COMPLAINT AND JURY DEMAND

Transcription

1 DISTRICT COURT, JEFFERSON COUNTY, COLORADO 100 Jefferson County Parkway Golden, CO (303) Plaintiffs: NORMAN NEWELL and LINDA NEWELL, v. Defendants: COURT USE ONLY APRIA HEALTHCARE, INC.; COLORADO PERMANENTE MEDICAL GROUP, PC; and KAISER FOUNDATION HEALTH PLAN OF COLORADO Attorneys: Name: Brad R. Irwin, Atty. Reg. No Lane N. Cohen, Atty. Reg. No Andrea L. Blanscet, Atty. Reg. No Address: IRWIN & BOESEN, P.C. One Cherry Center, Suite South Cherry Street Denver, CO Phone Number: (303) Fax Number: (303) Case Number: Div.: Courtroom: COMPLAINT AND JURY DEMAND Plaintiffs, Norman Newell and Linda Newell, by and through their attorneys, Irwin & Boesen, P.C., for their Complaint against the Defendants state the following: GENERAL ALLEGATIONS 1. Plaintiff, Norman Newell ( Mr. Newell ), is a resident and citizen of the State of Colorado, residing at 4521 South Miller Court, Littleton, Colorado

2 2. Plaintiff, Linda Newell ( Mrs. Newell ), is a resident and citizen of the State of Colorado, residing at 4521 South Miller Court, Littleton, Colorado Defendant, Apria Healthcare, Inc. ( Apria ), is a Delaware corporation with a principal office located at 7910 Shaffer Parkway, Littleton, Colorado 80127, and registered agent, National Registered Agents, Inc., located at 1535 Grant Street, Suite 140, Denver, Colorado Defendant, Colorado Permanente Medical Group, PC ( CPMG ), is a Colorado professional corporation organized and existing under the laws of the State of Colorado with its principal office located at E. Dakota Avenue, Denver, Colorado 80231, and registered agent, Corporation Service Company, located at 1560 Broadway, Denver, Colorado Defendant, Kaiser Foundation Health Plan of Colorado, Inc ( Kaiser ), is a Colorado corporation organized and existing under the laws of the State of Colorado with its principal office located at E. Dakota Avenue, Denver, Colorado 80231, and registered agent, Prentice-Hall Corporation System, Inc., 1560 Broadway, Denver, Colorado Defendants supplied Mr. Newell with oxygen, oxygen delivery equipment and other related supplies since at least June 2000 and continuing to the present. 7. At all times relevant to this Complaint, the services provided by defendant Apria to Mr. and Mrs. Newell have been provided pursuant to a contractual agreement between Defendant Apria and Defendants CPMG and Kaiser. 8. At all times relevant to this Complaint, Defendant Apria was working for and on behalf of Defendants CPMG and Kaiser and within the apparent course and scope of the agreement with said corporations, as well as in its individual capacity as the supplier of oxygen, oxygen equipment and other related supplies. 9. At all times relevant to this Complaint, Plaintiffs Mr. and Mrs. Newell were members or subscribers of Defendant Kaiser. 10. At all times relevant to this Complaint, Defendants were responsible for the services provided by Defendants actual or apparent agents, servants or employees to Plaintiffs. 11. Plaintiffs have had repeated problems with their oxygen delivery, including missed deliveries, faulty equipment, dirty equipment and failure to provide correct equipment, including but not limited to: 2

3 a. Significant amounts of mold, fungus, and/or other contaminants growing on and around the oxygen equipment provided by Defendant Apria. b. Repeated sputum cultures for Plaintiff Mr. Newell showing mold and fungus in his lungs and Defendants continual failure and/or refusal to provide clean equipment. c. Defendants failure to fill one of Plaintiff Mr. Newell s oxygen tanks on October 28, d. Defendants failure to fill any of Plaintiff Mr. Newell s oxygen tanks on January 6, e. Defendants failure to completely fill Plaintiff Mr. Newell s oxygen tanks on January 8, f. Defendants failure to provide a drain tube necessary to operate Plaintiff Mr. Newell s oxygen tanks on January 8, The drain tube was not replaced until January 20, g. Defendants failure to properly replace the condensation drain tube on Plaintiff Mr. Newell s oxygen tanks in February 2006, causing the liquid oxygen to leak. h. Defendants refusal to provide high flow oxygen to Plaintiff Mr. Newell in accordance with his April 21, 2006 prescription for high flow oxygen tanks. i. Defendants refusal to provide any high flow tubing connectors to Plaintiffs as required by Plaintiff Mr. Newell in accordance with an April 21, 2006 prescription for high flow oxygen. j. Defendants ongoing failure to provide high-flow tubing to Plaintiff Mr. Newell pursuant to an April 21, 2006 prescription for high flow oxygen tanks and a July 27, 2006 prescription requiring equipment capable of delivering up to 15 liters per minute of oxygen. k. Defendants failure to fill any of Plaintiff Mr. Newell s oxygen tanks on August 25, 2006, requiring Plaintiffs to seek an injunction on August 28, 2006 in order to ensure Plaintiff Mr. Newell would have sufficient oxygen to prevent his death over the upcoming weekend. l. Defendants failure to completely fill Plaintiff Mr. Newell s oxygen tanks on May 24,

