Mackemull Vs Brian Center PDF

is
STATE OF NORTH CAROLINA

FILED IN THE GENERAL COURT OF JUSTICE
Bi 9 FEB 12 pH3: 4 SUPERIOR COURT DIVISION
COUNTY OF HAYWOOD 19-CVS- I 615
HAY WOOD COLIN I Y. C. S .0
ANDREA LORRAINE MACKEMULL, )
Y )
Plaintiff,
)
v.
) COMPLAINT
SSC WAYNESVILLE OPERATING COMPANY LLC; ) (Jury Trial Demanded)
SAVASENIORCARE, LLC; )
SAVASENIORCARE CONSULTING, LIG; )
SAVASENIORCARE ADMINISTRATIVE SERVICES, LLC,)
Each and all d/b/a BRIAN CENTER HEALTH & )
REHABILITATION/WAYNESVILLE, now known and )
d/b/a as HAYWOOD NURSING AND )
REHABILITATION CENTER, )
)
Defendants.
)
COMES NOW Plaintiff, Andrea Lorraine Mackemull, by and through undersigned counsel,
complaining of the Defendants as follows:
I. PARTIES
3.. Plaintiff Andrea Lorraine Mackemull ("Andrea," "Andrea Mackemull, "and/or "Plaintiff'
herein) is and was at all relevant times domiciled in Haywood County, North Carolina.
2. Defendant SSC Waynesville Operating Company LLC is, on information and belief, a
limited liability company formed pursuant to the laws of the State of Delaware, registered to
conduct business in North Carolina, and maintaining its principal place of business at 700 Wall
Street, Waynesville, NC 28786. At all relevant times, Defendant SSC Waynesville Operating
Company LLC functioned under a Certificate of Assumed Name For A Limited Liability Company
(LLC), filed at Book 652, Page 145 in the Office of the Register of Deeds of Haywood County, and
conducted business in North Carolina as a skilled nursing facility known as Brian Center Health &
Rehabilitation/Waynesville, now called Haywood Nursing and Rehabilitation Center. For
purposes of this Complaint, Defendant SSC Waynesville Operating Company LLC is sometimes
referred to as "Sava — Haywood Nursing & Rehab." .
3. The assumed named certificate referenced in the preceding paragraph lists the address
of the business owner as One Ravinia Drive, Suite 1400, Atlanta, GA 30346.
Complaint - Mackemull v. Sava Senior Care — AU.

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Case 1:19-cv-00071-MR-WCM EXHIBIT

Document 1-11 Filed 03/01/19 Page 1 of 26
4. Defendant SavaSeniorCare, LLC, is, on information and belief, a limited liability company,
formed under the laws of the State of Delaware that maintains its principal place of business at
One (1) Ravinia Drive, Suite 1500, Atlanta, Georgia, 30346. On information and belief,
SavaSeniorCare, LLC, regularly conducts business in the State of North Carolina and Haywood
County, and did so at all times relevant to this action, although it is not registered to do business
in North Carolina.
5. Defendant SavaSeniorCare Consulting, LLC, is, on information and belief, a limited liability
company, formed under the laws of the State of Delaware that maintains its principal place of
business at One (1) Ravinia Drive, Suite 1500, Atlanta, Georgia, 30346. On information and belief,
SavaSeniorCare Consulting, LLC, regularly conducts business in the State of North Carolina and
Haywood County, and did so at all times relevant to this action.
6. Defendant SavaSeniorCare Administrative Services, LLC, is, on information and belief, a

limited liability company, formed under the laws of the State of Delaware, that maintains its
principal place of business at One (1) Ravinia Drive, Suite 1500, Atlanta, Georgia, 30346. On
information and belief, SavaSeniorCare Administrative Services, LLC, regularly conducts business
In the State of North Carolina and did so at all times relevant to this action, although it is not
registered to do business in North Carolina.
7. Defendants SavaSeniorCare, LLC, SavaSeniorCare Consulting, LLC, and SavaSeniorCare

Administrative Services, LLC, on information and belief, are all known as, and do business as and
through, the registered trademark "SavaSeniorCare," through which they conduct the business
of numerous nursing homes and skilled nursing care facilities in multiple states, including North
Carolina, pertaining to all Brian Center and SavaSeniorCare entities and related facilities,
including the facility in question, described in paragraph No. 9, below, located in Haywood
County, North Carolina. In this Complaint, Defendants SavaSeniorCare, LLC, SavaSenlorCare
Consulting, LLC, and SavaSeniorCare Administrative Services, LLC are sometimes collectively
referred to as "Sava Senior Care — Parents."
8. On information and belief, the Sava Senior Care — Parents own, operate, and manage
multiple long-term care and skilled nursing care facilities in the State of North Carolina, including
but not limited to the following:
(a) Brian Center Southpoint (Durham, NC)

(b) Brian Center Health & Retirement/Clayton (Clayton, NC)
(c) Randolph Health and Rehabilitation Center (Asheboro, NC)
(d) Brian Center Health & Rehabilitation/Yanceyville (Yanceyville, NC)
(e) Edgecombe Health and Rehabilitation Center/Tarboro (Tarboro, NC)
(f) Fisher Park Health and Rehabilitation Center (Greensboro, NC)
(g) Blue Ridge health and Rehabilitation Center (Hendersonville, NC)
(h) Brian Center Health & Rehabilitation/Hendersonville (Hendersonville, NC)
(i) Brian Center Health & Rehabilitation/Weaverville (Weaverville, NC)
(j) Haywood Nursing and Rehabilitation Center (Waynesville, NC)
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(k) Brian Center Health & Rehabilitation/Spruce Pine (Spruce Pine, NC)
(1) Brian Center Health & Retirement/Lincolnton (Lincolnton, NC) .
(m) Brian Center Health and Rehabilitation Hickory Viewmont (Hickory, NC)
(n) Brian Center Health & Rehabilitation/Hickory East (Hickory, NC)
(o) Brian Center Health & Rehabilitation/Gastonia (Gastonia, NC)
(p) Brian Center Nursing Care/Shamrock (Charlotte, NC)
(q) Brian Center Health & Retirement/Mooresville (Mooresville, NC)
(r) Brian Center Health & Rehabilitation/Statesville (Statesville, NC)
(s) Brian Center Health and Rehabilitation/Charlotte (Charlotte, NC)
(t) Maple Leaf Health Care (Statesville, NC)
(u) Brian Center Health & Retirement/Cabarrus (Concord, NC)
(v) Silver Stream Health and Rehabilitation Center (Wilmington, NC)
(w) Brian Center Health & Rehabilitation/Wallace (Wallace, NC)
(x) Kenansville Health & Rehabilitation Center (Kenansville, NC)
(y) Lumberton Health and Rehabilitation Center (Lumberton, NC)
(z) Brian Center Health & Rehabilitation/Goldsboro (Goldsboro, NC)
(aa) MacGregor Downs Health and Rehabilitation Center (Greenville, NC)
(bb) Brian Center Health & Rehabilitation/Wilson (Wilson, NC)
(cc) Brian Center Health & Rehabilitation/Windsor (Windsor, NC)
(dd) Brian Center Health & Retirement/Monroe (Monroe, NC)
(ee) Brian Center Health and Rehabilitation/Hertford (Hertford, NC)
(if) Starmount Health and Rehabilitation Center (Greensboro, NC)
(gg) Surry Community Health and Rehabilitation Center (Mount Airy, NC)
(hh) Brian Center Health and Rehabilitation/Eden (Eden, NC)
9. On information and belief, at all relevant times, the Sava Senior Care — Parents, acting for
and in concert with their wholly-owned subsidiary, Defendant SSC Waynesville Operating
Company LLC, solicited residents and patients for the Haywood County facility previously referred
to as "Brian Center Health & Rehabilitation/Waynesville" and now referred to as "Haywood
Nursing and Rehabilitation Facility," made express representations through the broadcast and
distribution of marketing literature to the general public and to Plaintiff, including but not limited
to the following:
(a) Sava Senior Care facilities provide quality care that encourages the health and
happiness of the residents and patients;
(b) Sava Senior Care facilities embrace the needs and individuality of their long-term
residents and patients;
(c) Sava Senior Care strive to provide quality health care with compassion, integrity,
and respect for the residents, patients, family members, and communities they
serve;
Complaint - Mackemull v. Sava Senior Care —ALL

