Families pursue legal action against Billings care facility for negligence during COVID

Lawsuit: Canyon Creek chose profit over people, leaving them to suffer

By: - March 13, 2022 8:19 am

Canyon Creek Memory Care Community in Billings, Montana (Photo by Darrell Ehrlick of the Daily Montanan).

Sleeping isn’t as easy for Dean Simons as it used to be.

It certainly wasn’t like when his wife, MaryAnn, was right next to him.

But it’s not just her absence beside Simons that keeps sleep at bay. It’s the thought that she suffered and he was helpless and so was she, confined to her memory care facility in Billings, locked down by COVID-19 protocols, while he was kept in the dark about her gradually deteriorating condition.

Neither MaryAnn Simons nor another patient, Robert W. Petersen, died of COVID-19. Instead, both of them deteriorated while in the care of Canyon Creek Memory Care in Billings, during the lockdown.

Families for both of them are being represented by Heenan and Cook in Billings, and attorneys say the for-profit center knew about the pandemic, pledged to care for both Simons and Petersen who needed constant care, and yet neglected to maintain the proper staffing with protocols to provide even the most basic care. Both families tell of Simons and Petersen losing weight, being clinically dehydrated and developing sores from lack of attention. Both families describe discovering their loved ones sitting in their own urine when they were allowed to see them. And both died shortly after from conditions that attorneys say were preventable.

Canyon Creek Memory Care is owned by Koelsch Senior Communities, which is the subject of a lawsuit by the estate of Petersen.

Koelsch, through its attorneys and court filings, denies all the claims in the lawsuit, saying that federal emergency rules implemented by the federal government at the beginning of the pandemic in 2020 make them immune from these lawsuits, and have asked a federal judge to dismiss claims against them.

Attorneys Teague Westrope and John Heenan have countered that federal emergency rules don’t apply and that federal courts throughout the nation have been rejecting the argument that negligence and lack of proper care are protected by the federal exemptions. Further, neither Simons nor Petersen died as a result of COVID-19, rather deteriorated because Canyon Creek allegedly didn’t care properly for its residents, leading to the Montana National Guard having to be called in to staff the center, which touts care for patients with dementia and in need of memory care.

Robert W. Petersen

Before COVID hit Canyon Creek in the summer of 2020, Misty Mitchell, Petersen’s daughter, spent nearly every day by her father’s side. She was a proud “Daddy’s girl” even though it meant reminding him to eat or drink.

Parkinson’s-related dementia meant that he could still take care of some things for himself, especially if he was prompted. For example, he could walk with his walker, drink and eat with a bit of help, and even answer the phone, when prompted (he didn’t know why it would ring, or remember to pick it up when it did).

Misti Miller and Robert Petersen (Photo courtesy of Misti Miller).

He lived for his kids and grandkids, Mitchell said, and she made a picture board in his room with names, birthdates and photos. The former stockbroker who got his start selling soap door to door was a die-hard University of Montana Grizzlies’ fan who never the lost the taste for a McDonald’s cheeseburger or a soft-shell taco from Taco Bell.

Mitchell was his “hang-out buddy,” helping him eat, and making sure he got to the bathroom on time. She was both daughter and personal care assistant — a role she said she didn’t mind, even though they were paying Canyon Creek.

She said that many times she’d arrive in the morning to find him “soaking in a mess of his own urine.” She would help clean him up.

“The relief in his face,” Mitchell said. “He was always happy to see me even though he didn’t know my name. He recognized that I was here to help.”

She would bring up concerns with the staff, going to the director of Canyon Creek only to be rebuffed. She said that she was happy to learn how to shave him every day, something he enjoyed. She even brought extra bedsheets for him and tried to straighten his room.

It didn’t bother her as much because she knew the staff members were working hard to take care of so many people and it seemed like they were perpetually understaffed.

The last time Mitchell saw her father before the COVID shutdown of the facility hit, he could walk with a walker, brush his teeth, feed himself and drink. He could speak in complete sentences.

