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Miller Weber Kory LLP

Attorneys at Law

506 EAST PORTLAND STREET

PHOENIX, ARIZONA 85004

Gabriel V. Kory #022536

gabe@mwkfirm.com

Teri M. Rowe #023957

teri@mwkfirm.com

MILLER WEBER KORY LLP

506 East Portland Street

Phoenix, Arizona 85004

(602) 648-4045 (602) 374-8101 (fax)

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Plaintiffs, Richard Surprise, on behalf of the Estate of Sandra Surprise, with 

respect to violations of abuse and neglect under A.R.S. § 46-455; and individually, as 

In the Matter of the Estate of SANDRA 

SURPRISE,

Deceased. 

THE ESTATE OF SANDRA SURPRISE by 

and through RICHARD SURPRISE,

Personal Representative; individually, and 

on behalf of SANDRA SURPRISE’S 

statutory beneficiaries, Michael Surprise, 

Daniel Surprise and Kristen DiPasqualucci;

 Plaintiffs,

vs.

FSQ, INC., a foreign corporation, f/k/a FIVE 

STAR QUALITY CARE, INC., d/b/a THE 

FORUM AT DESERT HARBOR, licensed as

FS TENANT POOL III TRUST; FS 

TENANT POOL III TRUST, a foreign 

corporation; FIVE STAR DESERT 

HARBOR, LLC, a foreign limited liability 

company; FVE FM FINANCING, INC., a 

foreign corporation; SUSAN GOAD,

Administrator of THE FORUM AT DESERT 

HARBOR; 

 Defendants.

NO. 2:15 CV 01751- PHX-DJH

AMENDED COMPLAINT

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Miller Weber Kory LLP

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506 EAST PORTLAND STREET

PHOENIX, ARIZONA 85004

well as on behalf of statutory beneficiaries, Michael Surprise, Daniel Surprise and 

Kristen DiPasqualucci, with respect to claims for wrongful death pursuant to A.R.S. § 

12-611 et seq., allege as follows: 

ALLEGATIONS COMMON TO ALL COUNTS

1. At all times mentioned herein, Sandra Surprise was a resident of The 

Forum at Desert Harbor (hereinafter “The Forum”), Maricopa County, Arizona; all 

negligent acts related to this Complaint occurred in Maricopa County, Arizona. 

2. Plaintiffs bring this action under A.R.S. § 46-455, for injuries, pain and 

suffering and other economic and non-economic damages, sustained by Sandra 

Surprise, prior to her death. The injuries and other damages resulted from the acts 

and omissions of the Defendants and their agents and employees and survive her 

death pursuant to Arizona Law, including but not limited to A.R.S. § 46-451, et seq. 

3. Plaintiffs also bring this action individually and on behalf of the 

statutory survivors of Sandra Surprise, including: Richard Surprise, Michael Surprise, 

Daniel Surprise and Kristen DiPasqualucci under A.R.S. § 12-611, et seq. Plaintiffs 

bring these claims for damages for Sandra Surprise’s wrongful death, including loss 

of consortium, emotional distress, and other economic and non-economic damages 

resulting from the acts and omissions described below. 

4. On information and belief, at all times mentioned herein, FSQ, Inc. was 

a foreign corporation formerly known as Five Star Quality Care, Inc., doing business 

as The Forum at Desert Harbor located at 13840 North Desert Harbor Drive, 

Glendale, Maricopa County. 

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Miller Weber Kory LLP

Attorneys at Law

506 EAST PORTLAND STREET

PHOENIX, ARIZONA 85004

5. At all times mentioned herein, The Forum was licensed by the State of 

Arizona, Department of Health Services, as a nursing care facility under the licensee 

name FS Tenant Pool III Trust.

6. At all times mentioned herein, FS Tenant Pool III Trust was a foreign 

corporation that owned or operated The Forum.

7. On information and belief, at all times mentioned herein, Five Star 

Desert Harbor, LLC was a foreign limited liability company that owned or operated 

The Forum.

8. On information and belief, at all times mentioned herein, FVE FM 

Financing, Inc. was a foreign corporation that owned or operated The Forum.

9. On information and belief, at all times mentioned herein, Susan Goad 

was licensed by the State of Arizona as an Administrator, was the Administrator of 

The Forum at Desert Harbor, and was a resident of Maricopa County, Arizona.

