Child Sports Injuries in Georgia – Second Impact Syndrome

Concussions are a common sports injury among children. In recent years there has been growing consensus that policies are needed for “concussion management” and “return to play” guidelines – to protect our children. In 2013 Georgia became the 44th State to enact a law that requires schools to create a policy on how to respond to head impacts during sports and other recreational activities.

The Georgia law, The Return to Play Act of 2013, mandates that all public and private schools must adopt and implement a concussion management and return to play policy. The rationale behind the law is that school officials are in the best position to prevent children and teens from returning to play after a blow to the head. Continuing to play with a concussion or symptoms of head injury leaves a child vulnerable to severe injuries like post-concussive syndrome and chronic traumatic encephalopathy (CTE), or death.

Under the new law each local Board of Education and the governing board of every non-public elementary school, middle school, and high school must:

  • Provide written warnings to coaches, students and parents that educate and inform of the risks of concussion and head injury to children who participate in athletic activities (this notice must be provided prior to the start of each athletic season and all pre-season practices)
  • Require each coach to complete an annual concussion recognition course and be certified in recognition of concussions in student athletes
  • Require coaches and school officials to comply with a uniform return to play protocol in the event of an injury or suspected injury to a child

What if your child was injured and school officials failed to follow the law and even greater harm happened to your child? How can the school be held accountable?

The answer to this question is unfortunately complex. Georgia law does not treat all students equally. If your child is injured while attending public schools your rights are fewer than if the injury happens at a private school. For a full treatment of how the law works in this area, read my post on Public School Injury Law In Georgia. If you don’t have time to read the full version, the law in Georgia is basically this:

In the State of Georgia the rule is that you can not sue a governmental employee (which includes school teachers, coaches, and school administrators) unless the governmental entity that employs them has waived Sovereign Immunity.

Sovereign Immunity is a shield that stops cold most injury claims against school districts and public school teachers/coaches, etc . . . Sovereign Immunity means that you can not sue the government without it’s consent. And as you might imagine, the government is not often inclined to give that consent.

Thankfully, there are exceptions to the rule. One exception is that under Georgia law, a suit against a public officer acting in his or her official capacity will NOT be barred by official immunity if the public officer negligently performed a ministerial duty. Suit IS barred, however, if the public officer negligently performed a discretionary duty. In other words, public officials are immune from damages that result from their performance of discretionary functions (GENERALLY, there is an exception that has to do with when those functions were undertaken with malice or intent to cause injury, read my full blog post on Public School Liability in Georgia if you want to learn more about that.)

What does all this mean? A ministerial duty is one that is commonly simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary duty is one that calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

So the question is whether the Courts will interpret the new duties created by Georgia’s Return To Play Act as ministerial (no immunity – you can sue for negligence) or discretionary (immunity – you generally can’t sue.) Over the last decade or so the Georgia Court of Appeals has shown a tendency to interpret duties as discretionary (thereby barring suit). It is unknown how the Courts will interpret this new law.

I believe the Courts should interpret the duties under the new law as ministerial. The duties concern matters that are simple, absolute and definite – a blow to the head occurs and a duty arises at that point in time to act on the duty created by this new law. No discretion is needed – the coach or school official needs to remove the child from play and not allow return to play until the appropriate health provider has examined the child and cleared them to return. Failure to follow this simple protocol would be a violation of a ministerial duty. Similarly, a school district who fails to provide the required warning notices or required training for coaches would be in violation of a ministerial duty.

That’s my take on the proper interpretation of the new law. What the Courts will do is in the future. If your child has been injured at school, please call me. Navigating these waters alone is treacherous. Public school officials are well aware of the law of sovereign immunity. Private school officials already have lawyers working to defend them. Shouldn’t you too?

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Attorney Pete Pearson practices Child Injury and Wrongful Death Law in the State of Georgia. Located in the Greater Atlanta Metro Area, he is available to help families all over the State of Georgia. He can be contacted directly at Six-Seven-Eight 358-2564 or by Email.

Homeowner’s Insurance – What If My Child Is Hurt At Another Family’s Home?

If your child sustains an injury while at another family’s house and there is a homeowner’s insurance policy in effect, your child’s injury claim will almost certainly be covered. Don’t delay in reporting the injury, however, because all policies have a provision that says if timely notice is not given to the insurance company they can deny coverage.

After making sure the injury is reported to the insurance company (preferably in writing), take time to assess what type of insurance claim will be appropriate. There are two types.

The first type of claim under homeowner’s insurance. Many homeowner’s insurance policies contain “Med Pay” or “Medical Payments” coverage. “Med Pay” is no-fault coverage, which means it is available to help compensate you for medical expenses related to your child’s injury no matter how the injury took place. In other words, there is no requirement that you show that anyone was negligent. If you can show that your child was injured on the other family’s property, you can recover under the “Med Pay” coverage.

“Med Pay” is sold in increments and a family may have $1,000, $2,000, $5,000, $10,000, $25,000, $50,000, or more coverage in place. The way this type of coverage works is that you submit your child’s medical bills to the homeowner’s insurance company as you receive them. Some medical providers will even handle the submissions for you. Or, if you prefer, you can have the insurance company mail you (or your attorney) a check for the cost of your child’s medical treatment. I recommend the latter approach because it allows you (or your attorney) to negotiate with your medical providers. Often providers will offer a discount to settle your child’s bill if you ask. You can save money that way and use what you save to pay for your client’s future medical care or other injury related expenses.

The second type of claim under homeowner’s insurance. The second type of coverage is bodily injury liability coverage. This pays only when the owner or someone in the owner’s family is found to be at fault. You have to be able to (usually with the assistance of an attorney) prove that the owner or representative of the owner did something (or failed to do something) that constitutes negligence and that negligence led to your child’s injury.

Even if the homeowner has admitted fault, keep in mind that is is very common for stories to change after a little time goes by. Do your child a favor and document everything. If the homeowner admits fault, get that on a recording or in writing. Get them to admit the specifics of what they did wrong. This will protect you in the event they later change their story (and you would be amazed at how often stories change.)

A bodily injury liability claim allows you to recover more damages than in a “Med Pay” claim. “Med Pay” pays only for your child’s medical expenses. A liability claim pays you for medical expenses, any related lost wages, human losses (pain and suffering), and any damages that flow from your child’s injury.

