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Old 02-14-2008, 10:00 PM   #1 (permalink)
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Join Date: Feb 2008
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Exclamation Daycare Broke My Sons Collarbone!

I need every amount of legal advice you guys can offer. Yesterday morning I dropped my two boys off at daycare, happy and healthy, at 7 am. Later that day, at 6pm, I came in to pick them up. I went into my youngest son's room (he's a year and a half), and he was crying. They informed me that he had been crying all day every time that he was picked up. They also told me that they had notified the director of the daycare, who had decided NOT to call me or a doctor to have him examined. I asked "Why did you not call me anyways? You know he's hurt, you should have notified me immediately. What happened?". They said he had been dropped off in this condition. Knowing this was complete bullsh*t, I picked him up (which hurt him severely) and brought my boys out to the car. Buckling him into his car seat put him in agaony, and a drive straight to the ER confirmed that his collarbone had snapped in half. The doc said the ONLY way this particular break could have happened is if he fell from a high surface, onto a hard floor, onto his shoulder. They gave me a copy of the xrays.

The next day (today), I took the initial steps and filed a report with the department of health, and with the police department. The police went over there to question them, and they still insisted that he arrived that way, that nothing had happened that would have caused any injury. Obvious blatant lies. They said they would review the surveillence tapes, but what guarantee do I have that I'll ever see them, you know? They are denying up and down that he was injured there, but either way they broke the rules. If he really had arrived there in that condition, they would have sent him home immediately. And if they knew he was hurt "all day", they should have notified me or someone else immediately to have him taken to a doctor. They didn't do anything. They didn't call anybody. They just forced him to play and interact with the other kids, picked him up over and over, even though he was obviously in great amounts of pain. THEY DID NOTHING. His collarbone was broken for a total of 12 hours before we got the xrays back at the ER.

What is your opinion? How should I handle this? Can I win? Is all I have to do is to prove beyond a reasonable doubt that the injury and neglegence happened in their care?

There is one more piece to the puzzle. A while back I had an abusive husband. There was an incident where he attacked me, he was arrested, and I was later charged with assault. The charges against me were dropped, but it's still a scar on my record. Will this affect my chances of winning?
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Old 02-15-2008, 02:12 PM   #2 (permalink)
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Quote:
Originally Posted by Squeaky View Post
I need every amount of legal advice you guys can offer. Yesterday morning I dropped my two boys off at daycare, happy and healthy, at 7 am. Later that day, at 6pm, I came in to pick them up. I went into my youngest son's room (he's a year and a half), and he was crying. They informed me that he had been crying all day every time that he was picked up. They also told me that they had notified the director of the daycare, who had decided NOT to call me or a doctor to have him examined. I asked "Why did you not call me anyways? You know he's hurt, you should have notified me immediately. What happened?". They said he had been dropped off in this condition. Knowing this was complete bullsh*t, I picked him up (which hurt him severely) and brought my boys out to the car. Buckling him into his car seat put him in agaony, and a drive straight to the ER confirmed that his collarbone had snapped in half. The doc said the ONLY way this particular break could have happened is if he fell from a high surface, onto a hard floor, onto his shoulder. They gave me a copy of the xrays.

The next day (today), I took the initial steps and filed a report with the department of health, and with the police department. The police went over there to question them, and they still insisted that he arrived that way, that nothing had happened that would have caused any injury. Obvious blatant lies. They said they would review the surveillence tapes, but what guarantee do I have that I'll ever see them, you know? They are denying up and down that he was injured there, but either way they broke the rules. If he really had arrived there in that condition, they would have sent him home immediately. And if they knew he was hurt "all day", they should have notified me or someone else immediately to have him taken to a doctor. They didn't do anything. They didn't call anybody. They just forced him to play and interact with the other kids, picked him up over and over, even though he was obviously in great amounts of pain. THEY DID NOTHING. His collarbone was broken for a total of 12 hours before we got the xrays back at the ER.

What is your opinion? How should I handle this? Can I win? Is all I have to do is to prove beyond a reasonable doubt that the injury and neglegence happened in their care?

There is one more piece to the puzzle. A while back I had an abusive husband. There was an incident where he attacked me, he was arrested, and I was later charged with assault. The charges against me were dropped, but it's still a scar on my record. Will this affect my chances of winning?
First of all, "reasonable doubt" is the legal standard for a criminal trial. If you are trying to have someone there criminally charged, the state would have to prove their case beyond a reasonable doubt. If you are trying to sue civilly, the standard is very different---preponderance of the evidence.

