CASE RESULTS – CHILD DAYCARE INJURY – BROKEN LEG

Recently I handled a case for a mother whose 2 year old daughter had been injured while in a daycare. The 2 year old girl was in a class with twenty-three other children overseen by two teachers. While the teachers were preoccupied with directing the children from breakfast to playtime, a much larger child got too rambunctious and fell on the little girl’s left leg, fracturing her tibia in two places.

If your child has been injured while in daycare, you may be wondering: what legal recourse is available? The answer to that question depends heavily on your particular circumstances. In the situation outlined above, my client had a very strong case. However, this was not due primarily to the seriousness of the injury, but rather to the ability to clearly prove negligence on the part of the daycare. If your circumstances are similar, you may have a strong case as well.

Why Did My Client Have a Strong Case?

When my client first called me, I immediately advised her to file a complaint with the Georgia Department of Early Care and Learning, also known as Bright from the Start. As a daycare licensed by the state of Georgia, the center where my client’s daughter sustained her injury was required to meet state standards. Once my client filed a complaint, Bright from the Start conducted an investigation of the incident. The findings of this investigation would be incredibly important to my client’s case as they would prove whether or not the little girl’s injury resulted from negligence on the part of the daycare. As it turned out, it did.

Bright from the Start requires licensed daycares to follow specific teacher:child ratios that vary based on the age of the children, as follows:

Under 1 year or under 18 months if not walking = 1:6

1 year and walking = 1:8

2 years = 1:10

3 years = 1:15

4 years 1:18

5 years = 1:20

6 years and older = 1:25

Bright from the Start’s investigation discovered that, on the day of the injury, the little girl’s classroom had a ratio of two teachers to twenty-four 2 year old children. According to state regulations, an additional teacher should have been present. However, the daycare neglected to follow this important rule. Because of this, the two teachers that were present had their hands too full to keep close tabs on all the children. The result? My client’s daughter ended up with a fractured leg.

In this case, a clear line could be drawn from the daycare’s failure to abide by state standards and the injury that occurred. This fact made for a strong case as it clearly showed that the daycare was at fault. But there was an additional layer to the story. Bright from the Start records revealed that this same daycare had also been caught violating state standards on a numerous past occasionsThe records showed 11 violations of the staff:child ratio standards alone. This was a major boost for the case as it proved a pattern of negligence on the part of the daycare. In court, a jury would likely see this pattern as grounds for punishing the daycare by awarding my client punitive damages on top of the general damages she would have already received. For this reason, the daycare’s insurer made an offer we couldn’t refuse on the case, and my client received considerable compensation.

How does all this relate to YOU?

If your child was injured while in daycare, it is possible that the fault can be traced to the childcare center’s negligence in following state standards. If so, you may have a strong case. However, to prove negligence, the incident must be investigated, which is why it is very important that you file a complaint with Bright from the Start (Georgia Department of Early Care and Learning). You can get more information about how to file a complaint HERE.

After filing a complaint, get in touch with an attorney. An attorney can help you navigate the complexities of your situation. Maybe the daycare is clearly at fault and in violation of state standards (of which there are many, as you can read about HERE). Or maybe your daycare is exempt from licensure and is not required to follow state standards, which you can read about HERE. Whatever the details of your case, an attorney can help you navigate the many aspects that play into daycare injuries, providing clear expertise on the legal recourse available to you and your child. 

I have been representing children in accident cases for over 24 years. My office is located in Conyers, Georgia and I meet with clients all over metro Atlanta (hospital, home visits, wherever is best for you). The best way to reach me is by text or voice at Six-Seven-Eight 358-2564.

Atlanta Personal Injury Attorney Specializing in Child Injury – Pete Pearson

CHILD TOOTH INJURY

Of all facial injuries, tooth injuries are the most common in children and may also involve the jaw, lips and oral muscles. The most common causes of tooth injuries are falls (day care accidents, playground accidents), followed by automobile accidents (and also bicycle accidents), abuse (battered children), and sports injuries.