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(d) The seniors who reside at Sava Senior Care facilities deserve the best — that's the
. philosophy at our client center. We think its one that sets them apart. There's a
very important question that comes to mind in Save Senior Care facilities: "Am I
providing the type of care I would want my mom to receive";
(e) Sava Senior Care is committed to conducting all operating and business activities
with unquestionable integrity;
(f) Sava Senior Care strives to be the best long-term health care service provider;
(g) The care Sava Senior Care delivers to their residents is the Number One priority of
Sava Senior Care;
(h) Sava Senior Care is committed to compliance with all statutes, regulations,
directives, and guidelines applicable to Federal health Care programs;
(i) Sava Senior Care is committed to maintain staffing levels in accordance with State
and Federal law;
0) Sava Senior Care will conduct reasonable and prudent background investigations
and reference checks, in accordance with State and Federal regulations, before
hiring employees who have access to residents; ,
(k) Sava Senior Care will not tolerate verbal, mental, or physical abuse of residents;
(I) Sava Senior Care will not tolerate crimes against a resident or anyone receiving
care in or from a Sava Senior Care facility;
(m) Sava Senior Care requires that all employees and contractors comply with the
Elder Justice Act; and
(n) Sava Senior Care management will report reasonable suspicion of any crime
against a resident, or anyone who receives care from a Sava Senior Care facility,.
to the appropriate authorities in accordance with Federal and State law.
10. For all purposes of this Complaint, the phrase "Haywood SavaSeniorCare-Brian Center
Facility" shall refer to the physical facility, including building(s), associated grounds, and related
structures, named and commonly referred to at the time of the events described herein as "Brian
Center Health and Rehabilitation/Waynesville," currently named "Haywood Nursing and
Rehabilitation Center", located at 516 Wall Street, Waynesville, Haywood County, North Carolina,
28786.

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11. At all relevant times, on information and belief, Defendant SSC Waynesville Operating
Company LLC, owned, operated, and managed the Haywood SavaSeniorCare-Brian Center
Facility.
12. At all relevant times, on information and belief, Defendant SavaSeniorCare, LLC owned,
operated, and managed the Haywood SavaSeniorCare-Brian Center Facility.
13. At all relevant times, on information and belief, Defendant SavaSeniorCare Consulting,
LLC owned, operated, and managed the Haywood SavaSeniorCare-Brian Center Facility.
14. At all relevant times, on information and belief, Defendant SavaSeniorCare Administrative
Services, LLC owned, operated, and managed the Haywood SavaSeniorCare-Brian Center Facility.
15. For all purposes of this Complaint, the phrase "Sava Senior Care — ALL" shall refer,
collectively, to Defendant SSC Waynesville Operating Company, LLC, Defendant SavaSeniorCare,
LLC, Defendant SavaSeniorCare Consulting, LLC, and Defendant SavaSeniorCare Administrative
Services, LLC
16. At all relevant times, Sava Senior Care — ALL had a duty to establish and implement policies
regarding the management and operation of the Haywood SavaSeniorCare-Brian Center Facility.
17. At all relevant times, Sava Senior Care — ALL, by and through their employees and/or
agents, had the responsibility to perform their duties with the care an ordinary prudent person
in a like position would exercise under similar circumstances, and all duties and responsibilities
set out in paragraph 9(a) through (n), above, the specifics of which are fully incorporated herein
by reference.
18. At all relevant times, on information and belief, Sava Senior Care — ALL had actual
knowledge concerning the working conditions at the Haywood SavaSeniorCare-Brian Center
Facility, and other facilities, including actual knowledge regarding understaffing problems, actual
knowledge regarding the poorly qualified, overworked, underpaid, poorly trained, and
incompetent staff rendering care to the residents at their long term care facilities, including but
not limited to the Haywood SavaSeniorCare-Brian Center Facility.
19. At all relevant times, Luis Gomez (sometimes referred to herein as "Gomez") was
employed and worked for Sava Senior Care — ALL as a certified nursing assistant, nurse aide, or
CNA assigned .to the Haywood SavaSeniorCare-Brian Center Facility. Further, at all relevant
times, Gomez was an employee, agent, and representative of all of Sava Senior Care — ALL.
II. JURISDICTION AND VENUE

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20. The Superior Court of Haywood County, North Carolina, has jurisdiction over this cause
of action and personal jurisdiction over all of the Defendants pursuant to N.C.G.S. § 1-75.4(1),
7A-240, and/or 7A-243.
21. Venue is proper in Haywood County, North Carolina.
III. COMPLIANCE WITH NC RULE 90)
22. Plaintiff states that the medical care and all medical and other records pertaining to the
alleged negligence — including the alleged breaches of administrative and/or corporate duties to
residents and patients, including Andrea Mackemull, and including but not limited to allegations
of negligent monitoring and supervision — that are available to the Plaintiff after reasonable
inquiry, have been reviewed by a person who is reasonably expected to qualify as an expert
witness under Rule 702 of the North Carolina Rules of Evidence, and who has the opinion and is
willing to testify that the care and services provided by all of the Defendants and their agents,
servants, and/or employees Sava Senior Care — ALL, violated the applicable standard of care or
standard of practice and breached the applicable administrative and corporate duties.
IV. SUMMARY OF FACTS
A. Outline of The Case:
23. Andrea Mackemull was at the relevant times a resident of the Haywood SavaSeniorCare-
Brian Center Facility.
24. Andrea was born on or about 3 August 1962. At the time of the events referred to herein,
she was fifty-five (55) years old. At the relevant times, Andrea suffered from multiple medical
conditions, including but not limited to chronic obstructive pulmonary disease and congestive
heart failure, asthma, hypertension and hypotension, other lung disease, gastro-esophageal
reflux disease, flbromyalgia, dysphagia, anxiety disorder and depression.
25. As of December of 2014, Andrea's conditions required her admission to a long-term care
facility with skilled nursing care.
26. Andrea was originally admitted to the Haywood SavaSeniorCare-Brian Center Facility on
or about 11 December 2014.
27. During the relevant time period Plaintiff resided in room No. 34B on the first floor of the
Haywood SavaSeniorCare-Brian Center Facility.
28. Andrea relied on Sava Senior Care — ALL for treatment of her total needs for custodial,
nursing, and medical care. She was a disabled and dependent individual who occupied a
Medicare and/or Medicaid certified bed in a skilled nursing facility licensed by the State of North
Carolina.
Complaint - Mackemuli V. Sava Senior Care —ALL

