U.S. Markets closed

Patient Paralyzed in Rehab Center Fall Gets $28.6M Verdict, But High-Low Deal Limits Recovery

A hospital hallway

An Essex County jury returned a $28.6 million verdict against the Kessler Institute for Rehabilitation Monday on behalf of a patient who became a paraplegic due to spinal injuries suffered when aides moved her from a toilet to a wheelchair.

However, the plaintiff won't recover that amount, thanks to a confidential high-low agreement that was in place during the trial.

Sandra Szell, now 72, claimed in her suit that Kessler employees who assisted her were negligent for failing to safely make the transfer. She also claimed that Kessler was vicariously liable for the negligence of its employees. The suit names three Kessler rehabilitation assistants as individual defendants—Agnes Blaszcyk, Laura Priester and Ronald Thomas—and says that all three deviated from accepted standards of care while making the transfer.

Szell was admitted to Kessler's facility in Chester on Jan. 22, 2015, while recovering from back surgery to treat spinal stenosis, scoliosis and other problems. She sustained a spinal cord injury two days later and has been paralyzed from the chest down ever since.

The verdict was returned following a trial before Judge Robert Gardner.

According to court documents, two doctors and a physical therapist who offered expert testimony on behalf of Szell said she was "yanked" backward into the wheelchair and that the three rehabilitation assistants did not use a safe or proper technique when moving her. Priester later claimed she had no recollection of the incident, and Blaszcyk and Thomas gave widely varying versions of what happened.

The experts said Blaszcyk initially determined she would not need assistance while getting Szell, who weighed 230 pounds, out of bed, into a wheelchair and onto the toilet, but she should not have attempted to perform the maneuver alone. When she was unable to move Szell out of the wheelchair, she summoned Priester. Blaszcyk and Priester moved Szell onto the toilet but later struggled to lift her to get up, according to court documents. Priester then left to summon help and returned with Thomas.

Thomas later testified that he arrived to find the patient in an "uncomfortable position," sliding off the commode and almost on to the floor, according to court documents. But Blaszcyk testified that the patient remained squarely on the commode at all times. Thomas testified that he lifted Szell back onto the commode.

Szell testified that she pulled herself up from the toilet into a standing position but felt she was going to fall, then was "yanked" rapidly backward into the wheelchair by Thomas. She testified that she heard a snapping or a crunch sound but was unsure where it came from. Once she got back in bed, Szell reported a sensation of pins and needles in her feet. The following morning, she said, she was unable to move from just below her chest. She was taken to Morristown Medical Center, where a CT scan showed she had a new spinal fracture.

Szell was represented by Carol Forte of Blume, Forte, Fried, Zerres & Molinari in Chatham. Forte was surprised by the size of the jury award.

"I cannot explain it. I don't know how to account for that number. I guess they felt sorry for her," Forte said. She added that Szell, a former New Jersey resident now living in Florida, testified by Skype because she was unable to travel for the trial.

Forte said the three rehabilitation assistants received training from Kessler on how to perform various tasks such as transferring a patient, but their testimony showed they did not follow prescribed methods for carrying out such tasks.

The jury found that Blaszcyk and Thomas deviated from the standard of care in treating Szell but concluded that Priester did not. The jury apportioned 96 percent of responsibility for Szell's injury to Kessler's negligent training and that Blaszcyk and Thomas were each 2 percent responsible. Priester was found not responsible.

The jury awarded $25 million for pain, suffering and loss of enjoyment, $3 million for the cost of Szell's future medical care, $200,000 for the plaintiff's out-of-pocket expenses and $400,000 for past and future care by the plaintiff's family members.

Paul Daly of Hardlin, Kundla, McKeon & Poletto in Springfield represented Kessler and the individual defendants.

Derek Bahl, vice president and senior counsel for litigation at Select Medical in Mechanicsburg, Pennsylvania, owner of Kessler Institute, said in a statement, “While Kessler acknowledges the jury’s verdict, the case was in fact resolved during the trial for a confidential sum pursuant to a high-low agreement between the parties that included no admission of liability on the part of Kessler or its employees.”