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Nurse failed to check infant's hot bath water, guardian alleged

Amount:

$3,250,000

Type:

Mediated Settlement

State:

New Jersey

Venue:

Hudson County

Court:

Hudson County Superior Court

Injury Type(s):

leg-scar and/or disfigurement, leg; ankle; burns-third degree; burns-second degree; other-physical therapy; other-scar and/or disfigurement; foot/heel-foot; mental/psychological-post-traumatic stress disorder

Case Type:

Medical Malpractice - Nurse; Professional Negligence - Home Health Care; Abuse or Neglect

Case Name:

Destiny Abdelmalak, by her guardian ad litem Mariem Khella and Mariem Khella, individually v. Ellen Ejimkanye, Stouffers Home Care and Joel Markel, No. HUD-L-3035-14

Date:

November 2, 2016

Parties

Plaintiff(s):

Destiny Abdelmalak (Female, 18 Months)

Plaintiff Attorney(s):

Steven P. Haddad; Haddad Law Offices; Jersey City, NJ, for Destiny Abdelmalak

Plaintiff Expert(s):

Asaad Samra; M.D.; Plastic Surgery/Reconstructive Surgery; Old Bridge, NJ called by: Steven P. Haddad

Defendant(s):

Joel Markel, 

Ellen Ejimkanye, 

Stouffer's Home Care

Defense Attorney(s):

Joseph Lang; Lenox Law Firm; Lawrenceville, NJ, for Joel Markel, Ellen Ejimkanye, Stouffer's Home Care

Defendant Expert(s):

Douglas Benson; General Surgery; Hackensack, NJ called by: Joseph Lang

Insurer(s):

ProAssurance Corp. for Ellen Ejimkanye, Stouffer's Home Care and Joel Markel

Facts:

On June 5, 2014, minor plaintiff Destiny Abdelmalak, an 18-month-old infant, was under the care of home healthcare nurse Ellen Ejimkanye at the home of Abdelmalak's guardian, Mariem Khella, in Jersey City. Ejimkanye was contracted to provide care for Abdelmalak, who had been born prematurely and suffered from conditions including sleep apnea. After drawing a bath, Ejimkanye began to place the infant in the bathtub. Abdelmalak sustained burns to her feet and ankles from scalding hot water. Khella, on behalf of her infant niece, sued Ejimkanye and her employer, Stouffer's Home Care (another defendant, Stouffer's principal, Joel Markel, was named but dismissed on summary judgment, in 2015.) Khella alleged Ejimkanye was negligent in her failure to check the temperature of the bathtub water before placing Abdelmalak inside, and that her negligence amounted to medical malpractice. Ejimkanye and Stouffer's Home Care denied liability. They argued that Ejimkanye had acted appropriately and the overheated water had been an unforeseeable accident. In deposition testimony, Ejimkanye stated she had checked the temperature of the water before attempting to place the infant in the tub and was unsure how the scalding had occurred.

Injury:

Khella returned home and Abdelmalak was taken by ambulance to a hospital emergency room. She was hospitalized for two months. Ejimkanye was later charged with child neglect and lost her nurse practitioner license. Abdelmalak was diagnosed with second- and third-degree burns to her feet and ankles. Her right foot and ankle sustained the majority of burns. Because of concerns about Abdelmalak's health due to her premature birth, her treating physicians did not choose to pursue surgical intervention. Abdelmalak underwent several months of physical therapy in order to help with her ability to move her feet and ankles. She developed severe scarring to her feet and ankles. Her guardian claimed the infant developed post-traumatic stress disorder (PTSD) due to the incident. She believes the infant may develop diminished ability to move her right ankle as she grows. Khella sought damages for her niece's pain and suffering and also sought damages for negligent infliction of emotional distress on her own behalf. She claimed a medicaid lien of approximately $200,000. Abdelmalak's expert plastic surgeon in a report stated that the infant would require surgery to treat diminished range of motion in her right ankle. The defendants disputed damages, arguing there was no evidence of permanent psychological injury to the infant. They also contended that there was no indication that the infant would develop range of motion issues within her right ankle in the future. The defense's expert on general surgery in a report concluded that there was no reason to believe Abdelmalak would develop a decreased range of motion in her ankle as she grew older.

Result:

The parties agreed to a $3.25 million settlement during mediation before retired judge Mark Epstein. Khella received $150,000, with the remaining amount to be given to Abdelmalak. The settlement was paid from the defendants' $5 million insurance policy with ProAssurance Corp.

Trial Information:

Judge:

Mark Epstein

Editor's Comment:

This report is based on information that was provided by plaintiff's and defense counsel.