I am writing this post to address two questions. First, under what circumstances should a parent talk to a lawyer after a dental injury? Second, what unique considerations are present when a lawyer brings a claim on behalf of a child who has suffered a dental injury (how does it differ from a claim that involves an adult with a similar injury)?

DO I NEED TO TALK TO A LAWYER ABOUT MY CHILD’S TOOTH INJURY?

Lawyers are sometimes ridiculed for answering questions with “Well, it depends.” But it really does depend! Ask yourself the following questions:

  • Where did the injury occur? This information may have legal implications – for instance, did the injury occur at your home while your child was under your supervision? Or was your child being supervised at another home or a day care center? Did the injury occur while the child was in a motor vehicle and if so, does the at-fault driver have insurance? In the event the other driver may not have insurance, do you have uninsured motorist coverage that will compensate your child?
  • How did the injury occur? What doctors call the “mechanism of injury.” This may lead to identification of hidden injuries. For example, a chin injury is often combined with crown or crown-root fractures in premolar and molar regions.
  • When did the injury occur? How much time has gone by since your child was hurt? This matters both because it is best to start collecting legal and medical documentation as soon as practicable after an injury and because the more time that passes the harder it gets for your doctor to address the all-important issue of causation (in their records.) Causation has to do with making sure the dental records clearly link the cause of the injury to the injury. You would shocked at how hard some insurance companies work to attack causation by blaming “intervening events” (things that happened to your child after the injury and before he/she was diagnosed with the injury.)

Of course, sometimes it will be obvious you need to talk to an attorney. I am currently handling a case for a little boy that fell while he was at a day care center. The center told the child’s mother that he knocked a tooth out during diaper changing time. What the center did not tell the mother (and a video subsequently revealed) was that the teacher left the boy on a table while taking all the other children in the room out into the hall. The boy did what boys do – he tried to follow and, being alone and unsupervised, fell off the table and his tooth was knocked completely out. In this case there was an attempt to cover up what really happened. Anytime you sense a cover up, it is important to contact an attorney so that a sifting investigation can take place.

In general, if your child was injured and you feel it was due to someone else’s negligence or lack of supervision, you should call me. It costs you nothing to get my opinion and I would like to hear about what happened and talk you through whether you have any legal options.

UNIQUE LEGAL CONSIDERATIONS INVOLVED WITH CHILD DENTAL INJURIES

You already know that baby teeth differ from adult teeth. A child’s mouth will be full of 20 teeth eventually, which is a few less than the 32 adult teeth that come later.

Baby teeth (dentists call them primary teeth) are important to your child’s dental health and not just during the few years before they fall out! They help shape the mouth for the permanent teeth. They help guide the adult teeth into position. If your child loses teeth (or has damaged teeth) the permanent teeth are more likely to overlap or not come in at all (dentists call this “disturbance in eruption”.)

Also, an impact to a baby tooth can lead to the death of a permanent tooth. Under your child’s baby teeth are tooth buds (also called tooth germs). They are the “pre-teeth,” the beginnings of the permanent teeth. They are, in essence, the embryonic structures that will become the adult teeth.

One way traumatic dental injuries differ in children (as compared to adults) is that a knocked out tooth (dentists call this an “avulsed” tooth) typically will not be put back in (called replanting.) This is because attempts to replant a baby tooth can actually damage the permanent tooth that is growing inside of the bone.

Another unique consideration with child dental injuries is that sometimes the dentist can’t do anything for your child right away, particularly in the case of a knocked out tooth in a very young child. In a recent case my client was just 18 months old. The dentist told the parents that they would need to wait until the child was 6-7 years old to see if the permanent tooth would come in normally (the effected tooth was a central incisor and the permanent teeth don’t normally come in until age 6 or 7.) For my clients, presenting their legal claim to the insurance company was complicated by the reality that the future dental expenses were going to be the most significant part of their claim.  I worked with the family and their dentist and was provided with estimates of the cost of future care, which we adjusted upward for the cost of dental inflation over the 5-6 year time frame in question (Did you know there was such a thing? There surely is and the latest government predictions have it running at 3.4% per year.)

