FILED

6/10/2020 2:10 PM W JD CIT PPS

Mary Angie Garcia
Bexar County District Clerk
2020CI10559
Accepted By: Martha Medellin

CAUSE NO. __________

ANNIE MARIE GIBBS, § IN THE DISTRICT COURT
on Behalf of the Estate of §
JOSE VELASQUEZ, Deceased §
§
VS. § 408th
______ JUDICIAL DISTRICT
§
SOUTHEAST SNF LLC d/b/a §
SOUTHEAST NURSING & §
REHABILITATION CENTER § BEXAR COUNTY, TEXAS

PLAINTIFF’S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES ANNIE MARIE GIBBS, JOSE VELASQUEZ, Deceased, Plaintiff

in the above-styled and numbered cause (hereinafter called “Plaintiff”), complaining of

SOUTHEAST SNF LLC d/b/a SOUTHEAST NURSING & REHABILITATION

CENTER (hereinafter called “Defendant”), and for cause of action, would respectfully

show unto the Court as follows:

I.
DISCOVERY PLAN

1.1 Pursuant to Rule 190.1 of the TEXAS RULES OF CIVIL PROCEDURE, Plaintiff

intends to conduct discovery in this case pursuant to a Level 3 Discovery Control Plan.

Plaintiff requests that the Court enter a Level 3 Scheduling Order pursuant to TRCP 190.4.

II.
PARTIES

2.1 Plaintiff, ANNIE MARIE GIBBS, Individually and on Behalf of the Estate

of JOSE VELASQUEZ, Deceased, is a resident of Bexar County, Texas. ANNIE MARIE

GIBBS is the daughter of JOSE VELASQUEZ, and JOE EDWARD VELASQUEZ is the

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son of JOSE VELASQUEZ. No estate administration has been opened and no probate is

necessary.

2.1 Defendant SOUTHEAST SNF LLC d/b/a SOUTHEAST NURSING &

REHABILITATION CENTER is a Domestic Limited Liability Company and can be

served by and through its registered agent Interstate Agent Services, LLC, at 11700

Preston Road, Ste. 660-238, Dallas, Texas 75230.

III.
JURISDICTION

3.1 The Court has jurisdiction in this case based on appropriate subject matter

(medical malpractice) and based upon sufficient amount in controversy.

IV.
NOTICE

4.1 Plaintiff would show that, in accordance with TEXAS CIVIL PRACTICE AND

REMEDIES CODE §74.051 and §74.052, the Defendant herein has been placed on notice of

Plaintiff’s claims.

V.
VENUE

5.1 All or a substantial part of the events made the basis of this lawsuit occurred

in Bexar County, Texas. Thus, pursuant to the CIVIL PRACTICE AND REMEDIES CODE

§ 15.002(a)(1), venue is proper in Bexar County, Texas.

VI.
FACTUAL BACKGROUND AND NEGLIGENCE

6.1 Plaintiff would show that at all times relevant hereto Defendant

SOUTHEAST SNF LLC d/b/a SOUTHEAST NURSING & REHABILITATION

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CENTER was a health care provider which held, and does hold itself out to the general

public, including the Plaintiff herein, as a health care provider which is competent and

qualified to provide health care services, with all the necessary care and precaution

expected of health care providers. Defendant SOUTHEAST SNF LLC d/b/a

SOUTHEAST NURSING & REHABILITATION CENTER is required to comply with

both federal and state laws and regulations regarding nursing homes.

6.2 In late 2019, Defendant SOUTHEAST SNF LLC d/b/a SOUTHEAST

NURSING & REHABILITATION CENTER accepted Mr. Velasquez as a long-term

resident. Mr. Velazquez was at risk for infections due to his age, comorbidities, and

dependence on nursing staff for his activities of daily living. On March 15, 2020, Texas

Health and Human Services (HHS) announced Expanded Guidance to Nursing Facilities to

Prevent Spread of COVID-19 in Texas in light of the global pandemic reaching Texas. These

guidelines required that “nursing facilities must implement screening protocols for

anyone entering their facility” and “must screen staff for COVID-19 using guidelines

issued by the Centers for Medicare and Medicaid Services.” Id. HHS also stated that

“[l]ong-term care facilities in Texas are required to maintain strong infection prevention

and control programs to prevent the spread of communicable diseases” and “check for

fever of staff… and provide personal protective equipment to residents or staff.” Id.

6.3 In March 2020, COVID-19 swept through SOUTHEAST SNF LLC d/b/a

SOUTHEAST NURSING & REHABILITATION CENTER and by their own

employee’s admissions, the facility was unprepared for it. On April 1, 2020, San Antonio

city officials confirmed a COVID-19 outbreak at Defendant SOUTHEAST SNF LLC d/b/a

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SOUTHEAST NURSING & REHABILITATION CENTER. As of May 15, 2020, at least

74 residents and 28 staff members have been infected by the virus, and 18 residents and

1 staff member have died due to COVID-19 infection. Defendant was required by the

Texas Health and Human Services Commission (HHSC), Occupational Safety and Health

Administration (OSHA), Centers for Medicare & Medicaid Services (CMS), and Centers

for Disease Control (CDC) to provide adequate protections for their staff and residents

and have appropriate plans in place to contain the spreading of the disease but they did

not.

