Case: 5:21-cv-01243-SL Doc #: 1 Filed: 06/23/21 1 of 73. PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF OHIO
`EASTERN DIVISION
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`Case No:
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`
`
`Judge
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`
`
`ACTION FOR DECLARATORY
`JUDGMENT
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`
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`COMPLAINT AND CAUSES OF
`ACTION
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`
`REQUEST FOR INJUNCTIVE
`RELIEF
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`
`REQUEST FOR DISPENSING OF
`BOND
`
`
`REQUEST FOR HEARING
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`
`
`
`
`STEVEN A. ARMATAS, INDIVIDUALLY, and
`as PERSONAL MEDICARE REPRESENTATIVE
` FOR ALEXANDER E. ARMATAS, and as
`EXECUTOR OF THE ESTATE OF
`ALEXANDER E. ARMATAS, deceased,
`
`c/o Steven A. Armatas, Esq.
`7690 Bucknell Circle N.W.
`North Canton, Ohio 44720
`
` PLAINTIFFS,
`
` vs.
`
`PULMONARY PHYSICIANS, INC. OF
`CANTON, OHIO
`c/o Statutory Agent
`JEFFREY B. MILLER, M.D.
`2600 Tuscarawas Street West
`Suite 100
`Canton, Ohio 44708
`
` -and-
`
`AULTCARE INSURANCE CO.
`c/o Statutory Agent
`MARK N. ROSE, ESQ.
`2600 Sixth Street S.W.
`Canton, Ohio 44710
`
` - and-
`
`AULTMAN HOSPITAL
`c/o Statutory Agent
`MARK N. ROSE, ESQ.
`2600 Sixth Street S.W.
`Canton, Ohio 44710,
`
` DEFENDANTS
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`Case: 5:21-cv-01243-SL Doc #: 1 Filed: 06/23/21 2 of 73. PageID #: 2
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`NOW COME PLAINTIFFS, Steven A. Armatas, Individually, and as Personal
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`Medicare Representative for Alexander E. Armatas, and as Executor of the Estate of Alexander
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`E. Armatas (together, “Plaintiff,” for ease of reference), in order to seek a Declaratory Judgment
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`interpreting certain provisions of federal law that Plaintiff and Defendants Pulmonary Physicians,
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`Inc. of Canton, Ohio (“PPI”) and Aultman Hospital (“Aultman”) and AultCare Insurance Co.
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`(“AultCare”), disagree upon. Aultman and AultCare are sometimes referred to hereinafter
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`together as the “Aultman Defendants.”
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`PROCEDURAL BACKGROUND
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`1.
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`On December 28, 2016, Plaintiff filed his original Complaint with the Stark
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`County Court of Common Pleas in Canton, Ohio alleging medical negligence and wrongful
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`death, along with several other federal and state law causes of action, against PPI and the
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`Aultman Defendants and several of their affiliated entities and physicians in connection with
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`death of Plaintiff’s father, Alexander E. Armatas, which occurred on December 31, 2014, while
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`Alexander was a patient in the Surgical ICU of Aultman. The matter was assigned Case No.
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`2016-CV-02801and was presided over by Judge John G. Haas. In accordance with Ohio Civ. R.
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`10(D)(2), an Affidavit of Merit signed by a qualified physician was submitted as part of
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`Plaintiff’s original complaint.
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`2.
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`Pursuant to Ohio Civ. R. 15(A), on or about January 25, 2017, Plaintiff filed his
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`First Amended and Restated Complaint as a matter of right and without seeking leave of court
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`because such Amended and Restated Complaint was filed within 28 days of Plaintiff’s original
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`Complaint.
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`3.
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`On February 20, 2018, pursuant to Ohio Civ. R. 41(A)(1)(a), and because of
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`various irregularities being promulgated by the Aultman Defendants in the litigation, including at
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`2
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`Case: 5:21-cv-01243-SL Doc #: 1 Filed: 06/23/21 3 of 73. PageID #: 3
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`one point engaging in ex parte contacts with Judge Haas’ legal counsel, Plaintiff filed a Notice of
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`Voluntary Dismissal of his Stark County Court of Common Pleas lawsuit, in order to remove the
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`action from state court and re-file it in federal court.
