The use of day care, or child care, has become prevalent in our society. As the U.S. Census Bureau reports, the number of child care facilities in the U.S. essentially tripled between the late 1980s and late 2000s. According to the Georgia Department of Early Care and Learning (DECAL), more than 8,350 day care facilities are now operating within the state.
Day care plays an important role in a family’s life. Placing a child in day care allows both parents to work and earn needed income. It also gives children the opportunity to learn and develop social skills that will prepare them for elementary school and life.
There are different types of day care facilities. Some are employer-provided, while others are large, for-profit facilities. Based on U.S. Census Bureau and DECAL figures, it is clear that most day care facilities are small, family-owned operations.
Unfortunately, some day care facilities are safer than others. Some facilities may fail to carefully screen employees before hiring them. Others may not properly train or supervise employees. This can lead to negligent care of children. Additionally, some day care operations may fail to provide children with a safe environment, or may not properly or adequately maintain their facilities or equipment.
When you are entrusting a day care facility with your child’s health and safety, you should consider the following types of risks and inquire how the facility is working to avoid these hazards:
The Centers for Disease Control and Prevention (CDC) reports that falls are the leading cause of non-fatal injuries for children in the U.S. According to the CDC, 2.8 million children are treated in emergency rooms each year due to falls. A recent study reported in the New England Journal of Medicine found falls to be the top cause of brain injuries among children in both the 0-2 and 2-12 age groups.
Falls can occur many different ways in child care facilities:
Unintended suffocation or accidental strangulation is the leading cause of fatal injuries for children age 1 or younger. These are also among the main causes of non-fatal injuries among children through age 12, the CDC reports.
Choking may occur:
The National Program for Playground Safety (NPPS) reports that the leading causes of playground injuries are equipment failure, collisions with other children and entrapments. An estimated 15 percent of these injuries are “severe,” while three percent require hospitalization.
A day care should provide children with safe, well-maintained playground equipment that does not have sharp edges, broken or rotting pieces, rust, splinters, exposed nails, screws or other connectors. The surface of the playground should be soft and shock absorbent such as rubber or mulch. Additionally, children should be closely supervised at all times by staff members.
Children can be harmed by other children at day care centers. Close supervision is necessary to avoid behavioral problems. Children may also hit or get into fights with each other if they are not properly supervised by caregivers. The older children get the more they are exposed to harm from intentional behaviors which are inadequately supervised.
Some day care facilities provide transportation to various activities or drop-off at the end of the day. The day care facility, or any independent contractor they provide, may be liable for any negligent operation of the vehicle that produces injury.
The day care center and the driver can also be liable for injuries which arise if a child is left on the bus and injured by excessive heat or cold. In Georgia’s summer heat a car or van can quickly reach temperatures which can be fatal to small children. These tragic omissions are often produced by a failure to have proper policies and procedures in place to make sure the vehicle is empty at the end of a trip. Tragic stories pop up around the country every summer when inadequate care leaves a child in an unattended van. Day care centers and their employees can be held liable for injuries and deaths arising from negligence in failing to check and make sure that no children have been left in a van or car when it is parked in the summer heat.
The owner operator of the vehicle can also be liable if negligent maintenance produces or contributes to a collision or a single vehicle wreck.
If a caregiver’s negligence causes a child to suffer an injury at a day care, the day care center may be held liable in a legal claim because the center is responsible for the acts or omissions of its employees while they are performing, or not performing, their assigned job duties. The day care may also be held liable for its own negligent hiring, training and supervision of employees, its lack of appropriate policies and procedures or for negligent design or maintenance of the facility and its equipment. In some instances, legal action may also be available against other entities, such as the manufacturer of defective equipment or the hospital or emergency providers who fail to properly treat an injured child.
As with most claims, some entities may try to protect themselves by obtaining a signed release from the parents of the children they care for. Parents should make sure that they carefully read and retain copies of any paperwork they fill out during the enrollment process, as well as any permission slips or authorizations they are asked to sign in connection with their child’s care. In any case where an entity tries to avoid responsibility through a signed release, an attorney should be consulted to determine whether the release has any legal impact or effect under the particular circumstances of their child’s injury.
More than 1.6 million children attend some 2,300 public schools and charter schools in Georgia. They are supervised for seven hours or more each day by some 110,400 teachers and staff members. Thousand of more students and teachers interact daily at private schools across the state.
School teachers, administrators and other employees have duty to take reasonable steps to ensure the health and safety of the children placed under their care and supervision. Unfortunately, schools can fail to live up to this duty.
Sovereign Immunity & Official Immunity
Under Georgia law the doctrine of sovereign immunity applies to county school districts and makes them immune to claims for injuries suffered while a child is at school or under school supervision and control. School employees such as teachers, coaches, administrators and executives are also protected under Georgia law by the doctrine of official immunity. Under the doctrine of official immunity these sorts of school employees are protected from individual liability when they are performing discretionary acts. “Discretionary” acts are defined as those acts that require the exercise of personal deliberation and judgment. Our Georgia appellate courts have consistently held that discipline, classroom control and coaching sports are all “discretionary” acts that invoke official immunity and preclude any sort of direct action when an injury occurs in those circumstances.
