The family of Elijah Silvera, the 3-year-old with a dairy allergy who died of anaphyalxis after being fed a grilled cheese at his New York City daycare center, has launched a lawsuit against the preschool, the agency that provides disabilities special needs teachers and the teacher who was on duty.
In the lawsuit, which seeks damages of $10 million, Thomas Silvera, the boy’s father, alleges the Seventh Avenue for Family Services preschool was grossly negligent in its conduct, which led to his son’s death on November 3, 2017.
While he can’t comment directly on the lawsuit, as it’s before the courts, Silvera told Allergic Living: “A child who suffers from severe food allergies and anaphylaxis needs to have the same protection with their health as anyone else and not be looked at as if this is ‘no big deal’. It’s a very big deal.”
“I ask that policy lawmakers to wake up and start making changes fast to protect our children,” he said.
In the lawsuit, Silvera contends:
- The family had given Seventh Avenue both written and verbal instructions about the food allergies and asthma of Elijah (whose full name is Elijah-Alavi Affiq Thomas Silvera). The written notifications included his asthma and food allergy action plans as well as his doctor’s instructions about the signs and symptoms of a severe asthma attack or food-allergic reaction.
- The family had given the preschool a list of foods known to contain Elijah’s allergens, including dairy.
- Despite the previous information, Silvera says the preschool “was grossly negligent in causing [Elijah’s] severe asthma attack and/or allergic reaction by providing, feeding or allowing him to be fed or obtain access to a known allergen from his list of known dangerous foods.”
- Despite the symptoms Elijah was experiencing, the daycare failed to “render any or appropriate emergency medical care, including but not limited to the use of a EpiPen.”
- When Elijah’s mother arrived at the school, Seventh Avenue Center staff, either through negligence or willful misconduct, withheld facts “concerning the known cause of [the child’s] emergency asthma attack and allergic reaction.”
The management of Seventh Avenue Center, which remains closed following Elijah’s death, has not replied to our request for comment on the lawsuit.
Also named in the suit and facing the same negligence and misconduct allegations are: Starting Point Services for Children, a nonprofit agency that provides special education teachers for preschoolers with disabilities, and the special education teacher who supervised Elijah at the preschool on the day of his fatal reaction.
The teacher is cited for her role in giving an allergenic food to Elijah and then, once the boy began showing symptoms, for failing to take appropriate actions – from calling 911, using the auto-injector or advising other staff of the emergency in a timely fashion. (Starting Point Services did not respond to a request for comment.)
While unable to speak about the lawsuit, Silvera would say this: “There is no amount of money that can match the pain and suffering my family will have been enduring each and every day of not having our son Elijah-Alavi with us. Normal is not the same anymore. His brother does not have his best friend anymore.”
Silvera vows to continue to try to effect change and stop more tragedies, using the hashtag #elijahsecho in social media to support such efforts. “My son Elijah-Alavi did not die in vain. I will carry on his voice,” he said.
Silvera and his wife Dina Hawthorne-Silvera have already been lobbying the New York state government for a bill called Elijah’s Law, which would require an anaphylaxis policy for all state daycare centers. And in June, New York City amended its health code to require city-run daycares to keep stock epinephrine auto-injectors and have staff training on managing severe allergies.