After kindergartner’s horrific injury, a $4.5 million judgment against the ASD

April 05--On the afternoon of May 8, 2009, a Rogers Park Elementary kindergartner hugged his teacher goodbye and darted off to his mother, who stood on the sidewalk waiting for him.

Court filings would later note that the 6-year-old was excited because he carried a decorated wooden spoon and card, hidden in a paper bag, a surprise gift for Mother's Day.

As the boy ran to his mom, he tripped and fell.

The same thing happens on hundreds of playgrounds all over the city every day. Tears and scraped knees are usually the only consequences.

But the boy landed face first in what had been a clump of pine shrubs. Stumps and saplings poked up a few inches from the ground. They may as well have been bayonets.

One of the sticks penetrated the child's eye socket, jabbing the frontal lobe of his brain.

The split-second fall left N.M. (who the Daily News is identifying only by his initials at the request of his family) with macabre injuries that have permanently altered his life.

Ultimately, the fall became the subject of a lawsuit against the Anchorage School District. N.M.'s family claimed the district was negligent in allowing the stumps to remain on a path trafficked heavily by small children.

On Feb. 26, Anchorage Superior Court Judge Sen Tan found the district negligent in the case and liable for $4.5 million in damages to N.M., plus additional money for emotional distress suffered by his parents.

The decision is the largest civil judgment ever against the Anchorage School District.

A SIMPLE FALL

The boy's mother watched him go down.

When she reached him seconds later, he was motionless and face down in the middle of the stumps, a later account by a pediatric neurologist consulted by the family said.

"When she started to help (N.M.) to a standing position he put out his hands as if to help himself being lifted but also screamed aloud," the neurologist's report said. "It was then, quite promptly, that blood under pressure spurt out . . . from his right eye where apparently a penetrating injury had occurred as a result of one of these sticks/stumps."

During the ambulance ride, the boy went limp and silent, the report said. Later, at Providence Alaska Medical Center, it became clear that a stick had entered his eye socket, somehow sparing the eyeball but penetrating his brain, according to an examination file.

In the hospital, N.M. was medicated into a coma. Doctors warned the family that his injuries were devastating and the prognosis grim.

Four days into his hospitalization, N.M. regained consciousness. His first words, according to the neurologist's report, were "thank you."

A COMPLICATED INJURY

When the family returned home, the consequences of the brain injury began to reveal themselves.

Reports complied by medical experts detail the many complications: The injury had damaged the frontal lobe of the brain, the hippocampus and the hypothalamus, the part of the brain that regulates hunger and appetite, the circadian rhythm of sleep, body temperature regulation and even the onset of puberty.

As a result, N.M. felt constantly hungry, no matter how much he ate. Food became a consuming obsession.

"He would get up in the middle of the night and eat anything," the neurologist's report said.

Plain sugar. Packets of Splenda. Food from the garbage. His parents first tried using a bungee cord to keep the refrigerator off limits from nighttime expeditions, the doctor noted. When that didn't work, they padlocked it.

In the six months after the accident, the boy's weight nearly doubled, from 57 pounds to 110 pounds.

Once, he escaped from the house in -5 degree weather to walk to a convenience store for food.

But the condition of hyperphagia, or inability to regulate appetite, was not the only effect of N.M.'s injury. His body temperature began to fluctuate, spiking with fevers up to 104 degrees -- again and again.

He developed narcolepsy, a brain disorder characterized by the sudden, overwhelming need to sleep. A dangerous sleep apnea erupted, a side effect of his obesity. He also had trouble with memory. N.M. remembered things that happened before the accident, but his damaged brain had a hard time forming new memories.

"He can learn something today and have no recollection of it tomorrow," one specialist's report found.

The formerly imaginative, playful boy who memorized karate moves and read at a third- to fourth-grade level in his highly gifted kindergarten class became focused on rigid routines and needed to be consumed with tasks at all times, his doctors noted. He no longer related to his friends or played freely outdoors. Instead, he started to spend much of his time rendering meticulous, repetitive drawings of geometric patterns.

N.M. recognized the changes in himself.

"Hits himself and calls himself 'stupid,' 'crazy,' 'retarded,' wrote an expert hired to analyze his potential. "Moderate obsessive-compulsive disorder. Organizes markers over and over by color, tip size and how much ink is left."

RISK MANAGEMENT

The Anchorage School district is charged with the care of about 49,000 students each school day. Some 7,500 people work at more than 100 school district properties across the city. The district owns the biggest fleet of public buildings and vehicles in the state. All told, about 19 percent of the residents of Anchorage attend school or work for the district.