Teachers and administrators and other school personnel, like coaches, remain liable if it can be established that they acted with malice, willfulness, corruption or if they were negligently performing purely ministerial duties. An example of a ministerial duty is complying with the posted speed limits when driving a vehicle. There is no discretion involved in such circumstances and that is a ministerial act. However, in almost all cases, official immunity protects teachers, administrators and coaches from injury claims.
Types of School Injuries
Parents should be aware of the injury risks their children face at school. Among the more common school-based child injuries are:
There are no provisions under Georgia law for waiver of “official” immunity or “sovereign” immunity for any other claims. The statutorily permitted waiver is strictly limited to the limited motor vehicle issue identified above.
If the child is enrolled in a private school, sovereign immunity does not apply, but there will be issues regarding whether any rights of recovery have been waived under the contract documents enrolling the student for the school year.
In certain cases, a lawsuit may be filed against a teacher, principal or other employee as an individual. For instance, such a heinous act as sexual misconduct committed by a teacher or staff member may be the basis of a legal claim. In other cases in which the specific intentional or malicious acts on the part of an educator caused a child to be injured, the educator may be sued as well. The difficulty in recovering in such cases is that there is normally no insurance coverage for an intentional injury. There may, under some circumstances, be coverage for negligent hiring or negligent supervision, but the shield of sovereign immunity in cases involving public schools is almost always a major problem. There may be a viable claim for negligent hiring or supervision in a private school or private day care circumstance. In the absence of a viable negligent hiring or negligent supervision claim, any recovery for intentional acts must come from the assets held by the perpetrator.
A lawsuit may also arise if an injury is caused by faulty and/or unsafe equipment such as a school bus part, playground equipment or athletic equipment. Such a lawsuit would seek to hold the manufacturer and/or distributor liable under product liability law.
A parent might also explore a claim if an individual or organization independent from the school – for example, a school assembly presenter or outside vendor – proved to be responsible for a child’s injury.
Any time your child is injured while out of your supervision, you have a right to know what happened. If your child has been injured at school or while taking part in a school-sponsored activity, school officials should inform you about what happened with no hesitation or excuses. If your questions or concerns are not fully addressed, or you suspect that someone’s negligence led to your child’s injury, you are within your rights to seek legal advice about your options.
It would be impossible to identify all the ways a child may be hurt in an accident outside of the home. Children go to day care and school, the homes of family and friends, doctors’ offices, parks, playgrounds, museums, stores and many other places. They participate in sports and recreation activities, and they travel by car, bicycle, scooter, foot, school bus and other public transportation. The accident and injury risks they are exposed to on a daily basis are countless, so it’s only possible to identify broad categories of injury.
It is no wonder that the Centers for Disease Control and Prevention (CDC) reports that treating injuries is the leading cause of medical spending for children. The estimated annual cost of unintentional child injuries in the U.S. is nearly $11.5 billion. Each year, nearly 9 million children are seen in emergency departments for injuries, and more than 9,000 children die as a result of being injured.
According to the CDC and the National Institutes of Health, the most common causes of accidental injury among children in the U.S. are:
The type of injuries a child may suffer if not properly supervised and protected while away from home are as innumerable as the types of accidents that may cause them. Serious injuries that children commonly suffer are:/p>
Depending on the type and extent of a child’s injuries, the child and parents may face a long and expensive recovery. A child who suffers permanent disability or disfigurement in an accident may have diminished abilities to pursue an education and career. The emotional and financial impact of such an injury on the child’s parents and other family members may be considerable as well.
Children injured in Georgia and their families may have rights if they have been harmed because of someone’s negligent, reckless or intentional acts. Injured children and their parents may avail themselves of personal injury law for many accidents outside of the home. In addition, premises liability law, which holds that property owners have a legal obligation to ensure their properties are reasonably safe for visitors or to adequately warn of existing hazards, can apply to some cases.
If a child is away from home and under the supervision of adults other than their parents, those adults may be held liable for the child’s safety. This concept of in loco parentis (“in the place of a parent”) may apply to day care workers, babysitters, teachers, coaches, camp counselors and others.
Because each situation is unique, parents should always seek prompt legal consultation if they believe their child has suffered serious harm outside of the home due to the wrongful conduct of another.
Community recreation departments and organizations like the YMCA and Boys & Girls Clubs give children across Georgia the opportunity to participate in a wide variety of organized sports and other recreational pursuits.
Parents of children that play sports or participate in these organized recreation activities must recognize that injuries can occur. Bumps and bruises simply are a part of playing and may amount to nothing more than a mildly painful setback.