10. Upon information and belief, Defendants FSQ, Inc., a foreign 

corporation, f/k/a Five Star Quality Care, Inc., d/b/a The Forum at Desert Harbor, 

licensed as FS Tenant Pool III Trust; FS Tenant Pool III Trust, a foreign corporation; 

Five Star Desert Harbor, LLC, a foreign limited liability company; FVE FM 

Financing, Inc., a foreign corporation; Susan Goad, Administrator of The Forum; 

were all acting in a joint venture and as an enterprise in the operation and 

management of The Forum and are jointly liable for the negligent acts and omissions 

described below. Said Defendants are hereinafter jointly referred to as the 

“Defendants.” 

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PHOENIX, ARIZONA 85004

11. All Defendants identified as corporations or other such entities were at 

all times mentioned herein acting by and through officers, employees, agents, and 

contractors, who were acting within the course and scope of their employment and 

authority, and acting as an enterprise as referred to in A.R.S. § 46-455(B) and (P), 

such that these corporations or other such entities are bound by, and vicariously liable 

for, the conduct of their officers, agents, employees, and contractors. Such 

corporations or other such entities also are directly liable for their own negligence, 

recklessness, and other tortious conduct in the hiring, funding, management and 

supervision of the officers, employees, agents, and contractors whose conduct gives

rise to this action. 

12. At all times pertinent, Defendants held themselves out as competent and 

qualified in providing, supervising and administering health care to the public and to 

Sandra Surprise and her family and willing to comply with the appropriate standard of 

care for health providers in their respective fields. 

13. On information and belief, at all times mentioned herein, FSQ, Inc. f/k/a 

Five Star Quality Care, Inc., FS Tenant Pool III Trust, Five Star Desert Harbor, LLC, 

FVE FM Financing, Inc. and/or The Forum at Desert Harbor was the employer of all 

those persons who attended to Sandra Surprise while she was a resident at The Forum, 

and those persons in administrative, management and supervisory positions who 

directed the operations of The Forum, all of whom were acting in the course and 

scope of their employment, such that Defendants are vicariously liable for the 

negligent acts and omissions described below. 

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PHOENIX, ARIZONA 85004

14. Sandra Surprise was a resident of The Forum from approximately 

November 23, 2013 through January 18, 2014. 

15. At all times mentioned herein, Defendants knew and had reason to 

know that Sandra Surprise was an incapacitated and vulnerable adult, as those terms 

are defined in A.R.S. §46-451. 

16. Among the duties Defendants and their employees owed to Sandra 

Surprise was the duty to report incidents of abuse or neglect, as required by A.R.S. § 

46-454, whenever any employee of Defendants had a reasonable basis to suspect that 

such abuse or neglect had occurred. 

17. At all times mentioned herein, The Forum was certified as a nursing 

facility for purposes of Medicaid, Medicare, the Arizona Health Care Cost 

Containment System (AHCCCS), and the Arizona Long-Term Care System 

(ALTCS).

18. Defendants and their employees owed Sandra Surprise a variety of 

duties under Federal statutes and regulations, State statutes and regulations, and the 

common law. 

19. The Federal statutes and regulations referenced above include, but are 

not limited to, the Federal Nursing Home Reform Act and the Omnibus Budget 

Reconciliation Acts of 1987, 1989, 1990 and 1993 (see, 42 U.S.C. § 1395 et seq. and 

42 C.F.R. 483 et seq.).

///

///

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PHOENIX, ARIZONA 85004

20. The State statutes and regulations referenced above include, but are not 

limited to, A.R.S., §§ 46-451 et seq., 32-1631 et seq., 36-446, et seq. and Arizona 

Administrative Code R4-19-101 et seq., and R9-10-401 et seq. 

21. Upon information and belief, at all times mentioned herein Defendants 

The Forum acted as the Arizona Administrative Code R9-10-403(A) governing 

authority and the 42 C.F.R. §483.75(d) governing body of The Forum at the time of 

the events described in this Complaint, and was responsible for, among other things:

a. Establishing and implementing policies regarding the management and 

operation of the facility, see, e.g., 42 C.F.R. §483.75(d)(1);

b. Appointing an administrator who is responsible for the operation and 

administration of the facility, see, e.g., 42 C.F.R. §483.75(d)(2), Ariz. Admin. 