In an operation of that size and scope, lawsuits are inevitable, Mary Susan Lee, the district's risk manager, says. The risk management department's job is twofold: First, it formulates policies and procedures to make the district as safe as possible for the people who use it. Second, it works to limit the district's exposure to financial risk when things go wrong.

In any lawsuit, the district is responsible for the first $1 million in damages; insurance covers the balance. The money comes directly out of the district's general fund, the same pot that pays for teachers and textbooks.

"Essentially it's the school district's checkbook," Lee said.

When the district is sued, it must make a business decision whether to settle the lawsuit or fight it in court, said Howard Trickey, a lawyer with the Anchorage firm Jermain Dunnagan & Owens, which has represented the district in lawsuits for more than 30 years.

Since 2000, the district has defended itself against 575 claims of liability, according to data from the risk management office. Not all claims reach the lawsuit stage. In that time, the district paid claimants a total of $7,938,152 directly from its own coffers.

Some of that money was awarded by a judge or jury. Some was offered by the district as part of an out-of-court settlement. The district does not always see itself as at fault in the cases it settles, Trickey said.

In lawsuits where more than $1 million is at stake, the district's insurers can force a settlement to limit the potential of a jury or judge awarding a huge dollar figure.

That's what happened the last time the district paid a multi-million-dollar settlement to a family.

In 1998, a Central Middle School student -- a boy who excelled at science and had earned a pilot's license by the age of 14 -- tried to hang himself one Saturday morning at home, according to Daily News reports from the time. Paramedics restarted his breathing through CPR. But the boy had suffered "extensive and irreversible brain damage." Years later, he wore diapers and was fed through a tube. His father walked his wheelchair for an hour each night around the University Center, to get him out of the house.

His parents sued in 2000, saying the boy had been driven to attempt suicide by relentless bullying at Central Middle School. Teachers and administrators, they said, did nothing to stop it.

In 2004, the district settled out of court for $4.5 million.

"That case, if it had been left to the district, probably wouldn't have settled," Trickey said. "We didn't think there was a liability on behalf of the district."

In another widely publicized 2006 case, the district settled with the family of a first-grader who was sexually assaulted in the bathroom of an Anchorage elementary school by another first grader for $110,000 and 10 years of counseling.

Past lawsuits have led to changes in school-level practices, Lee said. In the sexual assault case, the school instituted new procedures around tracking students as they visited the bathroom. But Trickey and Lee said they could not recall a time when a district-wide policy had been changed as the direct result of a lawsuit.

ONGOING CASES

Today, at least 10 lawsuits against the district are winding their way through the legal system. Some are little more than angry gestures against perceived injustices: for example, a father's one-page, hand-scrawled complaint that his daughter was disciplined at school for sending a threatening text message to another student. He doesn't ask for money. "I do not agree with the punishment!" the lawsuit says.

Others, like the case of Alexa Stewart vs. The Anchorage School District, have the potential to cost the district.

Stewart was a Service High School student who, in 2010, suffered a head injury after slamming into a concrete pillar while catching a pass at a flag-football practice in the school cafeteria. A coach threw the pass. The case is scheduled to go to trial in February.

"The coach that threw this pass I'm sure didn't want anybody to be hurt. He's not a bad human being. But you throw a ball for a kid, they're going to try and catch it," Stewart's attorney, Michael Schneider, said. "If you're doing that where there are a bunch of unguarded concrete pillars, we would argue that's unreasonable."

The plaintiff in one lawsuit is Lory Miebs, who in 2009 was stabbed 29 times by her ex-boyfriend, a fellow student named Nicholas Chamberlain, in the woods behind Service High School. He lured her there with the promise of a silver ring. Miebs is suing entities including the district and the Alaska Department of Education for what she says is negligence in failing to warn her of the danger posed by Chamberlain.

In one suit, an Anchorage attorney claims she was injured while walking down icy steps after a performance of Ebenezer at the West High Auditorium in 2012. Another man says he was hurt after an auto accident with a school bus. In that case, the district contends in court filings, the plaintiff was high on methadone and other prescription drugs and behind the wheel at the time of the accident.

The district spends about $1 million a year on legal services of all kinds, according to district spokeswoman Heidi Embley. About a third of those fees go toward litigating claims related to student special education plans, she said. Those cases are usually settled in administrative hearings out of court, and rarely go to trial.