However, in some cases, serious injuries may result from the negligence of instructors, coaches and counselors that supervise children during recreational activities. These injuries can leave children with lifelong disabilities and place undue burdens on their families.
The most common types of sports and recreation related injuries among children (other than scrapes and bruises) are:
Parents, coaches, trainers and other instructors and supervisors in charge of children engaged in organized sports or other kinds of recreational play have an obligation to ensure these young people’s safety as much as reasonably possible.
They should make sure children under their care are physically able to participate in activities. They should ensure that children of similar size, weight and capabilities are matched in contact sports and other competitive play.
Child participants should be instructed, trained and equipped with appropriate protective gear.
Coaches and other instructors should also be trained to recognize and render first aid for minor injuries. They should know how to quickly summon medical personnel in case of serious injuries such as concussions or spinal damage.
When coaches, instructors, trainers, camp counselors and other adults charged with supervising children in league sports or other recreational play neglect recognized safety standards, they may be held liable if their negligence causes a child to be injured. In many cases they may be protected from liability under sovereign or official immunity or because the right to assert claims has been waived by a parental release. Assessing and evaluating potential liability under these circumstances requires careful evaluation of the unique circumstances of each individual’s case by a qualified attorney.
In cases in which faulty recreational gear or equipment has led to a child’s injury, a lawsuit against the manufacturer or distributor of the defective product may be possible.
A club, civic league or other recreational organization should promptly notify a child’s parents anytime a child is injured badly enough that the child’s participation in practice or play is halted for any length of time.
Parents understand that active children may get hurt. Still, proper preparation and supervision should prevent most serious injuries. If a child suffers a serious, debilitating injury during organized recreational activities, an independent investigation by an experienced legal team that answers all of the parents’ questions is certainly warranted.
Tens of thousands of Georgia students in grades 6 to 12 participate in interscholastic sports in public schools across the state. Thousands of more play sports for their private, independent and parochial schools, or with various private clubs or leagues.
Those student-athletes and their parents understand that some injuries can occur in any type of sport – especially when it is a contact sport such as football or soccer. Dealing with minor, unavoidable injuries is part of being an athlete.
However, parents are right to be concerned when serious injuries may occur due to the negligence of others. They are right to ask why and how it happened, but need to recognize that in this context there may be only very limited rights to a recovery.
The Johns Hopkins School of Medicine reports that out of about 30 million children and teens who participate in some form of organized sports, some 3.5 million who are age 14 or younger are injured each year.
The Safe Kids organization reports that one in three children who plays a team sport is injured seriously enough to miss practice or games. Most organized sports-related injuries (62 percent) occur during practice rather than in games.
In a recent year, 2012, children required emergency treatment in the following sports:
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Among the most worrisome of the commonly experienced school sports injuries are:
Additional injuries common to school sports activities include:
While players and parents accept the possibility of being injured while playing sports at school, they also expect that student-athletes will be properly instructed, equipped with protective gear and supervised during practice and competition.
Coaches, athletic directors, trainers and others who supervise school sports activities have a responsibility for their student-athletes’ safety and well-being.
For instance, trainers and coaches should have sports medicine training that enables them to respond to minor injuries appropriately and to recognize problems such as heat stress or fatigue. When a serious injury occurs such as a concussion, medical personnel should be summoned immediately.
In many cases, it is difficult to hold a coach, trainer or other school personnel legally responsible for a student-athlete’s sports injury. There are two main impediments:
However, if a public school employee in Georgia fails to follow a duty defined by established policy or law, known as a “ministerial duty,” they may be held liable for injuries that result from their neglect. This exception is extremely narrow and does not open wide the doors for litigation.
While the immunity granted to public schools does not apply to private schools, the issues of contractual waiver and assumption of risk clearly apply in those cases, and can limit direct claims. This same issue may also serve to limit claims against club teams and private sports leagues.
Parents of children involved in school-sponsored sports have a right to know that their children are being taught, trained and supervised in a manner that takes their children’s safety seriously. Parents should be advised about any injury that is serious enough that the student’s participation in a practice, game or any activity is halted. In many cases, after a student-athlete suffers a serious, debilitating injury, an independent investigation by an experienced legal team is necessary for all of the parents’ questions to be addressed, and to determine if there is any aspect of the injury that could support a claim against some party or individual.
More children ages 5 to 19 die from motor vehicle crash-related injuries than from any other type of injury, according to the Centers for Disease Control and Prevention (CDC). Emergency rooms across the country see almost 150 children an hour who have suffered serious injuries in crashes.
These accidents may involve cars, trucks, motorcycles or almost any form of motor vehicle. Injuries may also arise from collisions involving school or activity buses or public transportation.
The most common types of motor vehicle accidents are:
In addition to being in a vehicle that gets into an accident, children can be hit by vehicles as they ride bicycles or while they walk, run or play near a roadway.
