A Parents Guideline to Injury Lawsuits on Behalf of Children
An injury is an injury, whether it happens to an adult or a child. However, injuries to children include unique issues not found in adult claims.
For instance, children don’t think like adults and often can’t properly express the events that transpired that led to their injuries. All you know, as a parent, is that one day the school called your house and said your child fell and needs to be picked up. Then when you picked him up, you found his arm appeared broken and he was crying, but all you are told is that he fell at recess.
This lack of closure often causes the parent great anxiety, as they wonder exactly what happened and if it could have been prevented. Worse yet, for parents that work and can’t afford to stay home and care for an injured toddler, for instance, they have to scramble to make arrangements to care for their child.
Our firm handles many cases with children – some infants, some toddlers and some adolescents – very different stages of a child’s life – and we have become very good at understanding how to speak with them, to get the best information possible to help us prosecute their case. In addition, cases with children are very unique from adult cases, to wit:
- There are different timelines for filing claims;
- An adult needs to file a claim on the child’s behalf;
- Children of certain ages don’t need to testify;
- Parents can also make a claim for their time away from work and their out of pocket expenses;
- Special rules exist on how settlement funds get distributed and courts must approve settlement decisions.
As you read through our website, hopefully all of your questions will be answered.
Accidents Unique to Children
Most parents are very hands on with their children – overprotective if you will. Unfortunately, for a variety of reasons, children in their formative years get raised not just by parents, but by nannies, teachers and babysitters who aren’t quite as protective as the parent, or get distracted by other children in their care. Worse yet, sometimes your children are exposed to angry individuals or predators. The most familiar accidents associated with children are as follows:
- School Accidents & Incidents:
- Playground Incidents
- Poor schoolyard supervision
- Poor gym class supervision
- Fights with Other Children
- Bullying by Other Children
- Bus Accidents
- Trips/slips and Falls
- Fingers injured in doors
- Sexual Assaults
- Daycare Accidents
- Playground incidents
- Falling Objects from a Height
- Burns from radiators or sun baked metal/plastic
- Dog Bites
Is My Child’s Injury Claim Valid?
We, as lawyers specializing in child injuries are good at determining this. Kids running and falling or bumping their heads is just part of being a child and lack of coordination. But, if a teacher could have stopped your child from running and didn’t, and then they fell – well, that may be a case.
In the end, as with adults, we still need to prove the injury was caused by another’s negligence. The standard is did the entity (school/daycare) have a duty to protect your child from harm and fail. And did your child suffer an injury. If the child meets those criteria, then there should be a case.
Protect Your Child by Hiring a Personal Injury Attorney
As you browse through our website, you will see that pursuing a child’s case has additional steps that can be complex. As a result, you need proper legal representation so that your child received maximum compensation in the most efficient manner.
In addition, we pride ourselves in making the journey easy for the children involved.
We offer free consultations, and we don’t get paid until we’ve won your child’s case – so call – you have nothing to lose.
How a Child’s Accident Case is Unique
There are several ways a child’s lawsuit differs from an adults and, as you will read, they often involve strategic decision making and extra steps, which require a law firm with experience. Below are some of the key distinctions:
The Statute of Limitations for Child Injuries
A child is a minor– an individual who has not yet reached their eighteenth birthday – they can’t drive or vote and they can’t protect themselves legally.
Recognizing this, the statute of limitations (the time in which one must start their lawsuit or forever be time barred) is extended for children. In New York, where typically an adult must file their personal injury lawsuit within 3 years from the date of the accident, a child is allowed to file their lawsuit up to three years after their eighteenth birthday. Similarly, where an adult must file their malpractice action within 2 ½ years of the act of malpractice, a child is allowed to extend their time up to ten years.
That is not to say that a child’s case should be ignored for 10 years until the child reaches adulthood. To the contrary, it is best to start an action quickly after an accident when evidence is fresh. If one waits 10 years, memories get foggy, evidence may get destroyed, and witnesses might disappear, so determining when to start a child’s case is a strategic decision. In some cases, we as lawyers want to delay, to get a better grip on the extent of the child’s injuries. This is especially true with brain injuries, where one needs time to see how the child mentally develops as they age.
Can a Child even File a Claim?
Well, yes and no. A child under the age of 18 can’t file an accident claim on their own, as they are unsophisticated and need their parents help and wisdom. But they can have a parent or guardian file a claim on their behalf. When this process is followed, a few differences exist. First, the parent has to testify. Second, the parent can put in for their own claims, arguing claims that they were forced to stay home from their job, expended money to get the child medical treatment and lost the love and support that a happy, healthy child would offer a parent.
However, even if a parent starts the lawsuit, meaning they would be the client initially, once the child turns 18 years of age, they become our client and a whole new set of papers are required to be signed to effectuate this.
Sometimes, if the Court feels a child’s parent or representative is not putting the child’s best interests at heart, they can appoint a Guardian Ad Litem (who works for the Court), who doesn’t replace a parent, but rather appears independently to represent the child.
Protecting the Infant’s Settlement with an Infant’s Compromise Order
The final major distinction in representing children is that the Court’s require extra layers of protection to make sure the child’s settlement funds are not stolen or used by someone else.
Typically, when an adult’s case is settled, the insurance carrier issues a general release for the client to sign, which embodies the terms of the settlement – in exchange for a sum of money, the injured party releases the tortfeasor from liability. Then the lawyers file a stipulation of discontinuance to remove the lawsuit from the Court’s docket.
But children are vulnerable, so the Courts step in to protect the infants from greedy family members, greedy lawyers and greedy guardians, all of whom could potentially steal a child’s money without the child knowing it.
At the conclusion of the case, after terms of settlement have been negotiated or a verdict sustained in the child’s favor, the Court requires the plaintiff’s attorneys to prepare a series of documents called an Infant Compromise Order, which provides full disclosure of all the information relevant to the lawsuit and settlement and requires an affidavit from the infant’s representative, an affidavit from the lawyer, an updated medical report from a treating doctor indicating the child’s current condition and other supporting documentation.
Then the Court, after reviewing the documents, requires a conference to meet the infant, the guardian and the attorney before approving the settlement terms. The Judge will ask questions about the injuries, how they affected the infant, and whether the child still has pain. The Judge will also speak to the child.
Finally, once approved, an Order will be issued with instructions concerning the management of the funds, which the guardian will be required take to a local bank, and open an account where the money can be placed in a trust, and remain there until the child’s 18th birthday, at which time the child can access the funds.
Protect Your Child by Hiring The Right Lawyer
As one can see, processing a child’s case has complexities with both legal and financial implications that can affect a child’s future.
It is therefore imperative that you receive reliable legal advice from a lawyer with a specialty in these issues.