One question that you may have is whether your child can be held responsible for causing their own injury? This issue arises if your child was doing something that perhaps was a little foolish at the time they were hurt. The answer is: it depends. It depends on the age of your child.

In the Georgia common law there is a legal creature known as the “tender years doctrine.” This doctrine holds that children under a certain age can not be charged with contributory negligence (fault) or assumption of the risk. The younger the child, the less likely they can be found to have contributed to their own harm.

For example, there is a case that holds that a 4 year old child is presumed incapable of negligence. But there is also a case that holds that a child that is 5 years, 10 months old does not get that same presumption. Exactly when a child becomes capable of contributory negligence is not clear in the case law. It seems safe to say that if a child is older than 6 years they might be charged with contributory negligence. But the issue is one for a jury to decide and is very fact specific.

So essentially, with very young children (4 and under) it is clear that they can’t be blamed for hurting themselves. With children older than 6, it is less clear. It will come down to what the courts have called a “subjective, individual standard of care for children.” In other words, the court or jury will have to examine the capacity of the child in question and their behavior and make a judgment call about whether they were capable of preventing the harm to themselves or if the adult in the situation should be charged with full or partial responsibility.

An example from a recent case I handled may help clarify how the doctrine of tender years works in practice.

My client, a 5 year old girl, was dropped off at the home of the Defendant. The Defendant had agreed to babysit my client.

The previous Sunday was Easter Sunday and my client’s mother had pressed out the child’s hair for the occasion. When the mother dropped her daughter off at the Defendant’s house, her hair was up in a ponytail. 

On the evening of the loss, the Defendant loosed the pony tail and let the girl’s hair out and shortly after gave her a lit candle to take into the house (the Defendant was outside talking to a friend on the phone). My client went inside the house unsupervised and while inside her hair caught on fire.

What happened next shocks the conscience. After this 5 year old child was burned, the Defendant told no one, called for no medical attention, and hid the fact from her own husband (by putting panty hose on the girl’s head to conceal the burns). The Defendant put the child to bed and kept her quiet during the night (while she fussed) by giving her Motrin.

All that night, the following morning, and throughout the next day, the Defendant again told no one and called for no medical attention. She did not inform the child’s mother. It was not until nearly 24 hours later, when the child’s mother returned, that her mother discovered the burns. Immediately she called 911 for an ambulance.

In that case, the insurance company didn’t even bring up the tender years doctrine. But, had my client been 7 or 8 or older, the insurance company might have.

One final piece of information. Because “Med Pay” claims are no-fault generally you do not need an attorney if that is the only type of claim you plan to bring. Generally the homeowner’s insurance company will pay the bills up to the limits of coverage without much of a fight. There are exceptions but generally you should be able to handle that without the expense of an attorney. If, however, you believe there was fault, it would be worth your while to consult with an attorney. Keep in mind that the attorney fee on a bodily injury liability claim is paid from the settlement, not from you or your child, and that if there is no recovery there is no attorney fee. So it is a risk free call to the attorney.

If your child has been injured by the negligence of another and you believe there may be grounds for a bodily injury liability claim, please call me. I have been representing families for over 17 years right here in Georgia and would be honored to talk with you. 

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Attorney Pete Pearson practices Child Injury and Wrongful Death Law in the State of Georgia. Located in the Greater Atlanta Metro Area, he is available to help families all over the State of Georgia. He can be contacted directly at Six-Seven-Eight 358-2564 or by Email.

INTRODUCING www.petepearsonlaw.com

It is with great expectations that I introduce my new website – www.petepearsonlaw.com.

It was designed by the guys over at kmdig.com, a creative advertising, interactive, and branding agency.

Aside from the fresh look, the site offers you, as a prospective client, more information about me, my legal services, and even has a link to the attorney fee contract you would sign if you retain me.

On top of that, I have a “NEWS” section that to be completely honest I added because my web designer said it would help with SEO. But since they persuaded me to add it, I will do my best to use it as a tool to benefit potential clients who go online to research legal questions.

I hope you will check it out. And offer me any feedback, positive or negative.

Thank you for reading.

Attorney 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. 

INJURY SETTLEMENT RELEASE RESCISSION IN GEORGIA (Is the Release I signed Final?)

Your child has been seriously injured. The first few days are a blur of fear, stress, and struggle to get your mind around what the doctors have told you about your child’s likelihood of recovery. You and your family are worried, upset, and naturally enough, quite vulnerable.

Into that perfect storm sails an insurance representative for the at-fault party – the insurer for the person or entity that caused your child’s injury. With soothing words and expressions of sorrow and sympathy the insurance company convinces you they are here to help. Representations are made, money is discussed, and it all sounds like a distant echo to you because of your shock and grief.

But somehow you end up signing a document that settles your child’s injury claim for a few thousand dollars. The representative is so nice and seems so much to want to help. You just want them to go away and leave you and your suffering child alone. You don’t realize it at the time but you are highly suggestible and easy prey for the insurer.

A few days or weeks later, as your child’s medical bills continue to climb, you come to your senses and realize you have been duped. But you have already signed away your rights, or so you fear.

Sound familiar? This is an all too common scenario, I’m afraid.

What can you do? What can a parent of an injured child do if you signed an injury settlement release and later discover that your child’s injuries are worse than you could have imagined?

If you find yourself in this situation, this post is for you. You need to know that legal options do exist. You need to know that settlement releases are governed by contract law. You need to determine whether an enforceable contract came into being when you signed. You need to assess if grounds exist for undoing the contract (contract rescission). You need to talk to an attorney as soon as possible.

In this post I will briefly describe a few of the ways an attorney might succeed in having a settlement release set aside.

There are two ways to come at this legal problem. Keeping in mind that a release is a contract, the first is to ask whether the parties (you and the insurance company) agreed on all material terms of the settlement such that an enforceable contract came into being? Or were essential terms left unaddressed, meaning there was no “meeting of the minds” (a meeting of the minds is an essential element of contract formation). The second is, assuming an enforceable contract did come into being, are there grounds for undoing (rescinding) the agreement?

ARGUE WHAT YOU SIGNED DOES NOT CONSTITUTE A LEGALLY ENFORCEABLE CONTRACT

Let’s take a look at what Georgia Courts have said about the first of these ways of coming at this problem.