6.4 On October 25, 2019, approximately five months prior to the COVID-19

outbreak at Defendant’s facility, Defendant SOUTHEAST SNF LLC d/b/a SOUTHEAST

NURSING & REHABILITATION CENTER was investigated by Texas Health and

Human Services. HHS cited Defendant for deficient care, including failure to “provide

and implement an infection prevention and control program.” HHS specifically found

that Defendant’s employees were not washing their hands and were in violation of the

Facility policy titled “Hand Hygiene.” which required that staff involved in direct

resident contact must “perform proper hand hygiene procedures to prevent the spread

of infection to other personnel, residents, and visitors.”

6.5 Despite the aforementioned state disease control requirements and other

regulations governing nursing homes in Texas regarding the prevention of spreading

infections, Plaintiff would show that supervisors were notified that there were blatant

violations of these requirements and regulations by staff members, including the failure

of the staff to protect residents from infection with COVID-19 by washing hands, using

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PPE, and isolation/quarantine of patients. On or about March 26, 2020, Mr. Velasquez

was diagnosed with COVID-19 while a resident at the facility. Mr. Velasquez struggled

with COVID-19 for weeks, a particularly uncomfortable ailment. During that time

Defendant’s staff continually reassured the family he was doing fine and showed no

symptoms of the disease—until about one hour before his death from the illness on April

17, 2020. Mr. Velasquez was never sent to a hospital for treatment and he died, without

his loved ones’ support, at Defendant’s facility. His death certificate attributes the cause

of death to COVID-19.

6.6 Plaintiff would show that Defendant SOUTHEAST SNF LLC d/b/a

SOUTHEAST NURSING & REHABILITATION CENTER was systematically

understaffed in March 2020 in an effort to maximize profits. This understaffing was

extremely dangerous to both the residents and staff of the facility. The Texas

Administrative Code states that a nursing home must have sufficient staff to provide

nursing and related services to attain or maintain the highest practicable physical, mental,

and psychosocial well-being of each resident. Plaintiff believes that Defendant was

understaffed by approximately 20% from the CMS expected staffing levels, based on

staffing data available from 2017 and 2018.

6.7 Plaintiff would also show that as a direct and proximate result of the acts

and/or omissions committed during Defendant SOUTHEAST SNF LLC d/b/a

SOUTHEAST NURSING & REHABILITATION CENTER’s substandard, inadequate

and negligent medical and nursing care and treatment, JOSE VELASQUEZ suffered

injury and death.

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 VII.
NEGLIGENCE

7.1 Plaintiff believes and alleges that Defendant SOUTHEAST SNF LLC d/b/a

SOUTHEAST NURSING & REHABILITATION CENTER, acting through their agents,

agents by estoppel, ostensible agents, nurses, servants, representatives, and/or

employees, committed certain acts and/or omissions which constituted negligence and

that such negligent acts and/or omissions include, but are not limited to the following:

1. Failing to properly, adequately and/or timely evaluate JOSE VELASQUEZ’s

medical condition;

2. Failing to properly care plan JOSE VELASQUEZ’s medical condition;

3. Failing to administer proper and/or adequate nursing care and treatment to

JOSE VELASQUEZ;

4. Failing to provide JOSE VELASQUEZ with a safe and healthy environment;

5. Failing to implement and follow proper protocols and procedures to prevent

the spread of infection to JOSE VELASQUEZ;

6. Failing to provide the necessary care and treatment to JOSE VELASQUEZ to

prevent infection;

7. Failing to properly monitor and treat JOSE VELASQUEZ once he contracted

COVID-19;

8. Failing to report and treat changes in condition of JOSE VELASQUEZ and

advocate for his needs;

9. Failing to timely transfer JOSE VELASQUEZ to a higher level of care;

10. Failing to have adequate and sufficient staff;

11. Failing to create, follow and implement proper policies and procedures to
prevent the spread of infection of COVID-19;

12. Failing to follow disease-control regulations and guidelines;

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 13. Failing to supervise its staff’s compliance with COVID-19 regulations and
guidelines; and

14. Failing to supply its staff with the appropriate personal protective equipment
(PPE) and instructions on proper use of PPE.

7.2 Further, Defendant SOUTHEAST SNF LLC d/b/a SOUTHEAST

NURSING & REHABILITATION CENTER was negligent in management, budgeting,

and in hiring practices, retention practices, staffing practices, orientation and training

practices, and in supervision of employees, employing incompetent staff without regard

to the safety of JOSE VELASQUEZ as well as in ministerial failures. Plaintiffs would

show that each and all of the above and foregoing acts and/or omissions on the part of

the Defendants herein constitute negligence, and each and all were a direct and

proximate cause of Mr. Velasquez’s exposure and contraction of COVID-19 and his death.