For three weeks, Mitchell and her siblings watched the news and tried to check in with the staff, who told them Petersen was doing fine. They were welcome to call, but the phone would just ring because he wouldn’t remember to pick it up.

“They just bullsh—ted me,” Mitchell said.

Three weeks later, he lost weight and was dehydrated, and couldn’t eat and drink on his own, Mitchell said.

He was especially reticent to drink because drinking meant having to use the bathroom and there were not enough staff to help him, which often led to him urinating himself and sitting in his own waste, said Mitchell. Nurses-call buttons were installed because many residents in need of memory care wouldn’t remember to use them. And motion-sensor lights, which turned on with movement as a signal to staff, were useless because doors were closed.

When she later saw her father, she was shocked at how far he had deteriorated in less than a month. She asked the nurse for IV fluids.

“The nurse told me, ‘All of our residents could use IV fluids,’” Mitchell said.

There were two large bedsores on his lower back, evidence the lawsuit said, of neglect.

For two days, Mitchell asked to have her father transported to the hospital. For two days, staff denied the request, she said. Finally, unable to walk, having lost 10 pounds from his already light 140-pound frame, Petersen spiked a 102-degree temperature because of an infection and slipped out of consciousness.

Mitchell said at the hospital, they discovered bedsores, a urinary infection and that he was in need of three bags of IV fluids.

“In the hospital, he came to long enough so that I could sponge his mouth and give him a little chocolate pudding. He woke up and said he wanted to stand. I asked, ‘Why, Dad?’ and he said that he wanted to give me a hug,” Mitchell said. “He went unresponsive that night and we said our goodbyes.”

She gave him the hug, but he never stood again.

After 10 days in the hospital, he was getting prepared to go back to Canyon Creek, but Miller and her brothers couldn’t send him back.

“They just wanted the paycheck back,” Mitchell said of Canyon Creek.

Instead, Mitchell took her father to her home, as the family and other respite care workers helped support her for the month of hospice.

“None of this would have happened if they had done their job,” Miller said.

Like Simons, it wasn’t just the way her father died that bothers she and her family. It’s what he went through.

“I would tell my dad that I am sorry that I ever left him there, even though I trusted them to take care of him, especially because we were private pay,” she said. “He had to have been so scared and he probably didn’t understand why I left him. Who knows how long he sat in his own filth or slept in dirty bedding? Who knows if he got a shower?

He had to have felt so abandoned, and he always told me I was his ‘best buddy.’ I would tell him, ‘Daddy, I gave and we gave the best we could.’”

She said Canyon Creek and its corporate owners want to make the lawsuit and the care about COVID, but she said she lodged complaints about understaffing and care long before the virus. She was lucky because she could be with him for nearly 40 hours per week, but other residents were left in wheelchairs and once she had found her father on the toilet where he’d likely been for hours after a nursing assistant forgot him, she said.

“There was negligence prior to the National Guard and prior to COVID,” Mitchell said. “My father is not the only one. They didn’t have a good enough plan before COVID.”

MaryAnn Simons

Dean Simons met MaryAnn Feist at a barn dance in 1961. He had to go to the dance because taking his sister there was the only way his father would let him use the car.

After the dance, they talked for hours and quickly started dating. A year later, they were married in South Dakota.

Simons moved to Columbus in 1969 to work for a bank in the agriculture lending department. With Dean working at the bank, MaryAnn raised the four kids, three boys and a girl, and was a neighborhood mother and grandmother to every kid and animal nearby. No one made cinnamon rolls like MaryAnn, and she taught her own family and neighborhood kids how to bake.

After a series of smaller strokes, MaryAnn had a larger stroke that left her unable to care for herself. The Simons family toured facilities, eventually settling on Canyon Creek, which looked nice. Dean would make the trip almost daily just to sit with her and hold hands.

Dean said MaryAnn would get frustrated by the things she could no longer do, including standing and walking, and she relied on several nursing assistants to help. She could get dehydrated so Dean was religious about making sure she had enough to drink, including reminding her about Gatorade.

Dean misses those naps in the love seat where she’d drift off for some shut-eye and he would hold her in his arms.

