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David Harvey, et al v. Mohammed

January 27, 2012

DAVID HARVEY, ET AL., PLAINTIFFS,
v.
MOHAMMED, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM OPINION

Plaintiff David Harvey, as Personal Representative of the Estate of Curtis Suggs, brings this case against defendants Leon Mohammed, Yvonne Mohammed,*fn1 Symbral Foundation for Community Services, Inc., Donald C. Egbuonu, M.D., and the District of Columbia under 42 U.S.C. § 1983, D.C. Code § 7-1301.02, et seq., federal and District of Columbia statutes regulating community residential facilities, and the common law of the District of Columbia, seeking compensatory and punitive damages against Mr. Suggs's former caretakers. Before the Court are defendants Leon Mohammed, Yvonne Mohammed, and Symbral Foundation for Community Services, Inc.'s ("Symbral defendants") Motion [120] for Partial Summary Judgment; defendant District of Columbia's Motion [123] for Summary Judgment, or in the alternative, for Reconsideration; and plaintiff' Motion [128] for Partial Summary Judgment. Upon consideration of the Symbral defendants' Motion [120], plaintiff's opposition [141], the Symbral defendants' reply [149], the applicable law, and the entire record in this case, the Symbral defendants' Motion is granted in part and denied in part. Upon consideration of the District of Columbia's Motion [123], plaintiff's opposition [136, 138], the District of Columbia's reply [150], the applicable law, and the entire record in this case, the District of Columbia's Motion is granted in part and denied in part. Upon consideration of plaintiff's Motion [128], defendants' oppositions [148, 150], plaintiff's reply [158, 162], the applicable law, and the entire record in this case, the plaintiff's Motion is granted in part and denied in part.

I.BACKGROUND

Curtis Suggs was born on May 12, 1932 in South Carolina and was diagnosed with cognitive and adaptive profound mental retardation, athetoid cerebral palsy, seizure disorder, scoliosis venous stasis, presbyopnia, bilateral hearing loss, urinary incontinence, and spinal cord stenosis. Curtis lived with his mother and sister, Carrie Weaver, in the District of Columbia until 1967 when his sister applied to have him committed to the District's custody because his family could no longer care for him. The United States District Court ordered Mr. Suggs to be committed to the District's custody, finding him to be "feeble-minded," "incapable of managing his affairs," and a "fit subject for commitment to and treatment at the District Training School." Pl.'s Mot. for Summ. J., Ex. 2.

When Mr. Suggs was initially committed to the custody of the District, he resided at Forest Haven, an institution in Maryland. After the Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978 was passed, the Mental Retardation Developmental Disabilities Administration ("MRDDA") became the designated District agency responsible for the care and habilitation of persons legally committed to the District's custody. In October 1984, after the District had been ordered to place Forest Haven residents in community residential facilities, the District determined that Mr. Suggs needed an Intermediate Level of Care for Mentally Retarded Individuals ("ICF/MR"). Mr. Suggs was placed at a group home on Blair Road in Washington, D.C. operated by defendant Symbral Foundation for Community Services, Inc. ("Symbral"), where he resided until his death on June 30, 2000. Mr. Suggs was one of four residents at the Blair Road home. Defendants Yvonne Mohammed and Leon Mohammed were co-founders of Symbral. At the time of the events in this case, Yvonne Mohammed also served as Symbral's CEO, while Leon Mohammed served as Symbral's CFO. Defendant Donald C. Egbuonu, M.D. was licensed to practice medicine in the District of Columbia and rendered medical care to Mr. Suggs at the Symbral Blair Road home.

Symbral is an independent contractor that ran an intermediate care facility under annual contracts with the District of Columbia, by which Symbral agreed to provide a living facility for Mr. Suggs that satisfied the requirements for licensure in the District and provide Mr. Suggs with health-related care and services. Symbral employed two direct care staff on duty who were responsible for meeting the residents' needs for feeding, bathing, hygiene, dressing, movement exercises, and other activities. The house was under the direction of a house manager and a residential services coordinator. Symbral also employed a registered nurse as the director of nursing, a licensed practical nurse, and a qualified mental retardation professional ("QMRP"), who had overall responsibility for the coordination of services and care to residents. Under its agreement with the District, Symbral provided supervision for and control over the day-to-day operations of the employees that cared for Mr. Suggs.

