No parent sends their child to school in the morning thinking that will be the last good-bye.
Although parents of disabled and autistic children will encounter more difficulties throughout their day, they should never have to fear this is a possibility. When it comes to children with disabilities, school districts are expected to have health and safety plans firmly in place, with protocols clearly communicated and strictly followed.
The worst part is that when this doesn’t happen, these children are poorly situated to speak out about and let their parents know when a lapse has occurred. That’s why often, parents don’t know there is a problem until too late.
Our Greensboro child injury lawyers understand that was the case in Lyons v. Richmond Cmty. Sch. Corp., where the Indiana Supreme Court recently reversed a summary judgment favoring defendant school – giving parents the right to fight their case in court.
According to court records, a 17-year-old high school student with Down Syndrome, deemed “severely disabled,” had issues specifically with eating. She usually put too much food in her mouth, and then either didn’t take enough bites or took too many before swallowing.
The district contracted with an outside care provider to develop a care and safety plan for disabled students. In this case, the provider indicated the girl was never to be left alone at mealtimes or snack times. Her food was to be cut up, and she was to be given regular verbal reminders to slow down.
On the day she died, there was a new aide assigned to monitor her during lunch. She was reportedly not told of the risk plan. She did not cut up the girl’s food, and was not closely monitored. At some point, she began to choke. The aide sought help. But none of those who responded performed the Heimlich maneuver or CPR on the girl, and neither did anyone call 911 immediately. There was even a health teacher who sought CPR in the hallway of the cafeteria, but he did not offer any assistance. After four minutes, someone summoned the school nurse. She was not told the nature of the situation. Assuming there was a fight, she went to gather first aid materials, rather than rushing to the scene. She got there 10 minutes after she was first called. Then 911 was dialed. It was another three minutes from that point until they arrived. The girl died at the hospital.
A food services coordinator told her employees that if anyone spoke of what happened, they’d be fired on the spot. The school destroyed video surveillance of the incident, though there was later dispute about whether this was intentional. A school official also told emergency responders the girl had only been without air “a short time” when they were called when, in fact, it had been nearly 20 minutes.
Initially, the trial court granted summary judgment due to the fact the plaintiffs failed to file notice of claim within 180 days of the incident. However, plaintiffs successfully argued fraudulent concealment. There was evidence to support the assertion the defendant concealed material facts from plaintiff that would have possibly prevented discovering potential cause of action.
Thus, the earlier summary judgment was reversed and the case remanded for retrial.
Sadly, this is far from the only case of this nature. Just recently in Brooklyn, NY, a 21-year-old disabled high school student also choked at school, reportedly as a result of improper supervision during mealtime. Her family, too, has announced it intends to sue the district.
Because such cases are fraught with potential pitfalls (as schools are a government entity requiring special notice and statutory deadlines), it is imperative to trust your case only to a legal team with extensive personal injury experience.
Contact our North Carolina personal injury lawyers at Lee Law Offices today by calling 800-887-1965.
Lyons v. Richmond Cmty. Sch. Corp., Oct. 28, 2014, Indiana Supreme Court
More Blog Entries:
One Year Later: North Carolina State Fair Accident Victims Still Recovering, Oct. 28, 2014, Greensboro Personal Injury Lawyers