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Wrongful Death of Children: What to Do After a Child Dies Under Care


When you allow someone else to care for your child, you put a lot of trust in them. You should be confident that the people responsible for caring for your child will keep them safe, notify you if anything goes wrong, and ensure your child gets immediate medical attention if necessary. That’s the bare minimum most parents expect from professionals like teachers, daycare workers, and other childcare professionals.

Tragically, some childcare workers and facilities don’t meet those expectations, even when medical issues are common. For example, in 2021, a minor detained at the San Diego Juvenile Hall died of a fentanyl overdose days after being brought to the facility. The teenager was enrolled in the facility’s drug abuse counseling program and had already obtained fentanyl and suffered a moderate, non-fatal overdose once while he was there. If anyone should have been under close observation for medical concerns, it was him. 

However, on September 8th, 2021, he was found dead in his cell, having once again overdosed. No staff noticed his distress overnight, nor did they prevent him from acquiring the drug in the first place. The facility had not notified the teen’s family of his previous overdose, either. 

This kind of negligence is unacceptable for any facility or professional responsible for overseeing children. Unfortunately, similar stories play out every day. Daycare workers ignore their charges, teachers dismiss students’ medical needs, and children die because of it. 

When this happens, parents may have grounds to hold the negligent parties accountable through a wrongful death of a child lawsuit. Here’s how these lawsuits work and how to file your own. 

What Is the Duty of Care for Childcare Workers?

A wrongful death lawsuit is separate from criminal charges against a negligent worker. These lawsuits allow parents to seek financial compensation for the loss of their children rather than criminal penalties. As such, wrongful death and other negligence claims don’t rely on whether any law was broken but instead on whether four factors are present:

  • Did the defendant have a duty of care toward the child?
  • Did they breach that duty of care?
  • Were children harmed?
  • Was that harm caused by the breach of the duty of care?

If all four factors are present, then the defendant is found liable for the harm they’ve caused. 

In wrongful death cases involving adults, proving a duty of care is one of the most demanding parts of the case. However, when the victim is a child, this is easier. When parents enroll their children in school, daycare, or other activities, a contract is almost always involved. Even if there is no physical contract, agreeing to watch your child is often enough to establish this duty. 

Negligent Supervision in California Wrongful Death Claims

Once someone has agreed to care for your children, they are responsible for giving reasonable consideration to their needs. This means that they must consider your child’s needs and abilities to determine how much supervision they need given the circumstances. 

For example, toddlers typically need more supervision than teenagers, but not always. Childcare workers must use their best judgment to determine how much is necessary for a given situation. The tragic fentanyl death of the juvenile detainee could likely have been prevented if employees at the facility had taken the reasonable step of supervising him more closely. 

When a facility or professional that cares for children fails to make a reasonable judgment, they may commit negligent supervision. Common examples of this include:

  • Failing to appropriately care for a sick or injured child, such as refusing to call 911 for a child experiencing anaphylaxis.
  • Enabling a child to use or operate items and equipment unsuitable for their age, such as allowing a five-year-old to hold a loaded gun or drive a vehicle.
  • Failing to respond to threats in the child’s surroundings, such as traffic, open windows, or bodies of water.

If a child is hurt or killed due to negligent supervision, their parents may have a cause of action against the caretaker and facility responsible. For example, if a careless daycare worker fails to notice your child’s anaphylactic reaction, you may be able to take legal action against both the employee and the daycare itself. 

How to File a Wrongful Death Lawsuit Against Negligent Caretakers

While a wrongful death lawsuit cannot bring your child back, it can help you ensure no parents suffers the same way. You can seek compensation for your financial losses, raise awareness of the misconduct, and demonstrate to the facility that negligent supervision will not be ignored. 

You’ll work closely with a personal injury attorney to file your lawsuit. Your attorney will help you:

  • Determine whether you have a strong case
  • Identify potentially liable parties
  • Determine what damages you may be eligible to pursue
  • Submit your complaint to the court and notify the defendants
  • Represent you in court and settlement negotiations

If your lawsuit is successful, you may be able to receive compensation for losses such as medical bills incurred by the event, funeral expenses, and your child’s potential lifetime income. In specific situations, you may also be able to pursue punitive damages for wrongful deaths in California. These damages are an important deterrent against neglect and abuse by any facility caring for children.

Contact Ellis Helm, APC, to Explore Your Options

The death of a child is tragic. If you have lost your child due to someone’s negligence or carelessness, you may be able to pursue a wrongful death claim. At Ellis Helm, APC, we understand the deep grief you’re experiencing. We’re prepared to provide empathetic, diligent legal counsel during this trying time as you take action against the parties that failed your child. Learn more about how we can assist with wrongful death lawsuits by contacting our San Diego personal injury film today.