Code R9-10-403(A)(3) and R9-10-403(B)(1-3);

c. Appointing a medical director who is responsible for the coordination of 

medical services provided to facility residents, see, e.g., Ariz. Admin. Code 

R9-10-401(10) and R9-10-413(A);

d. Approving or designating an individual to approve the facility’s policies 

and procedures, see, e.g., Ariz. Admin. Code R9-10-403(A)(2);

e. Complying with applicable federal and state laws, rules and local 

ordinances governing operations of a nursing care institution, see, e.g., Ariz. 

Admin. Code R9-10-403(B)(4); and

f. Adopting, establishing, administering, and evaluating a quality 

management program that evaluates the quality of the facility’s services, 

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including contracted services provided to residents, see, e.g. Ariz. Admin. 

Code R9-10-403(A)(4-6) and R9-10-404(1).

22. As a result of the negligent acts and omissions by Defendants The 

Forum described in this Complaint, Plaintiffs suffered injuries as described below. 

23. At the time of the events described in this Complaint, Defendants The 

Forum had authority and control of the operation and management of The Forum 

skilled nursing facility and its agents and servants, including the creation and 

enforcement of staffing levels, budgets, and other management policies and financial 

goals. 

24. Defendant Susan Goad was the Administrator and Executive Director of 

The Forum at Desert Harbor at the time of the events described in this Complaint. 

25. Defendant Susan Goad was an employee of Defendant The Forum 

during the time she was Administrator and Executive Director of The Forum.

26. As the Administrator of The Forum, Defendants Susan Goad was

responsible for, among other things:

a. The operation, management and general administration of The Forum, see, 

e.g., 42 C.F.R. §483.75(d)(2)(ii), A.R.S. §36-466(1) and Ariz. Admin. Code 

R9-10-403(B)(1-2);

b. Ensuring that policies and procedures are established, documented, and 

implemented that cover abuse of residents, qualifications and duties for 

facility staff, orientation and in-service education for facility staff, quality 

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PHOENIX, ARIZONA 85004

management (including incident documentation), nursing services, and 

medical records, see, e.g., Ariz. Admin. Code R9-10-403(C)(1);

c. Investigating allegations of abuse of a resident and reporting the allegations 

to the Arizona Department of Health Services, see, e.g., Ariz. Admin. Code 

R9-10-403(F)(1-2);

d. Reviewing the facility’s policies and procedures at least once every twentyfour months, see, e.g., Ariz. Admin. Code R9-10-403(C)(1,3);

e. Ensuring that the facility’s policies and procedures are available to each 

staff member, see, e.g. Ariz. Admin. Code R9-10-403(C)(4);

f. Ensuring that a staff member who provides direct care is available to meet 

the needs of a resident based on the resident’s comprehensive assessment, 

see, e.g., Ariz. Admin. Code R9-10-407(3-4); R9-10-406(B)(3) and R9-10-

412(A)&(B)(1);

g. Ensuring that a staff member who provides direct care demonstrates and 

maintains competency and proficiency according to criteria established in 

the facility’s policies and procedures, see, e.g., Ariz. Admin. Code R9-10-

406(B)(1-2);

h. Ensuring that orientation for a staff member or a volunteer begins in the 

first week of employment or volunteer service and covers the facility 

policies and procedures and resident rights, and infection control and 

prevention of communicable diseases, see, e.g., Ariz. Admin. Code R9-10-

406(H)(1-2);

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PHOENIX, ARIZONA 85004

i. Ensuring that the facility provides nursing services twenty-four hours a day, 

see, e.g., Ariz. Admin. Code R9-10-412(A)(1);

j. Ensuring that a director of nursing is appointed who works full time at the 

facility and is responsible for the direction of nursing services, see, e.g.,

Ariz. Admin. Code R9-10-412(A)(2);

k. Ensuring that the director of nursing or another individual designated by the 

administrator participates in the facility’s quality management program, 

see, e.g., Ariz. Admin. Code R9-10-412(A)(3);

l. Ensuring that a resident is treated with consideration, respect and dignity, 

see, e.g., Ariz. Admin. Code R9-10-410(B)(2);