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`4.
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`On February 15, 2019, pursuant to the rights afforded him under R.C. 2305.19,
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`Plaintiff re-filed and re-commenced his lawsuit in the United States Federal District Court for the
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`Northern District of Ohio against PPI, the Aultman Defendants and 11 other related persons or
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`entities. 1 The matter was assigned Case No. 5:19-cv-00349 and was presided over by Magistrate
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`Judge Kathleen B. Burke and Judge John R. Adams (the “Federal Court Litigation”).
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`5.
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` On March 31, 2020, Judge John R. Adams dismissed Plaintiff’s federal causes of
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`action without designation, declined to exercise supplemental jurisdiction over any of Plaintiff’s
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`state law claims, and thus dismissed all the state law causes of action WITHOUT
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`PREJUDICE. A copy of Judge Adams’ order and Judgment Entry is attached hereto as Exhibit
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`#1.
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`6.
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`In accordance with 28 U.S.C § 1367(d), on April 30, 2020, Plaintiff re-filed his
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`dismissed state law claims and several new federal causes of action against the Aultman
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`Defendants and essentially the same group of remaining defendants as appeared in the original
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`state court action before Judge Haas and the Federal Court Litigation before Judge Adams. The
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`most recent matter was filed in the Stark County Court of Common Pleas and assigned Case No.
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`
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`1The1 Defendants in addition to PPI and the two Aultman Defendants were Aultman Health Foundation,
`the parent entity of Aultman and Aultcare (“AHF”); Nihad Boutros, M.D., Eyad Nashawati, M.D., Matthew
`Knoch, M.D., Jeffrey Miller, M.D., Chadi E. Bouserhal, M.D. (collectively, the “ICU Defendants”); M.
`Richard Stjernholm, D.O. and Ohio Physicians Professional Corporation dba Surgical Associates of
`Canton of OPPC (collectively, the “Stjernholm Defendants”); and Mark N. Rose, Gregory Haban, M.D.,
`and Timothy Regula (collectively, the “Rose Defendants”).
`3
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`

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`Case: 5:21-cv-01243-SL Doc #: 1 Filed: 06/23/21 4 of 73. PageID #: 4
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`2020 CV 00741. It is currently being presided over by Visiting Judge Michael E. Jackson (the
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`“Underlying Litigation”).
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`THE PARTIES
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`7.
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`Plaintiff incorporates paragraphs 1 through 6 above as if fully re-alleged and re-
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`written herein.
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`8.
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`Plaintiff, Steven A. Armatas (hereinafter, sometimes, “Steven” or “Mr. Armatas”)
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`is an individual who resides in Plain Township, Ohio. Plaintiff is the adult son and only child of
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`Alexander E. Armatas; the duly designated “Personal Representative” (pursuant to federal
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`Medicare regulations) for Alexander E. Armatas; and Executor of the Estate of Plaintiff’s
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`decedent, Alexander E. Armatas (hereinafter, sometimes, “Alexander”), as duly appointed by the
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`Stark County Probate Court on December 15 , 2016, in Case No. 227735.
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`9.
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` At all relevant times herein, Defendant Aultman is and was a non-profit
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`corporation duly licensed and registered under the laws of the State of Ohio. The medical care
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`Defendant Aultman provided to decedent, which is at issue in the Underlying Litigation, was
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`rendered while Alexander was hospitalized at Aultman from October 11, 2014 through the date
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`of his death on December 31, 2014.
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`
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`10. At all relevant times herein, Defendant AultCare, is and was an insurance
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`company duly licensed and registered under the laws of the State of Ohio and the sponsor and
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`operator of PrimeTime Health Care Plan-Timken Company, a Federal Medicare Advantage Plan
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`(the “AultCare MAP”), Alexander’s sole health insurance provider.
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`11.