Another unique legal consideration is that in order to have a successful claim it may be important to get your child to a pediatric endodontist. Endodontists specialize in saving teeth and choosing one who specializes in pediatric care can be important. It is important to ask your lawyer to “vet” any doctor you are considering. Some doctors are willing to work with your lawyer to document your child’s claim; others are hostile to legal claims. It won’t do to take your child to a dentist that refuses to help your legal advocate.

CONCLUSION

Trauma that results in tooth injury raises unique and sometimes complex legal considerations. It is imperative to assess whether your lawyer has expertise in handling dental injury claims. If you find yourself in need of such an attorney, I hope you will consider giving me a call. I’d be honored to assist you.

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Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. He is a father to six and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564. 

Child Injury at Unlicensed or Exempt Daycare Centers in Georgia

Does it matter if the daycare center where your child was injured was unlicensed or exempt from licensure? It may matter, if you intend to bring a legal claim for your child’s injuries.

Operating a daycare center that should have a license without one is a horse of a different color than operating a daycare center that is not required to be licensed. I’m going to talk a bit about how to tell the difference between exempt and non-exempt daycare centers. And then I’ll talk about why it matters.

First off, you need to know that some Georgia daycare centers are exempt from Georgia licensing standards. The Georgia Department of Early Care and Learning (also known as Bright From The Start) promulgates regulations that govern these matters. The regulations exempt certain types of child care programs. Click on this link if you’d like to see a full copy of the exemption rules but I’ll give you a few highlights from the rules so you’ll have an idea what kinds of programs don’t have to get a license. 

The following are examples of the types of programs which are exempt from being licensed:

1. Programs which are owned and operated by any department or agency of state, county, or municipal government. So, all public schools would be included in this category of exempt daycare centers.

2. Private non-public educational programs with an established curriculum for children five (5) years and older that operate during the school term for the customary school day, as defined by Georgia law.  So, most of what we commonly refer to as “private schools” are exempt.

3. Parent’s Morning Out, Parent’s Night Out, or similar programs which operate for no more than one session of up to four (4) consecutive hours per day and which limit attendance to no more than eight (8) hours a week per child.

4. Nursery schools, playschools, kindergartens or other educational programs for children two (2) years through six (6) years of age which operate for no more than four (4) consecutive hours per day.

5. Day camp programs for children five (5) years and older that are operated between school terms, whose primary purpose is to provide organized recreational, religious, or instructional activities.

6. Short-term educational or recreational activities or classes for children in which the supervision and care of the children are incidental to their participation in the activity or training in specific subjects, such as, but not limited to, music lessons, dance classes, swim lessons, etc. The provider is not assuming responsibility for supervision and care of the children outside of the classes or activities the children’ participate in and shall not advertise or otherwise represent that child care services are offered. Note the requirement that the provider not advertise or represent they are offering child care services. If the provider does advertise or represent they are offering child care services the arguably are subject to the licensure requirements.

7. Any short-term child care service provided by an establishment, such as, but not limited to, a religious facility, health club, or retail store, and such program or service meets all of the following:

(i) Operated on the premises of the establishment;
(ii) Operated for the convenience of the parents, guardians, or custodians and for the use of on-duty employees or students attending classes;
(iii) Parents, guardians, or custodians are participating in activities provided by the establishment on the premises of the establishment;
(iv) Parents, guardians, or custodians are readily available;
(v) Attendance of child in the short-term child care service is limited to no more than four (4) hours per day and no more than ten (10) hours per week, except in the instance of child care services offered at infrequent events such as, but not limited to, conferences and weddings.

