July 22, 2017

Student Injury Liability and Emergency Response in Schools for Children with Medical Conditions

Pediatrician doctor bandaging child's leg. Mother holding baby in her hands. Close-up.

Schools have a duty to know about a child’s critical health condition to prevent student injury.

Many school-aged children have medical conditions about which teachers, nurses, and others who are responsible for their health, safety, and well-being should know. If not addressed in the right way by administrators, teachers, or other officials, these conditions can result in a catastrophic incident, student injury and not to mention costly litigation. A student with a known heart defect, for instance, is vulnerable in a physical education class if the teacher is not informed of the child’s condition and does not institute appropriate precautions or prepared to respond in a medical emergency. If cafeteria personnel in a daycare center know that a child has a peanut allergy but fail to supervise the child appropriately, the child can go into shock if she is allowed to sit at a table where another student is eating peanut butter. In situations like these, if a plan for the child’s care was either not in place or developed but not communicated to the staff, the child might suffer irreparable harm — or even die.

Schools (and this is applicable as well to other agencies responsible for supervising children, such as daycare centers and summer camps) have a duty to know about a child’s critical health condition. Having this knowledge requires them to develop adequate plans for the child’s daily routines and allows all appropriate staff to plan for a quick and effective response to an emergency when necessary. Armed with as much information about the child as possible, the school can protect itself from liability by being aware of foreseeable harm to a child in specific situations — be they in class, on the playground, or on a class trip — and by instructing staff about a child’s special supervisory needs.

 

Duty to know, plan, inform, and execute a plan to prevent student injury

A school has a professional duty to collect as much health information about the children in its care as possible. Typically, before a child is admitted, parents complete a health form soliciting information about any chronic illnesses, allergies, or other conditions that the staff should know. The plan that is eventually developed for addressing the special health needs of a child is only as good as the information provided by the parent. In some situations, a parent might not provide full information that might be critical for protecting the child’s safety and health. If sections of the form are left blank, it is the school’s responsibility to follow up and ask for it to be completed in full. This is both necessary for the child to get the full benefit of his education, and critical so that staff may be informed of specific considerations that can mean the difference between life and death of a child and prevent possible student injury.

Some students have a sustained or temporary medical condition that interferes with their ability to fully benefit from their educational program. For example, a student who recently had knee-replacement surgery will not immediately be able to climb the steps to get to her science class. This temporary disability requires a Section 504 plan, which differs from an Individualized Education Plan in that it does not involve special education services. Required as part of the Federal Rehabilitation Act of 1973, a Section 504 plan is commonly instituted to provide accommodations for students who have a broken leg or other acute conditions, or who are undergoing disabling treatments, such as chemotherapy, on a limited-time basis. For the student who underwent knee surgery, a 504 plan could indicate, for instance, that she is allowed to use an elevator that is off limits to others to be able to get to her science class. This plan is developed with the parent, the student, and the school nurse or others as appropriate, depending on the condition. School staff should be informed of the plan, and its implementation should be monitored on a regular basis.

If the school fails to develop such a plan or fails to assure that it is fully implemented, it could be liable for further injury to the child. In a similar case in which I was engaged as the child-safety expert witness, the plaintiff sued for damages based on the school’s failure to implement the plan. The elevator was not working on several days, forcing the student to climb the steps to the second floor. One day, she fell and re-injured her knee. Once there is recognition of the need for an accommodation, the school is obligated to assure it is available and, as in this case, that equipment is fully functioning.

 

Caring for children with special healthcare needs

In the journal Pediatrics (102:137–140), McPherson et al define children with special healthcare needs as “those who have or are at increased risk for a chronic physical, developmental, behavioral, or emotional condition and who also require health and related services of a type or amount beyond that required by children generally.” Special healthcare needs can include asthma, diabetes, cerebral palsy, bleeding disorders, metabolic problems, cystic fibrosis, sickle cell disease, seizure disorder, sensory disorders, autism, severe allergy, immune deficiencies, or many other conditions. Some require daily treatments, while others require only observation for signs of impending illness and the ability of caregivers to respond in a timely manner.

As with acute conditions, a collaborative approach involving parents, the child’s healthcare provider, teachers, and the school nurse is important for protecting the child’s health, safety, and well-being and to protect the school from liability. Development of a healthcare plan that includes critical background information about the child and his special healthcare needs, how all staff will be informed about the need, and how staff will be trained to respond to an emergency will help to protect the child from harm and the school from potential liability.