Importantly, the Courts often start their analysis of this first issue by noting that it is the policy of the law to encourage compromise and settlement. What this means is that the Courts favor ending conflicts without resort to litigation and will enforce settlement agreements whenever possible, if they were fairly made and don’t contravene any public policy of the State of Georgia. The Courts will enforce a settlement agreement if it can be shown there was a) an offer, b) an acceptance and c) a “meeting of the minds.”

Offer and acceptance are terms that may intuitively make sense to you.

But just what is a “meeting of the minds”? Unfortunately there is no magic formula. Deciding whether a “meeting of the minds” existed at the time of the signing of a release is a fact-specific inquiry that defies generalization. The starting point for this inquiry is to have an attorney review the settlement release. He or she will review to determine if the parties came to a clear agreement as to all essential terms and whether the agreement left any material terms open for future agreement. What constitutes “essential” and “material” are issues best left to your counsel.

Let’s now take a look at the second way of coming at this legal problem – rescission.

ARGUE THE CONTRACT SHOULD BE RESCINDED

What is contract rescission? It is a way of undoing a contract, either by proving that there was some mistake or unfairness in the deal.

What are some possible grounds that might form the basis for a successful attempt to rescind a settlement release? Let me list some grounds:

  • Overreaching by the insurance company in the way they obtained the release from you

Examples would include:

-an insurance company that takes advantage of a parent whose mental state made them temporarily incompetent to understand or execute a release;

-an insurance company that makes dishonest representations about the extent and severity of the child’s injuries;

-an insurance company that deceives the parent about the legal consequences of signing a release;

-an insurance company takes advantage of a parent’s poverty and inability to pay for the child’s medical care to convince them to sign a release;

-an insurance company gives a family such an inadequate amount that it shocks the conscience of the Court

  • Misunderstanding by the parent as to the nature and effect of the release

Examples:

-The parent who signed can’t read the language in which the release is written (this could be due to illiteracy or due to the release being offered in a language other than the parent’s native tongue.)

-An insurance company offers a parent a release to sign that is limited in scope (to just to property damage to a vehicle, for instance) and after the parent agrees to sign substitutes a different and broader release.

  • Mistake of fact as to extent of injury

This is the most difficult kind of grounds to prove. This has to do with a scenario where a parent, after signing a release, finds out that the severity of the child’s injuries are more serious than previously known.

The legal path to successfully setting aside a release on these grounds has to do with something the law calls “mutual mistake”. Generally speaking if just one party to a settlement is mistaken about the extent of injury that will not suffice for undoing the contract. But if it can be shown that both parties were mistaken about the extent of what was being released, it may be possible to rescind the agreement.

As you can imagine, mutual rescission requires the cooperation of the insurance company and normally they are not going to be interesting in undoing a release, since the release is what protects the insurance company from taking future responsibility for your child’s injury. But, why not ask?

I have encountered one situation where an adjuster, when confronted with the severity of a child’s injuries, felt that mutual rescission was appropriate.

But the vast majority of the time parents will find that the insurance company will have no interest in reopening a claim it thought closed. What then?

Things get very technical from here on in. Your attorney needs to parse the release language. Does the release language address “all claims for injuries” or “claims for known and unknown injuries” or just what does the language say? Sometime the legal meaning of the language varies from a common sense reading.

OTHER LEGAL STRATEGIES

Here is another possible way to attack an unjust release:

O.C.G.A. Section 33-7-12(a) states that a purported settlement is null and void if the third party (the claimant or Plaintiff) is not provided with a written notice informing the third party of the lack of consent of the insured and that the insured is not thereby precluded from the further assertion of claims against the third persons. The statute states this written notice must be given to the Plaintiff before the settlement occurs or the settlement is of no effect.

O.C.G.A. 33-7-12. Effect of provision in policy permitting insurer to settle or compromise claims upon rights of insured and of third persons; settlement of claims by third persons

(a) Any provision in a liability policy of insurance which provides that the insurer shall have the right to compromise or settle claims of third persons against the insured without the consent of the insured shall be deemed to create, as between the insurer and the insured, the relationship of an independent contractor so that the insured shall not be precluded from asserting a claim or cause of action against third persons, notwithstanding the settlement by the insurer of such claims of third persons, unless the insured shall previously have consented in writing to relinquish his claim or cause of action against third persons, provided in all cases where the insurer shall settle the claims of third persons against the insured without written consent that it shall be the duty of the insurer to inform the third persons in writing of the lack of consent of the insured and that the insured is not thereby precluded from the further assertion of claims against the third persons before taking from the third persons any release, covenant not to sue, or other settlement; and upon the failure of the insurer to give the notice to the third persons of the lack of consent of the insured, the release, covenant not to sue, or other settlement shall be of no effect, null, and void. (Emphasis supplied).

So – take a look at the release you signed. Does it contain language like what you see above? If not, your attorney may be able to get the release set aside.

And here is another strategy:

If you received more than $15,000.00 from the insurance company and the settlement was not submitted for approval to a court, no legally binding settlement has occurred.

O.C.G.A 29-3-3 provides:

(a) For purposes of this Code section, the term ‘gross settlement’ means the present value of all amounts paid or to be paid in settlement of the claim, including cash, medical expenses, expenses of litigation, attorneýs fees, and any amounts paid to purchase an annuity or other similar financial arrangement.

(b) If the minor has a conservator, the only person who can compromise a minoŕs claim is the conservator.

(c) Whether or not legal action has been initiated, if the proposed gross settlement of a minoŕs claim is $15,000.00 or less, the natural guardian of the minor may compromise the claim without becoming the conservator of the minor and without court approval. The natural guardian must qualify as the conservator of the minor in order to receive payment of the settlement if necessary to comply with Code Section 29-3-1.

(d) If no legal action has been initiated and the proposed gross settlement of a minoŕs claim is more than $15,000.00, the settlement must be submitted for approval to the court.

(e) If legal action has been initiated and the proposed gross settlement of a minoŕs claim is more than $15,000.00, the settlement must be submitted for approval to the court in which the action is pending. The natural guardian or conservator shall not be permitted to dismiss the action and present the settlement to the court for approval without the approval of the court in which the action is pending.