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`At all relevant times herein, Defendant PPI is and was a corporation duly licensed
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`and registered under the laws of the State of Ohio. PPI held itself out to the public, including
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`Plaintiff and his decedent, as being sufficiently staffed and equipped with physicians and other
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`4
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`personnel who were competent and able to provide intensivist, pulmonary, and related medical care
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`within the acceptable standards of practice. PPI is the entity which employed the ICU Defendants
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`and/or of which the ICU Defendants were principals or owners.
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`JURISDICTION AND VENUE
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`12.
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`Plaintiff incorporates paragraphs 1 through 11 above as if fully re-alleged and re-
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`written herein.
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`
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`13. This Court has jurisdiction over the subject matter of this action under 28 U.S.C.
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`§1331 and 28 U.S.C. §1332.
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`
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`14.
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`Jurisdiction is also appropriate in accordance with the U.S. Supreme Court’s
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`decision in Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69 (2013) wherein the Court held that
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`federal courts are obliged to decide cases within the scope of federal jurisdiction. Abstention is
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`not in order simply because a pending state-court proceeding involves the same subject matter.
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`New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 373 (1989)
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`(NOPSI) (“[T]here is no doctrine that . . . pendency of state judicial proceedings excludes the
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`federal courts.”).
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`15.
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` The U.S. District Court for the Northern District of Ohio has personal jurisdiction
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`over PPI and the Aultman Defendants because said Defendants have offices in the Northern
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`District of Ohio, do business in the Northern District of Ohio, and the acts complained of have
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`given rise to disagreements between the parties over the proper interpretation of applicable
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`federal law.
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`16. Venue is proper pursuant to 28 U.S.C. § 1391(b) because PPI and the Aultman
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`Defendants conduct substantial business within the Northern District of Ohio, and the acts
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`5
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`complained of have given rise to disagreements between the parties over the proper
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`interpretation of applicable federal law.
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`NATURE OF THE CASE
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`17. Plaintiff incorporates paragraphs 1 through 16 above as if fully re-alleged and re-
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`written herein.
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`18. This is an action for declaratory judgment pursuant to the Federal Declaratory
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`Judgments Act, 28 U.S.C. §§ 22012–2202,3 and Rule 57 of the Federal Rules of Civil Procedure.4
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`19. An actual controversy exists between the Parties within the meaning of 28 U.S.C.
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`§2202, which is of sufficient immediacy and reality to warrant declaratory relief.
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`20. This action seeks a declaratory judgment from the Court regarding whether:
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`(a) Plaintiff’s state law claims against PPI and the Aultman Defendants were dismissed
`with or without prejudice in the Federal Court Action;
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`(b) Plaintiff was permitted to re-file his state law claims in the Stark County Court of
`Common Pleas pursuant to 28 U.S.C §1367(d) following their dismissal in the Federal
`Court Action;
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`2 28 U.S.C. §2201(a) provides:
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`“(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than
`actions brought under section 7428 of the Internal Revenue Code of 1986, a proceeding under section
`505 or 1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding
`regarding a class or kind of merchandise of a free trade area country (as defined in section 516A(f)(9) of
`the Tariff Act of 1930), as determined by the administering authority, any court of the United States, upon
`the filing of an appropriate pleading, may declare the rights and other legal relations of any interested
`party seeking such declaration, whether or not further relief is or could be sought. Any such declaration
`shall have the force and effect of a final judgment or decree and shall be reviewable as such.”
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` 3
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` 28 U.S.C. §2202 provides: “Further necessary or proper relief based on a declaratory judgment or
`decree may be granted, after reasonable notice and hearing, against any adverse party whose rights
`have been determined by such judgment.”
`
` 4
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` Fed. R. Civ. P. 57 provides: “These rules govern the procedure for obtaining a declaratory judgment
`under 28 U.S.C. § 2201. Rules 38 and 39 govern a demand for a jury trial. The existence of another
`adequate remedy does not preclude a declaratory judgment that is otherwise appropriate. The court may
`order a speedy hearing of a declaratory-judgment action.”