8. Programs operated after the customary school day, as defined in Georgia law, for children five (5) years and older that are strictly instructional and skill-based in a single talent, ability, expertise, proficiency or subject or in closely related skills, proficiencies or subjects, including but not limited to classes such as art, cheerleading, dance, drama, gymnastics, martial arts and music, and the programs comply with all of the following:

(i) Programs provide direct instruction in the single skill or subject and/or closely related skills or subjects to every child each day the child is present;
(ii) Programs do not provide services that are not directly related to the single skill or subject or to the closely related skills or subjects, such as but not limited to homework assistance. During the hours of operation, programs may provide services related to the instruction, such as transportation and giving children time to change into proper clothes/gear;
(iii) Programs shall not advertise or otherwise represent that the program is a child care facility, an after school program, or that the program offers child care services;
(iv) Programs shall not prepare meals and snacks, but may provide ready-to-eat snacks, such as pre-packaged snacks;
(v) The majority of the program staff responsible for instruction shall possess specialized qualifications to instruct in that skill or subject, and the program shall submit documentation of such specialized qualifications of staff to the department at the time of application for exemption or as requested by the department;
(vi) Programs shall inform parents or guardians about the physical risks a child may face while participating in the program;
(vii) Such programs shall not be an integral part of a licensed child care learning center or day care center;
(viii) Enrollment information shall clearly define the duration of the program.

9. Short term educational programs offered to school-aged children in which the supervision and care of the children are incidental to their participation in the short-term educational program, and the provider is not assuming responsibility for the provision of daily child care outside the scheduled program. The majority of staff responsible for the direct delivery of education services to children possesses specialized qualifications that are directly related to the short term educational programs being offered, and the program shall submit documentation of such specialized qualifications to the department at the time of application for exemption or as requested by the department. The sole or primary purpose of such short term educational programs is:

(i) To prepare children for advancement to the next educational level through a prescribed course of study or curriculum;
(ii) To provide specialized tutoring services through a prescribed course of study or curriculum to assist children with the passage of mandatory educational proficiency examinations;
(iii) To provide specialized tutoring services through a prescribed course of study or curriculum to assist children in specific academic areas, such as, but not limited to, foreign language, mathematics, science, etc.

10. Any program or facility providing care for school-aged children that is operated by, or in affiliation with a national membership non-profit organization that was created for the purpose of providing youth services and youth development, that charges a membership fee for children and may receive monthly, weekly, or daily fees for services. Such program or facility holds membership in good standing and is certified by its national association as complying with the association’s purposes, procedures, minimum standards and mandatory requirements. Such national membership organizations include, but are not limited to, the Boys and Girls Clubs of America.

11. Any program providing group care for children for no pay. There’s an easy one: no compensation = exempt from licensure. 

12. A center that is licensed by the department may request an exemption from licensure if the center’s program is an integral part of an established religious congregation or religious school that conducts regularly scheduled classes, courses of study, or educational programs and is a member of or accredited by or certified by a state, regional, or national accrediting agency for religious educational instruction or a state, regional, or national accrediting agency for educational instruction as recognized and approved by the department if such accrediting entity uses standards that are substantially similar to those established by the department. In addition to the requirements listed above applicable to all exemptions, the following additional requirements shall apply to centers seeking an exemption under this provision:

