Case 3:10-cv-00069-CRW-RAW Document 1 Filed 06/03/10 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION

)
RFMS, INC., CORALVILLE MANOR, LLC, ) CASE NO. __________________
EDWIN ENTERPRISES, L.L.C., d/b/a )
WINDMILL MANOR, )
)
Plaintiffs, ) COMPLAINT
)
v. )
)
UNITED STATES OF AMERICA, )
)
Defendant. )
)

COME NOW Plaintiffs, RFMS, Inc., Coralville Manor, LLC, and Edwin

Enterprises, L.L.C., d/b/a Windmill Manor, and for their Complaint state as follows:

JURISDICTION, VENUE, AND CONDITIONS PRECEDENT

1. RFMS, Inc. is a Nevada corporation, with its principal place of business in

Galesburg, Illinois.

2. Coralville Manor, LLC is an Iowa limited liability company, with its

principal place of business in Coralville, Iowa.

3. Edwin Enterprises, L.L.C. is an Illinois limited liability company, with its

principal place of business in Galesburg, Illinois.

4. Collectively, RFMS, Inc., Coralville Manor, LLC and Edwin Enterprises,

L.L.C. do business as Windmill Manor. Windmill Manor is a long-term nursing care

facility located in Coralville, Iowa.

5. The United States of America is a sovereign nation.

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6. The United States created and controls the Department of Veterans

Affairs which operates the VA Medical Center located in Iowa city, Iowa (hereinafter

“VA Hospital”).

7. Plaintiffs’ claims are brought against the United States pursuant to the

Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. and 28 U.S.C. § 1346(b)(1), for money

damages for loss of property that were caused by the negligent and wrongful acts and

omissions of employees of the United States while acting within the scope of their

employment, under circumstances where, the United States, if a private person, would be

liable to Plaintiffs in accordance with Iowa law.

8. Venue is proper in that all, or a substantial part of the acts and omissions

forming the basis for Plaintiffs’ claims occurred in the Southern District of Iowa,

Davenport Division, and arose from the negligent treatment of one Vernon Ziskovsky

while he was a patient in the care of the VA Hospital.

9. Plaintiffs have fully complied with the provisions of 28 U.S.C. § 2675 of

the Federal Tort Claims Act. Plaintiffs filed their administrative complaint with the

United States Department of Veterans Affairs Regional Counsel on November 10, 2009,

and six months have passed during which no decision was rendered. (A copy of the

claim is attached hereto as Exhibit A.)

10. This suit has been timely filed under 29 U.S.C. § 2401(b).

EVENTS FORMING THE BASIS OF PLAINTIFFS’ CLAIM

11. On August 2, 2006, Vernon Ziskovsky (“Ziskovsky”), a diabetic, entered

the VA Hospital for treatment of an ulcer on his right foot that had progressed to

osteomyelitis.

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12. When Ziskovsky arrived, he also presented with two areas of skin

breakdown on his buttocks.

13. While at the VA Hospital, Ziskovsky’s initial foot ailment necessitated

amputation of his right foot and right leg below the knee.

14. Ziskovsky developed a new ulcer on his left foot while in the VA

Hospital’s care.

15. On August 18, 2006, Ziskovsky was transferred to Windmill Manor

because he no longer needed acute medical care.

16. When Ziskovsky arrived at Windmill Manor, he had three areas of skin

breakdown on his buttocks, and a surgical wound from the amputation performed at the

VA Hospital.

17. Within days of his arrival, Ziskovsky’s three separate areas of skin

breakdown on his buttocks deteriorated further into one large area of breakdown.

18. Windmill Manor provided adequate care in treating Mr. Ziskovsky’s skin

breakdown.

19. On or about September 1, 2006, Ziskovsky’s surgical wound from the

amputation performed by the VA Hospital partially broke open. Windmill Manor called

the VA Hospital seeking admission of Ziskovsky for treatment.

20. On September 5, 2006, Ziskovsky visited the VA Hospital for a clinic

visit. Ziskovsky was examined, but the VA Hospital provided no specific instructions

relating to treatment of the surgical wound. Ziskovsky then returned to Windmill Manor.

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21. By September 9, 2006, Ziskovsky’s surgical wound had deteriorated

further; Windmill Manor again contacted the VA Hospital to express its concerns

regarding the condition of the surgical wound.

22. The VA Hospital recommended that Windmill Manor treat Ziskovsky

with an oral antibiotic, but stated that the VA Hospital did not need to examine

Ziskovsky.

23. Windmill Manor then contacted the University of Iowa Hospital in Iowa

City, Iowa, and Ziskovsky was transferred there for medical care on September 9, 2006.

24. When Ziskovsky arrived at the University of Iowa Hospital he was septic;

infection from his wounds had spread into his blood stream.

25. A few days later, the University of Iowa Hospital performed surgery on

the surgical wound, and on the skin breakdown on Ziskovsky’s buttocks.

26. On September 27, 2006, Ziskovsky was transferred from the University of

Iowa Hospital to Select Specialty Hospital in Davenport, Iowa. Select Specialty Hospital

is a private hospital that provides aggressive, long-term care.

27. By October 3, 2006, the level of potassium in Ziskovsky’s blood increased

rapidly to a life threatening level.

28. At this time, Ziskovsky also suffered from difficulty in swallowing.

29. To treat Ziskovsky’s elevated potassium levels, Select Specialty Hospital

administered a powdered oral medication, Kayexalate, to Ziskovsky.