4 m. Ongoing, frequent and repeated instances of oxygen equipment left with sideways and loose connectors that make it difficult or impossible to utilize the connectors to ensure proper delivery of oxygen to Plaintiff Mr. Newell. n. Ongoing, frequent and repeated instances of oxygen equipment left with sideways and loose connectors that cause liquid oxygen to spray onto Plaintiffs, causing injuries, including but not limited to skin burns. 12. Jurisdiction and venue are proper in this judicial district pursuant to C.R.C.P. 98(c) in that at least one of the Defendants resides in Jefferson County, Colorado. FIRST CLAIM FOR RELIEF (Negligence Defendant Apria) 13. Plaintiffs hereby incorporate by reference each and every preceding paragraph as though fully set forth herein. 14. Defendant Apria had a duty to provide Plaintiffs with proper, clean, functioning equipment. 15. Defendant Apria negligently breached that duty to Plaintiffs by failing to provide prescribed equipment in a timely manner or by providing contaminated, broken and/or improper equipment. 16. The negligence of the Defendant Apria includes, but is not limited to, the following: a. Failure to maintain clean equipment; b. Failure to maintain functioning equipment; c. Failure to properly inspect its equipment; d. Failure to provide appropriate equipment to meet Plaintiffs needs; and e. Failure to recognize the foregoing problems and correct them in an appropriate and timely manner. 17. As a direct and proximate result of the conduct of the Defendants, as set forth throughout this Complaint, Plaintiff Mr. Newell sustained, and continues to sustain, injuries, damages and losses including, but not limited to, the following: 4

5 a. Past, present and future injuries of a temporary and permanent nature to Plaintiff Mr. Newell's body including fungal infections, physical and mental impairment, anxiety, mental and physical injury, pain and suffering, all to Plaintiff Mr. Newell's damage in amounts not presently fully known; b. Past and expected future special medical, rehabilitation, health care and incidental expenses associated with subsequent medical care to alleviate and mitigate the damages set forth throughout this Complaint; c. Past and future loss of enjoyment of life, inconvenience, emotional stress, impairment of the quality of his life, and other economic and noneconomic damages; d. Past and future permanent physical disability and impairment; and, e. Medical costs and premiums paid to the Defendants. 18. As a direct and proximate result of the conduct of the Defendants, as set forth throughout this Complaint, Plaintiff Mrs. Newell sustained, and continues to sustain, injuries, damages and losses including, but not limited to, the following: a. Past, present and future injuries of a temporary and permanent nature to Plaintiff Mrs. Newell's body including fungal infections, physical and mental impairment, anxiety, mental and physical injury, pain and suffering, all to Plaintiff Mrs. Newell's damage in amounts not presently fully known; b. Past and expected future special medical, rehabilitation, health care and incidental expenses associated with subsequent medical care to alleviate and mitigate the damages set forth throughout this Complaint; c. Past and future loss of, enjoyment of life, inconvenience, emotional stress, impairment of the quality of her life, and other economic and noneconomic damages; d. Past and future permanent physical disability and impairment; and, e. Medical costs and premiums paid to the Defendants. WHEREFORE, Plaintiffs pray for judgment against Defendant Apria in a sufficient amount to compensate them for the damages as set forth in this Complaint, for court and other litigation costs, for prejudgment and post judgment interest pursuant to Colorado law, for attorney fees and for such other further relief as the Court deems just and proper. 5