(f) If the proposed gross settlement of a minoŕs claim is more than $15,000.00, but the gross settlement reduced by:

(1) Attorneýs fees, expenses of litigation, and medical expenses which shall be paid from the settlement proceeds; and

(2) The present value of amounts to be received by the minor after reaching the age of majority is $15,000.00 or less, the natural guardian may seek approval of the proposed settlement from the appropriate court without becoming the conservator of the minor. The natural guardian must qualify as the conservator of the minor in order to receive payment of the settlement if necessary to comply with Code Section 29-3-1.

(g) If the proposed gross settlement of a minoŕs claim is more than $15,000.00, but such gross settlement reduced by:

(1) Attorneýs fees, expenses of litigation, and medical expenses which shall be paid from the settlement proceeds; and

(2) The present value of amounts to be received by the minor after reaching the age of majority is more than $15,000.00, the natural guardian may not seek approval of the proposed settlement from the appropriate court without becoming the conservator of the minor.

(h) If an order of approval is obtained from the judge of the probate court based upon the best interest of the minor, the guardian is authorized to compromise any contested or doubtful claim in favor of the minor without receiving consideration for such compromise as a lump sum. Without limiting the foregoing, the compromise may be in exchange for an arrangement that defers receipt of part or all of the consideration for the compromise until after the minor reaches the age of majority and may involve a structured settlement or creation of a trust on terms which the court approves.

(i) Any settlement entered consistent with the provisions of this Code section shall be final and binding upon all parties, including the minor.

So – if the insurance company paid you more than $15,000.00 and did not submit the settlement for approval to a court, you have very good odds of getting the release set aside as unenforceable.

Incidentally, you can read up on court approval of child settlements here.

CONCLUSION

There is hope! If you find yourself in a situation where an insurance company has unfairly persuaded you to sign a release, please contact me. It will cost you nothing to discuss your options with me.

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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. 

VACCINE INJURY TO CHILDREN IN GEORGIA – LEGAL CLAIMS

What should a parent do if they know (or suspect) their child has been injured by a vaccine?

I will try to answer that question below, along with giving a fly-over of vaccine injury law as it exists today.

For those who lack the time to read all of what I have written, the Cliff’s Notes version of “what to do” if your child has been injured by a vaccine is:

  • Get your child to a doctor quickly who can diagnose the onset
  • Ask that doctor to document in your child’s medical chart the nature of the illness, disability, injury or condition
  • Make sure your doctor documents the time period for the appearance of the first symptom after vaccine administration (this is crucial)
  • Call a lawyer like me who can help you understand your legal options

A Little History

Here is a brief history of the law in the U.S. relative to individuals harmed by vaccines. What you will notice is that that this history lesson demonstrates that we have arrived at a place where there is a prejudice built in to our system against families who seek compensation for injuries caused by vaccines. The federal system that handles these claims is Byzantine. The bottom line? You’ll want help if you want to succeed.

If you go back 60 years or so in U.S. law, you will find the Cutter Incident.

The Cutter Incident and Resulting Lawsuits

Vaccine injury victims had few options before an important court case in the 1950s. Back in 1955 200 people were paralyzed and ten died after contracting polio from a polio vaccine. This came to be known as the Cutter Incident, because Cutter Laboratories was the manufacturer of one of the at-fault vaccines. Many injured people and their families filed lawsuits against vaccine manufacturers. In one case involving Cutter Laboratories the California Supreme Court ruled the company was financially responsible for the harm the vaccine caused. This was a significant ruling in U.S. history of vaccine injury law because it paved the way for many similar awards in other legal cases. No federal system existed (at that time) and no centralized uniform standards existed for determining when a vaccine caused an injury. Instead, juries decided these matters on a case by case basis.

DPT Lawsuits

Through the 1970s and 1980s, the number of lawsuits brought against vaccine manufacturers increased, and manufacturers made payouts to individuals and families who suffered vaccine injuries, particularly from the diphtheria-pertussis-tetanus (DPT) immunization.

The NCVIA

Pharmaceutical companies responded to the rise in injury related payouts by claiming they were being put out of business. They characterized the environment as one of increasing litigation, mounting legal fees, and large jury awards, and warned that if trends continued the U.S. might be left without any manufacturers to provide vaccines.

So in October 1986, the U.S. Congress rode to the “rescue” of Big Pharma. The National Childhood Vaccine Injury Act (NCVIA) ( I will refer to it as the Vaccine Act) was passed into law. Essentially, Big Pharma got immunity from lawsuits and injured people got a new federal bureaucracy in place of their right to a jury trial.

Or to put it differently, prior to October 1, 1988 (the effective date of the Vaccine Act), an individual could pursue an unrestricted lawsuit against a vaccine manufacturer if they or their child was injured by a vaccine. Since that date you are required to apply for compensation from the federal government prior to pursuing a lawsuit.

Although claims under the Vaccine Act were supposed to be handled “quickly, easily and with certainty and generosity” (according to a House report accompanying the 1986 legislation) many claims have taken many years – some more than 10 years! — to be resolved. Jarndyce v. Jarndyce comes to mind. Even the U.S. Health Resources and Services Administration says it takes two to three years to adjudicate a claim after it is filed.

So let’s consider the fairness of the 1986 Vaccine Act.

I have already mentioned that parents of vaccine injured kids for all practical purposes have lost their right to a jury trial and instead now are at the mercy of a federal bureaucracy. That is not progress. But one would expect that the vaccine manufacturers, the corporations who create the products that sometimes harm children, are held accountable in this federal scheme, right?

Not hardly. The National Vaccine Injury Compensation Program (NVICP) (that is the claims system set up by the Vaccine Act) is funded by a tax of $0.75 per vaccine dose, which is collected from vaccine manufacturers by the U.S. Department of the Treasury. But the manufacturers don’t foot the bill. The system is funded by a charge on each dose of vaccine sold. Doctors pay the tax initially when they purchase the vaccines for sale to their patients, but this is passed along to the parents of the child.

So not only are the vaccine manufacturers shielded from jury trials by the Vaccine Act, they are also not responsible for paying one penny of the claims filed as a result of their products. You are!

The NVICP Claims Process

So how does the claim process work? Well, that’s where the Byzantine bit comes in.

