Girl’s death not caused by Bethel staff, jury finds

A Pierce County jury this week found that the Bethel School District was negligent, but that its actions did not directly cause the death of a 10-year-old girl who died three years ago after suffering an asthma attack at Clover Creek Elementary School.

Fifth-grader Mercedes Mears died Oct. 7, 2008, and her parents, Jeanette and Michael Mears, sued the school district in 2009. In a prior legal claim against the district, filed before the suit, the parents had asked for $15 million.

But the jury, which returned its verdict Monday in Pierce County Superior Court, did not award damages because it did not find that the district's actions directly resulted in the girl's death, attorneys for both the family and the district said.

In the lawsuit, the parents blamed their daughter's death on several factors, alleging that school staff delayed calling paramedics, did not administer CPR and failed to inject emergency medication from an EpiPen device, which was available in the school health room.

They also claimed the absence of a school nurse was a contributing factor. A nurse was assigned to Clover Creek but – as in many public school districts – she worked at multiple schools and was not at Clover Creek the day Mercedes became ill.

"The standard of care does not require a full-time nurse in every (school building," said Jerry Moberg, who represented the Spanaway-based school district.

He said that a school health clerk called 911 a minute after Mercedes entered the school health room. Paramedics arrived within five minutes of the emergency call but were not able to save her, Moberg said.

The Mears' attorney, Ben Barcus, said Thursday the verdict was not a complete victory for the district. He said he plans to ask for a new trial.

He said one key area where school employees were negligent concerned their failure to inject Mercedes with the medication in the EpiPen. It contains a pre-measured dosage of epinephrine, a substance often used to treat severe allergic reactions.

Mercedes had both asthma and allergies to food and environmental factors, including pollen, dust mites and mold, Barcus said.

"She had severe allergies," which can sometimes trigger asthma attacks, he said. But he said the school's written plan for dealing with allergies was based on obsolete information. He said district and state policy on using the Epi-pen had changed before Mercedes' emergency occurred, and that the school personnel should have used it.

"The policy is 'inject now, ask questions later,'" Barcus said, adding that the medication would not have harmed the girl and might have saved her.

He said an expert testified that had the girl received the medication or CPR, she would have survived.

"This death was absolutely, 100 percent preventable," Barcus said.

But Moberg said that only a nurse is allowed to inject medication into students. He said that Mercedes could have self-injected the medicine in case of a severe allergic reaction. But he said district employees didn't see evidence of that, and so they followed procedures for an asthma attack.

"The only option was to administer (asthma medication albuterol, and call 911," Moberg said. He said the medical examiner concluded that Mercedes died from a severe asthma attack.

A school secretary, who was a former school health clerk, administered the albuterol, while the Clover Creek health clerk called paramedics. Health clerks have CPR and First Aid training but are not licensed medical professionals.

"The jury concluded we did everything we properly and reasonably could under the circumstances," Moberg said.

He said that even though the jury didn't hold the Bethel District directly accountable for the girl's death, there are things the district could improve. Among them: keeping records of employee training, standardizing forms and clarifying policies.

"This was a tragic and unfortunate death from a sudden and fatal asthma attack," said Jessie Harris, another attorney for the district, in a statement. "Asthma is a serious illness and can sometimes be fatal. However, the school staff on duty that day acted appropriately and quickly."

Debbie Cafazzo: 253-597-8635 debbie.cafazzo@thenewstribune.

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