 

When is a school or child care agency held liable?

In many cases for which I have been engaged as the school liability expert witness, I have found that the school or childcare facility had no knowledge of a special healthcare need, nor was there a care plan in place. In one case, for instance, the parent of a child who died after running two miles in physical education class failed to inform the school of the child’s chronic heart condition. This condition restricted him from such activity. Without this information, the school was correct in treating the student like every other sixth grader, including him in the activities of the physical education class.

In some other cases, the school had a plan but it wasn’t adequate, wasn’t monitored, and the staff was unaware of the information in it — placing a child at risk of a life-threatening event or death. In one such case, a fourth- and fifth-grade physical education teacher instructed her students to go onto the field, run three laps amounting to approximately a mile, and return to the gym. One of the girls who ran the laps then entered the gym, walked halfway across the floor, and collapsed. It turned out that at the beginning of the school year, the parent completed a standard medical form noting that her daughter had a heart condition, was under the care of a pediatric cardiologist, and was restricted from sustained exertion — but the nurse simply filed this information away in her office. The nurse failed to alert any teachers — including the physical education teacher, in whose course the student would most likely encounter difficulty. The physical education teacher, in my opinion, was not at fault because she had no notice of the girl’s health problem and restrictions. Expecting the children to run the course was reasonable and was included in the course outline, and she had no reason to exempt this child. However, it was also my opinion that the school breached the professional standard of care when the nurse, having notice of the student’s chronic medical condition and restrictions, failed to inform the teachers, especially the physical education teacher. Unfortunately, the student did not recover, and the school withstood protracted wrongful-death litigation.

 

Implementing a plan to avoid life-threatening events

Any child who meets the criteria for having special healthcare needs and who presents an increased risk for a serious health event or death should have a routine- and emergent-care plan completed by their primary care provider. It is important that the assessment of the primary care provider include significant physical findings so that caregivers and teachers can develop a plan. An emergency-management plan also should list activities or services that are restricted or that differ from those typical of most children, and it should include specific instructions on how to provide medications, procedures, or implement modifications or emergent care. If these instructions are not clear and if the school requires further information, it is appropriate to ask the parent for permission to consult with the medical provider to ensure that the student receives proper care.

Every school employee, including teachers, bus drivers, cafeteria staff, custodians, and others, should be informed about the special healthcare needs of every child in the facility. One person, preferably the nurse or another designated person, should serve as the funnel for this information and as the person responsible for the development of a healthcare plan, training of staff, and follow-up with parents and the child’s healthcare provider. The staff nurse has a professional duty to understand the unique health issues of a child, transmit that information to all staff, monitor the child’s health, and ensure that any equipment that may have to be used in an emergency situation involving this child is accessible, working, and can be used by others if necessary to save a child’s life.

Often this fails to happen, as in the case of a high school student who collapsed in gym class. The teacher sent another student to the nurse’s office to let her know what happened. The nurse arrived and reached for a defibrillator that was buried in a supply closet, still in the original box it was shipped in. She brought it to the gym only to discover that the battery was not charged and the device was useless. The student died because he was not treated in time. The school and nurse were sued for gross negligence. As the expert witness in this case, it was my opinion that the school administration breached the professional standard of care when it failed to assure that the defibrillator was operable and not locked in an inaccessible area. By failing to make the defibrillator accessible and in proper working order, the nurse acted in deliberate disregard for the health, safety, and well-being of the children in her care, including this child.

To reach an opinion as to whether a school met the professional standard of care, my review and analysis answers, among other questions, whether it acted appropriately and reasonably under the circumstances. These circumstances are always unique to each case and include whether the agency had a duty to develop and implement certain policies and procedures imposed by the state or licensing or accrediting authority. If, for instance, the school had a duty to develop a policy requiring health care screenings of all incoming students but the school failed to have such a policy in place, then it breached that duty and failed to adhere to the professional standard of care. Whether this failure proves to be a substantial cause of injury, health episode, or death is considered in light of the totality of the circumstances. Other standards that I examine include hiring, training, and informing competent staff; maintaining emergency equipment; and updating emergency contact information. If it can be demonstrated that there was a failure to act within the professional standard of care with regard to these and other specifics — and that failure is a proximate cause for serious injury, health episode, or death — the school or agency may be held liable.