Under the NVICP, those with a vaccine injury from a covered (note that not all vaccines are covered by the program) vaccine cannot sue a vaccine manufacturer without first filing a claim with the U.S. Court of Federal Claims. There is a “vaccine injury table” that lists injuries that are presumed to be caused by vaccines but you must first show you meet the table’s time periods.

For instance, the table says that if your child is immunized for Measles, Mumps and/or Rubella and goes into anaphylactic shock within 4 hours or develops encephalopathy (or encephalitis) within 5-15 days, that is presumed compensable. Essentially, to show a “table injury” you have to meet one of the listings in the table and show that the injury’s onset fell within the time period determined by the government.

If your child’s injury does not meet one of the listings in the “vaccine injury table” you must prove that the vaccine caused the injury using medical records and/or expert witness testimony. In the absence of a “table injury” you must show by a preponderance of the evidence something called “causation in fact”, which consists of the following three elements:

  1. medical causation connecting the vaccination and the injury;
  2. a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and
  3. a showing of a proximate temporal relationship between vaccination and injury

Herein lies the rub. If you study the table you will soon notice that very few injuries are listed. And if you study the “Qualifications and Aids to Interpretation” that follow the table you will find mice type replete with exceptions and exemptions and lots of reasons why your claim may not be compensable after all.

The U.S. Department of Health and Human Services publishes the tables here.

So the way the claims process really works is that you need a) to lawyer up and b) get ready to head to Washington (that is where the tribunal sits that hears these claims – the United States Court of Federal Claims). The odds of your child’s injury meeting one of the listings on the injury table are remote and you will most likely need to involve a lawyer in order to prove the vaccine in question caused your child’s injury.

Here are a few examples of federal court rulings that have held that vaccines have caused injuries:

  • A ruling holding that the tetanus vaccine caused a particular case of optic neuritis
  • A ruling holding that the MMR vaccine caused fibromyalgia
  • A ruling holding that the Hib vaccine caused transverse myelitis
  • A ruling holding that hepatitis B vaccine caused Guillain–Barré syndrome, chronic demyelinating polyneuropathy, and multiple sclerosis.
  • A ruling that a combination of DTaP, Hib, MMR, varicella, and inactivated polio vaccines caused  autistic-like symptoms after being received as a series of vaccines in a single day (to the best of my knowledge this is the only ruling admitting a connection between vaccines and autism. There are nearly 5000 other families who have made similar claims but to no avail.)

I realize I am painting a pretty bleak picture of how the claims process works. That may be in part due to my conviction that the American people ought not to be denied their right to a jury trial.  Or my views on Big Pharma’s strangle-hold on our politicians. But I think I’m giving you an honest assessment and perhaps one that you will not receive from some other attorneys (who might not want to bite the hand of the system that feeds them). I think you need to know the truth of why the government treats vaccine injured people the way they do.

It may be helpful also to know that compensation payments from NVICP averaged $782,136 per successful claim through 2011. Attorney fees and costs are NOT PAID BY YOU, even if your claim is unsuccessful. Attorney fees and costs are paid directly by the NVICP trust fund.

You should know that compensation for a death resulting from vaccination is capped at $250,000.

The system also will pay for past and future unreimbursed medical expenses, custodial and nursing home care; up to $250,000 for pain and suffering; and loss of earned income.

Yes, you read that right. The system places a top value of $250,000 for the value of the life of a child killed by a vaccine. Or $250,000 for the value of a child’s pain and suffering who has been severely injured by a vaccine. That is perversely low. But you need to know what is achievable under current law.

As of December 1, 2011, the program had awarded $2.35 billion in 2,810 separate claims, including compensation for 390 deaths.

As of May 2013 the program’s trust fund (that is where the money they have collected from the $.075 surcharge per vaccine sold sits) is approaching $4.0 billion.

Summary of the Federal System

To recap, the Vaccine Injury Compensation Program (VICP) was “established to ensure an adequate supply of vaccines, stabilize vaccine costs, and establish and maintain an accessible and efficient forum for individuals found to be injured by certain vaccines.” When you look closely, however, you discover that what this really means is that the program has been put into place to protect vaccine manufacturers and NOT to protect the interests of those injured by vaccines.

At the time of the law’s creation in 1986, Congress said they were committed to setting up a fair, expedited, non-adversarial, less traumatic, less expensive no-fault compensation mechanism alternative to civil litigation.

Yet obtaining compensation has become a highly adversarial, time-consuming, traumatic and expensive process for families of vaccine injured children, and far too many vaccine victims have been denied compensation. Meanwhile, vaccine makers and doctors have enjoyed liability protection and dozens of new vaccines have been added to the childhood vaccine schedule.

Many parents believe it would be more just to return to a jury trial based system without restrictions on suing vaccine manufacturers and doctors for injuries and deaths their children suffer after receiving federally recommended vaccines. Yet under current law the federal government first recommends certain vaccines and then grants immunity to the manufacturers of those vaccines.

Is the law in Georgia more favorable? Can I bypass the federal system and bring my child’s claim under Georgia law?

Oh I wish it were so. For one brief moment in time, it was.

There was a beautiful (I can think of no better word) 2008 Georgia Supreme Court opinion that held that Congress never intended to shield vaccine manufacturers from ALL liability for vaccine injuries and deaths when it could be demonstrated that a safer product could have been marketed.

In American Home Products v. Ferrari (2008), the Georgia justices unanimously held that the National Childhood Vaccine Injury Act does not give a vaccine manufacturer immunity from vaccine injury lawsuits if it can be proven that the company could have made a safer vaccine.

The Court wrote that there is no evidence that “FDA approval alone renders a vaccine unavoidably safe” and said “We hesitate to hold that a manufacturer is excused from making changes it knows will improve its product merely because an older, more dangerous version received FDA approval,” adding that to do so would have “the perverse effect” of granting complete immunity from liability to an entire industry and the Court concluded that “in the absence of any clear and manifest congressional purpose to achieve that result, we must reject such a far-reaching interpretation.”

The Court held that if vaccine injuries could have been avoided by a “feasible alternative design” (of the vaccine) injury victims should be able to seek compensation in the “tort system” (jury trial) not the “compensation system” (the federal VICP). In one wonderful sentence the Court wrote that: “Accordingly, we must not ‘overstate the degree of uniformity and centralization that characterizes’ the Vaccine Act.”