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29. Andrea was admitted into the facility by Sava Senior Care — ALL to be treated and cared
for in exchange for certain payments. It was well known to Sava Senior Care — ALL that Andrea
was dependent on the facility for her basic needs, treatment, and care.
30. As a nursing home resident, Andrea was entitled to and had the right to receive the basic
and minimum care prescribed by applicable law. She was to be protected from harm by the
agents and employees of Sava Senior Care — ALL.
31. During Andrea 's residency in the Haywood SavaSeniorCare-Brian Center Facility owned
and operated by Sava Senior Care — ALL, the Defendants engaged in a continuing course of
conduct, repeatedly and successively neglecting Andrea by violating, on an ongoing and
persistent basis, her most basic rights and needs for protection, dignity, and minimum care. As
described in more detail below, the repetitive neglect and wanton conduct of Sava Senior Care —
ALL caused Andrea to suffer injury, including but not limited to repeated sexual assaults
B. Basic Responsibilities of Sava Senior Care —ALL:
32. By reason of Andrea's medical diagnoses, physical infirmities, disabilities, and level of
dependence, Sava Senior Care — ALL were required at all relevant times to provide to her the
minimum care specified below:
a. Hygiene care, bathing, and cleaning on a routine basis sufficient to ensure the
ongoing protection of Andrea's dignity and integrity and to prevent infection;
b. Sufficient nutrition to ensure that Andrea maintained her body weight and protein
stores and did not suffer from unplanned weight loss; and
c. A timely and appropriate comprehensive care plan specific to Andrea which

identified specific care measures necessary to meet her care needs, to be modified
as necessary, monitored for effectiveness, and implemented.
33. By reason of the minimum needs of Andrea and by virtue of the license and contracts
governing the care owed to residents at nursing homes and/or long term care facilities, at all
relevant times, Sava Senior Care — ALL were under a continuing duty to provide sufficient
numbers of competent and trained staff, including nursing aides or CNAs, on a 24-hour basis to
provide nursing care to residents — including Andrea — in accordance with their respective care
plans.
34. Additionally, Sava Senior Care — ALL, individually and collectively, had a duty to allocate
resources and exercise fiscal policies with reasonable care, so as to prevent the infliction of harm
on residents of the nursing home or long-term care facility, including Andrea.
C. The Decision of Sava Senior Care ALL to Understaff The Facility:

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35. At the relevant times, on information and belief, Sava Senior Care —ALL were fully aware
that the failure to provide sufficient numbers of competent nursing personnel to meet the basic
needs of residents jeopardized the health and safety of such residents and would, in all
reasonable likelihood, cause serious injury to residents, including Andrea.
_
36. At the relevant times, on information and belief, Sava Senior Care — ALL were fully aware
that the delivery of essential care and custodial services to residents In the nursing home,
including Andrea, depended upon:
(a) Determination of the numbers and expenditure on staffing levels in the nursing
home;
(b) ' Determination of census levels within the nursing home; and
(c) Determination of the census mix which, in turn, established the amount of
revenue and affected the acuity levels of the resident population and, therefore,
the nursing home's ability to meet the acuity levels and needs of the residents.
37. Despite this knowledge, as outlined above, Sava Senior Care — ALL, on information and
belief, made budgetary and administrative decisions that had a devastating effect on the ability
of the facility to provide safe, adequate, and essential care to the residents, including Andrea.
38. The decisions and directives of the facility as to staffing and census were determined by
the financial needs and goals of Sava Senior Care— ALL and not the custodial, medical, and nursing
needs of the residents of the facility, including Andrea.
39. Sava Senior Care — ALL, on information and belief, entered into a continuing course of
negligent conduct by creating, implementing, and enforcing dangerous operational budgets at
the Haywood SavaSeniorCare-Brian Center Facility that deprived residents, including Andrea, of
adequate staffing necessary to meet her custodial needs. This course of conduct deprived
residents, including Andrea, of supplies and personnel necessary to meet her needs. Further,
this course of conduct failed to ensure that qualified employees worked in the facility. This
course of conduct allowed a sexual predator to be employed by and to work at the Haywood
SavaSeniorCare-Brian Center Facility and to cause severe harm to multiple residents, including
Andrea.
D. The Decision of Sava Senior Care —ALL to Aggressively Market and Recruit:
40. Notwithstanding the decisions and directives of Sava Senior Care — ALL to cut corners and
short staff the facility, the said Defendants, on information and belief, required the facility to
recruit and enroll residents needing greater or higher levels of care, and higher paying residents,
Complaint - iviackemuil V. Sava Senior Care — ALL

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even though the needs of the patient population exceeded the capacity of the staff assigned to
the Haywood SavaSeniorCare-Brian Center Facility.
E. Notice, Motive, and Routine Practices of SavaSeniorCare, LLC, SavaSeniorCare Consulting,

LLC, and SavaSeniorCare Administrative Services, LLC:
41. The Interference, domination, intervention, and direct participation by Defendants

SavaSeniorCare, LLC, SavaSenlorCare Consulting, LLC, and SavaSeniorCare Administrative
Services, LLC (ail sometimes collectively referred to as "Sava Senior Care — Parents") in the
operations of the nursing homes in their multi-state chain, including but not limited to their
operation of the Haywood SavaSeniorCare-Brian Center Facility, were rooted in the knowledge
of the Sava Senior Care — Parents that small changes in the resident census and occupancy rate
of their nursing homes dramatically affected the Defendants' overall revenues and profits.
42. The Sava Senior Care — Parents also knew that control of staffing costs, the single largest
expense in the nursing home business, was vital to protecting and increasing profit margins for
Sava Senior Care — All.
43. Driven by the desire to increase revenues and profits, the Sava Senior Care — Parents, on
information and belief, collectively and individually, engaged in the following conduct:
(a) Routine close monitoring and control of the census and occupancy rates and levels
in their nursing homes, including the Haywood SavaSeniorCare-Brian Center
Facility;
(b) Established, monitored, and enforced occupancy and census levels/rates and
staffing and labor cost targets for their nursing homes, including the Haywood
SavaSeniorCare-Brian Center Facility;
(c) Established and enforced in each nursing home, including the Haywood
SavaSeniorCare-Brian Center Facility, an aggressive marketing and sales strategy
directed at referral sources of residents, such as hospitals, physicians, and health
maintenance organizations;
(d) Closely monitored resident discharges, transfers, and bed vacancies in their
nursing homes, including the Haywood SavaSeniorCare-Brian Center Facility;
(e) Required each of their nursing homes, including the Haywood SavaSeniorCare-
Brian Center Facility, to routinely report to home office regarding:
(1) Compliance or non-compliance with the census and occupancy rate

targets;
(2) Compliance or non-compliance with marketing and sales plans;

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(3) . Marketing and sales efforts undertaken to recruit new residents; and
(4) Compliance or non-compliance with staffing levels and labor costs

established and approved for the Defendants' nursing homes.
44. The Haywood SavaSeniorCare-Brian Center Facility, on information and belief, acted in
accordance with and obedience to the census and occupancy requirements, staffing and labor
cost restrictions, marketing, admission, and discharge policies and procedures, as established by
Sava Senior Care — Parents, by filling empty beds, recruiting high acuity residents, and
maintaining dictated occupancy and staffing levels that were in practice inconsistent with the
needs of residents, including Andrea.
45. The control exercised by Sava Senior Care — Parents, as alleged herein, surpassed the
normal behavior of an entity or entities owning a subsidiary facility and, further, was in disregard
of the interests and obligations of the subsidiary nursing home licensee, Defendant SSC
Waynesville Operating Corp LLC, and the interests of the residents and patients in the Haywood
SavaSeniorCare-Brian Center Facility. Sava Senior Care — Parents' direct participation in the
conduct at issue in this action superseded the discretion and interest of their subsidiary,
Defendant SSC Waynesville Operating Corp LLC, violated the law, and created the conditions that
led to the acts and omissions complained of herein.
46. The employees of Sava Senior Care — Parents who made the decisions and took the
actions complained of were, on information and belief, acting in their respective capacities as
agents, officers, and/or directors of Sava Senior Care — Parents.
F. The Employment of Lids Gomez by Sava Senior Care —ALL:
47. On or about 15 July 2015, on information and belief, Luis Gomez ("Gomez" herein)
submitted an application for employment at the Haywood SavaSeniorCare-Brian Center Facility.
48. On information and belief, Sava Senior Care — ALL performed a pro forma background
check on Gomez.
49. On or about 23 July 2015, Gomez was hired by Sava Senior Care — ALL to commence work
at the Haywood SavaSeniorCare-Brian Center Facility as a certified nursing assistant or Nurse Aide
I ("CNA" herein).
50. Upon commencing his employment as CNA at the Haywood SavaSeniorCare-Brian Center
Facility on or about 23 July 2015, Gomez had regular access to Andrea Mackemull in the facility
and was frequently assigned as her CNA. This access continued on a regular basis until the end
of February 2016.
G. Sava Senior Care — ALL aware of Prior Sexual Assault Allegations against Gomez:
Complaint - Mackemuil v. Sava Senior Care— ALL

