What to do if my son has been diagnosed with herpes gladiatorum from wrestling at high school?

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What to do if my son has been diagnosed with herpes gladiatorum from wrestling at high school?

I have complained several times about the mats not being cleaned after matches. This is something he will have in his body the rest of his life. Do I have grounds to sue the school district on his behalf?

Asked on December 27, 2013 under Personal Injury, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

You may be able to sue. The key issues are:

1) Did the school clean the mats reasonably well and/or to the same standard or in the same way/cleaning schedule that other, reasonable high schools would? This goes to liability; if the school did what would reasonably be expected of it, such as by following recommended practices in this regard, they would not be liable. The law does not expect persons or institutions to be perfect or to take extreme precaustions--just to do what is reasonable.

2) Also going to liability--can you establish, at least to a "preponderance of the evidence" (that is, that it is "more likely than not") that your son contracted the disease from the mats? You have to be able to show a causal link.

Assuming that the school did not keep the mats reasonably clean and you can show the causal link, you should be able to establish liability, or an obligation to pay. Then the question next becomes how much they may have to pay, which will be a function of medical costs, to date and future, and impact on life.

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

Prior to filing a lawsuit against the school district, it may be possible to settle the case with the school district's insurance carrier.

When your son completes his medical treatment and is released by the doctor or is declared by the doctor to be permanent and stationary which means having reached a point in his medical treatment where no further improvement is anticipated, obtain his medical bills and medical reports.  Your son's personal injury claim filed with the school district's insurance carrier should include these items (medical bills and medical reports).

Compensation for the medical bills is straight reimbursement.  The medical reports will document the nature and extent of his injury and will be used to determine compensation for pain and suffering, which is an amount in addition to the medical bills.  An estimate of the cost of future medical treatment discounted to present value should also be included and should be in the medical report.

If your son's case is settled with the school district's insurance carrier, NO lawsuit is filed.

If you are dissatisfied with settlement offers from the school district's insurance carrier, reject the settleent offers and file a lawsuit for negligence against the school district on behalf of your son.  You will need to be appointed guardian ad litem to file a lawsuit on behalf of your son because he is a minor and as a minor, he cannot file a lawsuit himself.

If the case is NOT settled with the school district's insurance carrier, your son's lawsuit for negligence against the school district must be filed prior to the expiration of the applicable statute of limitations or your son will lose his rights forever in the matter.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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