`6
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`(c) the Ohio 4-year Statute of Repose for Medical Negligence Claims is recognized
`within the jurisdiction of the Northern District of Ohio;
`
`
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`(d) the Ohio Supreme Court’s recent ruling in Wilson v. Durrani , Slip Opinion No. 2020-
`Ohio-6827 (Dec. 23, 2020), that the Ohio’s Savings Statute does not foreclose the
`application of Ohio’s four-year statute of repose to medical negligence claims is
`unconstitutional when applied retroactively to causes of action which accrued almost 6
`years prior to such decision; and
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`(e) Plaintiff’s First Amendment Right of Access to Court covers abuses that occurred
`both before and after the filing of his complaint
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`21.
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`Plaintiff also seeks a declaratory judgment that this Court has the authority to
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`issue judgment on all of Plaintiff’s claims brought in this Complaint for Declaratory Judgment.
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`RELEVANT MEDICAL TREATMENT FACTS
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`22.
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`Plaintiff incorporates paragraphs 1 through 21 above as if fully re-alleged and re-
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`written herein.
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`23.
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` On October 11, 2014, Alexander was rushed to Aultman Hospital after suffering a
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`cardiac episode while at home. Doc. 1, p. 9, ¶25.5 Alexander was 97 years old at the time of his
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`hospitalization. Doc. 1, p. 8, ¶22. Alexander was admitted to the Emergency Room at Aultman .
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`Doc. 1, p. 9, ¶25. Alexander was transferred to the Intensive Care Unit and remained hospitalized at
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`Aultman l until his death on December 31, 2014. Doc. 1, p. 6, ¶11. Steven is the only child of
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`Alexander. Doc. 1, p. 4, ¶5. Alexander was survived by his son and his wife, Dionyosula A.
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`Armatas. Doc. 1, p. 5, ¶6.
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`
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`24. Dr. Stjernholm, by or through Surgical Associates, was engaged by Aultman as an
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`employee, agent or contractor and granted privileges at Aultman Hospital. Doc. 1, p. 6, ¶11. Dr
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`
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`5 All references are to the Federal Court Litigation held in the Northern District of Ohio and designated as
`Case No. 5:19-cv-00349.
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`Stjernholm and other emergency room personnel worked to intubate and stabilize Alexander and
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`placed him on a respirator. Doc. 1, p. 9, ¶25.
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`25.
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`A few hours after Alexander’s admission, Dr. Stjernholm and another emergency
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`room physician, Dr. Randy Johnson, met with Steven and advised him that Alexander had
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`suffered catastrophic injuries and, due to Alexander’s advanced age, he would likely die in the
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`next three hours. Doc. 1, p. 9, ¶26. Dr. Stjernholm and Dr. Johnson informed Steven that
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`Alexander was suffering from bleeding on the brain, pneumonia, a broken neck or severed spine,
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`cracked vertebrae, a brain contusion, and dying bowel syndrome. Doc. 1, p. 9, ¶27. Also, Dr.
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`Stjernholm and Dr. Johnson advised Steven that Alexander was probably paralyzed and he had
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`very likely suffered a stroke or heart attack. Id.
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`26.
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`However, other than a C2 fracture which was later treated with a stabilizing
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`collar, the aforementioned diagnoses proved to be incorrect. Id. While Alexander was admitted
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`in the emergency room, no MRI was ordered and no neurologist or neurosurgeon personally
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`examined Alexander. Doc. 1, p. 9, ¶28. In light of their diagnoses regarding Alexander’s
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`condition, both Dr. Stjernholm and Dr. Johnson strongly recommended that no life-sustaining
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`treatment be provided and that Alexander be removed from the respirator. Doc. 1, p. 10, ¶29.
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`Steven declined to follow the recommendations of Drs. Stjernholm and Johnson and they
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`“became visibly perturbed and annoyed with” Steven’s decision. Id.
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`27.
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`Alexander was transferred from the Emergency Room to the Surgical Intensive
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`Care Unit of Aultman Hospital in the early morning hours of October 11, 2014. Doc. 1, p. 10, ¶
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`30. Drs. Nashawati, Boutros, Miller, Bouserhal, and Knoch, by and through PPI were engaged
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`by Aultman either as employees, agents, or contractors and granted privileges at Aultman
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`8
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`Hospital to oversee the medical care and treatment of patients admitted to the Surgical Intensive
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`Care and Medical Intensive Care Units of Aultman Hospital. Doc. 1, p. 7, ¶14.
