Girl with juvenile arthritis ('s daughter, Jackie) wins suit

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Slip-and-fall case costly for state - Girl with juvenile arthritis wins suit

http://www.mauinews.com/page/content.detail/id/522600.html

WAILUKU - A 2nd Circuit Court judge has ordered the state to pay a former

Maui girl and her mother more than $887,000, ruling the state was liable

because public school officials failed to properly supervise the girl, who

suffers from juvenile arthritis.

Although officials at Haiku Elementary School knew about the girl's

condition and had a plan to get her safely in and out of the school

cafeteria, they nevertheless failed to follow the plan five years ago when a

substitute teacher released the girl for lunch. The girl then slipped on a

wet floor in the cafeteria and broke her right femur, leading the girl's

mother to sue the state.

Judge August issued his decision last week in the nonjury trial,

awarding " Jackie " Bergill-Gentile, who was 7 years old at the

time of the incident, $787,397 for her past and future medical expenses as

well as other economic damages, according to court records. Her mother,

Bergill-Gentile, who filed the suit on behalf of her daughter,

received $100,000 for emotional distress.

The initial suit was filed against the state Department of Education on

March 7, 2006.

The Bergill-Gentiles' attorney, Ferrer, said in an e-mail that his

clients are pleased that the matter has been resolved.

" It has been a long, five-year battle for justice. They are hopeful that

this matter can now be concluded so that Jackie can receive the necessary

funds for her care and treatment, as she didn't have any medical insurance

at the time of the accident or since. The funds are needed for her urgent

care, " said Ferrer, a Wailuku attorney with Alston Hunt Floyd & Ing.

A state attorney general who handled the case could not be reached for

comment Thursday. A request for comment left with a Department of Education

spokesperson, who said normally comments about lawsuits are referred to

state attorneys, was not returned Thursday afternoon.

In August's findings of fact and conclusions of law, the judge said that

before the accident, Jackie - who suffers from juvenile rheumatoid

arthritis - could ride a horse with someone walking alongside her and also

could play hide-and-seek and jump on a trampoline. A photo provided by

Ferrer shows Jackie now in a wheelchair. Court records say she has not been

able to walk since the incident.

Ferrer said a child without Jackie's disease would have healed in two to

three months, but a child with it takes longer to heal. Also, it's uncertain

whether Jackie's injury will heal. He said the arthritis also results in

osteoporosis, a condition that results in weak, brittle bones.

According to court records, Jackie, 12, now lives with her mother and

sisters in Texas. The civil trial was held over several days from January

through May.

According to the lawsuit, Jackie was a 2nd-grader at Haiku Elementary School

on May 21, 2004, when the incident occurred.

School personnel, knowing Jackie had juvenile rheumatoid arthritis, had a

plan for Jackie to get to the cafeteria before other children to avoid the

crowds and possible injury, court documents show.

But on May 21, 2004, when the girl's class was supervised by a substitute

teacher, Jackie was not allowed to go to lunch early and went to the

cafeteria with her classmates. In the cafeteria, Jackie was pushed, and she

slipped and fell on a wet substance on the cafeteria floor.

She suffered a severe displaced fracture of her right femur and underwent

surgery, court records show.

As a result, she lost 50 percent of her bone density in her right femur and

has not been able to walk. She is disabled permanently, according to court

records.