Youth Services Litigation Blog : Georgia Youth-Serving Organization Lawyer & Attorney : Debbie Ausburn Law Firm : Youth Camps, Day Care, Social Services

I ran across this study, from Clinical Pediatrics, analyzing injuries to children from furniture tip-overs. The researchers found a significant increase in injuries in the last 18 years, with televisions being the most-common furniture to tip over.

I have seen a lot of news reports of children being seriously hurt  by falling televisions in schools or day care centers.  In some cases, the staff apparently was not properly supervising the children, and in others, the center might not have properly secured the television. 

Consumer Reports has an article with some excellent suggestions for protecting children around televisions, including:

• anchoring the furniture holding the television

• keeping toys, food, and other temptations off the top of televisions and other tall furniture

• watching for recalls of carts and furniture that you may be using for your television

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The Annals of Emergency Medicine recently published a study in which ibuprofen proved to be better than acetominophen with codeine at managing children's pain after an acute fracture.  The researchers only studied the first three days after the fracture, but it is nevertheless an interesting finding.

Hat tip: Chicago Medical Malpractice Lawyer Blog

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In a tragic incident in New York, a two-year-old girl choked to death on a carrot stick she found in her teacher's bag.   Many adults do not realize how dangerous small, hard foods can be for young children. The American Academy of Pediatrics has a list of dangerous foods, including such common foods as chunks of peanut butter or apples.

The center owner, acting on either good instincts or good advice, issued a well-crafted statement to the media, saying, "We are providing counseling support for our staff who were with the child and offer our total support, thought and prayers for the child's family."

Hat tip:  Minor Troubles

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In December, I blogged about the Wisconsin appellate decision holding that cheerleading is not a "contact sport," as the  negligence statute defined it.  The Wisconsin Supreme Court has disagreed.  In its opinion, the court held that the fellow student who had failed to go to his proper spot could not be held liable for negligence.

This is a solid, common-sense decision.  Clearly, the state legislature intended to  shield individual students from negligence claims by fellow athletes.  High school sports have some unavoidable dangers, including the fact that high school students sometimes lack coordination, skill, and even ordinary judgment.  Most parents believe that the benefits of sports outweigh those risks.  When a student accidentally injures a fellow athlete, the law does not need to be involved.

Hat tip: Sports Law Blog

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A day care employee in Illinois has been charged with murder for throwing a child to the floor, causing a fatal skull fracture.  It is impossible to know from the other details we have now, but this tragedy may have resulted from something as simple as a snap decision by a normally caring staff member.

Young adults often do not understand how easy it is to hurt children, even with seemingly-minor actions that would not affect an adult.  Day care centers need to constantly train their workers about the risks of corporal punishment and rough handling.  Enforcing the rules is important, but helping employees understand the reasons underlying those rules may prevent their forgetting them in a moment of frustration.

This is a terrible tragedy that never should have happened.

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The Florida ADR Law blog has an interesting post about a recent decision by the Florida Supreme Court, which held that liability waivers that parents sign for their children to participate in commercial activities are not enforceable.   The court reasoned that the right to  recover for injuries is personal to children, and that parents do not have the authority to waive that right before a child sustains injuries. The court cited a long of list of other states that follow the same rule.

The court's ruling is sure to be controversial on several fronts.  

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A Wisconsin appellate court has decided that cheerleading is not a contact sport.  The Marquette Law School faculty blog explains that Brittany Noffke fell during cheerleading practice and suffered a head injury.  She sued the fellow cheerleader who, she says, failed to properly spot her during the maneuver.  The defendant, Kevin Bakke, claimed that he cannot be sued for mere negligence, under a Wisconsin statute governing contact sports.  That statute allows suits only for reckless or intentional conduct.  The Wisconsin court held that, because cheerleading does not involve contact between opposing teams, it is not a "contact sport."

The Wisconsin Supreme Court has granted review of the case, so the question is still alive.  It seems to me that the "contact sports" statute recognized that some activities, by their very nature, assume the risk of negligence by competitors and team members.  After all, there is no question, for example, that basketball is a "contact sport," and that a player could be hurt by a member of his own team chasing a missed free throw.  It is hard to understand how that player warrants more protection than a spotter on a cheerleading squad.

You can find more discussion of this decision at  the Wall Street Journal Law Blog and the PrawfsBlawg.

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Under the category of things that adults know that children don't, or maybe difficult life-lessons learned, we have this article about a student who lost his thumb from a prank.  Apparently, the students at this middle school enjoyed slamming shut open lockers, forcing the other student to enter their combinations to reopen the doors.

In this particular case, the student unfortunately had his hand partially inside the locker when his friend kicked the door shut.  The door severed the student's thumb.  The thumb and student were taken to the hospital, where he is recuperating.  There is no word on whether attempts to reattach his thumb were successful.  Or, the inevitable second question, whether his parents will be consulting a lawyer.