6 SECOND CLAIM FOR RELIEF (Respondeat Superior, Vicarious Liability and Apparent Agency or Authority Defendants CPMG and Kaiser) 19. Plaintiffs hereby incorporate by reference each and every preceding paragraph as though fully set forth herein. 20. Defendants CPMG and Kaiser, are liable for the actions of their respective actual or apparent agents, servants or employees under the doctrine of respondeat superior, vicarious liability, and apparent agency or authority. 21. At all times necessary to this action, Defendant Apria was an agent, employee, or servant of Defendants CPMG and Kaiser, and all times necessary to this action, was acting within the course, scope, and authority of such relationship. 22. The negligence of Defendant Apria is imputed to Defendants CPMG and Kaiser. WHEREFORE, Plaintiffs pray for judgment against Defendants CPMG and Kaiser in sufficient amount to compensate them for the damages as set forth in this Complaint, for court and other litigation costs, for prejudgment and post judgment interest pursuant to Colorado law, for attorney fees and for such other further relief as the Court deems just and proper. THIRD CLAIM FOR RELIEF (Negligent Supervision Defendants CPMG and Kaiser) 23. Plaintiffs hereby incorporate by reference each and every preceding paragraph as though fully set forth herein. 24. Defendants CPMG and Kaiser were negligent in its supervision and/or retention of Defendant Apria, who it knew or should have known failed to exercise that degree of care and control that a reasonable provider of oxygen and oxygen delivery equipment under the same or similar circumstances would have exercised in order to protect others such as the Plaintiffs from suffering injuries and damages. These negligent acts or omissions, either separately or in combination include, but are not limited to: a. Failure to maintain clean equipment; b. Failure to maintain functioning equipment; c. Failure to properly inspect its equipment; 6

7 d. Failure to provide appropriate equipment to meet Plaintiffs needs; and, e. Failure to recognize the foregoing problems and correct them in an appropriate and timely manner. 25. The aforesaid acts or omissions of Apria were a proximate cause of the Plaintiffs injuries, damages and losses. 26. As a consequence of the aforesaid conduct of Defendant Apria and the negligent supervision by Defendants CPMG and Kaiser, the Plaintiffs, in fact, suffered serious injuries and damages, all of which were a foreseeable consequence of the defendants conduct, and which have caused the Plaintiffs to incur economic and noneconomic losses, including medical treatment expenses, pain and suffering, loss of enjoyment of life, and physical impairment, all of which are continuing, some of which will continue to the indefinite future, and some of which will be permanent in nature. WHEREFORE, Plaintiffs pray for judgment against Defendants CPMG and Kaiser in sufficient amount to compensate them for the damages as set forth in this Complaint, for court and other litigation costs, for prejudgment and post judgment interest pursuant to Colorado law, for attorney fees and for such other further relief as the Court deems just and proper. FOURTH CLAIM FOR RELIEF (Unfair or Deceptive Trade practice pursuant to CRS , et seq., Colorado Consumer Protection Act All Defendants) 27. Plaintiffs hereby incorporate by reference each and every preceding paragraph as though fully set forth herein. 28. At all times relevant to this Complaint, Defendants falsely represented to Plaintiffs that Plaintiff Mr. Newell would be provided with required oxygen, oxygen equipment and care in an appropriate manner and in an environment that promoted the maintenance of his health and quality of life and which was necessary for him to attain or maintain his highest practical level of physical and mental well being. 29. In addition, at all times relevant to this Complaint, Defendants, in publicly and widely disseminated electronic media and in oral representations to the Plaintiffs, to prospective and actual consumers of their services, as well as to the general public, misrepresented the quality, standard and grade of the care, services and goods that they were capable of providing to persons and families requiring oxygen services. 30. These representations were made expressly as an entreprenuerially deceptive lure and inducement to Plaintiffs and other members of the public to utilize 7

