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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 90238
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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HelloMy son tragically died at a nursery on 26th June 13.

Resolved Question:

Hello My son tragically died at a nursery on 26th June 13. The baby was 6 months old and did not have any health related problem when we sent him to the nursery. A post mortem was conducted and the report by General Hospital Kuala Lumpur determined the cause of death as "Chest Infection". We took this information to our baby's doctor and other medically competent friends, who advise us that child could not have died suddenly by having chest infections. We believe the below issues at Taska Matrade (nursery) contributed to death of my son Ahil Malik Mohamed. 1. Emergency Procedures at The Taska a. From the talk of baby sitter we learned that they were not watching the baby all the time and potential early warning of the incident missed due to this. b. No first aid provided to the baby despite noticing baby was not breathing – Patriacia saw the baby sitters panicking and holding the baby on her arms. c. No emergency call was made for an ambulance and baby on very critical condition was transported to General Hospital KL by a passers-by car. d. No senior person at the Taska to provide guidance to baby sitters 2. No operator or manager present at the Taska a. Patricia went to Taska around 11.am and wanted to see the operator or manager in charge – and their reply no one is around 3. Postmortem report a. After the postmortem the doctor informed us the cause of death of the baby was “chest infections” b. We discussed with baby Doctor Nasir from Ampang Puteri and other medical expert colleagues raised doubts about chest infections could cause sudden death. 4. Pengurus Pn Siti was reported an incident of the prior week and promised me that they will rectify the issues. (my correspondences in a separate email) Appreciate your advise. Malik


 


Below is an email communication between the manager of the nursery and my wife Tanty :


 




Date: Sun, 23 Jun 2013 09:15:23 +0800
From: ctshell_a@yahoo.com
Subject: Re: Ahil's Pics
To: tanty_deraman@hotmail.com


 


Dear Puan Tanti,


 


Thank you so much for your understanding. Actually temporary the new staffing giving me a hard time. Its really hard to find local caregiver as their demand are very high and working with these children is very tiring therefore can sometimes causing them not to commit to the job long.


 


Therefore sometimes it takes time to replace the staff.


 


I am happy you told and confronted me about this issue rather than talking behind the back.


 


This was the first and really hope this incident wont happen again.


 


Regards,


Pn Siti


 




From: tanty deraman <tanty_deraman@hotmail.com>
To: shella zainal <ctshell_a@yahoo.com>
Cc: "malik.mohamed@westin.com" <malik.mohamed@westin.com>
Sent: Saturday, 22 June 2013 8:10 AM
Subject: RE: Ahil's Pics


 


Salam.


 


Thank you for your quick response. Maafkan saya kerana menganggu tugasan puan seharian. Saya telah dan sentiasa meletak kepercayaan penuh kepada puan dan pengasuh puan untuk menjaga anak saya dengan baik. 


 


Last Monday when I took him about 4.30 in the afternoon he was sobbing. His checks were all blushing (left and right). When I asked Azie about that, she told me that Ahil was crying when he just woke up and saw nobody was there as she went outside the room for a while. I, that time, was worried and afraid if Ahil had a breathing difficulties because of his stomach sleeping. Since Ahil loves to sleep with his face down he needs someone to look after him as I am afraid of the SIDS. The bruise I saw only on Thursday after bathing him around 6 p.m. Then I believed than the bruise must be related to the Monday's incident and had caused him sobbed that day.


 


Azie is a very loving person and I am glad that she is the one who takes care of Ahil. I never doubt in her capability of handling kids. I had informed her about the bruise yesterday and she had expressed her regret. She also promised to take an extra care of Ahil next time. 


  


The only favor I ask is to inform me should anything happen to the child whether big or small.


 


Semoga perkara ini tidak akan berulang lagi di masa hadapan. Moga ini menjadi panduan dan membuatkan kita lebih sayangkan Ahil and other kids as they deserved.


 


Let us together cherish these little angels from heaven with full of love and compassion.