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`28.
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`A neurologist was brought in six days after Alexander’s admission for a
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`consultation. Doc. 1, p. 12, ¶40. Alexander was not personally examined by a neurologist until
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`several weeks later. Id. In treating Alexander, Aultman Hospital relied on a small group of
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`temporary ad locum physicians who were from outside the area, understaffed and lacked proper
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`credentialing and licensing in the State of Ohio.6 Doc. 1, p. 12, ¶41.
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`29.
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`One of the ad locum neurologists assigned to Alexander’s case was Dr. Ammar
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`El-Nachef who resided in Omaha, Nebraska. Doc. 1, p. 12, ¶42. Dr. El-Nachef conducted only
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`a cursory review of Alexander’s medical records and, without ever personally examining
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`Alexander or speaking with Alexander or his family, agreed with the recommendation of Dr.
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`Stjernholm and the ICU physicians that all medical treatment for Alexander should be
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`withdrawn. Id. Following his review of Alexander’s records and providing his diagnosis, Dr.
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`El-Nachef returned to Omaha. Doc. 1, p. 12, ¶ 43.
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`30.
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`A few weeks later, another ad locum neurologist, Nancy Juopperi, D.O., was
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`brought in. Doc. 1, p. 13, ¶ 44. Dr. Juopperi was based in Michigan and was not licensed to
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`work in Ohio while at Aultman Hospital. Id. After examining Alexander, Dr. Juopperi returned
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`to Michigan. Id. Although Dr. Juopperi told Plaintiff she was a “long-time Aultman employee,”
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`6 Plaintiff alleges that, shortly before Alexander was admitted to Aultman Hospital, AHF and the hospital
`had terminated the long-term relationship that they had with NeuroCare, a local neurological practice
`group that had provided staffing for Aultman Hospital’s neurological needs for many years. Doc. 1, p.12,
`¶41.
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`she was never employed by Aultman Hospital but instead was a short-term independent
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`contractor. Doc. 1, p. 13, ¶ 45.
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`31.
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`Neither Dr. El-Nachef or Dr. Juopperi ordered an MRI or made any effort to
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`address Alexander’s brain swelling. Doc. 1, p. 13, ¶ 46. Also, neither physician was available
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`for follow-up care or to consult with Alexander’s family after they left Aultman Hospital. Id.
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`During Alexander’s admission at Aultman other physicians recommended that Alexander be
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`removed from life support but Steven declined to follow those recommendations. Doc. 1, pp. 10,
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`13-14, 17, 19 ¶¶ 29, 49-50, 64, 74.
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`32. During the entire course of Alexander’s hospitalization, Steven was exposed to
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`relentless, overbearing pressure by the named-Defendant physicians in the Federal Court
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`Litigation and other Aultman personnel to sign a DNR and/or immediately remove Alexander
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`from life support so as to allow him to perish of natural causes, even though he was fully insured
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`and improving during this period of time.” Doc. 1, p. 11, ¶38.
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`33.
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`The matter of palliative care for Alexander was submitted by Dr. Boutros and his
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`colleagues to the Aultman Hospital Ethics Committee. Doc. 1, pp. 11-12, 13-14 ¶¶39, 48-50.
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`The Ethics Committee voted to reject the recommendation of Drs. Boutros and Nashawati and to
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`allow Alexander to continue receiving full-code medical treatment for an indefinite period of
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`time while continuing to monitor the situation. Doc. 1, p. 14, ¶50.
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`34.
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`Shortly after Alexander’s admission and continuing throughout his stay at the
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`hospital, Steven was concerned about the discoloration developing on his father’s right toes and
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`leg and shared those concerns with various physicians. Doc. 1, pp.11, 15, 24, ¶¶34, 35, 54, 56,
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`and 101.
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`35.
