No parent wants to see his or her child become ill. Modern society uses a variety of measures to help prevent the spread of various bacteria and viruses among vulnerable populations, such as children. When students are crowded together, influenza infections can spread rapidly. Parental options for dealing with this type of situation through the court system are limited.
Schools owe certain duties of care to their students. If the schools breach that duty of care and that breach causes an injury to a student, then the schools will be liable for negligence. However, schools and staff generally cannot be sued when a common illness goes around for several reasons:
1) First, schools generally do not have a duty to identify and quarantine any student with flu-like symptoms. Symptoms of an influenza infection are common, and requiring that institutions monitor individual students would place a high burden upon the system. If schools have no such duty, they cannot breach that duty.
2) Schools require parents to provide current vaccination records against many common diseases, including influenza. However, if a school requires students to submit current records but chooses to let a student without current records attend the school, and if can be proven that the child was the original source of the disease, then the school may have been negligent. State law on this matter may vary, so concerned parents should consult an attorney in their areas.
3) Parent seeking relief for a child infected with the flu must somehow quantify the damages to the child. In the case of an influenza infection, the cost of a single doctor’s visit may be all the demonstrable damage to the parent. If, advises our medical malpractice lawyer in Syracuse, the school actively caused the illness to spread by some means, parents might seek an injunction against that school’s act.
4) If the school is operated by the government, issues of qualified immunity may also arise. State laws vary widely on this matter. A licensed attorney can provide parents with their local statutes and advise them on whether it would be worthwhile to proceed.
Pursuing Patient Zero
If parents knew that their child was contagious and let him or her into the school, they may be liable for negligence. If a student deliberately infected another with the flu, that student’s legal guardians may be liable in tort for battery. The original patient’s doctor probably will not be liable for malpractice, as courts generally hold that third parties do not have standing to bring malpractice claims.
In the real world, neither the student nor his parents will be held liable.
Parents can forget about pursuing a lawsuit against the school, any of its agents, or any of its students. In a student body comprised of hundreds or thousands of students, tracing the progression of an illness back through the student body is impractical. Such activities would require extensive interviews with every student and a complete understanding of the virus’ latency period and social circle.
In summary, recovering from any party for a child falling victim to the flu based upon a theory that the child was infected at the school will not happen. Individuals who believe that they have a case should contact an attorney soon, as public schools may have stringent guidelines detailing when a plaintiff may file a lawsuit. Parents who are outraged at the school’s apparent lack of health programs would be better off taking up the matter with the school board.
Ann Bailey is a parent and contributor of this research in conjunction with the Bottar Leone, PLLC medical malpractice lawyer in Syracuse. The firm represents victims of malpractice and medical negligence in upstate New York, helping their clients receive lost wages and other damages in cases of error on the part of responsible medical field practitioners.