Regards,


 


Tanty




Date: Fri, 21 Jun 2013 17:00:32 +0800
From: ctshell_a@yahoo.com
Subject: Re: Ahil's Pics
To: tanty_deraman@hotmail.com


Salam,


 


Puan, saya minta maaf bagi pihak pengasuh saya. Setahu saya Azie adalah pekerja paling lama disini dan belum ada lagi complaint tentang dia. Even saya pernah menjaga baby dengan dia dulu beberapa minggu, dan bagi saya dia xda masalah.


 


Sepatutnya memang dia menjaga Ahil dan baby2 lain di bilik baru baby di hadapan. Mungkin baby sikit sangat minggu ni, dia boring jadi dia shifted to the old room where bigger babys are. Most probablyy that is where Ahil got it i think.


 


Ive already confronted her, and she told me that she has already apologizes to u i believed.


 


Anything you may direct to me or at task with my supervisor Noni.


 


Truly sorry for what had happened to Ahil, will try the best to make this thing wont happen again.


 


Hug & Kisses to the little one.


 


Puan Siti.


 




From: tanty deraman <tanty_deraman@hotmail.com>
To: "ctshell_a@yahoo.com" <ctshell_a@yahoo.com>
Cc: "malik.mohamed@westin.com" <malik.mohamed@westin.com>
Sent: Friday, 21 June 2013 2:14 PM
Subject: Ahil's Pics


 


I have attached the pictures of my son.


 


Thank you for your concern.


 


Regards,


 


Tanty

Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

I am so sorry to hear about your little one. It sounds as though there could be a claim for negligence against the daycare and their employees here, however, in order to know for certain you are going to have to get another medical expert to review the post mortem and try to determine the correct cause of death. As long as the current cause of death remains, I am afraid that you cannot win a negligence suit against the daycare for the damages and loss of your child.

In order to have a case here, you have to prove first that the nursery had a duty, which you can prove. Then you have to prove that they were negligent in carrying out that duty failing to watch him and failing to get him help when they noticed distress. Finally, you have to prove that had they not been negligent the child would not have died and this is where you will need the medical expert to review and reclassify the cause of death.





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Also remember, sometimes the law does not support what we want it to support, but that is not the fault of the person answering the question, so please be courteous.

Customer: replied 1 year ago.

Thanks Paul,


 


I see this two fold. 1) Initial findings of the post mortem. which says cause of death as "chest infections" 2) Negligence of the day care center


 


Let me provide little more details here.


 


1) Post mortem finding of chest infection whether correct or not, baby's doctor and other medical expert friends advise me cannot cause immediate death without showing any symptoms.


 


2) Negligence of the day care center - as you can see in the detail we already had an incident of negligence accepted by day care during the prior week which they accepted and promised to rectify. According to the day care center they fed him around 9.00 am and the baby slept and around 11.00am+ they noticed baby having breathing difficulties (have an SMS from day care center supporting this) despite knowing this at around 11-11.15am they 1) did not call an ambulance 2) there was an bystander (Patricia) who saw them holding the baby panicking and not knowing what to do. 3) Did not seem to have conducted any first aid procedures 4) the bystander took the baby with babysitter to the hospital around 12.10+ (per the bystander). The baby was declared dead at 12.15 pm My point is that the they could have saved the baby had they done a proper emergency rescue procedure which from the by stander, SMS, babysitters accounts did not perform.


 


Based on the above do i have a case?


 

Expert:  Law Educator, Esq. replied 1 year ago.
I understand about your post mortem contentions, but right now all you have is opinions of friends and a doctor who is not giving an official opinion upon doing a proper review of the post mortem, which is not sufficient to have a case in court. The court requires a proper expert investigation to disprove the post mortem, so no matter what you do, before you know if you have a case you must have this review of the post mortem done.

The court's rules of evidence state that past acts cannot be used to prove that the current act was negligent. You have to prove negligence on this case independent of the prior acts, that is what the law and the court's require of you.

It SOUNDS like you do have a case, but without that expert report contradicting the post mortem you cannot bring it to court yet. If you can get the expert report, then I would say it sounds like they did breach their duty in not properly supervising and not calling for help immediately depending on whether the expert medical report states that was the cause of the death..
Customer: replied 1 year ago.

Ok. Understood.


