The obvious alternative would be for parent to send a box lunch along with the kid instead of the school cafeteria keeping track of several unique diets.
Not all murder requires premeditation. 3rd degree in some cases for example. This is a totally pedantic nitpick.
Is “malice aforethought” different from “premeditation” as a legal matter? (Asking out of curiosity)
According to what I read, the pre-K was shut down, pending investigation on why its own written procedures weren’t followed, yet the fact the school did NOT call 911 and that the mom took the kid to the ER herself leads me to wonder whether the anaphylaxis wasn’t delayed onset and he only had a rash at first.
Did he have an Epi-Pen with him? Because Epi-Pens are so expensive, many schools have only one or two, a problem if a class is on a field trip and takes the EP. (BTW, I don’t know about pre-K, but older students who have EP’s keep them in their backpack, not in a nurses’ office.) If the boy had one with him, and it wasn’t used, I’d guess his symptoms seemed minor at first.
AIUI, negligent homicide means the person in question KNEW the danger but failed to take responsible actions to prevent death. If the worker was told only “dairy,” and the school didn’t make sure she understood what foods that entailed, the worker wouldn’t be guilty of negligent homicide. (For all we know, she may have been developmentally disabled.) Either way, the school will have a whopping lawsuit on its hands.
Even that should be enough warning to get EMS there.
When I was in the hospital after my accident ( long story short), I ate a chocolate bar with almonds, somethings that’s never been a problem before( and hasn’t been since). Shortly after, I started itching all over, no hives, no breathing trouble, just the itching at that point. Called the nurse, explained what I had eaten and what was happening.
The nurse was in my room fast with an injection followed a few minutes later with pills and a respiratory therapist shortly after to check breathing.
Too much variation from jurisdiction to jurisdiction to give a simple answer to that one.
Yeah, I wa wondering myself what would happen if a cafeteria worker or something had actually said, “oh, I’m absolutely sure the mom is exaggerating; here, I’ll prove it by giving the poor thing the grilled cheese she wants and nothing will happen.”
That’s great that you had nurse who responded so quickly, but itching in itself doesn’t necessarily signify a serious medical condition. When I was in the hospital, I started itching all over, too, but it’s a common side effect of morphine and other opioids. I got an antihistamine administered IV push, but the nurses didn’t rush (no need), and thank God, they didn’t shoot me full of epinephrine.
Again, the school didn’t follow its own protocol, and with his history, should never have given the little boy the sandwich, but the boy’s mother didn’t call 911, and she didn’t tell the school to do so; there must be a reason. Maybe she thought it would be faster if she drove him herself, or maybe his symptoms weren’t severe. If he had a severe allergy, why was there no Epi-pen? We need more info.
Yes, it’s a problem that people often think it would be faster to drive themselves or a person to the ER rather than wait for an ambulance, but what they either forget or don’t know is that ambulances also have trained medical personnel and a bunch of resources to keep a person alive on the way to the hospital.
Food allergy symptoms aren’t necessarily like flipping a switch - it can start relatively mild before roaring out of control. The time to call an ambulance is when the person is itching and hives are starting to break out, or just starting to get short of breath/wheeze, not wait until things are catastrophic.
As to why no epi-pens… they are expensive. And insurance is reluctant to cover expensive stuff that, under ideal conditions, will never be used. I have documented severe food allergies that have resulted in life-threatening reactions yet I can NOT get an insurance company to cover the cost of an epi-pen for me. Their attitude is “just don’t eat what you’re allergic to”. Which is easier said than done for many allergies given all the ingredients “hidden” in foods. Keep in mind that for a certain sub-set of the allergic it requires only trace amounts that are too small to be seen, smelled, or tasted. And, given the cost of an epi-pen - more than the amount I spend on rent every month - I can’t afford to purchase them myself over the counter.
It is distressingly common for severely allergic people in the US to NOT have access to epi-pens.