m. Ensuring that a resident is free from abuse, see, e.g., Ariz. Admin. Code 

R9-10-410(B)(3);

n. Ensuring that a resident is free from interference, coercion, discrimination, 

and reprisal from a staff member, the administrator, or a volunteer for 

exercising the resident’s rights, see, e.g., Ariz. Admin. Code R9-10-

410(B)(3);

o. Ensuring that a medical record is established and maintained for each 

resident, that a resident’s medical record contains a record of medical 

services and nursing services provided to the resident; and that entries in a 

resident’s medical record are dated, legible, authenticated, and not changed 

to make the initial entry illegible, see, e.g., Ariz. Admin. Code R9-10-

411(A)(1-2) and R9-10-411(C);

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p. Ensuring that safeguards exist to prevent unauthorized access to medical 

records that are kept electronically and that the date and time of an entry in 

a medical record is recorded by the computer’s internal clock, see, e.g.,

Ariz. Admin. Code R9-10-411(B);

q. Requiring that a plan is established, documented, and implemented for a 

quality management program that includes collection of data to evaluate 

facility services provided to residents, see, e.g., Ariz. Admin. Code R9-10-

404. 

27. Defendant Susan Goad, Administrator of The Forum assumed a legal 

duty to provide care and treatment to Sandra Surprise, and was employed to provide 

care to Sandra Surprise during the time of events described in this Complaint. 

28. At all times mentioned herein, Defendants and their agents and 

employees had a duty to employ sufficient nursing staff to provide nursing and related 

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

psychosocial well-being of each resident, as determined by appropriately prepared 

resident assessments and individual plans of care. 

29. At all times mentioned herein, Defendants and their agents and 

employees had a duty to provide for the safety of residents, who were impaired and in 

need of special precautions for their safety, by providing each resident with adequate 

monitoring, supervision, assistance, hydration, nutrition, intake and output 

monitoring, and nursing and medical intervention to prevent injury or deterioration of 

their health as well as to provide curative and restorative care as needed and as 

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prescribed by physicians, physical therapies, and to have a system in place that would 

deliver such care in a safe efficient manner. 

30. At all times mentioned herein, Defendants and their agents and 

employees owed Sandra Surprise a duty to provide reasonable and appropriate health 

care services in accordance with the recognized standards of care.

31. At all times mentioned herein, Defendants and their agents and 

employees owed Sandra Surprise a duty to monitor her intake and output levels, 

hydration, and accurately monitor and record her bowel elimination history, and 

protect her from harm and competently help her recover from same. 

32. At all times mentioned herein, Defendants and their agents and 

employees owed Sandra Surprise at The Forum a duty to adequately screen evaluate 

and check references, test for competence, and use reasonable care in selecting 

management, nurses, nursing assistants, and other personnel to work for them.

33. At all times mentioned herein, Defendants and their agents and 

employees owed Sandra Surprise a duty to employ, train, motivate and schedule 

sufficient nurses, nursing assistants, and other personnel to provide adequate care for 

her and keep her safe from harm. 

34. At all times mentioned herein, Defendants and their agents and 

employees owed Sandra Surprise a duty to provide adequate staff to monitor her 

condition and to adequately train, motivate, and supervise that staff in performing 

assessments or planning for her care and safety needs. 

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35. At all times mentioned herein, Defendants and their agents and 

employees owed Sandra Surprise a duty to create and maintain adequate records of 

her assessment, care plan, condition, progress, and treatment. 

36. At all times mentioned herein, Defendants and their agents and 

employees owed Sandra Surprise a duty to follow orders and recommendations of 

physicians in providing care, treatment and safety management to her. 

37. At all times mentioned herein, Defendants and their agents and 

employees owed Sandra Surprise a duty to notify physicians and emergency services 

as reasonably necessary, to seek physicians’ consultation and treatment, and to 

provide the physicians with adequate information to enable the physicians to make 

informed decisions concerning her condition and history.

38. By contract and by accepting Sandra Surprise under their care and 

supervision, Defendants and their agents and employees expressly or impliedly 

represented to Sandra Surprise and her family that Defendants and their employees

were ready, willing, and able to undertake and carry out the duties enumerated above. 