There may be more than one contributing factor in a motor vehicle accident that injures a child. For example, impaired drivers are also often speeding or failing to observe other traffic laws. Common causes of motor vehicle accidents for which drivers may be liable include:
Responsibility for injuries to children is virtually identical to establishing liability for injuries to adults. If a child has been injured or killed in a motor vehicle accident, the law makes it possible for the child and/or parents to seek justice and recover damages.
Claims filed after a motor vehicle accident may seek to hold a negligent or reckless driver liable as well as other parties who may be responsible for the wreck, including:
Among all motor vehicle traffic accidents in the U.S. in the most recent year for which statistics are available, more than 1,100 children were killed and 169,000 were injured. Children that ride in cars, walk beside roads or play in yards next to roadways are vulnerable to injury due to reckless and careless driving just as adults are. When they are seriously injured in or by a motor vehicle, they and their families have the right to seek justice.
A concussion is a mild type of traumatic brain injury, or TBI, caused by a blow or jolt to the head which shakes the brain within the skull and bruises the brain. Concussions are the most common type of TBI. In some cases, particularly in sports, suffering a concussion may be referred to as “getting your bell rung.”
A child who has suffered a concussion may exhibit such symptoms as:
A child may not recognize the symptoms of a concussion or realize the significant of what he or she is experiencing. A child also may not report symptoms out of fear of upsetting parents or coaches or being prohibited from continuing an activity the child enjoys. Infants and toddlers may be simply unable to describe how they feel.
In an average year, an estimated 62,000 children through age 19 suffer a head or brain injury of some kind that requires hospitalization, according to the Centers for Disease Control and Prevention (CDC).
Concussions among children most commonly occur because of:
In many cases, a concussion is a mild injury that heals with rest. However, a young child’s brain is still developing. A concussion can have a lasting impact on a child. In particular, a child who has had a concussion is more susceptible to injury if the child suffers a repeat concussion.
The BIA reports that a brain injury has a stronger impact on a child than an injury of the same severity has on a mature adult. The cognitive impairments a child suffers because of a TBI may not become apparent until the child grows older and faces increased heavier academic and social challenges. Some children experience lifelong physical challenges because of a head injury, according to the BIA.
A child who has suffered a concussion should have regular follow-up visits with a pediatrician to assess the child’s development. Parents should remember to advise any new doctor of the child’s head injury / concussion history.
Children who have suffered cognitive problems because of early-age TBI may need accommodations for their educational, emotional and/or physical needs once they enter or return to school. Even though it is a federally protected right, obtaining appropriate special education services can be challenging.
In severe cases, children may need adaptive equipment or personal assistance with school and with performing everyday activities. As a child grows, a head injury from years before may adversely affect his or her opportunities for post-secondary education, employment, finding a mate and starting a family.
Adults have a responsibility for the safety of the children under their care or supervision. Under the concept of in loco parentis (“in the place of a parent”), an adult who has been charged with supervising a child may be held liable if his or her negligence allows the child to be injured. Adults who might be held liable in such a situation could include day care workers, babysitters, teachers, instructors, coaches, camp counselors or any adult who supervises children in an organized activity or setting. Whether any of these persons could actually be held liable will depend on the particular facts and circumstances where the injury occurred and any contractual documents that may have application to each person’s potential liability.
In addition, an adult responsible for a child’s injury in a motor vehicle accident, a slip-and-fall accident, due to a medical error or because of a defective product could also be held liable under Georgia’s personal injury and wrongful death laws.
As noted earlier, when a child is injured, two distinct sets of claims arise. One set is on behalf of the parents for the costs of past and future medical care and related expenses through the child’s 18th birthday. The second set of claims belong to the child which could be brought at the same time. These claims seek compensation for the non-economic aspects of the child’s injuries – pain and suffering, loss of function, disability, and potential permanent injuries – as well as any future medical expenses that the child will incur after reaching the age of majority (18).
When a child suffers a blow to the head that causes him or her to become disoriented for even a moment, the child should see a doctor. The American Academy of Pediatrics recommends consulting a doctor if a child receives anything more than a slight bump on the head.
If a child has sustained a concussion or a more severe traumatic brain injury, it is important to take seriously the doctors’ orders for rest or additional medical care and follow-up exams. As a child’s recovery progresses, signs that a concussion or TBI will cause lasting cognitive or physical impact may warrant a discussion of the child’s and family’s legal rights and options.
A broken bone, or fracture, is common in childhood. In most cases, a child who has suffered a broken bone will fully heal after several weeks in a cast. More serious fractures may require surgery to align the broken portions of bone and/or to insert pins or plates to stabilize the bone while it heals.
Most childhood fractures are suffered in falls. Because a child typically puts his or her hands out to break a fall, the child is likely to fracture a wrist or arm. Children may also fall on the playground or while bicycling, skating, skateboarding or playing contact sports like football, soccer or wrestling. Any hard blow, cumulative pressure or sudden twisting can cause a bone to break. Children may also suffer fractures because of such common accidents as motor vehicle crashes or because of assault or child abuse.