On the other hand, my review might reveal that the school or other child care agency did everything to protect the health, safety and well-being of children: It hired competent staff, obtained critical health information about the child, maintained its emergency equipment, and otherwise fulfilled the professional standard of care — but a specific child’s medical condition was not made known by the child’s parent or physician, preventing the school from acting on that information. In cases such as these, when the child suffered a catastrophic event, the school may not be held liable.

 

Conclusion
Protecting the health, safety, and well-being of children entrusted to the care of staff in schools, daycare centers, camps, and other facilities falls within the professional standard of care for such agencies. How they implement this standard and whether they act appropriately and reasonably under specific circumstances determines liability. When an agency knows of the special healthcare needs of a child, develops a plan to address the need, informs staff of the issue, provides an emergency plan of action, maintains its emergency equipment, and takes any other steps necessary to protect the child, it will have met its professional standard of care. Without taking these steps, the school or agency may be held liable for a child’s injury, catastrophic health episode or death. If the agency had no knowledge of, or reasonably could not have known, of a child’s special healthcare needs, then the agency is unlikely to be held liable.

Wrongful Death Lawsuits against Schools and Agencies

liability in wrongful death school cases

Wrongful Death School Lawsuits

The death of a child is always emotionally difficult for parents, relatives, and caretakers. Often, an allegation arises that the death resulted from the negligence or misconduct of the person responsible the safety of the child.  In wrongful death lawsuits against schools and agencies determining the merit of such an allegation hinges on sifting out the emotion and focusing on facts: Did the school or agency have a duty to protect the child, were standards of care followed, were those standards breached, and did the breach result in a child’s death?

When the child is in school, a daycare program, or camp, the school or agency has a duty to protect the child by providing appropriate supervision. When there is an allegation that a school or agency breached that duty and a child died a wrongful death, a claim may ensue. This article will provide guidance for attorneys who are considering filing a wrongful death complaint or who must defend a school or agency against such a complaint.

According to the 2012 National Vital Statistics Report of the Centers for Disease Control and Prevention (CDC), 1,296 c    children between ages 5 and 14 died in 2011 from accidents other than motor vehicle accidents, assault, suicide, and medical diseases. Although the CDC does not specify exact causes of death within this population, it is reasonable to assume that many occur while children are under the supervision of an adult in a school or other agency. In its Indicators of School Crime and Safety 2012 report, the U.S. Department of Education tallied 31 student, staff, and nonstudent school-associated violent deaths during school year 2010–2011. It is likely that some of these deaths are wrongful deaths, which are those that can be attributed to the negligence or misconduct of another individual. In a school or agency, that individual can be a supervisor, another student, or a third party.

To bring a successful wrongful death cause of action, all of the following elements must be present:

  • The death of a human being
  • Death caused by another’s negligence or intent to cause harm
  • Survival of family members who suffer monetary losses as a result of the death
  • The appointment of a personal representative for the decedent’s estate

For a school or agency to be found liable for the wrongful death of a child, the school or agency must have had a duty to care for the person who died and breached that duty, resulting in the child’s death. The death, in turn, must be shown to have caused injury or loss to others, such as surviving parents and siblings.

In the context of schools and other agencies, wrongful death claims can arise from any number of situations. Some examples include: a bus accident; a child falling from a cliff during a field trip or drowning in a swimming pool; a 300-pound, fold-up lunch table falling onto a child from a cafeteria wall; a student being shot and killed on school property by the school security guard; excessive discipline (e.g., putting a disruptive student to the floor and sitting on his back, resulting in suffocation); or administering the wrong medication. Unfortunately, these represent only a small sample what might cause of the death of a child.

Conditions for Liability in a Wrongful Death Case

A school or agency may be held liable for the wrongful death of a child in the same way that it may be held liable for the injury of a child. The conditions are the same — but the ultimate result is death, and damages are focused on survivors rather than the party who sustained the injury.

A plaintiff or defendant attorney should consider the following questions when considering the merit of filing a wrongful death complaint or mounting a defense of a complaint:

  • Did the school or agency have a duty to protect the decedent in the particular situation?
  • What was the reasonable standard of care to apply under the circumstances, and did the school or agency apply that standard?
  • If there was a breach of this standard, was it a significant factor in causing the death?
  • Were there intervening variables that may have prevented the proximate cause of injury or death?
  • Did the child who died contribute to his or her own death through self-negligence?

