An autistic child suffered from asthma and an array of severe allergies. The child’s home school district formulated an individualized education program (IEP), including his attendance at private school and nursing services. The child’s parents selected a private school that specialized in educating special needs children. The school instructed teachers and staff regarding the child’s allergies. There were usually only eight to ten children in the child’s class along with one teacher and three teaching assistants. Under the IEP, the home school district reimbursed the parents for tuition.
Additionally, the child’s parents selected a set of private nurses to monitor the child throughout the school day. The child's mother selected nurses for the position based on her own assessment of the nurses' qualifications and skill, and not in reliance upon any words or conduct by the city’s department of education. The child's mother supervised the nurses’ care of the child. The city’s department of education exercised no day-to-day supervision or control over the nurses' performance. Under the IEP, the home school district reimbursed the parents for the cost of the private nurses. The city's department of education provided the private nurse with an employee identification card.
The child's IEP did not require the private school to station the private nurses inside the child’s classroom. Rather, the nurses sat in the hallway outside the child's classroom. From this vantage point, the nurses were still able to see the child, who was about five feet away.
The child’s mother had instructed the school nurse that the private nurses would be completely responsible for providing the child nursing services. The private school had never undertaken to provide him with nursing services. The mother provided the private nurse a medical bag including four epinephrine auto-injectors. The private nurse was never made aware that the child was allergic to blueberries.
While attending the private school, the child suffered an allergic reaction to an unknown allergen shortly after lunch. Prior to lunch, no one disinfected the microwave oven used to heat the child's lunch, lunch table, and child’s place mat. Having been in the lunchroom for about 20 minutes, the child began to experience breathing trouble which the private nurse initially thought was asthma, not an anaphylactic reaction. The child asked for his nebulizer, which the private nurse administered. The private nurse then administered an epi-pen and called for assistance. The epinephrine auto-injector, that the private nurse administered, which the mother had provided, had been expired for less than one year. Less than ten minutes after being notified of the child’s respiratory distress, the school called for emergency assistance. Two additional epi-pens were injected into the child before the ambulance arrived. After two days in the hospital, the child died.
The allergen that triggered the child's reaction was never conclusively determined. His parents suspect that it may have been caused by the child's exposure to blueberries during a classroom lesson that morning.
The parents sued the city, the home school district, the private school, the school nurse, and the private nurse. The suit alleged that the defendants negligently permitted the child to become exposed to blueberries; breached their duty to monitor, supervise, and control the child; failed to exercise reasonable care in protecting the child from injury; and failed to properly diagnose, manage, and treat the child's allergic reaction. The Richmond County Supreme Court denied the private school's motion for summary judgment and granted in part and denied in part the other defendants' motions for summary judgment.
The New York Supreme Court, Appellate Division, Second Department, affirmed the grants of summary judgment and reversed the denials of summary judgment. The court held that the statutory mandate to provide free and appropriate public education (FAPE) did not expand the city department of education's duty of care. The city department of education was not vicariously liable for the acts of the child's private nurse. The private school provided adequate supervision of the child. Any deficiencies in the private school's supervision of the child were not the proximate cause of his death. The school responded reasonably to the child's anaphylactic reaction. Even if the private school's nurse owed a duty of care to the child, she did not depart from good and accepted practice.
The court reasoned that, first, the mandate of state law and the federal Individuals with Disabilities Education Act (IDEA) for city's department of education to provide students with FAPE did not expand its duty of care so as to require it to directly supervise students outside of its physical custody. Therefore, all claims asserted against the city's department of education were precluded. The department fulfilled its obligations by formulating the IEP, including the child's attendance at private school and nursing services. The department was entitled to reasonably rely on the private school to act responsibly in providing for the child's medical needs and protecting his safety. A school's duty to supervise the students in its charge arises from its physical custody over them and is based on the rationale that when a school takes custody of a child, it deprives the child of the protection of his or her parents or guardian, and thus must give the child the protection of which the child has been deprived. A school's duty to supervise the students in its charge is generally viewed as being coextensive with and concomitant to its physical custody of and control over the child, and thus, when that custody ceases, because the child has passed out of the orbit of the school's authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases.
Second, the city's department of education was not vicariously liable for the acts of the child's private nurse. The private nurse responsible for providing services to the child while he was at private school was an independent contractor, not an employee of the city's department of education. Even though the department provided the private nurses with employee identification cards, the child's mother selected the nurses and supervised their care of the child. The department exercised no day-to-day supervision or control over the nurse's performance. Generally, an employer may not be held liable for an independent contractor's negligent acts, based on the rationale that one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor. Moreover, the concept of apparent agency did not warrant a finding of vicarious liability against the city's department of education. The child's mother selected nurses based on her own assessment of qualifications and skill, and not in reliance upon any words or conduct by the department.
Third, the private school provided adequate supervision of the child. Schools are under a duty to adequately supervise the students in their charge, and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. A school's duty to adequately supervise the students in its charge requires teachers and school personnel to provide students with the same level of care that a parent of ordinary prudence would observe in comparable circumstances. Under the reasonably prudent parent standard, the private school provided adequate supervision. The student-teacher ratio in the child's class was more than reasonable for adequate supervision. The child's IEP did not require the school to station the child's nurses inside the classroom. The private school took reasonable steps to protect the child by instructing teachers and staff regarding the child’s allergies. The school appropriately responded when the child first showed signs of distress.
Fourth, deficiencies in the private school's supervision of the child were not the proximate cause of his death. The parents could not identify the exact item that caused his reaction. Thus, even if the school's duty extended to providing a “disinfected lunch environment,” there was no indication that the failure to disinfect the microwave oven used to heat his lunch, lunch table, and place mat proximately caused his injuries.
Fifth, the private school responded reasonably to the child's anaphylactic reaction. The parents' argument that the school delayed 24 minutes before calling for emergency assistance was based solely on a misunderstanding of deposition testimony of the private nurse that they had been in lunchroom “for at least 20 minutes” when the child asked for his nebulizer.
Sixth, even if the school's nurse owed a duty of care to the child, she did not depart from good and accepted practice. The school’s nurse may not have owed a duty of care to the child because the school had never undertaken to provide him with nursing services. The child's mother had instructed the school nurse that private nurses would be completely responsible for providing these services. Even if the school’s nurse had owed a duty of care, there was no evidentiary foundation to support the parents' allegations that the school’s nurse permitted the private nurse to administer an expired epinephrine auto-injector and failed to ensure that the child’s airway was kept clear.
Seventh, the private nurse did not depart from good and accepted nursing and professional practice in her treatment and care of the child. Even if the reaction was caused by exposure to blueberries, the nurse was never made aware that the child was allergic to blueberries, leaving the nurse with no reason to immediately recognize that the child was having an anaphylactic reaction when he began to experience breathing trouble. Even if the epinephrine auto-injector that the nurse administered had been expired for less than one year, it still would have contained a therapeutic dose and would not have contributed negatively to his medical condition.
See: Begley v. City of New York, 2013 WL 5225242, 2013 N.Y. Slip Op. 05867 (N.Y.A.D. 2 Dept., September 18, 2013) (not designated for publication).
See also Medical Law Perspectives, July 2012 Report: Foodborne Illness: When Grabbing a Bite Can Be Deadly
See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care
See also Medical Law Perspectives, February 2013 Report: Emergency Medical Services: Liability and Immunity for Medical Rescue
See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication