My 9 month old daughter suffered an ankle tibia fracture at daycare...

by Laasya
(Santa Clara, CA)

On July 1st, my 9 month old daughter was crying uncontrollably when we went to the daycare to pick her up at 5:30pm. We were informed that a free standing metal gate fell on her ankle around 5pm. We took her to the urgent care and her ankle was x-rayed. They put a cast on her leg and recommended that we should take her to the pediatric orthopedist the next day.

On July 2nd morning we took her to the orthopedic doctor who confirmed that she suffered a fracture. She was in a cast for two weeks and stayed home. We did not send her back to the daycare after she was healed.

This accident could have been foreseen and prevented. The staff did not get her proper medical care when she was injured. In short, they did not perform their duty to protect and watch my child. The daycare facility also did not return the prepaid fees for the 2 days she did not attend, as the accident happened on Thursday. The medical bills were around $630.

We signed the release form when she started at the day care, but this is clearly their fault. Does the release prevent us from filing a lawsuit against them? Can we file a complaint against them for this? Where? Are they responsible for my daughter's pain and suffering? What else can we do about this? Thank you for any information you can give.

Visitor Question:
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ANSWER for "My 9 month old daughter suffered an ankle tibia fracture at daycare...":

Laasya (Santa Clara, CA):

Day care "release of liability" forms do not always exempt a daycare center from liability for injuries sustained by children in their care. Read the release closely. For the release to be effective, it must be unambiguous, while clearly stating the terms of the release.

Because there are so many different types of actions and omissions a daycare center may make resulting in injuries to a child, it is virtually impossible for a release to specifically address each occurrence. Further, a good attorney may be able to have the release dismissed altogether.

The day care center's actions in not recognizing the serious nature of your child's injury, and thereafter seeking immediate medical treatment was unconscionable. There was no excuse to permit your child to suffer the searing pain of a fracture for a prolonged period of time.

It may not be necessary to file a lawsuit against the daycare center. Instead you may be able to have your child's medical bills paid by the daycare's insurance company. That compensation can include payment for the costs of medications, your lost wages while caring for your child, and an additional amount for your child's pain and suffering.

Ask the daycare center for their liability insurance information. This should include the name of their liability insurance company, the address, telephone number and other pertinent information. If the daycare won't comply, and they stand firm on the release, you can either seek the advice of a personal injury attorney or file a small claims lawsuit.

In cases where the amount of money in controversy is less than $1,000.00, it's can be difficult to find an attorney to accept a case. There just wouldn't be enough money in the case to make it worth the attorney's time.

However in this case, even though the amount in controversy is less than $1,000.00, the pain and suffering your child unnecessarily endured may make the case well worth an attorney's time. To help you decide whether or not you need an attorney, read this article and this one.

There is really no amount of money to adequately compensate your child for the unnecessary pain and suffering caused by the inaction of the daycare center. However, a judge or jury may decide the daycare's failure to provide medical treatment for your child is worth a great deal of money.

To file a complaint against the day care center contact the:

Child Care Licensing Agency
California Department of Social Services
Community Care Licensing Division
Child Care Licensing Program
744 P Street, Mail Stop 19-48
Sacramento, CA 95814
Phone: (916) 229-4500
Fax: (916)-229-4508
California Daycare Listings

Read the California statute governing child care centers here.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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