30. Ziskovsky choked on the medication, and had to be placed on a ventilator

to enable him to breathe.

31. Ziskovsky again became septic, and developed pneumonia.

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32. Shortly thereafter, Ziskovsky’s family requested that use of the ventilator

be terminated.

33. Ziskovsky died on October 17, 2006. His cause of death was determined

to be cardiac arrest secondary to sepsis, secondary to pneumonia.

VA HOSPITAL’S NEGLIGENCE

34. The VA Hospital and its employees were negligent in treating Ziskovsky,

as the treatment provided did not meet the applicable standards of care. This negligence

resulted in injury to Ziskovsky which eventually led to his death.

35. The VA Hospital breached the standard of care owed to Ziskovsky as

follows:

a. The VA Hospital failed to provide services to prevent the

development of new pressure ulcers, as Ziskovsky developed new skin lesions on his left

heel while in the VA Hospital’s care.

b. The VA Hospital recommended a special seat cushion for

Ziskovsky to minimize pressure on the skin lesions on his buttocks, but never obtained

the cushion.

c. The VA Hospital failed to assess or measure Ziskovsky’s buttock

wound.

d. The VA Hospital’s wound care nurse failed to evaluate the skin

breakdown on an ongoing basis, resulting in deterioration of Ziskovsky’s skin lesions.

e. The VA Hospital did not schedule a return evaluation appointment

for Ziskovsky in a timely manner after he was discharged to Windmill Manor.

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f. When the community based physician at Windmill Manor insisted

that Ziskovsky be examined at the VA Hospital on September 5, 2006, the VA Hospital

provided inappropriate assessment and follow-up care. The VA Hospital took no

measurements of the surgical wound although wound dehiscence was present which

clearly indicated deterioration, no assessment was made of Ziskovsky’s decubiti, no oral

antibiotics were ordered, no protocol was communicated to Windmill Manor, and no

dressing supplies or other prescriptions were ordered or provided.

g. The VA Hospital refused to see Ziskovsky for assessment when

Windmill Manor contacted the VA Hospital on September 9, 2006 reporting Ziskovsky’s

declining condition. The VA Hospital merely insisted that Windmill Manor order oral

antibiotics without a clinic visit. The VA Hospital orally admitted to representatives of

Windmill Manor that Ziskovsky should have been treated with oral antibiotics beginning

on September 5, 2006.

36. United States employees who treated Ziskovsky include, but are not

limited to:

a. Bethany Williams, R.N.

b. Melinda McDonald

c. Faye Buckner, R.N.

d. John Streinz, R.N.

e. Jodie Dewild, R.N.

f. Sandra Klever, R.N.

g. Suzanne Krebs, R.N.

h. Linda Fettkether, R.N.

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i. Elizabeth Carlson, R.D.L.D.

j. Craig C. Lyon, M.D.

k. Jaspreet Chalal, M.D. Endocrine Staff

l. Jeff Campbell

m. Ramzi N. El Accaoui

n. Jeff Adcock, Physical Therapist

37. These breaches of the standard of care were a proximate cause of injury to

Ziskovsky.

38. The negligence of VA Hospital damaged Ziskovsky.

COUNT I: CONTRIBUTION

39. On August 28, 2008, Ziskovsky’s estate filed suit against Plaintiffs in the

Iowa District Court for Johnson County, Law No. LACV 069717, alleging that

Ziskovsky’s death resulted from Plaintiffs’ negligence.

40. On December 12, 2008, Alan Ziskovsky and Lynette Fevold, individually

and as co-executors of the Estate of Vernon H. Ziskovsky, and Marilyn Ziskovsky,

individually (“the Releasing Parties”), entered into a Release and Confidential Settlement

Agreement, releasing and discharging Plaintiffs for any liability arising from the facts

and circumstances relating to Ziskovsky’s care at Windmill Manor. (A copy of the

settlement agreement is attached as Exhibit B.)

41. Plaintiffs paid $250,000.00 in exchange for this release.

42. The negligence of employees of the United States, acting with in the scope

of their employment, led to the injury and death of Ziskovsky, for which the Releasing

Parties could have held the United States liable.

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43. Through the settlement, Plaintiffs discharged any liability of the United

States had to the Releasing Parties.

44. Common liability exists between Plaintiff and VA Hospital based on the

negligence of such parties in their care and treatment of Ziskovsky which caused damage

to Ziskovsky

45. Because Plaintiffs discharged any liability of the United States and

common liability exists between Plaintiffs and VA Hospital for the injuries sustained by

Ziskovsky, Plaintiffs are entitled to contribution from VA Hospital.

46. Plaintiffs damages are liquidated and amount to $250,000.

WHEREFORE, Plaintiffs RFMS, Inc., Coralville Manor, L.L.C, and Edwin

Enterprises, L.L.C. prays the court enter judgment against the United States in the

amount of $250,000 plus interest and court costs, including reasonable attorneys’ fees,

and for such further relief as the Court deems just, equitable, and appropriate.

/s/ Stanley J. Thompson

Stanley J. Thompson, AT0007811
Davis, Brown, Koehn, Shors
& Roberts, P.C.
The Davis Brown Tower
215 10th Street, Suite 1300
Des Moines, Iowa 50309
Telephone: (515) 288-2500
Facsimile: (515) 243-0654
E-mail: StanThompson@davisbrownlaw.com

ATTORNEY FOR PLAINTIFF