Sueing for gross misconduct / negligence / failing to report broken arm

[Kerrance]

Hi the situation is this my son whos just 3. This friday i picked him up from nursery at 5 (he goes 4 days aweek 9-5) he looked very pale and was irritable. Staff said nothing to me about ANY kind of injury/acident or voiced any concerns after arriving home i noticed he was holding hos arm in a strage postion, i saw his arm was very swollen. When asked about it his words were "i fell over at nursery and couldnt stand up B** (staff member) had to carry me", far from being very annoyed nothing was said. I try and call but its closed I applied cold compress and he eventually driffed off to sleep in my arms. Hours later he wakes with the most horrific cry.... We rush to AnE its now 7.45AM..... He is xrayed = greenstick fracture to his right wrist he is put in a semi pot banage to allow swelling to go down....monday morning is our app for full pot on.... My question is do i call the nursery in the morning and ask to see the RIDDOR report or should i arrange a meeting and ask for it then ( i dont want to allow then time to cover it up) which ever way its looked at they have been negligent in informing me of a serious injury / no one saw the fall (left unsupervised) breaching the duty of care/ it was logged as minor injury- if so they need to retrain staff in 1st aid and i want a full incident report and to know whom is held accountable ....... Am lost as to which is the correct approach and what to say to ensure im taken seriously and its dealt wiv properly.... Any help very much appreciated

My mother didn't take action against a hospital whose care (lack of) put her in a coma and left her with irreversible damage.
There has been no inquiry in that hospital into what happened with my mother.
Which almost certainly means the same thing will happen again.
Perhaps to someone else's mother, or child.
The experience really changed my mind about so-called litigious culture.

A strongly worded reasonable letter to the nursery should suffice.

Your DS broke his arm while in their care, and you were not informed. You were therefore unable to deal with it, and there may have been a few hours of additional suffering. You want reassured that their procedures for supervision and reporting will be reviewed.

Talking of suing is just nonsense. Sometimes there is just no one to blame. Kids fall over, kids break limbs. This could so easily have happened in your care, or a GP, or a playmate. Would be suing then?

I strongly disagree with all those who claim it is somehow morally wrong to sue when someone's negligence has caused injury. I really cannot see any good reason why the victim of such negligence should take the financial hit rather than the perpetrator, nor indeed why they should not be compensated for pain and disability.

However, in this case it seems to me that it would be near impossible to get a claim off the ground. There is no evidence that the fall was caused by negligence - in fact the likelihood is that it was caused by the child's hypermobile joints; nor is there any evidence that the delay in reporting it caused any damage. But it is totally legitimate to ask what happened and to query why it wasn't reported to the parent.

If possible go to the Nursery as soon as it opens on Monday morning, before you go to hospital, and ask for an interview immediately. If not practical, go after your appointment at hospital.
Take someone with you and ask why the incident was not reported to you when you collected your child.
Take it from there; you really shouldn't level accusations of gross misconduct and negligence until you have heard their account.

This compo culture really annoys me; over-reactions like this are the reason why kids today aren't allowed to do anything that's slightly fun as everyone is afraid of getting sued. As a PP said, get over yourself. Just because a child falls over it doesn't mean they're not being supervised and fractures can be difficult to spot. Yes, they should have some kind of system whereby they fill in an accident form but I'm guessing if it was a simple fall, with no obvious injury then they may it have thought there was no need. Can you imagine how many times a day nursery age kids trip over?

But don't let that stand in the way of the chance of a bit of compo

It's not the suing, it's the instant aim of suing before haven even spoken to the nursery, that makes it seem grabby. I genuinely don't get why the immediate thought is to plan to sue.

The OP has no reason to think suing is the only way to ensure this doesn't happen again.

It's entirely possible that the nursery know he fell but he was fine afterwards, no swelling etc. as many people on this thread have pointed out happens

I'm a litigator and I still think this is ridiculous. What on earth is the child's loss even if you could establish that someone was at fault?

Suing would be a whole lot of hassle for not much reward IMO.

By all means ask for their side and complain if you still feel they were neglectful. BUT you have not had to pay for the medical treatment so are not out of pocket, so why do you see ££££££ signs? I strongly suspect you see this as a nice little windfall.

Be careful with taking legal action - you may lose and end up having to pay huge legal fees for nothing in return if the Nursery successfully contest your claim....

It's totally unacceptable.

