Wichita school district considers $500,000 settlement in lawsuit alleging student’s chemical burns

01/24/2014 9:04 AM

01/24/2014 2:58 PM

The Wichita school district is considering a $500,000 lawsuit settlement to a student who allegedly was burned by a chemical cleaning solvent in a bathroom at Kelly Elementary School in 2009.

The proposed settlement would be the largest by the district in at least 20 years, officials said.

According to court documents, Ethan Belcher was a first-grader at Kelly Elementary in 2009 when he went into a bathroom stall and lowered his pants to use a urinal. His pants and undergarments soaked up a liquid that had pooled onto the floor, the lawsuit says. After pulling up his pants and returning to his classroom, Ethan “began complaining of burning and stinging” in the area of his left hip, the lawsuit says.

The lawsuit, filed in July by Ethan and his mother, Marsha Smith, names the school district and former school nurse Cynthia Ann Thomas. It alleges that the boy’s teacher sent him to the nurse, who “did not examine the area. … Instead, she gave (the student) an ice pack and sent him back to his classroom.”

After Ethan’s symptoms worsened, his teacher carried him back to the nurse’s office, the lawsuit says. Thomas then looked at the boy’s hip and discovered a wound about 5 inches by 4 inches.

Doctors at Via Christi Regional Medical Center later determined that Ethan “had been exposed to an alkaline chemical that caused a third degree chemical burn,” the lawsuit says. According to the suit, the wound grew and Ethan spent one month in the burn unit at Via Christi-St. Francis in early 2009, undergoing multiple surgeries and major skin grafting.

The suit alleges the district was negligent in allowing caustic chemicals to pool in the restroom and “further negligent in failing to properly train its agents and employees on what to do in the event a child comes into contact with … hazardous chemicals.”

Tom Warner, the Wichita attorney representing the boy and his mother, said the proposed settlement – the maximum allowed against a government body under the Kansas Tort Claims Act – is warranted and should serve as a warning to families.

“I think this case demonstrates that there are dangers lurking in our schools that probably most families are unaware of,” Warner said Friday.

“When we send our children to school, we assume that any dangerous chemicals that are used at the school are safely used by people who are properly trained to use them.”

Warner said Ethan, now a sixth-grader in the Haysville district, was traumatized and permanently scarred by the injury. Experts said during depositions that the delay in treatment likely worsened the boy’s injuries.

“This kid went through hell,” Warner said.

Wendy Johnson, a spokeswoman for the Wichita district, said the case “was an unfortunate and isolated occurrence.”

“Since that time, we have continued to emphasize established procedures and practices from both a nursing as well as a custodial standpoint,” Johnson said in an e-mail.

She would not comment further, citing student privacy laws and the confidential nature of personnel files.

“We believe that settling this case is the most appropriate action to take at this time,” Johnson said.

According to documents filed as part of the lawsuit, the cleaning agent that soaked into the boy’s pants was a general-purpose disinfectant called Pine Destroyer. The product label calls for the cleaner to be diluted – 2 to 3 ounces of solution per gallon of water – but the liquid on the school’s bathroom floor was undiluted, Warner said.

According to Tim Phares, the district’s director of environmental services, Pine Destroyer is “being phased out” in Wichita schools because new chemical dilution systems require a different product.

“Custodians have been, and will continue to be, trained on chemical dilution and chemical safety on an ongoing basis,” Phares said in an e-mail.

Thomas, the former school nurse, said she no longer is employed by the district. She would not comment further about the case.

According to district records, Thomas worked in Wichita schools from August 1990 until she retired in August 2009.

Smith said her son, 11, is “OK now, but pretty scarred.”

She sought the lawsuit “for other kids’ safety,” Smith said.

“I just believe everybody should know about it, and maybe it will encourage them (the district) to take safer steps to make sure that this kind of stuff doesn’t happen to any other kid.”

The Wichita school board on Monday will vote whether to authorize the $500,000 settlement. The district would pay up to $75,000, and the district’s insurance companies would pay the rest, according to district documents.

A settlement hearing is set for Feb. 14.

If approved, the settlement would be the largest in decades by the district. In 2005, the district paid $365,000 to settle a suit filed by a woman who alleged that a former Truesdell Middle School teacher raped her.

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