A Shelbyville man has submitted a tort claim to the Indiana Attorney General, indicating his intention to file a wrongful death lawsuit against the state’s Department of Child Services (DCS) over the death of his one year-old son. He alleges that DCS ignored warnings that the child’s mother and her boyfriend were abusing the child, and that the agency’s failure to intervene and protect the child contributed to his death. The man also notified the hospital that treated his son of his intent to file a medical negligence lawsuit.
According to Jerraco Noel, he reported the abuse of his son, Jayden, to DCS in July 2011. Jayden was treated in the emergency room of Major Hospital in Shelbyville on July 15, 2011 for injuries resulting from abuse by his mother and her boyfriend. DCS reportedly found Noel’s claims at the time “unsubstantiated.” Jayden died on January 18, 2012 from “multiple blunt-force traumatic injuries to the head.” Prosecutors have charged the mother and her boyfriend with neglect of a dependent causing death. Both have pleaded not guilty.
Noel claims that DCS “failed to conduct a reasonable investigation” after he reported his suspicions of abuse. He also alleges that the agency failed to consult with any of the medical professionals who treated Jayden, and that those medical professionals failed to report the injuries to DCS. He is demanding $700,000, the maximum amount of damages allowed by statute from DCS, for “loss of love and affection.”
Claims against DCS, or any other governmental agency, are subject to the legal doctrine of sovereign immunity. This is based on the common law principle that the government cannot be sued in its own courts unless it consents to suit. State statutes establish procedures for notifying the government of personal injury claims before filing suit. Noel’s notice to DCS fulfills his notice obligation. DCS can agree to settle his claim, or it can deny the claim. In that event, Noel may file a lawsuit against DCS.
Noel’s claims against DCS, the hospital, and the emergency room physician who treated Jayden in July 2011 essentially allege that they breached their duties to protect the child from harm. DCS has a duty to investigate and intervene in cases of child abuse, while the doctor and hospital have a duty to report suspected child abuse to law enforcement or DCS. According to the Indianapolis Star, a judge in Marion County harshly criticized the emergency room doctor’s failure to report the child’s injuries.
Indiana law allows a parent, in a suit for the wrongful death of a child, to recover damages for medical and funeral expenses, “loss of the child’s services,” and “loss of the child’s love and companionship.” The difficulty may be in proving that the alleged breaches of duty caused the child’s death, particularly against DCS. The Star reports that DCS received around one hundred notices of tort claims between 2006 and 2010. Of the claims that DCS denied, only twenty claimants filed lawsuits, and only three led to settlements for a cumulative amount of $297,000. A 2008 claim against a hospital, citing facts similar to Noel’s, resulted in a $400,000 jury verdict, according to the Star.
The attorneys at Parr Richey Obremskey Frandsen & Patterson represent the interests of Indiana medical malpractice victims and their families, helping them to obtain compensation for their damages. To schedule a free and confidential consultation with one of our lawyers, contact us today online or at (888) 532-7766.
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