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`On October 31, 2014, Steven was so alarmed by the growing discoloration of
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`Alexander’s right foot and leg that he specifically requested that an attending nurse. Ms. Linda
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`Gatsios, contact Dr. Stjernholm, Alexander’s attending physician at the time, to have a vascular
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`surgeon brought in for a consult regarding Alexander’s leg. Doc. 1, p. 15, ¶56. The nurse later
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`informed Steven that Dr. Stjernholm was not going to agree to Steven’s request to bring in a
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`vascular specialist for a consult. Id.
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`36.
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`Later that day, Steven contacted Dr. Stephen Grossman, a senior member of the
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`Aultman Hospital Ethics Committee, to complain about Dr. Stjernholm’s decision not to call in a
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`vascular specialist. Doc. 1, p. 15, ¶57. Dr. Grossman indicated he agreed a vascular surgeon
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`should be consulted but stated that, pursuant to Aultman Hospital protocols, he did not have the
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`authority to overrule Dr. Stjernholm’s decision. Id.
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`37.
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`On November, 1, 2014, after Alexander was seen by Dr. Miller, one of the
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`rotating ICU physicians, Dr. Miller yelled at Steven regarding how Steven was treating
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`Alexander. Doc. 1, pp. 15-16, ¶¶ 58-59. In response, Steven explained that his concerns
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`regarding his father’s leg were being ignored by the other physicians. Doc. 1, p. 16, ¶60.
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`Following the exchange, Dr. Miller relented and agreed to have Dr. Butler, the on-call vascular
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`surgeon, see and personally examine Alexander. Doc. 1, p. 16, ¶60.
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`38.
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`After examining Alexander, Dr. Butler informed Steven that Alexander’s
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`discoloration was dry gangrene setting in and it had the potential of turning into a serious
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`infection but had not yet done so. Doc. 1, p. 16, ¶61. When Dr. Butler was asked by Steven
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`whether Dr. Butler felt he was not called in earlier because treatment for Alexander’s leg could
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`be dangerous or because his father was old and the physicians thought he would die soon
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`anyhow, Dr. Butler replied, “It’s probably a little bit of both.” Doc. 1, p. 16, ¶62.
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`39.
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`Steven sought out second opinions regarding Alexander’s diagnosis and
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`prognosis. Doc. 1, pp. 17-19, 26, ¶¶ 66-74, 109-110. Plaintiff alleged that one or more of the
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`ICU physicians interfered with Steven’s attempts to obtain those second opinions regarding his
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`father’s medical condition. Doc. 1, pp. 19-20, 26, ¶¶ 75-81, 111-112.
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`40.
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`On November 21, 2014, Steven was called to the ICU ward to discuss his father’s
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`situation. Doc. 1, pp. 20-21, ¶82. During that meeting, which was attended by Dr. Grossman,
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`Dr. Nashawati, and Ms. Paumier,7 Dr. Nashawati “angrily told Plaintiff:
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`‘This situation with your father has gone on long enough. Before the end of this
`weekend, you need to either remove your father from life support or have him
`transferred to another hospital. Otherwise, first thing Monday morning, the Aultman
`Hospital Legal Department has authorized a lawsuit to be filed in Probate Court
`against you and your mother for the purpose of removing you and her as caretakers
`and appointing a guardian ad litem to assume responsibility for your father’s care.’”
`Doc. 1, p. 21, ¶83.
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`41.
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`Steven sought specifics from Dr. Nashawati as to who authorized such action and
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`Dr. Nashawati responded only that it was “the Aultman Legal Department.” Doc. 1, p. 21, ¶84.
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`Steven and his mother did not remove Alexander from life support and they were not sued to
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`remove them as Alexander’s caretakers. Doc. 1, p. 21, ¶86.
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`42. During the process of discovery, Plaintiffs uncovered a PowerPoint Presentation
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`developed and given at least annually to members of the Aultman health community by Dr.
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`Nashawati. The Nashawati PowerPoint Presentation effusively praises the work of Dr. Jack
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`Kervorkian and specifically recommends that doctors and hospitals threaten patients’ families
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`with the specter of defending an expensive probate court lawsuit seeking to replace them as their
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`loved one’s caretakers unless they relent and immediately remove their family member from life
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`7 Dr. Grossman was an Aultman palliative care specialist and a senior member of the Aultman Hospital
`Ethics Committee (Doc. 1, pp. 11, 13, ¶¶39, 49) and Ms. Paumier was the ICU Patient Liaison for
`Aultman Hospital (Doc. 1, p. 13, ¶49).