Broken bones are painful. If your child has suffered a fracture, you will likely see swelling and deformity from the fractured and misaligned bone. It will also be painful for the child to flex or put weight on the injured limb, hand or foot.
The severity of a fracture usually depends on the amount of force that caused the injury. Common types of fractures include:
For a severe fracture, the doctor may need to insert pins and screws to hold the child’s broken bones together. This requires surgery.
When surgery can be performed safely, the doctor may use rods or a plate along with pins and screws to put a badly damaged bone back together so it can heal. This is known as “internal fixation.”
A child who has suffered a severe fracture or multiple fractures may be placed into traction, which is a weighted system that realigns broken bones and holds them in position for healing.
Growth plates are areas of cartilage located near the ends of the body’s long bones – the femur (thigh bone), tibia and fibula in the lower leg, radius and ulna in the forearm and metacarpal bones in the hands. Growth plates are the last portion of a child’s bones to harden (ossify).
Approximately 15 to 30 percent of all childhood fractures are growth plate fractures, according to the American Academy of Orthopaedic Surgeons (AAOS). Most growth plate fractures occur in the long bones of the fingers, the AAOS states. They are also common in the outer bone of the forearm (radius) and the tibia and fibula.
Most growth plate fractures heal without problems. However, complications can occur. For instance, a “bony bridge” can form across the fracture line, which will stunt the bone’s growth or cause the bone to curve. This requires surgery to remove the bony bridge and insert fat or other material to prevent it from reforming. A growth plate fracture may also stimulate growth, which would cause the injured bone to be longer than an opposite, uninjured limb. Surgery may be necessary to shorten the bone and achieve a more even length.
In many cases, if your child has fractured a bone, he or she will wear a cast for about six weeks, get some extra attention from those around him or her and be fine. However, even a simple, stable-fracture broken arm is painful and requires initial and follow-up hospital visits. Complex fractures could leave a child hospitalized for several days and immobilized for weeks afterward.
If a day care worker, babysitter, teacher, coach, instructor, or another adult is supervising a child who is injured as part of an organized activity, they and/or their employer may be held liable under some circumstances if their negligence caused or contributed to the injury.
If the injury was caused by a faulty product such as playground equipment that fell apart or a faulty automotive system that caused a wreck, a lawsuit could seek to hold the product manufacturer or distributor accountable.
If a negligent adult or organization was responsible for a child’s severe fracture, the child’s parents could benefit from legal consultation about how they might recover for their losses.
As we have noted throughout this guide, issues of sovereign and official immunity, which often protect schools and their employees, as well as contractual waivers and other signed permission documents must be examined individually under the facts of each case to determine whether any recovery is going to be possible.
Even though a child may show no outward signs of injury after an accident such as bleeding or a fracture, the child may be suffering from serious internal injuries. These injuries occur when sudden, violent force is exerted on the child such as in a fall or vehicle accident.
Common internal injuries include:
A child may be unable to recognize an internal injury or communicate effectively that they have suffered such harm. This is why parents should be familiar with the signs and symptoms of internal injuries. This knowledge can help a parent to ask a child the right questions and determine whether immediate medical attention is needed. These signs and symptoms include:
In children, internal injuries are typically suffered due to:
Serious internal injuries may require emergency medical treatment, diagnostic tests (CT scans or MRIs), hospitalization, surgery and extensive therapy. In some cases, a child may not fully recover from an internal injury or may die due to the harm he or she has suffered. In addition to the child’s suffering, serious childhood injuries can place your family’s financial security at risk.
Parents who have lost a child or who are dealing with a child’s hospitalization and recovery need to understand the legal options made available to them by Georgia law.
Under the concept of in loco parentis (“in the place of a parent”), an adult charged with supervising a child may be held legally accountable if the child is injured due to the adult’s negligence. Day care workers, babysitters, camp counselors or any other adult who supervises children may potentially be held liable in such a situation. In each case it is important to consult an attorney so potential questions of sovereign or official immunity or contractual waiver can be individually assessed.
Additionally, if a child has suffered a serious internal injury in a motor vehicle accident, slip-and-fall accident or due to a defective product, the responsible adult or organization may be held liable under Georgia personal injury law.
In cases of childhood injury, two legal claims are pursued in most cases. One claim may be filed on behalf of the parents to recover past and future medical care costs and related expenses incurred up to the child’s 18th birthday and loss of the child’s services. Another claim in the child’s name would seek general damages for the non-economic injuries the child has suffered, such as pain and suffering, disability or loss of function. In addition, if the injury will cause any form of permanent injury or permanent loss of capacity, or require medical care and treatment after age 18, those claims also belong to the child.
With internal injuries, it is not only important to seek immediate medical help but to also take steps that will protect the legal rights of both the parents and the child.
