Child Daycare Injuries: Know Your Legal Options

When it comes to being a parent, one of the most difficult choices we have to make is to be away from our children day after day while working. For many people, the choice is not about whether to return to work — that’s a necessity — but how to find the safest and most rewarding option available to your family. Even knowing that you are sending them to a facility licensed by the state of Texas doesn’t make having your children out of your sight any easier, but you can at least rest easy knowing they will treat your children like their own. 

That said, childcare facility injuries do happen, and if it happens to your child, you should reach out to a personal injury lawyer to help you understand your rights and options. 

What Kinds of Injuries Happen to Children at Daycare?

Childcare injuries can happen at any time, and many of these injuries are preventable. Some of the more common injuries to children while in the care of a childcare facility include:

• Bruising
• Broken bones
• Allergic reactions
• Choking
• Drowning
• Eye injuries
• Traumatic brain injury (TBI)
• Electrocution
• Poisoning
• Assault
• Sexual assault

Texas Health and Human Services reported that licensed child-care facilities saw 1,415 confirmed serious injuries in 2018 and 2019. Over two-thirds of these injuries were sustained by children under four years old. While the majority of injuries are accidental — albeit often preventable — in the last decade, nearly 100 children have sustained fatal injuries at daycare centers from abuse or neglect. These tragedies are often the result of unlicensed daycare centers, but injuries can occur at even the most reputable centers.

By nature, children are at high risk for injury, even at home. Parents know that their children have the potential to get hurt in all kinds of situations and settings, but this is why taking on the responsibility to care for children when their parents need help is so monumental. Childcare facilities have a dual responsibility to children and their families — maintain a developmentally appropriate environment while meeting safety standards determined by the state. 

What Are the Most Common Causes of Injuries at Daycare?

The most common specified cause of serious injury statewide for children in Texas is playground accidents, and that includes accidents at daycares. In response to numerous accidents, Texas revised its public playground regulations, but hundreds of children a year are still injured on the playground at daycare facilities. 

Play and socialization are part of children’s development. In fact, allowing kids’ to make daring, bold decisions during play helps them learn to navigate the world and build confidence in themselves. Playgrounds, for example, have been shown to provide children with a controlled opportunity to develop:

• Risk assessment skills
• Emotional regulation
• Self-esteem
• Initiative 
• Problem-solving skills
• Creativity
• Physical strength and endurance
• Grit and resilience
• Social skills

However, what is considered risky for a child should not appear dangerous to an adult, and children should never be left attended or unsupervised while playing. Additionally, Texas revised its playground regulations in 2015, which means that many playgrounds constructed before then may not meet updated safety standards. These safety standards include not only the play equipment itself but the pathway children must take to the play area, the amount of sun exposure, and the arrangement of equipment to account for appropriate age separation. 

How Do You Know If a Daycare is Liable for Your Child’s injury?

When daycare facilities are inspected by the state, they are evaluated to ensure they are meeting minimum compliance in a variety of areas including:

• Supervision of children
• Child-to-caregiver ratio
• Director and caregiver responsibilities
• Fire, safety, or sanitation deficiencies
• Conditions of any permitting restrictions/waivers
• Serious incident report reviews
• Staff background checks

The results of these inspections are public, and they allow parents not only an opportunity to review the record of any potential facilities they are considering but offer insight into the ways daycare facilities can be liable for injury, even if the average parent might not realize it. Here are some common injuries at daycares:

• If a child is injured during naptime because they trip and fall in a room that is too dark
• If another parent sends a package of peanuts with their child to school and your child has a severe allergic reaction
• If your baby is injured by a bottle that was warmed up improperly
• If your child slips and hits their head while using the restroom unattended
• If your child is left on the playground alone and is injured in a fall, resulting in limited mobility or even paralysis
• If sanitation or cleaning products are left unattended and your child ingests them or receives chemical burns

Many daycares ask parents to sign liability waivers at the time of registration, but these do not actually protect the facility from legal action when their negligence causes injury to your child. 

Are Daycares Responsible for COVID-19?

Many parents have found themselves in the position of having to weigh the risks and benefits of sending their children to daycare during the pandemic. By late 2020, thousands of cases of COVID-19 had already been reported at daycare centers among their staff and the children who attend them. The state continues to collect data about positive cases of COVID-19 as reported by the facilities.

While new legislation in the form of Texas’ SB 6 provides a considerable shield for businesses, including daycares, when it comes to their liability for the transmission of the coronavirus, it is not absolute. When daycares do not follow the state-mandated guidelines or act in other ways that are negligent when it comes to protecting children and adults from contracting COVID-19, they might be held liable in a civil lawsuit. 

What’s the Process for Seeking Recovery in a Daycare Injury Case?

When your child has been seriously injured, you are going to wonder what to do beyond seeking immediate attention. Here are the steps you should take:

1. Continue medical attention: Even if you do not have health insurance, seek medical attention immediately for the sake of your child — and follow up. Head injuries and spinal damage can hide at first, as can internal bleeding. Even older children can have a difficult time recognizing and communicating their symptoms, so having a qualified medical professional give your child a full examination is important.
2. Get an incident report: If the daycare did not give you an incident report at the time of the injury, request one. They are required by law to document the circumstances of all incidents resulting in injury and provide you a copy. 
3. Call an injury attorney: Even if you are unsure about whether your children’s injury was the result of a tragic accident or if negligence seems to be obvious, reach out to an attorney. You will receive the education and information you need to help you pay for medical care and make decisions about what to do next.

While it can be difficult to focus on anything else when your child has been injured, your best chance for financial recovery will come from your documentation of the damages, or harm, that your child and family experiences after your child is injured. These damages can come in the form of medical expenses, missed income from having to stay home from work, costs of additional care, and even non-economic damages like pain and suffering and emotional distress. 

The cost for even moderate traumatic brain injuries (TBI) can be thousands of dollars a month just for medical care, with just the first few years of care in the tens or even hundreds of thousands of dollars. Speaking with an attorney early on in the process can help you manage the stressful process of caring for your child while navigating your legal options. The immense costs of serious injury may be recovered, but you must take the first step.

How Can FVF Help If Your Child Is Injured at Daycare?

We know that the legal complexities of a personal injury case add confusion to an already difficult time. When it is your child who is injured, there is simply no way to ease that pain and distress, but it is possible to have a supportive advocate in the team at FVF Law in your corner when it comes to deciding what to do next. 

We are here to educate and inform our clients about their options, and we want every person who calls us to walk away from that first call feeling more clear and more hopeful about their next steps. When you are ready, contact us to schedule your free consultation with our Austin personal injury attorneys.