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51. Upon information and belief, on or about October 20, 2015, another adult female resident
(referred to in this Complaint as "Jane Doe) of the Haywood SavaSeniorCare-Brian Center Facility
reported to Sava Senior Care — ALL that Gomez had sexually assaulted her at the facility.
52. Upon information and belief, Sava Senior Care — ALL conducted a purported investigation
of the complaint of Jane Doe; discounted and minimized the reports and complaints of Jane Doe;
gathered and manipulated information to criticize and • disparage Jane Doe; and promptly
arranged to have Jane Doe involuntarily committed to another facility for psychiatric evaluation.
On information and belief, the commitment of Jane Doe by Sava Senior Care — ALL rendered her
unavailable for interview and evaluation at the facility by the appropriate authorities, including
representatives from the Complaint Intake and Health Care Personnel Investigations Section of
the North Carolina Department of Health and Human Services.
H. Failure of Sava Senior Care — ALL to Protect Andrea Mackemull and Other Residents from
Sexual Assault
53. Although Sava Senior Care — ALL were aware of specific allegations that Gomez had
committed prior sexual assault(s) of Jane Doe at the facility, the Defendants failed in their
continuing duties to protect Andrea Mackemull and other residents at the Haywood
SavaSen iorCa re-Brian Center Facility from harm by Gomez. Furthermore, Sava Senior Care — ALL
failed in their continuing duties to adequately and properly Investigate Gomez following the
allegations of Jane Doe. Had they done so, on information and belief, Sava Senior Care — ALL
would have discovered the Gomez had been previously accused of sexual assaulting an elderly
person or persons for whom he was providing care.
54. On information and belief, Sava Senior Care ALL failed in their continuing duties to
timely, adequately, and accurately report the conduct of Gomez to appropriate law enforcement
agencies and -officials, to the North Carolina Adult Protective Services, to the North Carolina
Division of Health Service Regulation, and/or to the North Carolina Department of Health and
Human Services.
55. On information and belief, Sava Senior Care — ALL failed in their continuing duties by
delaying their response to and otherwise failing to conduct an adequate and proper investigation
into the allegations, by Andrea and others, regarding the misconduct of Gomez and the sexual
assaults perpetrated by him.
56. On information and belief, Sava Senior Care — ALL failed in their continuing duties to
adequately and properly interview other residents at the Haywood SavaSenlorCare Facility who
were likely to have relevant knowledge and Information regarding the conduct and behavior of
Gomez.

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adequately and properly interview nurses, nurse aides or CNAs, and other personal employed at
the Haywood SavaSeniorCare Facility regarding the conduct and behavior of Gomez.
adequately and properly interview other personnel who provided care or assistance to residents
during the relevant time periods, including but not limited to doctors, nurses, nurse aids or CNAs,
and therapists, regarding the conduct and behavior of Gomez.
I. Sexual Assault of Andrea Mackemull at the Haywood SavaSenlarCare-Brian Center Facility:
59. Towards the end of January or early February of 2016, on information and belief; Gomez
purchased cologne from Bath & Body Works and brought it to Andrea Mackemull when she was
alone in her bed in room number 348 at the Haywood SavaSeniorCare-Brian Center Facility.
Gomez physically forced a prolonged French-kiss on Andrea. She tried, unsuccessfully, to push
him away.
60. On or about 28 February 2016, at a time when Andrea was in her room alone and her
roommate was out, Gomez came to Andrea's room at the Haywood SavaSeniorCare-Brian Center
Facility and instructed her to go to the toilet while he was present and available to assist. Once
Andrea was in the restroom, Gomez entered the restroom and closed the door. As Andrea lifted
her nightgown in preparation for toileting, Gomez pulled Andrea's underwear down and
assaulted and raped her. Gomez spread Andrea's legs, pulled her left leg onto the toilet, and
inserted the tip of his penis into her vagina. Andrea was able to move her backside to push
Gomez away. She quickly sat down on the toilet, and told Gomez he had to leave and that
someone would be coming to the room.
V. LEGAL BASIS FOR THE LIABILITY OF

THE SAVASENIORCARE-BRIAN CENTER DEFENDANTS
61. At all relevant time, on information and belief, Sava Senior Care — ALL owned, operated,
managed, and/or controlled the Haywood SavaSeniorCare-Brian Center Facility, either directly or
through the agency of each other and/or other entities, agents, servants, or employees.
62. At all relevant time, on information and belief, Sava Senior Care — ALL are directly or
vicariously liable for any acts and omissions by any person or entity, controlled directly or
indirectly, including any governing body, officer, employee, ostensible or apparent agent,
consultant or independent contractor, whether in-house or outside individuals, entities,
agencies, or pools, which caused injury to Andrea Mackemull.
63. Sava Senior Care — ALL are sued for their direct participation in the torts and causes of
action made the basis of this lawsuit, having: (a) disregarded the duties and responsibilities which
the Haywood SavaSeniorCare-Brian Center Facility, as a licensed nursing home, owed to the state
of North Carolina and its residents; (b) created the dangerous conditions described in this

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Complaint by interfering with and causing the Haywood SavaSeniorCare-Brian Center Facility to
violate state and federal statutes, laws, and/or minimum regulations governing the operation of
nursing homes and/or skilled nursing facilities; (c) superseding the statutory rights and duties
owed to nursing home residents, including Andrea, through their dangerous directives, policies,
and control of the Haywood SavaSeniorCare-Brian Center Facility; and (d) caused the injuries,
harms, losses, and damages referred to herein.
64. At all relevant times, on information and belief, Sava Senior Care — ALL, their servants,
agents, and/or employees held themselves out to the public and to Andrea and her family
members as operating and managing qualified and professional facilities having employees with
special training, experience, knowledge, and expertise in caring for people who are not able to
take care of themselves or make appropriate decisions for themselves.
65. Sava Senior Care — ALL, their servants, agents, and/or employees held themselves out to
be qualified and competent in all matters relating to residential care and protection of the aged
and infirm, and held themselves out as having the ability to accept and properly care for patients
and residents like Andrea.
66. Sava Senior Care — ALL, at all relevant times, charged and were paid for services rendered
to of for Andrea. Upon information and belief, Sava Senior Care — ALL received Medicare,
Medicaid, and/or other payments for the care and maintenance of Andrea.
67. In addition to being legally responsible as a direct participant for the wrongful acts set out
in this Complaint, Plaintiff Andrea Mackemull pleads in the alternative that Sava Senior Care —
ALL are also indirectly and vicariously liable and responsible for each and every tort and cause of
action stated within this Complaint and the injuries, harms, losses, and damages • resulting
therefrom. More specifically, Sava Senior Care— ALL are vicariously liable and responsible for the
wrongful conduct described in this Complaint under the following alternative legal theories:
(a) Alter Ego: At all relevant times, on information and belief, Sava Senior Care —ALL
were alter egos of one another. Sava — Haywood Nursing & Rehab was a subsidiary
and the alter ego of Sava Senior Care — Parents. Sava — Haywood Nursing & Rehab
was a mere conduit through which Sava Senior Care — Parents did business, and
the management and operation of the Haywood SavaSeniorCare-Brian Center
Facility were so assimilated within Sava Senior Care — Parents that Sava Haywood
Nursing & Rehab and its d/b/a designation were simply names through which Sava
Senior Care — Parents conducted their business.
(b) Sava Senior Care — Parents represented to the public and to Andrea that the
Haywood SavaSeniorCare-Brian Center Facility, Sava — Haywood Nursing & Rehab,
and its d/b/a designation at the relevant times, were part of one single economic
enterprise.