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In my last post about responding to abuse allegations, I recommended notifying parents about allegations.  A friend emailed to point out that law enforcement and licensing authorities often want to be the first people to contact parents.  The investigators try to persuade or coerce organizations into not notifying parents, often going so far as to threaten obstruction of justice charges.

It is true that, once law enforcement or licensing authorities are involved, you should cooperate with them.  However, I also believe that you should not let anyone else, even a lawyer, run your program. Lawyers, law enforcement, and licensing authorities tend to share two common characteristics: (1) we know our field very well, but we know very little about how our advice impacts your day-to-day business, and (2) our advice invariably makes our jobs easier than it makes yours.  So, listen to our advice, but do not be afraid to point out when it is going to complicate your life, and to work with us to adapt it to your particular circumstances.

Those principles apply particularly to high-profile or emotionally-charged incidents.  The last thing you want is to have parents learn about accusations from the grapevine instead of from you.  So, if the grapevine is getting ahead of the law enforcement or licensing investigation, let the investigator know.  Work with your lawyer to get a statement out as soon as possible.  I sometimes help my clients draft a letter, then send it to the investigator with the explanation that the organization is fielding questions that it needs to answer, and that if we do not hear to the contrary within the next X days, we will assume that the investigator has no objection to our sending out the enclosed letter.

Above all, remember that you have both an obligation not to interfere with the investigation and an obligation to talk to parents about their child.  In situations like this, where you can get into trouble with someone no matter what you do, I always recommend going with the option that lets you sleep at night.

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I received a call recently from a friend asking for suggestions about an upcoming deposition of a child eyewitness to an accident.  Like all good bloggers, I decided to share my thoughts here.

Guidelines & Protocols

The first thing I always recommend to people preparing for a child's deposition is to read several of the many good publications about forensic interviewing of children.  Not everything in those guidelines will be relevant to your case, and most of them are geared toward sexual abuse investigations, but the guidelines synthesize many years of study and experience about how best to ask children questions about specific events.  Some of the publications I recommend are  the NIHD Interview Protocol (also explained in the Journal of Law and Contemporary Problems), theAPSAC Practice Guidelines on Investigative Interviewing, and the Michigan Forensic Interviewing Protocol.

UPDATE:  A friend pointed me to another good resource, Children in the Courtroom, published by NITA.

The next thing I recommend is . . . 

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One of the most controversial questions I encounter in litigation involving children is predicting the costs of future mental health treatment.  Everyone agrees that children who have suffered a trauma need therapy, but few people agree on what sort of therapy or how much.  The American Journal of Preventive Medicine recently published a study concluding that only cognitive behavior therapy (individual and group) has been proven to be effective.  (Hat tip: Anxiety Insights blog). 

Defense attorneys will like this study for the same reason that plaintiff's attorneys will be skeptical - cognitive behavior therapy  requires only 8-12 sessions.  It may need to be repeated periodically at developmental milestones, such as puberty, but it does not require long-term, ongoing therapy sessions.

Other therapies that I often see recommended, such as intensive psychoanalysis or psychotropic medication, are simply not yet proven.  I have yet to see a Daubert challenge to such recommendations, but more studies like this one certainly would support one.

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A day care worker in Texas was arrested after admitting to biting a child to teach him, she said, not to bite other children.   Naturally, the parents are "seeking legal representation." 

An earlier report of the incident includes a statement from the day care director.   Most lawyers advise their clients not to talk to the media, because statements you make can be used against you if the matter ends up in court.  The catch is that it always hurts the center's reputation when the only words a reporter can quote are "No comment."

I recommend that youth-serving organizations respond to media inquiries with four statements: (1) always, always, always express concern for the child, who is, after all, your primary responsibility; (2) identify any steps you have taken that can be made public (i.e., suspended the worker pending investigation); (3) always make clear that you are cooperating with authorities; and (4) explain that you cannot comment further about an ongoing investigation.

Resist the temptation to explain everything you know to a reporter.  Too much explanation will come back to haunt you.  You do need to establish your concern for the children in your program, but any more details need to wait until you have all of the facts.

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A recent issue of Pediatrics journal reports an interesting study of scald burns in young children.   The study's authors found that a surprising number of young children were injured from getting hot liquids out of a microwave, while others were scalded by an older child carrying or cooking hot liquid.

Not surprisingly, the authors recommend close supervision of young children and further studies.

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The Archives of Psychiatric Nursing journal recently published a study confirming what experienced pre-school teachers already know, that ADHD and ODD children engage in significantly more risk-taking behavior.  The had some surprising findings about the severity of those injuries.

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