Lawsuit Filed vs. Pacifica Assisted Living

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Lawsuits Filed Against Pacifica Senior Living

Mosseri vs. Pacifica

The publicly filed, Second Amended Complaint alleges the following:

IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA

CASE NO.: 50-2017-CA-012889-XXXX-MB

GINA MOSSERI, as Personal Representative of the Estate of DENISE MOSSERI,

Plaintiff,

vs.

EXTENDED CARE PORTFOLIO FLORIDA, LLC d/b/a PACIFICA SENIOR LIVING OF PALM BEACH, EXTENDED CARE PORTFOLIO FLORIDA TENANT, LLC d/b/a PACIFICA SENIOR LIVING OF PALM BEACH, and PACIFICA SENIOR LIVING LLC,

Defendant,
_____________________________________/

SECOND AMENDED COMPLAINT

COMES NOW, Plaintiff, GINA MOSSERI, as Personal Representative of the Estate of DENISE MOSSERI, sues Defendants, EXTENDED CARE PORTFOLIO FLORIDA, LLC d/b/a PACIFICA SENIOR LIVING OF PALM BEACH (hereinafter “EXTENDED CARE”), EXTENDED CARE PORTFOLIO TENANT, LLC (hereinafter “EXTENDED TENENT”), and PACIFICA SENIOR LIVING LLC and further alleges:

GENERAL FACTS

1. At all material times, the Plaintiff, GINA MOSSERI is appointed as the Personal Representative of the Estate of DENISE MOSSERI. At all material times, GINA MOSSERI is the daughter of DENISE MOSSERI.
2. At all material times, DENISE MOSSERI sought assisted living care at Pacifica Senior Living of Palm Beach at 4760 Jog Road (hereafter “the assisted living facility” or “the facility”) in Palm Beach County, Florida. Prior to her admission into Pacifica, DENISE MOSSERI resided at the Brookdale of Boynton Beach assisted living facility.
3. At all material times, Defendant, EXTENDED CARE was a Corporation authorized to do business in the State of Florida and to operate an assisted living facility under the name of PACIFICA SENIOR LIVING OF PALM BEACH in Greenacres, Florida, Palm Beach County, and is subject to the provisions of Chapter 429.
4. At all material times, Defendant, EXTENDED TENANT, was a Corporation authorized to do business in the State of Florida and to operate an assisted living facility under the name of PACIFICA SENIOR LIVING OF PALM BEACH in Greenacres, Florida, Palm Beach County, and is subject to the provisions of Chapter 429.
5. At all material times, Defendant, PACIFICA SENIOR LIVING LLC was a for profit Corporation that was in the business of owning, managing and controlling a chain of Florida assisted living facilities, including the subject assisted living facility in Palm Beach County.
6. Venue is appropriate in this action as the events giving rise to the cause of action occurred in Palm Beach County, Florida, the subject facility is located in Palm Beach County, Florida, one of more of the Defendants operate and do business in Palm Beach County, Florida and the Plaintiff resides in Palm Beach County, Florida.
7. The amount in controversy exceeds the sum of Fifteen Thousand ($15,000.00) Dollars exclusive of costs and fees and is within the jurisdiction of this court.
8. The Defendants have failed to comply with the presuit requirements pursuant to Chapter 429. A valid Notice of Intent was issued and the Defendants failed to respond to same.
9. All conditions precedent to bring this action have been met or waived. The undersigned certifies a good faith basis for bringing this action.
10. This Complaint is being filed within the applicable statute of limitations period.

FACTS GIVING RISE TO THIS ACTION

11. On or about February 10, 2017, DENISE MOSSERI was admitted to Memory Care Unit at PACIFICA SENIOR LIVING OF PALM BEACH with a prior medical history significant for dementia, history of falls, and unsteady gait.
12. Upon admission, DENISE MOSSERI required extensive supervision and/or assistance with activities of daily living, including but not limited to toileting, ambulation, bathing, dressing, eating and medication management.
13. DENISE MOSSERI, now deceased, was known to be a high risk for falls and elopement, and required special fall precautions and supervision for her safety.
14. On or about February 12, 2017, DENISE MOSSERI suffered a preventable fall at PACIFICA SENIOR LIVING OF PALM BEACH, resulting in a serious hip and leg injury.