Duty to Protect

Those responsible for the safety of children have a duty to anticipate potential and foreseeable dangers and to take reasonable precautions to protect children from those dangers.

For activities that take place during the normal course of the program day, the duty to protect is usually easy to prove. Courts have held that this duty may apply beyond the grounds of the school or other agency, depending on the circumstance. For instance, the school or other agency may have a duty to protect children during a visit to a park from wandering into a busy highway.

Failure to Exercise a Reasonable Standard of Care

In the Houston Independent School District, construction was taking place on a junior high school campus. A tunnel linked the old and new portions of the building. A school policy required that a staff member be present at both ends of the tunnel to supervise students and to be aware of any behavioral issues that might lead to the harm of a student. This was determined to be an appropriate level of supervision.

A student in the tunnel died after he was attacked and struck in the head with a screwdriver. On the day of the attack, one teacher who was assigned supervisory duty called in sick and the school failed to replace him at the post. As the expert witness in this case, my opinion was that this was a failure to exercise the school’s own standard of care and the professional standard of care in the field.

If a supervisor does not take reasonable steps to protect a child from injury, that person and the employer can be found negligent. Courts will weigh the actions of the employee against how a reasonable employee in the same position would have acted in a similar circumstance.

For instance, would a reasonable supervisor tell children to cross a street to meet her at a park entrance when that entrance is across a busy highway without a crosswalk? More than likely, a court would deem it irresponsible for a supervisor to instruct children to meet her across the highway at a location that a reasonable supervisor would consider dangerous.

Proximate Cause

If a child entered the roadway, was struck by a motor vehicle, and died, attorneys would need to determine all the facts. These may include intervening variables, like vehicle failure or road-design failure, to mount an effective strategy.

This illustrates another important question to consider: If the supervisor failed to exercise a reasonable standard of care, did this failure result in the child’s death?

The ability to prove this element depends on establishing that a child’s death could have been reasonably foreseen and prevented. If the death could have been anticipated and prevented by an employee through the exercise of a reasonable standard of care, legal causation may exist.

The question for the attorney to ask is whether the death of the child was a natural and probable result of the wrongful act and should have been foreseen by the supervisor in the context of the circumstances.

Revisiting the example above, it may be established that a reasonable child supervisor would have observed that vehicles were traveling at a potentially dangerous speed and that there was no crosswalk at the location where children were gathered. If the children were 5 or 6 years old, a reasonable supervisor would understand that they would not have the capacity to protect themselves from harm because of their age. A reasonable supervisor would consider that if she directed the children to cross the roadway at this location, it is foreseeable that a vehicle could strike a child. A jury could determine that the supervisor’s decision to instruct the children to cross the street was a deliberate action that placed the child in harm’s way and was the proximate cause of the child’s death.

A wrongful death claim will not be successful if the death could not have been prevented. If the supervisor in our example gathered the children together when they left the bus, escorted them to the corner, observed that there was a traffic light and crosswalk, instructed the children about the dangers of crossing the street and the precautions to take, and then instructed them to cross when she was sure the traffic stopped, the supervisor would have acted reasonably under the circumstances. Now, let’s suppose that a car failed to obey the stoplight, hitting and killing a child. In this situation, a jury may determine that the supervisor did everything possible to protect the child, and that a third-party act was the proximate cause of the child’s death. The unavoidability of the accident, in other words, nullifies proximate cause.

Contributory Negligence

If it can be shown that a child contributed to his or her own death, the school or agency may invoke contributory negligence, a common defense against liability. If the court holds that contributory negligence was a factor in the child’s death, the school or agency may be held only partially liable or not liable at all, depending on the jurisdiction.

Take the case involving the drowning death of several students attending a leadership conference at a youth camp in Chicago. My review and analysis of the facts led me to conclude that the students, because of their age and capacity to understand the dangers, were able to guard their own safety but made decisions that inevitably lead to their death. Thus, the camp, in my opinion, was not responsible.

