Visitor Question

Son choked on plastic in coleslaw…

Submitted By: Edith (Texas)

My son was eating coleslaw from KFC (he is about 1 year old) and started choking. I reached into his mouth and pulled out a piece of plastic! It looks like the sealed end of a bag that was opened. I am in talks with the insurance company but they are only offering $1000. Does my son deserve more?

I tried to take him to the doctor but with no insurance I haven’t been able to take him more than once, and he said my son’s throat looked ok. I had to miss work a couple of times and also my son is scared to eat! What should/can we do? Thanks.

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.

Answer

Dear Edith,

From the facts you present, it appears the offer of $1,000.00 may be quite fair. In most cases, insurance companies base their settlement offer on two items: negligence and damages. In your son’s case, it appears clear the restaurant was negligent in permitting a piece of plastic to remain in its food.

Damages can include your son’s medical bills, your out-of-pocket expenses (for such items as medications), your lost wages (while taking your son to the doctor and caring for him until he is fully recovered), and your son’s pain and suffering. Here’s a more in-depth look at everything you can claim for damages.

Your damages so far appear to be one visit to the doctor, and a couple days of missed work. Fortunately, your son does not appear to have any permanent damage other than his fear of eating. That fear will likely pass when he becomes hungry.

The pain and suffering your son experienced appears to have been transient. That means it appeared and left just as quickly. Unfortunately, the law does not permit mothers to recover pain and suffering vicariously for their children’s injuries.

Be sure not to accept any settlement offer from the insurance company until you are absolutely sure your son is fully recovered. That includes not signing any releases or endorsing any checks from the insurance company.

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

Best of luck,

Published: December 8, 2015

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