In recent weeks, two cases have come to light in which students with special needs choked while at school because, according to lawsuits and news reports, their special dietary needs weren’t explicitly followed.
This is not only tragic, it’s unacceptable. Where schools take on the duty of caring for children with special needs, there must be firm practices and protocol in place to ensure the child’s mental, emotional, physical and educational needs are met while under the school’s supervision.
While choking is a possibility for any child, those with special needs are at especially high risk, as they may already have trouble eating, swallowing or breathing.
Our Fort Myers child injury lawyers know that often, parents and medical teams develop very specific, specialized eating plans for each child in order to minimize the risk. When those plans aren’t followed and the child suffers harm as a result, that is the basis for a negligence action.
One recent case to arise was that of Lyons v. Richmond Community School, a case heard recently by the Indiana Supreme Court. Here, the state high court court reversed a trial court summary judgment in defendant school’s favor. This case stemmed form a child who choked to death during lunch time in a high school cafeteria.
According to court records, the 17-year-old female decedent was severely disabled. She had trouble eating and sometimes failed to chew her food or took two many bites before swallowing. Safety plans were developed to help reduce the risk. Those included having staff monitoring every meal and snack and never leaving her alone with a meal or snack. The dining plan specifically indicated the girl could not chew her food well, sometimes not at all. The note indicated she chokes with too much food in her mouth, yet tends to eat fast and needs verbal prompting to slow down. Additionally, her food needed to be cut for her.
Despite this, the staffer assigned to supervise the girl during lunch that particular day was not made aware of the plan. She did not cut the girl’s sandwiches into pieces. The girl began to choke. The assistant sought help. Efforts to save the girl were ultimately unsuccessful. She died the next day.
There were numerous missteps in the school’s handling of the case beyond that, presumably in a protect to shield itself from litigation. For example, surveillance video of the incident was downloaded, but later lost. Staffers told medical personnel she had only been without oxygen “a very short time” when in fact it was five to 10 minutes.
Finding sufficient questions of fact, the appellate court remanded the case for trial.
In another recent incident chronicled in The New York Times, a 21-year-old student with autism choked to death on a muffin at a Brooklyn school during lunchtime. The student was non-verbal and wore diapers, according to her 70-year-old adoptive mother, who had taken the girl in when she was just 3. The girl was supposed to have full-time supervision on the bus and at school. Staffers were required to cut up her food because she would otherwise put too much in her mouth.
There is no indication staffers gave her the Heimlich maneuver before contacting 911. She was declared dead at the hospital.
According to the Times, that was the second time in a single year that school system had to investigate the death of an autistic student. The earlier incident involved a 14-year-old who walked out the door of his school unnoticed. It was months before police found his remains.
Our personal injury attorneys are committed to fighting to defend your child’s rights and dignity, and to hold accountable schools that fail to meet the appropriate standards of care.
If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Lyons v. Richmond Community School, Oct. 28, 2014, Indiana Supreme Court
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