Articles Posted in Child Safety

Every parent dreads the prospect of taking a child to the emergency room following an accident. This dread can turn to horror if negligence on the part of medical personnel compounds the child’s injuries. Unfortunately, Georgia law makes it difficult to hold emergency medical providers accountable for malpractice. Under a 2005 “tort reform” law, a victim must prove by “clear and convincing evidence” that a provider of “emergency medical care” committed “gross negligence.” This is a significantly higher legal standard than traditional malpractice claims, where Georgia only requires proof of ordinary negligence by a “preponderance of the evidence.”

Nguyen v. Southwestern Emergency Physicians, P.C.

The Georgia Supreme Court recently addressed the application of Georgia’s emergency room law to a tragic case involving an 8-year-old girl. When the child was just six months old, she fell off a bed and hit her head on a blunt object. The child’s mother—who later described the head injury as the size of an apple, practically “another head” on her baby—took her to a hospital emergency room in Albany, Georgia.

In any personal injury lawsuit against a business—say, a slip-and-fall or similar premises liability case—the defendant may have a franchise relationship with another company. Does that mean the franchisor can be held liable for the local business’ negligence? A recent Georgia Court of Appeals decision provides a useful illustration of the law in this area.

Kids R Us International, Inc. v. Cope

The plaintiff in this case is the mother of a three-year-old child. The child was enrolled at a daycare center. One day, the child suffered injuries to his face when he collided with a metal gate located in the daycare’s play area. The mother argued the daycare center was negligent in failing to supervise her child and keeping the overall premises safe.

Bad Boy Enterprises manufactures and sells golf carts modified to function as off-road vehicles. These “Bad Boy Buggies” are primarily marketed to outdoor enthusiasts and hunters. They are also the subject of an ongoing federal lawsuit in Georgia over their safety.

The plaintiffs in this case are the parents of a minor. The child was 13 years old when her parents allowed her to operate a Bad Boy Buggy owned by a family friend. The child had driven the vehicle on several prior occasions, always with her parents permission. On the day in question, she was driving the buggy around a looping gravel driveway with a friend sitting in the passenger seat.

According to court records, the buggy would suddenly accelerate even when constant pressure was maintained on the accelerator pedal. On this particular day, the child applied the brake as the vehicle entered a turn. The vehicle continued to accelerate, however, and eventually tipped over, severing the child’s left foot and part of her leg.

Cerebral palsy is a chronic, incurable condition that impairs a person’s motor functions. Most cases of cerebral palsy arise from a brain injury sustained before, during or shortly after a child’s birth. While cerebral palsy is usually not life-threatening, it is a permanent condition that affects the child for his or her entire lifetime.

The Georgia Court of Appeals recently reinstated a lawsuit, Nixon v. Pierce County School District, brought by a mother whose now-five-year-old child developed cerebral palsy. The woman was about 38 weeks pregnant when a school bus rear-ended her sedan. She was immediately taken to a hospital. The next morning, doctors decided to induce labor. There were no complications during birth, and the woman had, up to the point of the car accident, experienced nothing unusual with respect to her pregnancy.

Six months later, however, the woman started to notice developmental problems with her daughter. The child had difficulty controlling the right side of her body. At approximately one year of age, a pediatric neurologist diagnosed the girl with cerebral palsy.

peanut-butter-toast1.jpgAs a father of three children who enjoy Kellogg’s frosted mini-wheats, I was quite disturbed by the voluntary product recall for the frosted and unfrosted mini-wheats original and bite size this week. Apparently, flexible metal fragments from a faulty manufacturing machine were found to be in the cereal. The products subject to recall fall under the ‘better used by dates’ of April 1, 2013 – September 21, 2013. Kellogg is working with retail grocery stores to remove the tainted boxes and fortunately, no injuries have been reported to date. For more information about the recalled cereals, please go to Kellogg’s website consumer alerts.

However, that is not the case with a recent peanut butter recall linked to Trader Joe’s Creamy Salted Valencia Peanut Butter that contain the salmonella virus. It has been reported that 29 individuals in 18 states contracted the virus with ¾ of all the cases were children under the age of 18. Luckily, no deaths have been reported. Trader Joes Consumer Updates lists the specific products subject to recall or call (626) 599-3817 for further information.

What is a parent to do? Cereal and peanut butter are two staples in my household and part of a balanced diet. As a Georgia Trial Lawyer and informed parent, I can only hope that these recalls will reduce illness and eliminate catastrophic injuries as we try and protect the health and safety of our children.

stroller.jpgAs a Georgia products liability lawyer and father of three I’m always interested in safety recalls with child safety implications. Hundreds of thousands of the popular B.O.B. jogging strollers are being recalled because of a choking concern. The U.S. Consumer Product Safety Commission made the announcement this week of the voluntary recall by the manufacturer, B.O.B. Trailers Inc. The recall involves all B.O.B. Strollers manufactured between November 1998 and November 2010. Strollers manufactured after October 2006 have a white label attached to the back of the strollers with the manufacturing date printed on, and strollers with no manufacturing date listed were produced before October 2006 and are also part of the recall.This is not the first recall of the year for B.O.B. as 357,000 of its strollers were recalled in February due to a drawstring on the stroller that posed a strangulation hazard.

The Consumer Product Safety Commission says the recall is due to the fact that the logo embroidered on the back of the stroller’s canopy backing patch can detach, which poses a significant choking hazard to baby’s and young children. The C.P.S.C. has received six reports of children mouthing the logo, with two of those incidents resulting in choking. In each of the reported incidents, the children were seated in a car seat attached to the stroller.

