One of the most difficult moments in any parent’s life is when they see their child injured. Whether or not it’s playing in the backyard by themselves or with a friend, playing on a school sports team, or if they’re in a car, in that moment when a parent realizes that their child’s been hurt, nothing else matters.
The only thing the parent is concerned about is whether or not their child is going to be okay, whether they’re going to get right back up and get back in the game, whether they need to shake it off, or whether it’s something more significant and that child needs to get medical attention, or rush to see a doctor.
Thankfully, we found in our practice that claims involving minor children tend to be few and far between. One of the great advantages to being young is that kids tend to recover from injuries, the same bumps, scrapes, or falls, that would impact somebody who was middle-age or older, kids get right back up on their feet. They seem to be able to brush those types of injuries off.
Every once in a while, a child is injured seriously or permanently as a result of somebody else’s negligence. When that happens, the injury claims of a child are very different than the claims of an adult.
In this article, we’re going to talk about how the injuries themselves can be different, and how they’re handled differently, but also how the claims process involving an injured child is very different from that of an adult. The differences are so significant that it impacts the way the entire claim is brought on behalf of that child.
Common Injuries For Children
First, let’s talk about how injuries to children can be different. They can be different both physically and psychologically.
One of the very first things to keep in mind is that, like we talked about earlier, young children tend to recover from injuries better than their parents. With a lot of children who are involved in either an accident at school, or in a car accident, or inside a store, they may have acute injuries that need to be treated by their pediatrician, or at an urgent care, or an emergency room, but over the next several weeks to months, children tend to make a complete recovery.
At the same time, there are other types of injuries such as broken bones or more significant scarring that can prove to be a significant impediment to either that child’s physical development or emotional development.
One of the most common injuries that we see is some type of a scarring to a young child, either on their face or on their visible extremities. Those claims can be particularly difficult because of things that are so common in the news today such as bullying.
There are a number of studies that show that young children who have any type of facial scarring tend to suffer much more severely from bullying by classmates. It’s harder for them to make friends or to relate, and they tend to feel ostracized because of what is going to be an obvious target for other young children who may not appreciate the power of their words when they ask a young child about a scar, or they may truly appreciate it and want to just bully or pester that child.
Whenever you’re dealing with an injury to a child that’s some type of scar, it’s important to make sure that that child not only gets seen by a specialist such as a plastic surgeon who can help the parents understand what treatment options are available – whether it’s cream, some type of topical management, all the way to surgical intervention to help minimize or in some cases completely eradicate that scar – but it’s also important to focus on the complaints of the child. Understanding what they’re going through with their peers and their friends at school to maybe consider some type of counseling to help minimize the impact of the obvious nature of those injuries.
Other concerns deal with circumstances where children suffer from severe broken bones that require any type of surgical intervention. A common injury would be a child falling at the playground and breaking their arm or their leg. If the break is severe enough and the doctors have to use plates, or screws, or rods, in order to stabilize the broken bones, that can have an impact on the child’s development. It changes what would be a fairly common injury for adults into a much more prolonged and painful path to recovery for the child as they have to deal with multiple surgeries or deal with the developmental delays on that particular bone, whether it’s the leg or the arm.
With more common types of injuries such as whiplash injuries from car accidents, so injuries to a child’s neck or back, those injuries do require the same types of treatment that a parent would get, conservative care, physical therapy, rehabilitation, treatment like that. The outcomes we’ve generally found are better for children. It’s the type of injury that, in today’s day and age, parents should be on the lookout for, kids complaining that their necks or backs still hurt them, because we’ve seen what happens to people over time as they get older if they ignore these injures. It’s important to make sure that a child gets immediate treatment to help reduce those symptoms and give them the best chance of recovery.
Child Personal Injury Claims
Another thing to keep in mind is that depending on the severity of a child’s injuries, in Florida parents are entitled to bring a claim if their child suffers a permanent injury as a result of someone else’s negligence. That’s a claim for the parents’ loss of consortium, which is a fancy word that means the parents have a right to be compensated if they’ve lost the love or affection of their child as a result of that child’s physical or mental injuries. Now, obviously that type of claim depends heavily on how well the child recovers, but it’s a component of a claim that the parent has unique to the claims based upon the injuries of their children.
Who can bring a claim?