He's three, they should have called you straight away and erred on the side of caution. If it was swollen and getting worse then they absolutely should have been getting him to hospital, via you or by ambulance.

Utterly irresponsible and negligent and I'd be going in there this morning asking some very awkward questions. I wouldn't sue, but I would definitely withdraw him.

No, that was complete shit. They are tasked to do one thing - look after your child, and if they can't do that what exactly is the point in them? You may as well eave him at home on his own.

Shocking.

Op I don't have experience of your situation but I wanted to give for you and for your ds.

downgraded were you there? If not you have no idea what happened let alone if anyone was negligent.

OP another lawyer here. I also have a child the same age in nursery. You've had some very sensible advice already on your chances of successful legal action and how to approach it. Of course it's perfectly reasonable to ask questions and get to the bottom of the original incident. It's not reasonable to jump immediately to thoughts of legal action.

You see - having worked with small children - I can totally foresee the situation as follows: -

Child falls over, child who is hypermobile and nursery knows he falls over possibly more than other children.

Child cries, keyworker gives a cuddle. Asks if anything hurts, child says "no" and stops crying. There's no swelling, and child goes off and goes about rest day as normal.

There was nothing to report. A greenstick fracture is notoriously easy to miss for the simple reasons that they can cause little pain and swelling doesnt occur immediately.

Children fall over ALL the time. Reporting each and every time a child falls over isn't pratical

Hope he's feeling better.

seriously people expect to be called everytime their child falls over???? my little one falls over lots of times every day I think I would be more annoyed with the mutilpy phone calls a day to report every falling over.

Can you iminge the paper work the nursery works have to do for every time a child falls over but does not look injured? long ago when I worked in a nuresry on avaegre every child fell over atleast once a day some of them would fall over mutiply times in 1 session of out door play can you imgine the out cry of annoyance if we would ring a parent EVERY time they fell over (we would report if they were visable injuried aka bruses cuts etc but just a normal fall over)

I'd love to know how the doctor could tell you exactly what force was required. Because that is extremely hard to know, and very easy to get wrong. I've seen some bloody nasty fractures from minor events, and relatively minor fractures from high impact accidents. I guess you could have just happened to have been seen by an internationally renowned expert in the aetiology of childhood trauma.... but it seems unlikely. More likely would be an inexperienced doctor trying to be helpful (and cocking it up), or even that amidst your understandable distress you misunderstood something they said.

As others have said, these fractures are very easy to miss. Most medical parents seem to miss them for a day or so, so heaven help the untrained!

Definitely speak to the nursery, see what they say. They're probably going to be shocked and horrified, describing how he just had the same sort of tumble he has 10 times a day, and seemed fine afterwards. If they're blasé and uncaring, then that would be different... but I bet they're not.

Hope your ds heals up quickly, as indeed at that age he probably will.

I would expect the staff to be on the lookout for injury and I would expect to be called if here was the possibility of injury having occurred, yes.

The OP said it was swollen - giveaway.

The swelling was obviously not a give away as the OP did not go straight to A&E. A sprain can cause more pain than a fracture. If I attended the hospital every time my hyper mobile DS fell he would be there more than school. The chance are the fracture moved whilst he was asleep hence the agony.

When my toddler had a greenstick fracture last year the swelling wasn't really noticeable until a couple of hours after the injury happened.

This thread actually is a bit

The idea that a nursery should inform a parent every time a dc falls over is ridiculous. I would never be off the phone or, if they decide to tell me at pick up, we wouldn't get home until 8pm.

Young children tend to 'bend' their bones rather than 'break' them as their bones are much less dense and much more rubbery than adult bones. A greenstick, and indeed the other common break in children, the buckle fracture are more bends. I will point out also that a break and a fracture are the same thing, neither one are different, it's just that fracture is now the term of choice (if you go to have a proper cast on you go to fracture clinic, not the break clinic. Just to make ot easier to see)

All fractures are different, some swell instantly, some not at all. People's pain thresholds are totally different. I will cry at stubbing my toe my 3yo just gets on with it. Some people/dc have very minor accidents but end up with terrible injuries, some have horrendous accidents and come out unscathed. I don't know any A&E doc who would potentially put themselves in the middle of a possible litigation by making spurious assumptions without knowing all the facts.....facts of which you, OP, were unable to give.

OP by all means speak with the nursery and ask for an explanation but going all guns blazing will not help. Looking at suing is just beyond stupid.