39. Sandra Surprise was initially admitted to The Forum on approximately 

November 23, 2013, and placed under the care of the Defendants and their agents and 

employees. During her admission Defendants and their agents and employees failed 

to appropriately monitor Sandra’s intake and output, hydration and bowel elimination 

history allowing her to go for an extended period of time with no bowel movement. 

On January 18, 2014, she was transferred to Banner Boswell Medical Center in septic 

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shock with multisystem organ failure due to colonic perforations with fecal 

peritonitis, where she died on January 27, 2014. 

40. The named Defendants and their agents and servants permitted and/or 

caused Sandra Surprise to be abused and neglected at The Forum skilled nursing 

facility by, among other things: (a) failing to employ sufficient numbers of properly 

trained staff to provide the care and services that The Forum residents required; (b) 

failing to appropriately monitor Sandra Surprise’s intake and output, hydration, and 

bowel elimination history; (c) failing to provide and obtain timely medical care for 

Sandra Surprise; and (d) failing to inform Sandra Surprise, her family members, the 

Arizona Department of Health Services, the Center for Medicare and Medicaid 

Services, or anyone else, that The Forum residents were not receiving the care and 

services they required. 

41. During the time Sandra Surprise was a resident of The Forum, 

Defendants failed to exercise that degree of care, skill and learning expected of health 

care providers in the professions or classes to which they belong within the State 

acting reasonably in the same or similar circumstances. 

42. During the time Sandra Surprise was a resident of The Forum, she 

suffered from a number of maladies which required proper assessment, care planning, 

monitoring, supervision, medication and treatment, and medical intervention. 

43. The Defendants and their agents and employees failed to properly assess 

and diagnose Sandra Surprise’s condition or develop an appropriate care plan to 

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enhance her health and prevent and address those conditions from which she suffered 

and keep her safe. 

44. The Defendants and their agents and employees failed to properly 

monitor and assess Sandra Surprise’s condition and communicate that condition to her 

physicians so that appropriate orders could be obtained. 

45. The Defendants and their agents and employees failed to create and 

maintain accurate and adequate records of Sandra Surprise’s assessment, care plan, 

condition, progress and treatment.

46. The Defendants and their agents and employees failed to properly 

administer care to Sandra Surprise, including, but not limited to, properly assessing 

her needs, properly care planning for her needs, properly carrying out orders, 

monitoring her condition, monitoring her safety needs, recommending appropriate 

tests and consultations, advocating for her needs, monitoring her intake and output, 

hydration and bowel elimination history, and failing to educate her and her family and 

physicians with regard to her illnesses, cognition, mental status, risk of constipation, 

risk of injury, and failing to monitor her health generally.

47. The above described breaches resulted in part from Defendants’ failure 

to adequately screen, evaluate and check references, test for competence, and to use 

reasonable care in selecting management, nurses, nursing assistants, and other 

personnel to work for Defendants.

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48. The above described breaches resulted in part from Defendants’ failure 

to employ, train, motivate and schedule sufficient nurses, nursing assistants, and other 

personnel to provide adequate care, monitoring and supervision to Sandra Surprise. 

49. The above described breaches resulted in part from Defendants’ failure 

to provide adequate staff to monitor and supervise Sandra Surprise’s condition and to 

adequately train, motivate and supervise that staff in performing assessments or 

planning for her care, treatment and safety needs. 

50. The Defendants owed a duty to Sandra Surprise and to the consuming 

public to control, manage, supervise and budget the operations of its nursing home 

facility in a way as to reasonably monitor and keep track of the quality of care of its 

residents, and take those steps necessary to correct deficiencies therein, and to 

communicate candidly with regulatory agencies the status of health care so as to avoid 

a pattern of negligent care, neglect and abuse of residents. 

51. The Defendants failed to control, manage, supervise and budget the 

operations of its nursing home in a reasonable manner to monitor the quality of care 

in its nursing home facility and otherwise manage the operations of the facility, 

resulting in a pattern of deficiencies in the quality of care, including: failure to 

maintain accurate clinical records, failure to develop and implement policies and 

procedures that prohibit mistreatment, neglect and abuse of residents and other such 

neglectful care of residents, including Sandra Surprise. 

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52. The above-described breaches resulted in part from Defendants’ failure 

to adequately fund The Forum’s operating budget including the direct care staff 

budget resulting in an understaffing of the nursing facility. 