A Court that recognizes the problem with too much centralized government control over matters that should be left to the people (through jury trials). What a breath of fresh air.

But In 2011 the U.S. Supreme Court nixed the Georgia Supreme Court’s decision in the Ferrari case. The U.S. Supremes wrote that the Vaccine Act “preempts all design-defect claims against vaccine manufacturers brought by plaintiffs who seek compensation for injury or death caused by vaccine side effects” and vacated the Georgia decision. So all of the common sense contained in the Georgia Supreme Court’s opinion has been thrown aside and the law of Georgia is back in lock step with the federal system.

Conclusion

If your child has suffered a serious injury from a vaccine – death, life-threatening illness, hospitalization, permanent disability or a birth defect, would you please call me? Even if you do not hire me, I would like to help get you pointed in the right direction.

Thank you for reading.

Sources:

http://www.historyofvaccines.org/content/articles/vaccine-injury-compensation-programs

http://www.hrsa.gov/vaccinecompensation/vaccinetable.html

http://en.wikipedia.org/wiki/Vaccine_court

http://vaers.hhs.gov/index

http://articles.mercola.com/sites/articles/archive/2008/12/13/why-vaccine-injured-kids-are-rarely-compensated.aspx

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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 BIKE INJURIES IN GEORGIA

More children are struck by vehicles while riding their bicycles during the summer months than at any other time of the year.  It’s not just that school is out during summer – the longer summer days are the main culprit. The longer the day the longer the children stay out riding.

Child bike injury legal claims are a specialized type of case. To name a few of the tricky issues that can arise: Georgia’s dart-out statute, the tender years doctrine, parental immunity, and coordinating insurance coverage. Sorting out these complicated issues and putting together a strategy that results in a successful resolution of your child’s injury claim requires the careful attention of your attorney.

Here is the # 1 legal principle in this area – Drivers owe children a duty to see them. There is some very helpful law on this point in the State of Georgia, starting with O.C.G.A. Section 40-6-93, which reads as follows:

“Notwithstanding other provisions of this chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, shall give warning by sounding his horn when necessary, and shall exercise proper precautions upon observing any child or any obviously confused, incapacitated, or intoxicated person.”

Georgia drivers owe “any child” a duty to avoid colliding with them when they are “upon any roadway.”

If your child has been injured while riding a bike and you believe someone else was at fault, please call me. The initial phone consultation is free and if you need to hire me, I work on a contingency fee basis (which means you don’t have to pay me anything yourself – I am paid at the end of the case out of the settlement).

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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 Drowning Death or Injury – Legal Claims

Summer is near and many public and private pools are being prepared for the swim season. If children are not properly supervised at the pool, summer-time fun can quickly turn tragic.

Drowning is the leading cause of injury death for children 1 to 4 years of age in the United States. 

Top Causes of Injury Death to Children - 2009

Child Death Injury Drowning 2000-2005

Many of these injuries and deaths are foreseeable, controllable, and preventable. The tragic impact that the death (or injury) of a child brings to a family can often be prevented if the owner of the pool follows a few simple safety rules.

What are the standards and rules by which a owner or operator of a pool must abide?

The answer to that question is complicated. There isn’t a published “list” of all safety rules that apply. And the standards/rules may vary depending on the location and type of the pool. This is why you need a lawyer to research what standards/rules apply and how to best present your claim to the insurance company or jury.

One body of regulations that relate to pool safety can be found in Chapter 290-5-57 of the Rules of the Georgia Department of Human Resources Public Health. These “pool rules” contain a variety of standards that may assist your attorney in identifying what the owner/operator of the pool in question failed to do that led to your child’s injury. For instance, the regulations address such matters as diving boards, jump boards, beginner’s areas, decks, bather load limits (the maximum number of swimmers that can safely be allowed in the pool at one time), and required inspection reports.

Another source of duties for pool owners/operators are city and county ordinances. Those need to be identified and researched by your attorney and the standards contained in those ordinances will vary from jurisdiction to jurisdiction.

Another important set of standards/rules is what is known as the “standard of care” for lifeguards. If a lifeguard was on duty at the time of the drowning or injury to your child there needs to be an investigation of whether that guard (or the guards if there was more than one) were properly trained, certified, and whether their performance of their duties on the day of the drowning met the “standard of care.”

The most basic applicable lifeguard standard of care involves a “two-fold duty” (1) to observe swimmers for signs of distress, and (2) when distress is discovered, to attempt a reasonable rescue. The issue in many cases is whether the lifeguard should have discovered any signs of distress prior to the drowning.

Other duties on the lifeguard may exist if the owner/operator of the pool created written standard operating procedures which the lifeguard was required to follow. If these procedures were not followed this will be additional evidence that will help your attorney prove that the negligence of the lifeguard was the cause of the drowning.

This is a short PSA reminding everyone that drowning is the leading cause of injury death to children ages 1 to 4 and that we all need to be aware and do all we can to prevent these tragedies –

Sources:

Centers for Disease Control and Prevention / CDC Vital Signs: Child Injury (2009 statistics)

Centers for Disease Control and Prevention / CDC Childhood Injury Report (2000-2005 statistics)

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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. 

Public School Injury Law In Georgia

If your child has been hurt while at school and you are considering bringing a claim, you need to know what you are up against.

First and foremost, you need to know that the doctrine of Sovereign Immunity (or “Government Immunity”) protects public (but not private) schools from most lawsuits. Sovereign Immunity is a shield that stops cold most injury claims against school districts and public school teachers/coaches, etc . . . Sovereign Immunity means that you can not sue the government without it’s consent. And as you might imagine, the government is not often inclined to give that consent.

In the State of Georgia the rule is that you can not sue a governmental employee (which includes school teachers, coaches, and school administrators) unless the governmental entity that employs them has waived Sovereign Immunity.

There are narrow exceptions to the Georgia rule. For instance, you generally can bring a claim if your child is injured in an automobile accident caused by a County employee. There is a statute, O.C.G.A. § 33-24-51, which allows a waiver of sovereign immunity when a county purchases liability insurance for the negligent use or operation of a government owned motor vehicle. So if your child has been hurt in that manner, you are protected.

