be treated by PEEC/HUP and to be transported to Friends Hospital and offered no satisfactory explanation as to why his decisions in favor of mental health care treatment had suddenly reversed; 54. Plaintiffs, Edshiona Alexander and Vernon Davis, Sr. as administrators of the estate of Vernon Davis, Jr., deceased, bring this action on behalf of decedent s survivors, under and by virtue of the act of 1855 P.L. 309 as amended, and Pa. R.C.P and 42 Pa. C.S.A et seq as well as all other acts which may be applicable. 55. The decedent left surviving him the following persons entitled to recover damages for his death and on his behalf this action is brought: 13

14 a. Edshiona Alexander, mother; b. Vernon Davis, father 56. By reason of the death of the decedent, the plaintiffs/administrators incurred recoverable expenses including, but not limited to: (a) funeral expenses; and (b) cost of administration of the estate. 57. Decedent did not bring an action for his personal injuries during his lifetime, and no other action for death of the decedent has been commenced against any of these defendants. WHEREFORE, plaintiffs demand judgment against the defendant Leach, jointly and severally with the other defendants, for a sum in excess of $50,000 as well as delay damages as allowed by law. Count II Plaintiffs v. Defendant Berger D.O. (Wrongful Death) 58. Paragraphs 1 though 51 and Count I are incorporated herein by reference. 59. Decedent s injuries and death were caused by the conduct of Dr. Berger which constituted negligence as follows: a. Clearing the discharge of decedent based on his 30 minute examination; b. Clearing the discharge of decedent although he was i. repeatedly given a GAF score of 25 or 26; ii. was experiencing visual hallucinations; iii. was experiencing two personalities; 14

15 iv. was providing obviously incorrect information; c. Clearing the discharge of the patient without consulting with the patient s treating physician, Roy Gay, M.D.; d. Clearing the release of the patient without consulting with the referring physician at HUP s PEEC; e. Authorizing the release of the patient without reviewing any of the surveillance videotapes; f. Authorizing the release of the patient without assuring that arrangements had been made for his safe transfer to a safe place; g. Authorizing his release without attempting to contact his parents or other family members; h. Failing to initiate Emergency Examination and Treatment in accordance with 302 of the Mental Health Procedures Act of 1976 prior to allowing him to leave the building; i. Failing to immediately initiate a thorough search of the premises and to secure the perimeter of the Hospital grounds upon learning of decedent s bizarre departure; j. In assessing the decedent s mental status, failing to give due consideration to the fact that he was in the beginning phase of downward spiral of mental instability which had become progressively worse over the past five days or so and showed no signs of reversal or control; k. In assessing the decedent s mental status, failing to give due consideration to the fact that he had consented to be treated by PEEC/HUP and to be transported to Friends Hospital and offered no satisfactory explanation as 15

16 to why his decisions in favor of mental health care treatment had suddenly reversed; l. Failing to initiate a missing persons report with the Philadelphia Police Department after decedent was not found on the Hospital s grounds; WHEREFORE, plaintiffs demand judgment against the defendant Berger, jointly and severally with the other defendants, for a sum in excess of $50,000 as well as delay damages as allowed by law. Count III Plaintiffs v. Friends Hospital (corporate negligence) 60. Paragraphs 1 through 51 and Counts I through II are incorporated herein by reference as though fully set forth. 61. Decedent s injuries and death, as set forth above, were caused by the negligence of Defendant Friends Hospital in the following respects: 16

17 a. Failing to establish and/or enforce emergency policies and procedures to retrieve so-called walk-aways or elopements believed to be on the Friends campus, including, but not limited to, adequate alert systems and sufficient personnel available, given the size and forestation of the campus; b. Failing to establish and/or enforce policies for the proper, double screening of patients referred to its facility before concluding that the patient may be discharged or released because the patient is not believed to be a danger to himself or to others; c. Failing to establish and/or implement proper procedures to assure that admitting personnel, especially mental health care professionals making admission decisions, review all of the records available at the time of admission and to speak with persons in a position to give first person reports of the patient s recent pre- admission behavior which precipitated the patient s referral; d. Failing to establish and/or enforce policies and procedures for management of patients in the process of discharge who manifest bizarre behavior and attempt to leave the facility without proper support; e. Failing to establish and/or enforce policies and procedures to assure that patients being discharged are safely and properly escorted by safe transportation to a specified place; 17

18 WHEREFORE, plaintiffs demand judgment against the defendant Friends Hospital, jointly and severally with the other defendants, for a sum in excess of $50,000 as well as delay damages as allowed by law. Count IV Plaintiffs v. Defendant Friends Hospital (vicarious liability) 62. Paragraphs 1 through 54 and Counts I through III are incorporated herein by reference as though fully set forth. 63. Because Defendants Berger and Leach were acting as agents servants and/or employees of Defendant Friends Hospital or as ostensible agents of Friends Hospital at all times material hereto, Defendant Hospital is liable to Plaintiffs on the grounds of respondeat superior or vicarious liability. WHEREFORE, plaintiffs demand judgment against the defendant Friends Hospital, jointly and severally with the other defendants, for a sum in excess of $50,000 as well as delay damages as allowed by law. COUNT V Plaintiff v. All Defendants (Survival Action) 64. Paragraphs 1 through 54 and Counts I through IV are incorporated herein by reference as though fully set forth. 18

19 65. Plaintiffs also bring this action on behalf of the estate of Vernon Davis, Jr. deceased, under and by virtue of the Probate Estates & Fiduciaries Code 20 Pa. C.S.A and 42 Pa. C.S.A Plaintiffs claim, on behalf of the estate, those damages suffered by Vernon Davis, Jr., as well as for the pain and suffering he experienced prior to his death. WHEREFORE, plaintiff demands judgment against all the defendants, jointly and severally, for a sum in excess of $50,000 as well as delay damages as allowed by law. J. Craig Currie & Associates, P.C. J. Craig Currie By: J. Craig Currie, Esquire Counsel for the Plaintiffs 19

20 VERIFICATION The undersigned, having read the attached Pleading, verifies that the within pleading is based on mformahon furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel and not of signer. Signer verifies that he/ she has read the within pleading and that it is true and correct to the best of signer's knowledge, information and belief. 1f the foregoing contains averments which are inconsistent in fact, signer has been unable, after reasonable investigation, to ascertain which of the inconsistent averments are true, but signer hac; knowledge or information sufficient to form a belief that one of them is true. To the extent that the contents of the pleading are that of counsel, verifier has relied upon counsel in taking this verification. This verification is made subject to the penalties of 18 Pa. R.C.P relating to unsworn falsification to authorities. Vernon Davis

21 VERIFICATION The undersigned, having read lhe attached Plea din~ verifies that the within pleading is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel and not of signer. Signer verifies that he/ she has read the within pleading and that it is true and correct to the best of signer's knowledge, information and belief. If the foregoing contains averments which are inconsistent i.n fact, signer has been unable, after reasonable investigation, to ascertain which of the inconsistent avetments are true, but signer has knowledge or information sufficient to form a belief that one of them is true. To the extent that the contents of the pleading are that of counsel, verifier has relied upon counsel in taking this \'erification. This verification is made subject to the penalties of 18 Pa. R.C.P relating to unsworn falsification to authorities. r#v 2 ~ Edshiona Alexander ~Ck