Page 13 of 26

(c) Sava Senior Care — Parents dominated and controlled the business affairs of Sava —
Haywood Nursing & Rehab such that the Haywood SavaSeniorCare-Brian Center
Facility and Sava — Haywood Nursing & Rehab were organized and operated as a
mere tool of Sava Senior Care — Parents.
(d) Assertions by Sava Senior Care — Parents that each was a separate corporate entity
with an independent and separate existence is, on information and belief, nothing
more than a sham and part of a scheme to perpetrate fraud, escape justice, and
evade the existing legal and fiduciary obligations of nursing homes and skilled
nursing facilities operating in North Carolina and other states.
(e) Agency: At all relevant times, Sava Senior Care — Parents and Sava — Haywood
Nursing & Rehab acted as agents for one another and ratified or authorized the
acts or omissions of one or more of each other. Sava Senior Care — Parents held
themselves out as being one unified enterprise known as "Sava Senior Care."
(f) Joint Enterprise: In the alternative, to the extent Sava Senior Care — Parents are
found to be separate corporate entities, Sava Senior Care — Parents, and each of
them, remain liable for the acts and omissions of each other, and for the acts and
omissions of Defendants SSC Waynesville Operating Company LLC, because the
Sava Senior Care — Parents engaged in a joint venture and enterprise, for profit, to
act in concert in the operation, management, and maintenance of the Haywood
SavaSeniorCare-Brian Center Facility. Sava Senior Care — Parents had equal rights
to control their venture as a whole, as well as to control the operation and
management of the Haywood SavaSeniorCare-Brian Center Facility.
(g) Partnership or Implied Partnership: Sava Senior Care — Parents and SSC
Waynesville Operating Company LLC, on information and belief, and their
respective principals, members, managers, shareholders, partners, directors, and
other agents, employees, and representatives, were at all relevant times in a
partnership relationship with'each other, through their express or implied conduct,
wherein they combined their labor, skills, facilities, equipment, personnel, training,
advertising, marketing, and other assets and resources for purposes including but
not limited to mutual financial gain, business opportunities, and professional
success. As partners in fact, and at least implied partners at law, Sava Senior Care
— Parents and SSC Waynesville Operating Company LLC owned, operated, and •
managed the Haywood SavaSeniorCare-Brian Center Facility.
(h) As partners or implied partners at law, Sava Senior Care — Parents and SSC
Waynesville Operating Company LLC are jointly and severally liable for their own
negligence and for the negligent acts and omissions of each other, in their
capacities as partners or implied partners at law, in the management, supervision,
and operation of the Haywood SavaSeniorCare-Brian Center Facility, pursuant to

Page 14 of 26

North Carolina statutory law, including N.C.G.S. § 59-36, and relevant case law
decisions.
68. Further, at all relevant times, the medical and nursing professionals and custodial care
provider staff at the Haywood SavaSeniorCare-Brian Center Facility were agents, employees,
and/or servants, either actual or apparent, of Sava Senior Care — Parents, so that any acts or
omissions on the part of such personnel are attributable to and imputed to Sava Senior Care —
Parents pursuant to the doctrine of respondeat superior or similar theories of liability.
69. Alternatively, at all relevant times, the medical and nursing professionals and custodial
care provider staff at the Haywood SavaSeniorCare-Brian Center Facility were borrowed servants
of Sava Senior Care — Parents.
70. At all relevant times, on information and belief, Sava Senior Care — Parents applied for
and received a North Carolina state license, in the name of Defendant SSC Waynesville Operating
Company, to operate a long term care and skilled nursing facility or nursing home, namely the
Haywood SavaSeniorCare-Brian Center Facility, and at all relevant times the Defendants held
such license.
71. At all relevant times, on information and belief, Sava Senior Care — Parents entered into
a contract with the State of North Carolina to provide nursing facility services. Such contract was
in force and effect at all relevant times and provided a significant source of revenue to and for
Sava Senior Care — Parents. More specifically, the contract obligated all of the Defendants to
provide nursing care and services to all residents of the Haywood SavaSeniorCare-Brian Center
Facility, including Plaintiff Andrea Mackemull, in accordance with all applicable legal and
regulatory and standards, including but not limited to those found in 42 C.F.R. part 483 and 10A
NCAC 13D 0.0100, et. seq.
VI. LEGAL BASIS FOR DEFENDANTS' LEGAL LIABILITY

FOR CONDUCT OF GOMEZ AND OTHER EMPLOYEES AND AGENTS
72. Gomez, at all relevant times, was acting within the course and scope of his employment
with and/or agency of/for Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab.
73. The nursing and residential staff and management of Sava Senior Care — Parents and Sava
— Haywood Nursing & Rehab at the Haywood SavaSeniorCare-Brian Center Facility, at all relevant
times, all of whom were employees, agents, and representatives of the said defendants, failed in
their obligations and responsibilities to properly screen, hire, educate, train, supervise, and
manage the nursing staff and nurse assistant/CNA employees, as described in this Complaint.
74. Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab, at all relevant times,
are liable for the acts and omissions of Gomez and for the acts and omissions all employees and
agents charged with supervisory responsibility over Gomez, pursuant to the doctrines of
respondeat superior, vicarious liability, or as otherwise provided by applicable law.
Complaint - Madcemull v. Sava Senior Care— ALL

Page 15 of 26

75. Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab, on information and .
belief, ratified the acts and omissions of Gomez and all supervisory and administrative personnel,
as alleged and described in this Complaint, by:
(a) Concealing, attempting to conceal, minimizing, or otherwise covering up the acts

and omissions of Gomez and all personnel responsible for the screening, hiring,
training, and supervision of Gomez;
(b) Ignoring, removing, or secreting evidence;
(c) Failing to promptly report the sexual assaults and rapes perpetrated by Gomez
within the Haywood SavaSeniorCare-Brian Center Facility to appropriate
authorities and investigative agencies as far back as October of 2015;
(d) Reporting incomplete, false, or misleading information to appropriate authorities

and investigative agencies with the State of North Carolina;
(e) Falling to report to law enforcement and/or by delaying reports to law

enforcement;
(f) Reporting incomplete, false, or misleading information to law enforcement;
(g) Otherwise attem pting to justify, explain, tolerate, or ignore the conduct of Gomez;
and
(h) Otherwise attempting to minimize, justify, explain, tolerate, or ignore the reports
of abuse, assault, and rape by multiple residents of the Haywood SavaSeniorCare-
Brian Center Facility, including Plaintiff.
76. Consequently, Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab are
legally responsible and liable for the acts and omissions of Gomez and other employees and
agents, as described in this Complaint, pursuant to the doctrines of respondeat superior, vicarious
liability, or as otherwise provided by applicable law.
VII. CLAIM FOR RELIEF

(Negligence of the SavaSeniorCare-Brian Center Defendants)
77. Plaintiff fully incorporates by reference all prior allegations of her Complaint.
78. At all relevant times, Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab
owed a duty to Andrea Mackemull to take all reasonable and ordinary actions, measures, and
Complaint- Mackemull v. Sava Senior Care—ALL