The students left their cabin after their supervisor was asleep, went down to a river that was clearly marked with warning signs, and placed several boats into the water. The boats began to sink, causing students to abandon the boats and drown. The school sponsored the event at the camp and as such had the responsibility to supervise the students during the day and at night, but did not place the appropriate number of supervisors in the cabin at night. Therefore, I concluded that the school and the students bore responsibility for their deaths.

Contributory negligence is difficult to prove among children between the ages of 7 and 14, unless it can be shown that a student is unusually intelligent and mature. In this case, the students were 17 and 18 years old and were selected from their peers to participate in this leadership-training program because of their intelligence and maturity.

Summary

Because these claims are emotional, it can be easy to jump to a conclusion. The plaintiff or defendant attorney should review potential negligence issues in a step-by-step manner to determine the merit of a claim or strength of a defense.

Duty to supervise, reasonable supervisory care consistent with the standard required in the field, breach of duty, and contributory negligence are factors that can present a roadmap to effective litigation. An expert witness can assist plaintiff and defendant attorneys with a thorough analysis of these issues.

School Bus Accident Liability, Negligence and Standards of Care Guidelines

School Bus Standards of Care

School Bus Accident Liability and Negligence

A school’s duty to protect its students from harm doesn’t begin and end when the bell rings in the morning and afternoon. Transporting students safely to and from school is an important consideration in a school’s risk portfolio. This area, however, is highly nuanced, and it’s not always immediately clear who is liable for a student’s accident-related injury — especially when transportation is contracted out to a private bus company.

What should an attorney consider when representing a plaintiff or a defendant in lawsuits involving school bus accidents? Here’s a roadmap to follow regarding school bus accident liability, negligence and standards of care.

Determining Duty to Protect: School District vs. School Bus Company

Attorneys should first determine which entity was responsible for protecting the passengers on board. If the school owns its own buses, the school has the duty to protect students and others on the bus from harm. If the school contracts out transportation services to a private bus company, the contract between the school and the bus company should specify duties.

As an example, schools that transport students with significant physical disabilities typically provide specialized training for bus drivers and aides. This training may include, among other things, how to harness a wheelchair to the floor of the vehicle and how to intervene if a child becomes disruptive. Such training is a reasonable expectation for protecting students’ safety. But is the school responsible for the training provided by a private bus company? Or does that responsibility lie with the contractor?

This responsibility, if delegated to the bus company, should be articulated in the contact. By requiring that drivers and aides be trained, the school recognized its duty to protect its students. The school can delegate this responsibility, but for liability to fall to the bus company in the case of an accident, this must be in the contract. If a bus carrying students in wheelchairs is involved in an accident and a child’s wheelchair was not properly harnessed, broke loose, and caused injury, then the school may be liable if it failed to spell out the private bus company’s requirement to train its staff in this manner.

In another example, if the contract between a school and a bus company requires that the company provide booster seats for all preschool passengers, the company has a duty to provide the seats and to ensure they are being used. The attorney should assume that school officials determined that the seats are necessary to protect the students from harm. If a child is hurt in an accident because he or she was not in a booster seat, as required, the bus company may be liable for the child’s injury.

Another contract between a school and a private bus company might require the company to provide a bus aide who is trained in how to de-escalate confrontational encounters between students with behavioral problems. Now, consider this example: Despite the presence of a trained aide on the bus, students got into a fight. Distracted, the driver hit a guardrail, and a student was injured as a result. The bus company may be liable for the injury, but what is the duty of the school to ensure that the private bus company is complying with the contract? Ultimately, the school is responsible for the health, safety, and welfare of its students. Should the school check periodically on the implementation of specific safety requirements in the contract? Or can the school delegate this responsibility entirely and assume that the private bus company will comply?

This example illustrates how it may not always be clear whom to name in a complaint. In the case of a contract like this, no professional standard of care exists in the field to provide clear guidance on whether the school must ensure that the contract is being fulfilled and that its students are safe.