Now, let’s assume for a moment that it’s one of those unfortunate situations where the child has a permanent or significant injury as the result of somebody else’s negligence. How is the claim of a child, how is it handled differently than the claims of a parent? The reality is in Florida the claim is very, very, different. The biggest distinction is that minors, so any child under the age of 18, is not legally able to obtain a lawyer, or file a lawsuit, or bring a claim. That has to be done through either a parent or a court appointed guardian. Generally, it’s going to be the parent that is the one who’s allowed to retain the lawyer, bring a claim, and ultimately decide whether or not a case can be settled. If you bring a lawsuit on behalf of a child, you’ll see it brought as ‘parent on behalf of their minor child’.
Settling an injury claim – not as easy as you would hope.
The other big distinction is when it becomes time to settle the claim of a child. Imagine the parents are representing the children, they’ve decided that they’ve brought a claim, a settlement offer has been made, and the parents want to accept that on behalf of their child. Well, there’s two things to keep in mind. The first is that any recovery that is not specifically identified as the parents’ claim for their loss of consortium is a recovery that’s meant to benefit the child. The court is very interested in making sure that whatever settlement is reached, the proceeds of that settlement are protected to help serve the best interest of the minor as they grow up and as they enter adulthood.
If you have a settlement that is less that $15,000 a court doesn’t need to be involved. The parents will settle that on behalf of the child, and then they can use those funds to help the child however they see fit. Settlements that are above $15,000 do need to have court approval, which means that parents would have to petition the court to approve any settlement for the minor. Generally, if the amount is over $15,000, the court is going to want to know, how is that money going to be used to ensure that it’s not used for things that are not in the child’s best interest? So you have those unfortunate circumstances where a parent might take the money and use it to buy themselves a car, but really that’s their child’s money, and it should be used to the child’s best interest. In those circumstances, the court’s going to want to see some proof of how the money may be used.
Oftentimes, they require the parents to undergo specific guardianship classes because the court is going to want to appoint the parent, not only as the parent in their parental capacity, but as the guardian of that specific property, that settlement on behalf of the child. What the guardian’s role is going to be is to ensure that that money is not used for inappropriate purposes. That’s a pretty lengthy process. Parents are going to have to take classes, they’re going to have to before the court and petition to be approved, and the court’s going to have to approve whatever the plan is that parents come up with.
If the settlement is above $50,000, the law changes again. At that point, not only do the parents or some family member have to be appointed as the guardian of the child for purposes of settling a case, but the court is also going to appoint somebody who’s called a guardian ad litem. That’s an individual appointed by the court to serve, separate and apart from the parents, as a representative of the child themselves. The role of the guardian ad litem is to ensure that the settlement is fair, that the plan that the parents or the guardian have come up with as far as how the money will be used is appropriate and fair. They end up submitting a report to the court that the court considers in deciding whether or not the court will approve any settlement to the minor.
In many of these circumstances, depending on the size of the settlement, families may find that it’s in their best interest to do what’s called, structure the money. The advantage of structuring can be that the money is taken out of an actively managed fund, and it’s put into a long-term investment. What happens in those circumstances is the parents are no longer taking on the additional responsibility of reporting as to how the money is being spent, managing the guardianship, which we can’t get into in this short video, but is an incredibly complex and involved process. The advantage to the structure is, again, that the money is set aside and protected until the child turns 18.
Other options are, though, that the parents can decide to come up with a way to manage and invest that money so that it grows and benefits the minor to their best abilities. With that comes additional reporting requirements and periodic, or annual, checkups with the court to make sure that they’re doing that job. Ultimately, with child claims above $15,000, you have to get the court involved to make sure that the settlement is fair, which is very different from the claims of adults.
Because of how complex this process is involving claims of minor children, we do encourage people to talk with a lawyer if their child has been injured as a result of someone else’s negligence. You want to make sure that you understand what your options are, that you’ve considered all the treatment that might be available to your child. You also want to make sure that you’re acting in that child’s best interest, because there are so many hurdles that you have to jump over to ensure that a settlement is reached on behalf of an injured child that’s fair to the child, and that protects the child’s best interest as they continue to go forward.
If you or a loved one have any questions about child injury claims, feel free to contact the attorneys at Michles & Booth. We can be reached at 1-800-438-3606, or visit us online at www.michlesbooth.com. We’ll be glad to try to help you and your family in any way that we can.
View this article as a video here: Child Injury Claims
View the slidedeck for this video here: Injury Claims Involving Minors