Although MRDDA contractually delegated the day-to-day responsibility for the care and habilitation to the ICF/MR provider in the residential system-Symbral, in this case-MRDDA remained the agency legally responsible for Mr. Suggs. As such, Mr. Suggs's MRDDA case manager was responsible for overseeing all of the components of Mr. Suggs's individual habilitation plan ("IHP"), a written plan which detailed his strengths, weaknesses, and goals based on assessments by therapists, clinicians, and other health care professionals. The IHP is developed by the Inter-Disciplinary Team ("IDT") comprised of clinicians such as a nurse, a speech and language pathologist, physical and occupational therapists, the MRDDA case manager, and the Symbral QMRP. Mr. Suggs's MRDDA case manager was required to coordinate and monitor the IHP and was responsible for approving the IHP document. Additionally, the case manager was responsible for following up on medical recommendations made in the IHP to ensure that Mr. Suggs received those services. If Mr. Suggs was not receiving services in accordance with his IHP, the case manager was expected to inform Symbral and the case manager's supervisor. Mr. Suggs's MRDDA case manager was required to visit him at least four times per year to carry out these responsibilities. Sarah Jenkins was Mr. Suggs's assigned MRDDA case manager until 1998, when she was replaced by Shireen Hodge.

While Mr. Suggs's MRDDA case manager oversaw all of the components of his IHP, the Symbral QMRP was responsible for implementing Mr. Suggs's IHP. The QMRP was required to attend the IDT meeting and write the IHP document for approval by Mr. Suggs's MRDDA case manager. The QMRP was also required to schedule medical appointments as recommended in the IHP.

In addition to the IDT who monitored Mr. Suggs's condition and care, a court hearing was held each year in the District of Columbia Superior Court to review Mr. Suggs's condition and continued residential placement. Mr. Suggs was also enrolled in a daycare program operated by United Cerebral Palsy (UCP), where he spent each weekday for observation and monitoring of his condition.

In the second half of the 1990s, Mr. Suggs experienced a precipitous loss of health, including a loss of motor function, increased weakness in his extremities, dehydration, decubitus ulcers, and incontinence. Mr. Suggs ultimately died on June 30, 2000 from paralysis of the diaphragm.

II.STANDARD OF REVIEW

A.Summary Judgment

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when the moving party demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the trier of fact must view all facts, and all reasonable inferences drawn therefrom, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). In order to defeat summary judgment, a factual dispute must be capable of affecting the substantive outcome of the case and be supported by sufficiently admissible evidence that a reasonable trier of fact could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986); Laningham v. U.S. Navy, 813 F.2d 1236, 1242--43 (D.C. Cir. 1987). "[A] complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial[, and t]he moving party is entitled to judgment as a matter of law." Celotext Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A party asserting that a fact cannot be genuinely disputed must support the assertion by showing that "an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(B). This subdivision of Rule 56 recognizes that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact." Id., Note to 2009 Amendments. If facts are unavailable to the non-movant, the non-movant must show "by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition." Fed. R. Civ. P. 56(d).

B.Reconsideration

Rule 54(b) of the Federal Rules of Civil Procedure allows this Court to modify interlocutory orders as justice requires. Fed. R. Civ. P. 54(b); see also Hoffman v. District of Columbia, 681 F. Supp. 2d 86, 90 (D.D.C. 2010). "[A]sking 'what justice requires' amounts to determining, within the court's discretion, whether reconsideration is necessary under the relevant circumstances." Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005). Relevant circumstances that may warrant reconsideration include "whether a court has 'patently misunderstood a party, has made a decision outside the adversarial issues presented to the court by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court.'" Ficken v. Golden, 696 F. Supp. 2d 21, 35 (D.D.C. 2010) (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)).

III.ANALYSIS

A.Defendant District of Columbia's Motion for Reconsideration

Defendant District of Columbia has failed to demonstrate that justice requires modification of Judge Sullivan's December 8, 2010 Order denying the District's Motion [97] to dismiss for lack of subject matter jurisdiction. The District renews its arguments that the plaintiff's claims in this lawsuit are precluded by the settlement agreement in Evans v. Gray, No. 76-cv-293 (D.D.C.) (Huvelle, J.), but offers no evidence demonstrating that the Court "patently misunderstood a party, has made a decision outside the adversarial issues presented to the court by the parties, has made an error not of reasoning, but of apprehension, or [that] a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court." Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004). The Court will therefore deny the District's Motion for reconsideration and will proceed to address the parties' arguments in their motions for summary judgment.

B.Plaintiff's Negligence Claims

1.Count I: Negligence

Plaintiff brings a negligence claim against the District of Columbia, Symbral, the Mohammeds, and Dr. Egbuonu for failure to fulfill their duties to provide Mr. Suggs with adequate food, shelter, clothing, and medical care and to properly monitor, assess, treat, maintain, and protect him. The Mohammeds, the District of Columbia, and the plaintiff all move for summary judgment on this count.

