Articles Posted in Injuries to Minors

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Just seven months ago the governor signed a new law designed to improve safety at daycare facilities around Oregon. Yet shortly after New Year’s “Oregon child care regulators imposed first-of-their-kind restrictions… on a Hillsboro day care where an infant died January 6,” according to reporting by The Oregonian. Calling the facility a “serious danger to the health and safety of children… regulators ordered the 24/7 provider to watch over children who are asleep at all times and to increase staffing beyond the baseline required by law.” The facility will also have to stop accepting children under the age of two.

These are the first penalties imposed under the new law, so one might look at them as a sign that the new measures are working. Yet the fact that they were only imposed after a child had died should be cause for concern throughout Oregon. Abuse and neglect are subject to mandatory reporting requirements for many occupations in our state, including anyone working at a daycare center. If the violations of state law were this serious one has to wonder why they were never reported in the days and weeks before the baby died, and also why it took the state more than two weeks after the baby’s death to sanction the center.

Even after penalties have been imposed by the state a tragedy such as this should prompt the bereaved family to consider what remedies the court system can offer. In civil law there are a number of potential ways to probe more deeply into what happened in Hillsboro and to consider who should be held accountable. These could include a wrongful death action under ORS 30.020. The problems identified by the state in sanctioning the daycare center on their face make a case for a claim under ORS 163.545 (Child Neglect in the Second Degree).

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A recent article in the Salem Statesman-Journal draws attention to infant deaths, an area where decades of government and private education efforts have both shown dramatic progress and encountered stubborn resistance.

The paper notes that “every year, about 40 babies in Oregon go to sleep and never wake up… deaths can be traced to negligence, substance abuse and unsafe sleep practices. But deaths from dangerous sleeping arrangements – one of the leading causes of infant mortality in Oregon – are preventable.”

The good news is that compared to the rest of the nation Oregon’s infant death rate is relatively low. A chart on the Centers for Disease Control’s (CDC) website (see link below) places both Oregon and Washington in the second-lowest tier for infant deaths nationwide, between 72.1 and 86.8 per 100,000 live births from 2013 to 2017. That puts both states below the national average of 100.5 per 100,000 (the lowest rates are in Vermont and Washington DC, both at 37.4; Alabama had the highest rate at 189.2)

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I first used this space to talk about the importance of life jackets and water safety back in 2016. That’s when a charity I actively support – the Aaron Peters Water Safety fund – set up a free life jacket kiosk in Gresham’s Oxbow Park, near the Sandy River. The fund is named for a 13-year-old boy who drowned in the Sandy River in 2015. It seeks to prevent similar tragedies by making life vests easily available for free to anyone wanting or needing to borrow one.

Sadly, The Oregonian, this week, brings word of another tragedy on the river. The newspaper reports that “the body of a 15-year-old boy who disappeared while wading… in the Sandy River at Oxbow Regional Park was recovered” on Monday. The paper quotes a spokesman for the Gresham fire department who “said the teen was wading in about knee-deep water when he went under at a drop-off in the river.”

This tragedy is a reminder on several levels of just how easily and how quickly something can go wrong around the water. The fact that the victim was not a small child but, rather a teenager, and that the fatal accident began in water that was only knee-deep are troubling reminders that even situations that seem simple and safe can quickly turn deadly. It is especially tragic that the accident took place close to an Aaron Peters Fund safety kiosk. As the TV station KGW noted in a report (see link below) the kiosk is still in place and is being properly maintained and stocked.

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A tragedy and a near-tragedy on the other side of the country offer important reminders of a problem that recurs every summer: hot car deaths.

According to The New York Times twin one-year-olds died in the Bronx late last month after their father forgot to drop them off at day care. They were left in the backseat of his car while he worked an entire eight hour shift at a VA hospital. A few days later an off-duty firefighter in the neighboring New York City borough of Queens saved a four-year-old boy by smashing the window of a car in a shopping center parking lot.

According to the website Gothamist, the father in the latter incident later told police that he had only been inside the store for fifteen minutes. That highlights one of the key issues with hot car deaths – something that we all cannot be reminded about too many times: “A car can heat up 19 degrees in just 10 minutes. And cracking a window doesn’t help,” as the website SafeKids notes. Younger children, such as the twins in the Bronx, are at particular risk because “their bodies heat up three to five times faster than an adult’s.”

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Just after the Memorial Day holiday weekend, Governor Kate Brown signed HB 2027. This essential legislation has been making its way through the legislature since the beginning of the year, and goes a long way toward closing a legal gap I first wrote about last November.

As The Oregonian notes, quoting one of the bill’s sponsors, this “will give the Office of Child Care the tools to gather information, inspect facilities and hold providers accountable for meeting the highest standards of safety and quality care for children.” Specifically, the new law will strengthen oversight of the day care industry by giving the state Office of Child Care the authority “to issue subpoenas, take depositions, compel witness statements and require the disclosure of records during investigations,” according to the newspaper.

Perhaps even more importantly, it also prevents child care givers who face suspension proceedings from working in the industry.

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A shooting incident earlier this month at a teen-focused dance party is raising serious questions about safety and security as we move into summer – a time when the number of youth-focused events always increases.

As outlined in a recent Oregonian article, an argument outside an art space on southeast Madison Street that doubles as a dance club led to a shooting that injured five people, among them a 17-year-old girl. The paper reports that “a man standing outside the warehouse at the corner of Madison and Third Avenue fired at least two shots into the open garage bay and someone fired back at least five shots from inside.” Organizers say “about 200” people were inside the dance venue at the time for what was billed as the “First Official Teen summer Party.” The warehouse is also occupied by a number of other businesses and despite the late hour the newspapers reporting makes it clear that some of those other offices were also occupied at the time.