(i) A center seeking such exemption from licensure shall be required to submit to the department documentation of certification or accreditation, including a copy of its most recent certification or accreditation inspection report, and any other pertinent documentation as requested by the department, such as non-profit tax-exempt verification. The accrediting agency must conduct regularly scheduled visits to the center while such center remains accredited.
(ii) If such exemption is granted, the center shall submit annual documentation to the department verifying its continued certification or accreditation, including a copy of its most recent certification or accreditation inspection report, and other pertinent documentation as may be requested by the department.
(iii) Such exemptions granted by the department are valid as long as the center remains certified or accredited. The program shall provide the department written notice within five (5) business days of the center’s loss of certification or accreditation, including a copy of such notification from the certifying or accrediting entity. The department shall rescind the center’s exemption granted herein upon notification of the loss of certification or accreditation.
(iv) Any center seeking such exemption shall comply with all applicable requirements for background checks for directors/employees as required in O.C.G.A. § 20-1A-30 et seq., Chapter 591-1-1, Rules for Child Care Learning Centers, department policies, as well as applicable local, regional, and state health department, state fire marshal, and local fire prevention guidelines/requirements while such exemption is in effect. The department retains jurisdiction over centers granted such exemption to conduct unannounced periodic background check audits and to conduct complaint investigations regarding compliance with background check requirements, as well as compliance with local, regional, and state health department, state fire marshal, and local fire prevention guidelines/requirements.
(v) The department may rescind such exemption for a center’s failure to comply with the requirements for background checks for directors/employees pursuant to O.C.G.A. § 20-1A-30 et seq., Chapter 591-1-1, Rules for Child Care Learning Centers, and department policies.
(vi) Any center applying for such exemption that is owned and/or under the legal control/direction of the certifying or accrediting entity shall not be approved by the department.
(vii) A center seeking such exemption shall adopt and comply with the minimum standards of its certifying or accrediting entity for the operation of the center’s program. Such minimum standards adopted by the center shall be published and made available to parents of enrolled or prospective children upon request.
(viii) A center granted such exemption shall comply with the requirements regarding notification to parents of enrolled children if the center does not carry liability insurance.

OK, I’ll stop with the regulations that never end. Here’s my point in sharing all the detail with you: it’s complicated. It takes rigorous research to determine if a particular program that appears to be subject to licensure may in fact be entitled to an exemption. Call me or someone like me if you want to be sure.

So why may it matter to your legal claim if a daycare center is exempt? It may matter because exempt programs have a much lower level of accountability. They are not scrutinized the same way as licensed providers. The State doesn’t do the kind of inspections that are done at licensed daycare centers. And when your lawyer sets out to build your legal case against a negligent daycare provider, there won’t necessarily be any records of State inspections. And, perhaps most importantly, there may be an issue about whether the Bright From the Start regulations that pertain to child safety even apply to exempt centers. 

That does not mean we can not successfully claim against an exempt daycare center. It simply means a claim brought against an exempt daycare center must proceed along a different track than a claim against a licensed daycare center. You want to select an attorney who is 1) aware of the difference between exempt and non-exempt programs, and 2) will persevere through the detailed research required to determine which category your child’s daycare center falls into.

Now please don’t stop reading quite yet, because in many ways the most important information is still to come.

The reason why I began this post by talking about exempt daycare centers is because many folks tend to jump to the conclusion that an unlicensed daycare center is always an illegal daycare center. You know from what I’ve written above that is not the case. Many are exempt from licensure under Georgia law.

So any lawyer worth their salt is going to take the time to analyze what situation applies to you and your child’s injury claim: do we have a situation where the daycare center is required to obtain a license? Or is the program exempt? That’s an important question to ask at the start.

But let’s talk now about daycare centers that are not exempt but instead required to be licensed by the State of Georgia. Let’s assume the program in which your child was injured was such a non-exempt program but had no license. What then?

You may have a very strong case, assuming your attorney can show that the lack of licensure was causally connected to the injury your child sustained (by which I mean that the failure to obtain a license or something flowing from that failure is what caused your child to get injured.)

I have blogged elsewhere about using Georgia licensing standards for daycare centers to prove negligence. So I’m not going to discuss that again in this post. But keep in mind that even if a non-exempt daycare center neglects to get licensed, they still owed your child the duties provided for in the Georgia licensing standards.

Here is a report I found interesting on a daycare center that was recently shut down by authorities in Savannah, Georgia. It was shut down after it was discovered they were operating without a license – WJCL Looks Into Child Care Center Laws

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Attorney Pete Pearson practices personal injury law in Atlanta, Georgia and has a special interest in helping families of injured children. He is a father to six and lives with his wife and children in Conyers, Georgia. He can be reached directly at Six-Seven-Eight 358-2564. 