To establish negligence, the plaintiff must show: (1) the applicable standard of care, (2) a deviation from that standard by the defendants, and (3) a causal relationship between that deviation and Mr. Suggs's injury. See Holder v. District of Columbia, 700 A.2d 738, 741 (D.C. 1997). "[I]f the subject in question is so distinctly related to some science, profession, or occupation as to be beyond the ken of the average layperson," expert testimony is usually required to prove the standard of care. District of Columbia v. Peters, 527 A.2d 1269, 1273 (D.C. 1987). This general rule is most commonly applied to professional malpractice cases such as this one. See, e.g., Eibl v. Kogan, 494 A.2d 640, 642--43 (D.C. 1985); Meek v. Shepard, 484 A.2d 579, 581 (D.C. 1984).

a.District of Columbia

The plaintiff and the District of Columbia move for summary judgment on the issue of whether the District of Columbia negligently supervised Symbral in its treatment of and care for Mr. Suggs. The plaintiff argues that District of Columbia case workers had the duty to monitor Symbral's care of Mr. Suggs, and that the District failed to fulfill this duty. The District maintains that any duty that it originally owed to Mr. Suggs was delegated to Symbral, and that it retained no duty to monitor Symbral's care of Mr. Suggs. The District further asserts that the plaintiff actually seeks to hold the District vicariously liable for the alleged negligence of Symbral, but that Symbral was an independent contractor, and "an employer generally is not liable for injuries caused by an independent contractor over whom (or over whose work) the employer has reserved no control." District of Columbia v. Howell, 607 A.2d 501, 504 (D.C. 1992). However, the Court need not reach the question of whether the District can be held vicariously liable for Symbral's allegedly negligent acts because it is clear from the plaintiff's pleadings that the plaintiff seeks to hold the District of Columbia liable for its own alleged negligence.

The plaintiff establishes the standard of care applicable to the District's duty to monitor Symbral's care of Mr. Suggs with expert testimony from Mary Devasia, the District's 30(b)(6) representative. The District had an obligation to monitor the care being provided to Mr. Suggs, and the MRDDA case manager had an obligation to make quarterly visits to Mr. Suggs and to ensure that all medical appointments and other appropriate care was provided to Mr. Suggs. See Pl.'s Mot. for Summ. J. Ex. 6, at 23--24.

The record clearly establishes that the District failed to fulfill its duty to monitor Symbral's care of Mr. Suggs, and that this breach caused Mr. Suggs harm. In 1994, the IHP for Mr. Suggs reported that Mr. Suggs was in good health and could feed himself, stand with support, and initiate and respond to communication from his peers. Pl.'s Mot. for Summ. J., Ex. 42. The 1995 and 1996 IHPs for Mr. Suggs reported that his condition had begun to deteriorate-he lost strength in his upper extremities and became incontinent. Id. Exs. 43, 44. In September 1995, Mr. Suggs's day program physical therapist at UCP noted a decline in his upper body strength and recommended a neurology consultation to determine the cause of the decreased strength in his upper extremities. Id. Ex. 14. On March 5, 1996, Sarah Jenkins, Mr. Suggs's MRDDA case manager, met with Mr. Suggs's IDT at Symbral and noted the UCP physical therapist's recommendation for a neurology evaluation. Id. Ex. 33. However, Ms. Jenkins did not schedule the evaluation at this time, and although the IDT recognized Mr. Suggs's inability to feed himself due to his loss of motor function, Mr. Suggs's 1996 IHP neglected to include UCP's continued recommendation for a neurology consult to address this. Id. Exs. 6, 33.

On February 19, 1997, UCP coordinator Joan Whitney notified Symbral that in addition to never being scheduled, the neurology consult recommendation was missing from Mr. Suggs's 1996 IHP. Id. Ex. 16. Then on February 20, 1997, the Healthcare Financing surveyor Semret Tesfaye cited Symbral with a Deficiency Notice for failing to promptly schedule the neurology consult in 1995. Id. Ex. 17. The Deficiency Notice was issued to Yvonne Mohammed, as CEO of Symbral. On March 7, 1997, Ms. Mohammed signed a Plan of Correction and scheduled a neurology appointment for Mr. Suggs that same day. Ms. Mohammed agreed in the Plan of Correction that Symbral would "make all medical appointments within one month of the recommendation." Id. Ex. 17.

Mr. Suggs was taken to Georgetown Neurology for an examination by neurologist Kenneth Plotkin, M.D. Id. Ex. 18(a). Dr. Plotkin noted that Mr. Suggs had decreased muscle tone, decreased use of his upper extremities, and that he was unable to feed himself. Dr. Plotkin thought that cervical stenosis (compression of the cervical spine) could be the cause of Mr. Suggs's decreased ability to use his upper extremities, and recommended that an MRI be taken of Mr. Suggs's cervical spine as soon as possible. Id. Ex. 18(a). However, this MRI was not immediately scheduled, and on April 1, 1997, Dr. Plotkin again examined Mr. Suggs and repeated his recommendation that this MRI be done. Id. Ex. 18(a). On April 18, 1997, Georgetown Hospital conducted the recommended MRI. Id. Ex. 18(b). The MRI studies showed severe spinal stenosis, or compression, at the C-2 level of Mr. Suggs's spine. Id. Ex. 18(b).

