MEDIA – Kindred Healthcare is attempting to have a lawsuit filed by an Upper Darby woman against it and a group of its physical therapists, after one of the plaintiffs was seriously injured during a rehabilitation session after leg amputation surgery, redirected to alternative dispute resolution.
Marjorie A. Foley and James A. Johnson of Upper Darby initially 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 claimed 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
After an amended complaint was filed on March 23 which deleted Johnson’s claims from the suit, Kindred Healthcare filed preliminary objections to the revised version of the case on April 11, which seek to have the sent to mediation instead.
“At the outset of her Kindred-Havertown admission, Foley verbally consented to an Alternative Dispute Resolution (ADR) 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.
“Plaintiff Foley and Kindred have contractually agreed that all claims between them, ‘including claims for negligence and medical malpractice,’ shall be submitted to alternative dispute resolution. Agreements such as these have longstanding legislative support, most notably, emanating from the Federal Arbitration Act, 9 U.S. Code Title 9 (Secs. 1-16). Such agreements have been upheld by Pennsylvania appellate courts many times.”
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