Now, lets back up. As a parent of seven children, I see no way a doctor could say with 100% certainty that an injury as you are describing happened a certain way. Under oath, the best he could testify to is that the injury is consistent with a fall from a high place, etc. My nephew broke his leg WALKING---took a step, didn't trip, didn't fall---nothing. Just took a step and went to the ground with a broken leg. A freak thing--no bone disorder--just a strange happening.

I have no idea how you can prove that this injury happened at the daycare---when it is your word against theirs AND since you admit YOU have an assault on YOUR record---is that REALLY a sabre you want to rattle??

Also, I know, as a former teacher, in a school/daycare setting it is possible for injuries to occur and the teacher or attendant never see them. Furthermore, your own testimony ESTABLISHED A SEEMINGLY APPROPRIATE duty of care in their favor because you say when he cried, they picked him up ( i.e. acknowledged his unhappiness, and attempted to comfort him). The question is did they act reasonably? Well, if no injury was witnessed, and he was fussy all day, and they responded with comforting measures, (i.e. held him, rocked him, etc) did they act negligently? The answer, given that scenerio is probably no. Now, obviously, if an injury was on tape, or admitted to, and they didn't take him to the doctor, that would be different. But, why would the director of a daycare rush a child to the hospital that was simply crying? Some children can cry all day for no apparent reason--a toothache---oh, lets rush to the ER!!! You act as though you expected them to realize the act of picking him up distressed him MORE----yet it was never apparent to YOU when you picked him up yourself, took him to the car, put him in his seatbelt, etc--yet you expect the daycare to make the correlation?? These are all things their attorney will point out with great relish.

Bottom line--you have to prove something careless and negligent happened at daycare. Even if he DID get hurt at daycare--this doesn't necessary MEAN negligence. But proving he got hurt at daycare will be difficult --your word against theirs. And, if it goes to court, be prepared for the minutia of YOUR life to be uncovered, just as the minutia of THEIR business life (i.e. practices) will be.

You said you told the daycare,"You knew he was hurt, why didn't you call me anyways?"(sic) How did they know he was hurt? Perhaps as a mother you can recognize a certain cry, or behavior, but a daycare?

Also, another word of caution--you need to be very careful in the allegations YOU make against the daycare as well. "The daycare broke my sons collar bone" is an allegation of a crime------you have no proof--and your kid breaking his collar bone at daycare as a result of a fall is very different from THEY BROKE HIS COLLAR BONE. Do you see the difference?

I know the outrage you feel when someone close to you is hurt or injured, but, from what you have said, you have no proof. Police? Why did you go to the police? You really believe someone there is capable of intentionally inflicting damage on our child? Why would you leave him there if that was the case?

Maybe I don't understand the whole daycare thing anyway---my personal opinion is why have kids if you want someone else to raise them---BUT, that is simply that---my opinion and you, of course, are entitled to feel entirely differently, which you clearly do. That's one of the joys of a free country. Do spare me the "we need two incomes" or "I'm a single parent, and I have to work" speeches. I'm a widowed mom of seven. I know about making ends meet.
To each his , or her own.
In any regard, the police cannot establish a civil remedy for you. They can investigate willful CHILD ABUSE---which, obviously, wasn't the case. I'm sure you can sue the daycare, but for what? The bottom line is proving this injury happened while in their care and NOT while in yours. Aside from eyewitness testimony---( do you realize how many children that can actually witness and talk are IN a daycare at any given time??) you haven't a leg to stand on. Even a three or four year old can say, "Baby fall down", or something to that effect. And, I don't think the police are going to question all the toddlers in the daycare to see if that indeed was the case.

Of course, if the daycare has prior issues with abuse, etc. you may have more success suing them, but of course, the question arises---if they have had abuse issues in the past, wouldn't you, as a parent who left their child there, have checked them out BEFORE you did so?

Having a criminal past doesn't preclude success in a civil proceeding, but when it is as you have described it, it would be difficult since you admit to a prior assault record yourself. If you want to "go there", be prepared. It WILL get ugly. The question is reasonableness---and per your own admission, they made attempts to comfort him and had no other reason to assume otherwise.

Here is a thought for you to contemplate---lets just say ( and I'm certainly not suggesting this is the case, but lets just say for example sake) he actually DID come to daycare ( in their minds) with what has turned out to be an injury. Interestingly enough, THEY and their attorney are doing exactly what YOU are doing. REPORTING what THEY see as a POSSIBLE child abuse or child injury case----only they are reporting it against a mother with prior assault charges.

There now. Think about it from the other side of the coin.

See it in a different light? You, clearly, have the most to lose. But, only you know the truth about what happened before daycare, and you are convinced this happened at daycare, not at home. Simply be prepared for them to believe (and attempt to prove) the opposite.
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Last edited by GentleGrace; 02-16-2008 at 04:40 PM.
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