Soft tissue injuries involve damage to the muscles, tendons, and ligaments. They can occur while a child is playing sports, enjoying playground activities, riding in a motor vehicle or engaging in any number of other activities.
Types of soft tissue injuries include:
Soft tissue injuries can cause pain, swelling and loss of mobility. Minor injuries may be treated with ice and rest that is followed by a return to light exercise. However, serious soft tissue injuries may require surgery and the use of a cast or splint. They may permanently limit a child’s ability to engage in physical activities and enjoy a normal life.
If a child has suffered a significant soft tissue injury, it could require hospitalization, surgery and physical rehabilitation that is costly and burdensome for the whole family.
If injury was caused by the negligence of a person or entity which can be held responsible, the child and parents may both be entitled to bring separate and distinct legal actions under Georgia personal injury law.
The parents would be able to seek recovery of medical costs through age 18, related expenses through age 18 and loss of the child’s services. The child would be able to seek compensation for pain and suffering and for losses that would arise after the child turned age 18, including permanent loss of function, permanent lost earning capacity, as well as any future medical expenses and costs that will be incurred after age 18.
The body’s immune system normally protects people from germs. However, in people with food allergies, the immune system mistakenly responds to certain types of food as if they were harmful germs.
For instance, the body may suddenly release chemicals such as histamine. This is what is called an allergic reaction. An allergic reaction may be as mild as a rash, hives or itching or as severe as the inability to breathe or the loss of consciousness.
Food allergies may affect as many as 15 million Americans, including 4 to 6 percent of children in the U.S., or about 2.5 to 3.8 million children. Eight foods or food groups account for 90 percent of serious allergic reactions:
Allergic reactions to food vary from individual to individual. A food allergy may impact a person differently over time. Unfortunately, a child is likely to be diagnosed with food allergies only after suffering a reaction.
To formally diagnose a food allergy, a doctor will first use a skin prick test or a blood test for IgE antibodies. Test results will then be considered along with information about the child’s history of symptoms.
A child who eats a food he or she is allergic to can exhibit symptoms within minutes or as late as two hours afterward. These symptoms may include:
Anaphylaxis is a severe, whole-body allergic reaction. It can occur rapidly and be fatal. Food-dependent, exercise-induced anaphylaxis occurs when a person eats a specific food and exercises within three to four hours after eating. Allergic reaction to medications, insect stings or latex can also cause anaphylaxis. Some people have an anaphylactic reaction with no known cause.
Anaphylaxis is an emergency condition that requires immediate medical attention. Symptoms of anaphylaxis include:
A very hoarse or whispered voice, or coarse sounds when a child is breathing indicate the child’s throat is swelling, which will restrict breathing. If necessary, one should begin rescue breathing and CPR.
If the child has emergency allergy medicine on hand, help them inject the medication. Oral dosages should be avoided if the child is having difficulty breathing. However, don’t assume an allergy shot will provide complete protection.
The Centers for Disease Control and Prevention (CDC) reports that 16 to 18 percent of children with food allergies have had a reaction from accidentally eating food allergens while at school. Additionally, 25 percent of the severe and potentially life-threatening reactions (anaphylaxis) reported at schools happened in children with no previous diagnosis of food allergy.
The only way for a child who has food allergies to avoid the complications of an allergic reaction is to avoid the reaction-triggering foods. Children’s families, medical providers, school staffs and others in early care and education programs must work together to ensure the safety of children with food allergies, and must recognize potential allergic reactions when they arise.
Parents must advise schools, day care centers, churches, camps and other early care or educational organizations of their children’s known food allergies. At a minimum, this notice should include documentation from the child’s physician or nurse supporting a diagnosis of food allergy and any risk of anaphylaxis, if applicable, and a list identifying the foods. If the potential for food allergies exist, then parents need to share that concern with anyone who may be responsible for the child so that they will have an appropriate index of concern or suspicion. Parents should also document any medication prescribed for the child and an assessment of the child’s readiness to self administer prescription medication.
School and day care staff members should be ready to address the needs of all children with known food allergies. Older children will understand their allergies, and teachers, coaches and counselors should heed their discretion when they decline to eat or act to avoid certain foods.
Adults should also be prepared to respond effectively to the emergency needs of children who are not known to have food allergies but who exhibit allergic signs and symptoms.
In Georgia, state policy ensures students’ right to carry and self administer prescribed anaphylaxis medication. Georgia law also authorizes public and private schools to maintain a supply of epinephrine auto-injectors. This is a disposable drug delivery device containing a single premeasured dose of epinephrine to treat life-threatening allergic reactions.
The law also authorizes any trained school employee or agent to provide or administer auto-injectable epinephrine. The law provides immunity from liability for school personnel for any injury arising from the use or failure to use an epinephrine auto-injector by school personnel unless willful misconduct is present. The law covers school personnel in instances where school personnel assist a student in an emergency.