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`support. Dr. Nashawati, when asked during his deposition whether he considered himself a
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`disciple of Dr. Kervorkian, was directed by his attorney not to answer the question.
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`43. When asked during their depositions whether they had ever been sued for
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`malpractice before, Dr. Nashawati and Dr. Boutros both denied that they were ever the subject of
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`a malpractice action, when it turns out they both had been named as defendants in a medical
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`negligence case filed only a few years prior. During his deposition, Dr. Nashawati also denied
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`any knowledge of or involvement in assisting a young female colleague in being named co-chair
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`of the Aultman Ethics Committee, obtaining a paid employment position at Aultman, and being
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`named the Aultman Professor of Medical Ethics at Walsh University, even though such person
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`later testified during her deposition that Dr. Nashawati was the initiator of such developments
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`and subsequently instrumental in securing those positions for her.
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`44.
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`On November 24, 2014, Steven, in his capacity as Alexander’s “Personal
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`Representative” under federal Medicare laws, prepared and attempted to submit a grievance (the
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`“Alexander Grievance”) regarding the afore mentioned improprieties to both the AultCare MAP
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`and the Aultman Hospital Patient Advocacy Group (“Aultman PAG”). Doc. 1, p. 22, ¶90. A
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`representative of the AultCare MAP declined to accept the grievance on the grounds that it had
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`to be submitted and signed by the patient, i.e., Alexander. Doc. 1, p. 22, ¶91. Steven explained
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`that his father was in a coma and obtaining his signature was not possible. Doc. 1, pp. 22-23,
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`¶92. The representative indicated that there was nothing she could do to assist him. Id.
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`45.
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`Also, on that same day, Steven went to the Aultman PAG office to submit a copy
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`of his grievance. Doc. 1, p. 23, ¶93. He was informed by a representative, Ms. Jenny Shisler,
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`that the matter would be reviewed as required by Aultman Hospital policy and she would get
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`back to him. Id. On November 30, 2014, Steven delivered a “slightly revised and corrected
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`version of his original grievance” to the AultCare MAP and the Aultman PAG. Doc. 1, p. 23,
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`¶94.
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`46.
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`On December 2, 2014, the AultCare MAP informed Steven in an unsigned letter
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`that a grievance submitted by a non-enrollee could not be processed unless the patient had
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`designated the individual submitting the grievance in writing as the patient’s Power of Attorney
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`(“POA”). Doc. 1, p. 23, ¶95.
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`47.
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`Steven contacted the office of then-Congressman James S. Renacci for assistance.
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`Doc. 1, pp. 23-24, ¶¶96-97. On December 4, 2014, after Representative Renacci’s office
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`contacted the AultCare MAP, a representative of the AultCare MAP informed Steven that his
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`grievance would be accepted and processed. Doc. 1, pp. 23-24, ¶97.
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`48.
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`On December 17, 2014, Dr. Miller informed Plaintiff that Alexander’s care was
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`being transferred to the supervision of Alexander’s personal family physicians, Internal Medicine
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`Associates of Canton, Inc. (the “Family Doctors”).8 Doc. 1, p. 24, ¶ 98. Dr. Miller advised that
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`the ICU physicians would continue as consultants on Alexander’s case and Alexander would
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`remain in the same ICU room and be cared for by the same ICU nurses. Doc. 1, p. 24, ¶99. On
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`the evening of December 17, 2014, Steven had a photographer take still photographs of
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`Alexander’s right leg and foot to document the dry gangrene. Doc. 1, p. 24, ¶101.
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`
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`49.
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` On December 18, 2014, following a confrontation between Dr. Boutros and
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`Steven, during which Dr. Boutros screamed “. . . you are a terrible son; look at this man’s eyes,
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`he is dead; you should be ashamed to call yourself this man’s son[,]” (Doc. 1, p. 25, ¶103),
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`Steven supplemented his original grievance “describing Dr. Boutros’ unprofessional conduct and
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`
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`8 The Family Doctors were Dr. Robert Sabota, Dr. Kevin Hill, and Dr. Jason Bertram. Doc. 1, p. 24, ¶ 98.