Child Injury at Day Care – Using Georgia Licensing Standards for Day Care Centers to Prove Negligence

When an injury to a child occurs at a day care center it is probable that State of Georgia licensing standards and Bright From The Start regulations have been violated.

Bright From The Start (also known as the Georgia Department of Early Care and Learning) is the agency charged with enforcing Georgia’s child safety, health and welfare laws in connection with child care learning centers.

When a child is hurt at a day care center and that injury was caused by a failure to adhere to Georgia licensing standards and/or regulations promulgated by the Georgia Department of Early Care and Learning, this violation of Georgia law or regulation may form the basis of a negligence per se (negligence as a matter of law or negligence “on its face”) claim.

An attorney that is familiar with the laws and regulations that pertain to child care learning centers can determine if any such violations existed and led to the harm caused your child.

There are numerous safety-related subjects addressed in the regulations and the applicability of different aspects of the regulations varies depending on whether a day care center is categorized as a “family day care home,” “group day care home,” day care center” or some other designation. It is important to determine the legal designation of what kind of child care learning center your child was attending before researching which regulations apply.

Some of the definitions that determine what category a center falls into are found here:

O.C.G.A. Section 20-1A-2

One reason it is imperative to have an attorney review your situation by consulting the Georgia licensing standards and related regulations is that there are MANY detailed rules and regulations with which child care learning centers must comply. Since many specific requirements exist, and your claim may be much stronger if we can demonstrate the center violated one or more of them, we want to carefully evaluate the center’s compliance. If we can establish non-compliance we can also establish that IF the center had been compliant your child’s injury would have been preventable.

To give one example of the kind of detailed rules centers must follow, you might take a look at what is required regarding infant sleeping safety requirements in Section 290-2-3-.19 of the Bright From The Start Rules and Regulations for owners and operators of Family Day Care Homes.

290-2-3-.19 Infant-Sleeping Safety Requirements.

In order to reduce the risk of Sudden Infant Death Syndrome (SIDS), staff shall put an
infant to sleep on the infant’s back unless the home has been provided a physician’s
written statement authorizing another sleep position for that particular infant. The infant
shall be placed for sleeping on a firm, tight-fitting mattress in a sturdy and safe crib. If
the crib has side bars, the bars will be no more than two and three eighths inches (2 3
/8") apart. Any crib used for sleeping shall have a tight-fitting bottom crib sheet with no
pillows, quilts, comforters, bumper pads, sheepskins, stuffed toys, or other soft items in
the crib. If a blanket is required for the comfort of the infant, the infant’s feet shall be
placed at the foot of the crib and the infant shall be covered with the blanket only to chest
level with the blanket tucked firmly under the crib mattress. The infant’s sleeping area
shall be maintained within a temperature range of sixty-five (65) to eighty-five (85)
degrees depending upon the season. When an infant can easily turn over onto his or her
stomach, staff shall continue to put the infant to sleep initially on the infant’s back but
allow the infant to roll over onto his or her stomach as the infant prefers. Positioning
devices that restrict an infant’s movement in the crib shall not be used unless a
physician’s written statement authorizing its use is provided for that particular infant.

Child Injury – Fall at Day Care – Failure to Keep Playground Surfacing Well-Maintained

According to the US Consumer Safety Product Commission safe playground surfaces should have at least 12 inches of wood chips, mulch, sand, or pea gravel or the ground should be covered with mats of rubber or similar material.

Children can be seriously hurt or killed from falls on playgrounds. If your child was injured or died because a day care center was negligent by failing to keep the playground surface well-maintained with safe materials, let’s talk about your legal options.

The primary focus of my representation is seeking just compensation for the victims of preventable injuries. Another motivation in bringing a claim against a day care center is that a lawsuit may be the only action that makes them get serious about their duties. Getting the right surfacing installed could save another child from getting injured and save another family from going through what you are going through.

Watch a Mom talk about the child safety practices at her day care center, including the rubber mat playground surface –