An adult in a school, day care center, church or camp and his or her employer might be held liable if they fail to properly assist a child who is known to have food allergies or who exhibits symptoms of a severe allergic reaction.
A public school employee in Georgia who fails to follow a “ministerial duty” – a duty defined by established policy or law – may be held liable for injuries that result.
Parents who had duly notified a child’s school, day care, camp or church of the child’s food allergies may, in some circumstances, seek compensation for medical expenses and other losses if the child suffered a severe allergic reaction caused by negligence by the facility. An additional lawsuit in the child’s name might seek compensation for permanent disability that resulted from such negligence.
It is also possible that a manufacturer of pre-packaged foods may have responsibility if the ingredients in their product has been mislabeled so that the child cannot be protected from a known allergy. Failure to include an ingredient on the label can be negligent. Similarly, if the manufacturing/food preparation company has permitted contamination of the product with an allergen which is not identified on the label then liability can attach. It is critical in any such claim that if possible the food must be available for testing so a determination of the actual error can be made.
A child injury lawyer would have to investigate the circumstances of a case to determine the legal options available to the family.
When children with food allergies are at school, day care or other programs supervised by adults other than the child’s parents must ensure their protection. For this to be possible, parents must fully advise such organizations of their child’s allergies. If a properly advised school or similar organization fails in its obligation to protect a child from food allergies or to properly assist a child during an allergic reaction, legal action should be considered.
Emotional injuries, or psychological trauma, can be caused by incidents such as:
How individual children react to traumatic events varies widely. It depends on the child’s personality and nature, what other emotional support exists in the child’s life and the severity of the trauma. A child’s responses may be delayed for months or even years after the event. Parents and others around the child might not initially associate the child’s symptoms with the precipitating trauma.
A child’s reactions to emotional injury may be exhibited as:
The impact of childhood emotional injuries can be severe and long-lasting. The Adverse Childhood Experiences (ACE) Study, an ongoing survey of more than 17,000 people ages 19 to 90 with one or more exposures to childhood trauma, has revealed a connection between childhood trauma and high-risk behaviors such as smoking, alcohol abuse and unprotected sex as well as a link to chronic illness such as heart disease and cancer, suicide attempts and early death.
A child who exhibits symptoms may require some level of psychological therapy – perhaps well into adulthood.
If one person causes emotional or mental trauma to another through negligent or intentional conduct, personal injury law allows the victim to seek damages for emotional distress. An emotional distress claim may be referred to as “intentional infliction of emotional distress” (IIED) or as “negligent infliction of emotional distress” (NIED).
In Georgia, for a plaintiff to obtain compensation for emotional distress, the plaintiff must also provide evidence of additional physical injury or pecuniary loss caused by the defendant’s misconduct.
However, Georgia courts have held that, if a parent and child suffer a direct impact resulting in physical injuries through the negligence of another, and the child dies as a result, the parent may recover damages for the emotional distress of witnessing the child’s injury and death regardless of the fact that the trauma did not arise from the parent’s physical injury.
In cases where a child has been injured physically and emotionally, lawsuits on behalf of the parents and child would separately seek compensation for their losses such as medical expenses (including psychological therapy) and lost income or earning power.
Our children are the first generation to face the threat of childhood cyberbullying. This bullying is a form of unrelenting harassment, usually through social media.
The Cyberbullying Research Center reports that 25 percent of students in middle school and high school say they have been cyberbullied at some point. About 16 percent of the children surveyed said they had cyberbullied someone else.
The federal government defines cyberbullying as bullying that takes place using electronic technology, including cell phones, computers and tablets. It is also bullying through use of communication tools, including text messages, e-mails, chats, websites or social media sites such as Facebook, Twitter and Instagram.
Examples of cyberbullying include:
The Cyberbullying Research Center states that traditional bullying and cyberbullying are closely related. Those who are bullied at school may also be bullied online. It may lead to low self-esteem, suicidal ideation, anger, frustration and a variety of other emotional and psychological problems, the Center states.
Cyberbullying can potentially be more harmful than face-to-face harassment. It can happen 24 hours a day, 7 days a week, and it can reach a child even when he or she is alone at home. Cyberbullying messages and images can be posted anonymously and distributed quickly to a very wide audience. It can be difficult and sometimes impossible to trace the source.
Like all bullying, it is the cumulative effect of cyberbullying that causes the worst damage to victims. A victim of cyberbullying is confronted with harassment every time she or she checks a cell phone or social media feed. Inappropriate or harassing messages, texts and pictures are not easily deleted and never truly “go away.”
The U.S. Department of Health &Human Services’ stopbullying.gov website reports that children who are cyberbullied are more likely to:
There are several examples of the harm cyberbullying can cause. For instance, the family of a 12-year-old Florida girl has claimed that she was so relentlessly tormented by two classmates via Facebook that, in September 2013, she leapt to her death from a tower in an abandoned concrete plant.