Page 16 of 26

steps for her safety and well-being, including all reasonable and ordinary actions, measures, and
.steps to prevent her from being physically and mentally abused or assaulted by any persons,
including without limitation, the employees and agents of Sava Senior Care — Parents and Sava —
Haywood Nursing & Rehab.
79. At all relevant times, the State of North Carolina imposed statutory and regulatory duties
designed to protect the class of persons including nursing home residents of the state which were
in full force and effect. As a member of the class, Andrea was entitled to the protection of these
laws, and specifically N.C. Gen. Stat. §§ 131A-1 through 131F-1 and the rules and regulations
promulgated pursuant to these statutes by the North Carolina Department of Health and Human
Services, as set for at 10 NCAC 130.2001 et. seq.
80. The laws described in the preceding paragraph are not pled as the basis for a separate
cause of action or negligence per se, but as evidence of the duties of Sava Senior Care — Parents
and Sava — Haywood Nursing & Rehab and of the applicable standard of care, negligence, and
gross negligence.
81. Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab, through their agents
and employees, were negligent in one or more of the following ways:
(a) They failed to hire and train appropriate personnel to care for their residents and
patients, including Andrea;
(b) Ongoing retention and assignment of unfit, unqualified, and incompetent direct
care staff;
(c) Continuing failure to obtain and provide timely and appropriate staff care and
nursing intervention to/for Andrea;
(d) Repeated failure to protect Andrea from mistreatment, sexual assault, and rape;
(e) Continuing failure to provide Andre professional services that met a professional
standard of care;
(f) Continuing failure to make sure that nurse aids or CNAs demonstrate that they
have the skills and training to be able to properly care for residents and patients;
(g) Continuing failure to create, use, and follow policies and procedures that forbid
mistreatment, neglect, and abuse of residents;
(h) Repeated failure to keep the family and physician(s) informed of incidents and
significant changes in condition for residents, including Andrea;

Page 17 of 26

(1) Repeated failure to notify law enforcement and appropriate agencies, including
the North Carolina Division-of Health Services Regulation and North Carolina Adult
Protective Services, of incidents of abuse and alleged abuse as required by law;
(l) Repeated failure to provide the Haywood County Sheriff's Office with timely,
complete, and accurate information regarding the misconduct and alleged
misconduct of Gomez;
(k) Repeated failure to provide the Haywood County Sheriffs Office with timely,
complete, and accurate information regarding the physical and sexual molestation
of Andrea;
(I) Repeated failure to ensure the preservation of evidence, including the destruction
of potential DNA evidence;
(m) Continuing failure to establish and implement appropriate corporate budgeting

policies that were consistent with the needs of residents, including Andrea, that
the SavaSeniorCare-Brian Center Defendants had accepted and for whom they
promised to care in accordance with the minimum standards prescribed the North
Carolina Health Service Regulation Rules and Regulations;
(n) Continuing failure to establish and implement appropriate corporate safety,

training, staffing, and fundamental nursing care policies to prevent harm to
residents and avoid the known consequences of inadequate care;
(o) Failure to provide sufficient numbers and quality of staff to meet the fundamental
care needs of Andrea;
(p) Failure to properly monitor, observe, and assess Andrea, including, but not limited
to, ongoing assessments as required by law;
(q) Failure to obtain and provide timely and appropriate medical assessment and
treatment and nursing intervention to Andrea;
Cr) Failure to notify Andrea's physician and/or other attending physicians and
available medical personnel of significant conditions and changes in condition;
(s) Failure to provide a safe environment for Andrea, including protecting her from
sexual assault and sexual abuse;
(t) Failure to adequately supervise the Administrator(s) of the Haywood


Page 18 of 26

(u) Failure to adequately supervise the Director(s) of Nursing of the Haywood
(v) Failure to adequately supervise the nursing staff and other direct caregivers and
staff of the Haywood SavaSeniorCare-Brian Center Facility;
(w) Failure to adequately screen, evaluate, and check references, perform background
checks, test for competence and compliance, and use ordinary care in selecting
nursing personnel, resulting in the use of direct caregivers who were unfit to
provide care to/for Andrea;
(x) Failure to timely and properly Investigate outcries of rape and other sexual
conduct and abuse about/against employees, including Gomez;
(y) Failure to address, correct, and prevent sexual abuse of residents by employees;
(z) Failure to establish and implement appropriate corporate budgeting policies and
practices which were consistent with the needs of Andrea, including creating,
Implementing, and enforcing dangerous operational budgets which deprived
residents of adequate staffing, supplies, and caused widespread neglect;
(aa) Failure to allocate sufficient financial resources to the Haywood SavaSeniorCare-

Brian Center Facility, thereby causing the harm to Andrea as described herein;
(bb) Failure to timely and properly investigate and correct known systemic breakdowns
in the delivery of care and resident/patient safety at the Haywood
SavaSeniorCare-Brian Center Facility to avoid the consequences and harm to
Andrea;
(cc) Continuing systemic failure and refusal to establish and implement appropriate
corporate safety, training, staffing, and fundamental nursing care policies to
prevent harm to Andrea and avoid the known consequences of inadequate care;
and
(dd) They engaged in other acts, conduct, and omissions constituting actionable
negligence to be proven at trial.
82. At all relevant times, as alleged, the employees and agents referred to were all acting in
their respective capacities as agents and employees of Sava Senior Care — Parents and Sava —
Haywood Nursing & Rehab. Therefore, the acts, conduct, omissions, negligence, and liabilities of
the said individuals are imputable to and chargeable to Sava Senior Care — Parents and Sava —
Haywood Nursing & Rehab.

Page 19 of 26

83. As a direct, proximate, and foreseeable result of the negligent acts, conduct, and
omissions of the employees and agents of Sava Senior Care — Parents and Sava — Haywood
Nursing & Rehab, Andrea was raped and otherwise sexually assaulted, causing medical and other
expenses, physical pain and suffering, mental and emotional distress and suffering, and other
harms, losses, and damages, all in amounts not yet fully determined, but which exceed the
amount of Twenty-Five Thousand Dollars ($25,000.00).
VIII. CLAIM FOR RELIEF

(Negligent Infliction of Emotional Distress against
the SavaSeniorCare-Brian Center Defendants)
85. Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab, by and through the
acts, conduct, and omissions of their agents and employees as described herein, were negligent.
86. it was reasonably foreseeable to Sava Senior Care —Parents and Sava — Haywood Nursing
& Rehab that such negligent acts, conduct, and omissions would cause Andrea to suffer severe
emotional distress.
87. The conduct of Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab, as
described herein, did in fact cause Andrea Mackemull severe emotional distress.
88. As a direct, proximate, and foreseeable result of the severe emotional distress suffered
and to be suffered by Andrea, she has incurred and will incur damages in amounts not yet fully
determined, but which exceed the amount of Twenty-Five Thousand Dollars ($25,000.00).
IX. CLAIM FOR RELIEF

(Violations of N.C.G.S. § 42-42 by the SavaSeniorCare-Brian Center Defendants)
90. By entering into a residential agreement with Andrea Mackemull for her occupancy of the
Haywood SavaSenior-Brian Center Facility as described herein, Sava Senior Care — Parents and
Sava — Haywood Nursing & Rehab had a statutory duty pursuant to N.C.G.S. § 42-42 to at all times
maintain the subject property and premises in a fit and habitable condition.
91. Through the acts, conduct, omissions, and negligence of Sava Senior Care — Parents and
Sava — Haywood Nursing & Rehab, as alleged herein, and by their failures to correct the unsafe
and hazardous conditions of the property and premises as alleged, Sava Senior Care — Parents
and Sava — Haywood Nursing & Rehab violated and breached the duties imposed upon them
pursuant to N.C.G.S. § 42-42.