VIII.
GROSS NEGLIGENCE

8.1 Plaintiff would show that Defendant SOUTHEAST SNF LLC d/b/a

SOUTHEAST NURSING & REHABILITATION CENTER committed gross negligence.

Pursuant to Tex. Civ. Prac. & Rem. Code § 41.003, Plaintiff is entitled to exemplary

damages because Defendant exposed Mr. Velasquez to an extreme degree of risk in light

of the near certainty of his exposure to COVID-19 as a result of their malfeasance and the

known catastrophic potential harm to Mr. Velasquez if he were to be exposed to COVID-

19. Defendant was aware of these potential risks and continued its misconduct with a

willful disregard for the safety of Mr. Velasquez and the other residents. Defendant

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breached their duty to provide a safe residence for Mr. Velasquez by failing to implement

safety measures regarding COVID-19 minimization to the staff and residents, and failing

to provide adequate medical care for Mr. Velasquez upon his infection, and all other acts

of negligence aforementioned.

8.2 These failures constitute gross negligence. Defendant was aware of its

recent infractions discovered by the Department of Health and Human Services for

failure to provide an adequate disease control plan and did not remedy the infractions.

Additionally, the Defendant had weeks of notice and time to prepare as COVID-19

spread across the country, knowing of the inevitability of the disease’s arrival in Texas.

Also, Defendant was aware of HHS Guidance rules, and the particular vulnerability of

staff and residents should a COVID-19 outbreak occur at Defendant’s facility. Defendant

was also aware of the significant and systematic understaffing at the facility and lack of

sufficient PPE for all staff. Despite this knowledge, Defendant proceeded with conscious

indifference for the violations in the face of a known danger. These acts, when viewed

objectively from the Defendant’s standpoint, involve an extreme degree of risk

considering the probability and magnitude of harm.

IX.
DAMAGES

9.1 As a proximate cause of the occurrence made the basis of this lawsuit,

Plaintiffs have sustained substantial damages to which they are entitled under Sections

71.002 and 71.021 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE.

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 9.2 Plaintiff ANNIE MARIE GIBBS on Behalf of the Estate of JOSE

VELASQUEZ, sues for the mental anguish, physical pain, and suffering Mr. Velasquez

sustained before he died as a direct result of the Defendant’s negligent acts and omission.

His Estate is entitled to recover for his statutory and common law damages, including

but not limited to, mental anguish, pain and suffering, as well as medical expenses,

funeral bills and expenses, pursuant to the Texas Survival Statute, as codified in Chapter

71 of the TEXAS CIVIL PRACTICE & REMEDIES CODE.

9.3 As a result of Defendant’s negligent acts and omissions causing the death

of JOSE VELASQUEZ, ANNIE MARIE GIBBS and JOE EDWARD VELASQUEZ have

suffered in the past, and will continue to suffer in the future, damages including but not

limited to, mental anguish, grief, bereavement, loss of society and loss of companionship.

Accordingly, Plaintiff seeks to recover for past and future damages pursuant to the Texas

Wrongful Death Act, as codified in Chapter 71 of the TEXAS CIVIL PRACTICE & REMEDIES

CODE.

9.4 Plaintiffs are entitled to exemplary damages from Defendant under

Chapter 41 of the TEXAS CIVIL PRACTICE & REMEDIES CODE, because Defendant’s acts and

omissions, when viewed objectively from the standpoint of Defendant at the time of the

occurrence, involved an extreme degree of risk and Defendant willfully declined

opportunities to correct such malfeasance. Defendant’s conduct amounts to gross

negligence or malice, as defined by law, so as to give rise to an award of exemplary

damages, for which Plaintiff now pleads against SOUTHEAST SNF LLC d/b/a

SOUTHEAST NURSING & REHABILITATION CENTER.

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 X.
JURY DEMAND

10.1 Plaintiff hereby requests a trial by jury.

WHEREFORE, PREMISE CONSIDERED, Plaintiff prays the Defendant be duly

cited to appear and answer herein, and that upon final trial of this cause, Plaintiff has and

recover a judgment of and from the Defendant herein, in an amount within the

jurisdictional limits of this court, for both pre-judgment and post-judgment interest as

allowed by law, plus costs of court, and for such other and further relief, both general

and special, at law or in equity, to which the Plaintiff may be justly entitled.

Respectfully submitted,

JANICEK LAW FIRM, PC

1100 NE Loop 410, Suite 600
San Antonio, Texas 78209
210.366.4949 Telephone
210.979.6804 Facsimile
beth@janiceklaw.com
jessica@janiceklaw.com

By:_____Beth S. Janicek________
BETH S. JANICEK
State Bar No. 00788495
JESSICA RODRIGUEZ
State Bar No. 24096698

Attorneys for Plaintiffs

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