I know a 40-something woman that believed that “dairy foods” were those that were sold in a certain section of the supermarket near her home. She for sure placed the dairy liquids – milk, cream, half-&-half, etc. – in the “dairy” bucket. But she also conceived of fruit juices and eggs as “dairy” because they were “in the “dairy” section.” :smack: I didn’t bother to ask about cheese, yoghurt, and such.
Regarding eggs specifically, I’ve run into several people who think of eggs as a dairy product.
I work with a gentleman here who thought that, because I’m a vegetarian, I eat only vegetables; he was surprised to see me eating cookies. This is not an otherwise dumb person and I assumed he was joking, but apparently not. It very sadly wouldn’t surprise me one bit if someone didn’t know what “dairy” meant.
I read an anecdote once about a Hindu Indian exchange student (possibly in the US, but I’m thinking the UK) who didn’t eat hamburgers but* loved* cheeseburgers, until the curious anecdote-writer asked her about that and discovered that she thought that cheeseburgers were (somehow) made with patties of cheese, not meat. Shock and horror followed.
The extremely high price of Epipens is unconscionable, I agree. Since the On Monday, the city’s commissioners for the Department of Health and Mental Hygiene and the ACS announced that all child care staff will now be required to call 911 when a student has a medical emergency. Since the Seventh Avenue Center for Family Services offers pre-K for low-income children, I assumed his family would be eligible for Medicaid, which covers the cost of the EpiPen. It’s also possible his mother had to use the EpiPen on him recently or that it had expired and hadn’t been able to refill the Rx yet.
With all the examples of people who don’t understand what “dairy” means, I wouldn’t be surprised if school personnel didn’t know the symptoms of incipient anaphylactic shock.
That is not universally true. Up until May of this year I was on Medicaid - which would not approve an epi-pen for me despite documented life-threatening allergies.
Also, there are a significant number of people who should be on Medicaid who aren’t, for various reasons from “did not fill out the forms” to “somebody screwed up on a rule and you are now excluded from the program for X months”. No one gets Medicaid automatically, you have to apply for it and be approved. You can also be dropped from the program for various reasons.
In an emergency (which is when/why you use an epi-pen) even if the thing is recently expired you still use it. It doesn’t become instantly toxic on that expiry date, after all.
This is covered when you are issued an epi-pen (which I used to be able to get, many years ago). If it’s recently expired still go ahead and use it.
“Having trouble breathing” should be sufficient to prompt a call to 911. Trust me, when someone is in anaphylactic shock it’s pretty clear there is something seriously bad is going on: breathing problems, massive swelling, color changes, and as things progress loss of bladder and bowel control, loss of consciousness…
Then again, a sizable number of people are ignorant and stupid.
But an adult with a life-threatening allergy is more able to notice things and speak out on his own behalf. If he is allergic to dairy, and someone gives him a grilled-cheese sandwich, he could say, “Hey, this has cheese, I’m allergic, sorry, can’t have it.”
A 3-year old boy with that same allergy, on the other hand, if given a cheese sandwich by a teacher or school employee, is much less likely to be able to “see something/say something.”
Correct. And that’s why you inform the adults responsible for the child about the problem.
But you have to start training the child from a very young age to recognize and avoid triggers. You have to treat the child from a young age to say “no”, even to adults, even to pushy adults (my niece, whose food allergies are even worse than mine, wound up in many confrontations with substitute teachers who just didn’t understand that milk was NOT good for this particular little girl). It is no different than teaching 3 year olds to hold your hand when crossing the street instead of dashing ahead of you into traffic.
The suggestion was to keep allergic children at home - basically, turn them into invalids, stunt their social growth, and restrict their opportunities. That is not the proper way to deal with an on-going medical problem. It would be a return to the day when the handicapped were kept in the back bedroom instead of being allowed to live in the world.
