AboutDoctor Settlement Expertise 27 years of front line plaintiff`s trial lawyer experience in PERSONAL INJURY INSURANCE CLAIMS. Along with other attorneys and insurance adjusters, we have created a website to help injured people settle their own personal injury claims. With the help from feedback from hundreds of satisfied members, www.settlementcentral.com has become THE AUTHORITY for Internet personal injury insurance claim settlements. I am humbled and honored if people can benefit from my experience and current volunteer work in helping injured people. I hope I can explain things in a manner that is useful for the questioner. If not, do not hesitate to e-mail me and I will take a second shot at it! Best Wishes for your physical and financial recovery.
Experience
Life Experience: 27 years of front line plaintiff's trial lawyer experience
Organizations: American Trial Lawyers Association (AAJ)
Washington State Trial Lawyers Association
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Question My son's thumb was recently broken at school while playing basketball during gym class. He is 11 years old and in the 6th grade. When he went to complain to the gym teacher all the teacher did was ice it for a while. The school nurse was never called to evaluate the situation. The worst part was that the parents were not even informed of the incident. My son was sent home without any notice whatsoever. He told us of the incident while at home. As my son continued to experience pain, he was taken to the emergency room by his mother. X-rays showed that he had in fact broken his thumb. His mother was very upset that the school did not even take the time to notify us nor file some sort of incident report. What recourse do we have at this point? This happened Friday afternoon. It has been three days now that he is in a metal brace to keep his thumb stabilized. The incident took place in Yonkers, NY.
Answer Hi Santos,
While I sympathize with the parental pain associated with seeing one's child injured, I am not aware of any recourse that one would have versus the school. I have had numerous breaks from athletics, and they all healed well, as I am sure your son's will. But just the same, because you are still upset about this, I am going to put in some extra time to explain why the best thing to do is to make a simple letter to the school board, and to go forward. So, rather than a two sentence reply, I am going to go thru the whole analysis of liability and damages and at the end I will suggest a letter to the school district superintendent to safeguard other students who may be injured in the future.
Let's look at the school's responsibility and see if (1) there is any liability, and (2) if that negligence resulted in any damages.
Is the school liable for the initial break? No. Thousands of kids suffer breaks each week in sports. It is just something that happens with the activity.
Is the school liable for not sending him for an x-ray? No. Again, most injuries are a sprain, and this no doubt appeared to be just another sprain. Hence, one would have expected your son to be in pain for the rest of the school day. Now if he came the next day with a swollen or very painful hand, then they had a duty to x-ray him.
There is another problem with x-raying him at school, and that is the school has no authority to conduct such a test without the parental permission unless it is a true emergency, which this clearly was not.
Is the school liable for not sending home a note with your son? Here it is a closer decision. Usually one would expect that an older student is going to tell his parents as soon as he gets home and they can inspect the damage and pain and make their own decision. BUT, at a younger age (11) one would expect the school to send home a note explaining what happened and what care had been given.
Here is how to test the negligence claim: make it exaggerated and see how you vote. What if the failure of a school to notify the parents caused them to take no action when they otherwise would have, and that failure of the school resulted in many hours of necessary care such that the delay cost the student some permanent disability? In that case, we would all vote against the school for failure to notify the parents. AND we would likely vote for some damages for the student.
So the question involves a bit of consideration of both age and the damages, doesn't it? In this case, I think the school did not fulfill its duty by sending your son home without a note. Hence it is negligent.
But the next inquiry is to see if your son suffered any damages. I cannot think of any damages your son suffered, can you? Some delay in treatment is not going to impact his healing at all with such a break, so what is there to sue over? If one could prove that some few minutes or hour interfered with his healing, then that would be damages.
The main damages seem to be that your son had an hour extra of pain and that this episode upset the parents. Those are not damages sufficient to seek any recourse.
INSTEAD, I would make a good history of the facts and send a letter to three addresses:
(1) to the teacher; (2) to the school principal; and (3) to the school district superintendent. You can recite the facts above, BUT DO NOT seek any recourse inasmuch as even old plaintiff's attorney Dr. Settlement would discount any letter that claimed damages and hence consider it to be a marginal complaint.
What you are writing for is NOT your son and his problems (since there are none); but instead you are writing on behalf of the students who will be injured in the future and who really need a note from the school describing to the parent: (1) how the accident occurred; (2) the mechanism of injury—i.e. what body parts were stuck; and (3) what care was given at school. Tell the superintendent that you would like assurance that he has instructed principals to take such actions for future injuries.
If you do not get a satisfactory response, then go to the school board. Again, you are NOT complaining about your son: you are glad that he is going to heal OK. BUT you are just afraid that if the school district does not adhere to a code of conduct such as you are suggesting, then there may come a time when a delay in treatment could cost a student some permanent damages.
Does that make sense? I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
