Keches Law Group obtained a $5,000,000 settlement for a child experiencing developmental delays following a near-drowning pool incident.
The incident arose from a near-drowning at a day camp during a free swim on August 10, 2015. The claimant was a 4-year-old girl who did not know how to swim and got into water over her head. The lifeguards mistakenly thought she was doing some gymnastics moves and belatedly rescued her from the pool. By the time she was removed from the pool, she was unconscious, breathless, with blue lips. She was resuscitated, immediately regained consciousness, and was alert when the EMS arrived. She was observed overnight but then released as alert and neurologically normal. An MRI taken shortly thereafter was normal.
Counsel retained an expert in Pool Safety, Gerald Dworkin, who opined that the lifeguards and camp counselors were not properly trained and the procedures at the Camp were deficient. Litigation was intense and long. There were a total of 27 witnesses deposed. The defense initially contended that they followed the standard of care and that she was only drowning for a maximum of 30 seconds, and they reasonably and appropriately reacted to the emergency. One lifeguard testified that the child’s head was above water seconds before rescue.
Counsel retained Dr. Rodrigues, a pediatric neurologist at the Tufts Floating Hospital, who opined that the child was oxygen-deprived from between 1 to five minutes and probably two minutes based on her presentation and her blood gas readings.
After years of litigation, the defense conceded to liability on the first day of mediation. The defense focused on the issues of causation. The child’s medical records contained concerns about developmental delays, especially for attention and concentration and impulse control. More importantly, the child had two treating neurologists since the incident. The first neurologists said it was unlikely that the near-drowning caused any lasting deficits. The second neurologist refused to opine on causation based on her counsel’s advice. The most recent treating neurologist testified that she had Attention Deficit Disorder and that condition significantly interfered with her school work, but she could not state whether the ADD was pre-existing or related to the near-drowning.