There were a number of people around the dance venue wearing t-shirts marked ‘Security’ but it is unclear what, if anything, they were doing. Citing police reporting, the newspaper writes that “officers responding to the original call encountered a chaotic scene, with people leaving on foot and in vehicles.”

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An incident last summer at a Corvallis athletic club reads like every parent’s nightmare in condensed form. According to a recent article in The Oregonian “the parents of a 5-year-old boy who drowned in a swimming pool at a Corvallis summer camp have filed a $56.6 million lawsuit, claiming the camp didn’t have a lifeguard on duty who might have seen the boy struggling for life over four minutes last summer.”

According to the newspaper the boy went down a waterslide unattended. He was not wearing a life vest, despite his parents having explicitly told the camp that their son would need a flotation device whenever in the water because he cannot swim. The paper reports that he gasped for air and bobbed up and down dozens of times as he struggled. Several camp staff walked past and did not appear to notice. It was only after he was motionless, face-down in the water that anyone tried to save him. From the paper’s account even these efforts leave many questions. Notably, “one staff member pushed an 8-year-old child who was holding onto the side of the pool toward the middle of the pool and urged the child to grab” the drowning boy.

The Oregonian did not detail the exact nature of the family’s lawsuit, though it is fair to infer that an Oregon wrongful death claim under ORS 30.020 is involved. In addition to the athletic club at which the boy was enrolled in a children’s summer day camp, the suit also names several club employees as well as the Oregon Health Authority and Benton County Environmental Health “saying the agencies were responsible for licensing or inspecting swimming pools.”

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Following up on my recent blog about the dangers in Oregon’s system of uninsured and underinsured motorist coverage an incident on Interstate-5 near Olympia, Washington is bringing similar issues into focus north of the Columbia River.

According to The Olympian an arraignment is scheduled to take place next week for a man “whose vehicle crashed into a 16-year-old Oregon girl” killing her and injuring both the driver himself and two other people. The 40-year-old man from Poulsbo, Washington faces vehicular homicide charges “as well as four counts of reckless endangerment.”

The newspaper reports that the accident took place when one car, which multiple witnesses described as driving erratically, hit two other cars that were stopped in a breakdown lane and waiting for assistance. The 16-year-old who had been driving one of those cars was killed in the accident and her mother was seriously injured. Two other people – the girl’s uncle and brother – were not injured. Also injured was the driver of the erratic car along with his 8-year-old daughter.

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Last month I wrote about the problems plaguing Portland’s Unity Center for Behavioral Health.  According to The Oregonian, serious reports of neglect and abuse began to emerge almost as soon as the facility opened in 2017. In short order there was evidence of at least 16 incidents that ought to have been reported to police but were not. Now, only a few weeks later, the center is in the news again, with the paper reporting that its director has stepped down. “Legacy Health, which operates Unity, gave no explanation for her departure… although she will stay on as an advisory member of the Unity Board of Managers.”

As the paper outlines, “within the first month of opening, Unity staff reported instances of neglect and abuse within the facility. A federal and state investigation, started in spring 2018, eventually found that staff were poorly trained and underworked.” This, at what was routinely described as one of the state’s premier mental health facilities.

This incident raises serious questions about Oregon’s regulation and oversight of health care facilities. I have been covering the issue in this blog for several years and, more importantly, it has been the subject of some excellent investigative reporting by a number of Oregon media outlets. It is worth asking, however, why these issues never seem to go away. The mandatory reporting obligations of almost all staff members and even many of the people simply passing through a facility like Unity (medical or law enforcement professionals who might visit, for example) ought to offer strong protection for patients but, clearly, they do not (see links below for more information on mandatory reporting as well as the numbers to call to report abuse and neglect). This is where Oregon’s civil and criminal laws enter the picture. They are designed to prevent abuse in nursing homes, mental care centers and similar facilities.

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This week The Oregonian carried the extraordinary story of a man who “was arraigned on 34 charges for allegedly recording colleagues at the Banana Republic Factory Store” on NE Cascades Parkway near the Portland airport. The 34-year-old allegedly placed hidden cameras in the women’s restroom at the store and recorded video of dozens of partially naked women, including children.

What is especially shocking is the revelation that the man had faced similar allegations at his previous job as a pharmacist with Kaiser Permanente. Last month the suspect “was arraigned on 71 similar charges for allegedly recording 51 men and women using the unisex bathrooms and changing rooms at the Kaiser Permanente facility” on Portland’s Northeast 138thAvenue. The man was fired after another employee “found a camera” in one of the bathrooms.

The article notes that some of the employees from the Banana Republic store are considering a civil suit. Two areas bear particularly close examination. First, there is the question of whether the Banana Republic store did everything it could to prevent this man, or anyone else, from invading employees’ privacy by installing secret cameras in the restroom. We need to know more about the nature of the cameras, where they were positioned, how they operated and how long they were in place. Most importantly, we need to consider what the store could have done to prevent this and other forms of employee misconduct. The U.S. Department of Labor’s website on workplace health and safety (see link below) lays out the standards all employers are expected to uphold. Difficult questions clearly need to be asked about how the store managed to get itself into this position in the first place.

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50 SW Pine St 3rd Floor Portland, OR 97204 Telephone: (503) 226-3844 Fax: (503) 943-6670 Email: matthew@mdkaplanlaw.com
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