53. The above-described breaches, including the failure to recognize Sandra 

Surprise’s changes in condition, failure to appropriately monitor her intake and 

output, hydration and bowel elimination history, failure to inform physician(s) of her 

condition proximately caused her to be allowed to go for an extended period of time 

without a bowel movement resulting in colonic perforation, fecal peritonitis with 

sepsis and septic shock. She was transferred to the Banner Boswell Medical Center 

on January 18, 2014 and she died on January 27, 2014, during which time she 

suffered stress, anxiety, pain and suffering until her death.

COUNT ONE

(Violation of A.R.S. §§ 46-454 and 46-455 by all Defendants)

54. All allegations above are incorporated by reference as if fully set forth 

herein.

55. The acts and omissions of Defendants constitute a breach of the aboveenumerated duties and a deviation from the appropriate standard of care and reckless 

disregard for the needs of Sandra Surprise, constituting abuse and neglect of a 

vulnerable adult, as defined by statute, giving rise to a cause of action under A.R.S. § 

46-455, and justifying an award of compensatory and punitive damages and all related 

expenses. 

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56. The above-described breaches, abuse and neglect are representative of a 

pattern of abuse and neglect of incapacitated and vulnerable adults as evidenced by 

Defendants’ Arizona Department of Health Survey history, previous incidents, lack of 

appropriate staffing, and ongoing patterns of abuse and/or neglect of residents at The 

Forum, as those terms are defined by A.R.S. § 46-451, justifying investigation by the 

Court and Plaintiffs into the operations and patterns of abuse and neglect of residents 

and other wrongdoing, justifying the award of damages and such other penalties, 

injunctions and orders as the Court deems appropriate.

57. Based on the foregoing allegations, Defendants and their employees had 

a reasonable basis to suspect Sandra Surprise, was a victim of abuse or neglect, as 

defined by A.R.S. § 46-451.

58. Defendants and their employees did not report that Sandra Surprise, was 

a victim of abuse or neglect, as required by A.R.S. § 46-454.

59. By failing to report that Sandra Surprise was a victim of abuse or 

neglect, as required by A.R.S. § 46-454, Defendants and their employees permitted 

such abuse and neglect, to continue, resulting in the endangerment of Sandra 

Surprise’s health.

COUNT TWO

(Negligence/Wrongful Death by all Defendants)

60. All allegations set forth above are incorporated by reference as if fully 

set forth herein. 

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61. At all times pertinent, Defendants owed a duty to exercise reasonable 

care in caring for Sandra Surprise and provide for her custodial, medical, nursing, and 

safety needs. 

62. By reason of the acts and omissions set forth above, Defendants 

breached their duty to Sandra Surprise, which breaches resulted in her overall health 

deterioration and death. 

63. The acts and omissions by Defendants constitute negligence by reason 

of failure to abide by and adhere to the standard of care of governing healthcare 

providers in their respective fields. 

64. The acts and omissions by Defendants constitute negligence per se by 

reason of failure to abide by and adhere to provisions of Federal and State law 

governing skilled nursing facilities and patients’ rights in such facilities. 

65. The acts and omissions by Defendants constitute the deliberate and 

reckless disregard for the well-being of Sandra Surprise. 

66. As a proximate result of the acts and omissions by Defendants, 

including Defendants’ reckless disregard for the health and safety of Sandra Surprise, 

she was allowed to go for an extended period of time without a bowel movement 

resulting in colonic perforation, fecal peritonitis with sepsis and septic shock. She 

was transferred to the Banner Boswell Medical Center on January 18, 2014 and she 

died on January 27, 2014, where she suffered stress, anxiety, pain and suffering until 

her death.

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COUNT THREE

(Declaratory Relief)

67. Plaintiffs incorporate as if fully stated herein the allegations of all 

previous and subsequent paragraphs of this Complaint.

68. Plaintiffs expect Defendants to assert contractual arbitration in response 

to this Complaint.

69. The assertion of an arbitration agreement against a vulnerable and 

incapacitated person is contrary to public policy and the purpose of Arizona statutes 

intended to protect vulnerable and incapacitated persons.

70. The arbitration agreement is invalid under principles of Arizona law for 

the following reasons: 1) the document is unconscionable, both substantively and 

procedurally, 2) there was lack of informed consent; 3) there was no meeting of the 

minds; 4) the document violates public policy, and other reasons under common 

law. 

