The following is a sample of some of this summer’s tragic headlines about drowning and near-drowning incidents: "Child drowns in township pool," "3 year old boy drowns in pool," "Coops Save Tot from Near-drowning in Huntington Pool."
News stories often make it sound like a near-drowning is much less serious than a drowning. That is not necessarily so. I have seen near-drowning injuries that were worse than death.
Years ago, when I was still in an insurance defense firm, a lawyer against whom I had tried cases referred me a case involving near drowning of a 19 month old toddler in a condominium pool. The child had wandered away from the family’s patio while her mom was attending to an infant sibling, and was able to open the defective gate to the pool enclosure. She was found floating near a ball in the closed pool.
Near drowning causes anoxic brain injury due to loss of oxygen to the brain. The degree of severity can vary tremendously.
This child was in a chronic vegetative state. She looked great. In fact, she looked a lot like my daughter. Her beautiful blue eyes would track around the room as if she were looking at visitors. But there was no cognitive activity in her brain. It was as if the lights were on but nobody was home. She required 24/7 home nursing and feeding through a tube surgically implanted in her stomach. Her parents and their friends worked incredibly hard to combat contractures in her limbs.
That tragedy could have been prevented if the property management had made sure there was an adequate latch on the pool gate. They had a latch that could be easily opened by a 19 month old child from the outside. We found a former maintenance man who had been fired after he told management they needed to fix the gate. While new construction generally complies with the safety standards and codes for child-proof pool gate latches that we put into evidence, I still see the old style pool gates.
If Georgia residents could appreciate that all pools/spas need adequate barriers and realize the need for constant adult supervision can never be downplayed or rationalized—those tragic drowning and near-drowning headlines we inevitably read about every summer could actually come to an end.
Ken Shigley , who practices in the Atlanta law firm of Chambers, Aholt & Rickard, is president-elect of the State Bar of Georgia and author of Georgia Law of Torts: Trial Preparation & Practice. A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he has been listed as a "Super Lawyer" (Atlanta Magazine), among the "Legal Elite" (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). He has broad experience in products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases.
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