Over 400,000 of these strollers were sold in the United States between November 1998 and October 2011. REI, Babies R’Us and are among the retailers who sold the product. The strollers were sold in single seat and double-seat models and are embroidered with the BOB, Ironman, or Stroller Strides brand name on the canopy.

dropsidecrib.jpgThe traditional drop side crib that millions of parents have trusted and relied on to cradle their babies for generations has now been outlawed by the government. After many recalls and the deaths of over 30 infants and young toddlers over the last 10 years, drop side cribs will no longer be a choice for parents when shopping for a crib. The Consumer Product Safety Commission came to a unanimous vote to ban all operations involving the drop side crib in which on side moves up and down, so that a mother or father can easily remove their child. The ban of all operations, involving this crib include: a ban of manufacturing, selling, or reselling in any way. The government has approved a new standard that ensures the safety of all children that need to be in a crib. Cribs will only have fixed sides so children can’t climb out or fall out over the side. The government has also banned all child care institutions, as well as hotels, from using drop side cribs in their establishments.

Drop sides cribs have been criticized for decades for many reasons. These drop side cribs have been known to have malfunctioning hardware, cheaper plastics, and most commonly, assembly problems. Assembly problems have caused numerous instances in which the drop side rail detaches from the crib itself. When this detaching happens, it commonly creates a V-gap between the mattress and side rail. This can cause an infant or toddler to get stuck in this V gap and suffocate causing a needless death. A mother in New York lost her 10 month old son in 1997 when his side rail detached and his neck became trapped between the mattress and side rail. A mother wants to feel a sense of safety when she puts her infant or toddler down to sleep and not have to worry about them possibly suffocating or dying through the night. It is an awful feeling to wake up to your son or daughter trapped and not be able to help them.

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trainderailment.jpgIn an interesting decision out of the 6th Circuit, a three-judge panel of the U.S. Circuit Court of Appeals upheld a judgment for CSX Transportation Inc. last week in a case brought by a group of citizens seeking medical monitoring for the small Ohio town of Painesville, after a train derailment in 2007. When the train derailed it was carrying substances that included glycerin, alcohol, ethanol, and butane. All of theses substances are known to be dangerous when inhaled in large quantities, and butane is an extremely volatile substance, and inhaling it can cause, narcosis, asphyxia, and cardiac arrhythmia. After the accident more than 500 families were evacuated in the half-mile area surrounding the site. In addition, some of the 3000 gallons of Ethanol that was spilled leaked into a nearby creek. CSX admitted in court filings that improper track maintenance, including using the wrong size rail as part of a repair, caused the crash.

The residents who brought the suit against CSX were attempting to persuade the court to force CSX to pay for the expense of medically monitoring the area for an extended period of time to assess any risk the spill might be causing to the residents near the site of the derailment. The appeals court said the plaintiffs failed to produce evidence creating a genuine issue. Instead, the court says, that they relied on a conclusory statement by a doctor that, “a reasonable physician would prescribe for the Plaintiff and the putative class a monitoring regime.”

Daniel Bechenel Jr., a lead lawyer in the case, called the derailment an example of railroads putting people in danger and imminent risk by cutting safety precautions and repair standards. Though this may be true, the Appeals Court felt that the overall risk was too small to force CSX to pay for the medical monitoring.

A New Mexico couple has filed suit against Georgia companies, Simply Thick, LLC, the owners of SimplyThick, a product used to thicken breast milk and infant formula, and Thermo Pac, LLC, who manufactures and supplies the product in Georgia State Court. The complaint is believed to be the first filed following a warning issued in May of this year by the U.S. Food and Drug Administration that SimplyThick may cause the life-threatening necrotizing entercolotis (NEC). After the May warning, the FDA inspected Simply Thick’s Stone Mountain, Georgia manufacturing plant and found numerous deficiencies. At that point a complete recall was issued for every product manufactured at the Stone Mountain plant. The suit alleges that Simply Thick failed to properly thermally process and test the safety of its product, and as a result the SimplyThick ingested by the couple’s daughter was responsible her developing NEC.

The infant was born prematurely, and after being discharged from the hospital the couple was given samples of SimplyThick with instructions to use it when feeding. The couple says after using the product the baby’s health deteriorated so rapidly from the NEC that she had to be airlifted from a local hospital to a specialty Children’s Hospital in Albuquerque. NEC is a rare disease in infants post-hospital discharge that is normally life-threatening causing inflammation and death of intestinal tissue. NEC has a death rate of 25% and can cause severe impairment in children who survive.

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medical-malpractice.jpgA new study published by the Journal of the American Academy of Physicians Assistants finds that a majority of emergency room doctors do not believe the Physician Assistant’s (PA’s) are not more likely to commit malpractice. The study questioned 1000 members of the American College of Emergency Physicians in 2004 and then again five years later. 72% of doctors disagreed or strongly disagreed that PA’s were more likely to commit malpractice and the number dropped to 68% in 2009. The study also stated that doctors believe increased utilization of PA’s in emergency rooms may improve patient communication, decrease wait times, increase patient satisfaction, and therefore decrease malpractice risk.

Doctors in the study said they felt the most important factors in decreasing the risk of malpractice with PA’s was increased clinical experience, completion of post-graduate residency programs, and appropriate supervision by physician.

As a Georgia Medical Malpractice Attorney I can only hope this study is accurate as both PA’s and nurse practitioners are being used more and more frequently in most areas of health care, and I have seen the horrific consequences that can result from medical malpractice. Over 225,000 people die each year due to medical malpractice, with nearly half of those being in the emergency room, according to the Journal of the American Medical Association. In fact, medical malpractice is the third leading cause of death in the United States after heart disease and cancer.

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