MEDIA – Attorneys for Kindred Healthcare argue that a lawsuit, alleging a plaintiff was seriously injured during a rehabilitation session after leg amputation surgery, should instead be redirected through alternative dispute resolution.
Marjorie A. Foley and James A. Johnson of Upper Darby first filed suit in the Delaware County Court of Common Pleas on Feb. 12 versus Kindred Healthcare, Inc. and Kindred Hospitals East, LLC of Louisville, Ky., Kindred Rehab Services, LLC of Wilmington, Del., Kindred Hospital Philadelphia – Havertown and Rachel McDaniel, P.T. of Havertown, and Jane Does 1-2.
“During a period of time commencing on or about Jan. 18, 2019, through on or about Feb. 21, 2019, plaintiff Marjorie A. Foley was a patient of defendants for the purpose of skilled nursing care and inpatient rehabilitation after above-knee amputation of her right lower extremity, which had been performed upon her in January 2019 at Lankenau Medical Center,” the suit stated.
“At Kindred Hospital Philadelphia – Havertown, plaintiff was to receive skilled nursing care and inpatient physical therapy to increase her bed mobility and upper extremity strength, with progression to upright sitting, after above-knee amputation of her right lower extremity. Training would be at wheelchair level for sitting and locomotion with transition to the gym once able to tolerate being out of bed in a wheelchair.”
The suit added that the defendants knew or should have known that as a result of her body habitus, her condition, the nature of her recent surgery and an inconsistent response to physical therapy, plaintiff Foley was an individual with poor rehab potential and who was at risk for falls, especially during parallel bar activities.
Nonetheless, the suit claims defendant McDaniel insisted Foley attempt the parallel bars during a rehabilitation session on Feb. 21, 2019. What resulted was Foley falling to the ground near the parallel bars and sustaining a number of serious injuries, the suit said.
“As a result of the above-described fall during physical therapy on Feb. 21, 2019 caused by the conduct of the defendants, plaintiff Foley sustained an acute kidney injury, fractured hip and severely broken left femur, requiring surgical reduction and fixation and placement of a titanium rod in her left leg,” per the suit.
“Following the fall, plaintiff Foley was unable to walk or otherwise mobilize, was bedridden, was in severe pain and barely able to move. Accordingly, plaintiff Foley was admitted to Main Line Health and Life Care Hospital of Chester County for rehabilitation. As of April 26, 2019, plaintiff Foley was discharged to home where she has remained to date, completely bedridden and immobile.”
UPDATE
Counsel for the Kindred Healthcare defendants filed preliminary objections on March 12, arguing the case should be diverted through alternative dispute resolution.
“At the outset of her Kindred-Havertown admission, Foley verbally consented to an Alternative Dispute Resolution agreement. The agreement provides that all disputes between Foley and Kindred be resolved by alternative dispute resolution, initially mediation, and in the event of an impasse, arbitration. Kindred files the instant preliminary objection to have Foley’s cause of action referred to alternative dispute resolution per the ADR agreement,” the objections stated.
“When a party seeks to compel arbitration, the trial court’s inquiry is limited to determining whether a valid arbitration agreement was entered into, and, if so, whether the dispute in question is within the scope of the arbitration provision. Pennsylvania law requires that an agreement subjecting the potential controversy to arbitration must be, ‘valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity relating to the validity, enforceability or revocation of any contract.”
Additionally, the defendants argued that co-plantiff James A. Johnnson could not put forth a claim for negligent infliction of emotional distress.
“Plaintiff James A. Johnnson has been identified in the plaintiff’s complaint as ‘boyfriend/fiancée.’ In the seminal case of Sinn v. Burd, the Supreme Court of Pennsylvania determined that a person asserting this type of cause of action should be ‘immediate family’ or ‘closely related,” per the objections.
“Pennsylvania appellate courts have not recognized even a close and intimate relationship between boyfriend and girlfriend to be ‘closely related’ for purposes of a bystander claim. James A. Johnson does not have standing to bring a NIED claim as he does not meet the Pennsylvania appellate concept of ‘closely related.”
For counts of negligence and negligent infliction of emotional distress, the plaintiff is seeking damages, individually, jointly and/or severally with the other named defendants, in excess of the jurisdictional limit for arbitration, plus interest, costs and damages for pre-judgment delay, and a trial by jury.
The plaintiffs are represented by Jeffrey M. Cooper in Upper Darby.
The defendants are represented by John M. Skrocki and Christine C. Blair of Burns White, in West Conshohocken
Delaware County Court of Common Pleas case CV-2021-001661
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com