The parents of Georgia teen girl reported that, in 2011, other teens created a phony Facebook page that allegedly defamed her with posts about non-existent sexual exploits, links to racist videos on YouTube and implications of drug use. The parents claimed that the girl suffered psychological problems as a result, including emotional withdrawal. While the case was initially dismissed in the trial court, the Georgia Court of Appeals reversed the dismissal, holding that the facts of her case did present a cause of action for which relief could be granted under Georgia law.
For example, the parents can make sure that their child’s school is fulfilling its legal obligations. Bullying in a school setting is against the law in Georgia. Schools are required to establish character education programs at all grade levels which include methods of discouraging bullying and violent acts against fellow students. Under state law, bullies can be expelled from school.
Parents may also seek to hold the offending child’s parents accountable. For instance, in Georgia, the Court of Appeals has ruled that the parents of a child who allegedly created a phony Facebook page to harass another teen could potentially be held liable for the harm caused by their child’s activities.
A child can choke and suffer asphyxiation – loss of oxygen – through drinking or if a foreign object becomes lodged in the child’s throat or windpipe and blocks breathing. Children also face the risk of asphyxiation due to strangulation, becoming trapped under or against something or suffering inflammation of the throat due to disease or allergic reaction.
A lengthy obstruction of the airway causes a person to lose consciousness. “Hypoxic brain injury” results from a reduced level of oxygen reaching the brain. A complete loss of oxygen causes “anoxic brain injury.” If breathing is not promptly restored, the lack of oxygen can lead to permanent disability.
Children may choke on anything they put in their mouths and swallow. This is a particular hazard for infants and toddlers, who tend to satisfy their natural curiosity about the things around them by “mouthing” objects.
A Centers for Disease Control and Prevention (CDC) study found that the rates of choking cases in U.S. emergency rooms are highest for children under age 1. The rates decrease as children grow older.
In a single year studied, 160 children ages 14 and younger died from obstruction of the respiratory tract caused by inhaling or ingesting a foreign object, the CDC found. An estimated 17,537 more children ages 14 and younger needed treatment in emergency rooms for choking episodes.
Among the 17,500 emergency room choking cases involving children through age 14, the objects involved were:
|Food items (candy and gum)||60%|
|Non-food items (coins and toys)||31%|
When young children are allowed to play with small toys or toy parts, the choking and asphyxiation risks are clear. However, recent recall notices issued by the Consumer Product Safety Commission (CPSC) illustrate just how often children are exposed to this risk. The recalled products include:
Elsewhere, the CPSC warns of the suffocation hazard presented by uninflated toy balloons and pieces of broken balloons.
Perhaps the most widely discussed asphyxiation hazard that older children face today is something called “the choking game.”
The CDC describes the choking game as “a dangerous activity that older children and early adolescents sometimes play to get a brief high.”
In the game, one child squeezes the neck or abdomen of a child who is holding his or her breath, or a child playing alone uses something such as a noose. The intent is to release the pressure just before loss of consciousness, which produces a state of euphoria or semi-consciousness.
Failure to release the child so he or she can resume breathing in time can result in death or brain damage from hypoxia. This is a particular danger when the activity is performed alone using ropes, belts or scarves.
The CDC reports that children all over the country have died while playing the choking game. Most who died were 11 to 16 years old (89 percent) and male (87 percent). Nearly all of the children who died were playing the game alone.
Day care workers, babysitters, teachers, coaches, instructors and other adults have an obligation to supervise the activities of children entrusted to their care. They are legally obligated to take reasonable measures to ensure children under their supervision are safe. This requires closely supervising infants and toddlers, monitoring the activities of older children and reporting or stepping in to stop potentially harmful activities.
Adults with legal responsibility for children should also have knowledge of basic first aid and emergency measures that can be taken when a choking or asphyxiation incident occurs.
If a child is injured due to choking or asphyxiation while under the care and supervision of an adult, the individual adult and/or their employer may be held liable if the child was injured because of negligence.
In cases in which a consumer product such as a toy causes a child to choke and be seriously injured, the product’s manufacturer or distributor might be held liable.
Children grow up around countless choking hazards, including food, toys and other objects they may put into their mouths. Accidental or intentional activities can also lead to asphyxiation. A child who is unable to breathe for even a few minutes may suffer irreparable brain damage or die.
If a child’s choking or asphyxiation injury is due to an adult’s negligence or the danger posed by a faulty consumer product, Georgia personal injury law allows the child and family to seek compensation for medical expenses and other losses.
Our firm, James M. Poe, P.C., located in Atlanta, Georgia, has provided information in our Legal Guide to Child Injuries as general information, as well as for educational and advertising purposes. This information does not constitute legal advice or solicitation of clients, and does not create an attorney/client relationship with a reader of the Legal Guide to Child Injuries with The Law Offices of James M. Poe, P.C.
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