WRONGFUL DEATH DAMAGES

15. DENISE MOSSERI wrongfully died on March 16, 2017, as a direct and proximate result of the Defendants’ negligence, more fully described above and below.
16. As a direct and proximate result of the rights violations outlined above and below, the Estate of DENISE MOSSERI and the survivors of the Estate, including but not limited to GINA MOSSERI (daughter) and Lucien Mosseri (son), are entitled to all damages recoverable for the wrongful death caused by the Defendants, as alleged above and below, including but not limited to:
a. Damages for DENISE MOSSERI’s bodily injury, pain and suffering, disability, disfigurement, mental anguish, loss of the capacity for the enjoyment of life, expensive hospitalization, the value of reasonable assisted living facility services and care provided to DENISE MOSSERI, medical and nursing care and treatment and aggravation of previous existing conditions, from the time of his injury until the time of her death;
b. Medical bills and expenses;
c. Funeral expenses;
d. Loss of Net Accumulations;
e. GINA MOSSERI and the decedent’s survivors, the children of the deceased, have suffered mental pain and suffering which will continue for the rest of their life, and they have suffered the loss of services and support of their mother, DENISE MOSSERI, and have incurred medical and funeral expenses as a result of DENISE MOSSERI’s death, and have suffered the loss of DENISE MOSSERI’s love and companionship.

SURVIVAL DAMAGES

17. THE ESTATE OF MOSSERI claims all damages recoverable under a survival action, including but not limited to the non-economic and economic damages of the decedent for bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, and aggravation of a previously existing condition, from time of injury of DENISE MOSSERI to the time of her death. These survival damages occurred as a direct and proximate result of the negligence of the Defendants’ outlined above and below.

COUNT I
CLAIM AGAINST EXTENDED CARE RESULTING IN DEATH

18. Plaintiffs re-allege paragraphs 1 through 16 and further allege:
19. At all material times, EXTENDED CARE was the licensee of the assisted living facility.
20. At all material times EXTENDED CARE owed a duty to DENISE MOSSERI to provide reasonable assisted living facility care, pursuant to Fla. Stat. Sec. 429.
21. Defendant, EXTENDED CARE, as the licensee of the facility was responsible and liable for the nurses and/or staff that cared for DENISE MOSSERI because they employed the nurses and/or staff at the facility.
22. Additionally, or in the alternative, Defendant, EXTENDED CARE as the licensee of the facility was responsible and liable for the nurses and/or staff at the facility that cared for DENISE MOSSERI because they had actual control of their actions, and the right to control their actions, and thus those persons were agents of EXTENDED CARE.
23. The negligent conduct of the nurses and/or staff of the facility, as described below, was performed in the course and scope of the employment and/or agency with EXTENDED CARE.
24. Accordingly, EXTENDED CARE is responsible for the negligent conduct of the nurses and/or staff.
25. EXTENDED CARE, through its employees, agents and apparent agents, including but not limited to its R.N.s, L.P.N.s, C.N.A.s and other personnel violated DENISE MOSSERI’s rights protected under Chapter 429 for Assisted living facility residents by providing negligent and substandard assisted living facility care as follows:
a. Failure to properly assess fall risk;
b. Failure to implement necessary ALF fall precautions;
c. Failure to follow through on necessary fall precautions;
d. Failure to prevent falls of DENISE MOSSERI while she resided in the facility;
e. Failure to properly implement fall precautions that were reasonable and necessary under the circumstances.
f. Failure to prevent DENISE MOSSERI’s falls;
g. Failure to notify the family of DENISE MOSSERI of falls and injuries;
h. Failure to timely provide medical attention to DENISE MOSSERI after she fell;
i. Failure to report the falls of DENISE MOSSERI;
j. Failure to communicate to physicians that DENISE MOSSERI was in pain;
k. Failure to send the resident to a higher care facility;
l. Failing to provide reasonable assisted living facility care; and
m. Failing to act reasonably under all the circumstances.
26. As a proximate result of the Defendant’s deprivation of and infringement upon DENISE MOSSERI’s Chapter 429 rights as alleged in this Complaint, which includes the above alleged negligence, DENISE MOSSERI wrongfully died.
WHEREFORE GINA MOSSERI, as Personal Representative of the Estate of DENISE MOSSERI claims all recoverable damages against Defendant, EXTENDED CARE, and demands trial by jury.