Although Symbral was instructed to schedule a follow-up appointment with Dr. Plotkin on May 1, 1997, Mr. Suggs did not receive a follow-up evaluation from Dr. Plotkin until June 27, 1997, at which point Dr. Plotkin recommended a neurosurgery consultation to determine whether surgery would prevent further loss of function. On September 23, 1997, Dr. Plotkin noted that Mr. Suggs had not yet had the neurosurgery consultation and again recommended it. Id. Ex. 18(a). Despite Symbral's promise to schedule "all medical appointments within one month," and despite the MRDDA case manager's duty to ensure that these appointments were scheduled, Symbral did not schedule Mr. Suggs's neurosurgery appointment until November 11, 1997.

On November 11, 1997, Dr. Fraser Henderson, a Georgetown University neurosurgeon, examined Mr. Suggs and recommended that a laminectomy be performed "in the next few weeks" to relieve pressure on the spinal cord. Id. Ex. 18(c). On December 16, 1997, Dr. Plotkin wrote Symbral and "recommended proceeding with C-1-3 laminectomy as per Dr. Henderson to be scheduled ASAP." Id. Ex. 18(a). Instead of scheduling the surgery as recommended, Mr. Suggs's IDT waited four months, then decided at a meeting on March 19, 1998 to get a second opinion on whether the surgery should be performed. Id. Ex. 18(d).

On May 22, 1998 and September 28, 1998, Symbral took Mr. Suggs to Howard University Hospital for two neurology visits, but Symbral never requested a second opinion regarding the recommended neck surgery. Mr. Suggs's IDT waited until April 30, 1999 to obtain a second opinion, when Dr. Mills at Howard University Hospital stated that Mr. Suggs was a candidate for the recommended cervical laminectomy. Id. Ex. 18(f).

Symbral waited until 1999 to contact Mr. Suggs's sister, Carrie Weaver, in South Carolina to discuss the proposed surgery, but failed to have a neurosurgeon speak with Ms. Weaver to explain the risks and benefits of the surgery. Instead, Kendall LaRose, Symbral's residential coordinator who does not have medical training, called Ms. Weaver to discuss the recommended surgery. Id. Ex. 13. Mr. LaRose prepared a consent form for Ms. Weaver and mailed it to her on June 19, 1999, pursuant to which she declined to consent to the surgery on Mr. Suggs's behalf in August 1999. However, under the District's medical consent policy from 1995 to 1999, the District officials could have signed the consent for surgery on Mr. Suggs's behalf, without consent or lack thereof from Ms. Weaver. Id. Ex. 22. In fact, the MRDDA administrator routinely signed consent forms for surgical procedures for Mr. Suggs in 1993, 1994, and 1997. Id. Ex. 48.

Mr. Suggs was also evaluated by a neurosurgeon at Providence Hospital in December 1999, who concluded that at that time, surgery was unlikely to have any meaningful impact on Mr. Suggs's motor function or neurological status. Symbral Defs.' Mot. for Summ. J. [120], Ex. 16. Mr. Suggs never underwent the recommended laminectomy and on June 30, 2000, the compression of Mr. Suggs's cervical condition caused him to suffer paralysis of the diaphragm and die. An autopsy confirmed the linkage between Mr. Suggs's medical condition and his death. Pl.'s Mot. for Summ. J. [128], Exs. 23, 41.

The facts in the record demonstrate that Mr. Suggs's MRDDA case manager, Sarah Jenkins, did nothing between September 1995 and March 1997 to ensure that the recommendation for a neurology consultation in 1995 was ever carried out. Yet, the MRDDA case manager was responsible for following up on medical recommendations made in the IHP to ensure that Mr. Suggs received those services. If Mr. Suggs was not receiving services in accordance with his IHP, the case manager was expected to inform Symbral and the case manager's supervisor. However, the evidence presented to the Court shows that the case manager did not do this in a timely manner, thereby constituting a breach of the duty that the District owed to Mr. Suggs to monitor Symbral and ensure the proper delivery of medical services to Mr. Suggs. What's more, Mr. Suggs's medical records clearly show that the District's failure to monitor Symbral's care of Mr. Suggs resulted in the administration of substandard care by Symbral, leading to a decline in Mr. Suggs's medical condition-and ultimately, his death.

The MRDDA case manager's duty to monitor Symbral's care of Mr. Suggs included ensuring completion of his neurological evaluation. See id. Ex. 6, at 74--76. As the lengthy inaction by Mr. Suggs's MRDDA case manager makes clear, no reasonable juror could find that the District of Columbia's monitoring of Symbral's care for Mr. Suggs was anything but negligent. Therefore, on the issue of the District's negligent monitoring of Symbral, the ...


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