But outside the motor vehicle accident injury context, the law is quite unfavorable to injured children and their families. Let me give you some examples drawn from legal cases that have been decided in Georgia Courts.

Example # 1

In a case decided in 2003, a ten year old girl was killed in an accident at her elementary school. Her first grade teacher was directing her class in the making of posters. The teacher sent the girl to get some paper from a large roll in the school storage garage.

The ten year old went to the garage and tried to get the paper off of a large, heavy, eight-foot high roll of paper which was standing upright in the storage garage. In the process, the roll fell onto her and killed her.

The Court determined that the school teacher had official immunity and upheld dismissal of the wrongful death claim.

Example # 2

In a case decided in 2010, an eight grade boy suffered an eye injury during a science experiment conducted under the supervision of his teacher. The school had a written eye protection policy that specifically told teachers to require students to wear eye protection at all times when participating in or observing any such experiments. The teacher did not enforce the policy.

The experiment in question consisted of “launching” a two-liter plastic soda bottle by means of water and air pressure. The soda bottle, containing water, lifted off the launch pad when air was pumped into the bottle and the U-shaped pin holding the bottle in place was removed. The eighth grade boy was struck in the eye by the metal pin when another student removed the pin by pulling on the string attached to the pin in order to launch the bottle.

Despite the fact that the teacher failed to follow the written eye protection policy, the Court determined that she was entitled to official immunity and shielded the teacher from legal liability.

Example # 3

In a case decided in 2007, a 14 year old freshman girl was repeatedly sexually molested by an employee of a high school in Cobb County, Georgia. The employee had previously sexually molested a different girl while employed by the same high school. School officials had investigated the previous molestation but did not report the acts to child welfare authorities.

Instead school officials had delivered a memo to the employee which stated that his employment would continue on a probationary basis and laying out certain future conditions for his continued employment.

Obviously the memo failed to prevent the employee from acting out again and for about 9 months the employee actively molested the 14 year old girl.

The girl’s parents brought suit against the school officials who had covered up the molestation and permitted the molestor to continue to have access to children.

Yet the Court determined that the school officials had official immunity and could not be sued.

I could give you many more examples of cases where school teachers and officials were negligent and caused harm to children but faced absolutely no legal accountability.

In one recent nationwide study of school liability for injury to school children, the author concluded that in almost two thirds of the cases studied, the school district won conclusively. The injured student won conclusively in less than one tenth of the cases. Government and official immunity was the most prominent factor (46 percent) in district-favorable outcomes.

Here is a graph showing the distribution of outcomes (from the nationwide study) –

School Liability

Why? Why have so many Courts decided against the rights of school children, and in favor of protecting state officials?

To adequately answer that question, I have to get a little technical. So please bear with a little legalese for a moment. I’ll try and translate a bit further on in the post.

If you read the Georgia cases on school injury liability you’ll find the rationale behind the decisions are about as clear as mud.  You’ll find that under Georgia law, a suit against a public officer acting in his or her official capacity will be barred by official immunity unless the public officer (1) negligently performed a ministerial duty, or (2) acted with actual malice or an actual intent to cause injury while performing a discretionary duty. In other words, public officials are immune from damages that result from their performance of discretionary functions, unless those functions were undertaken with malice or intent to cause injury.

So essentially Georgia Courts have said that public officials’ acts (or failure to act) fall into one of two categories, something called “ministerial” and another category called “discretionary.”

What’s the difference between the two? To be honest, I don’t always know. The cases don’t always agree with one another on how to tell the two apart and the difference between the two is razor thin often times.

The cases define a “ministerial” act as one that is commonly simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.

Where there is an established policy requiring an official to take specified action in a specified situation, the policy creates a “ministerial” duty on the part of the official to perform the specified task. Happoldt v. Kutscher, 256 Ga.App. 96 (1), 567 S.E.2d 380 (2002). See also Standard v. Hobbs, 263 Ga.App. 873(1), 589 S.E.2d 634 (2003) (“when ‘a governmental department creates its own policy requiring certain actions under certain situations, then the actors for that department have a ministerial duty to follow the policy.’ ”). In order for the written policy to impose a ministerial duty, the policy must mandate simple, absolute, and definite action and require the execution of a specific task without any exercise of discretion. McDowell v. Smith, 285 Ga. at 593-594, 678 S.E.2d 922.

In the following cases, written policies were ruled to require ministerial acts because the policy clearly set out the factual situation that required the ministerial act and gave the public official no discretion. (when a phone call or facsimile transmission requests the early release of a child from school, the written policy requires the school employee to follow certain procedures to authorize the child’s release) Meagher v. Quick, 264 Ga.App. 639, 643, 594 S.E.2d 182; (when a police officer responds to a call reporting suspected family violence, the written policy (OCGA § 17-4-20.1(c)) requires the officer to complete a written family violence report) Nelson v. Spalding County, 249 Ga. at 336, 290 S.E.2d 915; (when a traffic sign is in need of placement or replacement, the written policy requires Nelson to do so upon being notified of the need) Wanless v. Tatum, 244 Ga.App. 882, 884, 536 S.E.2d 308 (2000); (when a citizen lodges a complaint, the written policy requires the employee receiving the complaint to make a written record of it and for the complaint to be investigated) Lincoln County v. Edmond, 231 Ga.App. 871(2), 501 S.E.2d 38 (1998).

As you can see, only one of these cases has to do with a school.

A “discretionary” act, on the other hand, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

For examples of cases in which Georgia Courts have determined that the school official’s task of supervising students was a discretionary action, see Payne v. Twiggs County School Dist., 232 Ga.App. 175, 177(2), 501 S.E.2d 550 (1998) (alleged failure to enforce policy prohibiting students from carrying weapons on school property); Perkins v. Morgan County School Dist., 222 Ga.App. 831, 835(2), 476 S.E.2d 592 (1996) (alleged failure to enforce policy governing early dismissal of students); and Wright v. Ashe, 220 Ga.App. 91, 93-94, 469 S.E.2d 268 (1996) (alleged failure to enforce policies prohibiting students from leaving school and governing students’ use of cars on campus and class attendance).

If an act is deemed “ministerial” a school official can be held liable for failing to perform that act or negligently performing it.