COUNT II
CLAIM AGAINST EXTENDED TENANT RESULTING IN DEATH

27. Plaintiffs re-allege paragraphs 1 through 16 and further allege:
28. At all material times, EXTENDED TENANT directly operated the subject assisted living facility.
29. At all material times, EXTENDED TENANT had actual control and the right to control the employees, agents and apparent agents that cared for DENISE MOSSERI.
30. At all material times EXTENDED TENANT owed a duty to DENISE MOSSERI to provide reasonable assisted living facility care, pursuant to Fla. Stat. Sec. 429.
31. Defendant, EXTENDED TENANT, was responsible and liable for the nurses and/or staff that cared for DENISE MOSSERI because they employed the nurses and/or staff at the facility.
32. Additionally, or in the alternative, Defendant, EXTENDED TENANT was responsible and liable for the nurses and/or staff at the facility that cared for DENISE MOSSERI because they had actual control of their actions, and the right to control their actions, and thus those persons were agents of EXTENDED TENANT.
33. The negligent conduct of the nurses and/or staff of the facility, as described below, was performed in the course and scope of the employment and/or agency with EXTENDED TENANT.
34. Accordingly, EXTENDED TENANT is responsible for the negligent conduct of the nurses and/or staff.
35. EXTENDED TENANT, through its employees, agents and apparent agents, including but not limited to its R.N.s, L.P.N.s, C.N.A.s and other personnel violated DENISE MOSSERI’s rights protected under Chapter 429 for Assisted living facility residents by providing negligent and substandard assisted living facility care as follows:
a. Failure to properly assess fall risk;
b. Failure to implement necessary fall precautions;
c. Failure to follow through on necessary fall precautions;
d. Failure to prevent falls of DENISE MOSSERI while she resided in the facility;
e. Failure to properly implement fall precautions that were reasonable and necessary under the circumstances.
f. Failure to prevent DENISE MOSSERI’s falls;
g. Failure to notify the family of DENISE MOSSERI of falls and injuries;
h. Failure to timely provide medical attention to DENISE MOSSERI after she fell;
i. Failure to report the falls of DENISE MOSSERI;
j. Failure to communicate to physicians that DENISE MOSSERI was in pain;
k. Failure to send the resident to a higher care facility;
l. Failing to provide reasonable assisted living facility care; and
m. Failing to act reasonably under all the circumstances.
36. As a proximate result of the Defendant’s deprivation of and infringement upon DENISE MOSSERI’s Chapter 429 rights as alleged in this Complaint, which includes the above alleged negligence, DENISE MOSSERI wrongfully died.
WHEREFORE GINA MOSSERI, as Personal Representative of the Estate of DENISE MOSSERI claims all recoverable damages against Defendant, EXTENDED TENANT, and demands trial by jury.