AWFUL THINGS HAPPEN

Everyone involved agrees that the case of a gifted kindergartner being impaled on a stick and brain damaged for life is horrific and rare.

But was it avoidable? Did the Anchorage School District do all it could to keep N.M. safe? And just where does the district's responsibility for the safety of its users begin and end?

Trickey wouldn't comment on the specifics of the N.M. case because a final judgment is pending and could be appealed.

"We recognize in defending the case that he suffered a very severe injury and that he would have lifelong medical needs," Trickey said.

When contacted by the Daily News, the attorney for the plaintiffs, Jim Brennan of the Anchorage law firm Hedland, Brennan & Heideman, said he wouldn't comment because of the possibility of an appeal.

The district says it does everything in its power to keep children safe.

"Obviously these cases that go to court are tragic cases," Embley said.

But on occasion, awful things happen anyway.

"Occasionally, these freak sort of accidents will happen," Lee said. "We try our best to prevent things from happening. But there's always that human factor that the ASD cannot always control."

"Can you really stop everything?" Embley asked.

Trickey maintains that there will never be another case like N.M.'s. "I would say the injuries were so unique and unforeseeable that I don't believe you'd ever see another accident like that again."

After 30 years of defending the district in court, Trickey said, he's as convinced as ever that schools are among the safest places in the community. The number of suits the district faces, he said, is relatively small -- considering the tens of thousands of children who run, walk, experience adolescence, take chemistry classes, play football, eat meals, swallow medicine and ride buses in its care Monday through Friday.

THE N.M. CASE

In July of 2013, more than four years after the original injury, N.M.'s lawsuit came to trial, in part because each side maintained wildly varying ideas about the dollar amount of damages. The case was tried before a judge, not a jury.

The family asked for $25 million, for future medical care, loss of earning potential, pain and suffering and "loss of consortium," with N.M. -- a cold, legal way of saying their child had been forever changed by the accident.

At issue were several legal questions: Was ASD groundskeeping to blame for N.M.'s fall and injury? Or was the fall simply a freak accident that could have never been avoided? How would the boy's baffling, singular brain injury play out over the course of his lifetime? Would he ever be able to live independently? Would he hold a job?

A "life care planner" hired by his parents to estimate his needs did not think so.

"N.M. will never live independently as an adult," she wrote in report filed with the court in 2012. "He will require 24-hour supervision and care throughout his life . . ."

The trial lasted six weeks. N.M. testified. Exhibits included the precise, geometric drawings the boy had become obsessed with creating.

An army of specialists testified. Experts called to the stand included a pediatric endocrinologist, a neuro-psychiatrist, neurologist, psychiatrist, economist, national safety expert, vocational rehabilitation specialist and an arborist.

"It was an extremely expensive case to defend," said Lee, the district risk manager.

By early 2014, the boy's calamitous fall had metastasized into a series of legal files more than a foot tall.

On Feb. 26, Judge Tan released his initial finding of facts. He concluded that the district was negligent in leaving exposed stumps on the grounds of Rogers Park Elementary and that "ASD's negligence was a substantial factor in causing N.M.'s injuries."

He noted that the family and the school district presented very different visions of N.M.'s future. The district's medical experts testified that the brain plasticity of a 6-year-old meant N.M. could recover significantly in the future. The plaintiff's experts felt the boy would need a "mom for life" and would never work or live independently.

"This court disagrees and sees a much fuller, richer life for (N.M.), with great potential for change, for happiness, for success," Tan wrote.

He awarded N.M. $4.5 million, plus an additional $180,000 to the family for pain and suffering. Some of the money for N.M.'s future medical expenses must be reduced to present-day value, the judge ordered.

The judgment will be finalized sometime in the next month, according to Trickey.

The day after the judge's ruling, the boy's father took to Twitter. It had now been almost five years since the fall.

His son, a kindergartner on the afternoon of the accident, was now nearing very different teenage years than he once expected.

"Anchorage School District employees proven negligent, liars and liable in court," the father wrote. "Burn in hell for destroying my child's life."

Despite the years and thousands of pages of medical analyses and legal opinions devoted to explaining what happened to his son, some things will never make sense.

Reach Michelle Theriault Boots at mtheriault@adn.com or 257-4344.

___

(c)2014 the Anchorage Daily News (Anchorage, Alaska)

Visit the Anchorage Daily News (Anchorage, Alaska) at www.adn.com

Distributed by MCT Information Services