CdA school choking case on way to trial

A lawsuit against the Coeur d’Alene School District over a special education student who choked during lunch at Coeur d’Alene High School is headed to trial in September.

John M. Ferguson filed the lawsuit against the school district in December 2003 on behalf of his foster son, former Coeur d’Alene High student Richard McLeod. The lawsuit alleges that special education aide Gayle Brown fed McLeod too large a bite of German sausage, causing him to choke and suffer permanent brain damage.

McLeod, who was 20 at the time, has cerebral palsy. The lawsuit seeks unspecified damages, but in 2003 Ferguson said medical bills had already reached $1 million.

Idaho First District Judge Charles Hosack on Friday denied motions for summary judgment filed by attorneys for both sides. Both attorneys argued that claims made by the other lacked evidence necessary for the matter to go to trial.

Both sides agreed Friday to dismiss claims against Brown as an individual because she was acting in the scope of her duties as a public employee. Ferguson’s attorney, Kacey Wall, said Friday that the school district “failed miserably in training and supervising” Brown, and she criticized district employees for not calling 911 sooner.

Some Coeur d’Alene High School employees testified in depositions that the school had a policy that no employees dial 911 without approval of a supervisor, Wall said.

“It just couldn’t have gone any worse that day,” Wall said. “The longer your brain goes without oxygen, the more severe the damage is.”

Boise attorney Chris Hansen, representing the school district, said there was no evidence to support Wall’s claim that the time or manner in which 911 was called caused additional damage. He said there was some question as to whether there was, in fact, a delay in calling 911.

According to the lawsuit filed by Ferguson, McLeod was a junior at CHS when the choking occurred on April 11, 2003. The lawsuit alleges that Brown was helping McLeod eat lunch that day and “fed him German sausage by allowing him to bite off a piece without an attempt to control the size of that piece.”

It alleges that the sausage became stuck in McLeod’s throat and that Brown “shoved bread in his mouth in spite of the fact that it was apparent that Richard was struggling with the food already in his mouth.”

Wall said on Friday that Brown had been told hot dogs and sausage were inappropriate foods for students with cerebral palsy and had been told previously by another district employee that she was feeding McLeod too fast.

Hansen said Ferguson had testified in his deposition, though, that he had himself fed McLeod sausage.

“Certainly if it’s appropriate for Mr. Ferguson to feed the child sausage, certainly is it not appropriate for the teacher’s aide to do the same?” Hansen asked. He said McLeod’s Individual Education Plan did not include feeding instructions.

In August 2003, after filing a tort claim against the school district, Ferguson told The Spokesman-Review that McLeod used to be able to nod “yes” and “no,” walk with help and operate a wheelchair.

McLeod has been in Ferguson’s care for about 10 years. Ferguson said he began caring for the boy after receiving a call from the state asking if he would take him in because he had experience caring for disabled children.

Ferguson said he was told McLeod suffered brain damage as an infant and was taken into the state’s custody years later. A year after McLeod moved into Ferguson’s home, Ferguson said he became his legal guardian.

In court on Friday, Wall said McLeod “was a playful child” before the incident.

“He teased, he laughed, he was able to communicate his wishes and opinions,” she said. “He was not able to speak, but there was no disputing he was awake and alive.”

Now, Wall said, “he’s laying flat on his bed in the basement of the home and he can move his head from side to side.”