COUNT III
CLAIM AGAINST PACIFICA SENIOR LIVING LLC RESULTING IN DEATH

37. Plaintiff re-alleges paragraphs 1 through 16 and further alleges:
38. At all material times, PACIFICA SENIOR LIVING LLC was the management company of the assisted living facility.
39. At all material times, PACIFICA SENIOR LIVING LLC was the owner/operator of the assisted living facility.
40. At all material times, the assisted living facility owned and/or operated and/or managed by PACIFICA SENIOR LIVING LLC, was licensed pursuant to Fla. Stat. Sec. 429, and held itself to the public, including DENISE MOSSERI as an assisted living facility that owed a duty to provide reasonable assisted living facility care services within the applicable standards of care, including protecting the rights guaranteed under Fla. Stat. Sec. 429, and providing care that met the standard of care for assisted living facilities.
41. Accordingly, at all material times, PACIFICA SENIOR LIVING LLC owed a duty to DENISE MOSSERI to provide reasonable assisted living facility care, and to not violate her rights as resident of the assisted living facility, guaranteed by Fla. Stat. Sec. 429.
42. Defendant, PACIFICA SENIOR LIVING LLC as the manager of the facility was responsible and liable for the nurses and/or staff that cared for DENISE MOSSERI because they employed the nurses and/or staff at the facility.
43. Additionally, or in the alternative, Defendant, PACIFICA SENIOR LIVING LLC as the manager of the facility was responsible and liable for the nurses and/or staff at the facility that cared for DENISE MOSSERI because they had actual control of their actions, and the right to control their actions, and thus those persons were agents of PACIFICA SENIOR LIVING LLC.
44. The negligent conduct of the nurses and/or staff of the facility, as described below, was performed in the course and scope of the employment and/or agency with PACIFICA SENIOR LIVING LLC.
45. Accordingly, PACIFICA SENIOR LIVING LLC is responsible for the negligent conduct of the nurses and/or staff.
46. PACIFICA SENIOR LIVING LLC, by and through its employees, agents and apparent agents at the assisted living facility, as described above, were negligent and violated DENISE MOSSERI’s Chapter 429 rights as follows:
a. Failure to properly assess fall risk;
b. Failure to implement necessary fall precautions;
c. Failure to follow through on necessary fall precautions;
d. Failure to prevent falls of DENISE MOSSERI while she resided in the facility;
e. Failure to properly implement fall precautions that were reasonable and necessary under the circumstances.
f. Failure to prevent DENISE MOSSERI’s falls;
g. Failure to notify the family of DENISE MOSSERI of falls and injuries;
h. Failure to timely provide medical attention to DENISE MOSSERI after she fell;
i. Failure to report the falls of DENISE MOSSERI;
j. Failure to communicate to physicians that DENISE MOSSERI was in pain;
k. Failure to send the resident to a higher care facility;
l. Failing to provide reasonable assisted living facility care; and
m. Failing to act reasonably under all the circumstances.
47. As a proximate result of the Defendant’s deprivation of and infringement upon DENISE MOSSERI’s Chapter 429 rights as alleged in this Complaint, which includes the above alleged negligence, DENISE MOSSERI wrongfully died.
WHEREFORE GINA MOSSERI, as Personal Representative of the Estate of DENISE MOSSERI, claims all recoverable damages against Defendant, PACIFICA SENIOR LIVING LLC, and demands trial by jury.

COUNT IV
SURVIVAL ACTION AGAINST EXTENDED CARE

48. Plaintiffs re-allege paragraphs 1 through 14, 17 and further allege:
49. This survival action is made in the alternative to the above wrongful death claim.
50. EXTENDED CARE, through its employees, agents and apparent agents, including but not limited to its R.N.s, L.P.N.s, C.N.A.s and other personnel violated DENISE MOSSERI’s rights protected under Chapter 429 for Assisted living facility residents by providing negligent and substandard assisted living facility care as follows:
a. Failure to properly assess fall risk;
b. Failure to implement necessary fall precautions;
c. Failure to follow through on necessary fall precautions;
d. Failure to prevent falls of DENISE MOSSERI while she resided in the facility;
e. Failure to properly implement fall precautions that were reasonable and necessary under the circumstances.
f. Failure to prevent DENISE MOSSERI’s falls;
g. Failure to notify the family of DENISE MOSSERI of falls and injuries;
h. Failure to timely provide medical attention to DENISE MOSSERI after she fell;
i. Failure to report the falls of DENISE MOSSERI;
j. Failure to communicate to physicians that DENISE MOSSERI was in pain;
k. Failure to send the resident to a higher care facility;
l. Failing to provide reasonable assisted living facility care; and
m. Failing to act reasonably under all the circumstances.
51. As a direct and proximate result of the above negligence, DENISE MOSSERI fell and seriously injured herself.
52. If this fall did not cause the death of DENISE MOSSERI, the Plaintiff alleges all damages recoverable under a survival action, including but not limited to the non-economic damages of decedent for bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, and aggravation of a previously existing condition, from time of injury of DENISE MOSSERI to the time of her death.
WHEREFORE GINA MOSSERI, as Personal Representative of the Estate of DENISE MOSSERI, claims all recoverable damages against Defendant, EXTENDED CARE, and demands trial by jury.

