Raleigh Co. judge tells plaintiff to try again on complaint

BECKLEY - A motion to dismiss has been denied and the plaintiff has been ordered to file a "proper second amended complaint" in her lawsuit against HCR ManorCare Services of Florida LLC.

Joclara Hanshew and Kathy Keckler were also named as defendants in the suit. Hanshew was later voluntarily dismissed on March 25.

"(T)he court is guided here by the rather restrictive standard in ruling on motions for judgment on the pleadings. Simply put, this court is not yet convinced that the plaintiff can prove no set of facts that will support her claim for the requested relief," according to an order denying HCR ManorCare Medical Services of Florida's motion to dismiss filed in Raleigh Circuit Court on Oct. 25.

The court is cognizant of the fact that one amended complaint has been proposed in this case, and that such amended complaint is "deficient on its face," Circuit Judge H.L. Kirkpatrick III's order states.

"Out of an abundance of caution, however, the court will extend to the plaintiff one last opportunity to amend her pleading in order to avoid the harsh sanction of dismissal for failure to articulate a claim upon which relief can be granted," Kirkpatrick's order states.

"Such newly amended complaint should identify with particularity any substantial public policy associated with her claims for wrongful discharge, and describe how the facts of her case fall within the purview of the West Virginia Human Rights Act..."

On Feb. 28, the lawsuit was removed from Raleigh Circuit Court to the U.S. District Court for the Southern District of West Virginia at Beckley, and on March 6, HCR filed a motion to dismiss.

On May 30, the lawsuit was remanded back to Raleigh Circuit Court.

Lynda Pruett was employed by HCR ManorCare, which operated Heartland of Beckley, and was fired on March 23, 2012, after she claims she allegedly made a medication error while working on March 3, 2012, according to a complaint filed Jan. 28 in Raleigh Circuit Court.

Pruett claims she was not working in the area where the alleged event took place on March 3, 2012, and that she never administered medication to the patient.

Keckler advised Pruett that she did not have to terminate her employment, but that it was her personal choice to do so, according to the suit.

Pruett claims she went to Hanshew for assistance, but nothing was done.

Prior to Pruett's termination, Keckler allegedly repeatedly screamed at and ridiculed her, and nothing was done by Hanshew to stop the conduct, according to the suit.

Pruett is seeking compensatory damages. She is being represented by Greg A. Hewitt and Amy A. Osgood of Hewitt & Salvatore PLLC.

The defendants are being represented by Charles A. Linn and Tamara B. Williamson of Littler Mendelson PC.

Raleigh Circuit Court case number: 13-C-65