If an act is deemed to be “discretionary” a school official is immune unless the acts in question were undertaken with actual malice, which requires a deliberate intention to do wrong.

The general duty of teachers to monitor, supervise, and control students has been held by Georgia Courts to be a discretionary action which is protected by the doctrine of official immunity.

So, in theory any time an injured child can show (through counsel) that they were hurt by the negligence of a school official in the course of a “ministerial” act, that child (and their family) can bring a claim and get heard on the merits.

But, in reality, the Georgia Court of Appeals has observed that it’s a rare thing for the Courts to treat an act as “ministerial”. Instead there has been case after case after case where the Courts have categorized negligent acts as “discretionary”. And as soon as the act is considered “discretionary”, the case is all but over for the injured child.

In fact, I think the observation by the Court of Appeals is so remarkable and noteworthy, that I’m going to quote it here (as reported by the Georgia Supreme Court):

“Moreover, the Court of Appeals conducted a thorough review of recent Georgia decisions and found that ‘a de facto absolute immunity for school employees [cits.] has developed gradually across the last decade. Not one recent case exists in which the Georgia courts have found a ministerial duty on the part of a school employee.” Smith v. McDowell, supra at 734, 666 S.E.2d 94.” McDowell v. Smith 285 Ga 592, 678 S.E. 2d 922, 925 (Ga Supreme Court, 2009). (emphasis added)

So, even the Georgia Supreme Court recognizes that odds are slim an injured child is going to be allowed to bring a claim against a school official. What is supposed to be qualified immunity is in fact nearing absolute immunity.

I have a big bone of contention with this state of affairs. Millions of parents entrust their children to government schools. School attendance is compulsory. Children spend the better part of their weekdays in the custody of the government school system. Yet they have few rights to recourse if those watching over them are negligent.

How is that we as a community tolerate this kind of treatment of children’s legal rights? Why do public officials get a “free pass” when it comes to most of their negligent acts? Why are they not accountable when they harm a child? Why should private school teachers be held accountable for negligence that public school teachers get away with? Why should a child attending public school have fewer rights than a child attending private school?

As you can tell, I think we need legal reforms in this area of the law. I see no fairness in shielding public officials and employees from liability when they hurt children. I think they should be held to the same standard as everybody else.

I have spent the better part of this post telling you that it is tough to bring a claim against a public school for a child injury. Is there any hope?

Well, it turns out there is hope, but it is absolutely essential that as early in the claim process as possible you evaluate if your child’s claim falls into one of the exceptions to official immunity.

The determination of whether an action is “discretionary” or “ministerial” is where these cases rise or fall. And the Courts have repeatedly said that the relevant issue is the character of the specific actions complained of, and the determination is to be made on a case-by-case basis. For that reason, you (and your attorney) need to begin as soon as possible to collect evidence in order to (hopefully) demonstrate that the actions (or non-actions) that caused harm to your child were “ministerial” not “discretionary”.

Keep in mind also that if there is a way to prove that the school official acted with malice (specific intent to harm your child – spanking them would be a good example), it doesn’t matter whether the act was “ministerial” or “discretionary” – you have a case.

Keep in mind also that if your child has a disability, this may change the legal analysis. A student with a known disability, for instance, will require closer supervision than one without. Moreover, courts have held that a student’s individualized education plan and unique needs are relevant in determining a reasonable level of supervision.

One more thing – claims against public schools are subject to special “ante-litem” notice requirements. The Courts are very strict in enforcing those requirements. The proper notices must be sent to the proper entities (often more than one) by the proper means. Consult with an attorney about your specific situation, but generally you have only 12 months from the date of injury to properly serve an “ante-litem” notice on county schools and 6 months if your school is a city school. Again, please call a child injury attorney early in the process before your rights and the rights of your child are compromised.

Sources: Understanding Liability In School Cases

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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. 

Spinal Cord Injury In Children: Unique Biomechanics Require Specialized Legal Knowledge

Acute spinal cord injury (SCI) is a common cause of permanent disability and death in children and adults. 44% of SCIs are caused by car accidents. Nearly 10 percent of new SCIs in the United States occur in children ages 1 to 15. In children under 8 years of age, spinal cord injuries are most often located in the cervical spine (the neck).

Children are not just miniature adults. Their anatomy and biomechanics are unique. This is nowhere more true than in the cervical spine.

Some of the differences between adult and child anatomy can be seen in the following illustration:

Adult-and-child-skeletons

Children have a disproportionately larger head, underdeveloped neck muscles, and a much more flexible spinal column. Yet the increased flexibility of a child’s spinal column (when compared to an adult) does not proportionately apply to their spinal cord. A child’s spinal column has up to 2 inches of “play”, while the spinal cord has more like a mere quarter inch.

This unique anatomical feature in children means that in a motor vehicle accident the spinal column may flex in one or more directions that exceeds the flexibility of the child’s spinal cord. This can cause grave injury.

Because of these anatomical differences, a child’s neck is likely to be more injured than an adult’s when the same forces are applied. Some of the most common injuries to the spine in children are: facet dislocations, posterior ligament injuries, and wedge compression fractures.

So how does the unique spinal anatomy of children affect your injury claim? It’s all about biomechanics. Biomechanics, in the legal arena, refers to the proof of the mechanism of injury (what factors, what forces, what objects caused the injury and how?) It is imperative that your attorney have an understanding of both the unique anatomy and biomechanics that affect your child’s injury claim.

Without this specialized understanding, your child’s claim will suffer. This is such important knowledge because many insurance companies deny or seek to minimize the impact of an injury on a young child. They argue that the children are more resilient than adults and can be expected to “bounce back” more quickly. They deny the unique vulnerability of the child’s body to injury. Your attorney must have the specialized knowledge to disabuse the insurer of those misconceptions. 

Children are not just miniature adults. Their spines differ considerably from adults. Children are susceptible to a different spectrum of injuries, some of which can be devastating because they occur most often in the upper cervical spine.

Please call me or another qualified child injury attorney if you need help with your child’s injury claim.

Sources:

National Spinal Cord Injury Association / Pediatric Spine – Not Just Smaller – Different / Injury Mechanisms in the Pediatric Cervical Spine During Out-of-Position Airbag Deployments

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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.