“Mentally, she was still there,” Dean said.

The last time he got to sit with her, she fell asleep in his arms. He left at about 3 that afternoon, giving her a kiss, just like every other day.

When the COVID shutdown meant that family couldn’t visit, they tried an iPad for communication, but it was difficult. And something was wrong. MaryAnn seemed to be mentally fading right before their eyes.

Concerned family members would call Canyon Creek staff, but Dean said he was assured she was fine.

He would call to request seeing her on the iPad.

“Seldom if ever did they call back. They said she was doing OK, but that wasn’t the truth. They weren’t taking care of her special needs,” Simons said.

On July 25, MaryAnn was taken to the hospital. Tests were run and X-Rays were taken. There was no symptoms of COVID, but she had a raging urinary tract infection.

“They said they had never seen someone in this condition,” Simons said.

Because MaryAnn needed help drinking and using the bathroom, it was clear Simons said that they had not taken care of her according to her medical needs.

Her potassium was nearly off the charts.

“She had terrible bed sores,” he said. “One was so bad that she had a bad odor. They weren’t ever turning her. That’s what I was paying them for and yet no one knew it.”

On Aug. 4, MaryAnn went into hospice in Columbus. On Aug. 10, she died.

“I was holding her hand,” Simons said. “I just can’t believe how much she was in terrible pain and because of her strokes, she couldn’t tell anyone. I knew they had problems. They said they were good, but they had lost their help.”

He wakes sometimes in the middle of night thinking about her, thinking about the last days.

“I wish I would have known,” Simons said. “I feel so bad that she was in pain and no one took care of her. I couldn’t even go help her to eat.”

The lawsuit

Heenan and Westrope have filed a lawsuit on behalf of Petersen’s estate and are representing Simons, although nothing has been filed yet on behalf of MaryAnn.

The lawsuit claims that Canyon Creek and its parent company of for-profit senior communities, had ample time to prepare for the oncoming COVID challenge because it was already dealing with it in other parts of the country. Rather than preparing to keep its promises to patients and their families, the lawsuit said it remained focused on making money rather than staffing properly, leading to negligent care and not holding up its assurances.

For its part, Koelsch Senior Communities have filed motions to dismiss the lawsuit, saying it’s immune from the suit because of protections granted by Congress and that the family can file for compensation through a separate fund.

However, Westrope and Heenan dispute that saying neither resident died from COVID or because of it, rather suffered neglect because Koelsch would not properly staff and keep residents’ families informed about their loved ones’ conditions.

The suit alleges that Koelsch cut staff “to increase profit margins.”

“Canyon Creek’s staffing levels were intentionally insufficient during Petersen’s time as a resident to limit expenses and maximize revenue,” it said. “Koelsch Communities made corporate decisions to limit developing and implementing certain infection prevention and control protocols at Canyon Creek during the COVID-19 pandemic to limit expenses and maximize revenue.”

Moreover, Koelsch had made headlines months before when one of its centers in Kirkland, Washington, had 35 deaths due to a COVID-19 outbreak.

“As such, Koelsch Communities could reasonably foresee that a failure to develop and implement proper infection prevention and control protocols could lead to catastrophic results in its own communities,” court documents allege.

Before Canyon Creek, court documents show outbreaks in several other Koelsch-owned facilities in Illinois and Texas.

It alleges that Petersen’s cause of death was gross negligence because of dehydration and malnutrition.

However, Koelsch defends itself, saying the measures it took to isolate patients and care for them during the lockdown was a direct response to COVID, including how it managed staffing and COVID tests, all of which are covered by the Public Readiness and Emergency Preparedness Act, and so they have immunity against the lawsuit.

Moreover, attorney Abbie Cziok in Helena argues that the PREP Act has a Countermeasure Injury Compensation Program, which Miller and her family should instead be applying to because it’s set up to address the loss.

Meanwhile, Heenan and Westrope argue that Koelsch’s action has nothing to do with “a COVID-19 countermeasure.”

Editor’s note: This story has been updated to reflect that Mr. Petersen’s room did have a call button. 

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.