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`defamatory remarks” and submitted it to the AultCare MAP (Doc. 1, p. 25, ¶106). Doc. 1, pp.
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`24-25, ¶¶ 102-107.
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`50.
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`The evening before Alexander’s death, at approximately 10:30 p.m., Steven and
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`Alexander’s wife were called to the hospital by Dr. Bertram, a family doctor who was
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`Alexander’s attending physician for the evening. Doc. 1, pp. 26-27, ¶113. Dr. Bertram informed
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`them that Alexander’s dry gangrene had developed into sepsis and the infection was affecting his
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`bloodstream and vital organs and Alexander’s death could be imminent. Doc. 1, pp. 24, 26-27,
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`¶¶ 98, 113. Steven and his mother went immediately to the hospital and remained by
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`Alexander’s bedside until his death early in the morning on December 31, 2014. Doc. 1, p. 27, ¶
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`114.
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`51.
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`Alexander was an enrollee in the AultCare MAP under Part C of the Medicare
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`Act. Doc. 1, pp. 40-41, ¶¶ 183, 186. Alexander was not provided his “Notice of Medicare
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`Rights” statement within 48 hours of his admission to Aultman on October 11, 2014. Doc. 1, p.
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`11, ¶36. In addition, during Alexander’s stay in the ICU, he and Steven were not provided any
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`notice or information regarding their rights to file complaints or seek review of Alexander’s
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`medical care. Doc. 1, p. 11, ¶37.
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`52.
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`Following Alexander’s death, on or about January 9, 2015, Steven received an
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`unsigned letter from the AultCare MAP indicating that the AultCare MAP had completed its
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`federally-mandated investigation of his grievance but could not share the results with anyone
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`because the information was deemed “peer review” and therefore “confidential.” Doc. 1, p. 27, ¶
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`115.9 Plaintiff felt that the response was unsatisfactory and informed the AultCare MAP of his
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`view. Doc. 1, p. 27, ¶116.
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`53.
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` In a letter dated February 20, 2015, the AultCare MAP responded “offering to
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`‘extend a hand and work with you to continue any necessary communications including a formal
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`response to your grievance,’ provided Plaintiff first submit additional ‘documentation or
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`information’ confirming he was the appropriate legal representative of his father’s affairs.” Doc.
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`1, p. 27, ¶116.
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`54.
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`In February 2015 and March 2015, on behalf of his father and then on behalf of
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`his mother who was also an enrollee, Steven requested from the AultCare MAP a complete
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`report of its grievance and appeals data for its most recent reporting period. Doc. 1, p. 28, ¶¶
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`118-120. With respect to the request submitted on behalf of Alexander, the AultCare MAP
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`would not provide the requested information on the basis that the AultCare MAP was not certain
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`that Steven was his father’s true representative. Doc. 1, p. 28, ¶119.
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`55.
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`The AultCare MAP provided the requested report on May 12, 2015, in response
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`to the request submitted on behalf of his mother. Doc. 1, p. 28, ¶120. Plaintiff alleges that the
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`report “failed to include the most recent data available and contained untrue statements of
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`material fact and omissions to state a material fact necessary in order to make the statements, in
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`light of the circumstances under which they were made, not misleading.” Doc. 1, p. 28, ¶121.
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`
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`56.
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`On May 27, 2015, Steven visited Aultman Hospital to check on the status of the
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`complaint submitted to the Aultman PAG, follow up with the AultCare MAP, and to start the
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`
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`9 Plaintiff also never received a response to the copy of the grievance submitted to the Aultman PAG.
`Doc. 1, p. 28, ¶117.
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`process of obtaining his father’s medical records. Doc. 1, pp. 28-29, ¶122. Upon arrival, Steven
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`was informed by an Aultman representative that senior Vice President Mark N. Rose had
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`instructed all Aultman personnel not to speak with or assist Steven and Steven was asked