Page 20 of 26

92. As a direct, proximate, and foreseeable result of the breaches and violations of N.C.G.S. §
4242 committed by Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab, Andrea
Mackemull was raped and otherwise sexually assaulted, causing medical and other expenses,
physical pain and suffering, mental and emotional distress and suffering, and other harms, losses,
and damages, all in amounts not yet fully determined, but which exceed the amount of Twenty-
Five Thousand Dollars ($25,000.00).
X. CLAIM FOR RELIEF

(Breaches of Implied Warranties by the SavaSenlorCare-Brian Center Defendants)
94. By entering into a residential agreement with Andrea Mackemull for her occupancy of the
Haywood SavaSeniorCare-Brian Center Facility as described herein, Sava Senior Care — Parents
and Sava — Haywood Nursing & Rehab impliedly warranted to Andrea that they would deliver
and at all times maintain the premises and facility in a fit and habitable condition.
95. Through the acts, conduct, omissions, and negligence of Sava Senior Care — Parents and
Sava — Haywood Nursing & Rehab, as alleged herein, and by their failures to correct the unsafe
and hazardous conditions of the Haywood SavaSeniorCare-Brian Center Facility, as alleged, Sava
Senior Care — Parents and Sava — Haywood Nursing & Rehab breached their warranties of fitness
and habitability owed to Andrea.
96. As a direct, proximate, and foreseeable result of the breaches by Sava Senior Care —
Parents and Sava — Haywood Nursing & Rehab of their warranties of fitness and habitability as
alleged herein, Andrea was raped and otherwise sexually assaulted, causing medical' and other
97. As a direct, proximate, and foreseeable result of the breaches of violations of N.C.G.S. §
42-42 and other applicable legal and regulatory requirements as committed by Sava Senior Care
— Parents and Sava — Haywood Nursing & Rehab, Andrea was raped and otherwise sexually
assaulted, causing medical and other expenses, physical pain and suffering, mental and
emotional distress and suffering, and other harms, losses, and damages, all in amounts not yet
fully determined, but which exceed the amount of Twenty-Five Thousand Dollars ($25,000.00).
Xl. CLAIM FOR RELIEF

(Common Law Fraud)

Page 21 of 26

99. On information and belief, Sava Senior Care — Parents and Sava — Haywood Nursing &
Rehab intentionaliy engaged in common law fraud that was and is a proximate cause of the
harms, losses, and damages sustained and to be sustained by Andrea Mackemull.
100. .Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab, on information and
belief, while claiming and Implying special knowledge, concealed and/or misrepresented material
facts to Andrea or her representatives.
101. The relationship between Sava Senior Care — Parents and Sava — Haywood Nursing &
Rehab and Andrea and her representatives was one of trust and confidence, and the Defendants
had a higher duty to affirmatively speak the truth to Andrea and her representatives because of
Andrea's infirmities.
102. The fraudulent conduct of Sava Senior Care — Parents and Sava — Haywood Nursing &
Rehab includes, but Is not limited to, the conduct described below.
103. Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab engaged in fraud by
concealing or failing to disclose material facts within Defendants' knowledge, when they knew
that Andrea was ignorant of these material facts and did not have an equal opportunity to
discover the truth.
104. Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab intended to induce
Andrea and her family to take some action, namely to admit and not to remove Andrea from the
Haywood SavaSeniorCa re-Brian Center Facility, by concealing or failing to disclose material facts,
including but not limited to (a) that an epidemic of patient harm .and injury existed at the facility;
(b) that a male nursing aide, namely Gomez, with regular access to Andrea, had been accused by
another female resident of sexual assault and/or rape allegedly committed within the Haywood
SavaSeniorCa re-Brian Center Facility, as well as (c) a practice at the facility of utilizing insufficient
numbers of qualified nurse aides/CNAs and to use nurse aides/CNAs who were not adequately
trained to render care in accordance with the law.
105. Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab concealed the fact that
as a routine and general business practice, nurse aides/CNAs at the Haywood SavaSeniorC.are-
Brian Center Facility were not minimally trained, educated, managed, or supervised to provide
basic care services, including care in accordance with professional standards such that residents
and patients were free from abuse, inappropriate touching, sexual assault, and rape, and to
provide appropriate care in accordance with health care plans and all applicable state and federal
laws and regulations.
105. As a proximate cause of the concealments and failures to disclose by Sava Senior Care —
Parents and Sava — Haywood Nursing & Rehab, Andrea suffered and continues to suffer injuries,
harms, losses, and damages.
Complaint - Mackemull V. Sava Senior Care —ALL

Page 22 of 25

107. Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab engaged in fraud by
making material misrepresentations with either knowledge of their falsity or by making them
recklessly, without any knowledge of their truth and as a positive assertion and with intention
that such misrepresentations should be acted upon by Andrea and/or her family or responsible
party. As a consequence, and as a proximate cause of the reliance on these misrepresentations,
Andrea suffered and continues to suffer injuries, harms, losses, and damages.
108. Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab entered into an
agreement with Andrea In which the Defendants promised to provide basic care for Andrea.. As
partial consideration for this promise, Andrea agreed to turn over and/or provide substantial
financial resources to Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab on a
monthly basis.
109. At the time of this agreement between Sava Senior Care — Parents and Sava — Haywood
Nursing & Rehab and Andrea it was known and understood by all parties that Defendants, for
good and sufficient consideration, had also entered into agreements with the State of North
Carolina and with the United States that were designed and intended to be for the benefit and
protection of Andrea and other similarly situated patients and residents. By virtue of these
agreements and by direct statement, Sava Senior Care — Parents and Sava — Haywood Nursing &
Rehab represented to Andrea and her family that the care they would provide for her would fully
comply with the licensing requirements and standards of care specified by the laws and
regulations of the State of North Carolina and the United States.
110. At all relevant times, on information and belief, Andrea occupied the status of a Medicaid
or Medicare recipient. Further, the Haywood SavaSeniorCare-Brian Center Facility occupied the
status of a certified nursing facility and skilled nursing facility, which by reason of its certifications
and promises made to the State of North Carolina and the United States, was entitled to receive
Medicaid and Medicare payments for care provided to qualified recipients at the facility,
including Andrea. The Medicaid and/or Medicare payments to Sava Senior Care — Parents and
Sava — Haywood Nursing & Rehab, for Andrea and other qualified residents/patients, were
conditioned upon the certification and/or attestation by Defendants and their agents that the
care specified in the provider agreement and regulations Incorporated therein, between Sava
Senior Care — Parents and Sava — Haywood Nursing & Rehab and the state of North Carolina and
between said Defendants and the United States was in fact provided to Andrea.
111. Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab held out and
represented to Plaintiff Andrea and the public at large that the Haywood SavaSeniorCare-Brian
Center Facility was at all times a licensed nursing home and skilled nursing facility, licensed by
the State of North Carolina and certified by both the federal and state government to provide
care to nursing home residents.
112. Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab represented to Andrea '
that the Haywood SavaSeniorCare-Brian Center Facility was able to provide for Andrea's skilled
needs. Such representations were material and made with the intent that Andrea and her family

Page 23 of 26

would rely upon them. The said representations were, in fact, relied upon by Andrea. The
Defendants were fully aware at the time such promises and representations were made that the
Haywood SavaSeniorCare-Brian Center Facility could not provide the essential care and services
required by Andrea. The promises and representations made by Sava Senior Care — Parents and
Sava — Haywood Nursing & Rehab regarding the provision of essential care and services were,
therefore, made with the present intent not to perform the same.
113. Upon Information and belief, Sava Senior Care — Parents and Sava — Haywood Nursing &
Rehab took affirmative steps to conceal their fraudulent conduct by manipulating and/or
falsifying records to make it appear that Andrea's minimum care needs were met at the Haywood
SavaSeniorCare-Brian Center Facility.
114. Given the conduct of Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab,
as described herein, Plaintiff Andrea Mackemull is entitled and therefore asserts a claim for
compensatory and punitive damages in amounts sufficient to punish and deter Sava Senior Care
— Parents and Sava — Haywood Nursing & Rehab, and others like them, from such conduct in the
future.
XII. CLAIM FOR RELIEF

(Breaches Of Fiduciary Duty Against the SavaSeniorCare-Brian Center Defendants)
116. At all times relevant to the rape and sexual assault of Andrea, as alleged herein, a fiduciary
relationship existed between Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab
and Andrea Mackemull.
117. Andrea was particularly dependent for her daily care and well being upon Sava Senior
Care — Parents and Sava — Haywood Nursing & Rehab, as well as upon their employees and
agents.
118. Andrea and her family relied upon the superior knowledge, skill, and abilities that Sava
Senior Care — Parents and Sava — Haywood Nursing & Rehab held themselves out to have,
possess, and commit to the care and services to be provided. Andrea relied upon the Defendants
to provide care because, as a result of her infirmities, she was not able to care for herself.
119. By virtue of the nature of the care and serviCes to be rendered to Andrea by Sava Senior
Care — Parents and Sava — Haywood Nursing & Rehab, and the special relationship which
developed between the Defendants and Andrea, as well as the huge disparity of power and
unequal bargaining position existing between the Defendants and Andrea, Sava Senior Care —
Parents and Sava — Haywood Nursing & Rehab occupied a position of trust and confidence toward
Andrea which required fidelity, loyalty, good faith, and fair dealing.

