Private School Not Liable in Wrongful Death Case

     (CN) – The family of a 9-year-old autistic boy who died of a severe allergic reaction did not prove it was caused by a basket of blueberries in the classroom, a New York appeals court ruled.
     Jonathan Begley lived in Staten Island, but due to his asthma and allergies to several food and substances, he was enrolled at The Forum School in Waldwick, N.J., a private facility for special-needs children.
     Jonathan’s allergies were so severe that he needed to be monitored by a registered nurse to and from school, as well as throughout the day.
     One day in 2004, Jonathan and his class were learning a multi-sensory lesson about the state of Maine. The students were reading “Blueberries for Sal,” and the teacher had a basket of blueberries in the classroom.
     After lunch, Jonathan was having trouble breathing. His monitoring nurse, Michelle Timothy, delivered asthma medicine twice through a nebulizer, followed by a pair of epi-pen shots. Paramedics arrived and took over, but Jonathan died at the hospital two days later.
     The death certificate states that Jonathan died of “Hypoxic Ischemic Encephelopathy, Acute Anaphylasix and Severe Atrophy.”
     Jonathan’s parents and estate filed a negligence and nursing malpractice lawsuit against the New York City Board of Education, The Forum School and Timothy.
     The defendants moved to dismiss the lawsuit, stating that Jonathan was not tested for an allergy to blueberries and that the family did not prove that blueberries caused Jonathan’s allergy attack.
     The trial court dismissed the case against the Board of Education but allowed it to continue against The Forum School and Timothy, who appealed. The Begleys’ appealed as well, ruling that the case against the school board should not have been dismissed.
     In an opinion written by Justice Randall T. Eng, the Brooklyn-based Second Department New York Appellate Division ruled in all three defendants’ favor.
     “There will be instances where a school district will be required to contract out the provision of educational services because it cannot provide a child with the specialized educational setting necessary to appropriately meet the child’s needs,” Eng wrote.
     “Having placed Jonathan in a private school equipped to provide educational services to a child with both severe medical problems and developmental delays, the Department of Education was entitled to reasonably rely on that school to act responsibly in providing for Jonathan’s medical needs and protecting his safety,” he added.
     Eng also ruled that The Forum School and Timothy cannot be held liable for Jonathan’s trauma.
     The Begleys’ expert’s “assertion that Jonathan was allergic to blueberries was based solely on the 2008 errata sheets in which the plaintiff mother attempted to alter her 2006 deposition testimony by adding blueberries to the list of foods and other substances to which Jonathan was allergic,” he wrote.
     Also, Eng ruled that the Begleys’ assertion that the first epi-pen contained an expired dose would allow them to prevail in their claim against Timothy because they did not prove that an epi-pen that had expired within the year would not contain a therapeutic dose.

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