COUNT V
SURVIVAL ACTION AGAINST EXTENDED TENANT

53. Plaintiff re-alleges paragraphs 1 through 14, 17 and further allege:
54. This survival action is made in the alternative to the above wrongful death claim.
55. EXTENDED TENANT, through its employees, agents and apparent agents, including but not limited to its R.N.s, L.P.N.s, C.N.A.s and other personnel violated DENISE MOSSERI’s rights protected under Chapter 429 for Assisted living facility residents by providing negligent and substandard assisted living facility care as follows:
a. Failure to properly assess fall risk;
b. Failure to implement necessary fall precautions;
c. Failure to follow through on necessary fall precautions;
d. Failure to prevent falls of DENISE MOSSERI while she resided in the facility;
e. Failure to properly implement fall precautions that were reasonable and necessary under the circumstances.
f. Failure to prevent DENISE MOSSERI’s falls;
g. Failure to notify the family of DENISE MOSSERI of falls and injuries;
h. Failure to timely provide medical attention to DENISE MOSSERI after she fell;
i. Failure to report the falls of DENISE MOSSERI;
j. Failure to communicate to physicians that DENISE MOSSERI was in pain;
k. Failure to send the resident to a higher care facility;
l. Failing to provide reasonable assisted living facility care; and
m. Failing to act reasonably under all the circumstances.
56. As a direct and proximate result of the above negligence, DENISE MOSSERI fell and seriously injured herself.
57. If this fall did not cause the death of DENISE MOSSERI, the Plaintiff alleges all damages recoverable under a survival action, including but not limited to the non-economic damages of decedent for bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, and aggravation of a previously existing condition, from time of injury of DENISE MOSSERI to the time of her death.
WHEREFORE GINA MOSSERI, as Personal Representative of the Estate of DENISE MOSSERI, claims all recoverable damages against Defendant, EXTENDED TENANT, and demands trial by jury.

COUNT VI
SURVIVAL ACTION AGAINST PACIFICA SENIOR LIVING LLC

58. Plaintiffs re-allege paragraphs 1 through 14, 17 and further allege:
59. This survival action is made in the alternative to the above wrongful death claim.
60. PACIFICA SENIOR LIVING LLC, through its employees, agents and apparent agents, including but not limited to its R.N.s, L.P.N.s, C.N.A.s and other personnel violated DENISE MOSSERI’s rights protected under Chapter 429 for Assisted living facility residents by providing negligent and substandard assisted living facility care as follows:
a. Failure to properly assess fall risk;
b. Failure to implement necessary fall precautions;
c. Failure to follow through on necessary fall precautions;
d. Failure to prevent falls of DENISE MOSSERI while she resided in the facility;
e. Failure to properly implement fall precautions that were reasonable and necessary under the circumstances.
f. Failure to prevent DENISE MOSSERI’s falls;
g. Failure to notify the family of DENISE MOSSERI of falls and injuries;
h. Failure to timely provide medical attention to DENISE MOSSERI after she fell;
i. Failure to report the falls of DENISE MOSSERI;
j. Failure to communicate to physicians that DENISE MOSSERI was in pain;
k. Failure to send the resident to a higher care facility;
l. Failing to provide reasonable assisted living facility care; and
m. Failing to act reasonably under all the circumstances.
61. As a direct and proximate result of the above negligence, DENISE MOSSERI fell and seriously injured herself.
62. If this fall did not cause the death of DENISE MOSSERI, the Plaintiff alleges all damages recoverable under a survival action, including but not limited to the non-economic damages of decedent for bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, and aggravation of a previously existing condition, from time of injury of DENISE MOSSERI to the time of her death.
WHEREFORE GINA MOSSERI, as Personal Representative of the Estate of DENISE MOSSERI, claims all recoverable damages against Defendant, PACIFICA SENIOR LIVING LLC, and demands trial by jury.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to all Counsel on the attached list and filed as a matter of course, this 3rd day of January, 2018.
DATED this 11th day of January, 2018.
/s/ William J. Sarubbi, II, Esq.
WILLIAM J. SARUBBI, II, ESQ.
Florida Bar No.: 113401
Senior Justice Law Firm
1903 S. Congress Ave., Suite 380
Boynton Beach, Florida 33426
Phone: (561) 717-0817
Fax: (561) 708-6781
Email: [email protected]
Attorney for Plaintiff