You didn't think his swollen, held abnormally arm was serious enough for an immediate trip to A&E and chose to wait hours to seek treatment. If you felt no need to seek treatment immediately you can hardly blame the nursery for being of the same opinion, so why try to only apportion blame to the nursery?

And just to go back to the thread title, the nursery didn't report a broken arm because they are not gifted with xray vision so didn't know it was broken.

Given how anal nurseries tend to be about accident reports and the like I find it much more likely that he had a little fall, they picked him up and gave him a cuddle (as you do when a child is crying) and then he carried on playing. As others have said, the doctor is talking nonsense when they said it would have needed to be a fall down a number of steps. This sort of thing happens all the time, and I wouldn't think that they would do accident reports for every last little thing. If there is a obviously something wrong, or it looked like a big fall, then I would expect the nursery to let me know.

I had a greenstick fracture ice skating and I carried on for the rest of the day. It was only about 6 hours later I turned white and my arm seemed to swell. You yourself say that it was only once you got home that you realised there was anything wrong. So it is quite possible (likely even), that the swelling was not that noticeable at nursery.

How would you have reacted if he'd fallen over at home? Most people would have done as the nursery did. We shouldn't expect more from the nursery than we do from ourselves. You seem to think they are trying to hide something. Why on earth would they want to do that, knowing full well there are parents like yourself around willing to jump straight down there throats?

Op you aren't the first, nor will you be the last, person to miss a child's broken wrist. A nurse friend of mine had her 8 year old going to school for a week with one! If it's not particularly angulated then the swelling/deformity/bruising can be mild or take a significant time to become noticeable. I agree with PPs that it's a tad hypocritical getting angry at the nursery for not rushing DC off to A&E when you yourself didn't take him til the next day. To rush into litigation when you haven't even discussed the matter with the nursery is ludicrous. You have no idea what the mechanism of the injury was, nor how he reacted immediately afterwards. Did a doctor serious say that he 'must have fallen down stairs'?! That's a ridiculous assumption, and that doctor should be spoken to by his/her superiors about making such a claim. I have personally seen more than one completely healthy toddler break their femur (y'know, that rather thick and sturdy thigh bone) through a slip on a flat surface. It's uncommon, but not impossible.

I'd be inclined to speak to the Nursery first and foremost. Find out their account of what happened in order to draw any conclusion about whether they handled it incorrectly. The fact your child was picked up doesn't necessarily mean they thought he was injured. My DS fell from a climbing frame whilst in the care of my Mum when he was around 3. She took him to the doctors who reassured her that nothing was broken. He had no swelling and wasn't complaining of pain but he had cried a lot when it happened and had been pale and sweaty. When I returned from work I noticed he wasn't using his right hand. We took him to A & E where an X ray revealed he had a fracture right at the top of his arm. I was a bit irritated I can't lie but I recognised that the Doctor had made a mistake as humans do. He was very apologetic. I hope your little one is okay xx

ambulance chaser

move along folks, nothing to see here

OP, perhaps someone should sue you for not taking your kid to A+E until the next morning.

OP - I am sorry that this happened to your DS, it must have been so upsetting for you

My toddler recently broke his arm at home. No-one saw him fall and I thought that he was unwell rather than hurt. He was very pale and a bit sweaty looking but seemed content to lie on the sofa. He only cried when we tried to sit him up.

It was 24 hours after he had fallen (roughly as we don't know exactly what time it happened) by the time I got him to hospital. I took him there still thinking he was ill - although by this time I thought he was very ill as he was drowsy as well It turned out he had a broken elbow.

Because I didn't couldn't explain how it happened, I was questioned in detail by three different people. At the main hospital, I was taken into a separate room and really interrogated about what happened - for safe-guarding reasons.

The Dr in charge also went and looked up literature about the type of fracture my DS had. The type of fracture can show if it is likely to have been caused by an accidental or non-accidental injury.

DS's injury was obviously an accident but I felt terrible that I wasn't in the room when it happened & I didn't realise he was hurt. The questioning I got from the hospital was upsetting but I understood why they had to ask.

In this case, the nursery do need to answer questions. It sounds like they saw your DS fall but they didn't tell you what happened. They didn't notice that he was pale and irritable from then on - or if they did notice, they didn't tell you or do anything about it.

When parents are routinely questioned for safeguarding reasons about the possibility of a 'non accidental injury' surely nursery staff should be questioned in the same way, for the same reasons?