I work in a preschool, and there are so many kids with different dietary needs, it’s hard to keep track. There are lots of kids who are lactose intolerant, who can’t have milk, but can have yogurt, and can have baked items with milk as an ingredient. We have only one kid with an actual dairy allergy, who can’t have anything with whey or casein, period. We have the same situation with the egg allergy kids-- some can have it as an ingredient in bread, and just can’t eat, say, scrambled eggs, but others can’t eat even things with egg as an ingredient. We have gluten-free kids, but only one actually has a wheat allergy. Most of them are kids with parents making a lifestyle choice. The allergy kid has an epi-pen, the others don’t. We are forever checking and rechecking papers.
Then, we have a very good chef, who makes soy grilled cheese for the non-dairy kids on grilled cheese day, and I can totally see a sub getting confused by seeing a kid with a sandwich that looks just like all the others, and giving the kid seconds from the general stack, or even a regular teacher forgetting if it’s a lactose intolerant kid who can have yogurt, or a milk allergy kid who can’t, and giving the wrong kid yogurt. It’s hard when you have a 25 kids to keep track of.
Now, we all get epi-pen training, although, so far, I don’t think we’ve ever used one. I don’t think we’ve ever called 911 in the 3 years I’ve been there. We may have once given a kid Benadryl, for a bug bite, after a parent consultation over the phone.
But it’s more work than you’d think keeping track of all the kids’ different needs.
The alleged negligence of the school staff abides in two particulars - the giving of the cheese sandwich in the first place, and the failure to call an ambulance immediately.
You cannot realistically prosecute the school as a whole, only individual people. This is different from civil litigation, where the school might well be held liable. Absent specific statutory exceptions, vicarious liability for homicide is not generally a feature of the criminal law in the way it is for civil law.
Additional to the issue of assigning responsibility to one staff member (presumably the server of the cheese sanger), there is the general proposition that criminal negligence has to be proved to a higher standard than civil negligence. First, the facts must be established beyond reasonable doubt, and secondly (and the detail of this varies across jurisdictions, but I will give the flavour of the idea) it is necessary to establish that the egregiousness of the negligence was of a much higher order than will typically support a mere civil negligence action.
Because the prosecution will be directed to an individual server, much depends on what that server knew about the child’s allergy. Reading between the lines, this is likely to be a case capable of being represented by the server as one where the school’s systems led to a failure to communicate properly to serving staff about the issue in the individual child’s case, rather than a case where the server knew of the allergy and proceeded anyway. While a failure of the school’s systems generally might found a basis for a civil suit, it is unlikely to do so where the person directly involved in providing the cheese sanger did not know about the allergy. If the server had been told, but believed in their ignorance that cheese was not dairy, then that is a matter which must be assessed against the principle of egregiousness I mentioned above, tested against the expression of that principle which applies in the local jurisdiction. Juries might reasonably come to different conclusions on this point, but a prosecution would not be unreasonable in this version of the facts. A sympathetic jury might side with a poor ignorant woman who did her pathetic best and is devastated by what happened; another jury might focus on the lethality of the consequences of the service of the sandwich and convict despite sympathetic features.
As to the second basis of liability - not calling an ambulance - then two issues are likely to emerge.
First, much depends on the detail of the evidence of how the child presented at the time the decision was made to call mum and not the ambulance. In engaging the egregiousness principle in that situation, much can be made of the fact that the mother, too, did not call an ambulance, suggesting that the presentation of the child meant it was not unreasonable for both to collectively proceed as they did. It is not permissible to reason backwards in these situations and say that because the child died, there must have been criminal negligence.
Second, in the case based on failure to call an ambulance, there is a causation problem so far as prosecuting the school’s decision maker is concerned. Clearly they did not call an ambulance, but then neither did mum. The test for causation is generously expressed in most jurisdictions in favour of the prosecution, but much will depend on the evidence about the child’s presentation at any given time, and on the evidence of experts about the progress of deterioration of the child and the point at which treatment was too late. The argument for the school, depending on that evidence, is that whatever it did so far as not calling an ambulance is concerned was overtaken causally by the mother’s failure to call one. I appreciate that it is entirely possible for both failures to be sufficiently causative, but there is no doubt that the mother’s failure potentially muddies the waters.