Page 24 of 26

120. By engaging in the acts, conduct, omissions, and negligence as alleged, Sava Senior Care
— Parents and Sava — Haywood Nursing & Rehab breached their fiduciary duties and duty of good
faith and fair dealing to Andrea, by failing to provide the appropriate level of care and services to
which Andrea was entitled, by accepting payment for services and care not provided to Andrea,
and by their concealment of and failure to timely respond to and disclose the abuse and neglect
of Andrea and other residents.
121. As a direct, proximate, and foreseeable result of the breaches of their fiduciary duties,
and the duty of full faith and fair dealing, by Sava Senior Care — Parents and Sava — Haywood
Nursing & Rehab, Andrea was raped and otherwise sexually assaulted, causing medical and other
122. Further, based upon the conduct of Sava Senior Care — Parents and Sava — Haywood
Nursing & Rehab, as alleged herein, Plaintiff Andrea Mackemull asserts a claim for judgment for
all compensatory and punitive damages against Sava Senior Care — Parents and Sava — Haywood
Nursing & Rehab, jointly and severally, and Plaintiff also seeks the imposition of a constructive
trust on all wrongful profits and proceeds arising out of the Defendants' breaches of their
fiduciary duties to Andrea Mackemull.
XIII. CLAIM FOR RELIEF

(Punitive Damages against the SavaSeniorCare-Brian Center Defendants)
124. The acts and conduct of Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab,
by and through their agents and employees, as alleged herein, including their acts and conduct
in attempting to conceal, ignore, or minimize the rape and sexual assaults of Andrea by Gomez,
and the similar conduct of Gomez with respect to other residents of the Haywood
SavaSeniorCare-Brian Center Facility, constitute intentional, malicious, willful and wanton
conduct, and gross negligence on the part of Sava Senior Care — Parents and Sava — Haywood
Nursing & Rehab, all perpetrated in gross disregard and indifference to the rights, safety, well-
being, and life of Andrea.
125. The conduct of Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab, as
described above, was done with the consent, knowledge, and acquiescence of all of the
Defendants, individually and collectively, and has been perpetrated by, condoned by, and ratified
by all of the Defendants.
126. Sava Senior Care — Parents and Sava — Haywood Nursing & Rehab are, therefore, legally
responsible and liable to Andrea Mackemull for an award of punitive damages in an amount to
be determined by the jury at trial, but which amount is in excess of Twenty-Five Thousand Dollars
($25,000.00).

Page 25 of 26

4 I II
WHEREFORE, Plaintiff Andrea Lorraine Mackemull prays the Court for the following relief:
1. That she have and recover from Sava Senior Care — Parents and Sava — Haywood Nursing &
Rehab, jointly and severally, all compensatory damages incurred in an amount to be proven at
trial, but which amount exceeds the sum of Twenty-Five Thousand Dollars ($25,000.00) for each
of Plaintiff Andrea Mackemull's claims;
Rehab, jointly and severally, punitive damages in an amount to be proven at trial, but which
amount exceeds the sum of Twenty-Five Thousand Dollars ($25,000.00);
Rehab, jointly and severally, pre-judgment and post-judgment Interest as provided by law;
Rehab, jointly and severally, her attorneys' fees as provided by law;
5. That all costs of this action be taxed to Sava Senior Care — Parents and Sava — Haywood Nursing
& Rehab as provided by law; and
6. That she have and recover such other and further relief, at law or in equity, as the Court deems
just and proper.
This the 1 2.- day of February, 2019.
. CLONINGER, BARBOUR, SEARSON HYDE & BROWN, P.A.

JONES & CASH, PLLC
BY: W. Bradford Searson

NC State Bar No. 18749 NC State Bar No. 39774
14/ .9tAti— )5V110:9N

BY: W. Scott JonesL BY: David C. Brown
NC State Bar No. 18262 NC State Bar No. 39094
21 Battery Park Avenue, Suite 201 168 Tate Street
Asheville, NC 28801 Waynesville, NC 28786
Phone: 828.252.5555 Phone: 828.452.2556
Fax: 828.232.9158 Fax: 828.452.2590
Email: brad@lawyersasheville.com Email: samuel@hydebrownlaw.com
Email: scottPlawyersasheville.com Email: david@hvdebrownlaw.com
ATTORNEYS FOR PLAINTIFF ATTORNEYS FOR PLAINTIFF

ANDREA LORRAINE MACKEMULL ANDREA LORRAINE MACKEMULL
Complaint - Mackernuil v. Sava Senior Care —ALL

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Mackemull Vs Brian Center PDF

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Mackemull Vs Brian Center PDF

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STATE OF NORTH CAROLINA

Complaint - Mackemull v. Sava Senior Care — AU.

Case 1:19-cv-00071-MR-WCM EXHIBIT

6. Defendant SavaSeniorCare Administrative Services, LLC, is, on information and belief, a

7. Defendants SavaSeniorCare, LLC, SavaSeniorCare Consulting, LLC, and SavaSeniorCare

(a) Brian Center Southpoint (Durham, NC)

Complaint - Mackemull v. Sava Senior Care — ALL

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Complaint - Mackemull v. Sava Senior Care —ALL

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II. JURISDICTION AND VENUE

Complaint - Mackemull v. Sava Senior Care — ALL

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21. Venue is proper in Haywood County, North Carolina.

III. COMPLIANCE WITH NC RULE 90)

IV. SUMMARY OF FACTS

A. Outline of The Case:

Complaint - Mackemuli V. Sava Senior Care —ALL

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B. Basic Responsibilities of Sava Senior Care —ALL:

c. A timely and appropriate comprehensive care plan specific to Andrea which

C. The Decision of Sava Senior Care ALL to Understaff The Facility:

Complaint - Mackemull v. Sava Senior Care — ALL

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Complaint - iviackemuil V. Sava Senior Care — ALL

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E. Notice, Motive, and Routine Practices of SavaSeniorCare, LLC, SavaSeniorCare Consulting,

41. The Interference, domination, intervention, and direct participation by Defendants

(1) Compliance or non-compliance with the census and occupancy rate

(2) Compliance or non-compliance with marketing and sales plans;

Complaint - Mackemull v. Sava Senior Care — ALL

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(4) Compliance or non-compliance with staffing levels and labor costs

F. The Employment of Lids Gomez by Sava Senior Care —ALL:

Complaint - Mackemuil v. Sava Senior Care— ALL

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Complaint - Mackemull v. Sava Senior Care — ALL

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I. Sexual Assault of Andrea Mackemull at the Haywood SavaSenlarCare-Brian Center Facility:

V. LEGAL BASIS FOR THE LIABILITY OF

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VI. LEGAL BASIS FOR DEFENDANTS' LEGAL LIABILITY

Complaint - Madcemull v. Sava Senior Care— ALL

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(a) Concealing, attempting to conceal, minimizing, or otherwise covering up the acts

(b) Ignoring, removing, or secreting evidence;

(d) Reporting incomplete, false, or misleading information to appropriate authorities

(e) Falling to report to law enforcement and/or by delaying reports to law

(f) Reporting incomplete, false, or misleading information to law enforcement;

VII. CLAIM FOR RELIEF

Complaint- Mackemull v. Sava Senior Care—ALL

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(m) Continuing failure to establish and implement appropriate corporate budgeting