Determining Standards of Care in School Bus Accident Lawsuits

Schools that maintain their own bus fleets, as well as private bus companies, must meet federal and state standards. These include:

  • Maintaining buses in safe operating condition through a systematic preventive maintenance program
  • Inspecting buses at least semiannually
  • Requiring drivers to perform daily pre-trip inspections of their vehicles and the safety equipment (such as the fire extinguishers), and to report promptly and in writing any problems that may affect the safety of the vehicle’s operation or result in its mechanical breakdown

Schools and private bus companies add their own standards when they develop driver manuals, training programs, and procedures such as assigning bus aides and checking that video cameras work properly. Therefore, attorneys should be familiar not only with federal and state requirements, but also with school standards — and, when a private transportation contractor is involved, the bus company’s standards as well. Manuals, written procedures not included in the manuals, training program materials, and any other written or oral communication that can be construed as policy should be obtained through discovery and carefully reviewed to identify all applicable standards of care before an investigating into the cause of an accident and injury begins.

An attorney will want to determine whether a school or private school bus company violated a federal or state standard. In addition, the attorney needs to determine whether any locally identified standard or a standard identified through a contract was breached, and whether that breach created a situation that placed passengers in harm’s way.

Determining Negligence and if Standards of Care Were Met

Once the attorney has an understanding of these standards, and after questions about who had the duty to protect passengers are answered, the next step is to investigate the cause of the accident. If the driver lost control, was there, for instance, a flat tire and the driver maintained the best control possible but the accident happened anyway? Was there a mechanical problem with the bus that should have been noticed through reasonable inspections and corrected? Did a fight on the bus distract the driver? Did the driver swerve to avoid hitting something on the road?

Here are the steps to follow:

  1. Review and list all federal, state, and local standards that apply, such as inspection routines, licensing of the driver, assignment of aides to the bus, and training of the driver and/or aide.
  2. Review and analyze the discovery, including the accident report and other documents, to identify what standards, if any, were breached.
  3. Review the information in the discovery against the standards that were breached and determine whether a breach of any of the standards may explain the accident and whether a breach may constitute negligence and can be a proximate cause of the accident resulting injury.

As attorneys know, proximate cause can be elusive — or sometimes, it can be right up front. If, for instance, the driver was distracted by a fight on the bus and there was no bus aide present as required by local standard, this breach of duty may be determined to be the proximate cause of the accident. But the next question that must be answered is: Even with that breach of duty, would the fight have occurred anyway? If an appropriately trained aide was on the bus, would the aide have been able to end the fight before the driver was distracted?

If a contracted bus company had a policy of weekly in-depth inspections of buses and a brake failure resulted in injury, the company may be liable if it inspected and discovered a problem but didn’t repair it. Investigating the inspection routine and determining whether a reasonable inspection would have identified the brake problem is an important step. If the bus company failed to inspect the condition of brakes, as required by its inspection protocol, and that failure can be shown to be the proximate cause of injury, the bus company may be held liable as a result of the breach of its own standard.

Negligence and School Bus Accident Personal Injuries

A 1986 case, Settles v. Incorporated Village of Freeport (132 Misc. 2d 240, 503 N.Y.S.2d 945 [N.Y.Sup.Ct. 1986]), demonstrates these principles: When a school provides transportation for students, it has a duty to transport them safely, and the school ordinarily cannot avoid its liability for failing to transport its pupils safely by delegating performance of its duty to a private school bus company. The court went on to say that generally, the party that engages the private school bus company is not responsible for the negligence of the company or its employees, and the doctrine of respondeat superior does not apply, However, where work involved may be characterized as inherently dangerous (transporting school children), the duties of the employer (the school) are nondelegable and the school may be liable for the negligence of its contractor (the bus company) if it did not reasonably monitor the contractor’s compliance activities. Further, the school remains liable for injuries caused by negligence of the private bus company if the school fails to use reasonable care to select a competent contractor, where the contractor was in fact incompetent.

For a plaintiff’s attorney, the first foundational fact to develop is that school bus accidents ordinarily do not happen without negligence. A defendant’s attorney, however, may argue that the accident does not support an inference that negligence was involved.

The plaintiff’s burden of proof is not to eliminate all possible alternative causes of injury. The burden is to show that the more probable cause was negligence. If there was negligence, is it attributable to the school or the contracted school bus company? Would this event ordinarily occur in the absence of negligence? The defendant’s attorney may argue that any negligence is attributable to a third party, and not to any breach of standard of the defendant’s duty.

In light of the many questions and potential variables involved, the establishment of negligence, proximate cause, and who bears ultimate responsibility for the safety of students in transit can be challenging. An expert witness specializing in school safety issues can help plaintiff’s and defendant’s attorneys analyze the facts and determine the root of risks that materialize and result in student injury.