8 the oxygen and oxygen delivery services provided by Defendants for agreed upon substantial reimbursement. 31. The deceptive trade practices perpetrated by the Defendants during times relevant to this Complaint directly involved the general public and significantly impacted the public as actual or potential consumers of the Defendants services, including the Plaintiffs, numerous others and their families, and some of Defendants own staff members. 32. Defendants negligent/false representations or concealment made through their agents and/or employees constitute deceptive trade practices as defined by C.R.S , et seq., which permits this deceptive trade practice claim for all actual damages sustained and for treble damages under against defendants who in the course of a business, vocation, and occupation represent that goods or services are of a particular standard quality or grade, if they know or should know that they are of another. 33. Defendants acquired substantial money as a result of engaging in the above-described deceptive trade practices and mistreating Plaintiffs. 34. As a direct and proximate result of the above-described deceptive trade practices, the Plaintiff Mr. Newell has suffered actual injury to a legally protected interest and suffered special economic damages, permanent physical injuries and severe emotional distress including, but by no means limited to, inter alia, sustained emotional disturbance, irritability, agitation, disappointment, sleeplessness, worry, fear, grief, severe pain and suffering and emotional distress as well as other non-economic losses, and other limitations, physical discomfort, inconvenience, and lost enjoyment and quality of life. 35. As a further direct and proximate result of Defendants deceptive trade practices, Plaintiff Mr. Newell has incurred and will incur special doctor, hospital, therapy, medication and other health related and medical expenses in exact amounts not yet fully known, but which will be proven at trial. 36. As a direct and proximate result of the above-described deceptive trade practices, the Plaintiff Mrs. Newell has suffered actual injury to a legally protected interest and suffered special economic damages, permanent physical injuries and severe emotional distress including, but by no means limited to, inter alia, sustained emotional disturbance, irritability, agitation, disappointment, sleeplessness, worry, fear, grief, severe pain and suffering and emotional distress as well as other non-economic losses, and other limitations, physical discomfort, inconvenience, and lost enjoyment and quality of life. 8

9 37. As a further direct and proximate result of Defendants deceptive trade practices, Plaintiff Mrs. Newell has incurred and will incur special doctor, hospital, therapy, medication and other health related and medical expenses in exact amounts not yet fully known, but which will be proven at trial. 38. Pursuant to C.R.S , Plaintiffs are entitled to all actual damages and attorneys fees under the CCPA. 39. Pursuant to this same statute, C.R.S (22) (a) (III), Plaintiffs are entitled to an amount equal to three times the amount of actual damages sustained to redress Defendants post sales bad faith conduct as defined in the CCPA to include fraudulent, willful, knowing, or intentional conduct that caused injury. WHEREFORE, Plaintiffs pray for a judgment against the Defendants in the amount of their actual damages, to include both economic and non-economic injuries and losses, together with an award of attorney s fees, costs of suit, treble damages, and such other relief as the Court may deem proper under the circumstances of this case. FIFTH CLAIM FOR RELIEF (Outrageous Conduct All Defendants) 40. Plaintiffs hereby incorporate by reference each and every preceding paragraph as though fully set forth herein. 41. Defendants are in the business of providing oxygen and oxygen delivery equipment to individuals who have difficulty breathing. 42. Defendants knew and/or should have known that exposing people to mold and fungus increases their susceptibility to infection and further illness. 43. Defendants further knew and/or should have known that failing to deliver oxygen and/or appropriate, functioning oxygen equipment to an oxygen dependant individual creates a significant risk of injury and/or death. 44. Defendants reckless and intentional conduct in failing to provide oxygen, and clean, functioning and appropriate oxygen equipment is conduct so outrageous in character and so extreme in degree that a reasonable member of the community would regard such conduct as atrocious, going beyond all possible bounds of decency, and as being utterly intolerable in a civilized community. 45. Plaintiffs note that the acts that support an outrageous conduct claim also support a claim for exemplary damages. Plaintiffs acknowledge that C.R.S (3)(c) prohibits asserting a claim for exemplary damages in the initial claim for relief but is allowed by the amendment of pleadings sixty days after initial disclosures are 9

10 filed. Defendants are put on notice of Plaintiffs intent to amend and assert a claim for exemplary damages when appropriate. WHEREFORE, Plaintiffs pray for judgment against Defendants in sufficient amount to compensate them for the damages as set forth in this Complaint, for court and other litigation costs, for prejudgment and post judgment interest pursuant to Colorado law, for attorney fees and for such other further relief as the Court deems just and proper. PLAINTIFF DEMANDS TRIAL TO A JURY OF SIX ON ALL ISSUES Dated this 1 st day of June, Plaintiffs Address: 4521 South Miller Court Littleton, Colorado Respectfully submitted, IRWIN & BOESEN, P.C. Brad R. Irwin Lane N. Cohen Andrea L. Blanscet, duly signed original on file Brad R. Irwin, Reg. No Lane N. Cohen, Reg. No Andrea L. Blanscet, Atty. Reg. No