 


FYI This particular Day Care Center is associated to governmental organization with high profile government personnel who were present at the hospital and potential power to influence (not too uncommon here in Malaysia).


 


I need to get second opinion on the post mortem finding. The detail report is expected in 2 month time.


 


Few things if you could provide guidance to me


1) what would be the general process of engaging an attorney


2) do you have any local attorney that you could recommend


3) do i get the attorney to talk get the medical review through the court


 


I wish pursue this case to find truth and justice for my son.

Expert:  Law Educator, Esq. replied 1 year ago.
To find an attorney who handles negligence cases I am afraid that you can try the same sites used by other attorneys, http://www.hg.org or http://www.lexmundi.com or you will have to go by word of mouth from people as to which attorneys they have used.

We are forbidden from making any personal referrals by site rules I am afraid.

You have to get the medical review before going to court, the court will not do your investigation for you. I am afraid you have to bring your evidence to the court and the court does not dig up the evidence for you. Thus, you have to find a doctor willing to review your son's post mortem and give an expert opinion I am afraid.
Customer: replied 1 year ago.

Please do not publish this in your website. Please confirm.

Expert:  Law Educator, Esq. replied 1 year ago.
I will ask customer service to lock this question as soon as we are finished. When we are done and you leave feedback to complete the transaction (hopefully excellent service feedback) then I can let customer service lock it at your request.
Customer: replied 1 year ago.

Expert did not satisfactory address all the points raised in the case. But thanks for his input. I have gotten better advise.

Expert:  Law Educator, Esq. replied 1 year ago.
I am terribly sorry Malik but I do not know what I did not address short of telling you that you could run right to court like your non-attorney friends told you. i told you that you had a case and what you need to do to make that case successful to get justice for your son. You did not come back with any other points other than wanting to avoid a medical expert and while I do not make the laws, I know if you show up in court without one the court will dismiss your case and as such I do not appreciate your inappropriate negative comments when I promptly and properly addressed each of your issues.
Expert:  Ely replied 1 year ago.
Hello friend,

My name is XXXXX XXXXX I am another JustAnswer expert. Paul has asked me to review the question here and I must concur with him. Unfortunately, we cannot always state what you wish to hear, and often we get a "shooting the messenger" response from the individual, which is understandable, but, keep in mind that it hurts the expert to be rated negatively for stating the truth.

Paul is a good expert and is one of the most highly respected experts on the site, and he happens to be correct. If he is coming of as brash, he is not, but he tends to be direct and does not mince words. His advice is good advice.

I will now turn the matter back over to him. Best of luck.
Customer: replied 1 year ago.

Thanks Ely,


 


I am sorry that I got emotional to Paul, this is nothing specific Paul and guess it is my state of mind these days.


 


Of course, I will challenge through expert medical advise how a baby can get killed suddenly from chest infection.


 


I was expecting some weighing in of the communication between my wife and nursery manager the prior week and an independent witness who happens to be at the nursery at the time of this ordeal on the procedures.


 


 

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your responding. I am truly sorry for your situation, but you taking your emotions out on me can cause me to lose my position even though I provided you legally correct information and prompt and courteous service, which I am sure you can admit is very unfair given I have not caused your situation. I would greatly appreciate if you would reconsider and leave excellent feedback.

The communications between your wife and the daycare, which you really did not ask anything specific about previously, would be evidence that they feel sorry about what happened. However, there is no really smoking gun admitting to wrongdoing by the daycare, so it would only show that she appreciated you telling her of the issue and she would make sure nothing like that happened again, but there is no admission of doing anything wrong. Thus, the emails would be introduced once you can show that they could have saved your child had they acted promptly to show that they had remorse and would "not let it happen again" and people do not say they would not let something happened again unless something happened (it is circumstantial inference, so it is only part of all of the evidence you would present with your medical report).
Customer: replied 1 year ago.

And what about the witness at the scene. what kind of legal weight does she bring to the case?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

The witness at the scene can testify to the actions or inactions by the daycare personnel and also the appearance or condition of your child at the time. What they cannot testify to is the exact cause of death. The witness would be used to prove what the center did or did not do that they should have done or done differently.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 90238
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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