71. Plaintiffs seek a declaration that any agreement for arbitration is invalid 

and unenforceable.

72. Further, Plaintiffs’ surviving statutory beneficiaries seek an order of this 

Court that any arbitration agreement, whether or not it is valid and enforceable as to 

the deceased, may not be enforced to compel arbitration with respect to the 

wrongful death claims of the surviving family, who are in no way parties to any 

arbitration agreement.

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73. To the extent that the arbitration agreement is found valid and 

enforceable as to any of the claims of Plaintiffs’ Decedent or the Estate of Sandra 

Surprise, Plaintiffs request that the Court refer those claims, and those claims only, 

to arbitration, while retaining jurisdiction to interpret and enforce the terms of any 

such arbitration and for the entry and enforcement of any judgment.

74. To the extent that any invocation of arbitration is required as to any 

claim, the filing of this Complaint shall constitute Plaintiffs’ invocation of arbitration 

as an alternative venue for such claims as may be subject to any arbitration 

agreement.

COUNT FOUR

(Punitive Damages)

75. Plaintiff incorporates as if fully stated herein the allegations of all 

previous and subsequent paragraphs of this Complaint.

76. The foregoing conduct by Defendants evidences an evil hand guided by 

an evil mind, as defined by Arizona law, justifying the award of punitive damages in 

an amount to be determined at the time of trial. 

77. The foregoing conduct by Defendants evidences a reckless disregard to 

the rights of others and created an unreasonable risk of physical harm to the residents 

of the facility, including Sandra Surprise, justifying the award of punitive damages in 

an amount to be determined at the time of trial. 

78. The foregoing conduct by Defendants evidences a conscious disregard 

of a known risk of harm to the residents of the facility, including Sandra Surprise, 

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justifying the award of punitive damages in an amount to be determined at the time of 

trial. 

79. Defendants’ conduct evidences chronic understaffing that led to 

improper patient care. 

80. Defendants and their staff consciously disregarded known risks of harm 

to Sandra Surprise by failing to follow physician’s orders regarding bowel care and

monitoring, failing to follow up on the results of any interventions, failing to perform 

adequate assessments, failing to address Mrs. Surprise’s change in condition, and 

improperly and falsely charting.

81. Defendants’ conduct evidences a conscious and reckless disregard of 

known risks of harm, and caused the harm and death of Sandra Surprise.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment against Defendants, jointly and 

severally, each of them, including: 

A. For compensatory damages in a reasonable and appropriate amount, 

awarded to the Estate of Sandra Surprise for her pain and suffering and 

other economic and non-economic damages; 

B. For compensatory damages in a reasonable and appropriate amount, 

awarded to survivors of Sandra Surprise for Sandra Surprise’s wrongful 

death;

C. For punitive damages awarded to the Estate of Sandra Surprise in a 

reasonable and appropriate amount to be determined by a jury;

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D. For punitive damages awarded to the survivors of Sandra Surprise in a 

reasonable and appropriate amount to be determined by a jury;

E. For Plaintiffs’ costs and expenses in prosecuting this matter;

F. For reimbursement to governmental agencies for payments for medical 

care and other services necessitated by Defendants’ abuse, neglect, and 

other wrongful conduct, to the extent such agencies claim liens, 

reimbursement rights, and/or subrogation rights against the damage 

awards in this action; and 

G. For such relief, orders, and injunctions as the court deems appropriate. 

RESPECTFULLY SUBMITTED this 15

th day of September, 2015.

MILLER WEBER KORY LLP

By_/s/Teri M. Rowe______________

 Gabriel V. Kory, Esq.

 Teri M. Rowe, Esq.

 506 East Portland Street

 Phoenix, Arizona 85004

 Attorneys for Plaintiffs

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ORIGINAL of the foregoing filed 

electronically this 15

th day of

September, 2015, with:

United States District Court

COPY of the foregoing electronically

transmitted this 15

th day of September, 

2015, to:

Carol M. Romano, Esq.

Kelli K. Williams, Esq.

GUST ROSENFELD, PLC

One East Washington Street, Suite 1600

Phoenix, AZ 85004

Attorneys for Defendants

By _/s/Lorraine E. Toner, ACP_

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